The citizens' right to information : law and policy in the EU and its Member States.
Date: 2015-02-13
Institutions: Directorate-General for Internal Policies of the Union
Subjects: EU Member State, EU law - national law, European Union, Internet, access to information, comparative analysis, freedom of communication, information policy, mass media, right to information, telecommunications policy

 
DIRECTORATE GENERAL FOR INTERNAL POLICIES 

POLICY   DEPARTMENT C: CITIZENS’ RIGHTS AND 

CONSTITUTIONAL AFFAIRS
 

CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS 

The Citizens' Right to Information 

- Law and Policy in the EU and its Member States -


STUDY 

Abstract 
The  study  elaborates  on  the  European  Union  citizens’  right  to  be 
informed  and  to  enjoy  their  right  to  access  information.  The  approach 
adopted  is  two-fold:  firstly,  it  aims  at  analysing  the  legal  and  factual 
situation of the media in the EU Member States; secondly, it explores the 
conditions under which the citizens can search for information of interest. 
Country  reports  represented  in  their  integrality  furtheron  build  the 
fundament  for  comparative  analysis;  another  part  of  the  study  is 
dedicated  to  describing  the  relevant  European  benchmark  applicable  to 
the freedoms of the media and information.  

PE 462.467

 EN 


 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
             
This  study  was  requested  by  the  European  Parliament’s  Committee  on  Civil  Liberties, 
Justice and Home Affairs. 

AUTHOR 
Mr Alexander SCHEUER, Attorney-at-law, General Manager EMR 
Ms Cristina BACHMEIER, Scientific Assistant, EMR 
Ms Leyla ROCK/Ms Birgit SCHMEYER, Scientific Assistants, EMR 

And  the  Correspondents  of  the  EMR  Media  Network  acting  in  their  capacity  as  national 
experts (presented in detail in annex 3 - “about the authors”) 

ADMINISTRATOR RESPONSIBLE 
Mr Jean-Louis ANTOINE-GREGOIRE 
Policy Department C: Citizens' Rights and Constitutional Affairs  
European Parliament 
B-1047 Bruxelles 
E-mail: jean-louis.antoine@europarl.europa.eu 

LINGUISTIC VERSIONS 
Original: EN 

ABOUT THE EDITOR 
To contact the Policy Department or to subscribe to its monthly newsletter please write to: 
poldep-citizens@europarl.europa.eu 

Manuscript completed in June 2012. 

European Parliament, @ European Union, 2012. 


This document is available on the Internet at:
 
http://www.europarl.europa.eu/studies
 

DISCLAIMER 
The  opinions  expressed  in  this  document  are  the  sole  responsibility  of  the  author  and  do 
not necessarily represent the official position of the European Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the 
source is acknowledged and the publisher is given prior notice and sent a copy. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

CONTENTS 

LIST OF FIGURES 

EXECUTIVE SUMMARY 

1.  PREFACE AND CONTEXT 

1.1.  Scope and Objectives of the Study 

1.2.  Methodology applied 

1.3.  The European Legal and Policy Framework 

11
 

12
 

21
 

21
 

22
 

24
 

1.3.1. 
media law of the Member States 

Media  law  aspects  of  European  Union  law:  the  acquis  and  its  impact  on  the
 

Council  of  Europe  –  Article  10  ECHR  and  Subsequent  Conventions  /
 

1.3.2. 
Recommendations 

1.3.3. 

Evaluation and importance of main European standards 

2.  COUNTRY REPORTS 

2.1.  Context and Framework 

2.2.  The Situation in the EU Member States 

2.2.1. 

Austria 

2.2.2. 

Belgium 

2.2.3. 

Bulgaria 

2.2.4. 

Cyprus 

2.2.5. 

Czech Republic 

2.2.6. 

Denmark 

2.2.7. 

Estonia 

2.2.8. 

Finland 

2.2.9. 

France 

2.2.10.  Germany 

2.2.11.  Greece 

2.2.12.  Hungary 

2.2.13. 

Ireland 

2.2.14. 

Italy 

2.2.15. 

Latvia 

2.2.16. 

Lithuania 

2.2.17. 

Luxemburg 

2.2.18.  Malta 

2.2.19.  The Netherlands 

2.2.20.  Poland 

2.2.21.  Portugal 

2.2.22.  Romania 

2.2.23.  Slovak Republik 

2.2.24.  Slovenia 

2.2.25.  Spain 

2.2.26.  Sweden 

2.2.27.  United Kingdom 

3 


24
 

54
 

93
 

94
 

94
 

95
 

96
 

113
 

145
 

163
 

183
 

197
 

209
 

235
 

253
 

282
 

322
 

349
 

376
 

394
 

423
 

440
 

465
 

481
 

498
 

524
 

551
 

568
 

594
 

610
 

619
 

633
 

651
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

3.  COMPARATIVE ANALYSIS 

3.1.  Constitutional law/fundamental rights safeguards for the freedom of 


the media and of the citizens’ right to information 

3.2.  The legal and regulatory order for the media 

3.2.1. 

General remarks 

3.2.2. 

“Market entry” aspects 

3.2.3. 

Pursuit of “core activity” 

3.2.4. 

Access to information 

3.2.5. 

“Have a say on ...” 

3.3.  Media markets situation in the EU Member States 

4.  CONCLUSION AND RECOMMENDATIONS 

5.  ANNEX 

5.1.  Questionnaire 

5.2.  List of Sources 

5.3.  About the Authors 

669
 

669
 

670
 

670
 

671
 

674
 

678
 

680
 

681
 

685
 

689
 

689
 

693
 

693
 

4 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

LIST OF ABBREVIATIONS 


Art. 

AVMSD 

CFI 

CFREU 

CM 

CoE 

Article 

Audiovisual Media Services Directive 

Court of First Instance (now: General Court) 

Charter of Fundamental Rights of the European Union 

Committee of Ministers of the Council of Europe 

Council of Europe 

(A/V)DSL 

Digital Subscriber Line 

DG 

Directorate General (Europan Commission) 

DVB(-T/-C/-S/-H)   Digital Video Broadcasting (terrestrial, cable, satellite, 

EC 

eCD   

ECHR 

ECtHR 

ECJ 

ECR 

EESC 

EP 

EU 

IPTV 

ISP 

NGO 

OJ 

OSCE 

PACE 

handheld/mobile) 

European Community 

eCommerce Directive 

European Convention on Human Rights and Fundamental Freedoms 

European Court of Human Rights 

European Court of Justice 

Series of Publication of Decisions of the EU Courts 

European Economic and Social Committee 

European Parliament 

European Union 

Internet Protocol Television 

Internet Service Provider 

Non-Governmental Organisation 

Official Journal of the European Union 

Organisation for Security and Co-operation in Europe 

Parliamentary Assembly of the Council of Europe 

PSB, PSM 

Public Service Broadcasting/Broadcaster, Public Service Media 

Sec. 

TEU 

TFEU 

Section (§) 

Treaty on the European Union 

Treaty on the Functioning of the European Union 

5 


 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
   
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
   
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

LIST OF TABLES  

Table 1 AT: Main radio companies ...................................................................... 106
 

Table 2 AT: Main Television Companies 2011 ....................................................... 108
 

Table 3 AT: Austria´s largest Media Companies as publishers of daily newspapers ..... 109
 

Table 4 AT: Average number of printed copies and reach of the largest Austrian dailies in
 
2010........................................................................................................ 110
 

Table 5 AT: Main Cable Companies ..................................................................... 111
 

Table 6 AT: Share of advertising revenue within the media sector 2011: .................. 111
 

Table 7 BE: Video consumption on VRT-websites .................................................. 138
 

Table 8 BE: Unique visitors per day of VRT websites.............................................. 138
 

Table 9 BE: Turnover of advertising market in Flanders (gross, in million euro) ......... 141
 

Table 10 BG: Main radio broadcasters ................................................................. 156
 

Table 11 BG: Main television broadcasters ........................................................... 157
 

Table 12 BG: Main publishing companies ............................................................. 158
 

Table 13 BG: Main internet content providers ....................................................... 159
 

Table 14 BG: Main Cable/Satellite network operators and IPTV providers ................. 160
 

Table 15 BG: Share of advertising revenue within the media sector ......................... 160
 

Table 16 CY: State grant and income from advertising........................................... 168
 

Table 17 CY: Selective television yearly audience share since the previous report...... 176
 

Table 18 CY: Websites and company establishment/network operation .................... 178
 

Table 19 CY: List of Cyprus media and websites ................................................... 178
 

Table 20 CY: Network services providers offer the following: .................................. 179
 

Table 21 CY: Distribution of advertising expenditure in the media sector .................. 180
 

Table 22 CY: Advertising income – Share of major broadcasters ............................. 180
 

Table 23 CZ: Largest radio channels, weekly rating (WR) and daily rating (DR) ......... 192
 

Table 24 CZ: Terrestrial broadcasters.................................................................. 193
 

Table 25 CZ: Audience Share of TV (2010) %....................................................... 194
 

Table 26 CZ: Daily press ................................................................................... 194
 

Table 27 CZ: Internet population ........................................................................ 194
 

Table 28 CZ: Raking of the websites ................................................................... 195
 

Table 29 CZ: Advertising revenues in Czech Crowns (26 CZK = 1 Euro) ................... 196
 

Table 30 EE: Main radio operators ...................................................................... 227
 

Table 31 EE: Radio stations (Estonian-speaking) audience share/week..................... 229
 

6 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 32 EE: Radio stations (Russian-speaking) audience share/week...................... 229
 

Table 33 EE:Main television companies................................................................ 230
 

Table 34 EE: Daily audience share in percent from total viewing time ...................... 230
 

Table 35 EE: Newspaper publishers and titles ....................................................... 231
 

Table  36  EE:  The  Estonian  newspaper  industry  sales  and  advertising  revenues  in  2010
 
............................................................................................................... 231
 

Table 37 EE: The average number of printed copies of newspapers ......................... 232
 

Table 38 EE: Estonian media advertising market shares in 2011 ............................. 233
 

Table 39 FI: Top twelve media companies by turnover 2010................................... 245
 

Table 40 FI: Largest private radio channels and networks 2010 .............................. 246
 

Table 41 FI: Top 3 TV companies in Finland and their channels 2011 ....................... 247
 

Table 42 FI: Top ten newspaper publishers according to circulation 2010 ................. 248
 

Table 43 FI: Largest publishers of consumer magazines by volume and titles 2010 .... 248
 

Table 44 FI: Top twelve Finnish WWW media pages 2011 ...................................... 249
 

Table 45 FI: Main cable TV network operators including IPTV 2010.......................... 250
 

Table 46 FI: Daily reach of main media 1992-2010, % of population over 12 years ... 250
 

Table 47 FI: Shares of media advertising by sector in 2010 .................................... 251
 

Table 48 FR: Main Radio Companies.................................................................... 272
 

Table  49  FR:  National  audience  share  of  digital  terrestrial  television  channels  of  June
 
2011........................................................................................................ 273
 

Table 50 FR: Main publishers of daily newspapers ................................................. 274
 

Table 51 FR: Main Publishing Companies of regional press ..................................... 276
 

Table 52 FR: Main services of video on demand on the French market ..................... 276
 

Table 53 FR: Catch-up TV services of the five main channels (ranked by viewing figures)
 
............................................................................................................... 277
 

Table 54 FR: Share of advertising revenue within the media sector 2010.................. 278
 

Table 55 DE: Main Radio Companies ................................................................... 313
 

Table 56 DE: Market shares of Privates and ARD................................................... 314
 

Table 57 DE: Daily usage of TV .......................................................................... 314
 

Table 58 DE: Audience share of selected TV channels of general genre .................... 315
 

Table 59 DE: Major publishing Companies............................................................ 317
 

Table 60 DE: Demand of video files .................................................................... 318
 

Table 61 DE: IPTV providers 2011 in Germany ..................................................... 319
 

Table 62 DE: Audience statistics ......................................................................... 320
 

Table 63 DE: Revenues in the range of media ...................................................... 320
 

7 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table  64  GR:  Market  shares  of  the  top  12  licensed  radio  stations  in  the  Attica  region 
(2011-2012) ............................................................................................. 338
 

Table 65 GR: TV shares in Greece, by transmission medium (2011) ........................ 340
 

Table 66 GR: Annual % audience shares of the main Greek TV channels (2010-2011) 341
 

Table 67 GR: Allocation of TV advertising expenditure (%, 2008-2011).................... 341
 

Table 68 GR: Morning Newspapers 2011 (Sunday publications included) .................. 342
 

Table 69 GR: Evening Newspapers 2011 (Sunday publications excluded).................. 343
 

Table 70 GR: Sunday Newspapers 2011 .............................................................. 344
 

Table 71 GR: Total Advertising Expenditure (2010-2011) (in EURO) ........................ 345
 

Table 72 HU: Shares of distribution platforms....................................................... 370
 

Table 73 HU: Advertising market shares .............................................................. 371
 

Table 74 IE: Main Radio Companies* .................................................................. 388
 

Table 75 IE: Main Television Companies .............................................................. 389
 

Table 76 IE: Main Newspaper Publishing Companies .............................................. 390
 

Table 77 IE: Cable and Satellite Companies ......................................................... 391
 

Table 78 IE: Share of advertising revenue within the media sector 2010-2011 .......... 391
 

Table 79 IT: AVMS – Total revenues for free-to-air and pay-TV (million euros).......... 417
 

Table 80 IT: Press – Sources of income (million euros) .......................................... 418
 

Table 81 IT: Online Advertising Market in Italy in 2010.......................................... 418
 

Table 82 IT: AVMS – Audience share for each platform (%).................................... 419
 

Table 83 IT: Press – Market shares (revenues) ..................................................... 419
 

Table 84 IT: AVMS – Revenues and market shares for each operator (2010) ............ 420
 

Table 85 IT: Radio – Market Shares (revenues) in 2009 and in 2010 ....................... 420
 

Table 86 LV: Main Radio companies (national coverage) ........................................ 432
 

Table 87 LV: Main Television Companies (national coverage) .................................. 433
 

Table 88 LV: Main Publishing Companies ............................................................. 435
 

Table 89 LV: Main cable TV operators.................................................................. 436
 

Table 90 LV: Advertising revenue and shares in the media sector in year 2011 ......... 437
 

Table 91 LT: Main radio companies ..................................................................... 458
 

Table 92 LT: Main Television Companies .............................................................. 459
 

Table 93 LT: Main publishers of newspapers......................................................... 460
 

Table 94 LT: Most popular websites in Lithuania* .................................................. 461
 

Table 95 LT: Cable/Satellite network operators, IPTV&Internet Access Providers ....... 462
 

8 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table  96  LT:  Real  Income  of  Media  channels  advertising  in  LTL  million/  Factual
 
advertising revenues of the media players..................................................... 463
 

Table 97 LU: Main radio companies..................................................................... 476
 

Table 98 LU: Main television companies............................................................... 476
 

Table 99 LU: Main publishing houses................................................................... 477
 

Table 100 LU: Companies and their websites, market shares .................................. 478
 

Table 101 LU: Providers of non-linear audiovisual media services ............................. 478
 

Table 102 LU: Advertising market shares............................................................. 479
 

Table 103 NL: Main radio companies ................................................................... 511
 

Table 104 NL: Main Television Companies............................................................ 513
 

Table 105 NL: Main Publishing Companies ........................................................... 515
 

Table 106 NL: Concentration of regional dailies in geographical areas (market share 2010 

(%) ......................................................................................................... 516
 

Table 107 NL: Concentration of the market of regional dailies................................. 516
 

Table 108 NL: Online news media....................................................................... 517
 

Table 109 NL: Cable, satellite and IPTV operators of digital radio and television ........ 518
 

Table 110 NL: Broadband internet access providers............................................... 519
 

Table 111 NL: Audience statistics ....................................................................... 519
 

Table 112 NL: Share of advertising expenditures within the media sector ................. 520
 

Table  113  PL:  Main  Radio  companies  –  ownership  structure,  main  stations  and  market 
share (15+age group) in year 2011.............................................................. 540
 

Table 114 PL: Main Radio Stations – market share (16-49 age group) in year 2011 ... 541
 

Table  115  PL:  Main  Television  Companies  - ownership  structure,  main  stations  and
 
market share in the year 2011 .................................................................... 542
 

Table  116  PL:  Main  Television  Stations  –  market  share  (age  group  16-49)  in  the  year  

2011........................................................................................................ 542
 

Table 117 PL: Chief publishers of selected newspapers* in the year 2011................. 544
 

Table 118 PL: Main Publishers of selected weekly magazines* in the year 2011......... 545
 

Table 119 PL: Popularity of web services (selected categories) in Poland .................. 546
 

Table  120  PL:  The  popularity  ranking  of  portals  (websites)  in  descending  order  includes
 
............................................................................................................... 546
 

Table 121 PL: Changes in advertising revenues within the media sector in Poland - 2008­

2011........................................................................................................ 548
 

Table 122 PT: Main Radio Companies .................................................................. 562
 

Table 123 PT: Main Television Companies ............................................................ 563
 

Table 124 PT: Daily Newspapers......................................................................... 564
 

Table 125 PT: IPTV........................................................................................... 565
 

9 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 126 PT: Sale of advertising space by type of media (2004-2005; 2008-2009) (unit:
 
€ 1,000)................................................................................................... 566
 

Table 127 RO: Radio main players total national market shares (05/2012): .............. 583
 

Table 128 RO: Television main players total national market shares (April 2012): ..... 584
 

Table  129  RO:  Main  newspapers/periodicals  (Brut  Circulation,  decreasing  order,  data  as  

of 31/12/2011): ........................................................................................ 587
 

Table  130  RO:  Newspapers/periodicals  CpA  (average  number  of  readers/issue  from  the  

universe, descending CpA order, 29 February 2012): ...................................... 588
 

Table 131 RO: Main mass media websites (April 2012, monthly decreasing views): ... 589
 

Table 132 SK: Main radio companies................................................................... 604
 

Table 133 SK: Main television companies............................................................. 605
 

Table 134 SK: Main publishers, their titles and sold copies ..................................... 606
 

Table 135 SK: Advertising market shares ............................................................ 607
 

Table 136 SI: Top radio channels ....................................................................... 615
 

Table 137 SI: Top 5 TV channels ........................................................................ 615
 

Table 138 SI: Top 6 daily newspapers ................................................................. 616
 

Table 139 SI: Printed press, Top 5 additions ........................................................ 616
 

Table 140 SI: Top 3 free newspapers .................................................................. 616
 

Table 141 SI: Top 5 Lifestyle magazines.............................................................. 616
 

Table 142 ES: Main radio companies ................................................................... 627
 

Table 143 ES: Main television companies ............................................................. 628
 

Table 144 ES: Main publishing companies, first trimester 2012 ............................... 629
 

Table 145 ES: Main Spanish websites.................................................................. 630
 

Table 146 ES: Advertising spend ........................................................................ 631
 

Table 147 SE: Main television operators, their channels and audience share ............. 645
 

Table 148 SE: Access to media websites/types of content ...................................... 646
 

Table 149 SE: Most important websites used/monthly basis ................................... 647
 

Table 150 SE: Providers of digital TV services (June 2011) ..................................... 648
 

Table 151 SE: Providers of broadband access (June 2011) ..................................... 648
 

10 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

LIST OF FIGURES 

Figure 1 BE: Print newspaper market shares in Flanders ........................................ 135
 
Figure 2 BE: Print newspaper market shares per title in Wallonia............................. 136
 
Figure 3 BE: Print newspaper market shares per title in Wallonia............................. 136
 
Figure 4 BE: Unique visitors based on week averages of 15 July 2009, 2 August 2010 and
 
September 2011........................................................................................ 137
 
Figure 5 BE: Turnover of advertising market in Flanders ........................................ 141
 

11 


 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

EXECUTIVE SUMMARY 

By  way  of  an  Open  Call  for  Tender  issued  in  June  2011,  the  Directorate  for  Citizens’ 
Rights  and  Constitutional  Affairs  of  the  European  Parliament  indicated  its  intention  to 
commission a study on “Information of the citizens in the EU”, conceived as an “Update 
of  the  2004  study  from  the  European  Institute  for  the  Media”1,  on  behalf  of  the 
Committee for Civil Liberties, Justice and Home Affairs. 

According to the Global ToR for the underlying service contract, the study was expected 
to cover the following themes of research: freedom of the media, freedom of expression 
and  freedom  of  information,  codes  of  practice  for  journalism  and  self-regulation,  legal 
framework  on  media  ownership  and  regulation,  the  media  system  in  Europe.  It  should 
take  into  account  in  particular  the  EU  Charter  of  Fundamental  Rights  and  the  relevant 
resolutions adopted by the European Parliament. The study overall should consist of the 
following  parts:  (i)  introduction,  (ii)  country  reports,  and  (iii)  conclusions,  while  the 
country  reports  as  such  should  deal  with  the  following  issues:  (1.)  Acts,  Legislation, 
Regulation, Codes, (2.) Main players in the Media landscape, and (3.) Conclusions. 

In  mid-December  2011,  the  Institute  of  European  Media  Law  e.V.  (EMR),  Saar­
brucken/Brussels, was entrusted with the pursuit of the research contract.  

The  EMR  has  opted  to  implement  a  “more  normative  approach”  in  order  to  provide  for 
the basis to assess the situation of the media and the citizens in the EU relating to their 
respective  freedoms  of  expression  and  information,  which  is  accompanied  by  a 
stocktaking of the media markets’ situation in the Member States. 

First,  the  “European  benchmark”  has  been  established,  delineating  the  standards  which 
derive  from  the  acquis  unionaire,  on  the  one  hand,  and  the  Council  of  Europe 
instruments,  foremost  Art.  10  ECHR,  on  the  other.  Second,  on  the  basis  of  a 
questionnaire  developed  by  the  EMR  and  on  its  behalf,  national  experts  have  described 
and  analysed  the  situation  at  national  level,  portraying  constitutional  law/fundamental 
rights  safeguards,  the  media  legal  order  as  composed  of  ordinary  law  and  co-/self­
regulatory codes of conduct, and the situation on the different media markets, summing-
up  by  way  of  conclusion  with  a  comparison  of  the  development  since  2004  and/or  with 
recommendations  aimed  at  further  improving  the  status  quo.  Third,  on  the  basis  of  the 
foregoing  two  parts,  the  EMR  has  undertaken  to  suggest  possible  media  policy  and 
legislative steps which could assist to remedy a number of existing concerns in relation to 
media freedom and the right to information. 

After  having  communicated,  in  February  2012,  to  the  European  Parliament’s  competent 
services the first interim results of the work done until that date - which consisted of the 
questionnaire  and  six  draft  country  reports  covering  different  kind  of  Member  States, 
including  one  that  acceeded  to  the  Union  in  2007  and  could  therefore  not  have  been 
covered  in  the  2004  study  -,  the  EMR  was  invited  to  the  LIBE  committee’s  meeting  on 
20/21 March 2012 in order to present the study’s approach and its preliminary findings. 
Subsequently,  the  correspondents  have  handed  in  the  remaining  country  reports,  on 
which  EMR  staff  members  working  on  the  study  engaged  in  correspondence  with  the 

1 

European  Institute  for  the  Media  (EIM)  (ed.;  authors:  D.  Kevin,  T.  Ader,  O.C.  Fueg,  E. Pertzinidou,  M. 
Schoenthal,  and  experts  from  countries  concerned),  “obligations  for  the  media  and  the  Institutions 
concerning  the  citizen’s  right  to  be  fully  and  objectively  informed”,  Dusseldorf,  31  August  2004,  („2004 
study“ or „2004 report“) available at:
http://epra3-production.s3.amazonaws.com/attachments/files/1530/ 
original/European%20Citizen%20Information%20Project%20Final%20REPORT.pdf?1323685700. 

12 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

respective experts in order to ensure comprehensiveness and completness of the results. 
In parallel, the other parts of the study have been drafted. 

By  letter  dated  of  12  June  2012,  the  competent  Director  of  the  EP’s  services  declared 
acceptance of the interim results (draft final report) which had been communicated to it 
on 31 May 2012. 

This document represents the final report of the study, established on 28 June 2012. In 
the following, the main findings of the study shall be presented: 

When taking a comprehensive look at the guarantees afforded both to the freedom of the 
media  and  the  citizen’s  right  to  information  -  as  recognised  by  the  CFREU,  EU  treaties, 
Secondary  EU  legislation  such  as  resolutions  adopted  by  the  European  Parliament  and 
the directives on the one hand, and the ECHR accompanied by relevant jurisprudence of 
the ECtHR, the CoE’s conventions and recommendations, on the other – it becomes clear 
that  the  benchmark  at  European  level  has  become  more  and  more  encompassing  and, 
mostly, directly relevant for the media legal orders of the Member States. 

The  ECtHR  recognises  freedom  of  expression  as  one  of  the  basic  conditions  for  the 
progress  of  democratic  societies  and  for the development  of  each  individual.  It  stresses 
the  institutional  role  of  the  press  –  not  only  in  its  traditional  concept  –  as  a  “public 
watchdog”.  It  further  confirms  that  the  principles  relating  to  the  freedom  of  expression 
are  also  valid  in  the  area  of  audiovisual  communication  and  further  highlights  the 
principle  of  pluralism  and  the  function  of  the  State  as  an  ultimate  guarantor  to  secure 
pluralism, particularly in the area of audiovisual media, both public service and private. 

The  ECJ  acknowledges  freedom  of  expression  as  one  of  the  fundamental  principles  of  a 
democratic society. In particular in State aid cases the Court was given the opportunity 
to  acknowledge  the  important  role  of  public  service  broadcasting  in  view  of  its  cultural, 
social  and  democratic  functions  and  its  vital  significance  for  ensuring  democracy, 
pluralism, social cohesion, cultural and linguistic diversity. The ECJ further derived from 
the  freedom  of  expression  guaranteed  by  Article  10  ECHR  the  possibility  to  justify  a 
restriction on the fundamental freedoms of the EC Treaty (now: TFEU), namely the free 
movement of goods and services and the freedom of establishment, with the legitimate 
objective  of  maintaining  pluralism  and  preserving  diversity  of  opinions.  Recently,  it  has 
stressed the freedom of the citizens to access information, and the freedom of the media 
and others to impart information. 

Still, the framework which is provided for the national media legal orders by EU law is not 
all-inclusive,  not  least  in  purely  national  situations  where  the  fundamental  freedoms  of 
the TFEU cannot represent a yardstick against which restrictions and their legitimacy on 
the  operation  of  the  media  could  be  measured.  Besides,  due  to  the  principles  of 
enumerative competencies and subsidiarity, the power of the EU to introduce additional 
regulation, and thereby also to establish safeguards for the rights of the media and of the 
citizens, is limited. Nevertheless, considered in conjunction with the guarantees afforded 
by  CoE  instruments,  a  rather  high  level  of  directions  towards  the  shaping  of  national 
media policies is made available. 

The constitutions of all Member States guarantee the freedom of expression and develop, 
on this basis, wider scopes of protection – such as the right to receive and disseminate 
information  and  the  freedom  of  the  media.  Furthermore,  there  are  countries  which 
included in their fundamental laws provisions on media regulatory authorities or on role 
and  organisation  of  public  service  broadcasters.  Jurisprudence  of  the  (constitutional) 
courts  has  had,  and  continues  to  have,  a  major  and  decisive  influence  on  defining  and 

13 


 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

extending the notion of the freedom of the media, foremost in cases concerning the fair 
balance of this freedom with other protected interests/personality rights.  

In order to maintain an appropriate and comprehensive legal and regulatory framework - 
also with a view to ensuring compliance with Secondary EU legislative requirements, such 
as  the  AVMS  Directive  -,  the  Member  States  stipulated  various  provisions  on  the  press 
sector,  on  public  and  private  broadcasting  and  on-demand  audiovisual  media,  on 
terrestrial analogue and digital transmission and on electronic communication networks. 
The conditions which exist for media operators and journalists aim, on the one hand, to 
create  a  just  access  to  the  market  and,  on  the  other  hand,  to  impose  correspondent 
obligations and responsibilities. Therefore, the broadcasting market entry is regulated by 
different procedures, partly depending on the way of programmes distribution. Especially 
the  public  service  broadcasters  (which  are  generally  operating  on  the  basis  of  the  law) 
are  required,  freely  and  independently  of  any  external  political,  financial  or  other 
interests, to function in the general interest and to ensure provision of information which 
enables  the  free  opinion-forming  of  the  public.  Their  main  duty  is  to  create  and 
disseminate programmes in accordance with the public service remit, to provide a well-
balanced offer, with respect to the faith and convictions, national culture and identity or 
social  origin,  to  support  pluralism  and  diversity  and  promote  new  technologic 
development. 

In order to disseminate information through the media in their most traditional form, i. e. 
by  publishing,  in  most  of  the  countries  only  a  notification  or  registration  duty  is 
stipulated, while in others not even this requirement exist. 

Basically,  the  legislation  of  many  Member  States  contains  provisions  that  control  media 
ownership  only  from  an  economic  perspective,  following  the  rules  of  the  general 
limitations  on  horizontal 
supervision  over  competition.  Sometimes  with  clear 
concentrations  or  vertical  and  cross-media  ownership  situations,  a  considerable  number 
of  Member  States  has  implemented  appropriate  measures  not  only  for  safeguarding  a 
free activity, but also for preventing situations of dominant positions in the formation of 
individual  and  public  opinion.  Therefore,  the  regulatory  authorities  in  the  media  sector 
(and the ones competent for the implementation of competition law) are supervising the 
compliance  with  the  legal  limitations,  e. g.  based  on  annual  turnover,  audience  share, 
ownership etc., but in some cases apparently face difficulty in doing so, induced by vague 
or ambigious terms of the relevant legislation. 

The  organisation  and  activity  of  the  public  service  media  in  all  EU  Member  States  is 
governed  by  national  law  –  whether  in  the  form  of  ordinary  law,  or  based  on  an 
agreement  between  the  state  and  the  operator.  The  most  important  concerns  in  this 
regard relate to political independence of executive and/or supervisory bodies, as long as 
their members may be designated following political decisions. The financial concerns in 
view  of  the  ability  of  public  service  broadcasters  to  fulfil  their  mission  also  have  major 
relevance.  Since  many  Member  States  have  foreseen  a  “dual  funding”  basis,  i. e. 
financial resources originate from state financing (annual state grant/broadcasting licence 
fees)  and  commercial  revenues,  an  insufficient  level  of  financing  through  state  funding 
bears  significant  risks,  as  does  a  decrease  in  the  income  from  commercial  activities. 
Obviously,  the  first  point  also  holds  true  in  situations  of  monistic  financing  from  the 
State, not least in times of continuous budget restraints. 

Safeguarding  the  journalistic  activity  is  a  matter  of  importance  for  all  Member  States. 
Journalists enjoy a broader freedom of expression than the majority of citizens, because 
of the particular responsibility of the press as watchdog of the society. In some countries, 
however,  no  definition  of  the  notion  “journalist”  exists  bringing  about  uncertainty  on 

14 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

whether the relevant priviliges are applicable – a matter on which courts would then have 
to adjudicate on a case-by-case basis, not least in relation to journalistic activities on the 
Internet. Safeguards are mainly contained in the Press Law of the Member States, which 
grants  journalists  the  right  to  claim  information  from  administrative  authorities,  forbids 
obstructions to information gathering and press criticism. However, at the same time, a 
fair  balance  between  the  freedom  of  expression  and  the  general  personality  rights 
requires  a  careful  scrutiny  of  the  journalists’  behaviour.  The  responsibility  against 
defamation,  libel  or  slander  is  foreseen  by  the  law,  defamation  in  some  countries  (still) 
being  criminalized.  The  freedom  of  expression  has  its  limits  in  the  correctness  of  the 
information  provided  and,  therefore,  legal  provisions  in  all  countries  are  stipulating  the 
right of rectification (correction) or reply.  

Besides general regulations concerning the content obligations related to programmes – 
such  as  the  preservation  of  the  cultural  heritage,  the  language(s),  the  promotion  of 
diversity  and  the  broadcasting  of  information  of  public  interest  –,  provisions  relating  to  
specific content obligations are only foreseen in few legislations. They are having regard 
to  programmes  for  children,  for  ethnic  minorities  or  news,  but  also  to  programmes 
provided for people with disabilities.  

Only a very limited number of EU Member States has developed funding schemes for the 
press  or  the  wider  media  sector  which  would  focus  on  content  of  a  “public  value” 
character;  rather  such  aid  schemes  concentrate  on  contributing  to  bearing  the  costs  of 
distribution, technical equipment used for production, or education. 

Having  regard  to  the  broadcasting  of  political  information  in  the  EU  Member  States,  a 
distinction has been made in most of the countries between the presentation of news and 
reports  on  politics  including  coverage  of  the  legislator  (Parliament)  and  administration 
(Government)  on  the  one  hand,  and  political  advertising  for  political  parties,  in  and 
outside election campaigns, on the other. 

In  numerous  Member  States  the  founding  of  self-  or  co-regulatory  institutions,  such  as 
Press Councils, with the main task of applying Codes of Conduct for Journalists has been 
a long-standing tradition. The provisions of the code are established in order to promote 
editorial  principles  and  values.  However,  due  to  the  almost  non-existent  sanctioning 
powers  of  those  institutions  or  limited  inclusion,  concerns  as  to  their  efficiency  are 
frequently raised; citizens would seem to tend to submit their cases to the courts. 

The  regime,  purpose  and  manner  of  using  frequency  spectrum  for  electronic  media  is 
stipulated  by  all  Member  States’  legislation  and  regulation.  Accordingly,  capacities  are 
usually  allocated  to  commercial  broadcasters  based  on  tender  procedures  or  through  a 
decision  or  authorisation  by  the  responsible  regulatory  authority/ies.  With  regard  to 
digitisation of (radio and) TV broadcasting, many Member States have reserved spectrum 
to  public  service  channels  (which  do  not  have  to  undergo  tender  procedures),  and 
devised  further  concepts  with  a  view  to  providing  incentives  for  commercial  media 
providers also to participate. 

In general, all Member States require and control fair, reasonable and non-discriminatory 
access by broadcasters and on-demand media service providers to distribution networks; 
most usually, within this framework a contract will be agreed freely between the parties. 
Distributors  or  platform  operators,  i. e.  those  who  aggregate  or  package  channels  and 
services into various bundles and offer these to end-users, are frequently subjected to a 
notification  regime.  In  practice,  however,  cases  have  been  reported  where  access  to 
distribution facilities has been unduly frustrated, also by the legislator/the executive.  

15 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Most  of  the  Member  States  have  established  “must-carry”  rules  in  order  to  ensure  the 
distribution of programmes of national interest, mostly represented by the public service 
broadcasters,  based  upon  an  assessment  of  the  informational,  educational  and  cultural 
value at hand.  

Only  a  limited  number  of  Member  States’  bodies  of  regulation  hold  provision  on 
distribution  systems  for  print  publications,  considering  as  essential  equal  treatment  and 
universal coverage; otherwise, the issue is entirely left to the application of competition 
law. 

Basically  all  Member  States  enjoin  specific  legislation  on  transparency  requirements 
concerning  the  media  sector,  stipulated  either  in  the  Constitution  or  in  ordinary  laws. 
Information  is  made  publicly  available  either  through  commercial  registers,  by  the 
regulator or the individual media organisation itself, but in numerous cases such schemes 
are not sufficiently comprehensive. Furtheron, only a limited scope of transparency may 
sometimes  be  delivered  because  the  applicable  regulations  do  not  request  revealing  of 
the final beneficiary/owner if there are several levels of shareholders. 

In all Member States, public service media are supervised by regulatory bodies (external 
and/or  internal)  in  respect  of  the  obligations  laid  down  in  the  laws  and/or  management 
contracts,  use  of  budgetary  means  and  fulfilment  of  the  remit;  therefore  they  need  to 
report  (on  a  yearly  basis  or  even  twice  a  year).  The  regulators  entitled  to  receive  the 
reports  and  control  the  accomplishment  of  the  public  service  media  remit  are  differing: 
this  may  either  be  the  Parliament  itself,  the  Government,  the  Communications/Media 
Regulatory Authority, a Board of Public Service or a Council. Some countries mention also 
an  obligation  for  the  broadcasters  to  publish  on  their  owns  websites  reports  about  the 
activities, e. g. about new programme formats, audience shares of various programmes, 
the activity of regional programmes and international activities. 

A general obligation regarding the active duty (to ensure that information is disseminated 
among the public) and the passive one (to assure access to requested documents) of the 
administration  vis-à-vis  the  media  and  individuals  exists  in  all  Member  States,  however 
not  always  for  all  areas  of  activity.  The  legislation  aims  at  guaranteeing  that  public 
authorities (or private institutions acting on their behalf) impart information; exceptions 
to  this  rule  will  often  be  motivated  by  legal  requirements  to  maintain  confidentiality  or 
secrecy  in  the  interest  of  the  state  or  other  natural  or  legal  persons.  In  a  couple  of 
countries  the  law  introduced  financial  charges  for  the  access  to  documents  and 
information,  in  other  cases  stipulates  a  certain  maximum  delay  for  the  authorities  to 
answer to an information request. 

In  essence,  there  are  no  major  obstacles  to  the  access  to  media  products  or  services, 
from the perspective of the citizens. Some schemes exist in order to facilitate this access, 
such  as  for  social  reasons  a  reduction  or  exemption  from  broadcasting  licence  fees, 
provided to some groups of society, or, rather seldom, schemes which include as a social 
welfare the provision of TV and radio reception devices. 

In  most  of  the  Member  States  either  an  Ombudsperson  institution  for  the  media, 
by 
collectively 
broadcasters/publishers,  regulatory  authorities  or  self-regulatory  bodies,  are 
in 
operation. 

individually, 

procedures 

complaint 

provided 

for 

or 

or 

In  some  countries  participation  of  the  viewers/listeners,  readers  or  users  in  bodies  of 
media  operators  or  in  (self-)regulatory  institutions  has  gained  in  importance,  mainly  in 
order to articulate needs and desires with regard to public service broadcasters’ output. 

16 


 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

However, such participation will mainly be indirect, by way of including representatives of 
civil society groups or persons with achievements and experience in the fields of culture 
and media. 

In  respect  of  the  main  players,  the  comparative  analysis  highlights  a  huge  divergence 
among  Member  States  in  terms  of  actors  present  (public  and  private)  on  the  different 
markets, which may be traced back, in first instance, to the size/number of inhabitants of 
the countries and the economic strength of the national economies, but may also find its 
roots  in  different  cultural/linguistic  traditions  and  not  least  in  state  organisation.  In 
particular,  the  offer  on  the  newspaper  market  and  the  extent  to  which  public  service 
broadcasters are active also on a local and regional level are expressions of these latter 
considerations. Still, mere figures about the number of players active in a given market 
can  hardly  be  taken  as  an  indicator  for  diversity  of  available  media  content  and 
comprehensive information provision to the citizens. 

The  national  experts  have  delivered  important  information  in  their  final  observations, 
analysing the terms and the practical application of the legal provisions with relevance to 
the  media  sector  as  well  as  criticising  related  aspects  which  are  susceptible  to 
endangering  freedom  of  the  media  or  the  citizens’  right  to  information.  A  number  of 
concerns have been mentioned, and the devising as well as adoption of remedies is seen 
as a duty for both the legislative/regulatory bodies and the media themselves. 

Where recommendations have been made, they refer i. a. to enhancing coherence of the 
national  media  legal  order  with  the  European  benchmark,  particularly  case-law  of  the 
ECtHR  in  respect  of  Art.  10  ECHR,  e. g.  to  safeguard  independence  of  the  psm  (in 
relation to politics and funding) and of media regulators, to increasing media ownership 
transparency and enforcing existing legislation on concentration/ownership thresholds, to 
“unlocking”  the  potential  of  digitalisation  of  the  media,  to  providing  a  better  access  to 
documents  held  by  public  institutions  and  to  giving  effect  to  means  of  assistance 
regarding the protection of journalism in general and specifically on the Internet. 

In view of the overall findings of the study, some general recommendations for the future 
shaping of EU policies are submitted: 

-	 European  Union  media  policy  should  strive  to  achieve  even  greater  inclusiveness 

and coherence, also with regard to other EU policies;  

-	

-	

-	

it should continue to stretch out to other International fora; however, with a view to 
the added value which the Council of Europe  can contribute particularly  in respect 
of  subject-matter  that  will  clearly  rest  outside  of  EU  competencies  and  of 
(European) countries which are not (yet) becoming more closely integrated into the 
EU’s accession and neighbourhood policies, a  mutually-benefitting, complementary 
modus vivendi should be aimed at; 

the  European  Parliament  should  continue  to  underline  the  dual  character  of  the 
media as expressions of culture and of societal needs, on the one hand, as well as 
their nature as market products and service, on the other, while attempts should be 
rejected to “artifically” portray these two facets as only being in confrontation with 
each other; 

the balanced approach which has shown to be instrumental when EU policies are at 
hand  implying  a  direct  impact  on  national  media  policies,  such  as  competition  law 
and State aid law, should be preserved; 

17 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

-	

-	

the European Parliament should continue to be, together with the Committee of the 
Regions,  the  European  Economic  and  Social  Committee  and  also  the  Council,  an 
advocate  for  stressing  the  need  to  duly  observe  and  respect  the  existing  diversity 
between  and  within  Member  States,  their  media  and  economic  potentials  and  the 
needs of the citizens; 

further  initiatives  should  be  envisaged  in  order  to  secure  and  enhance  the 
availability  of  information  on  the  situation  of  the  media  in  Europe,  in  order  to 
maintain a sound basis for devising future policy options; 

- more cooperation appears advisable in respect of different organs, institutions and 
bodies  as  well  as  ad  hoc  or  continuously-working  expert  groups  and  research 
institutions,  within  and  outside  the  framework  of  the  EU,  in  order  to  enhance 
dialogue  and  increase  information  and  knowledge  through  pooling  existing 
expertise  and  competences  –  and  the  European  Parliament  should  seek  to  be  an 
active part in such schemes; 

-

in  particular  as  far  as  the  area  of  protection  of  human  rights  is  concerned,  the  
activities  of  different  expert  bodies,  e.g.  by  the  FRA,  the  Ombudsman,  the 
European Data Protection Supervisor, etc., should be followed with great attention 
and, wherever possible, the possibility and appropriateness of joining resources and 
knowledge to the advantage of more comprehensive approaches and for countering 
undue  “proliferation”  of  fora,  where  this  would  risk  to  lead  to  unsustainable 
resources being made available to each of them, should be taken into account; 

-	 additional  funding  should  be  made  available  to  increase,  on  a  constant  basis,  the 
access of the MEPs, the EP’s committees and services to inhouse knowledge in the 
fields of technologies and economics of media sectors; 

-	

-	

-

-	

-	

the  dialogue  with  citizens  and  experts  representing  “grass-roots”  initiatives  in  the 
media  and  information  sectors  should  be  upheld  to  the  greatest  extent  possible, 
notwithstanding the need to monitor closely the developments in formal procedures 
like petitions as a form of an “early-alert” system; in view of the expected concrete 
definition  of  a  framework  for  citizens’  motions,  the  EP  should  maintain  a  vigilant 
position  as  to  whether  the  design  of  details  matches  the  requirements  of  fully 
ensuring participation; 

in the case of further accessions to the EU, emphasis should be laid on the fact that 
pre-accession  undertakings  are  formulated  in  a  clear  manner  and  accessible  to 
objective  assessment  as  to  their  fulfilment,  particularly  where  fundamental  rights 
and the rule of law according to the Copenhague criteria are at hand; 

trade  policy  developments  continue  to  deserve  specific  attention,  as  has  been 
demonstrated not least in the context of ACTA negotiations; 

in  the  event  of  future  revision  of  the  EU  treaties,  an  additional,  careful 
consideration  should  be  given  to  the  opportunities  to  at  least  clarifying  the 
extension of the CFREU to action at Member State level, and to the expediency of 
assessing the efficacy of Art. 7 TEU material and procedural conditions; 

in  the  same  perspective,  while  preservation  of  the  diversity  of  Member  States 
cultures  remains  an  important  objective,  it  should  be  asked  whether  the  complete 
and  uncompromised  exclusion  of  harmonisation  competencies  of  the  EU  in  the 
cultural  domains  still  presents  itself  as  the  optimal  solution  for  addressing  future 

18 


 
 
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

problems, not least when bearing in mind that - while devising EU policies in other 
fields - the impact on the cultural sectors appears to become increasingly significant 
(anyway). 

In  relation  to  more  specific  and/or  current  media  policy  initiatives,  the  following 
suggestions are formulated: 

-	

-	

-

-	

-

the  European  Parliament,  besides  continuing  to  provide  political  support,  might 
wish  to  reflect  upon  the  desirability  of  formally  requesting  the  European 
Commission to initiate infringement procedures on matters of national media legal 
orders,  either  being  of  importance  prima  facie  for  the  safeguard  of  the  TFEU’s 
fundamental  freedoms  or,  in  combination  therewith,  for  the  safeguard  of 
fundamental rights, particularly Art. 11 CFREU; 

the European Parliament could focus more closely - based i.a. upon the soon-to-be­
expected  outcome  of  the  assessment  of  the  EU  competencies  in  respect  of  media 
ownership  and  transparency  legislation,  but  also  on  further  consideration  -
investigate 
formally  calling  on  the  European 
Commission to present a proposal for a EU Directive on this subject-matter; 

into  the  appropriateness  of 

in  light  of  existing  provisions  in  the  AVMSD  on  the  right  of  reply,  transparency 
requirements  for  audiovisual  media  service  providers,  the  right  to  short  news 
reporting,  the  prohibition  on  incitement  to  hatred,  the  European  Parliament  might 
see prospects in discussing with Member States and the European Commission the 
opportunities to enhance the formulation of rights and obligations of the media; 

in the same vein, a future revision of the AVMSD might entail, firstly, an additional 
extension  of  scope  (ratione  materiae),  given  that  the  European  Commission  has 
announced to consult on, and possibly put forward a Communication in relation to, 
Connected-TV, and, secondly, should make the provision on independent regulatory 
authorities  as 
the 
eCommunications package and in EU data protection law; 

“biting”  as  are 

“sister”-provisions 

the  parallel, 

in 

the  European  Parliament  should  also  explore  the  avenues  of  pressing,  on  the  one 
hand,  for  a  revision  of  the  eCommerce  Directive,  which  lacks  -  given  the  current 
and  increasing  importance  of  on-demand  services,  which  are  media-like,  but  not 
audiovisual – both significant guarantees and requirements and in particular shows 
need for re-assessing the “safe-harbour” principles for intermediairies, while, on the 
other  hand,  in  the  above  context  of  Connected  TV  and  also  beyond,  “consumer 
equipment”  regulation  requires  adaptation to  products’  and  services’  design  actual 
realities of new and emerging media markets; 

- with  regard  to  universal  service  obligations,  the  stand-still  in  discussions  over  the 
appropriateness of including (fast or even ultra-fast, but at least “real”) broadband 
Internet  access  into  the  definition,  should  be  overcome,  while  in  parallel  different 
kind  of  support  mechanisms  at  European  and  national  level  should  be  explored  in 
order  to  prevent  a  digital  divide;  additionally  and  also  in  respect  of  electronic 
communications  regulation,  the  issue  of  net  neutrality  deserves  continuous 
attention  by  policy  makers  at  all  levels,  since  developments  here  can  impact 
simultaneously  on  the  distribution  of  and  the  access  to  information  which  is  of 
public interest; 

-	 a review of existing aid schemes for different kinds of media content production and 
distribution as well as in view of the underlying conditions (training, equipment) at 

19 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

national level should be commissioned with the purpose of, firstly, establishing best 
practices  models  and,  secondly,  to  help  delineate  discussions  on  alleged  disability 
to  adapt  to  new  environments  and  embrace  opportunities  of  the  new  media 
“ecosystem”  from  the  more  substantial  issue  of  what  kind  of  value  is  attached  to  
the making available of high-quality and diverse media output; 

-	

the existing or perceived hindrances for the establishment of new business models 
in  the  online  environment  -  which  might  stem  from  a  lack  of  legal  certainty  or 
actually  be  the  result  of  unsuitability  of  the  existing,  applicable  legal  framework 
mainly  in  the  field  of  copyright  and  related  rights  –  should  be  addressed  in  the 
shortest  possible  delay,  not  least  in  order  to  maintain  awareness  particularly  of 
younger generations of the “value of culture”; in parallel, the preconditions should 
be  secured  to  foresee  the  introduction  of  a  “cultural  flat  rate”  with  the  aim  to, 
firstly,  componsate  rightsholder  for  the  continuing  loss  of  any  remuneration 
presently incurred and, secondly, to provide for a legitimate exception to exclusivity 
rights  where  copying  happens  solely  for  private,  non-commercial  purposes  –  thus 
transposing the idea of private copy levies into todays “digital realities”. 

20 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

1. PREFACE AND CONTEXT 

In the following chapters of this first part, initially the scope and objectives of the present 
study  shall  be  outlined  and  its  methodology  explained,  before  turning  to  the  different 
guarantees  provided  for  in  terms  of  freedom  of  the  media  and  the  citizens’  rights  as 
stipulated  in  the  European  Union’s  and  the  Council  of  Europe’s  fundamental  texts  and 
related legislation. 

1.1.  Scope and Objectives of the Study 

Defining the manner of how to assess the extent to which media and citizens enjoy the 
freedom to expression and information, respectively, does not lend itself to obvious and 
easily-applicable solutions. In this vein, the research objective shows some parallelism to 
investigating  into  the  question  of  whether  or  not  media  output  is  of  (high)  quality  and 
sufficiently diverse. In this latter case, it is generally accepted that already the definition 
of  “quality”  and  its  constituent  components  in  relation  to  media  content  is  hardly 
feasible;  the  approach  opted  for,  therefore,  rather  turns  to  the  elaboration  of  a  set  of 
criteria or elements which can be seen as contributive to achieving qualitative output of 
media production.  

For present purposes, too, instead of having recourse to subjective views on whether the 
freedom of the media and the freedom to information of citizens are sufficiently secured 
in  EU  Member  States,  e.g.  by  establishing  guidelines  for  and,  on  their  basis,  having 
conducted  interviews  with  multiple  stakeholders  from  different  sectors  (such  as 
journalists,  media  owners,  associations  of  viewers/  listeners/readers  or  consumers  in 
general,  representatives  of  self-regulatory  bodies  and  media  authorities,  academics  and 
research institutes in the domains of communication science, politics, media economies, 
etc.),  this  study  follows  a  “more  normative  approach”:  the  legal  and  regulatory 
frameworks  in  the  EU  Member  States  are  being  analysed  in  order  to  learn  about  the 
safeguards that exist, on the one hand, for the media themselves theoretically enabling 
them  to  pursue  their  activity  in  a  way  which  is  free  from  State  and/or  economic,  i.e. 
undue  outside  or  inside,  influence,  and,  on  the  other  hand,  for  the  citizens  providing 
them with means to request information deemed useful and necessary in order to allow 
free formation of opinion and decision-making in the democratic context. 

This approach is being enriched by a description of the market situation focussing on the 
main  players  in  the  electronic  media  and  print  sectors  and  in  the  sector  of  electronic 
communications  networks  and  services.  By  this,  the  interest  shall  be  served  to  learn 
about the actual providers of media content supply to the citizens and the accessibility of 
those services to them, respectively.  

In  times  where  it  is  hardly  arguable  any  longer  that  there  exists  only  a  patchwork  of 
public  communications  spheres  at  a  national  level,  which  is  (meant)  to  say:  not  a 
European  one,  while  an  ever-increasing  importance  is  attached  to  legislation  prepared 
and  adopted  as  well  as  policies  devised  within  and  between  the  institutions  of  the 
European Union - which all have an immediate bearing for the citizens and companies in 
the  EU  Member  States  -,  all  individual  and  public  opinion-forming  should  be  based  on 
information  which  is  as  widely  accessible  as  possible,  diverse,  independently-produced, 
reliable and accountable. 

The  present  study  hence  intends  to  explore  whether  favourable  conditions  exist  in  the 
European  countries  that  would  allow  both  the  media  and  the  citizens  to  enjoy  their 

21 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

respective freedoms in relation to imparting and receiving/accessing information through 
various outlets, by different means, passively or actively. 

It  shall  thus  help  inform  the  European  Parliament’s  LIBE  committee  on  the  situation  of 
the “citizens’ right to information” and the relevant policies followed at the national level, 
while at the same time portraying the developments at a European level. 

For more than three decades now, the European Parliament has been discussing matters 
of freedom of expression and of the media, together with the citizens freedom to access 
information  which  is  of  interest  to  them,  not  least  with  a  view  to  foster,  through 
information  on  political  debate  at  a  EU  level,  public  formation  of  opinion  and, 
consequently,  democratic  participation  throughout  its  Member  States.  In  this  context,  a 
major concern has always been the level of media concentration and possible threats to 
media  pluralism  as  well  as  diversity/variety  of  media  content.  As  expressed  through 
various resolutions on own initiative and discussion during legislative processes, this has 
been  accompanied  by  specific  emphasis  being  laid  on  the  safeguard  and  promotion  of 
public service media, together with specific attention for schemes enabling production of 
European  and  independent  content  by  parties  acting  separately  from  the  main  media 
operators. 

Not  least  when  deciding  on  the  EU  policies  for  electronic  communications,  radio 
spectrum;  competition  and  services  of  general  economic  interest;  culture,  film  funding 
and  European  heritage;  copyrights;  trade,  minors  and  consumer  protection  etc.,  the 
European  Parliament  has  constantly  endeavoured  to  secure  recognition  of  the  media  in 
all its forms (i.a. print, broadcasting, new media, film) as having a dual nature, in other 
words,  to  do  justice  to  their  character  of  being  both  goods  and  services  as  well  as 
expressions  of  culture.  The  present  study,  therefore,  adopts  a  broad  approach  when 
inquiring  about  the  legal  and  factual  situation  in  the  Member  States.  It  includes  several 
aspects  on  which,  for  the  time  being,  there  is  no  legal  framework  at  EU  level,  but 
relevant  standards  being  provided  by  the  different  instruments  issued  at  the  Council  of 
Europe. 

Both,  the  country  reports  and  the  study’s  conclusions/recommendations  shall  serve  to 
enhance the debate on what measures, where appropriate, the EU could envisage to take 
in the next future in order to foster freedom of expression throughout Europe. 

1.2.  Methodology applied 

With a view to the methodology applied for the present study, reference should first be 
made to the elements of the study’s overall structure which had already been predefined 
by the ToR in the open call for tender, i.e. that it should consist of (i) an introduction, (ii) 
country reports, and (iii) conclusions, while the country reports as such should deal with 
the  following  issues:  (1.)  Acts,  Legislation,  Regulation,  Codes,  (2.)  Main  players  in  the 
Media landscape, and (3.) Conclusions. 

From  this,  EMR  deducted,  in  terms  of  working  methods,  that  a  suitable  research 
approach  should  be  based  on  the  following  steps:  after  an  initial  analysis  of  the  most 
pertinent legal and policy developments in the EU Member States since the finalisation of 
the  2004  study  (including  Bulgaria  and  Romania),  (1)  for  the  EMR  to  establish  a 
questionnaire;  on  the basis  of  which  (2)  the national  experts  describe  (i)  the  applicable 
legal  and  policy  framework  in  their  respective  country,  the  most  relevant  developments 
which have a bearing on the citizen’s right to be informed as well as the measures (both 
of  a  regulatory  as well  as  a  promotional  character)  which  Member  States  have taken  in 
order  to  secure  and  foster  diversity/variety  of  opinion  in  the  media,  (ii)  provide 

22 


 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

information on the market situation, and (iii) make an assessment and give an outlook as 
to  the  expectable  future  developments;  while  (3)  the  EMR  assumes  responsibility  for 
these  country  reports  inasmuch  as  both  the  information  provided  and  the  conclusions 
drawn would be assessed according to own sources of information which are available to 
it – with the aim to ensure comprehensiveness and plausibility of the country reports; for 
these purposes, EMR would discuss with the national experts any perceived shortcomings 
or seek clarification on points which are deemed unclear. 

In terms of researching the present subject matter, i.e. the extent to which the citizens 
in  the  EU  can  enjoy  their  right  to  information,  the  EMR  opted  for  a  three-fold  approach 
which  consists  of: (1) an  overview  over  the “European benchmark”,  i.e.  the  guarantees 
and  rights,  as  flowing  from  Art.  11  CFREU  and  Art.  10  ECHR  for  freedom  of  expression 
(freedoms of opinion, of receiving and imparting information and ideas, and of access to 
information)  and  freedom  of  the  media  as  well  as  from  the  subsequent  “secondary 
legislation”,  e.g.  the  Council  of  Europe  Conventions,  Recommendations  and  Resolutions 
together  with  the  European  Union  acquis;  (2)  a  description,  analysis  and  evaluation  of 
the  national  legal  and  regulatory  framework  and  adjacent  practice  in  the  EU  Member 
States; and (3) an assessment of the status quo reached, mainly by way of contrasting 
whether  (at  least)  the  European  benchmark  is  respected  and,  where  this  does  not 
provide for sufficiently clear indications, whether the existing framework at European and 
national  level  is  satisfactorily  conducive  to  fostering  the  citizens’  rights  to  be  informed 
and to seek information. 

More  specifically,  the  approach  adopted  for  the  questionnaire  and  the  country  reports 
based  on  it  was  intended  to  be  as  conclusive  as  possible  through  investigating  into  (a) 
the  conditions  under  which  the  media  are  in  a  position  to  collect,  edit  and  impart/have 
distributed  information  (“supply-side  perspective”),  and  (b)  the  instruments  and  the 
procedures  available  to  citizens  in  order  to  access  information,  to  exert  at  least  some 
influence on media output (“demand-side perspective”). These two facets translated into 
the  following  five  main  topics  of  interest:  for  the  media  -  (i)  “market  entry”  conditions 
(such as licensing requirements, media ownership restrictions, legal framework for public 
service  media);  (ii)  framework  for  the  “pursuit  of  the  core  activity”  (protection  of 
journalistic work, specific positive content obligations and/or funding schemes for content 
with  a  specific  societal  value,  broadcasts  of  a  political  nature,  codes  of  conduct  and 
ethics);  and  (iii)  distribution  aspects  (i.e.  how  will  media  content  be  distributed  and 
reaching  of  citizens  be  secured),  and  for  the  citizens  –  (iv)  by  which  means  can  they 
access  the  relevant  information  (right  to  access  information,  media  ownership 
transparency, accountability of public service media) and (v) do they have instruments at 
their  disposal  to  “have  a  say”  on  media  output  (e.g.  through  complaint  procedures  and 
ombudsmen or via participation in governing bodies of relevant institutions). 

Pursuing the aim to render country reports as “vivid” as possible, national experts where 
not  only  asked  to  portray  the  relevant  legal,  regulatory  and  market  conditions  as 
deducted  from  constitutional,  ordinary  law  and  self-regulatory  provisions,  combinded 
with  figures  on  the  actual  status  of  the  markets,  but  should  also  highlight  how  the 
relevant norms are being applied in practice. To this end, additionally the jurisprudence 
and case-law of regulatory bodies had to be taken into account when drafting the country 
reports.  Furthermore,  when  analysing  the  existing  conditions  for  freedom  of  the  media 
and  the  right  of  the  citizens  to  be  informed,  correspondents  were  invited  to  give 
recommendations  with  a  view  to  improving  the  situation,  by  regulatory  or  other 
measures, where appropriate. 

23 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

To  portray  the  actual  state  of  affairs  -  within  the  framework  provided,  and  the  means 
available,  for  the  present  study  -  could  realistically  be  pursued  on  the  basis  of  global, 
objective  indicators  only.  The  market  analysis  thus  is  mainly  based  on  supply-side 
figures,  sketching  a  picture  of  media  organisations  in  the  radio,  TV,  print  and  online 
sectors and their respective market shares and shares in the overall advertising market, 
accompanied  by  information  on  the  operators  of  distribution  platforms  for  electronic 
media. 

With the objective of allowing the reader to assess the situation of a given Member State 
in  its  own  right,  or  to  contrast  the  situation  in  two  or  more  Member  States,  all  country 
reports  have  been  reproduced  in  their  entirety,  rendering  the  basis  on  which  our 
conclusions  and  recommendations  are  founded  as  transparent  as  possible.  When 
aggregating individual “results” of the research conducted, the EMR deliberately opted to 
concentrate  on  a  number  of  specific  issues  which  were  deemed  of  high  importance  or 
specific  current  interest;  this  is  without  attaching  any  kind  of  value  judgement  on  the 
importance  of  other  elements  of  discussion  that  might  otherwise,  or  at  a  later  stage, 
show to have a special bearing on the future discussion on whether the freedoms of the 
media and of the citizens could be candidates for devoting additional attention to them. 

1.3.  The European Legal and Policy Framework 

1.3.1.	 

Media law aspects of European Union law: the acquis and its impact on the 
media law of the Member States 

Besides the benchmark which the Council of Europe and particularly  the ECtHR set with 
respect  to  Art.  10  ECHR  on  the  media  law  (see  infra  1.3.2.),  the  existing  acquis  of 
European  Union  (media)  law,  also  as  interpreted  by  the  jurisprudence  of  the  European 
Court of Justice (ECJ), additionally is of major relevance for the Member States. It should 
be  recalled  that  Art.  10  ECHR  becomes  kind  of  “a  part”  of  the  acquis  as  Art.  11  of  the  
Charter of Fundamental Rights of the European Union1 (CFREU), read together with Art. 
52(3) CFREU, has not only to be interpreted in the light of Art. 10 ECHR, but shall have 
“the meaning and scope” of Art. 10 ECHR. 

Art. 11 CFREU reads as follows: 

"Everyone has the right to freedom of expression. This right shall include freedom to hold 
opinions and to receive and impart information and ideas without interference by public 
authority and regardless of frontiers. 

The freedom and pluralism of the media shall be respected." 

And Art. 52(3) CFREU reads: 

“In  so  far  as  this  Charter  contains  rights  which  correspond  to  rights  guaranteed  by  the 
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning 
and scope of those rights shall be the same as those laid down by the said Convention. 
(...).” 

The acquis is relevant, first of all, for the Member States that acceeded to the EU in 2007 
(and  thus  were  not  covered  by  the  2004  study):  Bulgaria  and  Romania.  For  them,  but 
also  for  the  countries  whose  accession  has  become  effective  in  2004  or  at  an  earlier 
stage,  it  is  important  to  note  that  -  before  joining  the  EU  -  they  have  to  bring  their 

24 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

national laws into line with the EU acquis, especially including – in the audiovisual field – 
the Audiovisual Media Services Directive (Directive 2010/13/EU2, AVMSD). Promoting the 
alignment  with  European  standards  on  media  legislation  and  in  particular  the  AVMSD  is 
one of the initiatives of the European Commission’s pre-accession strategy. Furthermore, 
the  alignment  of  legislation  and  practices  with  European  standards  on  media  in 
accordance  with  fundamental  democratic  principles  is  an  element  of  the  so-called 
“Copenhagen criteria” (see infra), and is crucial for the promotion of cultural diversity. 

This  chapter  aims  at  providing  an  overview  of  relevant  legal  provisions  of  the  Treaty  of 
the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), 
Secondary European Union legislation in the present field – especially the AVMSD, as well 
as relevant case-law of the Courts of the European Union. It will furthermore discuss the 
implications  of  the  CFREU  for  the  freedom  of  the  media  and  the  citizens’  right  to  be 
informed. 

1.3.1.1.  Obligations deriving from accession to the EU 

Besides the obligations for Member States deriving from European Union law, states that 
assume  the  status  of  “candidate”  and  “potential  candidate”  countries  are  already 
establishing  regulations  which  are  influenced  by  EU  law.  The  reason  for  this  lies  within 
the enlargement procedure: a country that wishes to join the EU submits an application 
for  membership  to  the  Council,  which  asks  the  European  Commission  to  assess  the 
applicant’s  ability  to  meet  the  conditions  of  membership.  If  the  Commission  delivers  a 
positive  opinion,  and  the  Council  unanimously  agrees  a  negotiating  mandate, 
negotiations  are  formally  opened  between  the  candidate  country  and  all  of  the  EU 
Member States. 

The conditions for membership mainly follow from Arts. 6 and 49 TEU. Especially the so-
called “Copenhagen criteria”, which stipulate that 

“[M]embership  requires  that  the  candidate  country  has  achieved  stability  of  institutions 
guaranteeing democracy, the rule of law, human rights and respect for and protection of 
minorities, the existence of a functioning market economy as well as the capacity to cope 
with competitive pressure and market forces within the Union”, 

are essential for the (potential) candidate countries; hereunder, the protection of human 
rights,  particularly  freedom  of  expression,  and  the  rule  of  law  (including  e.g. 
administrative capacity) feature prominently.3 This latter element translates, according to 
the European Commission, into the requirement that 

“the candidate country [...] ha[s] created the conditions for its integration by adapting its 
administrative  structures.  While  it  is  important  for  EU  legislation  to  be  transposed  into 
national legislation, it is even more important for the legislation to be implemented and 

1	 

2	 

3	 

Proclaimed  by  the  European  Parliament,  the  Council  of  Ministers  and  the  European  Commission  on  7 
December 2000, newly published in the adapted version in: [2010], OJ C 83, p. 389. 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the  co­
ordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member  States 
concerning  the  provision  of  audiovisual  media  services  (Audiovisual  Media  Services  Directive)  (codified 
version), [2010] OJ L 95, p. 1. 
See  also  the  European  Council  Declaration  (Madrid  Summit  1995):  “The  European  Council  also  confirms 
the  need  to  make  sound  preparations  for  enlargement  on  the  basis  of  the  criteria  established  in 
Copenhagen and in the context of the pre-accession strategy defined in Essen for the CCEE; this strategy 
will  have  to  be  intensified  in  order  to  create  the  conditions  for  the  gradual,  harmonious  integration  of 
those  States,  particularly  through  the  development  of  the  market  economy,  the  adjustment  of  their 
administrative structures and the creation of a stable economic and monetary environment.” 

25 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
 
  
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

enforced effectively through the appropriate administrative and judicial structures. This is 
a prerequisite of the mutual trust needed for EU membership.”4 

In particular, the Commission analyses whether the requirements have been met by the 
(potential) candidate countries and describes the “status quo” in their regular “progress 
reports”.  In  the  case  of  negotiations  being  formally  underway,  i.e.  the  Council  having 
unanimously  decided  –  on  the  basis  of  a  Commission  opinion  –  in  favour  of  the 
application,  for  present  purposes  the  chapters  referring  to  “Culture  and  audio-visual 
policy”  (formerly  Chapter  20,  now:  Chapter  10:  “Information  society  and  media”)  are 
most relevant, since they cover the alignment with the acquis relevant for these sectors.5 
The same importance applies to the establishment of legal provisions that safeguard the 
fundamental  rights  of  the  CFREU.  With  regard  to  the  “media  sector”  especially  the 
freedom of thought (Art. 10 CFREU) and the freedom of expression and information (Art. 
11 CFREU) can be named. 

The  Council  will  decide  to  (provisionally)  close  a  negotiating  chapter,  after  the 
Commission  is  satisfied  with  the  progress  being  made.6  Undertakings  accepted  by  the 
acceding  country  thus  become  part  of  the  relevant  obligations  that,  finally,  will  become 
an  integral  component  of  the  (draft)  accession  treaty  and  the  accompanying  act  of 
accession. 

1.3.1.2.  Relevant legal framework 

1.3.1.2.1. 

Primary European Union law 

According to Art. 2 TEU, the EU is founded on various basic values and principles that are 
common  to  all  the  Member  States  in  a  society  in  which  pluralism,  among  other  things, 
prevails. In view of the role played by the press as well as public service and commercial 
broadcasting  organisations  in  media  pluralism  and,  thereby,  in  the  freedom  of 
expression, a role that is recognised in all Member States’ constitutions, Art. 2 TEU has 
an  important  function  in  terms  of  directing  the  application  of  the  EU  treaties  and  their 
provisions. 

  Fundamental Freedoms 

The Fundamental Freedoms as established by the TFEU are essential in primary EU Law. 
It is the free movement of goods, regulated in Arts. 34 et seq. TFEU, the free movement 
of persons (including workers as well as the freedom of establishment), regulated in Arts. 
45 et seq. TFEU, the freedom to provide services, regulated in Arts. 56 et seq. TFEU, and 
the  free  movement  of  capital,  regulated  in  Arts.  63  et  seq.  TFEU,  that  are  of  particular 
importance for the media sector, although the provisions on the “four freedoms” contain 
no specific reference to media or broadcasting services. In the following, a closer look at 
the  freedom  of  establishment  (as  a  part  of  the  free  movement  of  persons)  and  the 
freedom to provide services is to be taken.7 

4 

5 

6 

7 

2694, 

SEC(2008) 

Cf. http://ec.europa.eu/enlargement/the-policy/conditions-for-enlargement/index_en.htm. 
This  acquis  includes  the  establishing  of  independent  regulatory  authorities  and  the  securing  of  their 
independence in various regards, cf. Commission Staff Working Paper of 5 November 2008 accompanying 
the  Commission  Communication  “Enlargement  Strategy  and  Main  Challenges  2008-2009”  (COM(2008) 
674), 
http://ec.europa.eu/enlargement/pdf/press_corner/ 
available 
key-documents/reports_nov_2008/croatia_progress_report_en.pdf, at p. 37. 
See also Commission Staff Working Document on the External Dimension of Audiovisual Policy of 14 July 
2009, SEC(2009) 1033, p. 15. 
The relevance of the other “two freedoms” should, of course, not be underestimated: The free movement 
of  goods  could  be  applicable  for  “media  carrier”  like  newspapers,  magazines,  books,  DVDs;  see,  for 
instance,  ECJ,  Case  229/83,  Leclerc,  [1985]  ECR  1,  para  20;  Joined  Cases  60  and  61/84,  Cinéthèque, 
[1985]  ECR  2605,  paras.  10  et  seq.  The  free  movement  of  capital  could  be  of  relevance  for  media 
organisations,  when  it  comes  to  transferring  any  amount  of  capital  from  one  country  to  another  or,  for 

at: 

26 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

In  general  terms,  the  principle  of  freedom  of  establishment  enables  an  economic 
operator (whether a person or a company) to carry out an economic activity in a stable 
and  continuous  way  in  one  or  more  Member  States.  The  principle  of  the  freedom  to 
provide services enables an economic operator (providing services in one Member State) 
to  offer  services  on  a  temporary  basis  in  another  Member  State,  without  having  to  be 
established  there.  Member  States  must  modify  national  laws  that  contain  unjustified 
restrictions to the freedom of establishment, or to the freedom to provide services, and 
that  are,  therefore,  incompatible  with  these  principles.8  Arts.  45  and  56  et  seq.  TFEU 
thus  require  the  elimination  of  all  (direct  and  indirect)  discrimination  on  grounds  of 
nationality  as  well  as  any  restriction  which  is  liable  to  prohibit  or  further  impede  the 
activities  of  economic  operators.  Member  States  may  only  maintain  such  restrictions  in 
specific circumstances where these are justified by reasons foreseen in Treaty provisions 
(such as public order in accordance with Arts. 52, 62 TFEU) or by overriding reasons of 
general interest9, for instance – in particular with view to the media sector – on grounds 
of  cultural  policy10,  protection  of  consumers11  or  of  Art.  10  ECHR12.  Finally,  the 
restrictions must also be proportionate. 

- The freedom to provide services 

The  freedom  to  provide  services  was  instrumental  in  liberalising  the  European 
broadcasting  markets.  However,  it  was  the  initial  point  of  the  ECJ,  ruling  that 
broadcasting  is  protected  by  the  freedom  to  provide  services,  in  its  first  major  decision 
(Sacchi).13  Today  it  is  firmly  established  that  Arts.  56  et  seq.  TFEU  (ex.  Arts.  49  EC-
Treaty)  cover  any  form  of  electromagnetic  transmission  of  information  across  frontiers, 
including terrestrial and direct satellite broadcasting and transmission via cable as well as 
Internet,  multimedia  and  telecommunications  services.14  In  the  case  where  the  service 
crosses the border and is accessed by the recipient at his place of residence, the freedom 
to  receive  a  service  shows  clear  parallelism  to  the  freedom  of  the  citizen  to  receive 
information  irrespective  of  frontiers  (as  protected  by  Art.  11  CFREU and  Art.  10  ECHR), 
which  renders  the  imposition  of  restrictions  particularly  difficult  to  maintain.15  The 

instance, when a broadcasting company established in a Member State wants to invest in a broadcasting 
company  established  or  to  be  established  in  another  Member  State,  see  ECJ,  Case  C-148/91,  Veronica, 
[1993] ECR I-487. Besides,  the free  movement of workers, forming part –  together  with  the freedom of 
establishment  -  of  the  free  movement  of  persons,  certainly  also  has  a  bearing  for  the  media  sector,  as 
becomes apparent in the case of actors, cameramen, journalists etc. 
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 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:  Freedom  of  Establishment,  of  1 
January 2001, available at:
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf. 
Cf.  ECJ,  Joined  Cases  C-34/95,  C-35/95  and  C-36/95,  De  Agostini,  [1997]  ECR  I-3843,  para.  54;  ECJ, 
Case C-352/85, Bond van Adverteerders, [1988] ECR 2085, paras. 33 op cit. 
E.g. ECJ, Case 288/89, Mediawet I, [1991] ECR I-4007, paras. 22, 23. 
E.g. ECJ, Case C-6/98, ARD, [1999] ECR I-7599, para. 50. 
E.g.  ECJ,  Case  C-288/89,  Stichting  Collectieve  Antennevoorziening  Gouda  v.  Commissariaat  voor  de 
Media, [1991] ECR 4007, para. 23. See also the Communication from the Commission of 27 June 2001 on 
the application of the general principles of free movement of goods and services – Articles 28 and 49 EC – 
concerning the use of satellite dishes, COM (2001) 351 final, Part II., 2., p. 11. 
E.g.  ECJ,  Case  155/73,  Sacchi,  [1974]  ECR  409,  para.  6.  Since  then,  the  ECJ  passed  a  large  number  of 
judgments  in  the  field  of  audiovisual  media,  e.g.  ECJ,  Case  52/79,  Debauve,  [1980]  ECR  833,  para.  8; 
ECJ,  Case  62/79,  Coditel,  [1980]  ECR  881,  paras.  14 et.  seq.;  ECJ,  Case  C-260/89,  ERT,  [1991]  ECR  I­
2925,  paras  20-25;  ECJ,  Case  C-353/89,  Commission  v.  Netherlands  (Mediawet  II),  [1991]  ECR  I-4069, 
para  38;  ECJ,  Case  C-211/91,  Commission  v.  Belgium,  [1992]  ECR  I-6757,  para.  5;  ECJ,  Case  C-23/93, 
TV 10, [1994] ECR I-4795, paras. 13 and 16; ECJ, Case C-429/02, Baccardi France, [2004] ECR I-6613. 
Cf.  K.  Böttcher/O.  Castendyk,  Comments  on  Art.  49  EC,  in:  Castendyk/Dommering/  Scheuer,  European 
Media Law, Alphen a/d Rijn 2008, Art. 49 EC, rec. 4. 
ECJ,  Case  C-17/00,  François  De  Coster  v  Collège  des  bourgmestre  et  échevins  de  Watermael-Boitsfort, 
[2001] ECR I-09445, para.35. 

8	 

9	 

10	 

11	 

12	 

13	 

14	 

15	 

27 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
 
 
 
 
  
 
 
 
 
 
 
 
  
 
  
 
 
 
  
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

introduction  of  a  municipal  tax  on  satellite  dishes  has  the  effect  of  a  charge  on  the 
reception of television  programmes transmitted by satellite which does not apply to the 
reception of programmes transmitted by cable, since the recipient does not have to pay a 
similar tax on that method of reception. Under this consideration, the ECJ has ruled that 
“the tax on satellite dishes introduced by the tax regulation is liable to impede more the 
activities of operators in the field of broadcasting or television transmission established in 
Member  States  other  than  the  Kingdom  of  Belgium,  while  giving  an  advantage  to  the 
internal  Belgian  market  and  to  radio  and  television  distribution  within  that  Member 
State”, and that therefore was found incompatible with the freedom to provide services. 

The  provisions  on  freedom  to  “provide”  services  also  apply  to  the  freedom  to  “receive” 
services,  where  the  recipient  of  services  crosses  borders,16  as  well  as  to  scenarios 
involving  both  the  provider  and  recipient  of  services  crossing  borders  and  exchanging 
services  in  another  Member  State.17  It  is  essential  that  the  provisions  on  freedom  to 
provide  services  do  not  apply  to  activities  that  take  place  only  within  a  single  Member  
State.  The  ECJ  distinguishes  several  (non-discriminatory)  measures  that  do  also  have  a 
restrictive  impact  on  the  freedom  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  they  had  to  refuse,  as  a  preventive  measure,  any 
advertising for alcoholic beverages if the sporting event was likely to be retransmitted in 
France18,  or,  rather,  the  transmission  of  television  programmes  was  restricted,  since 
French  broadcasters  had  to  refuse  all  retransmission  of  sporting  events  in  which 
hoardings  bearing  advertising  for  alcoholic  beverages  marketed  in  France  might  be 
visible.19 However, these rules on television advertising have been justified as they relate 
to  the  protection  of  public  health  within  the  meaning  of  Art.  52(1)  TFEU  of  the  Treaty. 
Still, all kinds of restrictions on the freedom to provide services set by the States must be 
carefully assessed on a case-by-case basis, especially taking into account Art. 10 ECHR. 

The  requirement  of  the  Italian  Government  that  a  trade-fair  organiser  must  have  a 
particular  legal  form  or  status,  by  introducing  the  condition  of  a  permanent  national  or 
local headquarters, and also the requirement that he conducts his business of trade-fair 
organiser  on  an  exclusive  basis or  the  prohibition  of  pursuing  profit  were  considered  by 
the  ECJ  as  constituting  significant  restrictions  of  both  freedom  to  provide  services  and 
freedom of establishment. The Court noted that it is difficult to envisage reasons in the 
public interest which might justify such restrictions and hold that the Italian Republic has 
failed to fulfil its obligations under Articles 52 and 59 of the Treaty.20 

Ruling  in  an  other  case  regarding  the  television  broadcasting  rights  and  the  exclusive 
licences  to  broadcast  in  a  single  Member  State,  by  bewaring  the  balance  between  the 
freedom to provide services as enshrined in Art. 56 TFEU and the competition (Art. 101 
TFEU),  the  ECJ  concluded  that,  if  the  national  legislation  contains  provisions  with  the 
effect  of  prohibiting  the  import,  sale  or  use  of  foreign  decoder  cards,  this  is  contrary  to 
the  principle  of  the  freedom  to  provide  services  and  cannot  be  objectively  justified  by 
reference  to  either  the  protection  of  intellectual  property  rights,  nor  the  protection  of 
closed-periods.21 

16 

17 

18 

19 

20 

ECJ, Joined Cases 286/82 and 26/83, Luisi & Carbone, [1984] ECR 377, paras. 10-16. 

ECJ  Case  76/81,  Transporoute,  [1982]  ECR  417,  para.  14;  Case  C-55/98,  Vestergaard,  [1999]  ECR  I­
7641, para. 18. 
ECJ, Case C-429/02, Baccardi France, [2004] ECR I-6613, para. 35. 
ECJ, Case C-262/02, Commission v. France, [2004] ECR I-6569, para. 26. 
ECJ, Case C-439/99, Commission v. Italy, [2002] ECR 2002 I-00305, para. 32. 

28 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
 
  
 
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- The freedom of establishment 

The freedom of establishment includes the right “to set up and manage” undertakings, in 
particular  companies  or  firms.  This  characteristic  is  fulfilled,  as  distinct  from  the 
provisions of the free movement of capital, where the acquisition of a shareholding of a 
company in a Member State by an investor/a company 

“[...]  gives  (...)  definite  influence  over  that  company’s  decisions  and  allows  (...)  to 
determine that company’s activities”22. 

The  ECJ  lays  the  main  focus  on  the  question  as  to  how  the  influence  on  a  company  is 
exercised.  This  criterion  seems  to  be  a  crucial  tool  for  the  distinction  between  the  two 
freedoms.  However,  the  distinction  based  on  this  criterion  may  not  be  evident  in  all 
cases.23 Once affirmed, possible restrictions must be observed. 

The European Commission had expressed serious doubts regarding four amendments of 
the Hungarian Media Law, in the form it had been adopted on 21 December 2010, as it 
was  not  regarded  compliant  with  EU  law.  These  amendments,  which  the  Hungarian 
authorities agreed to modify, concerned disproportionate application of rules on balanced 
information,  application  of  fines  to  broadcasters  legally  established  and  authorised  in 
other Member States, rules on registration and authorisation of media service providers 
and rules against offending individuals, minorities or majorities.24 

- Particularly: Restrictive measures aimed at fostering media pluralism 

In  the  following  a  special  look  should  be  taken  on  possible  constraints  on  media 
ownership in a Member State that can have a restrictive effect on companies wishing to 
establish themselves there. This is the case, for instance, where a broadcasting company 
is already  established  in a Member State and the levels  of the candidates’ holdings and 
control in other Member States are counted towards the limits, or where an applicant for 
a broadcasting licence, who already operates a channel legally in another Member State, 
which  is  retransmitted  in  the  state  in  which  the  licence  is  applied  for,  will,  in  that  case, 
reach  the  concentration  thresholds  more  rapidly;  applicants  without  channels  in  other 
Member States will have an advantage. The question is then, whether the restriction on 
the  freedom  of  establishment  lies  within  the  “general  interest”  and  is  proportional 
according  to  its  legitimate  purpose.25  One  should  bear  in  mind  that  the  fostering  of  
“media  pluralism”  could  be  a  restriction  in  the  “general  interest”,  especially  if  measures 
are taken favouring operators which belong to groups representing and linked to the local 
community and contributing towards strengthening the regional economy. 

21	 

22	 

23	 

24	 

25	 

ECJ,  Case  C-403/08  and  C-429/08,  Football  Association  Premier  League  and  Others  v.  QC  Leisure  and 
Others Karen Murphy v Media Protection Services Ltd., [2011], para. 117, para. 123. 
ECJ, Case C-284/06, Burda, [2008] ECR I-4571, para. 69. 
Cf.  also  Germelmann,  Konkurrenz  von  Grundfreiheiten  und  Missbrauch  von  Gemeinschaftsrecht  –  Zum 
Verhältnis von Kapitalverkehrs- und Niederlassungsfreiheit in der neueren Rechtsprechung, EuZW 2008, p. 
596 et seq. 
The EU law in question comprises the Audiovisual Media Services (AVMS) Directive, the rules laid down in 
the Treaty on the Functioning of the European Union on the freedom of establishment and the freedom to 
provide  services  (Articles  49  and  56  respectively)  and  the  Charter  of  Fundamental  Rights  (Article  11  on 
freedom  of  expression).  After  having  been  strongly  and  repeatedly  criticised  by  European  Union 
institutions,  by  the  OSCE  [cf.  http://www.osce.org/fom/74687],  the  Council  of  Europe  [Opinion  of  the 
Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on 
freedom of the media, CommDH(2011)10, available at https://wcd.coe.int/ViewDoc.jsp?id=1751289] and 
also  by  the  national  Constitutional  Court,  the  Media  Law  in  Hungary  has  recently  been  amended  and  is 
claimed to now having found concordance with the new Hungarian Fundamental Law, which entered into 
force 
[cf. 
however, 
the 
http://www.osce.org/fom/90823 
serious-concerns-over-hungary-media-law/]. 
The so-called “Gebhard-Formula“; ECJ, Case C-55/94, Gebhard, [1995] ECR I-4165. 

http://www.politics.hu/20120516/council-of-europe-maintains­

beginning 

concerns 

serious 

remain 

2012; 

still 

or 

at 

of 

29 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
 
 
 
  
 
 
  
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The question as to whether national (state induced) measures fostering media pluralism 
could  justify  restrictions  of  the  fundamental  freedoms  is  one  of  the  most  disputed  legal 
issues in view of the role which the fundamental freedoms play in the field of European 
media  law.  This  question  becomes  even  more  significant,  if  one  supports  the  idea  of  “a 
right  to  access”  of  media  companies/providers  to  foreign  (national)  media  markets, 
following from the basic principle of freedom and pluralism of the media in the sense of 
Arts. 11(2) CFREU, 2 TEU (read together with Art. 10 ECHR).26 The ECJ has not yet set 
up  a  “general  rule”  in  this  regard.  However,  some  “basic  tendencies”  could  be  drawn 
from  the  still  leading  judgments  “Commission  v.  Netherlands”,  “Stichting  Collectieve 
Antennevoorziening  Gouda  v.  Commissariaat  voor  de  Media”,  “Vereniging  Veronica 
Omroep  Organisatie  v.  Commissariaat  voor  de  Media”  and  “TV10  SA  v.  Commissariaat 
voor de Media” dealing with single provisions of the – then in force – Dutch “Mediawet” 
(Dutch Law of 21 April 1987, governing the supply of radio and television programmes, 
radio and television licence fees and press subsidies). The ECJ, in general terms, stated 
that the Mediawet is 

“designed  to  establish  a  pluralistic  and  non-commercial  broadcasting  system  and  thus 
forms  part  of  a  cultural  policy  intended  to  safeguard,  in  the  audio-visual  sector,  the 
freedom  of  expression  of  the  various  (in  particular  social,  cultural,  religious  and 
philosophical)  components  existing  in  the  Netherlands.  [...]  Those  cultural-policy 
objectives  are  objectives  relating  to  the  public  interest  which  a  Member  State  may 
legitimately  pursue  by  formulating  the  statutes  of  its  own  broadcasting  organisations  in 
an appropriate manner.“27 

In  the  case  ”Vereniging  Veronica  Omroep  Organisatie  v.  Commissariaat  voor  de  Media” 
the ECJ dealt with Art. 57(1) Mediawet. The provision states that “apart from producing 
their  programmes,  the  organisations  which  have  obtained  broadcasting  time  may  not 
pursue  any  activities  other  than  those  provided  for  or  authorised  by  the  Commissariaat 
voor de Media” (the Dutch regulatory authority). 

According  to  the  ECJ,  this  provision  contributes  to  the  attainment  of  establishing  a 
pluralistic and non-commercial broadcasting system: 

“It seeks to prohibit national broadcasting organisations from engaging in activities which 
are alien to the tasks assigned to them by the Law or undermine the aims thereof, in the 
view  of  the  Commissariaat  voor  de  Media.  Thus,  in  particular,  it  provides  that  the 
financial resources available to the national broadcasting organisations to enable them to 
ensure  pluralism  in  the  audio-visual  sector  must not be diverted  from  that  purpose  and 
used for purely commercial ends”.28 

According  to  this,  rules/regulations  that  prohibit  broadcasting  organisations  established 
in  a  Member  State  from  investing  in  a  broadcasting  organisation  established  or  to  be 
established  in  another  Member  State  must  at  least  ensure  the  pluralistic  and  non­
commercial character of the audiovisual system (in the respective country). Otherwise, a 
violation of a fundamental freedom by such provisions can be assumed. It may therefore 

26	 

27	 

28	 

Cf.  A.  Rossnagel/W.  Sosalla/T.  Kleist,  Der  Zugang  zur  digitalen  Satellitenverbreitung,  Gutachten  im 
Auftrag der gemeinsamen Stelle ‘Digitaler Zugang’ der Landesmedienanstalten, Visitas Verlag GmbH 2004, 
p. 78, 79. 
ECJ,  Case  C-288/89,  Stichting  Collectieve  Antennevoorziening  Gouda  v.  Commissariaat  voor  de  Media, 
[1991] ECR I-4007, paras. 22, 23; Case C-353/89, Commission v. Netherlands (Mediawet II), [1991] ECR 
I-4069, paras. 29, 30; Case C-148/91, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de 
Media,  [1993]  ECR  I-487,  paras.  9,  10.  Also  affirmed  in  ECJ,  Case  C-23/93,  TV10  SA  v.  Commissariaat 
voor de Media, [1994] ECR I-4795, paras. 18, 25. 
ECJ,  Case  C-148/91,  Vereniging  Veronica  Omroep  Organisatie  v.  Commissariaat  voor  de  Media,  ibid., 
para. 11. 

30 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
 
 
 
 
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

be  relevant  to  adopt  rules,  which  prohibit  national  broadcasting  organisations  from 
setting  up  commercial  radio  and  television  companies  abroad  –  for  the  purpose  of 
providing services directed towards their State of establishment –, in order to ensure that 
such  organisations  cannot  improperly  evade  the  obligations  deriving  from  the  national 
legislation concerning the pluralistic and non-commercial content of programmes. 

In  the  case  “Stichting  Collectieve  Antennevoorziening  Gouda  v.  Commissariaat  voor  de 
Media”  the  ECJ  assessed  Art.  66(1)  para.  b)  Mediawet.  The  provision  states  that  the 
operator  of  a  cable  network  may  “transmit  programmes  [...]  which  are  broadcast  by  a 
foreign  broadcasting  body  or  a  group  of  such  bodies  as  broadcasting  programmes,  in 
accordance with the legislation in force in the broadcasting country. If such programmes 
the 
contain  advertisements, 
advertisements are produced by a separate legal person, that they are clearly identifiable 
as such and clearly separated from other parts and are not broadcast on Sundays, that 
the  duration  of  such  advertisements  does  not  exceed  5%  of  the  total  air  time  utilised, 
that  the  broadcasting  body  fulfils  the  conditions  laid  down  in  Article  55(1)  and  that  the 
entire revenue is used for the production of programmes. [...].” 

transmitted,  solely  provided 

they  may  be 

that 

This provision contains two “barriers”: First, operators of cable networks established in a 
Member State can only transmit radio or television programmes supplied by broadcasters 
established  in  other  Member  States  if  those  broadcasters  satisfy  the  conditions  in  their 
country. Second, if such programmes contain advertisements, they have to fulfil special 
conditions:  especially,  such  programmes  have  to  be  produced  by  a  separate  company. 
The second “barrier” is of particular interest as it relates to the structure of broadcasting 
bodies established in other Member States. For the Dutch Government the restriction in 
the  Mediawet  is  justified  by  “imperatives  relating  to  cultural  policy”  as  this  policy  is  “to 
safeguard  the  freedom  of  expression  of  the  various  –  in  particular  social,  cultural, 
religious  and  philosophical  –  components  of  the  Netherlands,  in  order  that  this  freedom 
may be capable of being exercised in the press, on the radio or on television.” Although 
the ECJ recognised that a cultural policy understood in that sense “may indeed constitute 
an overriding requirement relating to the general interest, which justifies a restriction on 
the freedom to provide services”, it ruled that 

“conditions affecting the structure of foreign broadcasting bodies cannot [...] be regarded 
as being objectively necessary in order to safeguard the general interest in maintaining a 
national radio and television system which secures pluralism.” 

The main reason for this ruling was that the Dutch broadcasting bodies did not have to 
fulfil  all  the  same  conditions  (especially  the  obligation  imposed  on  broadcasting 
organisations in other Member States not to permit a third party to make a profit), which 
the  foreign  broadcasting  bodies  had  to  observe.  As  long  as  restrictions  do  not  apply  to 
national and foreign persons in the same way, such restrictions cannot be justified by a 
cultural  policy  aiming  to  safeguard  pluralism.  Therefore,  the  national  legislator  has  to 
formulate the same requirements for its own nationals and for foreign operators. 

In  the  case  “TV10  SA  v.  Commissariaat  voor  de  Media”  the  ECJ  again  was  asked  to 
interpret the freedom to provide services with a view to Art. 66 of the – then in force – 
Mediawet. However, this time the question was essential, whether the provisions on the 
freedom  to  provide  services  are  to  be  interpreted  as  precluding  a  Member  State  from 
treating  a  broadcasting  body  constituted  under  the  law  of  another  Member  State  and 
established  in  that  State,  as  a  domestic  broadcaster  if  its  activities  are  wholly  or 
principally  directed  towards  the  territory  of  the  first  Member  State  (against  the 
background  that  the  broadcasting  body  was  allegedly  established  in  the  other  Member 
State  in  order  to  avoid  the  rules  which  would  be  applicable  to  it  if  it  were  established 

31 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

within  the  first  Member  State).  The  ECJ  came  to  important  findings:  it  decided  that  a 
radio  and  television  organisation  which  establishes  itself  in  another  Member  State  in 
order to provide services there which are intended for the first State’s territory could be 
regarded  as  a  domestic  broadcaster.  The  treatment  of  a  broadcasting  body  constituted 
under the law of another Member State as equal to a domestic broadcaster does not eo 
ipso jeopardise the right to freedom of expression guaranteed by Art. 10 and Art. 14 of 
the  ECHR,  as  long  as  a  national  “media  policy”  (here:  the  Netherlands  broadcasting 
policy in form of the Mediawet) upholds pluralism, which is – according to the ECJ –  

“[...]  intended  to  preserve  the  diversity  of  opinions,  and  hence  freedom  of  expression, 
which  is  precisely  what  the  European  Convention  on  Human  Rights  is  designed  to 
protect.”29 

In  the  follow-up  to  the  earlier  of  the  above  mentioned  ECJ  judgements,  and  after  the 
agreement  on  the  Treaty  of  Maastricht  in  1991,  i.e.  about  20  years  ago,  the  European 
Commission  had  already  started  to  take  significant  preparatory  steps  towards  the 
formulation of a legal instrument aimed at a minimum level of harmonisation of national 
laws  in  the  field  of  protecting  media  pluralism  through  regulations  market  power  based 
on  the  measurement  of  audience  shares.30  However,  this  initiative  by  the  then-
competent  Member  of  the  Commission  has  met  harsh  criticism,  particularly  by  some 
Member  States,  who  essentially  questioned  the  competence  of  the  EU  (European 
Community),  at  that  time,  to  introduce  such  rules  and  argued  that  the  issue,  since  it 
formed  part  of  the  cultural  competence  of  Member  States  and  also  was  covered  by  the 
subsidiarity  principle,  should  rest  to  be  dealt  with  at  Member  States  level  alone. 
Furthermore, arguments were put forward against the necessity of any Community legal 
measure in this field, since allegedly media markets would continue to maintain a (purely 
or mainly) national (or even regional) character. Finally, it was argued that EU rules on 
competition would provide for sufficient safeguards in this respect. 

What  should  be  noted  in  this  context  is,  firstly,  that  the  issues  of  concentration  and 
pluralism or media ownership had been addressed against the background of repeatedly 
formulated  requests  by  the  European  Parliament  to  this  respect31,  and  seen,  at  least 
partly,  as  a  matter  of  both  the  completion  of  the  Internal  Market  and  the  audiovisual 
policy. Since the cases underlying the ECJ judgements had shown that, in the absence of 
harmonisation at a European level, there existed potential hindrances to the exercise of 
the  freedom  of  establishment  and  the  freedom  to  provide  services,  Community  action 
grounded  on  legal  bases  to  harmonise  national  law  had  been  envisaged.  To  date, 
however,  no  such  instrument  has  been  proposed;  instead,  a  certain  change  of 
perspective  has  been  noticed  in  the  approach  by  the  European  Commission  –  towards 
transparency.32 

Secondly,  it  should  be  noted  that  the  assessment  of  the  question  whether  the  EU  has 
competence  to  regulate  media  ownership  issues  may  have  gained  new  momentum  (i) 
through the adoption of the Treaty of Lisbon, including the CFREU, and (ii) in view of the 
intended accession to the ECHR, and (iii) with regard to the conclusion by the EU and ist 

29 

30 

31 

32 

ECJ, Case C-23/93, TV10 SA v. Commissariaat voor de Media, [1994] ECR I-4795, para. 25. 
COM  (92)  480  final,  of  23  December  1992;  see  also  COM  (94)  353  final,  of  5  October  1994.  The  draft 
proposals for Directives prepared subsequently, in 1996 and 1997, have not been formally adopted by the 
College of Commissioners and not published officially. 
European  Parliament  resolution  of  20  January  1994,  OJ  C  44,  14.2.1994,  p.  177;  European  Parliament 
resolution  of  27  October  1994,  OJ  C  323,  21.11.1994,  p.  157;  European  Parliament  resolution  of  20 
November  2002  on  media  concentration,  O.J  C  025,  29.1.2004,  p.  205;  see  also  European  Parliament 
resolution  of  25  September  2008  on  concentration  and  pluralism  in  the  media  in  the  European  Union 
(2007/2253(INI)). 
http://ec.europa.eu/information_society/media_taskforce/pluralism/index_en.htm. 

32 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
  
 
 
 
 
 
 
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Member  States  of  the  UNESCO  Convention  on  the  Diversity  of  Cultural  Expressions  (for 
more on this see infra). To study these issues more thorougly, the European Commission 
recently announced to have requested, from the EUI in Florence, an update on the legal 
bases existing in EU law to come forward with related action.33 

  Rules on Competition 

The basic rules on competition are Art. 101 TFEU (prohibition on cartels), Art. 102 TFEU 
(prohibition  on  the  abuse  of  a  dominant  position),  Art.  106  TFEU  (as  a  special 
competition rule concerning public undertakings and undertakings bestowed with special 
or  exclusive  rights),  the  Council  Regulation  139/2004/EC34  (Merger  Control  Regulation, 
ECMR), and Arts. 107 ff. TFEU (State aid). The latter will be examined in an “extra-part” 
(cf. infra). 

- Prohibition of cartels 

Art.  101  TFEU  aims  to  ensure  that  “companies  play  fair”  by  taking  action  against  all  
business practices between two or more undertakings that restrict free competition in the 
internal  market.35  To  assess  this,  it  –  firstly  –  has  to  be  clarified  whether  an  agreement 
between undertakings, which is capable of affecting trade between Member States, has an 
anti-competitive object, or an actual or potential anti-competitive effect. Secondly, it has to 
be determined whether a restrictive agreement also produces pro-competitive benefits that 
outweigh the restricting effects.36 In the media sector, the question as to whether a cartel 
should be prohibited or not plays an important role especially when it comes to collective 
or  exclusive  agreements  on  the  selling  or  acquisition  of  sports  rights37,  or  with  regard  to 
the collective management of the author’s right to communicate and reproduce his works 
(online). 

In  its  judgement  of  4  October  201138,  the  ECJ  concluded  that  the  grant  of  exclusive 
satellite  broadcasting  licences  for  the  territory  of  one  or  more  Member  States,  which 
included a provision requiring the licensee not to supply decoding cards enabling viewing of 
PL games outside the licensed territory, restricted competition contrary to Article 101(1) of 
the TFEU. 

- Prohibition of the abuse of a dominant position 

Art.  102  TFEU  prohibits  “any  abuse  by  one  or  more  undertakings  of  a  dominant  position 
within the internal market or in a substantial part of it [...] in so far as it may affect trade 
between  Member  States”.  While  Art.  101  TFEU  aims  at  preventing  the  creation  of  new 
market  power  by  means  of  agreements,  decisions,  concerted  practices  or  concentrations, 
Art. 102 TFEU is directed towards the abuse of market power, where such power already 

33 

34 

35 

36 

37	 

38	 

Presentation  by  Dr  Geraard  de  Graaf,  DG  Information  Society  and  Media,  during  the  LIBE  committee 
meeting on 20/21 March 2012. 
Council Regulation 139/2004/EC of 20 January 2004 on the Control of Concentrations between Undertakings, 
[2004] OJ L 24, p. 1. 
Cf. M. Elspaß/M. Kettner, Comments on Art. 81 EC, in: Castendyk/Dommering/ Scheuer, European Media 
Law, Alphen a/d Rijn 2008, Art. 81 EC, rec. 1. 
Commission, Notice 2004/C 101/08, Guidelines on the Application of Art. 81(3) EC, [2004] OJ C 101/97, 
para. 11. 
Collective marketing (also an issue in the context of the prohibition 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  Commission,  Decision  2003/778/EC,  UEFA  Championsleague  (Case  C.2/37.398), 
[2003] OJ L 291/25; Commission, Notice, FA Premier League (Cases C.2/38.173 and 38.463), [2003] OJ L 
115, p. 3. 
ECJ,  Case  C-403/08  and  C-429/08,  Football  Association  Premier  League  and  Others  v  QC  Leisure  and 
Others Karen Murphy v Media Protection Services Ltd., [2011]. 

33 


 
 
 
 
 
  
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

exists.39  To  determine  whether  an  undertaking  has  abused  its  dominant  position,  one 
needs  firstly  to  define  the  relevant  product  and  geographic  market(s)40,  secondly  to 
determine  the  dominance  of  the  undertaking,  and  thirdly  to  decide  whether  the 
undertaking  is  acting  in  an  abusive  manner  and  therefore  affects  trade  between  Member 
States. The field of collective administering of copyrights41 and the refusal to supply media 
content42 are two of the most important fields of application for Art. 102 TFEU in the media 
sector. 

- Public undertakings and special rights granted to undertakings 

Art.  106  TFEU  aims  to  prevent  Member  States  from  enacting  or  maintaining  in  force 
measures relating to public undertakings and undertakings to which Member States grant 
special  or  exclusive  rights  which  derogate  from  other  obligations  under  the  Treaty, 
especially from the competition rules in Arts. 101 to 109 TFEU. According to the ECJ, Art. 
106 TFEU must be interpreted as being intended to ensure that the Member States do not 
take advantage of their relations with those undertakings in order to evade the prohibitions 
laid  down  by  other  Treaty  rules  addressed  directly  to  them,  by  obliging  or  encouraging 
those undertakings to engage in conduct which, if engaged in by the Member States, would 
be  contrary  to  those  rules.43  However,  the  granting  of  a  government  broadcasting 
monopoly has been held not to form per se an infringement upon this provision.44 Member 
States are (only) obliged not to adopt measures which lead to enterprises acting contrary 
to European Union law, even if they are State enterprises or enterprises which have been 
granted special or exclusive rights.45 

- Merger control 

The  European  Community  Merger  Regulation  (ECMR)  applies  –  in  principle  –  to  all 
concentrations  with  a  Union-wide  dimension  (Art.  1(1)  ECMR),  which  can  be  assumed,  if 
the  combined  aggregate  world-wide  turnover  of  all  the  undertakings  concerned  is  more 
than  EUR  5  billion  and  the  aggregate  Union-wide  turnover  of  each  of  at  least  two  of  the 
undertakings  concerned  is  more  than  EUR  250  million,  unless  each  of  the  undertakings 
concerned achieves more than two-thirds of its aggregate Union-wide turnover within one 
specific  Member  State  (Art.  1(2)  ECMR).  Art.  1(3)  ECMR  sets  out  special  thresholds 
catching  concentrations  which,  even  though  they  are  below  the  thresholds  of  Art. 1(2) 
ECMR,  show  consequences  in  at  least  three  Member  States.  It  is  the  task  of  the 
Commission  to  delineate  the  relevant  product  and  geographic  market  and  to  determine 

39 

40 

41 

42 

43 

44 

45	 

See D.G. Goyder, EC Competition Law (5th edn, Oxford University Press, 2009), pp. 324 et seq. 
For  market  definitions  in  the  media  sector,  see  R.  Capito,  in:  EMR,  Media  Markets  Definitions  2003  and 
2005. 
E.g.  Commission,  Decision  71/224/EEC,  GEMA  I  (Case  IV/26.760),  [1971]  OJ  L  134/15;  Decision 
72/268/EEC, GEMA II (IV/26.760), [1972] OJ L 166/22 and Decision 82/204/EEC, GEMA III (IV/29.971), 
[1982] OJ L 94/12; see also ECJ, Case 7/82, GVL v. Commission, [1983] ECR 483; ECJ, Case 127/73, BRT 
v. SABAM, [1974] ECR 313; ECJ, Case 395/87, Tournier, [1989] ECR 2521. 
E.g. Commission, Decision 2003/778/EC, UEFA Championsleague (Case C.2/37.398), [2003] OJ L 291/25; 
Commission, Decision 2005/396/EC, Bundesliga (Case C.2/37.214), [2005] OJ L 134/46. The leading case 
on refusal to grant access to content is Magill, ECJ, Joined Cases C-241/91 and C-242/91, Magill, [1995] 
ECR I-743. 
ECJ, Case C-157/94, Commission v. Netherlands, [1997] ECR I-5699, para. 30. 
The ECtHR ruled in 1993, that a ban on setting up commercial stations in Austria was in breach of Art. 10 
ECHR  (see  below).  This  means  that  the  legal  obligations  under  Art.  10  ECHR  for  the  Member  States  are 
more far-reaching than under Art. 106 TFEU. 
Cf. ECJ, Case C-260/89, ERT, [1991] ECR I-2925, para. 12; Case C-41/90, Höfner and Elser, [1991] ECR 
I-1979,  para  29;  J.-D.  Braun,  Comments  on  Art.  86  EC,  in:  Castendyk/Dommering/Scheuer,  European 
Media Law, Alphen a/d Rijn 2008, Art. 86 EC, paras. 8, 9. 

34 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

whether  a  concentration  is  compatible  with  the  common  market  by  conducting  the  so-
called SIEC-test46 under Art. 2(3) ECMR.47 

  Particularly: EU rules on State aid 

The  fundamental  provision  of  European  law  governing  the  evaluation  of  public  funding 
systems for broadcasting, cinema/film, press or (Internet-)broadband is Art. 107(1) TFEU. 
In  principle,  this  provision  prohibits  aid  granted  to  certain  undertakings  by  a  Member 
State  or  through  State  resources  which  distorts  competition  and  affects  trade  between 
Member  States.  Art.  106(2)  TFEU  provides  an  exception  in  favour  of  undertakings 
entrusted with the operation of services of general economic interest.48 Art. 107(2) and 
(3)  TFEU  also  provide  a  limited  derogation  from  the  rules  of  the  Treaty.  Of  particular 
interest for the media sector are the exemptions to facilitate the development of certain 
economic  activities  or  of  certain  economic  areas  within  the  meaning  of  Art.  107(3)(c) 
TFEU and for cultural State aid as defined in Art. 107(3)(d) TFEU. 

Small  amounts  of  State  aid  may  be  exempted  from  the  above-mentioned  rules,  since 
they  do  not  have  a  potential  effect  on  competition  and  trade  between  Member  States. 
The  Commission  Regulation  on  so-called  de  minimis  aid49  provides  that  State  aid 
measures shall be deemed not to meet all the criteria of Art. 107(1) TFEU, and shall be 
exempt from the notification requirement of Art. 108(3) TFEU, if they fulfil a number of 
conditions, namely (1) the ceiling for the aid covered by the de minimis rule is in general 
EUR  200,000  per  undertaking  over  any  three  fiscal-year  period  (in  the  present  time  of 
financial and economic crisis, the Commission has considered it necessary to temporarily 
increase  the  de  minimis  threshold  to  EUR  500,000  (cash  grant)  per  undertaking50);  the 
ceiling applies to the total of all public assistance considered to be de minimis aid. It will 
not  affect  the  possibility  of  the  recipient  to  obtain  other  State  aid  under  schemes 
approved  by  the  Commission;  the  regulation  only  applies  to  “transparent”  forms  of  aid, 
which  means  aid  for  which  it  is  possible  to  determine  in  advance  the  gross  grant 
equivalent.  The  General  Block  Exemption  Regulation51  identifies  aid  for  general  training 
measures, up to an aid intensity of 80%, as State aid that can be considered acceptable. 
Such training aid, not exceeding EUR 2 million per training project, is also exempted from 
individual notification. 

46	 

47	 

48	 

49	 

50	 

51	 

Cf.  the  analysis  of  the  meaning  of  the  SIEC-test  (“significant  impediment  of  effective  competition”)  N. 
Horner,  Unilateral  Effects  and  the  EC  Merger  Regulation  –  How  The  Commission  Had  its  Cake  and  Ate  it 
Too,  [2006]  Hanse  Law  Review,  p.  23  et  seq.;  S.  Baxter/F.  Dethmers,  Unilateral  Effects  Under  the 
European  Merger  Regulation:  How  Big  is  the  Gap?,  [2005]  ECLR  380  et  seq.;  C.-D.  Ehlermann/S.  B. 
Völcker/G.  A.  Gutermuth,  Unilateral  Effects:  The  Enforcement  Gap  under  the  Old  EC  Merger  Regulation, 
[2005] World Competition 28(2), p. 193 et seq. 
The Commission has dealt with various mergers under the ECMR, e.g. Decision 2005/188/EC, Sony/BMG 
(Case  COMP/M.3333),  [2005]  OJ  L  63,  p.  30;  Decision  2007/595/EC,  Universal/BMG  Publishing  (Case 
COMP./M.4404), [2007] OJ L 230, p. 12. 
Art. 14 TFEU emphasises the importance of these services. Under this provision, the European Parliament 
and the Council can - without prejudice to the competence of Member States (see below) - in future, by 
means  of  regulations,  establish  principles  and  conditions,  particularly  economic  and  financial  conditions, 
for the functioning of these services. 
Commission Regulation (EC) N 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 
of the Treaty to de minimis aid, [2006] OJ L 379, p. 5. 
Communication from the Commission - Temporary framework for State aid measures to support access to 
finance  in  the  current  financial  and  economic  crisis  (consolidated  version  of  the  Temporary  Framework 
adopted on 17 December 2008, as amended on 25 February 2009), [2009] OJ C 83, p. 1. Communication 
of the Commission — Temporary Union framework for State aid measures to support access to finance in 
the current financial and economic, [2011] OJ C 006, p. 0005 - 0015. 
Commission Regulation (EC) No 800/2008 of 6 August 2008, declaring certain categories of aid compatible 
with  the  common  market  in  application  of  Articles  87  and  88  of  the  Treaty  (General  block  exemption 
Regulation) (Text with EEA relevance), OJ [2008] L 214, p. 3. 

35 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
  
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Financing  public  service  broadcasting  and  effective  supervision  of  the 

fulfilment of the public service broadcasting obligations 

The  far-reaching  EU  State  aid  rules  are,  so  to  speak,  “specified”  in  further  “European 
rules” that need to be taken into account52: 

The  1997  Amsterdam  Protocol53  stipulates  that  the  Member  States  can  fund  public 
service broadcasting insofar as such funding is granted to broadcasting organisations for 
the  fulfilment  of  the  public  service  remit  and  does  not  affect  trading  conditions  and 
competition in the Union to an extent which would be contrary to the common interest.54 

The European Commission confirmed, in line with the Amsterdam Protocol, its approach 
to  the  examination  of  public  funding  of  audiovisual  services  (again)  in  its  2009 
Broadcasting Communication55, stating that the Member States are “free to choose” the 
means  of  financing  public  service  broadcasting.56  Funding  schemes  are  divided  into 
“single  funding”  and  “mixed  funding”.  The  “single  funding”  category  comprises  all 
systems  in  which  public  service  broadcasting  is  financed  only  through  public  funds,  in 
whatever form. “Mixed funding” (previously known as “dual funding”) systems comprise 
a wide range of schemes, where public service broadcasting is financed by a combination 
of  State  funds  and  revenues  from  commercial  activities,  such  as  the  sale  of  advertising 
space or programmes and the provision of services against payment. In addition, Rec. 77 
of  the  2009  Broadcasting  Communication  states,  with  regard  to  the  control  of  funding 
systems for public service broadcasting, that the Member States: 

“[...]  shall  ensure  regular  and  effective  control  of  the  use  of  public  funding,  to  prevent 
overcompensation  and  cross-subsidisation,  and  to  scrutinise  the  level  and  the  use  of 
‘public  service  reserves’.  It  is  within  the  competence  of  Member  States  to  choose  the 
most  appropriate  and  effective  control  mechanisms  in  their  national  broadcasting 
systems, also taking into account the need to ensure coherence with the mechanisms in 
place for the supervision of the fulfilment of the public service remit.” 

Here,  the  Commission  mentions  the  crucial  aspect  of  the  dual  control  over  the  use  of 
public funding. There are two types of control: financial control over how funds are used 
and  content-related  control  aimed  at  guaranteeing  the  fulfilment  of  the  public  service 
remit. Still, both forms of control should be viewed together, since the evaluation of the 
proper  use  of  funds  and  that  of  the  fulfilment  of  the  public  service  remit  are  linked 

52	 

53	 

54	 

55	 

56	 

2 

15 

at: 

pp. 

July 

seq. 

2009, 

(available 

See  C.  Bron,  “Financing  and  supervision  of  public  service  broadcasting”,  IRIS  plus  2010-4,  pp.  7  ff,  on 
current trends on the financing of public service broadcasting; M. Ridinger, “The Public Service Remit and 
the  New  Media”,  IRIS  plus  2009-6,  pp.  7  ff.;  and  EMR  et  al.,  “Public  Service  Media  According  to 
Constitutional Jurisprudence – The Human Rights and Constitutional Law Dimension of the Role, Remit and 
Independence”, 
http://www.ebu.ch/en/ 
et 
legal/other/EMR_Study_PSM.php) with regard to current trends on the public service remit. 
Treaty of Amsterdam amending the Treaty of the European Union, the Treaties Establishing the European 
Communities  and  certain  related  acts  –  Protocols  –  Protocol  on  the  Treaty  Establishing  the  European 
Community – Protocol on the system of public broadcasting in the Member States of 1 May 1997, [1997] 
OJ C 340, 1997, p. 109 (now: Protocol No. 29, attached to the Treaty of Lisbon amending the Treaty on 
European  Union  and  the  Treaty  establishing  the  European  Community,  signed  in  Lisbon,  13  December 
2007). 
Incidentally, these provisions correspond with the Resolution of the Council and of the representatives of 
the governments of the Member States, meeting within the Council, on 25 January 1999 concerning public 
service broadcasting, [1999] OJ C 30, p. 1, Rec. 2. 
Communication from the Commission of 2 July 2009 on the application of State aid rules to public service 
broadcasting  (Text  with  EEA  relevance),  [2009]  OJ  C  257,  p.  1.  The  2009  Broadcasting  Communication 
replaces  the  Communication  from  the  Commission  on  the  application  of  State  aid  rules  to  public  service 
broadcasting of 15 November 2001, [2001] OJ C 320, p. 5. 
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  competition  in  the  common 
market in a disproportionate manner (rec. 59). 

36 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
  
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

together.  In  its  judgment  of  26  June  2008  in  the  SIC  v.  Commission  case57  regarding 
measures by the Portuguese Republic for the public service broadcaster RTP in order to 
finance  the  public  service  remit,  the  Court  refers  to  the  statements  of  the  Amsterdam 
Protocol  and  to  the  Resolution  of  the  Council  and  of  the  Member  States  of  25  January 
1999 concerning broadcasting.  

On  the  questions  of  whether  the  remit  is  fulfilled  by  public  service  broadcasting  and 
whether  compliance  with  financial  requirements  is  secured,  the  Court  distinguishes  two 
manners of such an examination:  

Firstly,  it  is  necessary  to  check  whether  the  quality  standards  are  met,  since  these 
requirements, especially at the national level, are the key feature of services of general 
economic  interest  in  the  broadcasting  sector.  There  is,  the  Court  says,  no  reason  for 
State  funding  to  be  continued  if  the  public  service  broadcasters  do  not  adhere  to  any 
particular  quality  standards  and  thus  operate  on  the  market  like  any  other  providers, 
such  as  the  commercial  broadcasters.  This  is  a  remit  to  be  attributed  to  supervisory 
authorities/bodies at national level (only). 

A different question, according to the Court, is whether the services commissioned have 
actually  been  provided  in  the  way  determined  in  advance  and  whether  the  costs 
corresponding  to  these  services  have  not  been  exceeded.  Here,  the  Commission  is  able 
to  carry  out  checks:  it  can,  for  example,  consult  audits  by  external  auditors  if  they 
contain  information  “relevant  to  the  assessment  of  the  costs  for  the  purposes  of  its 
assessment of whether the aid is proportional within the context of Art. 86(2) ECT”. Only 
then is it possible to conduct a systematic examination of the cost-performance ratio with 
respect to the remit. 

The  Commission  recognises  that  it  is  within  the  competence  of  the  Member  State  to 
choose  the  mechanism  to  ensure  effective  supervision  of  the  fulfilment  of  the  public 
service  broadcasting  obligations.  Especially,  the  establishment  of  an  independent 
(regulatory) body in the audiovisual sector is deemed the preferred way to carry out the 
supervising  functions  assigned  to  it  in  an  effective  manner.  Consequently,  the 
Commission  recommends  that  public  service  broadcasters  be  monitored  by  a  body 
independent  from  the  broadcaster.  This  body  should  have  appropriate  powers  and 
resources  to  carry  out  a  regular  supervision  and  impose  possible  remedies.  The 
independent body must monitor the actions of the public service broadcaster in order to 
ensure that national definitions of public service broadcasting remits are underpinned by 
independent,  robust  and  enforceable  mechanisms  to  monitor  and  render  entrusted 
broadcasters accountable for the fulfilment of the associated obligations and for the level 
of public funding (and regulatory assets) assigned to this purpose. 

With regard to supervision of the fulfilment of the public service obligations, para. 54 of 
the Broadcasting Communication states: 

“[...]  Such  supervision  would  only  seem  effective  if  carried  out  by  a  body  effectively 
independent  from  the  management  of  the  public  service  broadcaster,  which  has  the 
powers and the necessary capacity and resources to carry out supervision regularly, and 
which leads to the imposition of appropriate remedies in so far it is necessary to ensure 
respect of the public service obligations.” 

57 

CFI, Case T-442/03, SIC –  Sociedade Independente de  Comunicação,  SA v Commission of  the European 
Communities, [2008] ECR, p. II-1161. 

37 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

For financial control mechanisms to be effective, however, the Communication deems it 
necessary  that  these  be  “carried  out  by  an  external  body  independent  from  the  public 
service  broadcaster  at  regular  intervals,  preferably  on  a  yearly  basis”  (para.  78  of  the  
Broadcasting Communication). 

-  Aid Schemes for the Press 

In the absence of specific EU guidelines for dealing with State aid to the press sector, the 
Commission (mostly) assesses measures directly under Art. 107(3)(c) TFEU. 

In  2008,  for  instance,  the  Commission  authorised  subsidies  granted  by  Finland  to 
newspapers  and  the  corresponding  electronic  media  published  in  national  minority 
languages, such  as  Sámi  and  Romany,  and in  Swedish,  as  well  as  for  the production  of 
Swedish-language  news  services  under  the  terms  of  Art.  107(3)(c)  TFEU.  The  targeted 
beneficiaries are small circulation newspapers (with a maximum average circulation of up 
to  15,000  copies)  and  the  subsidies  cannot  exceed  40%  of  the  operating  costs  of  the 
newspapers. The overall budget of the measure is EUR 500,000 per year. In view of the 
Commission, the scheme contributes to media pluralism and to the protection of minority 
languages  in  Finland,  while  having  a  limited  negative  impact  on  competition  and  trade 
between Member States.58 

In  2010,  the  Commission  approved  a  (modified)  Swedish  aid  scheme  in  favour  of 
newspapers.  The  aid  includes  a  maximum  aid  level  of  EUR  4.8  million  for  metropolitan 
newspapers over a period of five years, starting from 2011. Extra aid can only be granted 
to  cover  up  to  40%  of  the  additional  costs  deriving  from  the  specific  situation  in  the 
metropolitan  newspaper  markets  (e.g.  extra  editorial  costs  and  Sunday  publishing). 
Support  ceilings  were  fixed  at  max  40%  of  total  operating  costs  for  high  and  medium 
frequency newspapers and at max 75% for low-frequency 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  accounts  to  be  submitted  to  the 
Commission.59 

- Aid Schemes to the Development of Broadcasting Technologies/ Broadband 

Internet 

The introduction of “digital video broadcasting over a terrestrial network” (DVB-T) as well 
as broadband internet have also raised State aid issues in a number of Member States. 
Especially  Art.  107(3)(c)  TFEU  has  played  an  important  role  concerning  State  aid  for 
private  broadcasters  to  induce  them  to  switch  from  analogue  to  digital  terrestrial 
television60,  or  in  cases  dealing  with  the  public  funding  of  broadband  Internet 
connectivity.61 

In  its  Communication  of  17  September  2003  on  the  transition  from  analogue  to  digital 
broadcasting,  the  Commission  presented  two  main  conditions  for  State  intervention  in 
the  switchover  process  from  analogue  to  digital:  First,  the  intervention  from  public 

58 

59 

60 

61 

Commission, State aid N 537/2007, 20 May 2008, Finland – Aid to the press.
 
Commission, State aid E 4/2008, 20 July 2010, Sweden – Publishing of newspapers.
 
E.g.  CFI,  Case  T-8/06,  FAB  v  Commission,  [2009]  ECR  II-196;  Case  T-21/06,  Germany  v  Commission,
 
[2009]  ECR  II-197;  Case  T-24/06,  MABB  v  Commission,  [2009]  ECR  II-198;  Case  T-2/08,  LfM  v 
Commission,  [2009]  ECR  II-195;  Commission,  State  Aid  C  52/2005,  24  January  2007,  Italy  –  Digital 
Decoders. The Commission has recently opened two investigations on Spanish National Transition Plan for 
digitisation and extension of terrestrial television network, see IP/10/1195. 
E.g.  Commission,  State  Aid  N  622/2003,  16  March  2005,  Austria  –  Digitalisierungsfonds;  State  Aid  N 
382/2004, 3 May 2005, France – Mise en place d’une infrastructure haut débit sur le territoire de la région 
Limousin (DORSAL); State Aid N 263/2005, 20 October 2005, Austria – Breitband Kärnten. 

38 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

authorities  to  facilitate  and  supervise  the  process  could  be  justified  insofar  as  general 
interests  are  at  stake;  that  is,  how  far  there  are  potential  benefits  and/or  problems  for 
the society as a whole, rather than just for certain groups or individuals. Second, in the 
case of market failure, meaning that the market powers themselves are not able to fulfil 
the collective welfare.62 In its Communication of 24 May 2005, the Commission presented 
the main obstacles to a rapid switchover (e.g. the absence of political decisions such as a 
fixed date for the national analogue switch-off or political decisions not to set switch-off 
dates, and the lack of a common European approach) and factors for a successful change 
(e.g.  an  effective  strategy  to  inform  consumers  about  programme  availability  on  digital 
platforms and the equipment needed to receive such programmes).63 

In order to determine whether a measure is selective or can be regarded as a state aid, 
the  ECJ  considered  appropriate  to  examine  whether  that  measure  constitutes  an 
advantage for certain undertakings in comparison with others which are in a comparable 
factual and legal situation. Therefore, ruling the case relating to subsidies granted by the 
Italian  Republic64  to  promote  the  purchase  of  digital  decoders,  the  Court  ruled  that  the 
Italian  subsidies  for  the  purchase  of  digital  terrestrial  decoders  in  2004  and  2005 
constitute  State  aid  which  is  incompatible  with  the  European  Common  Market  and 
constitutes a breach of Art. 107 TFEUV (former Art. 87(1) TEC). None of the exceptions 
provided  for  in  Article  107  para. 3  TFEU were held  to  be  applicable,  since  this  provision 
applied  only  to  terrestrial  broadcasters  and  cable  pay-TV  operators,  but  not  for  digital 
satellite channels and therefore are not technology neutral. As a result, the Court noted 
that  “such  an  aspect  of  selectivity  as  regards  technology  affecting  an  aid  measure  may 
be  enough  in  itself  to  cause  a  distortion  which  is  sufficient  ground  for  holding  that 
measure to be incompatible with the common market”.65 

In  the  field  of  Internet  high-speed  connectivity,  the  Commission  sets  one  of  its  future 
targets  on  the  guarantee  of  universal  high-speed  and  ultra-fast  broadband  coverage.66 
Therefore, the Commission has adopted a Communication outlining a common framework 
within  which  EU  and  national  policies  should  be  developed  to  meet  the  Europe  2020 
targets.67  These  policies  should,  in  particular,  lower  the  costs  of  broadband  deployment 
in  the  entire  EU  territory,  ensuring  proper  planning  and  co-ordination  and  reducing 
administrative burdens. For instance, the competent authorities should ensure that public 
and  private  civil  engineering  works  systematically,  provide  for  broadband  networks  and 
in-building  wiring,  clearing  of  rights  of  way  and  mapping  of  available  passive 
infrastructure suitable for cabling. 

In  2009,  the  Commission  published  guidelines  for  the  application  of  State  aid  rules  in 
relation  to  rapid  deployment  of  broadband  networks.68  The  guidelines  especially  specify 
how  State  measures  could  be  compatible  with  Art.  107(3)(c)  TFEU.  In  this  regard,  the 

62 

63 

64 

65 

66 

67 

68 

Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European  Economic 
and  Social  Committee  and  the  Committee  of  the  Regions  of  17  September  2003  on  the  transition  from 
analogue to digital broadcasting (from digital 'switchover' to analogue 'switch-off'), COM(2003) 541 final., 
pp. 9 et seq. 
Communication  from  the  Commission  to  the  Council,  the  European  Parliament,  the  European  Economic 
and  Social  committee  and  the  Committee  of  the  Regions  of  24  May  2005  on  accelerating  the  transition 
from analogue to digital broadcasting, COM(2005) 204 final, pp. 4 et seq. 
ECJ, Case C-403/10 P, Mediaset SpA v European Commission, [2011]. 
Ibid, para. 104. 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic 
and Social Committee and the Committee of the Regions of 19 May 2010 “A Digital Agenda for Europe“, 
COM(2010) 245 final, p. 19. 
Communication  from  the  Commission  of  26  August  2010  to  the  European  Parliament,  the  Council,  the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  –  A  Digital  Agenda  for 
Europe, COM(2010) 245 final/2. 
Communication from the Commission of 30 September 2009 on Community Guidelines for the application 
of State aid rules in relation to rapid deployment of broadband networks, [2009] OJ C 235, p. 7. 

39 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Commission assesses its balancing test and its application to aid for broadband network 
deployment. The Commission also states in its guidelines that businesses should support 
efforts  to  speed  up  the  renewal  and  extension  of  broadband  networks  in  order  to  close 
supply gaps, particularly in rural areas. 

  The “Culture-clause“ 

Art. 167 TFEU highlights the “cultural aspect” of the Union. The object and purpose of the 
norm  are  both  to  clarify  and  to  limit  the  cultural  competence  of  the  Union:  Art.  167(1) 
TFEU  states  that  “the  Union  shall  contribute  to  the  flowering  of  the  cultures  of  the 
Member  States,  while  respecting  their  national  and  regional  diversity  and  at  the  same 
time  bringing  the  common  cultural  heritage  to  the  fore”.  Art  167  (4)  TFEU  requires  the 
Union  to  take  cultural  aspects  into  account  in  its  action  under  other  provisions  of  that 
Treaty, in particular in order to respect and to promote the diversity of its cultures. The 
meaning  of  cultural  aspects  in  this  regard  is  limited  to  the  cultural  fields  mentioned  in 
Art.  167(2)  TFEU,  where  European  Union  action  is  extended  to  artistic  and  literary 
creation, including the audiovisual sector (indent 4). The EU’s supplementing actions do 
not  only  cover  print  media  like  books,  but  also  encompass  media  which  disseminate 
cultural  contents  by  auditory  and  visual  means.69  Furthermore,  Art.  167(2)  TFEU 
authorises the Union to support the production and dispersion of broadcasting as well as 
Internet programmes, as far as their cultural components are at stake.70 

Art. 167 AEUV also plays a role for the EU in order to encourage its Member States to co­
operate  in  conserving  and  safeguarding  cultural  heritage  of  European  significance, 
including  cinema.  With  regard  to  the  latter,  the  Recommendation  to  Member  States  on 
film  heritage71  calls  for  Europe’s  film  heritage  to  be  methodically  collected,  catalogued, 
preserved  and  restored  so  that  it  can  be  passed  on  to  future  generations.  EU  countries 
were  asked  to  inform  the  Commission  every  two  years  of  what  they  have  done  in  this  
regard. The second implementation report has been published recently.72 

Finally,  the  Convention  on  the  Protection  and  Promotion  of  the  Diversity  of  Cultural 
Expressions73  should  be  mentioned.  This  UNESCO  treaty  was  jointly  negotiated  by  the 
European  Commission  and  by  the  European  Council.  Its  main  objective  is  to  take  into 
account cultural diversity when developing other policies (cf. the objectives listed in Art. 
1). The preamble emphasises “the need to incorporate culture as a strategic element in 
national  and  international  development  policies,  as  well  as  in  international  development 
co-operation, taking into account also the United Nations Millennium Declaration (2000) 
with its special emphasis on poverty eradication” and “the importance of culture for social 
cohesion in general, and in particular its potential for the enhancement of the status and 
role of women in society”. Media including broadcasting (cf. Art. 6(2)(h), film (cf. Art. 14) 
as  well  as  the  “new  media”  is  covered  by  the  Convention.  Art.  20  of  the  UNESCO 
Convention  defines  the  relationship  with  other  international  treaties  (like  the  WTO 
agreements)  and  specifies  the  linkage  between  these  treaties  in  the  case  of  overlap  of 
rights  and  obligations.  This  Article  also  specifies  the  interpretation  of  the  Convention  in 

69 

70 

71 

72 

73 

Cf. Council Decision 508/2000/EC, Culture 2000, [2000] OJ L 63/1.
 
Cf.  S.  Schmahl,  Comments  on  Art.  151  EC,  in:  Castendyk/Dommering/Scheuer,  European  Media  Law,  

Alphen a/d Rijn 2008, Art. 151 EC, p. 259. 
Recommendation  of  the  European  Parliament  and  of  the  Council  of  16  November  2005  on  film  heritage 
and the competitiveness of related industrial activities, OJ L 323, p. 57. 
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 Heritage Recommendation), SEC 
2010 (853), available at: http://ec.europa.eu/avpolicy/docs/reg/cinema/report_2/2010_853.pdf. 
UNESCO  Convention  on  the  Protection  and  Promotion  of  the  Diversity  of  Cultural  Expressions  of  20 
October 2005, available at:
http://unesdoc.unesco.org/images/0014/001429/142919e.pdf. 

40 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
  
 
 
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

relation  to  other  international  treaties.  The  Convention  was  ratified  by  the  European 
Union (former European Community) on 18 December 2006. All examined countries are 
part of the Convention, except for Kosovo. 

The  binding  character  of  the  UNESCO  Convention  for  the  EU  (as  well  as  for  the  EU-
Member  States)  is,  firstly,  of  relevance  for  external  trade  relations  with  other  Members 
that  have  ratified  the  Convention.  This  applies  especially  for  external  actions  of  the  EU 
under Arts. 205-207 TFEU. With a view to the so-called Doha-round the EU has – in the 
light of the UNESCO Convention – pressed its point on “non-liberalising” the audiovisual 
sector. Secondly, the Convention becomes also a “binding force” for the EU for measures 
to  be  taken  on  an  EU  level  (and  for  its  Members  on  a  national  level,  respectively).  The 
(binding) measures stipulated in the Convention (e.g. Art. 7, which includes measures to 
promote  cultural  expressions)  deepen  on  the  one  hand  the  understanding  of  cultural 
diversity. The explicitly named measures in the Convention concretise on the other hand 
the provision of Art. 167(4) TFEU, which says that “the Union shall take cultural aspects 
into account in its action under other provisions of the Treaties, in particular in order to 
respect  and  to  promote  the  diversity  of  its  cultures”.  This  kind  of  a  more  “abstract 
principle” is shaped in concreto by the UNESCO Convention as all named State measures 
of the Convention are in principle legitimised and could not, in general, be tackled by the 
Commission.74 

  EU competencies to harmonise (the) different sectors of “media law” 

- General remarks 

The  Treaty  on  the  Functioning  of  the  EU  does  not  contain  an  explicit  competence  to 
regulate press, broadcasting and/or other media services. An exception is Art. 118 TFEU 
that allows the EU legislator 

“to establish measures for the creation of European intellectual property rights to provide 
uniform protection of intellectual property rights throughout the Union and for the setting 
up of centralised Union-wide authorisation, co-ordination and supervision arrangements.” 

The competence for harmonisation measures areas named in the former is mostly based 
on  Arts.  114  and  115  TFEU.  These  provisions  allow  the  adoption  of  “measures  for  the 
approximation  of  the  provisions  laid  down  by  law,  regulation  or  administrative  action  in 
Member  States  which  have  as  their  object  the  establishment  and  functioning  of  the 
internal market”. 

With regard to the freedom to provide services (and the freedom of establishment) there 
exists a lex specialis for the harmonisation on the basis of a directive, namely Art. 53(1) 
TFEU (read together with Art. 62 TFEU): the AVMSD, which will be  dealt with at a later 
stage (see infra at b)), is the prominent example in the field of “Audiovisual Media Law”. 
Related areas find their basis in Art. 114 (and Art. 115) TFEU instead. 

- eCommunications 

the 

far  as 

As 
is  concerned,  electronic 
communications  regulation  (in  an  auxiliary  as  well  as  an  enabling  function)  comes  into 
play.75  The  allocation  and  assignment  of  radio  spectrum  to  electronic  media  services 

transmission  of  (audiovisual)  media 

74 

75 

Cf. V. Wiedemann, Ein Kyoto-Protokoll für die Kultur – Die UNESCO-Konvention zur kulturellen Vielfalt, in 
ARD Jahrbuch 2007, p. 23 (p. 26). 
See Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory  framework  for  electronic  communications  networks  and  services  (Framework  Directive),  as 

41 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

(particularly radio and TV) is primarily to be determined by the needs of these services, 
provided that the latter contribute to promoting media pluralism – one of the goals which 
regulatory authorities in the electronic communications sector have to take into account 
in  their  regulatory  activities  (see  Recital  5,  last  sentence;  and  Art.  8(1)  of  Directive 
2002/21/EC,  as  amended).  On  the  other  hand,  also  the  discussion  about  whether 
regulatory  convergence  should  follow  technological  and  market  convergence76  leads  to 
the  question  as  to  how  both  sectors  are  regulated  today  and  which  are  the  differences 
between the two approaches applied.77 

Electronic communication is part of the so called “Information Society/New Media” policy, 
which  has  set  the  tone  for  a  knowledge  economy  based  on  information  technology  in  a 
liberalised  market.  The  Transparency  Directive  on  information  society  services78  was  the 
first  Directive  in  this  field,  aiming  to  extend  the  notification  procedures  for  technical 
standards  to  information  society  services.  The  Conditional  Access  Directive79,  the  e-
Commerce Directive80 and the Electronic Money Directive81 have expanded the process of 
harmonising the information society policy up to now. 

In order to ensure that the process of transition from analogue to digital broadcasting by 
2012 leads to the entry of new players capable of enhancing competition and expanding 
viewer  choice,  the  Commission  monitors  that  the  rules  set  out  in  the  Competition, 
Authorisation  and  Framework  Directives  for  the  allocation  of  this  spectrum  capacity  are 
complied  with.  These  rules  require  that  rights  of  use  for  radio  frequencies  are  allocated 
by  way  of  open,  transparent,  objective,  non-discriminatory  and  proportionate 
procedures, without prejudice to general interest objectives.  

On  22  March  2012  the  Commission  asked  Bulgaria  to  ensure  open  and  non­
discriminatory  access  to  the  digital  terrestrial  broadcasting  infrastructure  market82, 
considering  that  this  Member  State  did  not  comply  with  the  requirements  of  the 
Competition  Directive  when  it  assigned,  in  2009,  the  five  spectrum  lots  available  for 
digital  terrestrial  broadcasting  via  two  contest  procedures,  limiting  without  justification 
the  number  of  undertakings  that  could  enter  the  market  concerned.  Moreover,  the 
selection  criteria  of  the  contest  procedures  were  disproportionate  and  therefore  not  in 

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 on access to, and interconnection of, electronic 
communications  networks  and  associated  facilities  (Access  Directive),  as  amended  by  Directive 
2009/140/EC  of  25  November  2009,  OJ  L  337,  p.  37;  Directive  2002/20/EC  of  the  European  Parliament 
and  of  the  Council  of  7  March  2002  on  the  authorisation  of  electronic  communications  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  users’  rights  relating  to  electronic  communications  networks  and  services  (Universal  Service 
Directive), as amended by Directive 2009/136/EC of 25 November 2009, OJ L 337, p. 12. 
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  discussed  on 
which criteria a decision on this issue shall be based. 
See  also  S.  Schweda,  “The  Telecoms  Review:  New  Impetus  for  Audiovisual  Media?”,  IRIS  plus  2009-10, 
pp.  7  ff.,  which  analyses  the  impact  of  the  revision  of  the  regulatory  framework  for  electronic 
communications networks and services on television broadcasting and other audiovisual media. 
Directive  98/48/EC  of  the  European  Parliament  and  of  the  Council  of  20  July  1998  amending  Directive 
98/34/EC, laying down a procedure for the provision of information in the field of technical standards and 
regulations, [1998] OJ L 217, p. 18 (as amended). 
Directive  98/84/EC  of  the  European  Parliament  and  of  the  Council  of  20  November  1998  on  the  legal 
protection of services based on, or consisting of, conditional access, [1998] OJ L 320, p. 54. 
Directive  2000/31/EC  of  the  European  Parliament  and  of  the  Council  of  8  June  2000  on  certain  legal 
aspects  of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market 
(‘Directive on electronic commerce’), [2000] OJ L 178, p. 1. 
Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking 
up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 
2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC, [2009] OJ L 267, p. 7. 
European Commision - Press Release, IP/12/298 [2012], available at:
Http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/298&type=HTML. 

76	 

77	 

78	 

79	 

80	 

81	 

82	 

42 


 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
 
 
 
 
 
 
 
 
  
 
 
  
 
  
 
 
 
 
  
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

line  with  the  requirements  of  the  Competition,  Authorisation  and  Framework  Directives. 
Applicants were not allowed to have links with content providers (TV channels operators), 
including operators active only outside Bulgaria, or with broadcasting network operators.  

- Consumer and data protection 

Media law is also linked with the issue of consumer protection. Consumer protection laws 
are in principle designed to ensure fair competition and the free flow of truthful information 
in  the  marketplace.  With  regard  to  media  law,  especially  the  AVMSD  wants  to  ensure 
transparent information by giving a concept of “audiovisual commercial communication” in 
Art.  1(h)  AVMSD,  designed  to  cover  all  types  of  advertising.83  Besides  this,  a  number  of 
other directives target the issue of consumer protection.84 

Data  protection  is  another  important  sector  in  the  field  of  media  law.  The  protection  of 
personal data has been an area of considerable legislative activity both at the European 
and at the Member State level in the years before and after the adoption of the European 
Data  Protection  Directive  95/46/EC.85  The  Directive  is  aimed  at  the  protection  of  the 
fundamental  rights  and  freedoms  of  natural  persons,  and  in  particular  their  right  to 
privacy  with  respect  to  the  processing  of  personal  data,  as  well  as  the  free  flow  of 
personal  data  between  the  Member  States  (Art.  1).  The  Directive  especially  includes  an 
exemption in Art. 9 for the processing of personal data within the objective(s) of freedom 
of expression. The provision states that 

“Member  States  shall  provide  for  exemptions  or  derogations  [...]  for  the  processing  of 
personal  data  carried  out  solely  for  journalistic  purposes  or  the  purpose  of  artistic  or 
literary  expression  only  if  they  are  necessary  to  reconcile  the  right  to  privacy  with  the 
rules governing freedom of expression.” 

As  Rec.  17  (read  together  with  Rec.  37)  of  the  Directive  95/46/EC  states,  in  particular 
the  processing  of  sound  and  image  data  in  the  audiovisual  field  is  affected  by  Art.  9  of 
the Directive to safeguard the fundamental rights of individuals, while taking into account 
the  freedom  of  information  and  notably  the  right  to  receive  and  impart  information,  as 
guaranteed in particular in Art. 10 ECHR. 

The provisions of Directive 2002/58/EC as amended86 specify and complement Directive 
95/46/EC  in  the  area  of  data  protection  by  (additionally)  covering  legal  persons;  and 

83	 

Cf.  R.  Chavannes/O.  Castendyk,  Comments 
Dommering/Scheuer, European Media Law, Alphen a/d Rijn 2008, Art. 1 AVMSD, pp. 837 ff. 

1(h)  AVMSD, 

on  Art. 

in:  Castendyk/ 

84	  With  regard  to  Arts.  114  and  115  TFEU,  the  following  Directives  are  to  be  mentioned:  Directive 
2009/22/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  injunctions  for  the 
protection  of  consumers'  interests  (codified  version),  [2009]  OJ  L  110,  p.  30;  Regulation  (EC)  No. 
1924/2006  of the  European  Parliament  and  of  the  Council  of  20  December  2006  on  nutrition  and  health 
claims made on foods, as last amended by Commission Regulation (EU) No. 116/2010 of 9 February 2010, 
[2010]  OJ  L  37,  p.  16;  Directive  2006/114/EC  of  the  European  Parliament  and  of  the  Council  of  12 
December 2006 concerning misleading and comparative advertising (codified version), [2006] OJ L 149, p. 
22; Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair 
business-to-consumer  practices,  [2005]  OJ  L  149,  p.  22;  Directive  97/7/EC  of  the  European  Parliament 
and  of  the  Council  of  20  May  1997  on  the  Protection  of  Consumers  in  Respect  of  Distance  Contracts, 
[1997] OJ L 144, p. 19. 
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data, [1995] 
OJ  L  281,  p.  31.  In  order  to  develop  the  regulation  of  the  data  protection  sector,  on  25  January  2012  a 
proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  the  protection  of  individuals 
with  regard  to  the  processing  of  personal  data  and  on  the  free  movement  of  such  data  (General  Data 
Protection Regulation) was adopted, 2012/0011 (COD). 
Directive  2002/58/EC  of  the  European  Parliament  and  of  the  Council  of  12  July  2002  concerning  the 
processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic  communications  sector 
(Directive on privacy and electronic communications), amended by Directive 2006/24/EC of the European 
Parliament  and  of  the  Council  of  15  March  2006  on  the  retention  of  data  generated  or  processed  in 

85	 

86	 

43 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Directive  2006/24/EC87  addresses  the  obligations  of  the  providers  of  publicly  available 
electronic communications services or of public communications networks with respect to 
the retention of certain data. 

- Intellectual property rights 

The  European  Union  has  adopted  a  number  of  horizontal  directives  on  copyright  and 
intellectual  property  law  based  on  Art.  114  TFEU  (sometimes  together  with  Arts.  53,  62 
TFEU).88  One  that  applies  particularly  to  broadcasting  (TV  and  radio)  is  the  Cable  and 
Satellite Directive from  the early 1990s.89 Its  main  goal was to facilitate the clearance of 
rights  for  satellite  broadcasting  and  cable  retransmission.90  The  (Copyright)  Directive 
2001/29/EC91 (also known as the Information Society Directive or the InfoSoc Directive) 
is a directive enacted to implement the WIPO Copyright Treaty92, in order to address the 
rights of reproduction, communication to the public, distribution, and legal protection of 
anti-copying  and  rights  management  systems.  It  ensures  that  films,  music  and  other 
copyright  protected  material  enjoy  adequate  protection  in  the  single  market.  However, 
copyright and media law went along different historical paths.93 The increasing complexity 
of electronic communications patterns (now) call for an integrated approach of media law 
and copyright in the future. 

connection  with  the  provision  of  publicly  available  electronic  communications  services  or  of  public 
communications networks, [2006] OJ L 105, p. 54 and by Directive 2009/136/EC of 25 November 2009, 
OJ L 337, p. 12. 
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of 
data  generated  or  processed  in  connection  with  the  provision  of  publicly  available  electronic 
communications services or of public communications networks, ibid. 
Directive  2009/24/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  the  legal 
protection of computer programs (codified version), [2009] OJ L 111, p. 16; Directive 2006/116/EC of the 
European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and 
certain  related  rights  (codified  version),  [2006]  OJ  2006  L  372,  p.  12;  Directive  2006/115/EC  of  the 
European  Parliament  and  of  the  Council  of  12  December  2006  on  rental  right  and  lending  right  and  on 
certain rights related to copyright in the field of intellectual property (codified version), [2006] L 376, p. 
28;  Directive  2004/48/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the 
enforcement  of  intellectual  property  rights,  [2004]  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 databases, [1996] L 77, p. 20. 
Council  Directive  93/83/EEC  of  27  September  1993  on  the  co-ordination  of  certain  rules  concerning 
copyright  and  rights  related  to  copyright  applicable  to  satellite  broadcasting  and  cable  retransmission, 
[1993] OJ L 248, p. 15. 
P.  B.  Hugenholtz,  “SatCab  Revisited:  The  Past,  Present  and  Future  of  the  Satellite  and  Cable  Directive”, 
IRIS plus 2009-8, pp. 7 ff. 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation 
of certain aspects of copyright and related rights in the information society, [2001] L 167, p. 10. 

87	 

88	 

89	 

90	 

91	 

92	  World  Intellectual  Property  Organisation  Copyright  Treaty  (WCT),  adopted  in  Geneva  on  20 December 

93	 

1996; see N. Helberger, Copyright Treaty Enters into Force, IRIS 2002-1:2/1. 
The Commission stated in its review report of 2002 that the goals of the Cable and Satellite Directive have 
only been partially achieved and that the envisaged future of a pan-European satellite broadcasting market 
has  not  materialised.  Contractual  licensing  practices  reinforced  by  the  application  of  signal  encryption 
techniques  have  allowed  broadcasters  and  right  holders  to  continue  segmenting  markets  along  national 
and  regional  and  linguistic  borderlines.  Report  from  the  European  Commission  of  26  July  2002  on  the 
Application of Council Directive 93/83/EEC on the Co-ordination of Certain Rules Concerning Copyright and 
Rights  Related  to  Copyright  Applicable  to  Satellite  Broadcasting  and  Cable  Retransmission,  COM(2002) 
430 final. 

44 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
 
 
  
 
 
  
 
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
 
  
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

1.3.1.2.2.	 

Secondary European Union law: particularly the Audiovisual Media Services 
Directive 

  General remarks on the content/scope and the guiding principles 

The Audiovisual Media Services Directive94 (AVMSD) covers all audiovisual media services 
(Art.  1(1)  lit.  a)  AVMSD):  traditional  television  (linear  services)  and  video-on-demand 
(non-linear services).95 

All audiovisual media services have to respect the basic tier of obligations in the following 
areas: identification of media service providers (Art. 5 AVMSD), prohibition of incitement 
to  hatred  (Art.  6  AVMSD),  accessibility  for  people  with  disabilities  (Art.  7  AVMSD), 
transmission  of  cinematographic  works  (Art.  8  AVMSD),  qualitative  requirements  for 
commercial  communications  (Art.  9  AVMSD),  sponsoring  (Art.  10  AVMSD)  and  product 
placement  (Art.  11  AVMSD).  Furthermore,  the  Directive  holds  special  rules  only  for 
television  broadcasting,  such  as  television  advertising  and  teleshopping  (Arts.  19-26 
AVMSD),  protection  of  minors  (Art.  27  AVMSD)  or  the  right  of  reply  (Art.  28  AVMSD); 
and  for  on-demand  services  in  Art.  12  AVMSD  (protection  of  minors  in  on-demand 
services)  and  in  Art.  13  AVMSD  for  the  production  and  distribution  of  European  works. 
The  Directive  also  provides  a  general  framework  for  the  latter  applicable  to  linear 
audiovisual media services in its Arts. 16 and 17 AVMSD, including cinema and TV films. 

The  authorities  in  each  Member  State  must  ensure  that  all  (providers  of)  audiovisual 
media services originating there comply with  their own national rules, particularly those 
giving effect to the Directive (Art. 2 AVMSD – “country-of-origin principle”). This means 
content has to be checked once, rather than in multiple countries. If any Member State 
adopts  national  rules  that  are  stricter  than  the  Directive  (as  they  are  principally  free  to 
do), these can, in principle, only be applied to providers in that jurisdiction. 

Member  States  may  not  restrict  retransmissions  on  their  territory  of  audiovisual  media 
services  from  other  Member  States  for  reasons  which  fall  within  the  fields  co-ordinated 
by this Directive (Art. 3(1) AVMSD). Exceptions to this principle, such as the transmission 
of  unsuitable  content,  are  listed  in  Art.  3(2)-(6)  AVMSD.  Any  restrictions  must  first  be 
approved by the Commission and are only allowed under exceptional circumstances.  

Besides, Member States are free to pass more detailed or stricter rules in the fields co­
ordinated by the Directive to media service providers under their jurisdiction as  long as 
such  rules  are  in  compliance  with  the  general  principles  of  European  Union  law  (Art.  4 
AVMSD).96 

Finally,  it  should  be  noted  that  Art.  30  AVMSD  (read  together  with  Rec.  95)  aims  at  
securing  the  correct  application  of  the  Directive  as  the  independent  regulators  in  the 
Member  States  must  co-operate  closely  both  among  themselves  and  with  the 
Commission. This applies especially to issues of jurisdiction. Although the ECJ has not yet 

94 

95 

96 

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

retransmission  of  broadcasts  originating 

in  other  Member  States” 

the 

to	 

45 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
  
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

had the opportunity to hold on issues relating to (the independence of) regulatory bodies 
responsible  for  applying  legal  provisions  in  the  audiovisual  sector,  one  should  take  into 
consideration,  for  present  purposes,  the  judgment  of  the  Court  in  the  Centro  Europa  7 
case.97  The ECJ stated that Art. 56 TFEU (and Art. 9(1) of the Framework Directive, Art. 
5(1),  the  second  subparagraph  of  Art.  5(2)  and  Art.  7(3)  of  the  Authorisation  Directive 
and Art. 4 of the Competition Directive) must be interpreted as precluding, in television 
broadcasting matters, national legislation the application of which makes it impossible for 
an  operator  holding  rights  to  broadcast  to  pursue  this  service  –  in  the  absence  of 
broadcasting  radio  frequencies  granted  to  him  on  the  basis  of  objective,  transparent, 
non-discriminatory  and  proportionate  criteria.98  Given  that  the  ECJ  based  its  decision 
inter  alia  on  the  freedom to provide services,  the  effectuating of  which  the  AVMSD  also 
aims at, this judgment may serve also to more closely define the effectiveness that the 
work of “independent regulatory bodies”, in the sense of Art. 30 AVMSD, has to provide 
for. 

On  10  December  2009,  the  Romanian  National  Audiovisual  Council  signed  a 
Memorandum  of  Understanding  on  mutual  co-operation  and  exchange  of  information 
together  with  the  Czech  Council  for  Radio  and  TV  Broadcasting,  the  Hungarian  National 
Radio and TV Commission, the Polish National Broadcasting Council, the Serbian Republic 
Broadcasting  Agency  and  the Slovak  Council  for  Broadcasting  and  Retransmission. Each 
signatory  shall  prepare  a  brief  summary  of  the  relevant  legislation  in  the  respective 
country for the regulation of the content of, and advertising in, TV and radio broadcasts 
with  a  view  to  improving  the  mutual  understanding,  in  the  spirit  of  Rec.  95  of  the 
Preamble and of Art. 30 AVMSD.99 

- General requirements regarding the implementation of the AVMSD 

Art.  36  AVMSD  stipulates  that  the  Directive  is  addressed  to  the  Member  States.  This 
entails the obligations stemming from Art. 288(3) TFEU, saying that a Directive is binding 
“as to the result to be achieved”, “but shall leave to the national authorities the choice of 
form  and  methods”.  However,  the scope  left to  the  Member  States  may  not  be  used  to 
enact  national  legislation  circumventing  the  spirit  of  the  Directive  or  watering  down  the 
arrangements  made  in  it  in  what  regards  the  desired  outcome:  as  set  out  in  Art. 4(3) 
TEU,  Member  States  “shall  take  any  appropriate  measure,  general  or  particular,  to 
ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts 
of the institutions of the Union”. Both aspects have been highlighted also by Recital 94 of 
the AVMSD. 

The  Directive  itself  requires  Member  States,  among  others,  to  ensure  compliance  by 
media  service  providers  with  the  relevant  provisions:  Art.  2  AVMSD,  establishing  the 
home-state-control principle, in its para. 1, states that a Member State has to 

“ensure that all audiovisual media services transmitted by media service providers under 
its jurisdiction comply with the rules of the system of law applicable to audiovisual media 
services intended for the public in that Member State”; 

and, additionally, Art. 4(6) AVMSD sets a focus on the obligation of the Member States to 
ensure, “within the framework of their legislation” and by appropriate means, that media 
service providers effectively comply with the provisions of the Directive. 

97 

98 

99 

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

46 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
  
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The AVMSD deliberately does not prescribe by which means it must be secured that there 
is compliance. 

This first obligation that Member States had to fulfil relates to the “transposition” of the 
provisions of the Directive into their national legal order. Member States were obliged to 
transpose  the  provisions  of  the  Directive  by  19  December  2009.  Transposition  may  not 
require  the  enacting  of  legislation  that  is  specific  in  the  sense  that  it  covers  per  se  the 
provisions of the Directive. Also, transposition may not in all circumstances, or as regards 
every single rule provided for by the Directive, necessitate the adoption of new legislation 
or  the  amending  of  the  existing  one,  if  and  to  the  extent  that  the  aims  pursued  by  the 
Directive can be achieved by existing national rules. Nevertheless, the rights and duties 
that  stem  from  a  provision  of  the  Directive  must  be  implemented  in  a  clear  manner  so 
that  every  person  concerned  can  take  due  note  of  his/her  entitlements  and  obligations, 
respectively. 

Co-regulation, as referred to in Art. 4(7) and Rec. 44 AVMSD, may be used as a means 
to  transpose  the  provisions  of  the  Directive  as  well.  In  this  case,  for  instance,  the 
Member  State’s  legislation  intended  for  serving  transposition  purposes  may  lay  down 
general  principles,  on  the  one  hand,  and  provide  for  procedures  and  instruments  to 
incorporate self-regulatory regimes into the legal framework, on the other. 

In  order  to  ensure  effective  compliance,  Member  States  are,  secondly,  under  an 
obligation to provide for correct implementation or application. This entails monitoring of 
the media service providers’ actual pursuit of their activities as falling under the scope of 
the Directive. The Member State will enjoy some leeway in respect of how this is secured 
(“appropriate means”). In particular, as long as such systems prove effective, a random-
based  monitoring  of  television  broadcasts  or  of  the  provision  of  on-demand  audiovisual 
media  services  may  be  sufficient.  In  general,  the  same  would  apply  to  a  monitoring 
system based on complaints by the viewers and/or competitors, for instance. 

All  Member  State  authorities  are  obliged  to  ensure  that  a  Directive  is  properly 
implemented  in  national  law,  entailing  the  legislator,  the  administration  and  the 
jurisdictional  branch.  However,  particularly  in  respect  of  broadcasting,  there  is  a  long-
standing  tradition  in  almost  all  Member  States  to  have  specialised  media  authorities  in 
place  which  are  responsible,  as  the  case  may  be,  for  licensing  and  monitoring  the 
providers  of  (television)  broadcasting  or  other  (audiovisual)  media  services.  In  this 
respect,  the  Commission  in  the  past  has  put  some  emphasis  on  a  sufficient  level  of 
staffing and funding of regulatory authorities in the media field.100 

As  regards  sanctioning,  by  referring  to  “appropriate  means”,  the  actual  text  of  the 
Directive  foremost  reflects  on  the  discussion  held  among  the  EC  institutions  when  the 
Directive  was  revised  for  the  first  time  (by  Directive  97/36/EC),  on  the  necessity  to 
prescribe  in  more  detail  what  kind  of  measures  should  be  used  in  order  to  avoid  or, 
where  necessary,  to  prevent  future  infringements  of  the  provisions  of  the  Directive,  as 
implemented in national  law.101 Where an EU directive does not specifically provide any 
penalty  for  an  infringement  or  refers  for  that  purpose  to  national  laws,  regulations  and 
administrative  provisions,  the  Member  States  have  to  take  all  measures  necessary  to 

100 

“Furthermore,  the  Commission  notes  that  Member  States  have  devoted  adequate  resources  to  apply 
national  legislation  implementing  the  Directive  effectively.  Independent  regulatory  authorities  have  been 
established  and  budgets  for  technical  resources  as  well  as  staff  have  been  considerably  increased  where 
they were insufficient.” Fourth Report from the Commission to the Council, the European Parliament, the 
European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  on  the  application  of 
Directive 89/552/EEC “Television without Frontiers”, COM (2002) 778 final, point 2. 

101  Cf. A. Scheuer/T. Ader, Comments on Art. 3 TWFD, in: Castendyk/Dommering/ Scheuer, European Media 

Law, Alphen a/d Rijn 2008, paras 6 et seq., 54 et seq. 

47 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

guarantee the application and effectiveness of EU law. For that purpose, while the choice 
of  penalties  remains  within  their  discretion,  they  must  ensure  in  particular  that 
infringements of European Union law are penalised under conditions, both procedural and 
substantive, which are analogous to those applicable to infringements of national law of a 
similar  nature  and  importance  and  which,  in  any  event,  make  the  penalty  effective, 
proportionate and deterrent.102 With regard to labour law for instance, the Court has held 
that  where  a  Member  State  chooses  to  penalise  the  breach  of  the  prohibition  on 
discrimination  by  the  award  of  compensation,  that  compensation  must  in  any  event  be 
adequate  in  relation  to  the  damage  sustained  and  have  a  deterrent  effect. 103  Thus,  the 
Member States are in principle free in respect of the choice of the particular sanction.104 
In  this  context  they  can  choose  penal,  administrative  and  other  sanctions  according  to 
criminal and civil law, or a combination of them. 

Where  recourse  to  co-regulation  is  made,  it  follows  from  the  AVMSD,  but  also  from 
primary  European  Union  law,  that  the  Member  State  remains  responsible  for  the 
achievement  of  the  results  of  the  Directive.  Therefore,  independent  regulatory  bodies 
must be vested with instruments to oversee the actual performance of the self-regulatory 
component of the co-regulatory system, and be able to intervene where necessary. This 
is  to  be  derived  particularly  from  Art.  4(7)  AVMSD:  the  regime  has  to  provide  for 
effective  enforcement.  One  could  argue  that  this  requirement  has  to  be  regarded  as 
being  redundant,  as  the  obligation  to  secure  effective  compliance  as  such  is  already 
stipulated  in  Art.  4(6)  AVMSD,  and  can  also  be  derived  from  primary  EU  law.  Still, 
Art. 4(7) AVMSD could have an effect beyond Art. 4(6) AVMSD insofar as it requires the 
regime itself to provide for effective enforcement. This leads to the question of whether 
modifications of the already existing co-regulatory regimes in some Member States would 
be  required.  As  the  study  on  co-regulation  measures  in  the  media  sector105  has  shown, 
co-regulatory regimes ‘often’ provide for a sanctioning system106, in other words, not all 
of  the  investigated  regimes  do.  Other  parameters  for  effectiveness  will  include  in 
particular: incentives for participation; transparency; safeguarding of process objectives; 
openness  to  all  relevant  stakeholders;  broad  acceptance  by  stakeholders  and  society 
(necessitating  complaint  mechanisms  and  awareness  campaigns);  effective  means  of 
enforcement  of  the  co-regulatory  rules;  as  well  as  a  regular  evaluation  of  the  system 
together with ‘patience’. Also a ‘legal back-stop’ is necessary; this is referred to by Rec. 
44  as  a  Member  State’s  possibility  to  intervene,  should  the  objectives  of  the  co­
regulatory regime not be met.107 

Article  33  of  the  AVMSD  invites  the  Commission  to  submit  regularly  a  report  on  the 
application  of  the  Directive  to  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee. On 7 May 2012, the European Commission presented its 
first  report  on  the  application  of  the  Audiovisual  Media  Services  Directive108,  that 

102  ECJ,  Case  68/88,  Commission  v.  Greece,  [1989]  ECR  2965,  para.  23  et  seq.;  Case  C-7/90,  Paul 
Vandevenne, [1991] ECR I-4371, para. 11; Case C-382/92, Commission v. United Kingdom, [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 in the Media Sector, 2006, pp. 160 et seq.; available at: 
http://ec.europa.eu/avpolicy/docs/library/studies/coregul/coregul-final-report_en.pdf. 

103  ECJ, Case 14/83, von Colson and Kamann, [1984] ECR, 1891, para. 23 et seq. 
104 

Ibid., para. 14. 

105   Hans-Bredow-Institut/Institut für Europäisches Medienrecht (EMR), op.cit. 
106 

T.  Kleist/A.  Scheuer,  “Neue  Regelungen  für  audiovisuelle  Mediendienste  –  Vorschriften  zu  Werbung  und 
Jugendschutz und ihre Anwendung in den Mitgliedstaaten”, [2006] MMR 206. 

107  A.  Scheuer/T.  Ader,  Comments  on  Art.  3  AVMSD,  in:  Castendyk/Dommering/  Scheuer,  European  Media 

108 

Law, op. cit., p. 863. 
First  Report  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and 
Social  Committee  and  the  Committee  of  the  Regions  on  the  application  of  Directive  2010/13/EU 
"Audiovisual  Media  Services  Directive"  -  Audiovisual  Media  Services  and  Connected  Devices:  Past  and 
Future Perspectives [2012], available at: 

48 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
  
 
 
 
 
 
 
 
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

essentially covers the period 2009-2010 (with some observations being included on more 
recent developments). 

1.3.1.3.3.	 

The CFREU and its impact on national media law, particularly safeguards 
for the media and the citizens’ right of information 

The  protection  of  fundamental  rights  has  become  even  more  important  for  the  EU,  as 
demonstrated  by  the  EU  fundamental  rights  charter  (CFREU),  and  the  upcoming 
accession  to  the  European  Convention  on  Human  Rights  (ECHR).  The  freedom  of 
expression, including the freedom to receive and impart information, is the fundamental 
pillar of democracy. 

  Legal actions taken and policy initiatives adopted in the present field 

The  fundamental  rights  situation  in  a  considerable  number  of  Member  States  is  an 
increasing  cause  for  concern.  Besides  EU  organs,  organisations  like  the  Council  of 
Europe,  the  OSCE  and  various  NGOs  have  highlighted  serious  problems  with  regard  to 
media freedom, such as overt political influence, disproportionate sanctions on journalists 
or  deficient  protection  of  journalistic  sources  (as  in  Hungary),  and  media  concentration 
(as in Italy). Different initiatives have been taken to date: 

The European Parliament had taken position, already in 2004, in the case of Italy109 and 
requested  transparency  of  ownership  in  the  media,  in  particular  in  relation  to  cross-
border  ownership,  and  for  the  publication  of  information  on  significant  interests  in  the 
media, inter alia under Article 11(2) of the Charter. Parliament “considers that where the 
Member States fail, either because they are not able, or are not willing, to take adequate 
measures, the EU has a political, moral and legal obligation to ensure within its fields of 
competence that the rights of EU citizens to a free and pluralist media are respected, in 
particular, due to the lack of recourse of the Community courts by individuals in the case 
of an absence of pluralism in the media”. 

In  order  to  make  the  Charter  effective  for  citizens  and  to  ensure  its  respect  by  all 
authorities in the Member States, the European Commission has taken various steps, to 
promote  its  implementation,  by  adopting  the  Charter  Strategy110  and  preparing  annual 
reports111. 

For  enforcing  the  fundamental  rights,  the  Commission  declares  to  be  guided  by  the 
principle of prevention – by reminding in appropriate cases to the authorities responsible 
for  transposing  legislation  of  the  obligation  to  also  comply  with  the  Charter  in 
implementing  the  legislation  –  and  in  the  case  of  infringements  procedures  –  where  a 
Member  State  does  not  respect  fundamental  rights  when  implementing  Union  law,  the 
Commission, as guardian of the Treaties, has powers of  its own to try to put an end to 
the infringement and may, if necessary, take the matter to the Court of Justice.

109	 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0203:FIN:EN:HTML. 
European  Parliament  resolution  on  the  risks  of  violation,  in  the  EU  and  especially  in  Italy,  of  freedom  of 
expression and information (2003/2237(INI)), 22 April 2004 available at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P5-TA-2004­
0373+0+DOC+XML+V0//EN. 

110	  Commission  Communication:  Strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental 

111	 

Rights by the European Union, COM(2010) 573 final, available at:
http://ec.europa.eu/justice/news/intro/doc/com_2010_573_en.pdf. 
2011 Report on the Application of  the EU  Charter of  Fundamental Rights, COM(2012) 169 final available 
at: http://ec.europa.eu/justice/fundamental-rights/files/2011-report-fundamental-rights_en.pdf. 

49 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
  
 
 
  
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The Commission paid particular attention, in 2011 and 2012, to the developments related 
to the new Hungarian Constitution and its implementation, to the extent that it raises EU 
law issues. A number of concerns have been expressed relating to other provisions of the 
media law. In this respect, the current Media Law included rules on media authorisation 
and registration. The provisions of the law applying to on-demand media services, press 
products  and  ancillary  media  services  could  have  implied  that  they  were  required  to 
register before being allowed to provide services in Hungary and thus to become subject 
to an authorisation scheme. These provisions could have created an unjustified restriction of 
the  Treaty  rules  on  freedom  of  establishment.  With  regard  to  the  “country  of  origin” 
aspect,  the  power  to  impose  fines  on  non-resident  audiovisual  media  providers,  as 
foreseen by the Media Law, risked being disproportionate, in particular as it could target 
media  operators  established  in  other  Member  States  that  would  be  in  compliance  with 
their own national rules, and thus infringe on the country-of-origin principle. 

Following  the  Commission's  intervention  on  the  Hungarian  media  law,  the  Hungarian 
government  agreed  to  amend  its  national  media  law  so  that  it  should  comply  with 
substantive EU law. 

Playing  a  key  role  in  promoting  the  rights  and  freedoms  enshrined  in  the  Charter,  the 
European Parliament also paid particular attention to the situation in Hungary in respect 
of media freedom and pluralism, as well as in relation to the new Hungarian Constitution 
and its implementation. Therefore, in the text of its resolution112 from March 2011 on this 
matter, Parliament calls on the Commission to act, “with a view to defining at least the 
minimum essential standards that all Member States must meet and respect in national 
legislation  in  order  to  ensure,  guarantee  and  promote  freedom  of  information  and  an 
adequate  level  of  media  pluralism  and  independent  media  governance”.  At  the  same 
time,  Parliament  “calls  on  the  Hungarian  authorities  to  restore  the  independence  of 
media governance and halt state interference with freedom of expression and ‘balanced 
coverage’,  and  believes  that  over-regulation  of  the  media  is  counterproductive, 
jeopardising effective pluralism in the public sphere”. 

Furthermore, Parliament adopted, on 16 February 2012, another resolution113, calling on 
the  Hungarian  government  to  comply  with  the  recommendations,  objections  and 
demands  of  the  Commission,  the  Council  of  Europe  and  the  Venice  Commission  and 
calling on the Commission, the guardian of the Treaties, to monitor closely the possible 
amendments  and  the  implementation  of  the  said  laws  and  their  compliance  with  the 
letter  and  spirit  of  the  European  treaties.  When  acting  as  co-legislator,  it  stressed  the 
fundamental rights dimension of new proposals for EU law. 

The  ECJ  has  always  played  a  significant  role  in  European  integration,  its  importance  is 
bound  to  increase  further  as  the  European  Union  enlarges  and  the  constitutionalization 
process  continues.  The  expansion of  the EU’s activities  and  competencies  has  given  the 
ECJ a human rights dimension in areas also covered by the ECHR. 

In  two  recent  cases,  concerning  similar  issues,  the  Court  considered  a  requirement  for 
general filtering systems to be installed for the prevention of copyright infringements to 
be  disproportionate.  In  both  cases,  the  implementation  of  a  general  filtering  system 

112  European Parliament resolution of 10 March 2011 on media law in Hungary available at:  

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011­
0094+0+DOC+XML+V0//EN. 

113  European  Parliament  resolution  of  16  February  2012  on  the  recent  political  developments  in  Hungary 

(2012/2511(RSP)) available at:
ttp://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2012­
0053%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

would  have  implied  Scarlet  (an  internet  service  provider)  and  Netlog  (an  online  social-
network  provider)  to  perform  an  active  monitoring  of  the  files  stored  or  exchanged  by 
their  users  on  their  networks  in  view  of  identifying  where  protected  works  were  shared 
and  to  determine  whether  this  sharing  was  presumably  done  unlawfully,  with  the 
ultimate goal of taking-down or blocking such files. General filtering systems intended to 
protect  copyright  challenge  several  fundamental  rights  protected  under  the  Charter  of 
Fundamental  Rights  of  the  European  Union.  In  the  Scarlet  case114,  the  Court  ruled  that 
the  intended  general  filtering  system  was  disproportionate,  i.e.  it  did  not  respect  the 
requirement that a fair balance be struck between the different interests at stake. In the 
Netlog115  case,  the  Court  acknowledges  that,  first,  it  would  affect  Netlog’s  freedom  to 
conduct its business as it would require Netlog to install a complicated, costly, permanent 
computer  system  at  its  own  expense.  Second,  it  would  affect  users’  right  to  the 
protection of their personal data as it would involve the identification, systematic analysis 
and processing of information connected with the profiles created on the social network. 

Finally, such a system would put at risk the freedom of information, i.e. the freedom to 
receive  or  impart  information,  as  the  system  might  not  have  been  always  able  to 
distinguish  between  unlawful  content  and  lawful  content,  eventually  blocking  lawful 
communications. The Court recalls therefore that, in the context of measures adopted to 
protect  copyright  holders,  national  authorities  and  courts  must  strike  a  fair  balance 
between  the  protection  of  copyright  and  the  protection  of  the  fundamental  rights  of 
individuals who are affected by such measures.  

  Significance of the Charter for national media policies: the state of debate 

The upholding of fundamental rights by Member States when they implement Union law 
is in the common interest of all the Member States because it is essential to the mutual 
confidence  necessary  for  the  operation  of  the  Union.  The  Charter  does  not  claim  a 
universal  binding  effect  in  the  sense  that  any  action  of  the  Member  States  would  be 
measured against the EU warranties. This does not mean, however, that there is a legal 
vacuum beyond the Charter’s explicit and foremost scope vis-à-vis the institutions of the 
EU, because, according to Art. 2 TEU the Member States, are bound to the “respect for 
human rights”. (Enforcement of this obligation is subject to political decisions, as Art. 7 
TEU stipulates.) 

Mainly  the  bodies  and  institutions  of  the  EU  have  to  respect  the  CFREU’s  fundamental 
rights,  guarantees  and  freedoms.  For  the  Member  States,  according  to  Art.  51  para.  1 
CFREU, the Charter provisions apply “only when they are implementing Union law”. And 
this, from a material and legal point of view, presents the gist of the matter. Execution of 
Union law is present, insofar as the acts of the Member States are governed by European 
Union law (e.g. a Regulation, a Decision in a State aid case), or at least have to remain 
guided  by 
is  no  doubt  that  one  essential  case  which  represents 
“implementation”  is  the  transposition,  application  and  enforcement  of  secondary 
legislation, such as the AVMSD. But beyond these clear-cut instances? 

it.  There 

In  the  ERT  case,  the  ECJ  held  that  human  rights  apply  also  in  a  situation  where  a 
Member  State  adopts  exclusive  rights  relating  to  television  broadcasting  which  might at 
the same time affect the freedom to provide services. While the Member State would have 
to justify the ensuing restrictions on the fundamental freedom; any such justification must 
be assessed “in the light of the general principles of law and in particular of fundamental 

114	 

ECJ,  Case  C-70/10,  Scarlet  Extended  SA  v.  Société  belge  des  auteurs,  compositeurs  et  éditeurs  SCRL 
(SABAM), [2011], nyr. 

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rights”116.  (At  that  time,  in  contrast  to  the  current  situation  after  the  Lisbon  Treaty, 
fundamental rights protection, as derived from the ECHR and the national constitutional 
systems,  was  regarded  as  belonging  to  the  “general  principles  of  law”,  implying  a 
different rank in the EU legal system.) More precisely, under the provisions of the EEC-
Treaty  in  Art.  59  national  rules  were  found  by  the  ECJ  to  be  prohibited  “which  create  a 
monopoly  comprising  exclusive  rights  to  transmit  the  broadcasts  of  the  holder  of  the 
monopoly  and  to  retransmit  broadcasts  from  other  Member  States,  where  such  a 
monopoly  gives  rise  to  discriminatory  effects  to  the  detriment  of  broadcasts  from  other 
Member States, unless those rules are justified on one of the grounds indicated in Article 
56  of  the  Treaty,  to  which  Article  66  thereof  refers”.  A  fair  balance  between  the 
(exclusive)  rights  in  the  field  of  radio  and  television  broadcasting  and  the  freedom  to 
provide services must be struck; therefore, the limitations imposed on the power of the 
Member States to apply the provisions referred to in Articles 66 and 56 of the Treaty on 
grounds of public policy, public security and public health must be appraised in the light 
of the general principle of freedom of expression embodied in Article 10 of the European 
Convention on Human Rights. 

The Court emphasized that (assessment of) the measure's legality is ultimately governed 
by  Union  law.  The  compatibility  of  the  Member  State's  action  with  Union  law  cannot  be 
verified  by  national  courts.  Rather,  it  is  for  the  ECJ  to  make  sure  that  the  Union  legal 
order  is  properly  applied  in  the  Member  States  for  action  falling  within  Union 
competence.  Accordingly,  also  in  these  cases  of  Member  State  action  the  determination 
of substantive legality and final judicial authority is vested with the Union. 

In  the  explanations  of  the  Presidium  to  the  EU  Charter  of  Fundamental  Rights117,  this 
case is cited as an example of the ‘implementation of Union law’ by the Member States. 
The  case  has  been  elaborated  upon  for  the  purpose  of  identifying  the  applicable  law 
(national law or Union law) and the appropriate forum (national or Union courts). 

  Possible implications and aspects possibly to be added to the debate 

For present purposes, suffice it here to underline that generally speaking Member States’ 
measures  which  have  a  bearing  on  the  fundamental  freedoms,  e.g.  the  freedom  of 
establishment  or  the  freedom  to  provide  or  receive  services,  are  not per  se  outside  the 
scope  of  control  of  the  EU  institutions,  having  the  CFREU  as  one  (central)  yardstick  of 
assessment.  Any  other  approach  would  have  to  face  substantial  criticism  because  it 
would  appear  to  neglect  the  fact  that  the  fundamental  freedoms  are  directly  applicable 
and rank superior to “secondary legislation”.  

Therefore,  the  discussion  should  be  brought  one  step  further,  analysing  more  precisely 
under  what  circumstances  the  fundamental  freedoms  “build  the  bridge”  to  the 
“implementation of Union law”, which in its turn “activates” the safeguard of the CFREU 
guarantees.  In  this  vein,  it  appears  safe  to  argue  that  steps  taken  by  the  competent 
national  authorities  in  respect  of  an  ECJ  judgment  –  interpreting  the  scope  of  the 
fundamental freedoms and declaring e.g. that these would oppose the contested national 
measures  –  would  represent  a  situation  of  “implementation”.  Where  this  holds  certainly 
true, does it then make a difference whether a judgment by the Court is delivered on a 
certain  issue  –  or  not?  One  might  argue  with  the  considerations  frequently  brought 

115	 

116	 

117	 

ECJ,  Case  C-360/10,  Société  belge  des  auteurs,  compositeurs  et  éditeurs  SCRL  (SABAM)  v.  Netlog  NV, 
[2012] nyr. 
ECJ, Case C–260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v 
Dimotiki  Etairia  Pliroforissis  and  Sotirios  Kouvelas  and  Nicolaos  Avdellas  and  others  [1991]  ECR  I–2925, 
paras. 42 et seq. 
Explanations by the Presidium relating to the EU Charter of Fundamental Rights, OJ (2007) C 303/32. 

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forward by the ECJ that its judgments in such situations are not of a constitutive nature, 
but  rather  provide  clarification  on  the  “compatability”  of  national  measures  with  Union 
law  (cf.  the  ECJ’s  constant  jurisprudence  on  Member  States’  requests  to  declare,  as  an 
exception  (sic!),  the  effects  of  a  judgment to  become  operational  only  after  the  date  of 
handing-down its decision).  

Therefore,  it  may  be  deducted  in  line  with  the  principle  of  direct  applicability  of  the 
fundamental freedoms, where Member States adopt measures which come into the scope 
of application of these freedoms, they are bound by the CFREU. If one follows this line of 
reasoning,  and  bearing  in  mind  the  far-reaching  scope  of  the  freedom  of  establishment 
and of the freedom to provide and receive services (the threshold for the presence of a 
transfrontier  element  to  be  affirmed  not  being  very  high),  it  appears  that  there  is  a 
broader  range  of  elements  of  national  media  orders  which  lend  themselves  to  being 
tested  against  the  CFREU,  in  particular  its  Art.  11.  While  more  in-depth  analysis  of  this 
strand of arguments would definitively be needed, it could at least prove fundamental for 
enriching a more political debate as is held at present. 

  Importance of the Charter for European Union legislation and policy 

Furthermore, the aspect of to what extent the European Union itself is entitled, or even 
being called upon, to act in the field of media law – going further than the current state 
of “Europeanization” - seems worth some consideration. For instance, if Art. 11 CFREU is 
accorded  the  same  meaning  as  Art.  10  ECHR  and  if,  as  will  be  shown  infra,  the  ECtHR 
sees  the  Member  States  (as  the  current  parties  to  the  Convention)  as  “ultimate 
guarantor” of media pluralism, having the obligation to ensure its safeguard through the 
adoption of positive measures, does not then the same level of commitment is  imposed 
on the EU? At the latest when the EU acceeds to the ECHR, is this not another important 
legal argument in order to consider the necessity for action? And, even before such step 
being  finally  taken,  the  accession  of  the  EU  and  its  Member  States  to  the  UNESCO 
Convention  on  the  Diversity  of  Cultural  Expressions,  since  it  also  has  an  impact  on 
internal  policies  (as  the  other  side  of  the  medal,  i.e.  besides  the  external,  more  trade-
related aspect), could be regarded as imposing such an obligation. 

Finally,  it  seems  important  to  bear  in  mind  that  the  EU  has  assumed  competence  to 
regulate the right of reply. According to the European Commission, in the arguments put 
forward  against  some  regulations  of  the  then  new  Hungarian  Media  Laws,  the  scope  of 
harmonisation reached through introducing and defining the concept in an EU directive is 
broad. This approach may find a considerable amout of foundation in the ECJ judgment 
in the case Roj TV and Mesopotamia Broadcast vs. Germany of September 2011. Suffice 
it  here  to  note  that  the  concept  of  the  right  of  reply  did  not  appear  at  first  sight  -  as 
demonstrated  by  the  Commission’s  Green  Paper  on  Televisions  without  Frontiers  which 
prepared  for  the  TWFD,  the  predecessor  of  the  AVMSD  –  to  bear  an  obvious  link  to 
Internal Market issues; still it has been regulated in the Directive and gives proof of the 
competence  of  the  EU  to  enact  harmonising  provisions  on  matters  that  are  essential  to 
the freedom of the media, but generally perceived to be governed in the first place, when 
regulated  upon  at  national  level,  by  Art.  10  ECHR  and  the  related  jurisprudence  of  the 
ECtHR. 

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1.3.2.	 

Council of Europe – Article 10 ECHR and Subsequent Conventions / 
Recommendations 

In  the  following,  the  Council  of  Europe  standards,  particular  stemming  from  Art.  10 
European Convention on Human Rights118 (ECHR), are to be examined. This should serve 
as  a  benchmark  for  the  freedom  of  the  media  in  all  European  States  that  have  ratified 
the Convention, in particular the EU Member States. 

Art. 10 ECHR reads as follows: 

“1.  Everyone has the right to freedom of expression. This right shall include freedom to 
hold  opinions  and  to  receive  and  impart  information  and  ideas  without  interference 
by  public  authority  and  regardless  of  frontiers.  This  article  shall  not  prevent  States 
from requiring the licensing of broadcasting, television or cinema enterprises. 

2.  	 The  exercise  of  these  freedoms,  since  it  carries  with  it  duties  and  responsibilities, 
may  be  subject  to  such  formalities,  conditions,  restrictions  or  penalties  as  are 
prescribed  by  law  and  are  necessary  in  a  democratic  society,  in  the  interests  of 
national  security,  territorial  integrity  or  public  safety,  for  the  prevention  of  disorder 
or crime, for the protection of health or morals, for the protection of the reputation 
or  the  rights  of  others,  for  preventing  the  disclosure  of  information  received  in 
confidence, or for maintaining the authority and impartiality of the judiciary.” 

The European Court of Human Rights (ECtHR) has shaped, in its numerous decisions on 
the  present  subject  matter,  basic  principles  and  requirements  with  regard  to  Art.  10 
ECHR,  which  widely  influence  today’s  European  media  landscape.  The  ECtHR  refers  in 
various decisions to different Conventions of the Council of Europe and Recommendations 
passed by the Committee of Ministers addressing the media. Therefore, reference is also 
made to the relevant Conventions and Recommendations. 

1.3.2.1.	  Legal Background to the Convention 

According to the Statute of the Council of Europe119 it is not a condition for membership 
in  the  Council  that  the  respective  state  ratifies  the  ECHR.  Nevertheless,  all  current 
Member  States  of  the  Council  of  Europe  (47)  are  also  Contracting  States  to  the  ECHR. 
Still,  ratification  of  the  ECHR  in  principle  requires  membership  in  the  Council  of  Europe 
(Art. 59 (1) ECHR). 

The  ECHR  is  only  binding  for  the  Contracting  States.  It  needs  to  be  converted  into 
national  law  to  be  valid;  the  way  how  the  conversion  of  international  treaties  into  the 
internal national law takes place can be specified by the states. 

A  fundamental  characteristic  is  that  just  the  (initial)  Convention  itself  is  binding  for  the 
states. Additional protocols are obligatory only for those states which have ratified them. 
Consequently,  the  range  of  protection  concerning  the  particular  guarantees  in  the 
Convention  may  differ  in  the  respective  states.120  Besides,  Contracting  States  have  the 
possibility of making reservations in respect of any particular provision in the Convention 
when signing it (Art. 57(1) ECHR). 

118	  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms  of  4  November  1950,  as 
amended by its Protocol No. 14 (CETS No. 194) as from the date of its entry into force on 1 June 2010. 

119  Statute of the Council of Europe of 5 May 1949, available at: http://www.conventions.coe.int/. 
120  C. Grabenwarter, Europäische Menschenrechtskonvention, Munich 2009, § 2 rec. 4. 

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According to Art. 1 ECHR, 

“[T]he  High  Contracting  Parties  shall  secure  to  everyone  within  their  jurisdiction  the 
rights and freedoms defined in Section I of this Convention.” 

Thus,  regardless  of  nationality,  the  legal  protection  of  a  person  just  depends  on  being 
affected by the sovereignty of a contracting state, whereas the latter can only be referred 
to the Court of Human Rights for violations of the ECHR as a Member State. 

The European Union has not yet ratified the  ECHR. However, Art. 6(2) of the Treaty on 
the European Union (TEU) now foresees the possibility for the EU to become a member of 
the ECHR by signing this international treaty. Additionally, Article 6(3) TEU declares that 
the fundamental rights as they are guaranteed by the ECHR are part of the Union Law as 
“general  principles”.  Correspondingly,  Protocol  No.  14  to  the  ECHR,  which  entered  into 
force on 1 June 2010121, in its Art. 17 amended Art. 59 ECHR, which now states that “the 
European Union may accede to the Convention”. It could be expected that the EU will do 
so  in  the  near  future.  A  draft  accession  agreement,  elaborated  by  the  Steering 
Committee for Human Rights (CDDH)122, has now been transmitted to the Committee of 
Ministers of the Council of Europe, with further negotiations ongoing. The EU will accede 
to  the  ECHR  once  the  accession  agreement  has  entered  into  force,  which  requires  the 
ratification by all 47 states parties to the ECHR as well as the EU itself. 

Besides,  there  is  the  question  of  the  relationship  between  the  range  of  the  protection 
provided by the ECHR, on the one hand, and by the national constitutions, on the other 
hand. The Convention has the function to guarantee a “minimum standard” of protection. 
Therefore, the states are free to provide their citizens with more comprehensive, detailed 
and/or  additional  rights  than  the  Convention  itself  does.  However,  the  states  must  not 
fall short of the level of protection as afforded by the Convention (Art. 57 ECHR). 

The Convention ranks on the level of national constitution law in Austria, while in Ireland, 
Italy and the United Kingdom it has a “constitutional status”, thus national legislation has 
to  be  in  compliance  with  it.  In  other  Member  States  it  ranks  under  the  Constitution, 
however, it outranks ordinary, simple-majority legislation, as for example in Romania.123 

Particularly after the drastic changes of the political systems in the Central European and 
Eastern European States, the ECHR as well as the jurisdiction of the ECtHR have shown 
to have – and continue to have –  a special significance as both could serve as  a model 
for  the  construction  of  a  new  (legal)  system  with  a  European  direction  and  standard  in 
those countries.124 

The  examination  by  the  ECtHR  as  to  whether  there  is  a  violation  of  the  Convention  is 
carried out in three stages. Firstly, the Court inspects whether the scope of protection of 
an  article  of  the  Convention  is  affected.  Secondly,  it  examines  whether  there  is  a 
measure that interferes with a legally protected position of a person. Thirdly, it assesses 
whether this restriction can be justified. According to Art. 10 ECHR, the interference shall 

121 

122 

Protocol  No.  14  to  the  Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms, 
amending the control system of the Convention, Strasbourg, 13 May 2004. 
Final  version  of  the  draft  legal  instruments  on  the  Accession  of  the  European  Union  to  the  European 
Convention on Human Rights (19 July 2011), available at:
http://www.coe.int/t/dghl/standardsetting/hrpolicy/CDDH-UE/CDDH-UE_documents/ 
CDDH-UE_2011_16_final_en.pdf. 

123  See  Art.  134  of  the  constitution  of  the  Republic  of  Croatia,  21  December  1990,  and  Art.  20(2)  of  the 

constitution of Romania. 

124  Cf. Grabenwarter, op. cit., § 3, rec. 10. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

be  prescribed  by  law  and  pursue  a  legitimate  aim,  whereas  the  interference  has  to  be 
proportionate to the significance and the value of the aim pursued. 

1.3.2.2.  The scope of protection 

Art.  10  ECHR,  first  of  all,  according  to  para.  1  protects  “the  right  to  freedom  of 
expression”. In respect to this fundamental right the ECtHR ruled in its “Handyside case” 
that the 

“[f]reedom  of  expression  constitutes  one  of  the  essential  foundations  of  a  democratic 
society,  one  of  the  basic  conditions  for  its  progress  and  for  the  development  of  every 
man.”125 

However,  Art.  10  ECHR  has  a  much  wider  scope,  because  not  only  the  “freedom  of 
communication”, but the entire communication process is covered. This includes at least 
six  sub-areas:  the  freedom  of  expression  and  of  information,  the  freedom  of  the  press 
and of broadcasting, and the freedom of art and of science. 

As  there  are  several  forms  of  communication,  it  could  be  said  that  the  freedom  of 
expression is the basis of the protection of the freedom of communication. A reading of 
the  jurisprudence  of  the  ECtHR  shows  that  it  is  difficult  to  distinguish  between  the 
respective rights, especially the freedom of expression and the freedom of the press. For 
example,  journalists  who  make  statements  may  be  protected  by  the  freedom  of 
expression, as in the majority of the cases this right is concerned, or by the freedom of 
broadcasting or of the press. 

Therefore,  in  some  instances  the  protection  of  all  rights  covered  by  Art.  10  ECHR  may 
merge  and  would  have  to  be  seen  as  complementing  each  other.  In  the  following, 
different areas of the scope of protection applying to all the media are to be examined. 

1.3.2.2.1. 

Value judgments and statements of fact 

An opinion can be expressed by giving a value judgment and/or a statement of fact. 

The ECtHR points out that: 

“the existence of facts can be demonstrated whereas the truth of value judgments is not 
susceptible of proof.”126 

It determines that a careful distinction needs to be made between value judgments and 
statements of fact, whereas the dividing line cannot be defined precisely. 

In any case, value judgments have a descriptive element and include judgmental parts. 
In  a  democratic  society  they  do  not  have  to  be  proved  –  especially  by  journalists. 
Otherwise, 

“it infringes freedom of opinion itself, which is a fundamental part of the right secured by 
Article 10 of the Convention.”127 

However, it is necessary that judgments are adequately grounded on a sufficient factual 
basis which has to be proved itself; otherwise an interference could be proportionate.128 

125  Handyside v. the U.K., judgment of 7 December 1976, Appl. 5493/72, § 49. 
126 

Lingens v. Austria, judgment of 8 July 1986, Appl. 9815/82, § 46. 
Lingens v. Austria, op. cit., § 46. 

127 

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Journalists  are  principally  obliged  to  verify  factual  statements.  But  even  if  their 
statements  are  defamatory  of  private  individuals,  they  might  be  dispensed  from  this 
obligation.  The  exercise  of  the  freedom  of  expression  carries  with  it  “duties  and 
responsibilities”,  which  also  apply  to  the  media  even  with  respect  to  matters  of  serious 
public  concern.  They  are  to  be  taken  into  consideration  specifically  when  the  reputation 
of  a  named  individual  is  attacked  and  thus  the  “rights  of  others”  are  interfered  with. 
Therefore,  special  reasons  are  required  before  the  media  can  be  dispensed  from  their 
obligation  to  verify  factual  statements  that  are  defamatory  of  private  individuals. 
Whether  such  grounds  exist,  depends  in  particular  on  the  nature  and  degree  of  the 
defamation  in  question  and  the  extent  to  which  the  media  can  reasonably  regard  their 
sources as reliable with respect to the allegations.129 Thus, it has to be decided based on 
a weighing of interests in the given case. 

According to the ECtHR in the Bladet Tromsø and Stensaas judgment130, the press should 
normally  be  entitled  to  rely  on  the  contents  of  official  reports  and  their  correctness 
without having to undertake independent research. Otherwise, the vital public watchdog 
role of the press may be undermined.131 

It has to be noted that the Court also decided that it is in principle not incompatible with 
Art. 10 ECHR to place on a defendant in libel proceedings the onus of proving to the civil 
standard the truth of defamatory statements. 

Nevertheless, it is essential, 

“in  order  to  safeguard  the  countervailing  interests  in  free  expression  and  open  debate, 
that a measure of procedural fairness and equality of arms is provided for.”132 

There are also case configurations conceivable in which a proper value judgment has to 
be  handled  as  a  factual  judgment.  Where  criminal  accusations  are  concerned,  a  claim 
implying  a  negative  value  judgment  includes  a  precise  descriptive  element  and  is 
therefore more likely to be of factual nature, and needs to be proved.133 

Both,  value  judgments  and  statements  of  fact,  are  protected  entirely  and  without 
limitations by Art. 10 ECHR. 

Additionally,  the  case  law  of  the  ECtHR  shows  that,  besides  certain forms  of  expression 
and types of information, Article 10 also applies to information of a commercial nature.134 

1.3.2.2.2. 

Critical statements 

Criticism  on  state  institutions  or  private  persons  are  statements  that  are  particularly 
suitable  for  affecting  the  legal  sphere  of  other  people  or  legal  assets  protected  by  the 
ECHR, such as the reputation or the authority and impartiality of the judiciary. 

128	 

129	 

Jerusalem v. Austria, judgment of 27 February 2001, Appl. 26958/95, §§ 42 and 43. 
Tønsbergs Blad AS and Haukom v. Norway, judgment of 1 March 2007, Appl. 510/04, § 89. 

130	  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. 

131	  Goodwin v. the U.K., judgment of 27 March 1996, Appl. 17488/90, § 39. 
132	  Steel and Morris v. UK, judgment of 15 February 2005, Appl. 68416/01, § 95. 
133	  Dommering, Comments on Art. 10 ECHR, in: Castendyk/Dommering/Scheuer, European Media Law, p. 55, 

para. 35. 

134	  Markt  intern  Verlag  GmbH  and  Klaus  Beermann  v.  Germany,  judgment  of  20  November  1989,  Appl. 

10572/83, § 26; Casado Coca v. Spain, judgment of 24 February 1994, Appl. 15450/89, § 37. 

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But the protection by Art. 10 of such statements is not limited to positive or “harmless” 
criticism or inoffensive statements the particular receiver may want to receive. The Court 
often reiterates that 

“it  is  applicable  not  only  to  information  and  ideas  that  are  favourably  received  or 
regarded  as  inoffensive  or  as  a  matter  of  indifference,  but  also  to  those  that  offend, 
shock  or  disturb;  such  are 
tolerance  and 
the  demands  of 
broadmindedness without which there is no democratic society.”135 

that  pluralism, 

A speaker, however, is obliged to choose his words with caution. If he might have been 
able  to  voice  his  criticism  and  to  contribute  to  a  free  public  debate  without  having  had 
recourse to a particular defamatory word which explicitly referred to a criminal offence a 
conviction based on this statement would not be a violation of Art. 10 ECHR.136 

Criticism,  especially  conducted  by  journalists,  is  necessary  in  (and  for)  a  democratic 
society  in  order  to  support  political  and  social  development.  Therefore,  freedom  of 
expression gives the public the singular opportunity to receive information and thereafter 
to  form  their  own  opinions,  so  it  is  an  integral  attribute  of  a  democratic  society.  A 
conviction of a journalist in relation to distributing information of public interest may well 
deter  one  from  contributing  to  public  discussion  of  issues  affecting  the  life  of  the 
community and discourage one from making criticisms in future. It can amount to a kind 
of censorship and hinder the public opinion-forming process.137 

Journalists can also refer to Art. 10 ECHR, even if they excoriate, exaggerate or provoke 
or if they make polemical statements.138 

Nevertheless,  the  Court  underlines  that  several  rules  are  to  be  followed  to  assure  a 
minimum  level  in  the  particular  debate.  Insults,  denigrations,  slander  or  gratuitous 
personal  attacks  could  not  enjoy  general,  unlimited  protection  under  the  Convention. 
Such statements cannot support a democracy and therefore must not be tolerated. 

1.3.2.2.3. 

Criticism of the judiciary 

Concerning matters of public interest the ECtHR sees the functioning of the judiciary as 
such  a  relevant  matter  because  of  the  fundamental  role  of  the  courts  as  guarantors  of 
justice  in  a  state  based  on  the  rule  of  law,  whereas  the  protection  of  the  authority  and 
impartiality of the judiciary is a legitimate aim mentioned in Art. 10. The respect for the 
judiciary  is  also  required  by  the  Recommendation  No.  R  (94)  “on  the  independence, 
efficiency and role of judges”.139 

Public confidence plays an essential role for the courts so that they have to be protected 
from  distorting  and  unfounded  criticism.  Attention  has  to  be  paid  to  the  special  role  of 
the media that allows even an aggressive or harsh tone. Consequently, published articles 
reporting  about  decisions  of  judges,  the  judges  themselves  or  pending  trials  cannot  be 
judicially attacked successfully in certain circumstances – especially, if there was detailed 
research and supporting opinions of experts etc. underlying the publications.140 

135  Handyside v. the U.K., op. cit., § 49. 
136  Constantinescu  v.  Romania, 

judgment  of  27 

§ 75. 

June  2000,  Appl.  28871/95,  §  74  and 

137  Monnat v. Switzerland, judgment of 21 September 2006, Appl. 73604/01, § 70. 
138  Renaud v. France, Judgment of 25 February 2010, Appl.13290/07, § 40. 
139  Amihalachioaie v. Moldova, judgment of 20 April 2004, Appl. 60115/00, judge Pavlovschi in a dissenting 

opinion. 

140  De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Appl. 19983/92. 

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Additionally, 

“it is not for the Court, or for the national courts for that matter, to substitute their own 
views  for  those  of  the  press  as  to  what  technique  of  reporting  should  be  adopted  by 
journalists.”141 

So,  the  states  are  not  entitled  to  restrict  all  forms  of  public  discussion  on  matters 
pending  before  the  courts142,  whereas  the  press  has  to  pay  attention  to  its  “duties  and 
responsibilities”. 

“It cannot be excluded that the public’s becoming accustomed to the regular spectacle of 
pseudo-trials  in  the  news  media  might  in  the  long  run  have  nefarious  consequences  for 
the acceptance of the courts as the proper forum for the determination of a person’s guilt 
or innocence on a criminal charge.” 143 

An article concerning legal proceedings pending, especially criminal proceedings, can also 
affect  the  rights  of  the  defendant.  It  should  be  added  that  the  defendant  is  entitled  to 
enjoy the guarantee of a fair trial and the right to be presumed innocent of any criminal 
offence  until  proved  guilty,  a  guarantee  which  is  set  out  in  Art.  6  ECHR.  This  fact  has 
relevance  for  the  balancing  of  competing  interests.144  Therefore,  journalists  have  to 
refrain from statements that are likely to prejudice. 

Furthermore the ECtHR deduces from the Appendix to the Recommendation Rec (2003) 
13 “on the provision of information through the media in relation to criminal proceedings” 
that even the states are subject to positive obligations under Art. 8 to protect the privacy 
of convicted persons in such proceedings.145 

When  examining  whether  the  domestic  authorities  have  solved  this  conflict  of  rights  in 
conformity  with  the  European 
includes  the  principles  of  this 
law,  the  Court 
Recommendation, saying that 

“it  rightly  points  out  that  the  media  have  the  right  to  inform  the  public  in  view  of  the 
public’s right to receive information, and stresses the importance of media reporting on 
criminal  proceedings  in  order  to  inform  the  public  and  ensure  public  scrutiny  of  the 
functioning  of  the  criminal  justice  system.  In  addition,  the  Appendix  to  that 
Recommendation  states  that  the  public  must  be  able  to  receive  information  about  the 
activities of judicial authorities and police services through the media and that journalists 
must  therefore  be  able  to  report  freely  on  the  functioning  of  the  criminal  justice 
system.”146 

But it also refers to this Recommendation and its Appendix when it says that 

“it is to be noted that the public nature of court proceedings does not function as a carte 
blanche relieving the media of their duty to show due care in communicating information 
received in the course of those proceedings”147, 

141  News Verlags GmbH & Co. KG v. Austria, judgment of 11 January 2000, Appl. 31457/96, § 39.
 
142  Worm v. Austria, judgment of 29 August 1997, Appl. 22714/93, § 50.
 
143  Sunday Times v. the U.K., op. cit., § 63.
 
144  Worm v. Austria, op. cit., § 50 and 55; Bladet Tromsø and Stensaas v. Norway, op. cit., § 65.
 
145  Egeland and Hanseid v. Norway, judgment of 16 April 2009, Appl. 34438/04, § 53.
 
146  Dupuis and other v. France, judgment of 7 June 2007, Appl. 1914/02, § 42.
 
147  Eerikäinen and others v. Finland, judgment 10 February 2009, Appl. 3514/02, § 63; Flinkkilä and others v.
 

Finland, judgment of 6 April 2010, Appl. 25576/04, § 77. 

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and that 

“under the terms of Article 10 § 2, the exercise of the freedom of expression carries with 
it  ‘duties  and  responsibilities’,  which  also  apply  to  the  press.  In  the  present  case  this 
relates  to  protecting  ‘the  reputation  or  rights  of  others’  and  ‘maintaining  the  authority 
and  impartiality  of  the  judiciary’.  These  duties  and  responsibilities  are  particularly 
important in relation to the dissemination to the general public of photographs revealing 
personal  and  intimate  information  about  an  individual.  The  same  applies  when  this  is 
done in connection with criminal proceedings.”148 

With  regard  to  the  principles  of  the  Recommendation  and  Appendix,  especially  the 
positive  obligations  of  the  states,  the  Court  has  already  affirmed  a  violation  of  Art.  8 
ECHR concerning a publication that entailed prejudice against the applicant’s honour and 
reputation  and  was  therefore  harmful  to  his  moral  and  psychological  integrity  and  his 
private life.149 

These  considerations  are  also  important  for  the  question  regarding  under  which 
circumstances the press may be excluded from a trial. Such an exclusion can be justified 
to protect the privacy of a child and other parties, which is protected by Art. 8 ECHR, and 
to avoid prejudicing the interests of justice.150 

1.3.2.2.4. 

Criticism of politicians 

The journalists’ right of making statements may be restricted by the type of the person 
that  is  affected  by  it;  however,  generally  not  so,  when  it  comes  to  reporting  on  public 
figures such as politicians. According to the Court151, 

“the limits of acceptable criticism are wider with regard to a politician acting in his public 
capacity than in relation to a private individual.” 

A  politician  is  a  public  figure  who  voluntarily  lays  himself  open  to  close  scrutiny  of  his 
acting  and  word.  Therefore  he  has  to  bargain  for  critical  reactions  of  the  public  or  the 
press and a higher degree of tolerance has to be displayed. A possible failure of a public 
figure, even in the private sphere, may, in certain circumstances, constitute a matter of 
legitimate public interest.152 

Even the publication of purely private information of public figures may be permitted, if 
there is a close connection with their function. The Court considers that 

“it would be fatal for freedom of expression in the sphere of politics if public figures could 
censor the press and public debate in the name of their personality rights, alleging that 
their  opinions  on  public  matters  are  related  to  their  person  and  therefore  constitute 
private data which cannot be disclosed without consent.”153 

But  this  does  not  mean  that  a politician  is  not  entitled  to  have his  person  protected.  In 
addition to Art. 10(1) ECHR protecting the right to freedom of expression as the basis of 
all media, Art. 8(1) ECHR declares a right to respect the private and family life, the home 
and the correspondence of a person. He/She enjoys this right even when he/she is acting 

148  Egeland and Hanseid v. Norway, op. cit., § 59.
 
149  A. v. Norway, judgment of 9 April 2009, Appl. 28070/06, §§ 73-75.
 
150  See B. and P. v. the U.K., judgment of 24 April 2001, Appl. 36337/97 and 35974/97.
 
151  Oberschlick v. Austria (no.2), op. cit., § 29; Lopes Gomes da Silva v. Portugal, judgment of 28 September
 

152 

153 

2000, Appl. 37698/97, § 30. 
Tønsbergs Blad AS and Haukom v. Norway, op. cit., § 87. 
Társaság a Szabadságjogokért v. Hungary, judgment of 14 April 2009, Appl. 37374/05, § 37. 

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in  his  public  capacity,  whereas  both  rights  need  to  be  counterbalanced  in  the  case  of 
conflicts. 

There always has to be a fair balance between the personal interest of the politician and 
public interests, especially the interests of open discussion of political issues. 

This topic has already been the subject of different judgments of the ECtHR. In the case 
Dalban  v.  Romania  154  the  Court  observed  the  application  of  a  journalist  who  was 
convicted  for  criminal  libel  because  of  some  articles  that  exposed  a  series  of  frauds 
allegedly  committed  by  a  senator  and  the  chief  executive.  According  to  the  ECtHR,  this 
was an interference that could not be accepted as necessary in a democratic society. The 
information of the article was about a matter of public interest, namely the behaviour of 
the senator and the chief executive as a politician, thus a person of public interest, and 
did not concern their private life. With regard to the vital role of the press, and the fact 
that  the  allegations  could  not  be  proved  as  untrue,  there  was  a  clear  breach  of  the 
journalist’s right of freedom of expression. 

A further question in this context is whether, and to what extent, journalists are allowed 
to  report  about  persons  who  are  associated  with  politicians,  such  as  family  members, 
partners  in  life  or  friends.  Although  they  are  not  public  figures,  meaning  that  the 
principles mentioned above are basically not applicable, such reports can be justified by 
the  right  to  freedom  of  expression  of  the  journalists.  This  right  has  to  be  balanced 
against  the  protection  of  the  private  life  of  the  persons  affected,  while  special 
circumstances can lead to an outweighing of the former. 

Therefore, the ECtHR found a violation of Art. 10 ECHR in the Flinkkilä and others case. 
Journalists were sentenced because of the publication of photos which showed a woman 
who was the partner of a politician. It said that 

“[h]er status as an ordinary person enlarges the zone of interaction which may fall within 
the scope of private life.”155 

Because she had already caught the attention of the public by her behaviour in the past, 
the Court found furthermore that 

“[it]  cannot  but  note  that  [she],  notwithstanding  her  status  as  a  private  person,  can 
reasonably  be  taken  to  have  entered  the  public  domain.(...)  The  disclosure  of  [her] 
identity in the reporting had a direct bearing on matters of public interest (...).”156 

In conclusion, the conviction of the journalists was illegal, because they had acted in the 
public interest. 

1.3.2.2.5. 

Criticism of the government 

The examination of applications concerning “criticism of the government” is, according to 
the ECtHR, handled in a similar way to criticism of politicians.157 The limits are also wider 
than  with  regard  to  a  (purely)  private  person.  The  government  occupies  a  dominant 
position,  which  makes  it  essential  to  exercise  moderation,  especially  in  resorting  to 
criminal proceedings, where other measures are available. 

154  Dalban v. Romania, judgment of 28 September 1999, Appl. 28114/95.
 
155 

Flinkkilä and others v. Finland, judgment of 6 April 2010, Appl. 25576/04, § 82.
 
Flinkkilä and others v. Finland, op. cit., §§ 83 and 85.
 
Incal v. Turkey, judgment of 9 June 1998, Appl. 22678/93, § 54.
 

156 

157 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Besides  the  division  of  power,  the  control  by  the  public  opinion  is  essential  in  a 
democratic system, while  it remains open to the states as guarantors of public order to 
adopt measures to react, i.e. by law or other proportionate measures. 

The Court’s judgment in the case Feldek v. Slovakia158 gives an example of the scope of 
protection of Art. 10 in this context. The applicant had criticised the then new Slovakian 
Government,  especially  the  new  political  leaders.  He  referred  to  the  fascist  past  of  the 
new Minister for Culture and Education and cast doubts on the personal qualities of the 
minister  as  a  member  of  the  government  in  a  democratic  state.  Although  the  applicant 
had used harsh words, the Court held that he could draw his statements upon Art. 10 of 
the Convention, because they were based on facts, and were made in good faith and in 
pursuit of a legitimate aim. Furthermore they were made in a very political context and 
were crucial for the development of Slovakia. 

An important attribute of a democratic society is a free political debate. There have to be 
very  strong  reasons  to  justify  restrictions  and  states  are  given  little  scope  for  these.  In 
other  regards,  there  is  a  danger  that  respect  for  freedom  of  expression  is  affected  in 
general in the state concerned. 

There are also cases in which the Court considered that Art. 10 cannot take precedence 
over  conflicting  rights,  such  as  the  reputation  of  a  politician.  In  2008,  the  Court  had  to 
decide in a case159 that dealt with a journalist who had alleged that a politician had been 
active in the secret police securitate. 

In this case, there was no factual basis at all and additionally the statements were very 
concrete,  not  “general  and  undetermined”  and  did  not  feature  any  irony  or  humour. 
Therefore,  the  ECtHR  found  that  even  the  right  of  the  press  to  provoke  or  exaggerate 
could  not  be  exerted  to  justify  such  allegations,  and  that  the  bounds  of  acceptable 
criticism  had  been  overstepped.  In  conclusion,  a  violation  of  Art.  10  ECHR  was  not 
established. 

The same direction applied in the Court’s judgment in the case Petrov v. Bulgaria160. In 
this  case  a  journalist  accused  the  applicant  of  (indirectly)  participating  in  the 
assassination  of  a  former  chief  prosecutor.  The  national  courts  did  not  convict  the 
journalist  because  of  his  statement.  The  Court  ruled  that  the  acquittal  of  the  journalist 
had  not  violated  Art.  10  ECHR,  because  the  applicant’s  own  freedom  of  expression  was 
not  at  stake.  Furthermore,  Art.  8  ECHR  was  not  violated.  In  several  cases  concerning 
complaints  brought  under  Art.  10  ECHR  the  Court  ruled  that  a  person’s  reputation  is 
protected by Art. 8 ECHR as part of the right to respect for “private life”. The protection 
of private life has to be balanced against the right to freedom of expression, enshrined in 
Art. 10. The Court ruled in this case that the national courts had balanced, in conformity 
with  Convention  standards,  the  applicant’s  interest  in  protecting  his  reputation  against 
the paramount public interest in the respective matters. 

1.3.2.2.6. 

“Hate speech” and violence 

The Court concedes a wider margin of appreciation to the State authorities examining the 
need  for  interference,  where  such  remarks  constitute  an  incitement  to  violence  against 
an  individual  or  a  public  official  or  a  sector  of  the  population.161  It  considers  one  of  the 

158 

159 

160 

Feldek v. Slovakia, judgment of 12 July 2001, Appl. 29032/95.
 
Petrina v. Romania, judgment of 14 October 2008, Appl. 78060/01.
 
Petrov v. Bulgaria, judgment of 2 November 2010, Appl. 27103/04.
 

161  Ceylan v. Turkey, judgment of 8 July 1999, Appl. 23556/94, § 34; Gerger v. Turkey, judgment of 8 July 


1999, Appl. 24919/94, § 48. 

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principal  characteristics  of  democracy  to  be  the  possibility  it  offers  of  resolving  a 
country’s  problems  through  dialogue,  without  having  recourse  to  violence.162  It  is 
necessary  in  a  democratic  society  to  restrict  such  hate  speech  which  constitutes 
incitement  to  violence,  hostility  or  hatred,  because  violence  as  a  means  of  political 
expression is the antithesis of democracy; irrespective of the ends to which it is directed, 
incitement  to  it  will  tend  to  undermine  democracy  and  it  is  intrinsically  inimical  to  the 
ECHR.  Unlike  the  advocacy  of  opinions  on  the  free  marketplace  of  ideas,  incitement  to 
violence is the denial of a dialogue, the rejection of the testing of different thoughts and 
theories in favour of a clash of might and power. It should not fall within the ambit of Art. 
10  ECHR,  whereas  a  distinction  between  this  and  pure  strong  protest  referring  to  a 
difficult political situation has to be made.163 However, there could be the risk that media 
might  become  “a  vehicle  for  the  dissemination  of  hate  speech  and  the  promotion  of 
violence”. 

These  different  approaches  show  that  it  is  important  to  take  the  degree  of  aggressive 
tone  of  a  statement  and  its  circumstances  into  account,  and  whether  an  inhibition  is 
necessary  within  the  meaning  of  democracy  that  benefits  from  free  circulation  of 
information and opinions. 

This is also shown by another example of the jurisdiction of the Court. The applicants of 
this  case  had  shouted  some  slogans  with  a  violent  tone  during  a  demonstration. 
Regarding the case as a whole the Strasbourg Court found that 

“having regard to the fact that these are well-known, stereotyped leftist slogans and that 
they were shouted during lawful demonstrations – which limited their potential impact on 
“national security” and “public order” – they cannot be interpreted as a call for violence 
or  an  uprising.  The  Court  stresses,  however,  that  whilst  this  assessment  should  not  be 
taken  as  an  approval  of  the  tone  of  these  slogans,  it  must  be  recalled  that  Article  10 
protects not only the substance of the ideas and information expressed, but also the form 
in which they are conveyed.”164 

It also said that the applicants did not advocate violence, injury or harm to any person by 
these slogans and the applicants’ conduct could not be considered to have had an impact 
on  “national  security”  or  “public  order”  by  way  of  encouraging  the  use  of  violence  or 
inciting others to armed resistance or rebellion. Consequently, there has been a violation 
of the applicant’s right to freedom of expression. 

When examining whether there has been a violation of Art. 10 ECHR, the ECtHR reverts 
to the definition of the term “hate speech” by the Appendix to the Recommendation No. 
R (97) 20.165 “Hate speech” has to be understood as 

“covering  all  forms  of  expression  which  spread,  incite,  promote  or  justify  racial  hatred, 
xenophobia,  anti-Semitism  or  other  forms  of  hatred  based  on  intolerance,  including: 
intolerance  expressed  by  aggressive  nationalism  and  ethnocentrism,  discrimination  and 
hostility against minorities, migrants and people of immigrant origin.” 

Besides  its  own  case-law,  the  scrutiny  by  the  Court  involves  the  principles  of  this 
Recommendation and its Appendix, while the judges consider both of them as 

162  United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Appl. 19392/92, § 

57. 

163  Karatas v. Turkey, judgment of 8 July 1999, Appl. 23168/94, dissenting opinion of the judges Wildhaber, 

Pastor Ridruejo, Costa and Baka. 

164  Gül and other v. Turkey, judgment of 8 June 2010, Appl. 4870/02, § 41. 
165  Recommendation  No.  R  (97)  20  of  the  Committee  of  Ministers  to  Member  States  on  “hate  speech”, 

adopted on 30 October 1997. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

“guidelines  designed  to  underpin  governments’  efforts  to  combat  all  hate  speech,  for 
example  the  setting  up  of  an  effective  legal  framework  consisting  of  appropriate  civil, 
criminal  and  administrative  law  provisions  for  tackling  the  phenomenon.  It  proposes, 
among other measures, that community-service orders be added to the range of possible 
penal sanctions and that the possibilities under the civil law be enhanced, for example by 
awarding  compensation  to  victims  of  hate  speech,  affording  them  the  right  of  reply  or 
ordering  retraction.  Governments  should  ensure  that,  within  this  legal  framework,  any 
interference  by  the  public  authorities  with  freedom  of  expression  is  narrowly 
circumscribed  on  the  basis  of  objective  criteria  and  subject  to  independent  judicial 
control.”166 

The  position  contrary  to  violence  in  the  media  of  the  Council  of  Europe  is  reflected  in 
several further legal acts. 

With  regard  to  the  fact  that  Art.  10  ECHR  also  protects  opinions  that  shock  or  disturb, 
Recommendation No. R (97) 19167 says that  

“[h]owever,  certain  forms  of  gratuitous  portrayal  of  violence  may  lawfully  be  restricted, 
taking  into  account  the  duties  and  responsibilities  which  the  exercise  of  freedom  of 
expression carries with it.” 

Thus it sets some guidelines for measures to restrict portrayals of violence in the media. 

Moreover  the  protection  of  women  against  violence  shall  be  improved.  According  to  the 
Appendix of the Recommendation Rec (2002) 5168, the Member States should: 

“17.  	 encourage  the  media  to  promote  a  non-stereotyped  image  of  women  and  men 
based  on  respect  for  the  human  person  and  human  dignity  and  to  avoid 
programmes associating violence and sex; as far as possible, these criteria should 
also be taken into account in the field of the new information technologies;  

18.  	 encourage  the  media  to  participate  in  information  campaigns  to  alert  the  general 

public to violence against women; 

19. 	 encourage the organisation of training to inform media professionals and alert them 
to the possible consequences of programmes that associate violence and sex; 

20. 	 encourage the elaboration of codes of conduct for media professionals, which would 
take  into  account  the  issue  of  violence  against  women  and,  in  the  terms  of 
reference  of  media  watchdog  organisations,  existing  or  to  be  established, 
encourage  the  inclusion  of  tasks  dealing  with  issues  concerning  violence  against 
women and sexism.” 

Concerning videogames the Committee of Ministers of the Council of Europe recommends 
in the Recommendation No. R (92) 19169 that the governments of Member States: 

166  Gündüz v. Turkey, judgment of 4 December 2003, Appl. 35071/97, § 22. 
167  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. 

168  Recommendation No. Rec (2002) 5 of the Committee of Ministers to Member States on the protection of 

women against violence, adopted on 30 April 2002. 

169  Recommendation No.  R (92)  19 of the Committee of Ministers to Member States on video games with a 

racist content, adopted on 19 October 1992. 

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“Review  the  scope  of  their  legislation  in  the  fields  of  racial  discrimination  and  hatred, 
violence  and  the  protection  of  young  people,  in  order  to  ensure  that  it  applies  without 
restriction to the production and distribution of video games with a racist content; 

Treat  video  games  as  mass  media  for  the  purposes  of  the  application  inter  alia  of 
Recommendation  No.  R  (89)  7  concerning  principles  relating  to  the  distribution  of 
videogames  having  a  violent,  brutal  or  pornographic  content,  and  of  the  Convention  on 
Transfrontier Television (ETS 132).” 

Additionally,  with  regard  to  the  fact  that  the  media  can  make  a  positive  contribution  to 
the  fight  against  intolerance,  Recommendation  No.  R  (97)  21170  includes  professional 
practices which are conducive to the promotion of a culture of tolerance. 

1.3.2.2.7. 

Criticism by civil servants 

In the following there is the question as to whether a civil servant could be deprived of 
their freedom of expression just because of their status. 

The  responsibility  of  a  state  under  the  Convention  may  arise  for  acts  of  all  its  organs, 
agents  and servants. Thus,  the  obligations  of  a  Contracting  Party  under  the  Convention 
can be violated by any person exercising an official function vested in them.171 

Therefore, a judge is not hindered from expressing his opinion among his responsibilities. 
Reactions to this as interference by a State authority in the form of acting by superiors 
can  give  rise  to  a  breach  of  Art.  10  ECHR,  unless  it  can  be  shown  that  it  was  in 
accordance with the aims laid out in its para. 2. 

In  2008,  the  ECtHR  decided172  a  case  which  concerned  an  informant,  head  of  the  Press 
Department of the Moldovan Prosecutor General’s Office. The informant handed over two 
secret  letters  to  a  newspaper  without  consulting  the  heads  of  other  departments  of  the 
Prosecutor  General’s  Office  and,  therefore,  was  dismissed,  as  his  behaviour  was 
considered  as  a  breach  of  the  press  department’s  internal  regulations.  It  was  revealed 
that  the  Deputy  Speaker  of  Parliament  had  exercised  undue  pressure  on  the  Public 
Prosecutor’s Office. 

The  ECtHR  ruled  that  pressure  by  Parliament  put  on  the  Public  Prosecutor  and, 
accordingly,  the  possible  threat  for  independence  of  national  justice  are  very  important 
matters  in  a  democratic  society,  the  public  has  a  legitimate  interest  to  know  about  and 
that  they  are  issues  of  public  interest.  These  matters  are  so  important  in  a  democratic 
society that they outweigh the interest in maintaining public confidence in the Prosecutor 
General’s Office. It emphasised that the special situation in Moldova supported this view 
in  the  given  case.  International  non-governmental  organisations  had  expressed  concern 
about the breakdown of the separation of powers and the lack of judicial independence. 
Regarding  the  severe  sanction  in  the  form  of  a  dismissal  and  the  danger  of  a  potential 
chilling effect on an open discussion of topics of public concern, the Court found that this 
interference could not be considered as “necessary in a democratic society”. 

170  Recommendation  No.  R  (97)  21  of  the  Committee  of  Ministers  to  Member  States  on  the  media  and  the 

promotion of a culture of tolerance, adopted on 30 October 1997. 

171  Wille v. Liechtenstein, judgment of 28 October 1999, Appl. 28396/95, §§ 42 and 46. 
172  Guja v. Moldova, judgment of 12 February 2008, Appl. 14277/04. 

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1.3.2.2.8. 

Statements concerning religious beliefs 

Another  important  issue  addresses  statements  concerning  religious  beliefs.  In  its 
judgment Kokkinakis v. Greece the ECtHR pointed out that 

“freedom of thought, conscience and religion, which is safeguarded under Article 9 of the 
Convention, is one of the foundations of a 'democratic society' within the meaning of the 
Convention.  It  is,  in  its  religious  dimension,  one  of  the  most  vital  elements  that  go  to 
make up the identity of believers and their conception of life.” 173 

The  protection  of  the  religious  feelings  of  other  people  can  be  a  legitimate  aim  in  the 
meaning  of  the  ECHR.  Freedom  of  thought  and  freedom  of  expression  need  to  be 
counterbalanced in the case of conflicts. 

In this context the ECtHR said that 

“those  who  choose  to  exercise  the  freedom  to  manifest  their  religion,  irrespective  of 
whether they do so as members of a religious majority or a minority, cannot reasonably 
expect  to  be  exempt  from  all  criticism.  They  must  tolerate  and  accept  the  denial  by 
others of their religious beliefs and even the propagation by others of doctrines hostile to 
their faith.”174 

But a distinction has to be made between “provocative opinions” and abusive attacks on 
one’s religion175, because 

“whoever exercises the rights and freedoms enshrined in the first paragraph of Article 10 
undertakes  ‘duties  and  responsibilities’.  Amongst  them  –  in  the  context  of  religious 
opinions  and  beliefs  –  may  legitimately  be  included  an  obligation  to  avoid  as  far  as 
possible expressions that are gratuitously offensive to others and thus an infringement of 
their rights, and which therefore do not contribute to any form of public debate capable 
of furthering progress in human affairs.”176 

However,  the  manner  in  which  religious  feelings  are  at  stake  is  a  matter  which  may 
engage  the  responsibility  of  the  State,  notably  its  responsibility  to  ensure  the  peaceful 
enjoyment of the right. 

Thus, 

“it  may  be  considered  necessary  in  certain  democratic  societies  to  sanction  or  even 
prevent  improper  attacks  on  objects  of  religious  veneration,  provided  always  that  any 
‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed be proportionate to the legitimate 
aim pursued.”177 

The  Court  allows  a  wider  margin  of  appreciation  to  the  Contracting  States  when 
regulating freedom of expression in relation to matters liable to offend intimate personal 
convictions within the sphere of morals or, especially, religion: 

“This  does  not  of  course  exclude  final  European  supervision.  Such  supervision  is  all  the 
more necessary given the breadth and open-endedness of the notion of blasphemy and 
the  risks  of  arbitrary  or  excessive  interferences  with  freedom  of  expression  under  the 

173  Kokkinakis v. Greece, judgment of 25 May 1993, Appl. 14307/88, § 31. 
174  Otto-Preminger Institut v. Austria, judgment of 20 September 1994, Appl. 13470/87, § 47. 
175  See I.A. v. Turkey, judgment of 13 September 2005, Appl. 42571/98. 
176  Otto-Preminger Institut v. Austria, op. cit., § 49. 

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guise of action taken against allegedly blasphemous material. In this regard the scope of 
the  offence  of  blasphemy  and  the  safeguards  inherent  in  the  legislation  are  especially 
important.  Moreover  the  fact  that  the  present  case  involves  prior  restraint  calls  for 
special scrutiny by the Court.”178 

1.3.2.2.9. 

News reporting based on interviews 

The press benefits from the need for free circulation of views and for open public debate. 
Any opinions and information that are expressed in this context are to be considered part 
of  a  debate  on  questions  of  public  interest,  meaning  that  there  is  little  scope  for 
restrictions  under  Art.  10.  Therefore,  a  journalist  is  not  hampered  from  asking  captious 
or  pointed  questions  or  making  such  statements.  He/She  can  only  be  convicted  of 
defamation, if there are strong and sufficient reasons. 

At the same time news reporting based on interviews is one of the most essential means 
of  how  the  press  can  safeguard  its  elementary  role  as  a  “public  watchdog”.  As  long  as 
rights of other people are not outweighing, or as long as there are no other strong and 
sufficient reasons, a journalist must not be punished for assisting in the dissemination of 
statements  made  by  another  person,  for  example  in  an  interview.  Otherwise  public 
discussion on topics of general interest would seriously be hampered.179 

It should be added that the Court also ruled180 that there is no general requirement for 
journalists  to  systematically  and  formally  distance  themselves  from  the  content  of  a 
quotation  that  might  insult  or  provoke  others  or  damage  their  reputation.  This  is  not 
reconcilable with the press role of distributing opinions and ideas. 

According to the Court, the reputation of the affected person can be a legitimate aim and 
interference with the freedom of expression can be proportionate if there is an “objective 
link” between the impugned statement and the person suing in defamation as a requisite 
element:  

“Mere  personal  conjecture  or  subjective  perception  of  a  statement  as  defamatory  does 
not  suffice  to  establish  that  the  person  was  directly  affected  by  the  publication.  There 
must be something in the circumstances of a particular case to make the ordinary reader 
feel  that  the  statement  reflected  directly  on  the  individual  claimant  or  that  he  was 
targeted by the criticism.”181 

These principles also apply in the sphere of television and radio broadcasting.182 

1.3.2.2.10. 

Restrictions on journalistic publication and distribution 

Freedom  of  expression  does  not  prohibit  in  terms  the  imposition  of  prior  restraints  on 
publications.  This  is  conveyed  by  words  like  “prevention”  or  “conditions”  used  by  Art. 
10(2)  ECHR.  According  to  that,  an  obligation  to  register  a  title  of  a  newspaper  is  not  a 
violation as such. It is a legitimate interference if it is prescribed by law and additionally 
necessary  in  a  democratic  society.  But  there  are  also  dangers  of  such  a  practice 
thinkable.183 

177  Otto-Preminger Institut v. Austria, op. cit., § 49.
 
178  Wingrove v. the U. K., op. cit., § 58; Observer and Guardian v. the U.K., op. cit., § 60. 

179 

180 

Jersild v. Denmark, op. cit., § 35.
 
Thoma v. Luxembourg, judgment of 29 March 2001, Appl. 38432/97, § 64.
 
181  Dyuldin and Kislov v. Russia, judgment of 31 July 2007, Appl. 25968/02, § 44.
 
182  Cf. Filatenk v. Russia, judgment of 6 December 2007, Appl. 73219/01, § 45.
 
183  Observer and Guardian v. the U.K., op. cit., § 60.
 

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Therefore,  it  is  questionable  as  to  whether  and  to  what  extent  States  are  allowed  to 
restrain journalistic publication and distribution. 

Because a careful scrutiny becomes important as far as the press is concerned, and news 
is a perishable commodity and delaying its publication, even for a short period, may well 
deprive  it  of  all  its  value  and  interest184,  States  must  put  forward  strong  and  replicable 
reasons to the ECtHR for such measures to stand, whereby their margin of appreciation 
is limited as far as the freedom of press is at stake.185 

In  the  case  Ürper  and  others  four  Turkish  newspapers  were  suspended  for  periods 
ranging from 15 days to a month in respect of various news reports and articles. These 
restraints were not imposed on particular articles, but on the future publication of entire 
newspapers,  whose  content  was  unknown  at  the  time  of  the  national  court’s  decisions. 
Therefore, these applicants’ cases were distinguishable from the earlier case of Observer 
and Guardian186. The ECtHR found that 

“the  preventive  effect  of  the  suspension  orders  entailed  implicit  sanctions  on  the 
applicants to dissuade them from publishing similar articles or news reports in the future, 
and  hinder  their  professional  activities.  [...]  Less  draconian  measures  could  have  been 
envisaged, such as the confiscation of particular issues of the newspapers or restrictions 
on the publication of specific articles.”187 

It  concluded  that  the  national  courts  had  overstepped  their  margin  of  appreciation  and 
that they had 

“unjustifiably  restricted  the  essential  role  of  the  press  as  a  public  watchdog  in  a 
democratic  society.  The  practice  of  banning  the  future  publication  of  entire  periodicals 
went  beyond  any  notion  of  ‘necessary’  restraint  in  a  democratic  society  and,  instead, 
amounted to censorship.”188 

In conclusion, a violation of Art. 10 ECHR was given. 

1.3.2.2.11. 

The protection of journalistic sources 

The  protection  of  journalistic  sources  is  another  important  issue  addressed  by  Art.  10 
ECHR. 

  Revealing the identity of an informant 

An  interference  can  be  given  by  a  disclosure  order  or  the  requirement  to  reveal  the 
identity of the source. Such measures can be justified if there is a legitimate interest in 
the  disclosure  which  clearly  outweighs  the  public  interest  in  the  non-disclosure.  The 
necessity of the disclosure is identified as responding to a pressing social need, while the 
Member  States  enjoy  a  certain  margin  of  appreciation  in  assessing  this  need.  In  this 

184	  Observer and Guardian v. the U.K., op. cit., § 60. 
185	 

Editions Plon v. France, judgment of 18 May 2004, Appl. 58148/00, § 44. 

186	  See footnote 61. 
187	  Ürper and Others v. Turkey, judgment of 20 October 2009, Appl. 14526/07, § 43; see, mutatis mutandis: 

Demirel and Ateş v. Turkey, judgment of 9 December 2008, Appl. 11976/03, § 28. 

188	  Ürper and Others v. Turkey, op. cit., § 44. 

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context the ECtHR refers189 to Recommendation Rec (2000) 7 “on the right of journalists 
not to disclose their sources of information”190, especially principle 3, stated therein.  

Recalling  Committee  of  Ministers  Recommendation  No.  R  (2000)  7  on  the  right  of 
journalists  not  to  disclose  their  sources  of  information,  the  Assembly  reaffirms  that  the 
protection  of  journalists’  sources  of  information  is  a  basic  condition  for  both  the  full 
exercise  of  journalistic  work  and  the  right  of  the  public  to  be  informed  on  matters  of 
public  concern,  as  expressed  by  the  European  Court  of  Human  Rights  in  its  case  law 
under Article 10 of the Convention. 

Furthermore, the Court makes use of the explanatory notes for the precise application of 
the Recommendation. As regards the term “sources”, the explanation reads as follows: 

“Source: 

17. Any person who provides information to a journalist shall be considered as his or her 
'source'.  (...)  Journalists  may  receive  their  information  from  all  kinds  of  sources. 
Therefore,  a  wide  interpretation  of  this  term  is  necessary.  The  actual  provision  of 
information to journalists can constitute an action on the side of the source, for example 
when a source calls or writes to a journalist or sends to him or her recorded information 
or pictures. Information shall also be regarded as being 'provided' when a source remains 
passive  and  consents  to  the  journalist  taking  the  information,  such  as  the  filming  or 
recording of information with the consent of the source.” 

Using these principles, the Court made the following assessments: 

“Protection  of  journalistic  sources  is  one  of  the  basic  conditions  for  press  freedom.  (...) 
Without  such  protection,  sources may  be  deterred  from  assisting  the  press  in  informing 
the public on matters of public interest. As a result the vital public watchdog role of the 
press  may  be  undermined  and  the  ability  of  the  press  to  provide  accurate  and  reliable 
information  may  be  adversely  affected.  Having  regard  for  the  importance  of  the 
protection  of  journalistic  sources  for  press  freedom  in  a  democratic  society  and  the 
potentially  chilling  effect  an  order  of  source  disclosure  has  on  the  exercise  of  that 
freedom, such a measure cannot be compatible with Article 10 of the Convention unless 
it is justified by an overriding requirement in the public interest.” 191 

“Far-reaching  measures  cannot  but  discourage  persons  who  have  true  and  accurate 
information  relating  to  wrongdoing  of  the  kind  here  at  issue  from  coming  forward  and 
sharing their knowledge with the press in future cases.” 192 

Hence, intensive measures for a certain time period can be proportional, but there has to 
be  a  grave  sufficient  interest  in  knowing  the  identity  of  the  source,  which  overrides  the 
interest in concealing it. 

  Searches at a journalist’s home and workplace 

The  ECtHR  ruled  in  Roemen  and  Schmit  v  Luxembourg  that  searches  carried  out  at  a 
journalist’s home and workplace to ascertain whether there had been a criminal offence, 
i.e. a breach of professional confidence, are very intensive measures. Such measures can 

189 

Financial Times Ltd. and others v. the U.K., judgment of 15 December 2009, Appl. 821/03, § 36; Voskuil 
v. the Netherlands, judgment of 22 November 2007, Appl. 64752/01, § 43. 

190  Recommendation Rec (2000) 7 of 8 March 2000 of the Committee of Ministers  to Member States on the 

right of journalists not to disclose their sources of information. 

191  Goodwin v. the U.K., op. cit., §§ 39 and 40; Voskuil v. the Netherlands, op. cit.,§ 65. 

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only  be  legitimate  if  there  are  no  alternative  ways  to  obtain  the  information  or,  rather, 
there have to be very strong reasons to justify such searches.193 The Court emphasised 
that  there  is  a  fundamental  difference  between  this  case  and  Goodwin  v  UK.194.  In  the 
latter  case,  the  journalist  was  just  required  to  reveal  the  identity  of  his  informant, 
whereas  in  the  instant case  searches  were  carried  out  at  the  first  applicant’s  home  and 
workplace, which formed a more drastic measure. This is because investigators who raid 
a journalist’s workplace have access to all the documentation held by the journalist and 
thus they have very wide investigative powers. Such 

“limitations on the confidentiality of journalistic sources call for the most careful scrutiny 
by the Court.”195 

  Procedural guarantee 

Interferences  with  the  right  of  protection  of  sources  must  be  attended  with  legal 
the  above-mentioned 
procedural 
recommendation Rec (2000) 7 in the Sanoma Uitgevers case demanding that 

safeguards.  The  ECtHR 

(again) 

refers 

to 

“any interference with the right to protection of such sources must be attended with legal 
procedural  safeguards  commensurate  with  the  importance  of  the  principle  at  stake.(...) 
First  and  foremost  among  these  safeguards  is  the  guarantee  of  review  by  a  judge  or 
other independent and impartial decision-making body. (...) The requisite review should 
be  carried  out  by  a  body  separate  from  the  executive  and  other  interested  parties, 
invested  with  the  power  to  determine  whether  a  requirement  in  the  public  interest 
overriding  the  principle  of  protection  of  journalistic  sources  exists  prior  to  the  handing 
over  of  such  material  and  to  prevent  unnecessary  access  to  information  capable  of 
disclosing  the  sources'  identity  if  it  does  not.(...)  The  decision  to  be  taken  should  be 
governed by clear criteria, including whether a less intrusive measure can suffice to serve 
the overriding public interests established.”196 

This decision was entrusted to the public prosecutor. According to the Court, this person 
cannot  be  seen  as  impartial  like  an  independent  judge.  Also,  the  involvement  of  the 
investigating  judge  in  this  case  could  not  satisfy  the  ECtHR,  because  he  only  had  a 
supporting role.  

A law which does not provide regulations which meet these requirements has a deficient 
quality. Hence, an interference with the freedom of expression based on such a law is not 
prescribed by law, and thus it is a violation of Art. 10 ECHR.197 

1.3.2.2.12. 

Publishing of confidential documents 

A  further  question  is  whether  a  journalist  is  entitled  to  receive  and  publish  confidential 
documents. An interference, for example by a penalty imposed for such an action, can be 
justified  by  the  legitimate  aim  of  preventing  the  “disclosure  of  information  received  in 
confidence”, as mentioned in Art. 10(2) ECHR. 

Furthermore,  journalists  exercising  the  freedom  of  expression  undertake  “duties  and 
responsibilities”,  the  Court  regularly  emphasises.  Hence,  even  with  regard  to  the  vital 

192  Voskuil v. the Netherlands, op. cit., § 71.
 
193  Roemen and Schmit v. Luxembourg, judgment of 25 February 2003, Appl. 51772/99, § 56.
 
194  Goodwin v. the U.K., op. cit. 

195  Roemen and Schmit v. Luxembourg, op. cit., § 57.
 
196  Sanoma Uitgevers B.V. v. the Netherlands, op. cit., §§ 88, 90 and 92.
 
197  Sanoma Uitgevers B.V. v. the Netherlands, op. cit., §§ 93 ff.
 

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role  of  the  press,  journalists  cannot  be  released  from  their  duty  to  obey  the  ordinary 
criminal law. 

However, 

“press  freedom  assumes  even  greater  importance  in  circumstances  in  which  State 
activities  and  decisions  escape  democratic  or  judicial  scrutiny  on  account  of  their 
confidential or secret nature”198, 

because  the  public  rely  on  the  press  as  their  most  important  purveyor  of  information 
concerning these matters to monitor the actions of the government. 

Therefore,  the  conviction  of  a  journalist  for  disclosing  information  considered  to  be 
confidential or secret may have the effect of a censorship and discourage those working 
in the media from informing the public, that the press may no longer be able to play its 
vital role as “public watchdog”, and that the ability of the press to provide accurate and 
reliable  information may be adversely affected.199 Consequently, a fair balance between 
interest  in  the  public’s  being  informed  and  the  “duties  and  responsibilities”  of  the  press 
could justify the publication of such documents. 

In this context, the ECtHR reviews with great scrutiny whether the objective of protecting 
fiscal  confidentiality,  for  example,  constitutes  a  relevant  and  sufficient  justification  with 
regard to the interference with the right of freedom of expression.200 

It declares that 

“in essence, that Article leaves it for journalists to decide whether or not it is necessary 
to  reproduce  such  documents  to  ensure  credibility  and  reiterates  that  it  protects 
journalists’  right  to  divulge  information  on  issues  of  general  interest  provided  that  they 
are  acting  in  good  faith  and  on  an  accurate  factual  basis  and  provide  “reliable  and 
precise” information in accordance with the ethics of journalism.”201 

Where  this  is  given  in  connection  with  the  specific  case,  the  interest  of  the  public  in 
obtaining  information  is  overweighing,  even  if  the  publication  of  some  information  is 
prohibited. 

The  same  issue  is  dealt  with  by  a  case202  in  which  a  radio  station  was  sanctioned  for 
broadcasting  a  telephone  conversation  of  a  politician,  which  was  unlawfully  obtained. 
Since  the  journalists  of  the  station  were  acting  in  good  faith  and  the  reputation  of  the 
politician  was  not  tarnished,  their  being  sanctioned  was  a  violation  of  their  right  of 
freedom of expression. 

With regard to all of these issues mentioned above one may refer to the Declaration by 
the  Committee  of  Ministers  on  the  protection  and  promotion  of  investigative 
journalism203, which, for example, pursues the goal to protect and facilitate the work of 
the journalists by the requirement of ensuring the personal safety of media professionals 
and their access to information. 

198  Stoll v. Switzerland, judgment of 10 December 2007, Appl. 69698/01, § 110.
 
199  Stoll v. Switzerland, op. cit., § 110 and 154.
 
200 

201 

Fressoz and Roire v. France, op. cit., §§ 52 and 53.
 
Fressoz and Roire v. France, op. cit., § 54.
 

202  Radio Twist S.A. v. Slovakia, judgment of 19 December 2006, Appl. 62202/00.
 
203  Declaration  by  the  Committee  of  Ministers  on  the  protection  and  promotion  of  investigative  journalism,  


adopted on 26.09.2007. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  ECtHR  ruled  in  Affaire  Poyraz  v  Turkey  that  the  communication  or  publication  of 
confidential material is not covered by Art. 10 ECHR.204 Regarding the privileged position 
of  public  officers  (in  this  case  the  chief  inspector  of  the  Ministry  of  Justice)  benefiting 
from  the  access  to  the  media,  they  must  exercise  their  freedom  of  expression  in  a 
restrained  manner  (“faire  montre  de  retenue”)  to  avoid  an  imbalance  in  relation  to 
“ordinary citizens” who have limited access to the media. 

Besides,  there  is  the  Recommendation  No.  R  (96)  4205  which  provides  to  especially 
protect journalistic work also in situations of conflict and tension. 

1.3.2.2.13. 

Politicians entitled by Art. 10 ECHR 

Freedom  of  expression  is  not  only  a  right  that  may  conflict  with  the  reputation  of 
politicians,  but  also  plays  a  vital  role  in  political  actions  in  general.  For  example, 
politicians can refer to this right with regard to their speeches. 

“In a democracy, Parliament or such comparable bodies are the essential fora for political 
debate. Very weighty reasons must be advanced to justify interfering with the freedom of 
expression exercised therein.”206 

Nevertheless,  it  is  possible  that  conflicting  rights  of  others  justify  a  restriction  of  their 
freedom  of  expression.  In  1988,  a  politician  reacted  to  an  article  in  a  local  newspaper 
about him and his actions in the past by calling this work “Nazi-Journalism”. Thereupon, 
an injunction was issued against him prohibiting him from repeating the statement. The 
Court207 ruled that there was no violation of Art. 10. Although it held that the article itself 
was  defamatory,  it  had  particular  regard  to  the  special  stigma  that  are  attached  to 
activities  inspired  by  national-socialist  ideas.  Besides,  it  took  into  consideration  that, 
according  to  Austrian  legislation,  it  is  a  criminal  offence  to  perform  such  activities  and 
that  the  applicant  was  only  prohibited  from  repeating  his  statement  or  the  making  of 
similar  statements.  He  had  still  been  entitled  to  express  his  opinion  in  other  words  or 
ways. Such an interference was therefore “necessary in a democratic society”. 

  Election time 

In the Bowman case208, the politician Bowman was charged with an offence because he 
had distributed more than one million leaflets. The Court held that this measure was an 
interference  with  the  freedom  of  expression  of  the  politician,  but  that  it  did  pursue  the 
legitimate aim of protecting the rights of others, namely the candidates for election and 
the electorate. 

It  considered  that  this  action  was  also  necessary  in  a  democratic  society  because  free 
elections, particularly freedom of political debate – besides the freedom of expression –, 
form the bedrock of any democratic system. These two rights determine each other.  

204  Affaire Poyraz v. Turkey, judgment of 7 December 2010, Appl. 15966/06.
 
205  Recommendation  No.  R  (96)  4  of  the  Committee  of  Ministers  to  Member  States  on  the  protection  of
 

206 

journalists in situations of conflict and tension, adopted on 3 May 1996. 
Jerusalem v. Austria, op. cit., § 40. 

207  Andreas Wabl v. Austria, judgment of 21 March 2000, Appl. 24773/94. 
208  Bowman v. the UK, judgment of 19 February 1998, Appl. 24839/94. 

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The Court notes that 

“freedom of expression is one of the 'conditions' necessary to 'ensure the free expression 
of the opinion of the people in the choice of the legislature.”209 

For  this  reason,  it  is  particularly  important  in  the  period  preceding  an  election  that 
opinions and information of all kinds are permitted to circulate freely. However, even at 
the  time  of  elections,  these  two  rights  can  conflict,  meaning  that  certain  restrictions, 
which usually would not be accepted as compatible with Art. 10, can be required. It can 
be  concluded  that  the  states  are  free  within  their  margin  of  appreciation  to  rule  the 
elections to guarantee free elections as a democratic state’s need, but they are obliged to 
exactly analyse if there are other measures thinkable to reach this aim, and avoid total 
barriers, such as in the Bowman case. 

  Restrictions on political activities 

Another example of national measures restricting the actions of a politician are rules that 
restrict  the  participation  of  a  substantial  number  of  local  government  officers  in  certain 
kinds of political activities. In its judgment210, the Court held that this interference with 
Art. 10 can be justified by the legitimate aim of the protection of an effective democracy. 

However, this aim cannot eo ipso suffice as a justification of interference with the rights 
guaranteed  by  Art.  10.  Otherwise,  both  the  interests  served  by  democratic  institutions 
such  as  local  authorities  and  the  need  to  make  provision  to  secure  their  proper 
functioning – where this is considered necessary to safeguard those interests – would be 
overlooked. 

“The  Court  recalls  in  this  respect  that  democracy  is  a  fundamental  feature  of  the 
European  public  order.  This  is  apparent  from  the  Preamble  to  the  Convention,  which 
establishes  a  very  clear  connection  between  the  Convention  and  democracy  by  stating 
that the maintenance and further realisation of human rights and fundamental freedoms 
are best ensured on the one hand by an effective political democracy and on the other by 
a common understanding and observance of human rights.” 

There is also a bond of trust between elected council members and the local government 
officers.  The  former  bank  on  the  loyalty  and  support  of  the  impartial  officers.  Besides, 
there  is  the  expectation  of  the  citizens  that  the  council  members  they  have  voted  for 
behave  in  accordance  with  their  election  pledges.  Therefore,  the  rights  of  the  council 
members and the electorate can be considered as legitimate aims within the meaning of 
Art.  10(2).  The  Court  examined  whether  a  pressing  social  need  exists  and  whether  the 
restrictions were proportionate to the pursued aim. In the present case, there had been 
an  abuse  of  power  by  certain  local  government  officers  which  was,  in  the  view  of  the  
ECtHR, a sufficient reason to establish a pressing social need. 

In 1999, a similar case211 was decided. In Hungary, a law was enacted which prohibited 
members of the armed forces, the police and security services from joining any political 
party  and  from  engaging  in  any  political  activity.  The  Court  agreed  that  there  was  an 
interference  with  the  right  of  freedom  of  expression,  but  found  that  having  a  politically 
neutral police force is a legitimate aim. According to the Court, the Hungarian state could 
also  restrict  the  freedom  of  the  police  with  regard  to  their  margin  of  appreciation  and 
their historical background. 

209  Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Appl. 9267/81, § 54. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The Court also stated that an absolute ban is not compatible with Art. 10 ECHR and that 
policemen are entitled to 

“undertake  some  activities  enabling  them  to  articulate  their  political  opinions  and 
preferences.” 

1.3.2.3.  Interferences according to Art. 10 ECHR 

1.3.2.3.1. 

State measures 

According to Art. 10(2) ECHR, interferences are possible by state measures in the form of 
formalities,  conditions,  restrictions  or  penalties.  States  can  interfere  with  the  rights  of 
Art. 10 ECHR if they enact a law which affects the legal sphere of the citizens. The same 
could  apply  to  administrative  action  by  state  authorities  as  well  as  national  court 
decisions, which confirm the legality of such action, based on national law. 

1.3.2.3.2. 

Positive obligations 

Recently,  the  ECtHR  again  dealt  with  the  question  as  to  whether  Art.  10  ECHR  creates 
positive obligations on Member States to take measures protecting the right to freedom 
of expression. 

The case which the judges had to decide upon was about a journalist who was sentenced 
because  of  his  critical  stance  on  society.  A  short  time  later  he  was  murdered  by 
nationalist  extremists.  The  national  authorities  did  not  take  any  safeguard  measures 
although there were concrete indications of an attempt on the life of the journalist. 

In this context, the Strasbourg Court stressed that 

“the  states  are  required  to  create  a  favourable  environment  for  participation  in  public 
debate by all the persons concerned, enabling them to express their opinions and ideas 
without fear.”212 

It drew the conclusion that this requirement leads to a “positive obligation” to protect the 
right to freedom of expression against attack, also by private individuals, whereas it also 
clarified that a potential failure can be vindicated by a “pressing social need”. 

Consequently,  states  are  not  only  obliged  to  refrain  from  interferences  with  the  rights 
guaranteed by Art. 10 ECHR, but also to be active in protecting these ones subject to the 
limits referred to in paragraph 2 of Art. 10 ECHR. 

1.3.2.3.3. 

“Third-party applicability” 

There  is  the  question  as  to  whether  an  interference  is  only  thinkable  by  means  of  a 
contracting state or also by private individuals. 

It  has  not  been  conclusively  clarified  whether  the  rights  of  the  Convention  have  a  so-
called  “third-party  applicability”  (Drittwirkung),  but  in  any  event  the  Contracting  States 
have  positive  obligations  to  ensure  compliance  with  these  rights,  because,  according  to 
the Court, 

210	  Ahmed and Others v. the UK, judgment of 2 September 1998, Appl. 22954/93, § 52. 
211	  Rekvény v. Hungary, judgment of 20 May 1999, Appl. 25390/94. 
212	  Dink  v.  Turkey,  judgment  of  14  September  2010,  Appl.  2668/07,  6102/08,  30079/08,  7072/09  and 

7124/09, § 137. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

“the  genuine  and  effective  exercise  of  freedom  of  expression  under  Article  10  may 
require  positive  measures  of  protection,  even  in  the  sphere  of  relations  between 
individuals.”213 

Therefore,  the  states  can  be  responsible  for  a  breach  of  Article  10  even  by  a  private 
person, if they do not attend to their duties. The subject of a decision by the ECtHR is the 
domestic  court’s  ruling,  which  judges  the  national  litigation  between  private  individuals. 
Thus, it can be assumed that there is not a direct but at least an indirect applicability of 
the  Convention  between  private  individuals.  For  example,  the  Court  affirmed  such  an 
indirect applicability to relations between employer and employee.214 

In fulfilling their responsibilities the States especially have to ensure that the freedom of 
expression of journalists working in public broadcasting companies is respected, because  

“subject  to  the  conditions  set  out  in  Article  10  §  2,  journalists  have  a  right  to  impart 
information. The protection of Article 10 extends to employed journalists and other media 
employees. An employed journalist can claim to be directly affected by a general rule or 
policy  applied  by  his  employer  which  restricts  journalistic  freedom.  A  sanction  or  other 
measure  taken  by  an  employer  against  an  employed  journalist  can  amount  to  an 
interference with freedom of expression.”215 

Therefore, interferences are possible, if there is a policy of restricting an open discussion 
or  the  expression  of  several  opinions  as,  for  example,  they  were  considered  to  be 
disturbing or politically sensitive.216 

In  this  context,  the  Court  had  to  decide  a  case217  in  which  a  journalist  criticised  the 
programming  changes  of  a  public  State-owned  broadcasting  company.  Regarding  their 
own finding that employees owe to their employer a duty of loyalty and discretion218, the 
judges  focused  on  the  question  of  where  the  limits  of  loyalty  of  journalists  working  for 
such companies are. 

The Court emphasised that  

“where  a  State  decides  to  create  a  public  broadcasting  system,  the  domestic  law  and 
practice  must  guarantee  that  the  system  provides  a  pluralistic  audiovisual  service.  (...) 
Under the applicable legislation the public television company was charged with a special 
mission including, among other things, assisting the development of culture, with special 
emphasis on Polish intellectual and artistic achievements.”219 

Also as an  employee of a public television company, a journalist has the task to impart 
information  and  ideas  by  his  own.  Therefore,  the  obligation  of  discretion  and  constraint 
cannot be said to apply with equal force to journalists. Criticising the programme has  a 
cultural  relevance  and,  thus,  it  is  a  matter  of  public  interest,  which  a  journalist  has  the 
right  and  the  obligation  to  comment  on.  The  obligation  of  loyalty  must  be  weighed 
against  this  as  well  as  against  the  public  character  of  the  broadcasting  company  when 
examining  whether  there  is  a  pressing  social  need  that  can  justify  an  interference  as 
necessary in a democratic society. 

213  Özgür Gündem v. Turkey, judgment of 16 March 2000, Appl. 23144/93, § 43.
 
214 
Fuentes Bobo v. Spain, judgment of 29 February 2000, Appl. 39293/98.
 

215  Manole and others v. Moldova, op. cit., § 103; Fuentes Bobo v. Spain, op. cit. § 38.
 
216  Manole and others v. Moldova, op. cit., § 106.
 
217  Wojtas-Kaleta v. Poland, judgment of 16 July 2009, Appl. 20436/02.
 
218  Vogt v. Germany, judgment of 26 September 1995, Appl. 17851/91, § 53.
 
219  Wojtas-Kaleta v. Poland, op. cit., § 47. 


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In  conclusion,  within  their  margin  of  appreciation  the  States  always  are  called  upon  to 
find a proportionate relation between the individual rights guaranteed by Art. 10 and its 
institutional aspects. 

1.3.2.4.  Legality of interferences 

Although  the  measure  in  question  could  interfere  with  Art.  10  ECHR,  it  could  be 
“prescribed by law” and therefore be a legitimate restriction of Art. 10 ECHR. This is the 
case if the aim which, the measure claims to pursue, is legitimate according to Art. 10(2) 
ECHR and is “necessary in a democratic society”. 

1.3.2.4.1. 

Prescription by law 

Concerning  the  expression  “prescribed  by  law”  the  ECtHR  declares,  firstly,  that  the 
impugned  measure  should  have  some  basis  in  domestic  law.  The  term  “law”  includes 
both  “written  law”,  encompassing  enactments  of  lower  ranking  statutes  and  regulatory 
measures taken by professional regulatory bodies under independent rule-making powers 
delegated  to  them  by  Parliament,  and  unwritten  law.  Furthermore  “law”  must  be 
understood to include both statutory law and “judge-made law”.220 Besides, 

“it also refers to the quality of law, which requires that legal norms should be accessible 
to the person concerned, their consequences foreseeable and their compatibility with the 
rule of law ensured.”221 

“Firstly  the  law  must  be  adequately  accessible:  the  citizen  must  be  able  to  have  an 
indication  that  is  adequate  in  the  circumstances  of  the  legal  rules  applicable  to  a  given 
case.  Secondly  a  norm  cannot  be  regarded  as  a  'law'  unless  it  is  formulated  with 
sufficient  precision  to  enable  the  citizen  to  regulate  his  conduct:  he  must  be  able  –  if 
need  be  with  appropriate  advice  –  to  foresee,  to  a  degree  that  is  reasonable  in  the 
circumstances,  the  consequences  which  a  given  action  may  entail.  These  consequences 
need  not  be  foreseeable  with  absolute  certainty:  experience  shows  this  to  be 
unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive 
rigidity and the law must be able to keep pace with changing circumstances. Accordingly, 
many  laws  are  inevitably  couched  in  terms  which,  to  a  greater  or  lesser  extent,  are 
vague and whose interpretation and application are questions of practice.”222 

For example, the ECtHR found223 that the terms “behaviour contra bonos mores” were so 
unprecise  that  it  was  not  apparent  to  the  applicants  or  anyone  what  to  do  or  to  refrain 
from doing in order to behave lawfully, meaning an interference by a public authority was 
not “prescribed by law”. 

1.3.2.4.2. 

Legitimate aim and necessity in a democratic society 

If  the  interference  is  “prescribed  by  law”,  it  must  safeguard  one  of  the  legitimate  aims 
listed in Art. 10(2) ECHR such as “the interests of national security”, “territorial integrity 
or  public  safety”,  “the  prevention  of  disorder  or  crime”,  “the  protection  of  health  or 
morals”,  “the  protection  of  the  reputation  or  the  rights  of  others”  or  “the  disclosure  of 
information received in confidence”. 

220  Sanoma Uitgevers B.V. v. the Netherlands, judgment of 14 September 2010, Appl. 38224/03, § 83.
 
221  See among others: Association Ekin v. France, judgment of 17 July 2001, Appl. 39288/98, § 44.
 
222  Sunday Times v. UK, judgment of 26 April 1979, Appl. 6538/74, § 49.
 
223  Hashman and Harrup v. the U.K., judgment of 25 November 1999, Appl. 25594/94.
 

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With regard to the question, whether the measure is “necessary in a democratic society”, 
the ECtHR noted that 

“whilst  the  adjective  'necessary',  within  the  meaning  of  Article  10  para.  2,  is  not 
synonymous  with  'indispensable',  the  words  'absolutely  necessary'  and  'strictly 
necessary'  and,  in  Article  15  para.  1,  the  phrase  'to  the  extent  strictly  required  by  the 
exigencies  of  the  situation',  neither  has  it  the  flexibility  of  such  expressions  as 
'admissible',  'ordinary',  'useful',  'reasonable'  or  'desirable'  and  that  it  implies  the 
existence of a 'pressing social need'.”224 

It  has  to  satisfy  itself  that  the  national  authorities  applied  standards  which  were  in 
conformity  with  the  principles  embodied  in  Art.  10,  and  it  determines  whether  the 
interference  is  “proportionate  to  the  legitimate  aims  pursued”  and  whether  the  reasons 
adduced by the national authorities to justify it are “relevant and sufficient”; in this, the 
background to the case submitted to it, particularly national problems, play a role. 

“When examining, the Court is faced not with a choice between two conflicting principles, 
but  with  a  principle  of  freedom  of  expression  that  is  subject  to  a  number  of  exceptions 
which must be narrowly interpreted.”225 

1.3.2.4.3. 

Margin of appreciation 

When assessing whether the requirements are met, the national courts may refer to the 
so-called  doctrine  of  the  “margin  of  appreciation”.  This  means  that  the  states  are  in  a 
better  position  to  estimate  the  particular  local  circumstances  that  have  an  influence  on 
the (perceived) existence of a pressing social need, and, therefore, are to estimate based 
on the content of these requirements. 

It is for the national authorities – the domestic legislator and the bodies, judicial amongst 
others – to make the initial assessment of the reality of the pressing social need. 

This margin is not unlimited: 

“Article  10  para.  2  does  not  give  the  Contracting  States  an  unlimited  power  of 
appreciation. The Court, which, [...] is responsible for ensuring the observance of those 
States’  engagements  (Article  19),  is  empowered  to  give  the  final  ruling  on  whether  a 
"restriction"  or  "penalty"  is  reconcilable  with  freedom  of  expression  as  protected  by 
Article  10.  The  domestic  margin  of  appreciation  thus  goes  hand  in  hand  with  European 
supervision.  Such  supervision  concerns  both  the  aim  of  the  measure  challenged  and  its 
"necessity"; it covers not only the basic legislation but also the decision applying it, even 
one given by an independent Court.”226 

In  addition,  when  exercising  its  supervision,  the  ECtHR  observes  the  case  as  a  whole, 
including  the  content  of  a  statement  and  the  context  in  which  it  was  made.  It  sees  its 
task  not  in  substituting  the  national  assessment  on  its  own.  In  fact,  it  reviews  the 
decisions  which  the  domestic  courts  delivered  pursuant  to  their  power  of  appreciation, 
and  examines  whether  the  interference  is  proportionate  to  the  aim,  and  whether  the 
reasons which shall justify it are “relevant and sufficient.”227 

224  Handyside v. the U.K., op. cit., § 48. 
225  Sunday Times v. the U.K., op. cit., § 65. 
226  Handyside v. the U.K., op. cit., § 49. 
227  Handyside v. the U.K., op. cit., § 50. 

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1.3.2.4.4. 

Public debate 

Especially, there is little scope for restrictions on political speech or on questions of public 
interest.228 Besides political and social issues, the ECtHR has also accepted topics related 
to  private  corporations  and  their  executives229,  health  and  science230, 
foreign 
countries231, and those relating to the public interest. 

The Court232 emphasises that the principles mentioned are of particular importance with 
regard to the press and carries out a careful scrutiny of measures which concern it. While 
the  press  must  not  overstep  the  bounds  set,  inter  alia,  for  “the  protection  of  the 
reputation of others”, its task is, nevertheless, to impart – in a manner consistent with its 
obligations  and  responsibilities  –  information  and  ideas  on  political  issues  and  on  other 
matters of general interest. 

For  the  examination  of  the  legality  of  interferences  in  this  area,  this  means  that 
conflicting rights have to be particularly  important to outweigh the freedoms of Art. 10, 
while there have to be exceptional circumstances to justify such interferences. 

1.3.2.5.  Freedom of information 

Free public debate does not only depends on the protection of the expression of opinions 
but also on the possibility to receive information and ideas to build one’s own opinion. 

In this context the Committee of Ministers stressed233 

“that  media  transparency  is  necessary  to  enable  members  of  the  public  to  form  an 
opinion  on  the  value  which  they  should  give  to  the  information,  ideas  and  opinions 
disseminated by the media.” 

Thus  it  recommends  in  the  recommendation  that  the  Member  States  shall  guarantee  or 
promote  media  transparency  as  well  as  to  facilitate  exchanges  of  information  between 
Member  States  on  this  topic.  The  Appendix  of  this  Recommendation  provides  several 
measures  for  the  states  to  fulfil  the  mandate  in  both  the  broadcasting  and  the  press 
sector. 

Therefore,  Art.  10  ECHR  protects  the  right  to  receive  information,  also  including  the 
collection of information besides very passive reception.234 The ECtHR often reiterates in 
its judgments that 

“not  only  does  the  press  have  the  task  of  imparting  such  information  and  ideas:  the 
public also has the right to receive them. Were it otherwise, the press would be unable to 
play its vital role of ‘public watchdog’.”235 

It approved the “right of the public to be properly informed” and “the public’s right to be 
informed of a different perspective.”236 

228  Wingrove v. the U.K., judgment of 25 November 1996, Appl. 17419/90, § 58.
 
229  See Fressoz and Roire v. France, judgment of 21 January 1999, Appl. 29183/95.
 
230  See Sunday Times v. UK, op. cit.
 
231  See Colombani v. France, op. cit. 

232  Sunday Times  v. UK, op. cit., § 65; Lingens vs. Austria, op. cit., §§ 41ff.; Oberschlick  v. Austria (no.2), 


judgment of 1 July 1997, Appl. 20834/92, § 29. 

233  Recommendation No. R (94) 13 of the Committee of Ministers to Member States on measures to promote 

Media Transparency, adopted on 22 November 1994. 

234  Grabenwarter, ibid., § 23 rec. 6. 
235  Sunday Times v. the U.K., op. cit., § 50, Lingens vs. Austria, op. cit., § 41., Jersild v. Denmark, op. cit., § 

31. 

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In Recommendation Rec(2007)2237 the Committee of Ministers recommends – especially 
by  recalling  Art.  10  ECHR  (guaranteeing  freedom  of  expression  and  freedom  to  receive 
and  impart  information  and  ideas  without  interference  by  a  public  authority  and 
regardless of frontiers) – “measures promoting the structural pluralism of the media” by 
addressing ownership regulation, public service and other media contributing to pluralism 
as  well  as  diversity  and  access  regulation  and  interoperability.  Furthermore,  the 
Convention addresses “measures promoting content diversity” and describes the content 
of information to safeguard “media transparency”. 

There is the question as to whether and to what extent Art. 10 is able to grant a right to 
receive  information  that  is  not  generally  accessible.  In  former  judgments,  the  Court 
declared that 

“article  10  does  not  confer  on  the  individual  a  right  of  access  to  a  register  containing 
information  on  his  personal  position,  nor  does  it  embody  an  obligation  on  the 
Government to impart such information to the individual”238 

and that 

“[t]hat  freedom  cannot  be  construed  as  imposing  on  a  State  positive  obligations  to 
collect and disseminate information of its own motion.”239 

Therefore, the failure by the authorities to spread information could not be a violation of 
the  right  to  receive  information.  These  cases  have  to  be  distinguished  from  those 
hindering the public from receiving information from independent media that fulfils their 
task  of  a  public  watchdog,  or  from  freely  accessible  information  resources.  In  this 
context, the ECtHR ruled that 

“Article  10  prohibits  a  Government  from  restricting  a  person  from  receiving  information 
that others wish or may be willing to impart to him.”240 

At  a  later  time,  the  Court  addressed  the  issue  as  to  whether  the  public  has  a  right  to 
access  public  documents.  In  a  case241  where  a  request  for  access  to  administrative 
documents was refused by the authorities, the judges explicitly accepted the applicability 
of  Art.  10  and  further  held  that  this  refusal  is  an  interference  with  the  right  to  receive 
information, which has to meet the requirements of Art. 10(2). Hence, this right is not an 
absolute  one.  The  Court  emphasises  that,  as the  exercising of  this  right  can  violate  the 
right of others, the security of the state or public health, the scope of the right to have 
access to the respective information is limited.242 

Moreover, the Court also declared in these cases that 

“it  is  difficult  to  derive  from  the  Convention  a  general  right  of  access  to  administrative 
data and documents.”243 

236  Sener v. Turkey, judgment of 18 July 2000, Appl. 26680/95, § 45.
 
237  Recommendation  Rec(2007)2  of  the  Committee  of  Ministers  to  Member  States  on  media  pluralism  and
 

238 

diversity of media content, adopted by the Committee of Ministers on 31 January 2007. 
Leander v. Sweden, judgment of 26 March 1987, Appl. 9248/81, § 74. 

239  Guerra and others v. Italy, judgment of 19 February 1998, Appl. 14967/89, § 53. 
240 

Leander v. Sweden, op. cit., § 74. 

241  Sdruženi Jihočeské Matky v. Czech Republic, judgment of 10 July 2006, Appl. 19101/03. 
242  Sdruženi Jihočeské Matky v. Czech Republic, op. cit. 
243 

Loiseau v. France, judgment of 28 September 2004, Appl. 46809/99. 

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to  Hungary’s  Constitutional  Court 

Nevertheless,  in  2009,  the  ECtHR  continued  its  jurisdiction  on  this  matter.  In  the 
respective  case,  a  request 
to  disclose  a 
parliamentarian’s  complaint  questioning  the  legality  of  new  criminal  legislation,  was 
denied.  The  Court  noted  that  with  regard  to  the  importance  of  the  contribution  to  the 
discussion  of  public  affairs,  free  access  to  information  plays  a  vital  role  for  an  informed 
public debate on matters of public interest. Furthermore Art. 10 ECHR does not accept a 
law allowing arbitrary restrictions. If the states should create obstacles to the gathering 
of information it could result in a form of indirect censorship.244 

Regarding  the  “censorship-effect”  of  an  information  monopoly,  the  Court  saw  an 
interference  with  the  exercise  of  the  functions  of  a  public  watchdog  by  the  press. 
Moreover,  the  State’s  obligations  in  matters  of  freedom  of  the  press  include  the 
elimination  of  barriers  to  the  exercise  of  press  functions  where,  in  issues  of  public 
interest,  such  barriers  exist  solely  because  of  an  information  monopoly  held  by  the 
authorities.  The  same  would  apply  to  private  organisations  which  the  Court  also 
categorised  as  a  ‘public  watchdog’.  Since  the  requested  information  was  ready  and 
accessible,  it  considered  that  the  State  had  an  obligation  not  to  impede  the  flow  of 
information sought by the applicant. Thus, a violation of Art. 10 was affirmed. 

Although  the  judges  recalled  that  it  was  difficult  to  derive  a  general  right  of  access  to 
administrative documents, they also said that 

“the  Court  has  recently  advanced  towards  a  broader  interpretation  of  the  notion  of 
freedom to receive information and thereby towards the recognition of a right of access 
to information.”245 

Therefore,  one  may  draw  the  conclusion  that  the  ECtHR  obviously  tends  towards  an 
acceptance of the right of access to public documents. 

In this context, it has to be noted that Recommendation Rec (2002) 2246 provides that 

“Member  States  should  guarantee  the  right  of  everyone  to  have  access,  on  request,  to 
official documents held by public authorities.” 

However,  it  also  admits  that  limitations,  if  they  are  set  down  precisely  in  law,  are 
necessary in a democratic society and are proportionate to the aim of protecting. As yet 
the Court has not referred to this Recommendation in its decisions. 

The  special  significance  of  the  right  to  receive  information  especially  became  clear  in  a 
case247  which  the  Court  had  to  decide  in  2008.  The  Court  classified  the  possibility  of 
foreign  residents  to  have  access  to  information  concerning  matters  of  their  country  of 
origin to be so important that it outweighs even other constitutionally guaranteed rights, 
such as property rights. The judges found that 

“that  information  included,  for  instance,  political  and  social  news  that  could  be  of 
particular interest to the applicants as immigrants from Iraq. Moreover, while such news 
might be the most important information protected by Article 10, the freedom to receive 
information  does  not  extend  only  to  reports  of  events  of  public  concern,  but  covers  in 
principle also cultural expressions as well as pure entertainment. The importance of the 

244 

245 

Társaság a Szabadságjogokért v. Hungary, judgment of 14 April 2009, Appl. 37374/05, § 27; see mutatis 
mutandis Kenedi v. Hungary, judgment of 26 May 2009, Appl. 31475/05. 
Társaság a Szabadságjogokért v. Hungary, op. cit., § 35. 

246  Recommendation  Rec  (2002)  2  of  the  Committee  of  Ministers  to  Member  States  on  access  to  official 

documents, adopted on 21 February 2002. 

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latter  types  of  information  should  not  be  underestimated,  especially  for  an  immigrant 
family  with  three  children,  who  may  wish  to  maintain  contact  with  the  culture  and 
language of their country of origin.”248 

Therefore,  a  landlord  could  not  lawfully  demand  from  his  tenants  the  dismantling  of  a 
satellite dish. 

1.3.2.6.  The freedom of the press 

The  press  contributes  to  the  societal  opinion-forming  process  by  the  special  form  of 
distribution  of  information  in  textform  by  its  articles  in  newspapers  and  journals.  The 
freedom  of  the  press  takes  a  special  position  because  it  corresponds  to  the  right  of  the 
public  to  receive  this  information  in  the  interest  of  free  and  open  public  debate.  In  this 
context the ECtHR frequently states that 

“it is nevertheless incumbent on it to impart information and ideas of public interest. Not 
only  does  the  press  have  the  task  of  imparting  such  information  and  ideas:  the  public 
also has a right to receive them. Were it otherwise, the press would be unable to play its 
vital role of public watchdog.”249 

Concerning  bounds  set  to  the  press,  Art.  10(2)  ECHR  provides  that  the  exercise  of  this 
freedom carries with it “duties and responsibilities”, which, however, apply to all forms of 
media.  These  “duties  and  responsibilities”  are  of  concern  if  the  reputation  of  private 
individuals  is  attacked  and  “rights  of  others”  are  undermined.  Where  there  is  the 
question  of  attacking  the  reputation  of  individuals  and  thus  undermining  their  rights  as 
guaranteed in Art. 8 ECHR regard must be had for the fair balance which has to be struck 
between  the  competing  interests of  the  individual  and  of  the  community  as  a whole.  In 
both contexts the State enjoys a certain margin of appreciation.250 

Furthermore, the safeguard afforded by Art. 10 ECHR is subject to the provisions that the 
journalists are acting in good faith in order to provide accurate and reliable information in 
accordance  with  the  ethics  of  the  profession  of  journalism.251  The  Court  claims  that 
journalists  shall,  besides  further  possible  investigations,  contact  the  person  that  is 
concerned  by  their  articles  and  ask  their  opinion  on  the  matter.  Moreover,  this  person 
has  a  right  to  publish  a  reply252,  which  also  finds  a  basis  in  the  Recommendation  Rec 
(2004)16.253 

In the case Kaperzyńki v. Poland254, the ECtHR noted that it is necessary to protect the 
freedom of expression of the person having submitted a request for rectification, so that 
it is possible to maintain a balance of power between the media and persons submitting 
requests  for  rectification  to  be  published,  with  the  latter  generally  having  more  limited 
opportunity to publicly express their views. The Court is further of the view “that a legal 
obligation  to  publish  a  rectification  or  a  reply  may  be  seen  as  a  normal  element  of  the 
legal framework governing the exercise of the freedom of expression by the print media. 
It  cannot,  as  such,  be  regarded  as  excessive  or  unreasonable.  Indeed,  the  Court  has 

247	  Khurshid Mustafa und Tarzibachi v. Sweden, judgment of 16 December 2008, Appl. 23883/06. 
248	  Khurshid Mustafa und Tarzibachi v. Sweden, op. cit., § 44. 
249	  Observer and Guardian v. the U.K., judgment of 26 November 1991, Appl. 13585/88, § 59. 
250	 

Pfeifer  v.  Austria,  judgment  of  15  November  2007,  Appl.  12556/03,  §  35;  Von  Hannover  v.  Germany, 
judgment of 24 June 2004, Appl. 59320/00, § 57. 

251	  Goodwin  v.  the  U.Kop.  cit.,  §  39;  Fressoz  and  Roire  v.  France,  judgment  of  21  January  1999,  Appl. 

252	 

29183/95, § 54. 
Flux v. Moldova, judgment of 29 July 2008, Appl. 22824/04, § 29. 

253	  Recommendation Rec(2004)16 of the Committee of Ministers to Member States on the right of reply in the 

new media environment, adopted on 15 December 2004. 

254	  Kaperzyńki v. Poland, judgment of 3 April 2012, Appl. 43206/07, § 66. 

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already  held  that  the  right  of  reply,  as  an  important  element  of  freedom  of  expression, 
falls within the scope of Article 10 of the Convention. This flows from the need not only to 
be  able  to  contest  untruthful  information,  but  also  to  ensure  a  plurality  of  opinions, 
especially on matters of general interest such as literary and political debate”255. 

The  examination  especially  depends  on  the  nature  and  degree  of  the  defamation,  the 
manner in which the impugned article was written and the extent to which an article can 
reasonably regard its sources as reliable with respect to the allegations in question.  

Further  factors  that  have  to  be  considered  when  assessing  the  proportionality  of 
sanctions  or  other  measures  are  the  nature  and  severity  of  the  penalties.256  These  are 
capable of hampering journalistic work and of discouraging the participation of the media 
in debates over matters of legitimate public concern, the so-called “chilling effect”. In this 
context  the  ECtHR  considered  unpredictably  large  damages  capable  of  having  a  chilling 
effect  on  the  press  and,  therefore,  requiring  the  most  careful  scrutiny.257  Therefore,  in 
the  case  Kaperzyńki  v.  Poland  the  Court  was  of  the  view  “that  a  criminal  sentence 
depriving a media professional of the right to exercise his or her profession must be seen 
as very harsh. Moreover, it heightens the above mentioned danger of creating a chilling 
effect  on  the  exercise  of  public  debate.  Such  a  conviction  imposed  on  a  journalist  can 
only  be  said  to  have,  potentially,  an  enormous  dissuasive  effect  for  an  open  and  
unhindered public debate on matters of public interest”258. 

1.3.2.7.  Freedom of broadcasting 

In contrast to the protection of freedom of broadcasting by national constitutions, Art. 10 
ECHR  primarily  is  a  human  right  and  not  a  so-called  “dienende  Freiheit”,  the  latter 
meaning  that  the  primary  task  of  this  right  is  to  ensure  the  diversity  of  opinion  in  the 
media.259 

Private  broadcasters  as  well  as  public  broadcasting  corporations  may  refer  to  the 
freedom  of  broadcasting.  This  right  includes  radio,  television  and,  at  least  to  some 
extent,  new  (audiovisual)  media  (information  and  communication)  services.  The 
protected activities range from the organisation of broadcasters to the broadcasting and 
distribution of information as well as to its content.260 

In  the  Court’s  view,  neither  the  fact  that  its  activities  are  commercial  nor  the  intrinsic 
nature  of  freedom  of  expression  can  deprive  one  of  the  protection  of  freedom  of 
broadcasting. It applies to “everyone”, whether natural or legal persons and it applies not 
only  to  the  content  of  information  but  also  to  the  means  of  transmission  or  reception, 
while the actual reception is involved.261 Interferences concerning the means of receiving 
are  also  interferences  with  the  right  of  imparting  and  receiving  information  and  ideas. 
Thus, Art. 10 also protects the right to install antenna systems or satellite dishes. 

In conclusion, both the broadcaster and the broadcast recipient are protected by Art. 10 
ECHR. 

255  See Melnychuk v. Ukraine (dec.), judgment of 5 July 2005, Appl. 28743/03, ECHR 2005-IX.
 
256  Skałka v. Poland, judgment of 27 May 2003, Appl. 43425/98, § 35 and 38.
 
257 

Independent  News  and  Media  and  Independent  Newspapers  Ireland  Limited  v.  Ireland,  judgment  of  16
 
September 2005, Appl. 55120/00, § 114. 

258  Kaperzyńki v. Poland, op. cit., § 74. 
259 

Fink/Cole/Keber, Europäisches und internationales Medienrecht, rec. 255. 

260  Grabenwarter, ibid., § 23, rec. 9. 
261  Autronic AG v. Switzerland, judgment of 22 May 1990, Appl. 12726/87, § 47. 

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According to the Court,  

“broadcasting  is  mentioned  in  the  Convention  precisely  in  relation  to  freedom  of 
expression.  Like  the  Commission,  the  Court  considers  that  both  broadcasting  of 
programmes  over  the  air  and  cable  retransmission  of  such  programmes  are  covered  by 
the  right  enshrined  in  the  first  two  sentences  of  Article  10  para.  1,  without  there  being 
any need to make distinctions according to the content of the programmes.”262 

It  has  to  be  noted  that  the  action  of  persons  who  impart  information  or  ideas  in 
connection with  broadcasting  is  protected  by the  freedom  of  expression.  In this  context 
interferences have to correspond to the requirements which this right imposes. 

Art.  10  ECHR  also  imposes  requirements  on  the  national  framework  regulating  the 
broadcasting system. The Court determined that the  

“effective exercise of freedom of expression does not depend merely on the State’s duty 
not  to  interfere,  but  may  require  it  to  take  positive  measures  of  protection,  through  its 
law  or  practice.  The  Court  considers  that,  in  the  field  of  audiovisual  broadcasting,  the 
above  principles  place  a  duty  on  the  State  to  ensure,  first,  that  the  public  has  access 
through television and radio to impartial and accurate information and a range of opinion 
and  comment,  reflecting  inter  alia  the  diversity  of  political  outlook  within  the  country 
and, secondly, that journalists and other professionals working in the audiovisual media 
are  not  prevented  from  imparting  this  information  and  comment.  The  choice  of  the 
means  by  which  to  achieve  these  aims  must  vary  according  to  local  conditions  and, 
therefore, falls within the State’s margin of appreciation.”263 

The  ECtHR  considered  in  the  case  of  Nur  Radyo  Ve  Televizyon  Yayıncılığı  A.Ş.264  as 
constituting  an  unjustified  interference  with  the  broadcaster’s  right  to  freedom  of 
expression as guaranteed by Article 10 of the ECHR the decision taken by the regulatory 
authority of Turkey to revoke a radio broadcasting license just because in the programme 
a  representative  of  the  Mihr  religious  community  had  described  an  earthquake  in  which 
thousands of people had died in Turkey as a “warning from Allah” against the “enemies 
of  Allah”,  who  had  decided  on  their  “death”.  The  Court  therefore  considered  that  the 
broadcasting  ban  imposed  on  the  applicant  company  had  been  disproportionate  to  the 
aims pursued. 

In order to protect democracy trough media pluralism, the Court stressed that it was not 
sufficient for a State to provide for the theoretical possibility for operators to access the 
audiovisual market. For providers it is necessary to have effective access to that market 
so  as  to  guarantee  diversity  of  the  overall  programme  content,  reflecting  as  far  as 
possible the different opinions in society. 

In the case of Centro Europa 7 S.R.L. and Di Stefano v. Italy265, concerning an Italian TV 
company’s inability to broadcast, despite having obtained a broadcasting licence, because 
no television frequencies were allocated to it, the Court concluded that the Italian laws in 
force at the time had lacked clarity and precision and the Italian authorities had failed to 
put  in  place  an  appropriate  legislative  and  administrative  framework  guaranteeing 
effective  media  pluralism.  Thereby  the  Italian  State  had  undermined  the  freedom  of 

262  Groppera  Radio  AG 

v.  Switzerland, 

judgment  of  28  March  1990,  Appl.  10890/84, 

§ 55. 

263  Manole and others v. Moldova, op. cit., §§ 99-100. 
264  Nur  Radyo  Ve  Televizyon  Yayıncıliğı  A.Ş.  v.  Turkey  (n°  2),  judgement  of  12  October  2010,  Appl.  No. 

42284/05. 

265  Centro Europa 7 S.R.L. and di Stefano v. Italy, judgement of 07 June 2012, Appl. No. 38433/09. 

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expression and the freedom to impart and receive information, reducing the competition 
in the audiovisual sector. 

Underlining  the  importance  of  the  fact  that  the  States  duty  can  also  require  positive 
measures  of  protection,  even  in  the  sphere  of  relations  between  individuals,  the  Court 
states furthermore that the effective exercise of a profession is  equally protected under 
Art. 10 ECHR. 

In  case  of  Frasila  and  Ciocirlan  v  Romania266  the  ECtHR  ruled  that  by  failing  to  take 
effective  measures  to  enable  the  applicants  to  secure  the  enforcement  of  the  court 
decision  -  by  ordering  third  parties  to  grant  them  access  to  the  editorial  office  at  the 
radio  station where  they  worked as  journalists  -  the  Romanian  authorities  had  deprived 
of all useful effect the Convention provisions guaranteeing freedom of expression. 

In  its  Art.  11,  The  “European  Charter  for  Regional  or  Minority  Languages”267  stipulates 
special  requirements  for  the  use  of  regional  or  minority  languages  in  the  media.  This 
applies  to  public  service  broadcasters  since,  for  example,  such  languages  play  a  role  to 
“the  extent  that  radio  and  television  carry  out  a  public  service  mission”,  as  well  as  to 
press  organisations  which,  for  example,  should  encourage  and/or  facilitate  the 
publication of newspaper articles in the regional or minority languages on a regular basis. 

Recommendation Rec (2003) 9268 contains basic principles addressing the issue of digital 
broadcasting.  Especially  public  service  broadcasters  should  preserve  their  special  social 
remit  in  the  new  digital  environment.  Nevertheless,  Member  States  should  assist  public 
service  broadcasters  to  be  present  on  the  different  digital  platforms  (cable,  satellite, 
terrestrial)  with  diverse  quality  programmes  and  services  as  well  as  giving  them  the 
possibility of having access to the necessary financial means to fulfil their remit. 

1.3.2.7.1. 

Public service broadcasting 

Recommendation  CM/Rec(2012)  of  the  Committee  of  Ministers  to  member  States  on 
public service media governance 

With  regard  to  the  public  service  broadcasting  the  ECtHR  refers269  to  Recommendation 
Rec(2007)3  on  “The  remit  of  public  service  media  in  the  information  society”  and  to 
Recommendation  No.  R  (96)  10270  on  “The  Guarantee  of  the  Independence  of  Public 
Service Broadcasting”, including its Appendix which provides inter alia that: 

“Member States have the competence to define and assign a public service remit to one 
or more specific media organisations, in the public and/or private sector, maintaining the 
key elements underpinning the traditional public service remit, while adjusting it to new 
circumstances.  This  remit  should  be  performed  with  the  use  of  state-of-the-art 
technology appropriate for the purpose.” 

The  legal  framework  governing  public  service  broadcasting  organisations  should  clearly 
stipulate their editorial independence and institutional autonomy. 

266 

Frasila and Ciocirlan v. Romania, judgement of 10 May 2012, Appl. No. 25329/03.
 

267  European Charter for Regional or Minority Languages of 5 November 1992. 

268  Recommendation Rec (2003) 9 of the Committee of Ministers to Member States on measures to promote 

the democratic and social contribution of digital broadcasting, adopted by the Committee of Ministers on 
28 May 2003. 

269  Wojtas-Kaleta v. Poland, judgment of 16 July 2009, Appl. 20436/02, § 21; Manole and others v. Moldova, 

op. cit., § 102. 

270  Recommendation No. R (96) 10 of 11 September 1996 of the Committee of Ministers to Member States on 

the guarantee of the independence of Public Service Broadcasting. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  legal  framework  governing  public  service  broadcasting  organisations  should  clearly 
stipulate  that  they  shall  ensure  that  news  programmes  fairly  present  facts  and  events 
and encourage the free formation of opinions. 

The  cases  in  which  public  service  broadcasting  organisations  may  be  compelled  to 
broadcast official messages, declarations or communications, or to report on the acts or 
decisions of public authorities, or to grant airtime to such authorities, should be confined 
to exceptional circumstances expressly laid down in laws or regulations.” 

Recommendation 1878 (2009) Funding of public service broadcasting 

Hence, the Court determined that 

“[w]hile the Court, and previously the Commission, have recognised that a public service 
broadcasting system is capable of contributing to the quality and balance of programmes, 
there is no obligation under Article 10 to put in place such a service, provided that some 
other means are used to the same end. 

Where  a  State  does  decide  to  create  a  public  broadcasting  system,  it  follows  from  the 
principles outlined above that domestic law and practice must guarantee that the system 
provides a pluralistic service. Particularly where private stations are still too weak to offer 
a  genuine  alternative,  and  the  public  or  State  organisation  is  therefore  the  sole  or  the 
dominant  broadcaster  within  a  country  or  region,  it  is  indispensable  for  the  proper 
functioning  of  democracy  that  [broadcasting]  transmits  impartial,  independent  and 
balanced  news,  information  and  comment  and  in  addition  provides  a  forum  for  public 
discussion  in  which  as  broad  a  spectrum  of  views  and  opinions  as  possible  can  be 
expressed.”271 

The Court also ruled that the guarantee of diversity of opinion does not require a public 
monopoly and refused to accept arguments to refuse a licence of the states: 

“Of all the means of ensuring that these values are respected, a public monopoly is the 
one  which  imposes  the  greatest  restrictions  on  the  freedom  of  expression,  namely  the 
total impossibility of broadcasting otherwise than through a national station and, in some 
cases, to a very limited extent through a local cable station. The far-reaching character 
of  such  restrictions  means  that  they  can  only  be  justified  where  they  correspond  to  a 
pressing  need.  As  a  result  of  the  technical  progress  made  over  the  last  decades, 
justification for these restrictions can no longer today be found in considerations relating 
to the number of frequencies and channels available.”272 

1.3.2.7.2. 

Licensing system 

Art. 10(1) sent. 3 allows the Contracting States to require the licensing of broadcasting, 
television or cinema enterprises. However, the Court emphasises that the purpose of this 
last  sentence  and  the  scope  of  its  application  must  be  considered  in  the  context  of  the 
Article  as  a  whole  and,  in  particular,  in  relation  to  the  requirements  of  para.  2.  This 
sentence clarifies 

“that states are permitted to control by a licensing system the way in which broadcasting 
is organised in their territories, particularly in its technical aspects. It does not, however, 
provide  that  licensing  measures  shall  not  otherwise  be  subject  to  the  requirements  of 

271  Manole and others v. Moldova, op. cit., §§ 100 and 101. 
272 

Informationsverein Lentia and others v. Austria, op. cit., § 39. 

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paragraph 2, for that would lead to a result contrary to the object and purpose of Article 
10 taken as a whole.”273 

When  examining,  the  Court  weighs  the  legitimate  need  for  the  quality  and  balance  of 
programmes  in  general  against  the  freedom  of  expression  of  the  applicant,  namely  his 
right  to  impart  information  and  ideas  and  assesses  whether  the  national  measures  are 
justifiable  in  principle  and  proportionate  in  respect  of  the  case  as  a  whole  and  the 
immediate and powerful effect of the media. 

According to Recommendation No. R (99) 1274 

“Member States should monitor the development of the new media with a view to taking 
any measures which might be necessary in order to preserve media pluralism (...).” 

Regarding  the  exigence  of  safeguarding  and  promoting  pluralism  in  the  audio-visual 
media, the states as the ultimate guarantors of the principle of pluralism have to ground 
their  decisions  primarily  on  safeguarding  this,  especially  with  regard  to  broadcasting, 
because of their very wide reach and strong impact on the public.275 Domestic authorities 
have to aim at preventing a one-sided range of programmes.276 

The national courts are allowed to take special national circumstances into account. In its 
Demuth  case  the  Court  had  regard  to  the  decision  of  the  Commission277,  according  to 
which 

“the  particular  political  circumstances  in  Switzerland  (...)  necessitate  the  application  of 
sensitive  political  criteria  such  as  cultural  and  linguistic  pluralism,  balance  between 
lowland and mountain regions and a balanced federal policy”, 

and it accepted the validity of these considerations 

“which  are  of  considerable  importance  for  a  federal  State.  Such  factors,  encouraging  in 
particular  pluralism  in  broadcasting,  may  legitimately  be  taken  into  account  when 
authorising radio and television broadcasts.278 

Moreover, the States are not prohibited from making the granting or refusal of a licence 
conditional  on  other  considerations,  i.e.  such  matters  as  the  nature  and  objectives  of  a 
proposed station, its potential audience at national, regional or local level, the rights and 
needs  of  a  specific  audience  and  the  obligations  deriving  from  international  legal 
instruments.”279 

In this scope there is also a margin of appreciation,280 but the Court has already pointed 
out that 

“it cannot be argued that there are no equivalent less restrictive solutions; it is sufficient 
by  way  of  example  to  cite  the  practice  of  certain  countries  which  either  issue  licences 

273  Groppera Radio AG v. Switzerland, op. cit., § 61. 

274  Recommendation No. R (99) 1 of the Committee of Ministers to Member States on measures to promote 


275 

media pluralism, adopted on 19 January 1999. 
Informationsverein Lentia and others v. Austria, op. cit., § 38. 

276  Demuth v. Switzerland, judgment of 5 November 2002, Appl. 38743/97, § 43. 
277  Verein  Alternatives  Lokalradio  Bern  and  Verein  Radio  Dreyeckland  Basel  v.  Switzerland,  decision  of  the 

Commission of 16 October 1986, Appl. 10746/84. 

278  Demuth v. Switzerland, op. cit., § 44. 
279 

Informationsverein  Lentia  and  others  v.  Austria,  judgment  of  24  November  1993,  Appl.  13914/88; 
15041/89; 15717/89; 15779/89; 17207/90, § 32. 

280  Groppera Radio AG v. Switzerland, op. cit., § 72. 

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subject to specified conditions of variable content or make provision for forms of private 
participation in the activities of the national corporation.”281 

Furthermore, it emphasised that it could not accept the argument that a national market 
was  too  small  to  sustain  a  sufficient  number  of  stations  to  avoid  regroupings  and  the 
constitution of “private monopolies”, 

“because their assertions are contradicted by the experience of several European States, 
of a comparable size to Austria, in which the coexistence of private and public stations, 
according  to  rules  which  vary  from  country  to  country  and  accompanied  by  measures 
preventing  the  development  of  private  monopolies,  shows  the  fears  expressed  to  be 
groundless.”282 

In  the  context  of  the  licensing  procedure,  the  ECtHR  also  refers  to  Recommendation 
Rec (2000)  23283  on  the  independence  and  functions  of  regulatory  authorities  for  the 
broadcasting sector: 

“The  Court  notes  that  the  guidelines  adopted  by  the  Committee  of  Ministers  of  the 
Council  of  Europe  in  the  broadcasting  regulation  domain  call  for  open  and  transparent 
application  of  the  regulations  governing  the  licensing  procedure  and  specifically 
recommend that '[a]ll decisions taken (...) by the regulatory authorities (...) be (...) duly 
reasoned [and] open to review by the competent jurisdictions.”284 

As  a  result,  the  licensing  criteria  in  the  underlying  process  especially  must  provide 
sufficient  guarantees  against  arbitrariness,  so  that  a  lack  of  reasons  for  a  decision 
denying a broadcasting licence infringes the right to freedom of expression. 

“A licensing procedure whereby the licensing authority gives no reasons for its decisions 
does not provide adequate protection against arbitrary interferences by a public authority 
with the fundamental right to freedom of expression.”285 

Finally,  Recommendation  Rec  (2000)  23  itself  refers  to  the  “European  Convention  on 
Transfrontier Television”, when providing that 

“another  essential  function  of  regulatory  authorities  should  be  monitoring  compliance 
with  the  conditions  laid  down  in  law  and  in  the  licences  granted  to  broadcasters.  They 
should,  in  particular,  ensure  that  broadcasters  who  fall  within  their  jurisdiction  respect 
the  basic  principles  laid  down  in  the  European  Convention  on  Transfrontier  Television 
and, in particular, those defined in Article 7.” 

The  Court  also  (indirectly)  applies  the  principles  of  the  European  Convention  on 
Transfrontier Television using this instrument for 

“a proper understanding and interpretation of the relevant rules.”286 

281 

282 

Informationsverein Lentia and others v. Austria, op. cit. § 39. 

Informationsverein Lentia and others v. Austria, op. cit., § 42. 


283  Recommendation Rec (2000) 23 of 20 December 2000 of the Committee of Ministers to Member States on 


the independence and functions of regulatory authorities for the broadcasting sector. 

284  Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, judgment of 11 October 2007, Appl. 14134/02, § 

51. 

285  Glas  Nadezhda  EOOD  and  Anatoliy  Elenkov  v.  Bulgaria,  op.  cit.,  §§  50  and  51;  Meltex  Ltd.  And  Mesrop 

Movsesyan v. Armenia, judgment of 17 June 2008, Appl. 32283/04, § 83. 

286  Autronic AG v. Switzerland, op. cit., § 62. 

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This convention obligates the parties to  

“ensure  freedom  of  expression  and  information  in  accordance  with  Article  10  of  the 
Convention for the Protection of Human Rights and Fundamental Freedoms and they shall 
guarantee  freedom  of  reception  and  shall  not  restrict  the  retransmission  on  their 
territories of programme services which comply with the terms of this Convention.” 

It also provides in its Art. 8 the right of reply and in Art. 10bis that the parties shall avoid 
that programme services endanger media pluralism.  

The Convention on Transfrontier Television, and also an earlier instrument issued by the 
Committee of Ministers of the Council of Europe affecting national broadcasting systems, 
i.e. Recommendation No. R (91) 5287, claim the right to short reporting on major events 
with the aim of regulating the exercising of the public’s right to information. As a result 
any broadcasters is entitled to provide information on a major event by means of a short 
report,  even  if  there  are  contractual  agreements  between  another  broadcaster  and  the 
organiser of the event. 

1.3.2.7.3. 

Political advertising 

It  is  especially  questionable  as  to  whether a  ban  on  broadcasting  political  advertising  is 
compatible with Art. 10 ECHR. 

Advertisements  have  not  only  a  political  character  if  they  promote  a  political  party.  In 
1994 the broadcasting of a commercial concerning animal welfare by the “Verein gegen 
Tierfabriken  –  VGT”  (Association  against  industrial  animal  production)  was  refused.  The 
Swiss  Commercial  Television  Company  founded  this  decision  on  the  political  character, 
while  Swiss  broadcasting  law  prohibits  political  advertisements  on  radio  and  television. 
The ECtHR agreed that the commercial could be regarded as “political”, so the ban could 
legally be founded on the national regulation because 

“it reflected controversial opinions pertaining to modern society in general. (...) Indeed, 
it  cannot  be  denied  that  in  many  European  societies  there  was,  and  is,  an  ongoing 
general debate on the protection of animals and the manner in which they are reared.”288 

Additionally, the Court stated that 

“powerful financial groups can obtain competitive advantages in the area of commercial 
advertising and may thereby exercise pressure on, and eventually curtail the freedom of 
the  radio  and  television  stations  broadcasting  the  commercials.  Such  situations 
undermine  the  fundamental  role  of  freedom  of  expression  in  a  democratic  society  as 
enshrined  in  Article  10  of  the  Convention,  in  particular  where  it  serves  to  impart 
information  and  ideas  of  general  interest,  which  the  public  is  moreover  entitled  to 
receive. Such an undertaking cannot be successfully accomplished unless it is grounded 
in the principle of pluralism of which the State is the ultimate guarantor. This observation 
is  especially  valid  in  relation  to  audio-visual  media,  whose  programmes  are  often 
broadcast very widely.”289 

287  Recommendation  No.  R  (91)  5  of  the  Committee  of  Ministers  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 1991. 

288  VgT Verein gegen Tierfabriken v. Switzerland, judgment of 28 June 2001, Appl. 24699/94, § 70. 
289  VgT Verein gegen Tierfabriken v. Switzerland, op. cit., § 73. 

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Hence,  the  Court  ruled  that  a  ban  on  political  advertisements  is  not  an  infringement  of 
Art.  10  ECHR  per  se,  but  there  can  be  relevant  and  sufficient  reasons  to  justify290,  for 
example,  the  need  for  securing  the  quality  of  political  debate  and  pluralism  or  for 
securing  the  political  independence  of  the  television  broadcasters,  besides  preventing 
financially powerful groups from dominating the political forum.291 

According  to  the  Court  a  ban  on  religious  advertisements  can  be  more  easily  justified 
because of the immediate and powerful effect of the audio-visual media.292 

However, it has to be noted that the association participated in a topical debate in society 
and  that  there  is  little  scope  under  Art.  10  for  restrictions  on  political  speech  and  on 
debates  relating  to  questions  of  general  interest,  while  the  national  margin  of 
appreciation  is  reduced.  The  national  authorities  could  not  give  sufficient  reasons  that 
could justify the refusal in the particular circumstances of the case, so the Court found a 
violation of the freedom of expression of the association. 

Concerning the prohibition of advertisements of political parties and its compatibility with 
Art.  10  ECHR,  the  Court  found  that  the  Contracting  States  have  a  wide  margin  of 
appreciation in striking a fair balance between freedom of expression of these parties and 
the need to place restrictions thereon in order to secure people’s independent decision in 
the election.293 According to the ECtHR, 

“a  lack  of  consensus  between  the  States  making  up  the  Convention  community  with 
regard to the regulation of the right to vote and the right to stand for election may justify 
according them a wide margin of appreciation in this area..”294 

The  ECtHR  also  refers  to  Recommendation  No.  R  (99)  15295  “on  measures  concerning 
media coverage of election campaigns”, which provides that 

“the possibility of buying advertising space should be available to all contending parties, 
and on equal conditions and rates of payment”, 

as  well  as  to  Recommendation  Rec(2007)15296,  which  entailed  a  revision  of 
Recommendation No. R (99) 15, stating: 

“In view of the different positions on this matter, Recommendation CM/Rec(2007)... does 
not take a stance on whether this practice should be accepted or not, and simply limits 
itself to saying that if paid advertising is allowed it should be subject to some minimum 
rules,  in  particular  that  equal  treatment  (in  terms  of  access  and  rates)  is  given  to  all 
parties requesting airtime.” 

Using  these  principles  for  the  examination  of  whether  such  a  ban  is  proportionate,  the 
ECtHR determined in this case that 

“paid  advertising  on  television  became  the  only  way  for  the  Pensioners  Party  to  put  its 
message across to the public through that medium. By being denied this possibility under 

290  VgT Verein gegen Tierfabriken v. Switzerland, op. cit, § 75.
 
291 

TV Vest AS & Rogaland Pensjonistparti v. Norway, op. cit., § 70.
 

292  Murphy v. Ireland, judgment of 10 July 2003, Appl. 44179/98.
 
293  Mathieu-Mohin and Clerfayt v. Belgium, op. cit., §§ 52 and 54.
 
294 

TV Vest AS & Rogaland Pensjonistparti v. Norway, judgment of 11 December 2008, Appl. 21132/05, § 65.
 
295  Recommendation No. R (99) 15 of 9 September 1999 of the Committee of Ministers to Member States on
 

measures concerning media coverage of election campaigns. 

296  Recommendation CM/Rec(2007)15 of 7 November 2007 of the Committee of Ministers to Member States 

on measures concerning media coverage of election campaigns. 

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the law, the Pensioners Party was at a disadvantage compared with major parties which 
had obtained edited broadcasting coverage, and this could not be offset by the possibility 
available to it to use other, less potent, media.”297 

The  required  “equal  treatment  to  all  parties  requesting  airtime”  was  not  granted  to  the 
party, thus there was a violation of Art. 10 ECHR. 

1.3.2.8.  Freedom of artistic expression 

Freedom of artistic expression is not explicitly mentioned in Art. 10 ECHR. However, the 
ECtHR accepts its protection and argues that 

“admittedly, Article 10 does not specify that freedom of artistic expression, in issue here, 
comes  within  its  ambit;  but  neither,  on  the  other  hand,  does  it  distinguish  between  the 
various  forms  of  expression.  As  those  appearing  before  the  Court  all  acknowledged,  it 
includes  freedom  of  artistic  expression  -  notably  within  freedom  to  receive  and  impart 
information and ideas - which affords the opportunity to take part in the public exchange 
of  cultural,  political  and  social  information  and  ideas  of  all  kinds.  Confirmation,  if  any 
were  needed,  that  this  interpretation  is  correct,  is  provided  by  the  second  sentence  of 
paragraph  1  of  Article  10,  which  refers  to  "broadcasting,  television  or  cinema 
enterprises",  media  whose  activities  extend  to  the  field  of  art.  Confirmation  that  the 
concept  of  freedom  of  expression  is  such  as  to  include  artistic  expression  is  also  to  be 
found in Article 19 § 2 of the International Covenant on Civil and Political Rights, which 
specifically  includes  within  the  right  of  freedom  of  expression  information  and  ideas  'in 
the form of art".”298 

The protection is not limited to specific forms or content of art, films299 and books300, as 
they  are  protected  just  like  paintings301,  for  instance.  Finally,  art  is  just  another  way  of 
communication,  because  an  artist  is  also  able  to  impart  information  and  ideas  by  his 
work. 

Besides  the  conveying  of  art  itself,  the  scope  of  Art.  10  ECHR  includes  the  so-called 
artists  “Wirkbereich”.  Therefore  also  an  exhibitor  of  artistic  works,  an  operator  of  a 
cinema  or  a  proprietor  and  a  managing  director  of  a  publishing  house  can  refer  to  this 
freedom302: 

“Those who create, perform, distribute or exhibit works of art contribute to the exchange 
of ideas and opinions which is essential for a democratic society. Hence the obligation on 
the State not to encroach unduly on their freedom of expression.”303 

Interferences concerning the freedom of artistic expression are thinkable if artistic works 
are confiscated or if their publication and distribution is forbidden. 

So  in  the Wingrove  case304  a  film  director  was  refused  a distribution  certificate  because 
his film was considered as blasphemous. In another case a film was even seized.305 

297 

TV Vest AS & Rogaland Pensjonistparti v. Norway, op. cit., § 73.
 

298  Müller a.o. v. Switzerland, judgment of 24 May 1988, Appl. 10737/84, § 27.
 
299  See Otto-Preminger Institut v. Austria, op. cit.; Wingrove v. the U.K., op. cit. 

300  Editions Plon v. France, op. cit. 

301  See Müller a.o. v. Switzerland, op. cit. 

302  See  Müller  a.o.  v.  Switzerland,  op.  cit.;  Otto  Preminger 

Institut  v.  Austria,  op.  cit.;
 

İ. A. v. Turkey, op. cit. 

303  Müller a.o. v. Switzerland, op. cit., § 33. 
304  Wingrove v. the U.K., op. cit. 
305  Otto-Preminger Institut v. Austria, op. cit. 

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These measures can also be legal. In this context, the Court determined that 

“artists and those who promote their work are certainly not immune from the possibility 
of limitations as provided for in paragraph 2 of Article 10 (art. 10-2). Whoever exercises 
his  freedom  of  expression  undertakes,  in  accordance  with  the  express  terms  of  that 
paragraph,  'duties  and  responsibilities';  their  scope  will  depend  on  his  situation  and  the 
means he uses.”306 

The most common legal interests that conflict with freedom of artistic expression are the 
protection of morals and the rights of others, both mentioned in Art. 10(2) as legitimate 
aims to pursue. As already indicated above, when assessing whether an interference was 
“proportionate to the legitimate aim pursued” and whether the reasons adduced to justify 
it  are  “relevant  and  sufficient”,  the  domestic  authorities  enjoy  a  wider  margin  of 
appreciation than when assessing interferences with freedom of the press, for example. 

The Court ruled that 

“today,  as  at  the  time  of  the  Handyside  judgment,  it  is  not  possible  to  find  in  the  legal 
and social orders of the Contracting States a uniform European conception of morals. The 
view  taken  of  the  requirements  of  morals  varies  from  time  to  time  and  from  place  to  
place, especially in our era, characterised as it is by a far-reaching evolution of opinions 
on  the  subject.  By  reason  of  their  direct  and  continuous  contact with  the  vital  forces  of 
their  countries,  State  authorities  are  in  principle  in  a  better  position  than  the 
international judge to give an opinion on the exact content of these requirements as well 
as on the 'necessity' of a 'restriction' or 'penalty' intended to meet them.”307 

Subject to those rulings the Court has rarely  determined a violation of Art. 10 ECHR so 
far. In the above-mentioned cases308 it found that the national court could rightly assume 
the respective measures to be necessary in a democratic society in order to protect the 
rights of others. Although there is little scope for restrictions on political speech or on the 
debate of questions of public interest, the Court also emphasised that the states have a 
wider  margin  of  appreciation  with  regard  to  the  sphere  of  morals.  Thus  it  accepted  the 
national decision to give precedence to the rights of the persons affected by the film and 
to restrict freedom of expression. 

1.3.2.9.  Protection of the use of the internet, emails and telephone 

The  use  of  the  medium  of  internet  is  also  protected  by  the  freedom  of  expression  and 
information  as  far  as  there  is  an  imparting  and  receiving  of  information.  Art.  10  ECHR 
also protects the form in which information is conveyed.309 

Internet  archives,  for  example,  are  very  important  tools  of  preserving  and  making 
available  news  and  information.  They  constitute  an  important  source  for  education  or 
historical  research,  particularly  as  they  are  readily  accessible  to  the  public  and  are 
generally  free.  Therefore,  they  play  an  important  role  for  the  press  that  has  a  further 
task, beside the role as a public watchdog, to maintain and make available to the public 
archives  containing  news.  Thus  they  enjoy  protection  by  Art.  10.  However,  the  Court 
emphasised  that  the  margin  of  appreciation  afforded  to  States  in  striking  the  balance 
between the competing rights is likely to be greater where news archives of past events, 
rather than news reporting of current affairs, are concerned. In particular, the duty of the 

306  Müller a.o. v. Switzerland, op. cit., § 34, Handyside v. the U.K., op. cit., § 49.
 
307  Müller a.o. v. Switzerland, op. cit., § 35. 

308  See footnotes 163 and 164.
 
309  Oberschlick v. Austria No.1, judgment of 23 May 1991, Appl. 11662/85, § 57.
 

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press  to  act  in  accordance  with  the  principles  of  responsible  journalism  by  ensuring  the 
accuracy of historical,  rather than perishable, information published is  likely to be more 
stringent  in  the  absence  of  any  urgency  in  publishing  the  material.310  But  according  to 
the case-law of the Court, 

“telephone  calls  (from  business)  premises  are  prima  facie  covered  by  the  notions  of 
“private  life”  and  “correspondence”  for  the  purposes  of  Article  8  para  1311.  It  follows 
logically  that  e-mails  (sent  from  work)  should  be  similarly  protected  under  Article  8,  as 
should information derived from the monitoring of personal internet usage.”312 

According  to  Recommendation  CM/Rec(2007)16313,  the  Member  States  shall  take  all 
necessary  measures  to  promote  the  public  service  value  of  the  internet  by  –  inter  alia-
enhancing the protection of human rights , especially 

the right to freedom of expression, information and communication on the Internet and 
via other ICTs promoted, inter alia, by ensuring access to them. 

Furthermore Recommendation No. R (99) 5314 of the Committee of Ministers to Member 
States  for  the  protection  of  privacy  on  the  internet  (guidelines  for  the  protection  of 
individuals  with  regard  to  the  collection  and  processing  of  personal  data  on  information 
highways) is relevant to the use of the internet. It includes guidelines for the protection 
of  individuals  using  this  medium,  where  especially  internet  service  providers  are 
concerned. The guidelines concern the question as to how they shall design their systems 
and  technologies  to  safeguard  the  user  as  far  as  possible.  The  “Convention  on 
Cybercrime”315  also  pursues  the  objective  of  increasing  the  safety  of  the  use  of  the 
internet.  The  contracting  parties  set  several  actions  concerning  the  confidentiality, 
integrity  and  availability  of  computer  data  and  systems,  computer-related  offences, 
offences related to child pornography as well as copyright and related rights as criminal. 
Besides, they laid down provisions with regard to the procedural law. 

Additionally, there are the “Guidelines for the co-operation between law enforcement and 
internet service providers against cybercrime”316 besides Rec (2001) 8. They recommend 
the  States  to  encourage  content  descriptors  or  search  tools  and  filtering  profiles,  for 
example, to increase the protection of cyber users. 

Besides,  there  is  a  recommendation317  concerning  the use  and  control  of  internet  filters 
with regard to freedom of expression and information.  

Especially  children  shall  be  protected  from  the  dangers  of  the  use  of  the  internet.  Thus 
the Recommendation CM/Rec(2009)5318 provides that the states shall ensure that there 

310	 

Times Newspapers Ltd. (nos. 1 and 2) v. the U.K, judgment of 10 March 2009, 3002/03 and 23676/03, § 
45. 

311  Halford v. the United Kingdom, judgment of 25 June 1997, Appl. 20605/92, § 44. 
312  Copland v. the U.K., judgment of 3 April 2007, Appl. 62617/00, § 41. 
313  Recommendation  CM/Rec(2007)16  of  the  Committee  of  Ministers  to  Member  States  on  measures  to 

promote the public service value of the Internet, adopted on 7 November 2007. 

314  Recommendation  No.  R  (99)  5  of  the  Committee  of  Ministers  to  Member  States  for  the  protection  of 
privacy  on  the  internet  (guidelines  for  the  protection  of  individuals  with  regard  to  the  collection  and 
processing of personal data on information highways), 23 February 1999. 

315  Convention on Cybercrime, 23. October 2001, available at www.conventions.coe.int/. 
316  Guidelines  for  the  co-operation  between  law  enforcement  and  internet  service  providers  against 

cybercrime, 2 April 2008. 

317  Recommendation  CM/Rec(2008)6  of  the  Committee  of  Ministers  to  Member  States  on  measures  to 
promote  the  respect  for  freedom  of  expression  and  information  with  regard  to  Internet  filters,  26  March 
2008. 

318	  Recommendation CM/Rec(2009)5 of the Committee of Ministers to Member States on measures to protect 
children  against  harmful  content  and  behaviour  and  to  promote  their  active  participation  in  the  new 
information and communications environment, adopted on 8 July 2009. 

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are safe and secure spaces for children on the Internet and develop the responsible use 
of  labelling  systems  for  online  content,  for  example  by  creating  a  pan-European 
trustmark for labelling systems of online content. 

In  Recommendation  CM/Rec(2007)11319  the  Committee  of  Ministers  encourages  the 
Member  States  to  develop  common  standards  and  strategies  to  promote  transparency 
and  the  provision  of  information,  guidance  and  assistance  to  the  individual  users  of 
technologies and services in the new information and communications environment. This 
takes  place  especially  against  the  background  of  Art.  10  ECHR,  guaranteeing  the 
development of information and communication technologies and services for the benefit 
of each individual and the democratic culture of every society. The Recommendation also 
stipulates  information  on  affordable  access  to  ICT  infrastructure  that  Member  States 
should take into account. 

The  Committee  of  Ministers  has  adopted  on  15  March  2012  an  Internet  Governance 
Strategy to protect and promote human rights, the rule of law and democracy online. The 
main action lines of the strategy that will govern the Council of Europe’s internet-related 
work  between  2012  and  2015  are:  maximising  rights  and  freedoms  for  internet  users; 
advancing  data  protection  and  privacy;  enhancing  the  rule  of  law  and  effective  co­
operation against cybercrime; maximising the internet’s potential to promote democracy 
and cultural diversity; protecting and empowering children and young people320. 

Even more recently, the Council of Europe has adopted two Recommendations in which it 
calls  on  its  members  states  to  safeguard  human  rights,  notably  freedom  of  expression, 
access to information, freedom of association and the right to private life, with regard to 
search engines and social networking services. 

In the Recommendation CM/Rec(2012)3 on the protection of human rights with regard to 
search  engines  321,  the  Committee  of  Ministers  invites  states  to  engage  with  search 
engine  providers  to  increase  transparency  in  the  way  access  to  information  is  provided, 
in  particular  the  criteria  used  to  select,  rank  or  remove  search  results.  The 
Recommendation  CM/Rec(2012)4322  contains  inter  alia  a  number  of  actions  “to  protect 
users  from harm  without  limiting  freedom  of  expression  and  access to  information”  and 
“to  ensure  accessibility  to  their  services  to  people  with  disabilities,  thereby  enhancing 
their integration and full participation in society”. The Committee recommends that self- 
and co-regulatory mechanisms are set up in order to contribute to the respect of human 
rights standards. 

1.3.3. 

Evaluation and importance of main European standards 

When taking a comprehensive look at the guarantees afforded both to the freedom of the 
media  and  the  citizen’s  right  to  information  -  as  recognised  by  the  CFREU,  EU  treaties, 
EU secondary legislation such as resolutions adopted by the European Parliament and the 
directives on the one hand, and the ECHR accompanied by relevant jurisprudence of the 
ECtHR,  the  CoE’s  conventions  and  recommendations,  on  the  other  –  it  becomes  clear 
that  the  benchmark  at  European  level  has  become  more  and  more  encompassing  and, 
mostly, directly relevant for the media legal orders of the Member States. 

319  Recommendation CM/Rec(2007)11 of the Committee of Ministers to Member States on promoting freedom 
of expression and information on the new information and communications environment of 26 September 
2007. 

320  CM(2011)175 final, Internet Governance – Council of Europe Strategy 2012-2015. 
321  Recommendation  CM/Rec(2012)3  of  the  Committee  of  Ministers  to  member  States  on  the  protection  of 

human rights with regard to search engines, adopted on 4 April 2012. 

322  Recommendation  CM/Rec(2012)4  of  the  Committee  of  Ministers  to  member  States  on  the  protection  of 

human rights with regard to social networking services, adopted on 4 April 2012. 

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The  ECtHR  recognises  freedom  of  expression  as  one  of  the  basic  conditions  for  the 
progress  of  democratic  societies  and  for the development  of  each  individual.  It  stresses 
the  institutional  role  of  the  press  –  not  only  in  its  traditional  concept  –  as  a  “public 
watchdog”.  It  further  confirms  that  the  principles  relating  to  the  freedom  of  expression 
are  also  valid  in  the  area  of  audiovisual  communication  and  further  highlights  the 
principle  of  pluralism  and  the  function  of  the  State  as  an  ultimate  guarantor  to  secure 
pluralism, particularly in the area of audiovisual media, both public service and private. 

The  ECJ  acknowledges  freedom  of  expression  as  one  of  the  fundamental  principles  of  a 
democratic society. The aforementioned State aid procedures provided the Court with an 
opportunity  to  acknowledge  the  important  role  of  public  service  broadcasting  in  view  of 
its  cultural,  social  and  democratic  functions  and  its  vital  significance  for  ensuring 
democracy,  pluralism,  social  cohesion,  cultural  and  linguistic  diversity.  The  ECJ  further 
derives from the freedom of expression guaranteed by Article 10 ECHR the possibility to 
justify a restriction on the fundamental freedoms of the EC Treaty (now: TFEU), namely 
the  free  movement  of  goods  and  services  and  the  freedom  of  establishment,  with  the 
legitimate objective of maintaining pluralism and preserving diversity of opinions. 

Still, the framework which is provided for national media legal orders by EU law is not all-
inclusive,  not  least  in  purely  national  situations  where  the  fundamental  freedoms  of  the 
TFEU cannot represent a yardstick against which restrictions and their legitimacy on the 
operation  of  the  media  could  be  measured.  Furthermore,  due  to  the  principles  of 
enumerative competencies and subsidiarity, the power of the EU to introduce additional 
regulation, and thereby also to establish safeguards for the rights of the media and of the 
citizens, is limited. Nevertheless, considered in conjunction with the guarantees afforded 
by  CoE  instruments,  a  rather  high  level  of  directions  towards  the  shaping  of  national 
media policies is made available. 

2. COUNTRY REPORTS 

2.1.  Context and Framework 

In  a  number  of  fields  the  acquis  unionaire  sets  standards  that  have  to  be  respected  by 
the  relevant  State  institutions  at  national  level,  be  they  the  legislature,  the  judicary  or 
the  administration.  In  some  instances,  EU  law  will  be  directly  applicable  also  in  the 
relations between private individuals. As seen in the foregoing part, for present purposes, 
the relevant acquis does not only consist of the treaties’ provisions which have an impact 
on  the  media  and  the  citizens,  such  as  Art.  11  EU  Charter  on  Fundamental  Rights,  the 
fundamental  freedoms  of  the  TFEU,  and  rules  on  competition,  including  State  aid 
provisions,  for  instance,  but  encompasses  also  a  wide  range  of  so-called  “secondary 
legislation” adopted in relation to audiovisual media services, electronic communications, 
and so forth. 

Nevertheless,  a  broad  range  of  issues  has  not  yet  been  dealt  with  at  the  EU  level,  in 
particular  media-specific  ownership  rules,  protection  of  journalists’  sources  or  the 
citizens’ general right to access information held by public authorities. Furthermore, the 
protection  which  is  afforded  –  by  constitutional  law  and  fundamental  rights  - to  the 
media, particularly public service media, to media regulatory authorities and in terms of 
universal services, might vary from Member State to Member State. These aspects, but 
evenmore the scope of protection in practice, is of key interest when it comes to analysis 
of  the  national  situation  by  the  national  experts  engaged  in  the  preparation  of  the 
following country reports. 

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Their  description  and  assessment  of  the  situation  at  national  level,  both  de  iure  and  de 
facto, was based on the questionnaire which the EMR had made available. Therefore, for 
the  vast  majority  of  the  relating  parts  of  the  country  reports,  it  has  been  possible  to 
allocate the information providing answers to the different questions at exactly the same 
point of order so as to ensure easy identifiability and comparability of the findings. As far 
as  the  description  of  the  market  situation  is  concerned,  for  almost  all  Member  States 
relevant  data  for  each  and  every  market  has  been  accessible  and  is  portrayed  in  the 
country reports. Some divergences can be identify, though, in the level of detail in which 
the  correspondents  have  had  recourse  to  own  recommendations  relating  to  possible 
remedies  which  might  help  overcome  perceived  shortcomings,  mainly  in  view  of  the 
design of the legal framework applicable to the media and the citizens. 

2.2.  The Situation in the EU Member States 

On  a  country-by-country  basis,  the  following  reports  depict  the  legal/regulatory  as  well 
as  factual  situation  with  regard  to  the  freedom  of  the  media  and  the  freedom  of  the 
citizens  to  access  information  in  the  EU  Member  States.  The  present  chapter  forms  the 
major part of this study; it provides a considerable level of detail on the fundamental law 
safeguards  implemented  at  national  level,  the  manner  in  which  -  within  them  and 
through  ordinary  law  and  codes  of  conduct  -  the  media  and  communications  order  is 
devised,  the  means  available  for  citizens  to  obtain  information  which  is  of  interest  to 
them  and  the  sources  of  information  via  radio,  TV,  print,  new  (Information  Society) 
media services and electronic distribution networks. 

The  individual  country  reports,  based  on  the  questionnaire  developed  by  the  EMR,  are 
following  a  three-fold  approach:  after  describing  the  constitutional  law/  fundamental 
rights framework affording guarantees to the media, the citizens and, where applicable, 
to media regulatory authorities and the concept of universal service understood broadly, 
they  first  examine  the  situation  for  the  work  of  the  media  (“supply-side  perspective”), 
second analyse the situation for the citizens seeking to access information and probably 
intending  also  to  engage,  in  different  forms,  with  the  formulation  of  media  output 
strategies  (“demand-side  perspective”),  and  third  they  provide  statistics  on  the  media 
markets  situation  which  aim  at  enhancing  the  assessment  of  the  aforementioned  two 
perspectives.  These  three  sections  then  provide  the  fundament  for  conclusions  to  be 
drawn and recommendation to be given by the respective national experts. 

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AUSTRIA 


2.2.1.	 

Austria 

This update will rely on the study published in 2004 without recapitulating its content in 
order  to  avoid  redundancies.  It  will  point  to  the  initial  study  explicitly,  however,  when 
suitable.  Where  current  empirical  data  is  presented  the  relevant  passages  (in  particular 
those in Section 2.2.1.2.) have been drafted anew. The major structural changes of the 
last years in Austrian Media Law will be discussed in the respective sections below. 

2.2.1.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.1.1.1. 

Human rights/Fundamental freedoms  

  Freedom of expression/Freedom of the media 

As  indicated  in  the  2004  Country  Report,  Freedom  of  Expression  in  Austria  is  protected 
by Art 13 of the Staatsgrundgesetz 1867 (Basic Law).1 It has to be noted, however, that 
in addition to this source, Freedom of Expression and the Freedom to Impart and Receive 
Information  and  Ideas  (Freedom  of  Information  –  see  below)  are  also  constitutionally 
protected  by  Art  10  ECHR  as  the  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms has been adopted on a constitutional level in 1964 (retroactive as 
from 1958).2 This is of particular importance as the scope of Art 10 ECHR is wider than 
the  scope  of  Art  13  Staatsgrundgesetz  according  to  the  Austrian  Constitutional  Court’s 
Case Law,3 by reaching beyond the dissemination of mere opinions.4 

By Resolution of the Provisional National Assembly of 30 October 1918 “all censorship is 
abolished  as  illegal  because  contradictory  to  the  basic  rights  of  the  citizen”.  Prior 
restraints  on  publication  therefore  are  not  compatible  with  Austrian  constitutional  law; 
regardless of the medium concerned, or the object pursued by the prohibitory action.  

- Specific safeguards and rights for the media 

Freedom  of  the  media  is  not  explicitly  granted  in  Austria  on  a  constitutional  level.  The 
provision initially designed as special constitutional stronghold of the independence of the 
media  in  Austria,  eventually  was  enacted  as  preamble  to  the  Austrian  Media  Act,5  and 
thus as part a federal act without constitutional status. 

As already indicated in the 2004 report, broadcasters enjoy a somewhat special status as 
the  impartiality  of  their  reporting  is  determined  by  the  Constitutional  Act  to  Secure  the 
Independence of Broadcasters.6 

1 

2 

3 

4 

5 

6 

Reichsgesetzblatt 142/1867 as adopted by Federal Law Gazette 1/1920 and State Law Gazette 303/1920.
 
Federal Law Gazettes 59/1964 and 210/1958.
 
See VfGH [Constitutional Court] VfSlg 10.948/1986.
 
Note, however, the restriction-friendly “Broadcast-Clause” in Art 10 § 1 ECHR whereas “[t]his Article shall
 
not  prevent  States  from  requiring  the  licensing  of  broadcasting,  television  or  cinema  enterprises”.  See, 
ECtHR  24.11.1993,  Informationsverein  Lentia  and  Others  v.  Austria,  No.  13914/88  ea,  declaring  the 
monopoly system then operated in Austria incompatible with Art 10 ECHR. 
Federal Act on the Press and other Publications  (Media Act), Federal Law Gazette 314/1981 as amended 
by Federal Law Gazette I 49/2005. 
Bundesverfassungsgesetz  vom  10.  Juli  1974  über  die  Sicherung  der  Unabhängigkeit  des  Rundfunks, 
Federal Law Gazette 396/1974. 

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Overall, however, freedom of the media in Austria thus is composed by a consideration of 
the guarantees sketched out above as a whole. 

  Freedom to receive and to access information 

Art  10  ECHR  not  only  protects  the  free  flow  of  information  and  ideas  but  also  grants  a 
fundamental  right  to  Freedom  of  Information  which,  according  to  the  Austrian 
Constitutional  Court’s  case  law,  encompasses  the  right  to  gather  information  already 
publicly  available.7  A  privileged  position  of  the  media  is  not  automatically  inconsistent 
with this guarantee; it must, however, not be designed in a way that would exclude the 
public from gathering information for the benefit of media representatives.8 

- Specific rights for the citizens 

As  stated  in  the  2004  Country  Report  on  Austria,  Art.  20  para.  4  of  the  Austrian 
Constitution (B-VG) provides for Freedom of Information.9 

In  order  to  ensure  transparency  regarding  advertisements  in  periodical  media  financed 
by  public  entities  in  January  2012  a  Constitutional  Act  entered  into  force  obliging  all 
entities  subject  to  control  of  the  Court  of  Auditors  (in  particular  Federation,  States, 
Municipalities and public undertakings) to announce the names and the amounts received 
by owners of periodical media for media cooperation, and advertising contracts, or as an 
aid.10 This Act is a direct consequence of a larger discussion on indirect media subsidizing 
in Austria by political players allegedly using tax money to influence media reporting. 

  Safeguards on regulatory authorities 

In 2010 the Austrian Constitution has been amended, introducing Art. 20 para. 3 no. 5a 
in  order  to  create  a  legal  basis  for  transforming  the  Media  Authority  into  a  fully 
independent authority (Austrian Communications Authority - KommAustria).11 

  Safeguards on “universal service” 

The Austrian Constitution contains no provision in respect of the “universal service”.  

7	 

8	 

9	 

10	 

11	 

VfGH [Constitutional Court] VfSlg 11297/1987. 
VfGH [Constitutional Court] VfSlg 13.577/1993. 
As  deriving  from  this  obligation  of  authorities  on  the  federal,  state  and  the  municipal  level  to  impart 
information  about  matters  pertaining  to  their  respective  competence,  cf.  the  “Duty  to  Grant  Information 
Act”,  Federal Law  Gazette  287/1987  as  amended  by  Federal  Law  Gazette  I  158/1998,  and  the 
“Fundamental Act on the duty to grant Information“ (federal framework legislation), Federal Law Gazette 
286/1987  as  amended  by  Federal  Law  Gazette  I  158/1998;  both  available  in  a  translated  version  at  < 
http://www.ris.bka.gv.at/Englische-Rv/ >. 
Bundesverfassungsgesetz über die Transparenz von Medienkooperationen sowie von Werbeaufträgen und 
Förderungen an Medieninhaber eines periodischen Mediums (Constitutional Act on Media Cooperation and 
Aid),  Federal  Law  Gazette  I  125/2011.  A  Federal  Act  implementing  the  standards  defined  in  the 
Constitutional  Act  on  Media  Cooperation  and  Aid  will  enter  into  force  by  July  2012,  see  Federal  Law 
Gazette I No 125/2011, § 7. 
Federal Law Gazette I 50/2010. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.1.1.2. 

Media order (de lege lata and de facto) 

	  “Market Entry” 

The  “Federal  Act  on  the  Press  and  other  Publication  Media”  (Media  Act)  provides  the 
foundation  of  media  regulation  in  Austria.12  It  does,  on  the  one  hand,  however,  in  its 
entirety  not  apply  to  all  media13  and  is,  on  the  other  hand,  supplemented  by  several 
specific  regulations  on  private  radio  broadcasting,  audio-visual  media,  and  public 
broadcasting. 

For the area of broadcasting the Austrian legal system provides for a “Dual Broadcasting 
Order”  –  a  coexistence  of  public  and  private  broadcasting  corporations.  While  structure 
and  organization  of  the  Austrian  Broadcasting  Corporation  (ORF)  are  quite  narrowly 
determined  by  the  ORF  Act,14  the  Austrian  legislator  does  rely  to  a  greater  extent  on 
competition  between  the  broadcasters  in  the  private  sector,  providing  a  more  generous 
framework for their activities according to the Audiovisual Media Services Act (see below) 
and the Private Radio Broadcasting Act.15 

- Licensing schemes; remit psm; notification for print publications 

In order to comply with the requirements of the Audiovisual Service Directive the Federal 
Act  on  Audiovisual  Media  Services  (Audiovisual  Media  Services  Act)  was  enacted  in 
2010.16 Henceforth 

	  television  services  by  means  of  wireless  terrestrial  transmission  (ORF  being  an 

exception), via satellite and in electronic communications networks,  

	  the provision of other audiovisual media services, 

	  and the operation of multiplex platforms  

are subject to the requirements stated in this Act.  

Accordingly any person who intends to provide terrestrial and mobile terrestrial television 
or  satellite  television  and  is  established  in  Austria  must  comply  with  the  requirements 
thus stated. Licenses will regularly be granted by the Austrian Communications Authority 
(Kommunikationsbehörde Austria, KommAustria) for a period of 10 years and do concern 
both the approval of the programming that has been applied for and the determination of 
the  area  and  channels  of  supply.    Cable  TV  broadcasting  or  the  retransmission  of 
programmes  only  requires  notification  with  the  Austrian  Communications  Authority 
whereas satellite broadcasters based in Austria have to be licensed by the Authority. 

The regulation of private terrestrial, satellite or cable radio broadcasting is subject to the 
Private  Radio  Broadcasting  Act.  Private  terrestrial  and  satellite  radio  broadcasting 
requires licensing by the Austrian Communications Authority.  

12 

13 

14 

15 

16 

Federal Law Gazette 314/1981 as amended by Federal Law Gazette I 131/2011. A translated version may 
be downloaded at http://www.ris.bka.gv.at/Englische-Rv/. 
As  the  term  „media“  is  quite  broadly  defined  as  “any  means  for  publication  of  information  or 
representation of thoughts by means of word, writing, sound or image, to a major audience by means of 
mass production or mass publication”. 
Federal Law Gazette I 83/2001 as amended by Federal Law Gazette I 126/2011. 
Federal Act enacting provisions for private radio broadcasting, Federal Law Gazette I 20/2001 as amended 
by Federal Law Gazette I 50/2010. 
Federal Law Gazette I 84/2001 as amended by Federal Law Gazette I 50/2010. A translated version may 
be downloaded at http://www.ris.bka.gv.at/Englische-Rv/. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Cable radio broadcasting requires notification with the Authority only. 

Regarding  the  ORF’s  mandate,  §  4  of  the  ORF  Act  stipulates  that  ORF  shall  ensure  in 
particular: 

	  comprehensive  information  on  all  important  political,  social,  economic,  cultural 

and sports-related issues; 

	  promotion of understanding for all questions of democratic society; 

	  promotion  of  Austrian  identity  from  the  perspective  of  European  history  and 

integration; 

	  promotion of understanding for European integration; 

	  presentation and promotion of arts, culture and sciences; 

	  due regard for, and promotion of, Austrian artistic and creative productions; 

	  presentation of varied cultural programmes; 

	  presentation of entertainment; 

	  due regard for all age groups; 

	  due regard for the causes of disabled people; 

	  due regard for the causes of families and children and for the equal treatment of 

women and men; 

	  due  regard  for  the  importance  of  legally  recognised  churches  and  religious 

communities; 

	  dissemination and promotion of public and youth education with special emphasis 

on school and adult education; 

	 

information  on  issues  relating  to  health,  and  to  nature,  environmental  and 
consumer  protection,  having  regard  to  the  promotion  of  understanding  of  the 
principles of sustainability; 

	  promotion of public interest in active involvement in sports; 

	 

information on importance, function and duties of the federal state and promotion 
of regional identities of the states; 

  promotion of understanding of economic issues; 

  promotion  of  understanding  of  questions  of  European  security  policy  and 

comprehensive national defence 

  due  regard  for  and  promotion  of  social  and  humanitarian  activities,  including 
raising awareness of the integration of disabled people into society and the labour 
market. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In creating its programmes and services, the ORF shall also ensure an objective selection 
and  presentation  of  information  in  the  form  of  news  and  reports,  the  submission  and 
presentation of commentaries, viewpoints and critical statements with due regard for the 
variety of opinions represented in public life, self-produced commentaries, analyses, and 
presentations with due regard for the principle of objectivity.  

- Media pluralism/ownership; competition law aspects 

The  Media-Concentration  Framework  according  to  the  Federal  Cartel  Act  has  been 
outlined  in  the  2004  Study.  In  addition  to  these  general  regulations,  media-specific 
competition-law  requirements,  such  as  a  restriction  on  television  advertising  for 
periodical  print  media,17  or  the  prohibition  to  include  cost-free  give-aways  in  periodical 
print media exist.18 

-

Legal framework for psm; ability to fulfill their tasks 

As indicated above, as well as in the 2004 Study, the Austrian Broadcasting Cooperation 
(ORF)  was  established  by  the  ORF  Act  which  provides  the  legal  framework  for  its 
activities. 

Regarding  the  ORF’s  performance  criticism  of  excessive  influence  exercised  by  the 
political parties has been frequent in recent years. However, the ORF’s editorial staff may 
be said to be held in high esteem by the general public due to its critical demeanor and 
strong sense of journalistic independence and impartiality (which is conferred on them as 
a  duty  according  to  §  4  para.  6  ORF  Act).  In  addition,  it  may  be  assumed  that  public 
awareness regarding problems that arise concerning the dangers of political interference 
in media activity gradually increases.19 

According  to  §  4a  ORF  Act  the  General  Director  set  up  a  quality  assurance  system 
defining criteria and procedures to ensure that the core public mandate given is complied 
with,  particularly  taking  into  account  the  independence  and  self-responsibility  of  all 
programming staff, the free exercise of the journalistic profession and the autonomy and 
self-responsibility of the Directors and Regional Directors. The quality assurance system 
was approved by the Foundation Council in May 2011.20 

- The role and functioning of regulatory authorities in these respects 

Licensing  according  to  the  Private  Radio  Broadcasting  Act  and  the  Audiovisual  Media 
Services  Act  is  subject  to  the  decision/supervision  of  the  Austrian  Communications 
Authority (KommAustria). 

Inter  alia,  the  Public  Value  Review  Board  has  been  established  within  the  Austrian 
Communications  Authority  in  order  to  evaluate  whether  new  ORF  services  are  to  be 
considered appropriate for the effective fulfilment of the ORF’s core public mandate. The 

17 

18 

19 

20 

Cf. § 14 para 8 Federal Act on the Austrian Broadcasting Corporation (ORF-Act), Federal Law Gazette No 
379/1984 as amended by Federal Law Gazette I 15/2012. 
§ 9a Unfair Competition Act, Federal Law Gazette No 448/1984 as amended by Federal Law Gazette I No 
136/2001. 
An assumption that may also be suggested by the fact that a recent attempt of alleged political exertion of 
influence  on  the  Austrian  Broadcasting  Corporation  (filling  the  position  of  the  director  general’s  head  of 
office with a candidate who had close ties to one of the governing parties) has been successfully thwarted 
by protests of ORF journalists and the larger public.  
A  German  Version  of 
http://zukunft.orf.at/show_content2.php?s2id=176. 

report  may  be  downloaded  at 

the  quality  assurance 

system 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

KommAustria  is  also  the  supervisory  body  on  the  funding  determined  necessary  for  the 
ORF. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The  rationale  and  content  of  the  Austrian  Freedom  of  Information  Laws  have  been 
outlined in the 2004 Study.  

Defamation,  libel,  slander,  insult  and  ridicule  claims  against  media  owners  in  case  such 
an  offence  is  committed  in  a  media  are  subject  to  a  rather  complex  and  detailed 
regulation. According to § 6 Media Act in a large variety of cases such claims must not be 
raised, in particular if the published statement is true or if the public had a predominant 
interest  in  the  publication  and,  according  to  standards  of  journalistic  diligence,21  there 
was  sufficient  reason  to  take  the  statement  for  true.22  The  amount  of  the  damages 
awarded in such a procedure depends on the scope and the effects of the publication, in 
particular  on  the  type  and  circulation  of  the  media.  The  preservation  of  the  economic 
basis of the media owner is to be respected. In any event the indemnity must not exceed 
€ 20,000  in  case  of  a  defamation  or  particularly  serious  effects  of  libel  or  slander  the 
maximum is € 50,000. 

Media  owners,  editors,  copy  editors  and  employees  of  a  media  undertaking  or  media 
service have the right to refuse answering questions concerning the person of an author, 
sender  or  source  of  articles  and  documentation  or  any  information  obtained  for  their 
profession in a proceeding before court or an administrative authority which must not be 
circumvented  by  requesting  the  person  enjoying  this  right  to  surrender  documents, 
printed  matter,  image,  sound  or  data  carriers,  illustrations  or  other  representations  of 
such contents or confiscating them (§ 31 Media Act). 

According to § 2 of the Media Act each editor has the right to refuse contributing to the 
creation  of  contents  of  feature  articles  or  representations  that  are  in  contradiction  to 
what he is convinced of regarding fundamental issues or that are in contradiction to the 
principles of the journalistic profession, unless what he is convinced of is in contradiction 
to the basic line of the media product published (§ 25 Media Act). The technical editing of 
feature  articles  or  of  representations  of  others  and  the  editing  of  news,  however,  must 
not be refused. A justified refusal must not result in any disadvantage to the editor. 

If an article or a representation is modified as to its meaning, publication accompanied by 
the  name  of  the  copy  editor  is  subject  to  his  consent;  quoting  the  name  of  the  author 
being  equivalent  to  quoting  a  pseudonym  or  code  (e.g.  initials,  abbreviation)  generally 
known to be used by him (§ 5 Media Act). 

Labor  conditions  of  those  employed  in  the  media  are  basically  governed  by  general 
Austrian labor law. In addition to that the “Journalist Act” applies to those employed as a 
principal  occupation  by  a  newspaper,  writing  texts,  or  drawing  images  and  to  the 
principal  employees  of  a  news  agency,  a  broadcasting  company  or  a  film  company, 

21 

22 

Considering in particular the gravity of the allegation that has been raised – cf. i.a. the judgement of the 
Vienna  Federal  Appeals  Court,  18  Bs  313/96,  and  the  judgment  of  the  Austrian  Supreme  Court,  6  Ob 
168/97t. 
See  Austrian  Supreme  Court,  1  Ob  4/87  –  the  press  is  only  committed  to  truthfulness  (and  thus  not  to 
objective truth). 

101 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

entrusted with the design of the text or the production of motion pictures about current 
events.23 

§  9  of  the  Austrian  Media  Act  states  a  right  to  reply  (obligation  to  publish  “counter-
statements”): Each person or legal entity (authority) not only generally affected by facts 
published  in  a  periodical  media  product  is  entitled  to  request  publication  of  a  counter-
statement in such media free of charge, unless such counter-statement is not true or its 
publication  is  not  otherwise  excluded.  A  counter-statement  has  to  state  in  a  concise 
manner  that  and  to  what  extent  the  information  is  incorrect  or  incomplete  and  the 
respective reason. It must either state the correct facts as opposed to the way they were 
published or add an essential item to the facts published or otherwise refer directly to the 
facts as published and state what was published in a wrong or misleading way. Its length 
must  not  disproportionately  exceed  the  original  publication.  It  must  be  published  in  the 
same language as the publication it refers to. 

In addition – according to § 10 of the Media Act – a person who has been reported to be 
suspected  of  having  committed  an  offence  punishable  by  the  courts  or  that  criminal 
proceedings  have  been  instituted  against  her,  is  entitled  to  publication  of  the  fact  that 
the  proceedings  have  been  withdrawn  or  terminated  by  a  decision  not  pronouncing  any 
sentence. 

The publication requirement is subject to various exceptions stated in § 11 of the Media 
Act, in particular a publication of the counter-statement may be refused if its publication 
would  constitute  an  offence  punishable  by  the  courts  or  an  intrusion  into  somebody’s 
strictly personal sphere (§ 11 para 2 Media Act). 

- Funding schemes for specifically desired content 

In order to further a pluralistic media landscape as well as public value in the print media 
and  the  broadcasting  sector,  several  funding  schemes  have  been  created,  the  Federal 
Press  Subsidies  Act  (overall  subsidies  of  close  to  € 20,000,000  p.a  in  the  last  years), 
abetting  (comparatively)  high-circulating  daily  and  weekly  periodicals  being  of  the 
greatest importance.24 

In  addition  funding  efforts  abetting  public  political  education  or  the  Austrian  film  sector 
have been created.25 

Private  and  non-commercial  broadcasters  are  being  publicly  subsidized  by  the  Private-
Broadcast Funds and the Non-Commercial-Broadcast Funds. 

In  addition  a  reduced  VAT  applies  to  the  periodical  print  media,  movie  screenings,  and 
broadcasting services.26 

- Political advertising and/or broadcasting time 

Political  advertising  is  not  explicitly  regulated.  Concerning  the  ORF  such  advertising  is 
regarded to be prohibited; in particular against the background of the manifold provisions 

23 

24 

25 

26 

State Law Gazette No 88/1920 as amended by Federal Law Gazette I No 102/2007.
 
Federal Press Subsidies Act, Federal Law Gazette I No 136/2004 as amended by Federal Law Gazette I No
 
42/2010. 
See the, the Federal Journalism Subsidies Act, Federal Law Gazette No 369/1984 as amended by Federal 
Law  Gazette  I  22/2012,  and  the  Austrian  Film  Subsidies  Act,  Federal  Law  Gazette  No  557/1980  as 
amended by Federal Law Gazette I No 170/2004. 
See  §  10  para  2  VAT  Act,  Federal  Law  Gazette  No  663/1994  as  amended  by  Federal  Law  Gazette  I  No 
135/2009. 

102 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
   
 
 
                                                 
  
 
 
  
 
 
 
  
  
 
 
 
 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

of  the  ORF  Act  vouching  for  independence  and  objectivity  and  prohibiting  the 
entanglement  of  the  ORF  and  (party-)politics.  The  problem  is,  however,  of  lesser 
practical  importance  as  due  to  these  and  similar  considerations  §  3  d)  of  the  ORF’s 
general  terms  and  conditions  excludes  political  content  from  being  accepted  as 
advertisement.27 

According to § 4 para 5 of the ORF Act the ORF has to ensure an objective selection and 
presentation  of  information  in  the  form  of  news  and  reports  including  coverage  of  the 
legislators' work and broadcasts of the debates of legislative bodies. 

- Codes of conduct and their organisational framing 

As described in the 2004 Study, the Austrian Press Council ceased to exist in 2002. The 
Re-establishment  of  the  Austrian  Press  Council  in  2010  has  been  supported  broadly 
among the print media. Major players, in particular the high-circulation dailies Krone and 
Österreich, however, do not participate in this body. 

The main task of this self-regulatory institution is to apply the Austrian Code of Conduct 
for Journalists (“Ehrenkodex”) regarding grievances concerning the press.28 The Code of 
Conduct basically ties in with the Media Act and is intended to provide a guideline for the 
ethical conduct of members of the press.29 

Anybody  assuming  personal  disadvantage  by  a  violation  of  the  Code  of  Conduct  of  the 
Austrian Press is entitled to file a complaint either directly with the Austrian Press Council 
or  with  one  of  its  Ombudsmen.  In  the  complaint  procedure  the  Press  Council  serves  as 
arbitration  panel;  thus  to  file  a  claim  with  the  courts  subsequent  to  the  decision  of  the 
Press  Council  is  not  permissible.  The  only  sanction,  however,  the  Press  Council  may 
impose is the publication of its decision in the media concerned.30 

- The role and functioning of regulatory authorities in these respects 

Most  of  the  areas  sketched-out  above  are  subject  to  the  jurisdiction  of  the  Austrian 
Courts.  

Legal supervision on both private broadcasters and the ORF is exercised by the Austrian 
the  – 
Communications  Authority  (KommAustria).  Appeals  may  be 
independently organized – Federal Communications Board (Bundeskommunikationssenat 
– BKS). 

filed  with 

Decisions  according  to  the  Press  Subsidies  Act  and  the  Journalism  Subsidies  Act  are, 
however, made by the Austrian Communications Authority (KommAustria). 

Funding  decisions  according  to  the  Private-Broadcast  Funds  and  the  Non-Commercial-
Broadcast  are  made  by  the  CEO  of  the  Austrian  Regulatory  Authority  for  Broadcasting 
and Telecommunications. 

27	 

28	 

29	 

30	 

A German version of the ORF’s general terms and conditions may be downloaded at:  
http://enterprise.orf.at/459. 
For the means of public subsidization of such self-regulatory institutions – see: 
http://www.rtr.at/de/foe/Selbstkontrolle. 
The Code of Conduct may be downloaded at www.presserat.at. 
Recent decisions of the Austrian Press Council may be downloaded at www.presserat.at. 

103 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
                                                 
  
 
 
  
 
  
 
  
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

  Distribution Aspects 

- Access to frequencies 

The access to private radio broadcasting is subject to the conditions stated in the Private 
Radio Broadcasting Act. Frequencies are allocated by the KommAustria.31 Due to the yet 
incomplete  digitalization  of  radio  broadcasting  in  Austria32,  transmission  capacities  are, 
however,  scarce. 33  Spectrum  capacities  have  to  be  allocated  through  an  administrative 
decision, for the most part in the wake of an invitation to tender procedure carried out by 
the KommAustria. 

- Access to distribution networks and control of actual conditions 

Fair and equal access to broadcasting is ensured either by the Communications Authority 
directly  or  by  the  requirements  multiplex  operators  have  to  abide;  their  correct 
application being supervised by the Authority. 

- Must-carry/must-offer rules for electronic media 

Must-carry  obligations  apply  in  particular  to  multiplex  operators:  when  granting  the 
multiplex license, the regulatory authority is required, according to § 25 para 2 nos 2 and 
3 Audio Visual Media Services Act, to ensure to impose that the two analogue television 
channels  broadcast  by  the  Austrian  Broadcasting  Corporation  (§  3  of  the  ORF  Act)  and 
the  channel  of  that  broadcaster  who  was  issued  a  license  for  nationwide  analogue 
terrestrial  television  (ATV+)  are  integrated  into  the  package  of  digital  channels  in  the 
respective coverage area upon request and against a reasonable remuneration, and that 
a sufficient data volume is available for their dissemination, to the extent such channels 
are not yet disseminated in a digital terrestrial manner in the respective coverage area. 

- Role of platform operators 

Multiplex  operators  are  selected  in  accordance  with  the  requirements  stated  in  the 
Austrian  Digitalization  Plan34  following  an  invitation  to  tender  for  multiplex  platforms.35 
Licenses  will  be  granted  for  a  period  of  10  years  to  those  applicants  that  best  comply 
with  the  selection  criteria  (such  as  high  supply  rate,  high  technical  quality,  plurality  of 
opinions  in  the  digital  programming,  consumer  friendliness).  Terrestrial  television 
broadcasters are, however, selected directly by the multiplex operator in accordance with 
the criteria stated in the Audio Visual Media Act and the requirements as specified by the 
Austrian Communications Authority.36 This selection is, of course, subject to supervision 
by the Authority.  

31	 

32	 

33	 

34 

35 

36	 

Recent decisions may be downloaded at http://www.rtr.at/en/m/Entscheidungen. 
The digitalization is, however, scheduled. By an amendment to the Private Radio Act, Federal Law Gazette 
I  No  50/2010,  a  legal  basis  (§§  15  –  15b)  has  been  created  for  the  licensing  of  multiplex  platforms. 
Licenses  are  to  be  put  out  to  public  tender  in  accordance  with  the  Austrian  Digitalization  Plan  (may  be  
downloaded at http://www.rtr.at/de/m/Digikonzept2011). 
See  above.  The  adoption  of  digital  radio  broadcasting  has,  however,  been  evaluated  (the  report  may  be 
downloaded at http://www.rtr.at/de/komp/EndberichtDAB) and is scheduled (see below at the discussion 
of the access to radio frequencies for more information). 
The Digitalization Plan may be downloaded at http://www.rtr.at/de/m/Digikonzept2011. 
See e.g. the invitation to tender for multiplex platform C (terrestrial broadcasting on the regional and local 
level) at the Authority’s website.  
See e.g. the requirements stated in the Addendum to the initial decision by the Austrian Communications 
Authority  (KOA  23.2.2006,  4.200/06-002)  licensing  the  multiplex  operator  ORS,  pp.  69-70.  The  decision 
may be downloaded at http://www.rtr.at/de/m/KOA4200-06-02-MUX-ORS. 

104 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
 
 
 
 
  
 
  
 
 
  
 
 
  
 
 
 
 
 
 
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  Access to Information 

- Transparency of media ownership situations 

The  Media  Act  provides  for  the  following  general  transparency  requirements  concerning 
media activities: 

Each  media  product  has  i.a.  to  indicate  the  name  or  the  company  of  the  media  owner 
and  of  the  producer  as  well  as  the  business  place  of  the  publishing  house  and  of  the 
producer as well as the address of the media owner and of the editors’ department of the 
media undertaking as well as the name and address of the publisher (§ 24 Media Act).37 

The  media  owner  of  each  periodical  media  product  is  required  to  publish  information  in 
order to make the ownership structure transparent (§ 25 Media Act). 

- Accountability of public service media 

According to § 21 para. 4 ORF Act the Director General has reporting obligations to the 
Foundation Council. 

For the quality assurance system according to § 4a of the ORF Act, see above. 

- Freedom of information laws 

Conform to the federal framework legislation and the “Duty to Grant Information Act”, all 
entities  embodied  with  administrative  duties  as  well  as  the  other  public  law  corporate 
bodies  shall  impart  information  about  matters  within  their  sphere  of  jurisdiction  as  long 
as  no  conflict  with  a  legal  requirement  to  maintain  confidentiality  arises.  In  case  the 
authority addressed is not willing to provide the information required it has to rule on the 
matter  by  administrative  decision38  in  order  to  enable  the  applicant  to  file  an  appeal  of 
this decision. 

- Accessibility of products/services and distribution networks 

According  to  the  Supreme  Court’s  case  law  there  is  a  right  of  tenants  to  use  a  satellite 
applicable  also  to  tenants  subject  only  to  those  restrictions  that  are  set  by  Community 
(Union)  Law.39  However,  building  regulations  and  local  planning  have  to  be  met. 
According to § 3 of the ORF Act the ORF, together with all regional studios, must provide 
three  nation-wide  and  nine  state-wide  radio  channels,  and  two  national  television 
channels;  ensuring  that,  subject  to  technical  development  and  economic  feasibility,  all 
inhabitants  of  the  national  territory  who  are  authorised  to  operate  a  radio  or  television 
receiver  are  consistently  and  permanently  provided  with  one  province-wide  and  two 
nation-wide radio channels and two nation-wide television channels. 

Disabled or persons with no or no significant income can apply to an exemption of their 
duty to pay licence fees (see § 3 para. 5 of the “Rundfunkgebührengesetz”40). 

37 

38 

39 

40 

For particular requirements for audio-visual media see § 29 Audio Visual Media Act. 

See  for  the  Federal  Administrative  Court’s  recent  case  law  (VwSlg  [Collection  of  the  Case  Law  of  the  

Federal Administrative Court] 17641 A/2009. 
For details see OGH 21.10.2003, 5 Ob 199/03f. 
Licence Fee Act, Federal Law Gazette I 1999/159 as amended by 2003/71. 

105 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
  
 
 
  
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

  “Have a Say on ...” 

- Participation in media operators/(self-)regulatory bodies 

To  safeguard  the  interests  of  the  listeners  and  viewers,  an  Audience  Council  of  the 
Austrian  Broadcasting  Corporation  was  established  (see  § 30  ORF  Act  for  a  detailed 
outline  of  the  functions  of  this  body).  Members  serve  a  term  of  four  years  and  are 
selected either by election of the viewers and listeners or by appointment (see § 28 ORF 
Act). 

2.2.1.2.  Main Players in the Media Landscape 

2.2.1.2.1. 

Radio 

The  table  below  shows  that  to  a  large  extent  the  Austrian  Radio  landscape  is  still 
dominated by ORF-Stations. As indicated in the 2004 report Krone, Hit Radio is, however, 
the  only  radio  station  broadcasting  on  a  national  level.  Thus  the  table  below  has  to  fall 
short of picturing the regional importance some private radio stations may have. 

Table 1 AT: Main radio companies 

Market Shares* 
Broadcaster 

ORF 

ORF 

Private radios 

Ownership Structure 

Programs 

Ages 10+  Ages 

Public Service Broadcaster  Overall 

75 

14-49 
68 

Public  Service  Broadcaster 

Österreich 
1 
Ö2  Bundesländer-
Radios 
Ö3 
FM4 
Total 

6 
36 
31 
2 

23 

Kronehit  Radio  Betriebs 
GmbH 

Kurier  Hörfunk  Beteiligung 
GmbH 

KRONEHIT 

6 

2 
1 

1 
0 
1 

0 

Antenne 
Steiermark 
Antenne Kärnten 
Antenne  Salzburg 
Antenne 
Tirol 
Antenne Wien 

Antenne 
Vorarlberg 

Arabella 

Radio 
Wien/NÖ 
Radio  Arabella  OÖ 
Arabella 
Radio 
Salzburg 

2 
0 
0 

Antenne network 

Styria  Media 
GmbH 

Regional 

Antenne  „Österreich“  und 
Medieninnovationen GmbH 

Alpha  Medien  GmbH 
Wirtschaftskommunikation 

für 

Vorarlberger  Regionalradio 
GmbH 

Arabella network 

Eugen  Ruß  Vorarlberger 
Zeitungsverlag 
und 
Druckerei 
GesmbH 
Telefon  &  Buch  Verlags­
gesellschaft mbH 10% 
decentralised ownership 

90%, 

106 


3 
20 
41 
4 

30 

10 

3 
2 

1 
0 
1 

1 

1 
0 
0 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Life 
Oberösterreich 

Radio 

2 

3 

OEG 

GmbH 

LIFE Radio GmbH & Co KG  J.  Wimmer  GmbH  25,5%, 
OÖ  Media  Data  Vertriebs- 
und 
9,5%, 
Verlags 
Werbering 
Gutenberg 
5%, 
GesmbH 
Privates  Radio  OÖ  GmbH 
Nachfolge 
9,5%, 
Plus-City 
Medienbeteiligungs 
GmbH  &  Co  KEG  10%, 
Vereinigung 
der 
Österreichischen 
Industrie  Landesgruppe  OÖ 
5%, 
Ypsiolon 
Imobilienvermietungs 
GmbH 
5%, 
RAFIS  BeteiligungsgesmbH 
3%, 
Krüger  Medien  GmbH  2%,
Öberösterreichische  Rund­
schau GmbH 25,5% 

-

NRJ 
Privatradiobetriebs  GmbH  GmbH 
Radio 
Radio NRJ GmbH 25,1% 

N&C  NRJ  Radio  Beteiligungs  Energy 
62,9%,  Ernergy 

Wien  1 
Tirol  0 
12%,  Energy  Salzburg  0 
Radio Eins (Stmk.)  0 
0 
Radio Graz 

ID 

Welle 1 

HIT FM Network 

Radio 
Gesellschaft mbH 

Eins 

Privatradio 

80%  Stephan  Prähauser, 
20%  AIC  Allg.  Industrie 
Consulting 
but 
decentralised 
almost  100%  Medien  Union 
GmbH 
Medien Union GmbH 

Welle 
Salzburg/OÖ/ 
Steiermark 
some 
Niederösterreich 
and Burgenland 
88.6 
Musiksender 
(Wien) 

1 

1 

in 

0 

Der 

1 

2 
0 
0 
0 
0 

1 

1 

2 

* Market Shares as reported by RMS Austria, Radiotest second semester of 2011 

2.2.1.2.2. 

Television 

As  for  the  Radio  Sector  also  the  Austrian  television  landscape  is  still  dominated  by  the 
public  service  broadcaster.  A  comparison  to  the  2004  reports  indicates,  however,  that 
this  dominant  position  is  partly  declining.  As  pictured  in  the  2004  report  the  market 
share of German (public as well as private) broadcasters is significant. 

107 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 2 AT: Main Television Companies 2011 

Austrian Broadcasters 

Ownership Structure 

Remarks 

Channel 

ORF 

Public  service  broadcaster  

ATV  Privat  TV  GmbH  & 
Co KG 

Puls  4  TV  GmbH  &  Co 
KG 
ServusTV 
Fernsehgesellschaft 
mbH 
Austria 9 TV GmbH 

52%, 
Fernseh 

Medienbeteiligungs 

HKL 
GmbH 
KG 
Co 
& 
Tele  München 
GmbH 
& 
Produktionsgesellschaft 
48% 
SevenOne  Media  Austria 
GmbH 
Red  Bull  Media  House 
GmbH 

Co 

Andmann  Media  Holding 
GmbH 
41,5%, 
Josef Andorfer 58,5% 

ORF1 
ORF2 
Sport+ 
ORF 
ORF  III  Kultur 
u. 
Information 
Public 
Broadcaster 
Overall 
ATV 
ATV II 

MS* 
12+ 
13.80% 
22.60% 
n.a. 
n.a. 

36.40% 

3.6% 
n.a. 

Puls 4 

2.90% 

Servus TV 

0.70% 

Austria 9 

0.4% 

Private 
Broadcasters 
Overall 

7.60% 

(Partly)  Foreign  Private  Broadcasters 
advertising-breaks in Austria 
SAT.1  Privatrundfunk- 
und 
Programmgesellschaft 
mbH 

Medicur  Holding  GesmbH 
24,5%, 
Styria  Media  Group  AG 
24,5%, 
Sat.1  Satelliten-Fernsehen 
GmbH 51% 
SevenOne  Media  Austria 
GmbH 

ProSieben 
GmbH 

Austria 

featuring  Austrian  programming  windows, 

marketing 

programming 
windows, 
marketing 
advertising-breaks 

programming 
windows, 
marketing 
advertising-breaks 

Sat.1 Austria  6.50% 

Pro7 Austria 

5.20% 

MS Overall 

11.70% 

Foreign Private Broadcasters marketing advertising-breaks in Austria 
RTL Austria 

advertising-breaks  RTL 

6.50% 

Österreich 

VOX Österreich 

advertising-breaks  VOX 

4.50% 

RTL II 
Super RTL 
Kabel eins 

Foreign public broadcasters 
ZDF 
ARD 
3Sat 

Österreich 

advertising-breaks  RTL II 
advertising-breaks  Super RTL 
advertising-breaks  kabel eins 
MS Overall 

2.20% 
1.30% 
2.80% 
17.30% 

PSB Germany 
PSB Germany 
PSB D, A, CH 

ZDF 
Das Erste 
3Sat 
MS 
Overall 

4.20% 
3.20% 
1.90% 
9.30% 

108 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

* Adults 12+, Market share 2011, AGTT/GfK 

2.2.1.2.3. 

Press and Publishing 

Levels  of  newspaper  consumption  are  still  quite  high  with  73.7%  of  the  population 
picking up a newspaper on an average day in 2010.  

Advertising  spending  in  the  printed  press  continues  to  account  for  the  largest  part  of 
national  spend,  amounting  to  a  total  of  55.6  percent  of  the  "classical  spending".  Within 
this segment the daily papers were in the first position with 56.4 of the spending in this 
sector and 25.5 percent of the total spending. 

The Mediaprint Group is the largest player in the field of the printed press, a subsidiary of 
Kronen  Zeitung  publishing  company  and  Kurier  publishing  company  with  a  rather 
complex  structure.  It  organises  printing,  distribution,  marketing,  acquisition  of 
advertisements  and  administration  for  both  daily  papers  whereas  the  editorial  staff  is 
organised  in  different  subcompanies.  Furthermore  the  Media  Print  Group  accounts  for 
printing and distribution of several other daily papers. Via Kurier Publishing Company it is 
linked with the NEWS Group, the strongest player in the field of magazines. 

The  second  important  player  is  the  Styria  Media  Group.  This  publishing  house  (which  is 
closely  tied  to  the  catholic  church)  owns  the  Kleine  Zeitung,  the  second  largest  daily 
paper in Austria (distributed in the two southern provinces) as well as two quality dailies 
(the conservative daily “Die Presse” and the economic daily “Wirtschaftsblatt”) which are 
supra-regional  with  regard  to  their  editorial  concept.  As  regards  magazines,  the  Styria 
Media Group is in second position and it is also engaged in cost-free weeklies and private 
radios in Austria as well as in the sector of the printed press in Croatia and Slovenia. 

Table 3 AT: Austria´s largest Media Companies as publishers of daily 
newspapers 

Major Group 

Ownership Structure 

Titles  

Kronen Zeitung 
Kurier 

Market 
Share 
2010*  
39.0 

Mediaprint  Zeitungs­
und 
Zeitschriftenverlag 
GmbH & Co KG 

Styria Media Group 

Moser Holding AG 

Vorarlberger 
Medienhaus Gruppe 

% 

30 

70  %  Krone  Verlag  GmbH  & 
Co. 
Vermögensverwaltung 
KG  (Gesellschafter:  49.5  % 
Verlassenschaft  nach  Hans 
Dichand, 49.5 % NKZ Austria 
Beteiligungs  GmbH  Essen) 
and 
Kurier 
Zeitungsverlag und Druckerei 
GmbH  (Gesellschafter:  50.56 
%  Printmedien  Beteiligungs­
ges.m.b.H  and  49.44  % 
WAZ, Essen) 
98.3  %  Fa.  Katholischer 
Medien  Verein  Privatstiftung 
and  1.7  %  Fa.  Katholischer 
Medien Verein 
langjährigen 
des 
Erben 
Eigentümers  85.37  %  und 
14.63  %  Raiffeisen  OÖ 
Holding 
Eugen  A.  Russ 
Privatstiftung; 
Privatstiftung 38.5 % 

/  EAR 
Kempf-Russ 

Kleine Zeitung 
Die Presse  
WirtschaftsBlatt  

15.3 

Tiroler Tageszeitung  
TT Kompakt (cost-free daily)  

3.8 

Vorarlberger Nachrichten  
Neue 
Tageszeitung 

Vorarlberger 

2.7 

*  based  on  the  Austrian  Circulation  Audit  (ÖAK)  and  other  sources;  market  share 
referring to daily circulation.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Due  to  the  launch  of  the  two  (partly)  cost-free  newspapers  "Heute"  (2004)  and 
"Österreich”  (2006)  the  market  of  dailies  changed  in  the  last  years.  The  largest  of  all 
Austrian  daily  newspapers  (total  number:  18;  3  of  them  are  cost-free  newspapers)  as 
regards  the  number  of  sold  copies  and  coverage  still  is  the  "Kronen  Zeitung":  In  2010, 
this newspaper reached 38,9 % of the population aged 14+ every day. But the cost-free 
daily  tabloid  "Heute"  already  ranks  second,  coequal  to  the  regional  paper  "Kleine 
Zeitung" which has been in the second position for a long time. The tabloid "Österreich" 
is in third position. Discussions on whether this publication has to be considered a cost-
free daily continue. In the Viennese region it is (in parts) available free of charge at bus 
stops and underground stations. 

Table 4 AT: Average number of printed copies and reach of the largest Austrian 
dailies in 2010 

Publication 

Circulation* 

Daily reach** 

Kronen Zeitung 

Heute (cost-free daily) 

Kleine Zeitung 

859,760 

541,249 

301,653 

Österreich (partly cost-free daily) 

364,526 

Kurier 

OÖ Nachrichten 

Tiroler Tageszeitung 

Die Presse 

Der Standard 

Salzburger Nachrichten 

Vorarlberger Nachrichten 

176,655 

127,686 

99,260 

85,647 

91,562 

78,814 

66,866 

38.9 

12.0 

12.0 

9.6 

8.1 

4.8 

3.9 

3.8 

5.3 

3.6 

2.6 

* based on the Austrian Circulation Audit (ÖAK) and other sources;  

**  based  on  the  figures  of  the  Austrian  Circulation  Audit  (ÖAK);  ‘reach’  refers  to  the 
Austrian population aged 14+  

2.2.1.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

There are no data to fill in here. 

2.2.1.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Compared  to  2003  the  number  of  households  with  cable  TV  grew  substantially  from 
1.279 Mio to 1.549 Mio. That is – apart from effective losses in market shares – one of 
the  main  explanations  for  the  diminishing  share  of  the  major  player  UPC.  Apart  from 
that, as the table below indicates, the cable landscape and the ownership structure have 
changed since 2003: 

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Table 5 AT: Main Cable Companies 

Specification 
cable 

Outlets* 
519,000 

MS* 
33.5% 

IP TV 
cable 

cable 

cable 

200,000 
165,000 

12.90% 
10.7% 

119,000 

7.70% 

110,000 

7.1% 

Provider 
UPC  Wien,  Graz, 
Tirol, 
Klagenfurt, 
Oberösterreich, 
Wiener 
Neustadt/Baden 

A1 TV 
Liwest 

Kabelsignal/NÖKO 
M 
Salzburg 
(cableLINK) 

AG 

Ownership Structure 
UPC  Broadband  GmbH 
Inc.) 
(Liberty  Global, 
Wien: 
In 
UPC  Broadband  95% 
Kabel-TV-Wien 
Gesellschaft 
m.b.H 5% 
Telekom Austria 100% 
Energie 
Linz 
AG 
E-Werk-Wels AG 13% 

44% 
40% 

AG 

EVN AG 100% 

Land  Salzburg  42,56% 
Stadt  Salzburg  31,31% 
AG 
Energie 
Oberösterreich, 
Service­
Beteiligungs­
verwaltungs-GmbH 
26,13% 

und 

*  various  sources  –  UPC  website,  A1  TV  press  release,  Liwest  website,  Kabelsignal 
business report, Salzburg AG business report 

2.2.1.2.6.	 

Audience/Readership/Usage/Subscription;  Advertising  market  shares  (all 
media) 

The  advertising  revenue  in  2011  amounted  to  a  total  of  €  3,844,207,000.00.  When 
compared to 2002 the shares in selected areas changed significantly which is particularly 
due to the growing importance of online advertising. 

Table 6 AT: Share of advertising revenue within the media sector 2011: 

Television  

Print 

Direct Marketing 

Radio 

Outdoor 

Online 

* Source: rtr 

19% 

46% 

18% 

6% 

5% 

6% 

2.2.1.3.  Conclusion and Recommendations 

When  compared  to  2004  the  legal  framework  governing  the  Austrian  media  landscape 
has  been  altered  in  various  respects.  By  implementing  and  executing  comprehensive 
digitalization  endeavours,  terrestrial  television  broadcasting  has  changed  significantly. 
The  presence  of  a  growing  variety  of  broadcasting  companies  overall,  however,  keeps 
redefining  the  Austrian  broadcasting  system,  even  though  it  cannot  be  denied  that  the 
Austrian Public Broadcasting Company (ORF) remains the dominant player outshining its 
competitors  in  the  field  of  television  and  even  more  so  when  it  comes  to  radio 
broadcasting.  By  constitutional  amendment  the  basis  for  the  subsequent transformation 
of the Austrian Communications Authority (KommAustria) into a fully independent media 
authority has been created.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  re-establishment  of  the  Austrian  Press  Council  has  put  an  end  to  the  unsatisfying 
vacancy  of  a  self-regulatory  supervisory  body  on  press  activities,  even  though  it  has  to 
be considered as regrettable that not all of the leading periodical publications did join this 
institution.  The  recently  enacted  Media  Transparency  Act,  finally,  aims  at  providing  for 
disentanglement of media and political players and thus is very likely to be an important 
step towards further ensuring and strengthening media independence in Austria. 

The  last  years  also  have  brought  significant  progress  on  the  technical  level:  The 
multiplex-standard  now  established  in  the  field  of  television  broadcasting  is  to  be 
expected to be implemented soon also in the field of radio broadcasting; thus providing 
for a greater degree of diversity and competition among various broadcasters. 

Still,  the  developments  made  in  this  regard  are  significant  given  the  monopolist  status 
the public broadcaster ORF enjoyed only two decades ago. A fact which may also prove 
to be true when it comes to the exertion of undue political influence on the ORF: rising 
public  awareness  of  the  problems  in  this  area  and  the  recent  bestowal  of  the  highly 
esteemed  Concordia  Award  for  Freedom  of  the  Press  to  the  editorial  staff  of  the  ORF’s 
main news program for their strong sense of editorial independence provide evidence of 
such a positive development. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

BELGIUM 


2.2.2.	 

Belgium 

2.2.2.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.2.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The Belgian constitutional framework concerning the right to freedom of expression and 
freedom of the press is shaped by Articles 19, 25 and 150 of the Constitution (unofficial 
translation available at the website of the Belgian Parliament). 

Article  19  refers  to  the  freedom  of  expression,  Article  25  introduces  the  freedom  of  the 
press and establishes a cascade liability system for the press (cf. infra), and Article 150 
stipulates that ‘printed press crimes’ (except for those inspired by racism or xenophobia) 
should be brought before a jury at the ‘Hof van Assisen’/‘Cour d’Assises’ (i.e., a court of 
law composed of both professional judges and a jury of citizens, which adjuticates on the 
most serious and delicate offences).  

The  three  articles  regarding  freedom  of  expression  and  freedom  of  the  press  are  still 
formulated in exactly the same way as in 1831, despite the enormous evolution that has 
occurred  in  the  media  landscape.  It  is,  however,  generally  accepted  that  –  due  to  the 
technology-neutral  wording  of  Article  19  –  the  constitutionally  protected  freedom  of 
expression is applicable to any medium: the written press, radio, television broadcasting, 
movies, the Internet, as well as any future medium. 

Articles 25 and 150 are not formulated in the same technology-neutral manner, as they 
use  the  word  ‘press’  or  ‘print  press’.  The  Constitution  does  not  contain  a  definition  of 
‘printed  press  crimes’.  Over  time,  legal  doctrine  has  constructed  the  following 
description: ‘a view or an opinion, criminalised by law, made public by means of printed 
media’.1 

The  Belgian  courts  seem  divided  about  the  question  whether  the  traditional  freedom  of 
the  press  should  be  extended  to  new  information  and  communication  technologies.  The 
Supreme Court (‘Hof van Cassatie’/‘Cour de Cassation’), for instance, was already in its 
judgement  of  9  December  1981  of  the  opinion  that  Article  25  was  not  applicable  to 
audiovisual  media.  This  interpretation  was  later  also  reconfirmed  in  its  judgment  of  2 
June  2006.  Together  with  some  other  -  lower  -  courts,  the  Constitutional  Court  in  its 
ruling  of  6  October  2004  however  seems  of  the  opinion  that  the  scope  of  Article  25 
should  not  be  strictly  limited  to  the  print  press.  The  unclarity  about  the  actual  scope  of 
the  Articles  19  and  25  of  the  Constitution  has  given  rise  to  critical  remarks  from  the 
European Court on Human Rights, which in its case on the public service broadcaster of 
the  French  Community  –  RTBF  v.  Belgium  –  on  29  March  2011  ruled  that  the  strict 
interpretation  of  the  constitutional  protection  of  the  freedom  of  expression  and  of  the 
media conflicts with the requirements as imposed by Article 10 ECHR. 

1 

Dirk Voorhoof & Peggy Valcke, Handboek Mediarecht (Brussel: Larcier, 2011), Part 1, Chapter 3, Section 
3, p. 93. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  protection  of  Article  150  of  the  Constitution  does  not  extend  to  criminal  opinions 
broadcast  through  radio  or  television,  and  until  recently  it  was  quite  unclear  whether 
‘printed  press  crimes’  could  be  committed  over  the  Internet.  In  the  past,  several  lower 
courts had explicitly adopted a teleological interpretation by considering the Internet as a 
type of ‘press’ and accepted without much hesitation that a printed press crime could be 
committed  for  instance  on  Internet  newsgroups  or  forums.  This  interpretation  was  later 
followed by an increasing number of Courts of Appeal, and was finally confirmed by the 
Belgian Supreme Court in its ruling of 6 March 2012.  

  Freedom to receive and to access information 

The  right  to  freedom  of  expression  in  Belgium  is  further  supplemented  by  a  number  of 
additional  constitutional  rights  relating  to  the  freedom  to  receive  information  and  the 
right to access information, such as: 

Article 32 Constitution 

Everyone  has  the  right  to  consult  any  administrative  document  and  to  obtain  a  copy, 
except in the cases and conditions stipulated by the laws, federate laws or rules referred 
to in Article 134. 

  Safeguards on regulatory authorities 

There  are  no  specific  constitutional  references  or  guarantees  regarding  press  or  media 
regulatory  authorities,  but  all  communities  have  created  regulatory  authorities  in  the 
television and radio broadcasting sector, while the federal powers relating to audiovisual 
media in Brussels are assigned to the telecommunications regulator, BIPT.  

  Safeguards on “universal service” 

Not  taking  into  account  implemented  EU  obligations  (e.g.  provisions  on  must-carry, 
access  to  major  events,  short  news  reporting,  obligations  for  conditional  access 
providers),  there  are  no  additional  specific  constitutional  references  or  institutional 
guarantees to the concepts of “universal service” in the Belgian media sectors.  

2.2.2.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- licensing  schemes;  remit  psm;  notification  requirements 

for  print 

publications 

When  it  comes  to  broadcasters  other  than  from  the  PSB  sphere,  first,  it  should  be 
recalled that both the Flemish and French communities - going one step further than the 
European  legislator  -  considered  it  necessary  to  not  only  impose  obligations  on  content 
providers and network operators (following the current EU division between content and 
transmission  regulation  in  the  European  legislative  framework)  but  also  on  a  third 
category of actors, i.e., the distributors.  

To  be  more  precise,  the  2003  reform  of  the Broadcasting  Act  in  the  French  Community 
already  led  to  the  introduction  of  new  classifications  of  the  different  players  in  the 
broadcasting  value  chain:  ‘éditeurs  de  services’,  ‘distributeurs  de  services’,  and 
‘opérateurs de réseau’. This threefold classification was maintained in Article 2, §2 of the 
2009 French Community Audiovisual Media Services Act (French Community Media act).  

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When implementing the Audiovisual Media Services Directive, the Flemish legislator also 
adopted  this  three-layered  approach,  being  of  the  opinion  that  the  category  of 
distributors gained in importance in the audiovisual media landscape. The 2009 Flemish 
Community Radio and Television Broadcasting Act (Flemish Media act) consequently also 
applies to the three above-mentioned categories of actors: 

– 

– 

– 

	the  ‘editors  of  broadcasting  services’  (or  ‘content  providers’):  those  who  produce 
(and  have  the  editorial  responsibility  over)  radio  or  television  channels  or  other 
information services; this category of market players is subject to advertising rules, 
programme  requirements  (protection  of  minors,  prohibition  of  hate  speech  and 
racism), etc. Depending on whether they use scarce resources (in casu frequencies) 
or not, they will have to apply for a license or submit a notification; 

	the  ‘distributors  of  broadcasting  services’  (or  ‘service  providers’):  those  who 
aggregate  or  package  channels  and  services  (either  their  own  productions  or 
acquired from third parties) into various bundles and offer these to end-users; they 
have  to  submit  a  prior  notification  or  declaration  to  the  respective  media 
regulators; 

	the  ‘network  operators’  (or  ‘network  providers’):  those  who  control  the  technical 
exploitation  of  broadcasting  networks  and  provide  transmission  capacity  for  the 
delivery  of  audiovisual  media  services.  Operators  of  cable  networks  are  subject  to 
prior  notification,  operators  of  terrestrial  networks  have  to  apply  for  an  individual 
authorization linked to a specific frequency. 

It  can  be  noted  that,  in  practice,  market  players  will  often  perform  several  functions 
simultaneously;  hence,  they  could  fall  under  more  than  one  of  the  above  categories.  A 
radio  station  transmitting  over  the  air,  for  instance,  acts  at  the  same  time  as  content 
provider (editing its own radio programme), service provider (offering its programme to 
the  listener)  and  network  provider  (operating  its  own  broadcasting  equipment).  The 
Flemish  commercial  television  broadcaster,  VMMa,  is  an editor  of  broadcasting  services, 
but  is  not  a  distributor  of  services  or  network  operator  (since  it  does  not  aggregate 
channels  in  packages,  nor  has  transmission  facilities  of  its  own;  its  channels  are  only 
distributed  via  the  cable  networks  of  other  companies).  Maintaining  the  network  and 
offering  programme  packages  to  end-users  are  considered  different  operations,  which 
can be performed by separate entities (e.g. TV Vlaanderen for digital satellite television). 

The Flemish Media act distinguishes the following categories of private radio broadcasters 
are distinguished in Flanders: 

(1) Private linear radio broadcasters (Article 127 Flemish Media act): 

(a)	  National  or  communitywide  radio  broadcasters:  they  offer  a  range  of  programmes 
(including  information  and  entertainment)  to the  whole  of  the  Flemish  Community 
(Article 137 Flemish Media act). 

(b)	  Regional radio broadcasters: they offer a variety of programmes (including regional 
information;  regional  cultural,  sports  and  other  events;  and  entertainment)  to 
(maximum) one province (Article 140 Flemish Media act). 

(c)	 

Local  radio  broadcasters:  they  provide  a  range  of  programmes  (including  local 
information  and  entertainment)  to  a  city,  municipality,  a  limited  number  of  joined 
municipalities or a particular target group (Article 144 Flemish Media act). 

115 


 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

(d)	  Other radio broadcasters: broadcasters that transmit their programmes solely via a 
cable  network,  digital  terrestrial  network  or  via  the  Internet  (i.e.,  all  broadcasters 
who do not use AM or FM frequencies) (Article 147 Flemish Media act). 

(2)  Private  non-linear  radio  broadcasters  (Article  150  Flemish  Media  act):  they  offer 
radio services on demand. 

The Flemish Media act lists following categories of private television broadcasters: 

(1) Private linear television broadcasters (Article 159 Flemish Media act): 

(a)	  Private  commercial  television  broadcasters:  they  offer  TV  programmes,  and  may 
carry out activities that directly or indirectly contribute to the achievement of their 
goal (Article 160 Flemish Media act). 

(b)	 

(Non-profit)  Regional  television  broadcasters:  they  offer  regional  information 
(including  news  casts, background  information, debates,  election  programmes  and 
service programmes (Article 165 Flemish Media act). 

(2) 

	Private  non-linear  television  broadcasters  (Articles  174–176  Flemish  Media  act): 
they offer non-linear television broadcasting services. 

Private radio broadcasting in the French Community is structured as follows: 

(1) Analogue terrestrial radio (Article 52 French Community Media act): 

(a)	  Network radios (private radio broadcasting service using a network of frequencies) 

(b)	 

Independent radios (private radio broadcasting service using one single frequency) 

It can be noted that the French Community inserted several provisions in its broadcasting 
legislation  dealing  with  ‘radios  associatives  et  d’expression  à  vocation  culturelle  ou 
d’éducation  permanente’  (‘community  radios’).  These  are  independent  radios  mainly 
staffed by volunteers with programmes focused either on information, education, cultural 
development  and  citizen’s  participation,  or  on  musical  genres  that  do  not  belong  to  the 
most popular ones (Article 1, 42° French Community Media act). 

(2)	  Other private radios (Articles 59 et seq. French Community Media act) 

(3)  School radios (Article 63 French Community Media act). 


The structure of television broadcasting in the French Community is as follows: 


(1)	  Public television broadcaster (RTBF, supra) 

(2)	  Non-profit local television broadcasters (‘télévisions locales’) (Articles 64–75 French 
Community Media act): a separate category of editors of broadcasting services with 
a specific authorization regime and a special public mission 

(3)	  Private  commercial  television  broadcasters  (not  actually  mentioned  as  such;  no 

further distinctions are made). 

Obligations  in  the  area  of  public  service  broadcasting  (e.g.  programmes  of  the  Flemish 
public service broadcaster) should allow to contribute to the development of the identity 
and  diversity  and  of  a  democratic  and  tolerant  society;  e.g.  programmes  of  the  French 

116 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

public  service  broadcaster  should  contribute  to  a  democratic  and  tolerant  society  and 
stimulate communication and public debate.  

According  to  Article  6  Flemish  Media  act,  the  mission  of  the  Flemish  PSB  is  to  reach  as 
many media users as possible with a diversity of high quality programmes which are of 
interest to these users. The “Vlaamse Radio en Televisie” (VRT) needs to provide a varied 
offer  of  high  quality  programmes  in  the  fields  of  information,  culture,  education  and 
entertainment  (including  sports  and  original  fiction).  Quality,  professionalism,  creativity 
and  originality  are  of  the  utmost  importance.  There  is  an  explicit  mission  to  bring 
children’s  programmes.  The  programmes  should  contribute  to  the  development  of  the 
identity  and  diversity  of  the  Flemish  culture  and  of  a  democratic  and  tolerant  society. 
Through its programmes the VRT has to contribute to the formation of an independent, 
objective and pluralistic public opinion in Flanders. Importantly, Article 6 also states that 
the  VRT  should  closely  follow  technological  developments  in  order  to  offer,  if  necessary 
and  desirable,  its  programmes  via  new  media  applications  to  its  viewers  and  listeners. 
The  public  service  mission  and  funding  for  it  are  further  elaborated  in  four-yearly 
management  contracts  concluded  between  the  Flemish  government  and  the  public 
broadcaster (cf. infra). 

According  to  Article  3  of  the  act  regulating  the  public  service  broadcaster  of  the  French 
Community,  RTBF,  of  1997  (hereinafter:  RTBF  Act),  the  mission  of  the  French 
Community,  i.e.,  the  RTBF,  is  to  offer  television  and  radio  programmes  to  the  French-
speaking citizens of Belgium by various means. The RTBF must provide a diverse, varied 
offer,  in  different  genres  (information,  entertainment,  education,  culture,  youth  …), 
attracting for the widest possible audience, catering for both wide and narrow interests. 
Moreover,  the  RTBF  must  also  promote  social  cohesion,  while  reflecting  the  different 
ideological,  philosophical,  religious,  cultural  opinions  and  ideas  (also  of  social-cultural 
minorities)  in  society,  contribute  to  a  democratic  and  tolerant  society  and  stimulate 
communication  and  public  debate.  In  addition,  the  RTBF  should  make  significant  efforts 
in  creating,  and  favouring  original  productions  and  in  valorizing  the  French  Community 
patrimony. 

Given the explicit freedom of print media (Art. 25 and 150 Constitution), no formality is 
required before launching commercial operations. 

- Media pluralism/ownership; competition law aspects 

A limited number of ownership rules exists for specific categories of radio and television 
stations, based on the number of licenses (in Flanders) or capital or audience shares (in 
Wallonia). 

It is typical for the Flemish broadcasting legislation to limit control over media companies 
not via an ownership share model, but through limiting the number of executive boards 
of which a single person can be a member. For example: one cannot be a member of the 
board  of  governors  of  more  than  one  communitywide  radio  in  Flanders,  nor  can  a 
member  of  the  board  of  governors  of  a  communitywide  radio  also  be  a  member  of  the  
executive  board  of  the  public  service  broadcaster  (Article  138,  §1,  2°,  a  Flemish  Media 
act); one cannot be a member of the board of governors of more than one regional radio 
station  in  Flanders,  nor  can  a  member  of  the  board  of  governors  of  a  regional  radio 
station  also  be  a  member  of  the  executive  board  of  a  communitywide  radio  or  of  the 
public  service  broadcaster  (Article  141,  §1,  2°,  a  Flemish  Media  act);  one  cannot  be  a 
member  of  the  board  of  governors  of  more  than  one  regional  television  station  (Article 
169, 1° Flemish Media act). 

117 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The VRM has the task to ‘map’ (monitor) concentrations in the Flemish media sector and 
to report annually (Article 218, § 2, 8° Flemish Media act). Since 2007 VRM developed a 
‘media database’, which is used for its annual reports on media concentration2 and for ad 
hoc  reports  in  response  to  specific  questions.  The  purpose  is  merely  to  enhance 
transparency;  the  regulator  cannot  take  any  direct  action  in  case  of  increases  in 
concentration which may endanger pluralism. 

There is only one similar restriction to combining positions in various executive boards of 
radio  or  television  broadcasters  in  the  French  Community:  one  cannot  combine 
membership of the board of governors of a local television station with holding a position 
at or being member of the executive board of other editors of broadcasting services or of 
press companies (Article 73 French Community Media act). 

In its Broadcasting Act of 2003, the French Community introduced a monitoring system 
with a view to protecting media pluralism. But, as the scope of this mechanism is limited 
to  the  audiovisual  sector,  we  cannot  speak  of  a  genuine  ‘crossmedia’  ownership 
regulation. The monitoring system is installed in Article 7 French Community Media act. 
This Article prohibits the exertion by an editor or a distributor of a significant position in 
the audiovisual sector if this would harm people’s right to have access to a pluralist offer 
of broadcasting services. A ‘pluralist offer’ is described as a wide range of media products 
offered  by  a  plurality  of  independent  and  autonomous  players  representing  the  widest 
diversity of opinions and ideas possible. An editor or distributor of broadcasting services 
is presumed to have a significant position in following situations: 

(1)  	 the  same  person  holds  more  than  24%  of  two  (or  more)  editors  of  radio 

broadcasting services; 

(2)	   the  same  person  holds  more  than  24%  of  two  (or  more)  editors  of  television 

broadcasting services; 

(3)  	 the  accumulated  audience  share  of  two  or  more  editors  of  radio  broadcasting 
services reaches 20% or more of the total radio production market and lies in the 
hands of the same person; 

(4)  	

the  accumulated  audience  share  of  two  or  more  editors  of  television  broadcasting 
services reaches 20% or more of the total television production market and lies in 
the hands of the same person. 

Should  the  case  arise,  the  ‘Higher  Council  for  the  Audiovisual  Sector’  (the  Conseil 
supérieur de l'audiovisuel – CSA) will have to assess the possible repercussions that this 
position  has  for  the  diversity  of  broadcasting  services  being  offered  in  the  relevant 
market.  If  the  CSA  concludes  that  the  concentration  of  ownership  interests  implies  a 
threat to pluralism, it will start a procedure in order to negotiate possible remedies that 
could restore pluralism. If the editor or provider in question and the CSA do not reach a 
compromise  within  six  months,  the  CSA  can  impose  sanctions,  such  as  fines  or  the 
withdrawal of the license. In October 2009, the CSA launched a special website dedicated 
to media pluralism: <www.csa.be/pluralisme>. 

Further, 
in  order  to  safeguard  the  specific  character  of  each  radio  station, 
cooperation/networking/affiliation  agreements  between  terrestrial  radio  stations  (and 
with the public broadcaster of the Flemish Community) are restricted in Flanders. Radio 
stations may only cooperate in ‘ad hoc’ cases (for instance, at the occasion of a special 

2 

Available at: www.vlaamseregulatormedia.be/nl/documentatie.aspx. 

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event)  and/or  cooperation  may  not  lead  to  ‘structural  uniformity’  in  the  programming 
policy  (for  instance,  cooperation  for  advertising  purposes  is  allowed,  but  not  for  the 
production  of  programmes;  see  Articles  137  and  144  Flemish  Media  act).  Affiliation 
agreements between local radio stations have to be limited to a maximum of sixty radios 
(Article 144, al.3 Flemish Media act). 

Apart from the general competition rules, which are laid  down in the federal Act on the 
protection  of  economic  competition,  coordinated  on  15  September  2006,  there  are 
virtually  no  crossmedia  ownership  restrictions  in  the  media  sector.  This  is  mainly  the 
result  of  the  division  of  powers  in  Belgium  between  the  federal  state  (press,  film)  and 
communities  (radio  and  television),  limiting  each  legislator’s  scope  for  action  to  one  of 
these  media  types.  In  the  French  Community,  however,  there  is  a  special  rule  for  local 
television  stations,  prohibiting  their  control,  directly  or  indirectly,  by  another  radio  or 
television broadcaster, a distributor of broadcasting services, an advertising agency or a 
holding  company  (‘société  à  portefeuille’)  (Article  67,  §1,  3°  French  Community  Media 
act). 

Some  transparency  provisions  and  limited  regulatory  powers  (mainly  montoring)  on 
ownership  exist  in  the  audiovisual  sectors  (cf.  infra),  but  there  are  no  sector  specific 
obligations for other media (e.g. newspapers) to identify their owners/shareholders (e.g., 
in  their  newspapers  or  on  their  website,  or  to  a  monitoring  body).  All  media  (including 
newspapers) are of course subject to the general competition rules and accounting rules 
in the same way as they apply to other sectors. 

- Legal framework for psm; ability to fulfill their tasks 

Article 6 para. 1 of the Flemish media decree states that “the VRT's purpose is to provide 
radio  programmes,  television  programmes  and  other  types  of  programmes  within  the 
mandate  of  the  public  broadcaster  as  set  forth  below,  as  well  as  to  carry  out  activities 
which directly or indirectly contribute to this, including producing programmes or having 
together  programming, 
programmes  produced,  acquiring  programmes,  putting 
broadcasting programmes, having these broadcast and publicising them in the broadest 
sense  of  each  of  these  terms”.  Para.  2  adds that  “as  a public  broadcaster,  the  VRT  has 
the  task  to  reach  the  largest  possible  number  of  media  users  with  a  diversity  of  high-
quality programmes which attract and meet the interests of the media users”. The task 
to  provide  high-quality  programming  is  mainly  relevant  in  the  information,  culture, 
educational  and  entertainment  sectors.  Further,  the  article  also  states  that  “VRT’s 
programming  shall  appropriately  target  certain  specific  population  and  age  groups,  in 
particular,  children  and  young  people”  and  that  programmes  must  contribute  to  the 
continued  development  of  the  identity  and  diversity  of  Flemish  culture  and  of  a 
democratic and tolerant society. 

The  public  service  mission  and  funding  for  it  are  elaborated  in  four-yearly  management 
contracts  concluded  between  the  Flemish  government  and  the  public  broadcaster.  The 
most recent management contract (see chapters 6.1.1. and 6.1.5) states that the radio 
and  television  offer  of  the  PSB  may  be  distributed  through  all  relevant  platforms, 
including  the  Internet  and  mobile.  Moreover,  the  existing  thematic  websites,  such  as 
deredactie.be (news), sporza.be (sport) and cobra.be (culture) remain a part of the PSB 
offer, although video is considered the most important element.  

According to Article 3 of the Act of 1997 regulating the public service broadcaster of the 
French  Community  (RTBF),  the  mission  of  the  RTBF,  is  to  offer  television  and  radio 
programmes  to  the  French-speaking  citizens  of  Belgium  by  various  means.  The  RTBF 
must  provide  a  diverse,  varied  offer,  in  different  genres  (information,  entertainment, 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

education,  culture,  youth  …),  attracting  for  the  widest  possible  audience,  catering  for 
both wide and narrow interests. Moreover, the RTBF must also promote social cohesion, 
while  reflecting  the  different  ideological,  philosophical,  religious,  cultural  opinions  and 
ideas (also of social-cultural minorities in society, contribute to a democratic and tolerant 
society  and  stimulate  communication  and  public  debate.  In  addition,  the  RTBF  should 
make  significant  efforts  in  creating,  and  favouring  original  productions  and  in  valorizing 
the  French  Community  patrimony.  These  legal  provisions  are  further  elaborated  in  a 
management  contract  which  specifies  that  the  RTBF  must  also  act  as  a  driving  force  in 
promoting the cultural identity of the French Community in the domain of new media and 
has a major role to play in the digital switchover (Articles 33 and 35 RTBF management 
contract). 

Both  public  service  broadcasters  in  Belgium  are  funded  on  a  ‘dual  funding’  basis.  This 
entails  that  the  major  part  of  the  financial  resources  originates  from  state  funding  (tax 
money, e.g. around 65% in Flanders), and that the other part is derived from commercial 
revenues  (merchandising,  advertisement  on  radio,  sponsoring  on  television  and  radio). 
Details of the state funding are included in the respective management contracts. 

The  public  service  broadcasters  in  both  the  Flemish  and  French  community  overall  fulfil 
their  public  service  mission.  In  its  2010  report  on  the  compliance  by  the  public 
broadcaster of the management agreement with the Flemish Community, the VRM states 
that the VRT has respected the vast majority of the objectives. However, the VRM notes 
that an insufficient number of television programs was subtitled: while the management 
agreement  states  that  in  2010  95%  of  the  programs  had  the  be  subtitled,  the  VRT  in 
practice only reached about 88%. 

The  discussions  on  the  public  service  mission  of  the  public  broadcasters  also  regain 
momentum  every  time  new  management  contracts  need  to  be  negotiated.  The  private 
sector  (broadcasters  and  other  media)  is  arguing  for  a  more  limited  role  (and  funding) 
for the public broadcaster, while others argue oppositely. In the Flemish community, the 
public service mission of the VRT is definitely not decreasing, since the VRT in 2012 will 
receive  more  public  funding,  will  start  a  third  analogue  television  channel  and  will  offer 
radio  and  TV  on  all  relevant  platforms,  including  the  Internet  and  mobile.  The 
management  contract  2007-2011  for  the  RTBF  has  only  recently  temporarily  been 
prolonged for one year3. 

- The role and functioning of regulatory authorities in these respects 

The  competent  regulatory  bodies  in  Belgium  are  the  Vlaamse  Regulator  voor  de  Media 
(VRM)  (‘Flemish  Regulator  for  the  Media’)  in  Flanders,  and  the  CSA  in  the  French 
Community, and the Medienrat (‘Media Council’) in the German-speaking Community. 

The  regulatory  authority  of  the  Flemish  community  (VRM)  is  charged  with  the 
enforcement  of  Flemish  media  regulation,  the  settlement  of  disputes  regarding  media 
regulation  and  the  granting  of  authorizations  and  licenses,  in  accordance  with  the 
regulation. The VRM is also supervising the compliance of the public service broadcaster 
with the management contract with the Flemish government, and reporting about this on 
a yearly basis. 

The  VRM  is  composed  of  two  chambers:  the  General  Chamber  and  the  Chamber  for 
impartiality  and  protection  of  minors  (Article  215,  §2  Flemish  Media  act).  The  General 
Chamber  supervises  the  compliance  with  and  sanctioning  of  infringements  on  other 

3 

http://www.rtbf.be/entreprise/rtbf-groupe/entreprise_statut-et-financement?id=3433. 

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provisions of the Flemish Media act (Article 218, §2, 1° Flemish Media act). The majority 
of  the  decisions  of  the  General  Chamber  relate  to  the  non-observance  of  the  rules 
regarding  commercial  communication.  Other  tasks  of  this  Chamber  are:  issuing, 
changing,  suspending  and  withdrawing  broadcasting  licenses;  awarding,  suspending  or 
withdrawing  licenses  to  offer  a  free-to-air  broadcasting  network;  granting  and  revoking 
permission  to  distributors  to  transmit  broadcasting  programmes;  receiving  the  different 
types of notification which are addressed to the VRM; defining the relevant markets and 
their  geographical  scope  for  products  and  services  in  the  sector  of  electronic 
communication  networks,  analysing  these  markets  in  order  to  determine  whether  they 
are  competitive;  identifying  undertakings  with  significant  market  power  in  the  defined 
markets,  and  imposing,  if  necessary,  certain  requirements  (mentioned  in  Article  192 
Flemish  Media  act);  performing  special  assignments  which  the  Flemish  government  can 
assign to the VRM if required, insofar that these assignments are related to other tasks of 
the VRM (Article 218, §2, 2° to 9°). 

The  organisation  of  the  regulatory  authority  in  the  French  community  is  somehow 
different,  since  the  CSA  is  composed  of  two  committees  (the  advisory  committee,  the 
Collège d’avis, and the regulatory committee, the Collège d’autorisation et de contrôle), a 
Bureau  and  a  Sécrétariat  d’instruction  (Article  134  French  Community  Media  act). 
According  to  Article  136  French  Community  Media  act,  the  Collège  d’autorisation  et  de 
contrôle has the following tasks: taking note of the declarations of editors of services and 
award  authorizations  to  certain  editors  of  services  (except  for  local  television  and  the 
RTBF); granting authorizations for the use of radio frequencies; delivering a preliminary 
advice  to  the  government  regarding  the  authorization  of  local  television;  delivering  a 
preliminary  advice  on  each  proposal  for  an  agreement  between  the  government  and  an 
editor or distributor of services; advising on the realization of the obligations of the local 
televisions;  advising  on  the  realization  of  the  obligations  laid  down  in  Articles  41 
(contribution  to  the  production  of  audiovisual  works,  supra),  43,  44  and  46  (quota) 
French Community Media act; issuing specific or general recommendations; establishing 
all  violations  of  laws,  decrees  and  regulations  in  the  field  of  audiovisual  media  and  all 
violations of agreements between the French Community and an editor or distributor of 
services, of the agreement between the government and the local televisions as well as 
the  commitments  entered  into  in  the  framework  of  tendering  procedures  in  the  French 
Community  Media  act;  defining  the  relevant  markets,  the  operators  with  significant 
market  power,  and  the  obligations  imposed  on  such  operators  (Articles  90–96  French 
Community Media act). 

The  VRM  has  a  specific  task  in  monitoring  the  performance  of  the VRT,  since  it  has the 
obligation  to  annually  report  on  this  issue  to  the  Flemish  government  (art.  218,  §2  9° 
Flemish  Media  Act).  These  reports  are  also  publicly  available  on  a  dedicated  website  of 
the regulator: www.vrmrapporten.be. In preparation of every new management contract, 
the  scope  of  the  public  service  mission is also advised upon by the “Sectorraad Media”, 
partof  the  advisory  council  for  Culture,  Youth,  Sports  and  Media  (art.  20  Flemish  media 
Act). Finally, if the VRT wants to provide additional new services which are not foreseen 
in  the  management  contract,  it  needs  to  acquire  the  explicit  permission  of  the  Flemish 
government after advice of the “Sectorraad Media” (art. 18 Flemish media Act). 

The CSA has the task to report on the compliance of the RTBF with the obligations and 
objectives  as  listed  in  its  management  contract  with  the  government  (art.  136  §1  5° 
French  community  Media  Act).  The  most  recent  report  was  published  on  December  8th, 
2011 and is full-text available online: http://csa.be/documents/1655. 

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  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

There  are  no  legal  registration  or  notification  obligations  to  work  as  a  journalist  in 
Belgium. Journalism is an open profession, there even is no specific education required. 
The  Act  of  30  December  1963  on  the  recognition  and  protection  of  the  title  of 
professional  journalist  attaches  a  number  of  conditions  to  the  use  of  the  title 
‘beroepsjournalist’/‘journaliste professionel’ (‘professional journalist’), but – as mentioned 
–  this  title  is  not  necessary  in  order  to  exercise  the  profession  (it  mainly  offers  the 
journalist some practical advantages). These conditions are: being 21 years or older; not 
being deprived of political and civil rights; taking part in the editing of general reports for 
newspapers, magazines, radio or television, etc. as main occupation and against salary; 
having exercised this activity at least two years; not being involved in any form of trade. 

With regard to the protection of journalistic sources, it should be noted that the Belgian 
Constitutional Court interprets the notion of journalist in a very broad manner. In a case 
related to the Act concerning the confidentiality of journalistic sources of 7 April 2005 the 
Court  in  2006  decided  that  everyone  undertaking  journalistic  activities  could  invoke  the 
freedom.  Therefore,  the 
aforementioned  rules,  which  aim  to  guarantee  press 
Constitutional Court decided that Article 2, 1° of the Act indeed violated the Constitution 
and  Article  10  of  the  ECHR  to  the  extent  that  it  denies  the  right  to  confidentiality  of 
sources  to  certain  persons,  namely  those  practising  journalistic  activities  without  being 
employed  or  self-employed  and  those  that  do  not  practise  journalistic  activities  on  a 
regular  basis.  As  a  result,  the  Constitutional  Court  extended  the  scope  of  application  of 
the  Act  to  ‘everyone  who  directly  contributes,  edits,  produces  or  disseminates 
information  aimed  at  the  public  via  a  medium’.  This  is  a  very  broad  description  and 
could, for instance, imply that bloggers who often publish news facts and/or opinions on 
their  web  pages  would  also  fall  within  that  scope  and  therefore  enjoy  the  protection  of 
their sources. 

Journalists enjoy a broader freedom of expression than the majority of citizens, because 
of  the  particular  responsibility  of  the  press  as  a  watchdog  of  society.  Jurisprudence  has 
emphasized the importance of press freedom for the correct and adequate functioning of 
the  state.  This  watchdog  function  also  entails  that  journalists  have  the  right  to  criticize 
public persons and to write polemic, critical and even provoking articles. However, at the 
same  time  journalists’  behaviour  is  carefully  scrutinized.  Critique  needs  to  be  well-
founded  and  based  on  objective  indications,  and  cannot  go  so  far  as  to  constitute 
defamation. 

Article 25 of the Constitution not only establishes the freedom of the press. It also states 
that censorship can never be introduced and establishes a cascade liability system for the 
press. This entails that when the author of a publication is known and resides in Belgium, 
neither the publisher, nor the printer, nor the distributor can be prosecuted. The aim of 
the  constitutional  legislator  was  to  prevent  that  a  publisher  would  exert  (preventive) 
pressure  on  an  author  if  there  was  a  chance  that  the  publisher  would  be  prosecuted, 
even  in  cases  where  the  author  is  known  and  lives  in  Belgium.  The  cascade  liability 
system only applies to printed press crimes. 

Hence,  with  regard  to  crimes  which  cannot  be  classified  as  a  ‘printed  press  crime’,  for 
instance,  broadcasting  crimes,  the  cascade  liability  is  not  applicable  and  hence,  other 
individuals than the author might be prosecuted. 

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With  regard  to  the  liability  of  journalists  who  exercise  their  profession  under  an 
employment contract, the Belgian Constitutional Court decided that Article 18 of the Act 
of  3  July  1978  regarding  employment  contracts  (which  states  that  an  employee  is  not 
liable  for  damages  to  his  employer  or  third  parties  caused  by  an  accidental,  slight 
mistake)  is  not  applicable  to  such  journalists  as  this  Article  is  contrary  to  the  spirit  of 
Article 25 of the Constitution. Hence, in principle, it will be the journalist, who will be held 
liable, and not his publisher, unless a separate fault of the publisher can be demonstrated 
(e.g., making special publicity for the article concerned). This ruling has been criticised in 
legal doctrine.4 

Although journalists enjoy a far-reaching freedom of expression, this does not extend to 
defamatory or libellous publications. However, it can be noted that there will be a higher 
degree  of  tolerance  with  regard  to  criticism  and  insults  directed  at  certain  categories  of 
persons,  such  as  politicians.  This  has  repeatedly  been  emphasized  by  case  law,  which 
often  refers  to  the  watchdog  function  of  journalists  in  this  context.  Nevertheless, 
journalists  cannot  field  completely  unfounded  accusations  at  politicians.  Allegations  at 
least  need  to  be  based  on  a  grain  of  truth  or  serious  and  objective  indications.  In 
Belgium,  defamation  and  libel  is  criminalized  by  Articles  443  and  444  of  the  Belgian 
Criminal Code. Article 443 considers that a person who maliciously charges someone of a 
certain  fact,  which  may  offend  his  honour  or  may  expose  him  to  public  contempt,  and 
which  is  not  legally  proven,  is  guilty  of  libel  (‘laster’/‘calomnie’)  if  the  charge  is  not 
proven,  or  defamation  (‘eerroof’/‘diffamation’)  when  the  law  does  not  allow  this  proof. 
Article 444 determines the punishment (imprisonment and fine) that can be applied when 
the  charges  are  made:  in  public  meetings  or  places;  or  in  the  presence  of  several 
individuals  in  a  place  which  is  not  public,  but  nevertheless  accessible  to  a  number  of 
individuals  which  have  the  right  to  meet  or  visit;  or  wherever,  in  the  presence  of  the 
offended individual and witnesses; or by means of writings, printed or not, by means of 
pictures  or  symbols,  which  are  posted,  distributed  or  sold,  being  offered  for  sale  or 
publicly exhibited; or by means of writings which have not been made public, but which 
have been sent or communicated to several individuals. 

It  should,  however,  be  recalled  that  Article  150  of  the  Constitution  states  that  ‘printed 
press  crimes’  can  only  be  judged  by  a  jury  (i.e.  the  Court  of  Assisen),  which  de  facto 
leads  to  impunity  for  ‘printed  press  crimes’.  Moreover,  since  the  Constitutional  Court  in 
2012 extended the scope of Article 150 to the Internet, the criminalisation of defamation 
and libel is caved even further. Persons who suffer damage therefore in practice need to 
turn  to  civil  law  procedures  in  cases  of  defamation  or  libel  in  printed  press  or  on  the 
Internet. 

Individuals  who  suffer  material  or  moral  damage  through  the  fault  (Article  1382  Civil 
Code)  or  through  negligence  or  imprudence  (Article  1383  Civil  Code)  of  another 
individual  (for  instance,  a  journalist)  can  claim  damages  if  they  can  demonstrate  the 
causal  link  between  the  fault  and  the  damage.  In  this  context,  jurisprudence  developed 
the  criterion  that  the  unlawfulness  of  a  public  statement  needs  to  be  judged  from  the 
perspective  of  a  ‘normal,  careful  and  prudent  journalist’.5  Although,  according  to 
Voorhoof and Valcke, neither strict correctness, scientific accuracy nor absolute reliability 
can be required from a journalist with respect to a publication, journalists may not base 
themselves on rumours or unreliable information. Furthermore, although a journalist has 
a certain duty to investigate the reliability of his or her sources and the veracity of facts, 
this  duty  does  not  entail  that  a  journalist  may  be  held  liable  simply  because  an  article 

4 

5 

Constitutional Court, 22 Mar. 2006, n° 47/2006 (with comment Koen Lemmens), AM 3 (2006): 290-295; 
Court of First Instance Hasselt 4 Jan. 2010, AM 2 (2010): 215. 
Dirk Voorhoof and Peggy Valcke, Handboek Mediarecht (Brussels: Larcier, 2011), 188. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

contains  inaccuracies.  The  unlawfulness  of  a  publication  will  be  assessed  on  a  case-by­
case  basis,  taking  for  instance  into  account:  the  context  of  the  publication,  the 
characteristics  of  the  newspapers  or  journals  in  which  writings  are  published  and  the 
function of individuals who have been criticized. 

- Specific positive content obligations 

The  “Vlaamse  Radio  en  Televisie”  (VRT)  has  a  specified  mission  to  bring  children’s 
programmes.  

With  regard  to  news  and  current  affairs  programmes,  a  number  of  provisions  put 
emphasis  on  norms  regarding  journalistic  deontology,  impartiality  and  editorial 
independence, for instance: 

–  	

– 	

–  	

Article  29,  §1  Flemish  Media  act  regarding  the  news  service  of  the  Flemish  public 
service broadcaster; 

Article 131 Flemish Media act regarding news casts of linear radio broadcasters; 

Article  141,  §1,  c)  and  145,  §1,  c)  Flemish  Media  act  regarding the  news  services 
and news casts of regional and local radio broadcasters (cf. also supra, paragraph 
159); 

–  	

Article  164  Flemish  Media  act  regarding  newscasts  and  programmes  of  private 
television broadcasters. 

In the framework of its task to inform the public the Flemish public service broadcaster 
must offer a weekly fifteen-minute television programme or a twice weekly thirty-minute 
television  programme  to  explain  socio-economic  issues  (except  in  July  and  August) 
(Article 29, §2 Flemish Media act). 

According  to  Article  18  RTBF  management  contract  the RTBF  has  the  general  obligation 
to  bring  news  and  information  regarding  current  affairs  at  international,  European, 
federal,  Community,  regional  and  local  level,  covering  every  domain  of  political, 
economic,  social,  cultural,  and  sports  life.  This  information  must  be  objective,  honest, 
independent,  in-depth,  pluralist,  complete,  analytical,  and  must  stimulate  reflection  and 
debate on issues relevant to a democratic society. 

- Funding schemes for specifically desired content 

The government has established a number of measures to provide (financial) support to 
the  press.  Initially,  the  federal  state  was  in  charge  of  granting  subsidies  to  the  press. 
Since 1978, such a system of direct support to the written press existed with the aim of 
ensuring  pluralism  in  the  press  (reflecting  all  opinions  in  society)  and  guaranteeing  the 
viability of the newspapers. During the state reform of 1988, powers over press subsidies 
were  transferred  to  the  Communities  (Article  4,  6°bis  BWHI),  which  have  since  then 
established  their  own  systems  and  developed  their  own  policies.  For  instance,  in  the 
Flemish  Community  a  first  agreement  to  safeguard  a  pluralist  and  independent  opinion 
press was reached in 1993; in 1998 the Flemish government restructured the system of 
direct  support  and  replaced  it  by  a  programme  concentrating  on  digital  diversification, 
education,  and  the  preservation  of  good,  quality  based  and  autonomous  editorial  staff 
teams. 

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The Flemish Government grants annual subsidies (one million EUR) to the print press. A 
protocol has been established between the Government and the Flemish press sector in 
which  the  conditions  for  the  support  are  outlined.  The  overall  objective  is  to  ensure  a 
high  quality,  pluralist  and  objective  press.  Emphasis  is  put  on  education  and  training  in 
order to guarantee editorial skills and expertise, and on foreign coverage. In addition, the 
Fund  Pascal  Decroos  for  exceptional  journalism  (‘Fonds  Pascal  Decroos  voor  bijzondere 
journalistiek’)  aims  to  support  high  quality,  exceptional  journalism  in  and  outside 
Flanders, both in print and audiovisual media. It grants subsidies to individual journalists 
who would like to work on an exceptional journalistic project, the costs of which exceed 
the  normal  budgetary  capacities  of  the  newspaper,  editor  or  broadcaster.  The  Fund  is 
financed  by  an  annual  grant  from  the  Flemish  Government  (usually  EUR  250,000  per 
year;  although  in  2009  a  one-off  extra  amount  of  EUR  250,000  was  made  available  by 
the  Minister  for  Media),  fees  for  membership  (currently  around  EUR  9,000)  and  gifts. 
News  media  initiatives  (e.g.  www.stampmedia.be,  an  online  press  agency  for  and  by 
youngster) are criticising the fact that most of these susbidies are assigned to traditional 
media. 

The  Press  Fund  of  the  French  Community  (‘Centre  de  l'aide  à  la  presse  écrite’)  grants 
several types of subsidies: (1) support for the creation of new titles; (2) support for long-
term  employment  of  journalists  and  use  of  new  technologies;  (3)  support  for  the 
preservation  of  the  largest  possible  diversity  in  newspapers  (giving  priority  to  less 
profitable  titles);  (4)  support  for  initiatives  to  distribute  newspapers  in  schools.  The 
Centre receives an (indexed) annual subsidy of EUR 6,200,000.6 In addition, from 2009 
onwards, the French Community Government also attributes EUR 250,000 a year to the 
‘Fonds pour le journalisme’ which supports investigative journalism. 

- Political advertising and/or broadcasting time 

Until  2005,  the  Flemish  Community  Television  and  Broadcasting  Act  contained  a 
prohibition  to  offer  broadcasting  time  to  political  representatives  in  return  for  payment 
(in  its  Article  98,  1°).  This  provision  was  in  conformity  with  the  federal  legislation  on 
election expenses, which states that political parties and candidates are prohibited from 
showing commercial advertising spots on radio and television in the period shortly before 
elections. The Flemish Media act of 2009, however, has abandoned this principle, and in 
its article 49 now states that is allowed to offer (audiovisual) commercial communication 
to politicians and political parties in pre-electoral periods on the condition that the federal 
legislation  regarding  election  expenses  is  respected,  which  still  contains  a  prohibition  in 
the pre-election period. 

In the Flemish Community, the only additional references that are still made to election 
periods are in Article 34, § 5 and Article 36, § 5 of the Flemish Media Act regarding the 
suspension  of  announcements  of  the  Flemish  government  (except  in  urgent  cases)  and 
the suspension of the programmes of representative societal organizations, and in Article 
165 Flemish Media Act which relates to the obligation for regional television broadcasters 
to provide regional information, including election programmes. 

Regarding  the  French  Community,  the  Constitutional  Court  on  22  December  2010 
(judgement  161/2010)  ruled  that  an  absolute  and  permanent  prohibition  of  political 
commercial  communication  for  audiovisual  media  (Article  12,  §  1  first  sentence  of  the 
French  Community  Media  act)  could  not  be  reasonably  motivated  in  the  light  of  the 
jurisprudence  of  the  ECtHR.  The  Court  annulled  this  provision,  thereby  leading  to  the 

6 

Up  until  2008,  the  RTBF  and  a  number  of  private  broadcasters  also  had  to  contribute  to  the  fund.  From 
2008 onwards the French Community is the sole contributor to the fund. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

situation that only the federal prohibition on political commercial communication in pre­
election periods applies.  

Specific  obligations  are  imposed  on  the  public  service  broadcaster  of  the  French 
Community,  the  RTBF,  to  cover  elections  and  bring  news,  talk  shows  and  interviews, 
both  on  radio  and  television  with  the  aim  of  informing  the  citizens  about  the  discussion 
items and the various viewpoints (Article 19 RTBF management contract). 

Other (paper based) media enjoy a much wider freedom, since they are allowed to bring 
political advertising, taking into account the maximum spending as defined in the federal 
voting legislation. 

In practice, political advertising in the audiovisual media sector, both in Flanders and in 
the  French  community  is  almost  non-existent,  contrary  to  other  media  (e.g.  print  press 
and internet).  

- Codes of conduct and their organisational framing 

The  Belgian  Ethical  Code  for  Journalists  of  19827  recognizes  the  important  role  of 
journalists.  The  code  was  agreed  to  between  the  Belgian  Association  of  Newspaper 
Publishers  (Belgische  Vereniging  van  de  Dagbladuitgevers,  BVDU),  the  General 
Association  of  Professional  Journalists  of  Belgium  (Association  Générale  des  Journalistes 
Professionnels, AGJPB) and the Federation of Belgian Magazine Editors (Fédération Belge 
des Magazines, FEBELMA) in 1982. Regarding the independence of journalists, the Code 
states that ‘[n]ewspapers and journalists should resist pressure of any kind’. 

In  contrast  to  radio  and  television  organizations,  there  are  no  legal  obligations  for 
newspapers to have an editorial statute. However, in Belgium there exists a tradition of 
foundations  (‘stichtingen’)  within  the  (Flemish)  newspapers.  These  foundations  are 
established  in  order  to  take  care  of  the  editorial  principles  and  values  (in  relation  to 
editorial  texts  and  advertisements)  of  the  newspapers  and  the  statutes  of  the 
foundations  contain  explicit  safeguards  with  regard  to  the  editorial  staff’s  independence 
(e.g., guaranteeing the autonomy of the editorial staff). For example: in case of a change 
in  the  editorial  cooperation  with  other  newspapers,  the  preliminary  approval  of  the 
foundation  is  required,  and  in  case  of  a  change  in  ownership  (to  a  shareholder  or  to  a 
third party), the vendor or liquidator has to impose on the stakeholder or the third party 
the obligation to respect the editorial principles and values as described in the statutes. If 
the buyer acquires the titles without respecting the editorial line, he has to pay damages. 
The statutes also confer special powers on the editorial staff e.g., a preliminary advice of 
the  foundation  regarding  the  appointment  or  dismissal  of  a  chief  editor;  a  preliminary 
approval of the foundation regarding the appointment or dismissal of a journalist, trainee 
journalist and chief editor. A substantial change in the task of a journalist (e.g., he would 
be  no  longer  linked  to  the  editorial  staff),  is  equated  with  a  dismissal  and  therefore  a 
preliminary  approval  of  the  foundation  may  be  required.  Nevertheless,  the  Flemish 
Association  of  Professional  Journalists  has  called  for  a  formalization  of  safeguards  for 
editorial independence by introducing editorial statutes in all news media; they are of the 
opinion  that  the  Flemish  government  has  an  essential  role  to  play  in  that  regard,  for 
instance, by making press subsidies dependent on the presence of an editorial statute. 

From  1988  until  2001  a  Council  for  Deontology,  founded  by  the  Belgian  Association  of 
Professional Journalists (‘Algemene Vereniging van Beroepsjournalisten in België’, AVBB), 
existed in Belgium.  

7 

www.rvdj.be/node/63. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

In  2002,  the  Flemish  (print  and  audiovisual)  journalists  and  publishers  established  a 
(self-regulatory) Flemish Press Council (‘Vlaamse Raad voor de Journalistiek’). 

The  Flemish  Press  Council  is  a  fully  independent  self-regulatory  body  without  any 
statutory framework. It is composed of eighteen members (six journalists, six publishers 
and six external members), who are nominated by the sector without any governmental 
interference.  The  Press  Council  is  funded  by  the  journalists  union  (50%)  and  by  the 
publishers  (50%).  It  does  not  receive  direct  public  funding,  but  the  union  of  journalists 
receives  a  governmental  subsidy,  part  of  which  must  be  used  for  the  financing  of  the 
Press Council.  

The Press Council is considered by the sector, the audience and the legislator as the main 
body that deals with ethical conflicts with regard to journalism.8 The Council covers the 
complete  journalistic  spectrum,  the  different  phases  of  the  journalistic  process,  and  all 
categories  of media,  i.e., print, audiovisual,  electronic and other media; general as well 
specialized media. 

The Press Council performs four tasks. In addition to fine-tuning journalistic deontology, 
the  Council  is  involved  in  mediation,  treatment  and  assessment  of  complaints,  and  the 
supply of information and guidelines. The Ombudsman within the Press Council mediates 
in cases of conflicts and acts as an advisor. If case mediation does not succeed, the Press 
Council  deals  with  the  complaint.  The  Press  Council  addresses  all  complaints,  also 
complaints  against  bloggers/weblogs.9  In  addition  to  the  treatment  of  complaints,  the 
Press Council also issues guidelines (for instance, with respect to undercover journalism 
or dealing with user-generated content).10 

On  20  September  2010,  the  Press  Council  issued  its  consolidated  code  of  conduct  on 
ethical aspects of professional journalism. After some incidents, the Press Council on 24 
April  2012  issued  additional  guidelines  on  the  use  of  information  and  images  from 
personal websites and social media11. 

The establishment of a counterpart to the Flemish Press Council in the French Community 
has been the subject of a lengthy debate, which resulted in the adoption of the Act of the 
French  Community  of  30  April  2009  on  the  establishment  of  the  conditions  for  the 
recognition and subsidization of a body for the self-regulation of journalistic deontology. 
The  Act  contains  detailed  provisions  regarding  the  establishment  and  functioning  of  the 
self-regulatory body, which encompasses a ‘Council for journalistic  deontology’ (‘Conseil 
de Déontologie journalistique’). The financing of the body is organized similarly to that of 
the  Flemish  Press  Council.  The  French  Community  Government  attributes  a  subsidy  of 
EUR 80,000 to the journalists’ association. The Act also imposes the membership of the 
self-regulatory body on certain actors, e.g., the RTBF, or press organizations who want to 
benefit from press subsidies. 

8	 

9	 

10 

11 

Before  2006,  the  (old)  Flemish  media  regulator  could  also  judge  on  conflicts  in  the  area  of  journalists’ 
ethics; this duplication of competences was the reason why the public broadcaster for a long time did not 
join  the  Press  Council;  however,  to  avoid  confusion,  the  legislator  decided  to  delete  these  powers  when 
establishing  the  new  media  regulator  in  2005/2006,  thereby  acknowledging  that  deontology  is  the  sole 
competence of the Press Council. 
With regard to one such decision, in 2009, a peculiar judgment was pronounced in summary proceedings 
(Pres.  Court  of  First  Instance  Brussels  (in  summary  proceedings)  24  Jun.  2009).  The  publication  of  a 
decision  of  the  Press  Council  was  prohibited  by  the  President  of  the  Brussels  Court  because  of  the  non-
opposability of the statutes of the Council to a journalist/blogger who is not a member of the journalists’ 
association. This decision has been sharply criticized. For more information: cf. Dirk Voorhoof, Rechter legt 
bom(metje) onder de Raad voor de Journalistiek,  
www.psw.ugent.be/Cms_global/uploads/publicaties/dv/05recente_publicaties/KG%20RvdJ%20VOORHOOF 
2009%20kort29%206.pdf. 
Available from: http://www.rvdj.be/node/61. 
http://www.rvdj.be/sites/default/files/pdf/richtlijn201208.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The Council  for  journalistic  deontology  was  officially  installed  on  7  December  2009.  The 
Council deals with the French and German Community media, and counts 40 members. 
The  tasks  of  the  Council  are  the  same  as  the  tasks  of  its  Flemish  counterpart 
(deontology,  mediation,  treatment  of  complaints,  and  provision  of  information  and 
guidelines). 

- The role and functioning of regulatory authorities in these respects 

The  role  of  regulatory  authorities  is  very  limited.  The  organisation  and  monitoring  of 
journalists is mainly left to the self-regulatory instruments described above. As indicated, 
the  recognition  as  professional  journalist  is  even  not  necessary  in  order  to  exercise  the 
profession, but only brings the journalist some practical advantages. 

  Distribution Aspects 

As the Belgian Constitutional Court interprets the powers of the cultural communities to 
regulate  radio  and  television  as  encompassing  transmission  of  broadcasting  signals,  the 
three  community  legislators  have  –  each  for  their  respective  territories  –  implemented 
the  market  analysis  procedure  in  the  European  directives  on  electronic  communications 
networks  and  services.  Given  the  fact  that  the  regulatory  authorities  of  the  different 
communities  in  principle  are  also  competent  to  regulate  the  transmission  aspects  of 
broadcasting, they are also empowered to allocate the necessary frequencies. 

- Access to frequencies 

As stipulated in the Flemish Community Media act, the content providers, depending on 
whether they use scarce resources (in casu frequencies) or not, will have to apply for a 
license or submit a notification. At the same time operators of terrestrial networks have 
to apply for an individual authorization linked to a specific frequency. 

- Access to distribution networks and control of actual conditions 

Apart from general market entry, market behaviour and competition law rules, there are 
no specific or cross-sectoral media provisions on access to distribution networks.  

For audiovisual media services, the monitoring of access to distribution networks and the 
control  of  the  actual  conditions  that  apply  are  assigned  to  the  respective  regulatory 
authorities, VRM and CSA (cf. art. 218 Flemish Media Act and art. 136 French community 
Media  Act).  Distributors,  i.e.,  those  who  aggregate  or  package  channels  and  services 
(either  their  own  productions  or  acquired  from  third  parties)  into  various  bundles  and 
offer these to end-users, are subject to a notification regime.  

In Flanders, this notification should be sent to the VRM, at least fourteen days before the 
start of the service, in accordance with Article 219 Flemish Media act (Article 177 Flemish 
Media act). The notification must contain the identification of the legal entity, the service 
offer  with  the  contractual  terms  for  including  the  services  and  the  electronic 
communication  network  that  will  be  used  to  transmit  the  services.  Article  198  Flemish 
Media act also obliges cable operators to keep separate accounts for their cable network 
activities and for the provision of other networks and services established under special 
or exclusive rights. 

In  the  French  Community,  according  to  Article  77  French  Community  Media  act, 
distributors must submit a declaration to the Collège d’autorisation et de contrôle of the 
CSA, containing the identification of the distributor as well as the composition of the offer 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

of  the  services  and  the  commercial  terms.  It  is  prohibited  for  distributors  to  introduce 
geographic  price  differentiation  (‘for  the  same  offer  of  audiovisual  media  services, 
distributors are obliged to guarantee the same price for all subscribers’; Article 78 French 
Community  Media  act)  and  they  are  obliged  to  keep  separate  accounts  for  their 
distribution  activities,  on  the  one  hand,  and  network  operating  activities,  on  the  other 
hand (Article 79 French Community Media act). 

Partly  because  of  the  fragmented  repartition  of  powers,  there  are  no  specific  provisions 
on  the  access  to  distribution  networks  which  apply  across  the  different  media.  The 
normal (federal) competitions rules however remain applicable. 

Further, it should be noted that in the federal parliament, there have been proposals to 
regulate  the  issue  of  “net  neutrality”,  following  the  examples  of  the  Netherlands  and 
France.  The  Parliament  has  organised  hearings  about  the  issue  and  agreed  to  first  ask 
further advice from the European Commission on the issue. Finally, some frictions have 
in recent years also materialised between editors of traditional media providers and new 
distribution  formats,  such  as  Google  News  (taking  over  news  headlines),  or  between  
newspapers  editors  and  the  public  service  broadcaster  (launching  free  high-quality 
internet  news  sites).  Regarding  the  latter,  the  Commercial  Court  of  Charleroi  in  a 
judgement of 30 December 2011 stated that this could not be considered as an (illegal) 
unfair business practice12. 

- Must-carry/must-offer rules for electronic media 

In  Flanders,  must-carry  rules  for  audiovisual  media  are  laid  down  in  the  articles  185  – 
188 of the Flemish Media Act. Since 2005, they were brought in line with article 31 of the 
European  directive  on  universal  service  in  electronic  communications,  although  in  some 
conditions, the Flemish government can decide that other linear channels also have to be 
transmitted.  In  the  French  community,  the  articles  82,  83  and  87  of  the  French 
Community  Media  act  contain  a  similar  additional  possibility  to  obtain  the  must-carry 
status.  Article  48  of  the  French  community  Media  Act  states  that  the  government  can 
allocate to one or more services of an editor the right of “obliged transmission”. The only 
limitation  that  is  imposed  on  the  government  is  the  fact  that  an  agreement  has  been 
concluded  between  the  editor  in  question  and  the  government.  At  first  sight,  and  given 
the  unclarity  about  the  content  of  those  agreements,  it  can  be  questioned  whether  this 
approach is in line with the current European provisions. 

- Role of platform operators 

‘Network  operators’  (or  ‘network  providers’),  who  control  the  technical  exploitation  of 
broadcasting  networks  and  provide  transmission  capacity  for  the  delivery  of  audiovisual 
media  services,  are  subject  to  prior  notification  (in  the  case  of  cable  networks),  or  an 
individual license linked to a specific frequency (in the case of terrestrial networks). This 
is in line with Article 3 of the Authorisation Directive, which stipulates that the provision 
of  electronic  communications  networks  may  only  be  subject  to  a  general  authorization, 
implying  that  the  undertaking  concerned  may  be  required  to  submit  a  notification  but 
may not be required to obtain an explicit decision or any other administrative act by the 
national  regulatory  authority.  A  system  of  individual  licenses  (‘individual  rights  of  use’) 
may only be maintained when the undertaking needs radio frequencies or numbers for its 
operations. 

12 

http://www.psw.ugent.be/cms_global/uploads/publicaties/dv/ 

RTBFOnline.Jugement%20du%2030%20décembre%202011pdf.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In the summer of 2009, Norkring (which had been the only applicant) has been allocated 
a  license  to  launch  DTT  services  in  the  Dutch-speaking  part  of  Belgium  by  the  Flemish 
broadcast  regulator,  the  VRM.  The  license  is  valid  for  fifteen  years.  Under  its  terms, 
Norkring  Belgium  has  to  start  broadcasting  within  the  next  two  years,  including  the 
launch of television and radio services via DVB-T, and/or services to mobile receivers via 
DVB-H.  The  company  also  owns  the  license  for  digital  radio  in  Flanders.  While  Norkring 
will  operate  the  digital  terrestrial  network  (i.e.  provide  the  technical  services),  one  or 
more service providers (distributors) will sell bundles of radio and television programmes 
to the public (i.e. provide the content). This ‘wholesale’ model is inspired by the Finnish 
model  and  implies  that  the  network  operator  enters  into  agreements  with  service 
providers,  but  is  not  active  in  the  retail  business  itself  (acting  like  a  ‘common  carrier’). 
Spring  2010,  Norkring  selected  Telenet  as  a  first  service  provider  on  the  basis  of  a 
beauty  contest,  but  the  offer  is  not  yet  commercially  available.  One  multiplex  has  been 
reserved for the public service channels of VRT, which will be distributed for free. 

In  the  French  Community,  RTBF  operates  its  own  multiplex  for  digital  terrestrial 
television. It thereon offers RTBF La Une and RTBF La Deux. RTBF also launched a new 
channel  exclusive  to  DTT  called  RTBF  La  Trois,  and  they  added  a  fourth  channel  to  the 
multiplex, namely Euronews, a pan-European news channel.  

- The role and functioning of regulatory authorities in these respects 

In  July  2011,  the  regulators  of  the  communities,  together  with  the 
federal 
telecommunications regulator (Belgisch Instituut voor Postdiensten en Telecommunicatie, 
BIPT) decided to force their cable companies and Belgacom to open their networks in an 
attempt to further stimulate competition.13 

  Access to Information 

- Transparency of media ownership situations 

The  French  Community  Media  act  imposes  transparency  obligations  on  radio  and 
television  broadcasters.  First,  they  have  to  ensure  transparency  towards  the  public:  all 
editors of broadcasting services have to make available  ‘basic information’ to the public 
in  order  to  allow  it  to  form  its  opinion  about  the  value  of  information  and  ideas 
distributed in the programmes of that editor (Article 6, §1 French Community Media act). 
Second, in order to ensure transparency of ownership and control structures, as well as 
their  level  of  independence,  editors,  distributors  and  network  operators  are  obliged  to 
send the regulator (the CSA) the following information: the identification of shareholders 
(and  percentage  of  shareholding),  the  interest  of  these  shareholders  in  other 
broadcasting or media companies, and the identification of natural or legal persons active 
in programme supporting businesses, contributing to a substantial level to the production 
of programmes. 

There  are  no  special  obligations  for  newspapers  to  provide  transparency  with  regard  to 
ownership capital structure. 

13 

For more info: 
http://www.vlaamseregulatormedia.be/media/16511/20110718%20-%20televisieomroepmarkt%20­
%20non%20conf%20-%20ondertekende%20versie.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Accountability of public service media 

According  to  the  Articles  136  of  French  Community  Media  act  and  Article  218  of  the 
Flemish  Media  Act,  the  respective  regulators  (i.e.  the  Vlaamse  Regulator  voor  de  Media 
and the Collège d’autorisation et de contrôle have the obligation to report and/or advise 
on  the  realization  of  the  obligations  laid  down  in  the  management  contracts  and  to 
establish all violations of the management contracts. Both public service broadcasters are 
also  obliged  to  publish  annual  reports,  while  the  financial  aspects  and  their  budget  are 
monitored  by  the  Accounts  Chamber  (‘Rekenhof’).  Further,  a  representative  of  the 
government also takes part in the Management Board of VRT and RTBF. 

- Freedom of information laws 

The  conditions  and  the  necessary  procedures  for  access  to  administrative  information 
have been laid out in legislation of the different entities of the federal state: 

For  the  federal  level:  the  act  of  11  April  1994  on  the  public  access  to  administration, 
most  recently  amended  by  the  act  of  4  February  2010  (Belgisch  Staatsblad  10  March 
2010); 

For Flanders: act of 26 March 2004 on the public access to administration, most recently 
amended by the act of 27 March 2007 (Belgisch Staatsblad 5 November 2007); 

For  the  French  Community:  act  of  22  December  1994  on  the  public  access  to 
administration, most recently amended by the act of 30 March 2007; 

For  the  provinces  and  communes,  in  principle:  act  of  12  November  1997  on  the  public 
access  to  administration  for  provinces  and  communes,  most  recently  amended  by  the 
Royal decree of 5 August 2006 (Belgisch Staatsblad 28 August 2006). 

Most  of  these  acts  reflect  a  double  approach  to  access  to  public  sector  information:  an 
active  duty,  on  the  one  hand,  to  ensure  that  government  information  is  disseminated 
among  the  public,  and  a  passive  right,  on  the  other  hand,  for  individuals  to  request 
information and access to government documents. 

- Accessibility of products/services and distribution networks 

Compared  to  the  analogue  offer,  cable  customers  do  not  need  to  pay  an  extra 
subscription  for  the  basic  package  of  about  thirty-five  digital  channels,  but  they  must 
purchase  a  set-top  box  in  order  to  view  these  digital  channels  and  use  the  interactive 
services. In the French Community, the cooperation between Brutélé and ALE-Télédis led 
to the creation of VOO, which offers analogue as well as digital television in Wallonia and 
Brussels  (where  also  Numéricable  is  active).  All  of  these  offers  include  interactive 
services, such as on-demand movies and catch-up TV. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The  Flemish  Press  Council  is  involved  in  mediation,  treatment  and  assessment  of 
complaints,  and  the  supply  of  information  and  guidelines.  The  Ombudsman  within  the 
Press  Council  mediates  in  cases  of  conflicts  and  acts  as  an  advisor.  In  case  mediation 
does  not  succeed,  the  Press  Council  deals  with  the  complaint.  The  Press  Council 

131 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

addresses  all  complaints,  also  complaints  against  bloggers/weblogs.14  In  addition  to  the 
treatment  of  complaints,  the  Press  Council  also  issues  guidelines  (for  instance,  with 
respect to undercover journalism or dealing with user-generated content). 

Apart from the Ombudsman within the Flemish Press Council, there are no ombudsmen 
or  specific  complaints  procedures  for  the  entire  media  sector.  At  the  level  of  the 
communities, the regulatory authorities have established complaints procedures for radio 
and  television.  A  specific  complaints-handling  procedure  for  example  exists  in  the  VRM-
procedural  decree.  It  states  that  complaints  are  examined  by  the  staff  of  the  VRM  and 
then  forwarded  to  the  relevant  chamber  (Article  12  government  decree  on  VRM-
procedure). The threshold for the complaints procedure is very low since it is accessible 
through the public website of the VRM (including an identification through the electronic 
id-card):  http://www.vlaamseregulatormedia.be/nl/klachten.aspx.  As  with  all  other 
regulatory decisions of the chambers of the VRM, also these ones have to be motivated 
according  to  general  administrative  law.  Moreover,  they  should  also  be  made  available 
publicly  (Article  219  Flemish  Broadcasting  Act,  Article  11  VRM  procedural  decree  of  30 
June 2006, Articles 9-15 and 33 internal rules chambers 18 July 2009). 

- Participation in media operators/(self-)regulatory bodies 

The  management  contracts  concluded  between  the  respective  governments  and  their 
public service broadcasters contain a number of general provisions and criteria related to 
the  orientation  of  their  offer  to  all  users. The  respective  media  decrees  however  do  not 
contain  further  specific  provisions  on  the  involvement  of  citizens  or  other  co-  or  self-
regulatory bodies in the development of their offer. In the German speaking community, 
the Offener Kanal is a channel specifically aiming at contributions for the public. 

2.2.2.2.  Main Players in the Media Landscape 

First,  it  is  important  to  take  into  account  the  fact  that  there  is  no  such  thing  as  a 
homogenous  Belgian  media  landscape.  Different  media  markets  can  be  distinguished 
which run parallel to the country’s communities, i.e., the Flemish Community, the French 
Community  and  the  –  much  smaller  –  German-speaking  Community.  Being  a  small 
country with three official languages, Belgium has always turned to its neighbours. This 
is  especially  the  case  for  the  small  German-speaking  Community  looking  towards 
Germany, but also for the French Community, which is strongly oriented towards France 
and  French  television  channels.  In  Flanders,  before  the  introduction  of  commercial 
television, the channels from the Netherlands were very popular. But the Flemish public 
massively turned to its own commercial channels as soon as these were introduced in the 
late eighties. 

2.2.2.2.1. 

Radio 

In  Flanders,  there  are  four  communitywide  (‘landelijke’)  and  five  regional  public  radio 
stations  and  one  public  world  service,  operated  by  the  public  broadcasting  organization 
VRT. In the French Community, the public service broadcaster, RTBF offers five FM radio 

14 

With regard to one such decision, in 2009, a peculiar judgment was pronounced in summary proceedings 
(Pres.  Court  of  First  Instance  Brussels  (in  summary  proceedings)  24  Jun.  2009).  The  publication  of  a 
decision  of  the  Press  Council  was  prohibited  by  the  President  of  the  Brussels  Court  because  of  the  non-
opposability of the statutes of the Council to a journalist/blogger who is not a member of the journalists’ 
association. This decision has been sharply criticized. For more information: cf. Dirk Voorhoof, Rechter legt 
bom(metje) onder de Raad voor de Journalistiek,  
www.psw.ugent.be/Cms_global/uploads/publicaties/dv/05recente_publicaties/ 
KG%20RvdJ%20VOORHOOF2009%20kort29%206.pdf . 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

channels  and  eleven  ‘hors  FM’  radio  channels  (such  as  web  radios,  or  its  international 
radio channel ‘RTBFi’ via AM, internet and satellite). 

As  more  spectrum  has  been  freed  up  for  private  initiatives,  new  types  of  radio  stations 
have  emerged  during  the  last  ten  years.  In  Flanders,  local  radio  stations  have  existed 
since the sixties, but only in 2001 did the legislator introduce the regulatory framework 
for  commercial  communitywide  radio.  Two  commercial  radio  stations  obtained  such  a 
license: Q-music (owned by VMMa) and 4FM (renamed ‘Joe FM’ in 2009; formerly owned 
by  Talpa  Radio  International,  currently  owned  by  VMMa).  In  2002,  the  city  radios, 
covering  the  Brussels,  Ghent  or  Antwerp  conglomerate,  have  been  replaced  by  the 
category  of  ‘regional  radio  stations’,  covering  more  or  less  the  area  of  one  province. 
Besides  these  terrestrial  radios,  ‘other  radio  stations’  (transmitting  via  cable  networks) 
and ‘radio services’ (‘Internet radios’) are also a part of the radio scene.  

In the French community, there are also 96 private radio broadcasters, broadcasting on 
335 frequencies, as well as 21 school radios. The major private channels are the BelRTL 
channel,  operated  by  RTL  group,  Contact,  Nostalgie  and  NRJ,  which  cover  the  whole 
territory  of  the  French Community  (‘réseaux communautaires’).  In  addition,  there  are  a 
number  of  local  radios  (‘réseaux  urbains’  and  ‘réseaux  provinciaux’),  community  radios 
(‘radios  associatives  et  d’expression  à  vocation  culturelle  ou  d’éducation  permanente’), 
web radios (sometimes broadcasting only temporarily, e.g., a Christmas web radio), and 
radio services on demand. 

2.2.2.2.2. 

Television 

The  three  public  broadcasting  organizations  in  Belgium  also  offer  television,  i.e.,  VRT  in 
Flanders  (Vlaamse  Radio  en  Televisieomroep;  <www.vrt.be>);  RTBF  in  the  French 
Community  (Radio-Télévision  belge  de  la  Communauté  française,  <www.rtbf.be>)  and 
BRF  in  the  German-speaking  Community  (Belgisches  Rundfunk-  und  Fernsehzentrum; 
<www.brf.be>).  VRT  has  three  TV  channels:  één  (general  interest,  focuses  on  a  large 
audience), Canvas  (in-depth, focus  on  news and  culture)  and Ketnet  (aimed  at  children 
and young people); RTBF also has three TV channels: La Une, La Deux and La Trois. 

Twenty  years  ago,  commercial  television  was  introduced  in  both  the  Dutch  and  French-
speaking regions and since then, the number of broadcasters has continuously grown. In 
Flanders,  those  ‘private’  broadcasters  offer  channels  which  target  the  whole  of  the 
Flemish  Community,  thematic  channels,  pay  TV  channels  and  regional  channels.15  The 
major players in the Flemish private broadcasting market are VMMa (jointly owned by de 
Persgroep  and  Roularta),  with  its  channels  VTM,  2be  and  JimTV,  and  De  Vijver,  which 
recently  took  over  the  channels  VT4  and  VijfTV  (soon  to  be  rebranded  as  “vier”  (four) 
and  “vijf”  (five)  from  SBS  Belgium.  Besides  these  major  broadcasting  networks  (which 
attract more than 75% of the viewers together with the public broadcaster VRT), various 
smaller television channels offer thematic or niche programming (for instance, Kanaal Z 
for financial and business news, TMF for music and Actua TV for political news). Recently, 
Alfacam,  a  Belgian-based  company  providing  TV  facilities  and  services  to  broadcasters 
and production houses throughout the world, entered the Flemish television market (via 
its  subsidiary  EURO1080)  with  its  high-definition  digital  channels  EXQI  Sport  and  EXQI 
Culture, as well as the  wide-interest analogue channel EXQI. These new offers however 
did  not  succeed  in  reaching  their  targets.  In  July  2009  Belgacom  launched  the  music 
channel “Anne”, specializing in music of Flemish soil. On 1 October 2009 VMMa launched 
a new children’s channel VTMKzoom. On 2 June 2010, the culinary channel Delicious! was 

15 

A full list can be seen at:  
www.vlaamseregulatormedia.be/nl/omroepen/overzicht-private-televisieomroeporganisaties.aspx. 

133 


 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

announced. On 5 November 2011 it was announced that VMMa would take over Media ad 
Infinitum. The television landscape in Flanders has recently evolved significantly after the 
take-over of the SBS/ProSiebenSat 1 channels, VT4 and VijfTV by “ De Vijver” a holding 
company owned by Corelio (publisher of popular newspapers like Het Nieuwsblad and De 
Standaard, and also active in regional TV), Sanoma (publishers of popular magazines like 
Story  and  Humo)  and  Wouter  Vandenhaute/Erik  Watte  (of  the  successful  production 
house Woestijnvis). 

The  first  commercial  television  broadcaster  in  the  French  Community  of  Belgium  was 
Radio Télévision Luxembourg – Télévision Indépendante (RTL-TVI, operating since 1987). 
RTL-TVI  is  part  of  the  Luxembourg  RTL  Group  which  is  controlled  by  Bertelsmann.  In 
2006, RTL-TVI abandoned the ‘double licensing regime’ it had voluntarily committed to in 
the  past  (implying  that  it  had  ‘two  nationalities’  and  thus  respected  broadcasting 
legislations  of  both  Luxembourg,  and  the  French  Community  of  Belgium)  and  is  now 
exclusively  established  in  Luxembourg.  The  RTL  Group  currently  offers  two  other  TV 
channels  in  the  French  Community, Club  RTL  and Plug  RTL.  In  October  2001,  a  Belgian 
branch of the French AB Groupe launched a new commercial channel AB3 (focusing on a 
young  public,  15–44  years)  and  two  years  later  AB4.  Some  additional  private 
broadcasters  are  operating  niche  programs  (such  as  Liberty  TV  for  tourism,  MCM 
Belgique for music, and Canal Z for business TV). 

As  noted  above,  the  German-speaking  Community  in  Belgium  has  its  own  public 
broadcasting  service  (BRF)  with  one  television  channel,  but  its  citizens  predominantly 
turn  to  German  channels  or  the  channels  of  the  French  Community  for  television 
information and entertainment. 

Over  the  past  decade  broadcasters  started  to  branch  out  into  other  fields  of  media, 
making use of the opportunities provided by the rise of new technologies. In April 2003, 
for instance, the Flemish public broadcaster VRT launched its multimedia news channel, 
combining text messages, pictures, sound, moving images of the items presented, on the 
Internet,  www.deredactie.be.  Around  the  same  period,  the  Flemish  commercial 
broadcasting channel, VTM, started to offer its ‘breaking news’ service via SMS. 

2.2.2.2.3. 

Press and Publishing 

Also  the  Belgian  print  media  landscape  is  divided  in  a  Flemish  (Dutch-speaking)  and 
Walloon (French-speaking) market. Print companies active in the north of the country are 
not  necessarily  active  on  the  Walloon  market,  and  vice  versa,  although  most 
communitywide  and  some  regional  newspapers  are  available  throughout  the  country. 
When  looking  at  the  paid  daily  newspapers,  both  the  Flemish  and  Walloon  newspaper 
market are controlled (each) by three publishers: in Flanders De Persgroep publishes the 
most  popular  newspaper  (31%  in  2010)  Het  Laatste  Nieuws,  as  well  as  the  quality 
newspaper De Morgen, and De Nieuwe Gazet (regional version of Het Laatste Nieuws for 
the  region  of  Antwerp);  Corelio  publishes  the  second  most  popular  newspaper  Het 
Nieuwsblad (28%), the most popular quality newspaper De Standaard (10%), as well as 
De  Gentenaar  (regional  version  of  Het  Nieuwsblad  for  the  region  of  Ghent),  and  finally 
Concentra publishes the regional newspaper Het Belang van Limburg, as well as (via its 
subsidiary  De  Vlijt)  the  largest  regional  newspaper  for  Antwerp,  Gazet  van  Antwerpen 
(11%): 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Figure 1 BE: Print newspaper market shares in Flanders  

(Source: VRM media concentration report 2011, p. 169) 

In Wallonia, La Dernière Heure/Les Sports (14,3% in 2008) and Le Soir (15,1%) are the 
most popular communitywide newspapers, published by respectively IPM (which belongs 
to Groupe IPM) and Rossel (which belongs to Groupe Rossel). IPM also publishes La Libre 
Belgique  (8,5%),  while  Rossel  is  also  responsible  –  via  Sud  Presse  –  for  a  number  of 
regional  newspapers  (La  Meuse,  La  Capitale  …).  The  various  regional  titles  of  the  third 
publisher,  Editions  de  L’Avenir  (including  L’Avenir  du  Luxembourg,  Le  Courrier,  Le 
Courrier  de  l’Escaut,  Le  Jour  Huy-Waremme,  Le  Jour  Verviers,  Vers  l’Avenir  Basse-
Sambre,  Vers  l’Avenir  Brabant  Wallon,  Vers  l’Avenir  Entre  Sambre-et-Meuse,  Vers 
l’Avenir  Namur/Dinant)  represent  16,6%  of  the  daily  newspaper  market.  Editions  de 
l’Avenir  belongs  to  the  Corelio  group,  which  is  also  active  in  Flanders.  All  three  groups, 
IPM, Corelio and Rossel, have – via Audiopresse – a minority share in RTL Belgium, which 
edits three television broadcasting channels (RTL-TVi, Club RTL and Plug RTL), and which 
is co-owned by the Luxembourg based CLT-UFA. 

Finally,  it  should  be  noted  that  since  2005,  the  Flemish  and  Walloon  economic-financial 
newspapers,  De  Tijd  respectively  L’Echo,  belong  to  one  company  Mediafin  (50%  owned 
by Rossel and 50% by De Persgroep): 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Figure 2 BE: Print newspaper market shares per title in Wallonia  

(Source: www.csa.be/pluralisme/audience/secteur/3) 

Figure 3 BE: Print newspaper market shares per title in Wallonia  

(Source: www.csa.be/pluralisme/audience/secteur/3) 

There is also a wide variety of periodic magazines (both general interest magazines and 
specialized,  thematic  publications).  In  the  Flemish  market  the  three  main  actors  are 
Roularta  (Trends,  Knack),  Sanoma  (Flair,  Humo,  Libelle,  Story,  TeveBlad)  and  De 
Persgroep  (Dag  Allemaal,  TV  Familie,  Joepie,  Blik,  etc.).  Roularta  is  also  active  in 
Wallonia  with  Tendance,  the  French-language  version  of  the  business  magazine  Trends 
and – via Le Vif Magazine – with the popular Le Vif/ L’Express. Sanoma Belgium belongs 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

to  the  Finish  media  group  Sanoma  WSOY  that  is  active  in  print,  radio  and  television  in 
various European countries. 

A final category contains free newspapers and magazines (which cover their costs only by 
means  of  advertising  revenues).  In  Flanders,  these  free  print  media  have  gained  a 
significant share in the market in recent years. In addition to the very popular newspaper 
Metro (available at train stations and bus stops, and owned – via Mass Transit Media – by 
Concentra),  Roularta  (De  Zondag  and  De  Streekkrant),  de  Persgroep  (Immozone  and 
Vacature), and Corelio (Jobspotter) are the major players in this segment. Concentra also 
participates  in  the  free  weekly  newspapers  De  Streekkrant  (20%)  and  Vacature  (33%). 
Mass  Transit  Media  (which  is  51%  owned  by  Concentra  and  49%  by  Rossel)  also 
publishes Metro in Wallonia. 

2.2.2.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Specifically  for  Flanders,  the  Annual  Report  of  the  VRT  and  the  media  concentration 
reports  of  the  VRM  also  contain  a  number  of  figures  on  the  consumption  of  video  over 
Internet. In its media concentration report, the VRM notes big differences in the visiting 
of websites of radio and television broadcasters. Very strong brands or television channels 
such as deredactie.be (news) and sporza.be (sports) also attract huge amounts of website 
visitors.  One  of  the  reasons  for  this  is  the  fact  that  these  sites  offer  specific  content, 
while  most  other  sites  of  the  public  broadcasters  are  only  a  representation  of  the 
corporate brand on the Internet. In this category, the website of the main public general 
channel (“Eén”) also scores quite well. The VRM however draws the attention to the fact 
that these different types of websites can hardly be compared. 

Figure 4 BE: Unique visitors based on week averages of 15 July 2009, 2 August 
2010 and September 2011 

(Source: VRM media concentration report2011, p. 178) 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Specifically  for  the  public  broadcaster’s  websites,  more  than  10  million  video  download 
sessions are launched every month. Towards the end of 2010, the number of video clips 
launched  even  reached  16  million.  Apparently,  especially  the  video  zones  of 
“deredactie.be” (news) and “sporza.be” (sports) seem to attract the internet media user. 
Overall, in 2010 around 150 million video downloads were initiated, an increase of 75% 
compared to the year before. 

Table 7 BE: Video consumption on VRT-websites 

(Source:  VRT  Annual  Report  2010,  p.  37,  note  that  Ketnet  on  11  June  2010  started  a 
separate Ketnet Internet zone) 

The  Research  Department  of  the  Flemish  Government  also  providers  figures  of  the 
numbers of unique visitors of the other websites of the public broadcaster over a longer 
period of time: 

Table 8 BE: Unique visitors per day of VRT websites  

VRT website 

VRT 
Eén 
Canvas 
Ketnet 
Vrtnieuws 
Deredactie.be 
Sporza.be 
Cobra.be 
Radio1 
Radio2 
Klara 
StuBru 
MNM 
Donna) 
Rvi 
Internet radio 

(voorheen 

2010 

2009 

2008 

2007 

2006 

2005 

8.784 
56.013 
9.768 
14.620 
NB 
145.250 
144.192 
4.174 
9.327 
11.683 
3.628 
25.896 

10.463 
51.088 
8.146 
11.347 
NB 
110.158 
111.290 
NB 
8.111 
11.679 
6.920 
22.999 

10.313 
161 
22.960 

12.082 
387 
24.600 

11.999 
51.540 
7.766 
10.947 
NB 
84.696 
89.194 
NB 
8.356 
13.453 
5.093 
24.214 

10.915 
1.379 
27.484 

14.157 
50.996 
7.856 
9.260 
130.445 
NB 
NB 
NB 
8.893 
10.034 
3.375 
23.573 

13.491 
47.791 
7.772 
8.180 
100.525 
NB 
NB 
NB 
8.096 
7.929 
3.047 
18.837 

13.457 
1.086 
28.059 

11.338 
1.066 
31.797 

10.992 
38.160 
6.418 
6.509 
57.646 
NB 
NB 
NB 
7.411 
5.212 
2.580 
15.630 

12.446 
670 
23.693 

(Source: Studiedienst Vlaamse Regering, http://aps.vlaanderen.be/) 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.2.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Currently, broadcasting content is transmitted via a range of distribution means, such as 
cable,  but  also  via  satellite  and  terrestrial  networks,  both  in  an  analogue  and  digital 
manner. 

Cable,  however,  remains  the  predominant  means  to  convey  broadcasting  signals. 
Traditionally Belgium has been characterized by its high cable penetration rate of around 
95%.  Only  a  small  amount  of  viewers  receive  television  programmes  via  antenna. 
Satellite  mainly  attracts  subscribers  in  city  areas  (or  since  the  launch  of  TV  Vlaanderen 
so-called  ‘secondary’  subscribers  using  satellite  as  their  second  means  of  television 
reception, e.g., in their holiday resort). 

While the cable networks were traditionally operated by small – public or private/public – 
undertakings,  called  ‘intercommunales’,  covering  the  territory  of  one  or  a  few 
municipalities,  the  cable  industry has  witnessed  considerable  consolidation  over  the  last 
fifteen  years.  In  Flanders,  Telenet  has  invested  considerably  in  the  modernization  and 
interconnection  of  the  existing  cable  networks.  It  started  to  offer  Internet  access  via 
cable  in  1997  and  added  voice  telephony  to  its  product  range  as  soon  as  the 
telecommunications market was fully liberalized on 1 January 1998. Initially, Telenet was 
granted  an  ‘exclusive  right  of  use’  on  the  cable  networks,  while  the  property  rights 
remained  in  the  hands  of  the  ‘intercommunales’.  In  2001,  the  mixed  intercommunales 
decided  to  sell  their  cable  networks  (representing  two  thirds  of  all  cable  networks  in 
Flanders) and their television distribution activities to Telenet (who is since then a ‘triple 
play’ provider), while the pure intercommunales, united in ‘Interkabel’, decided to launch 
a  separate  offer  of  digital  television  under  the  brand  ‘INDI’.  Mid  2008,  after  difficult 
negotiations  and  protest  by  Belgacom,  Telenet  also  took  over  the  television  distribution 
activities  of  Interkabel.  In  the  meantime,  Telenet  also  acquired  –  in  2007  –  the  private 
cable  distribution  company,  UPC  (active  in  Leuven  and  Brussels).  In  2003,  Telenet  had 
also  already  acquired  the  only  pay  TV  channel  active  in  Flanders,  Canal+  (currently 
Prime). 

Eight  of  the  cable  companies  in  the  Walloon  region  have  merged  into  Tecteo,  which 
cooperates with the Brussels cable company Brutélé under the common brand ‘VOO’. Like 
Telenet  in  Flanders,  Tecteo  also  acquired  the  pay  TV  operator  active  in  the  south  of 
Belgium,  BeTV  (the  former  Canal+  Belgique),  in  October  2008.  In  Brussels,  besides 
Tecteo and Telenet, the British-American-Luxemburgian-owned cable television operator, 
Numéricable  (operating  in  France,  Belgium  and  Luxemburg),  is  also  active,  currently 
offering standard quadruple-play services at very competitive prices. 

Digital television in Belgium is currently offered via cable distribution networks (DVB-C), 
DSL, terrestrial network (DVB-T) and satellite. There is a fierce competition between the 
historical  CATV  network  operators  (Telenet,  Tecteo,  Numéricable,  Newico)  and  the 
incumbent  telecommunications  operator,  Belgacom.  The  latter  introduced  digital 
television  via  xDSL  in  Belgium  in  June  2005  with  national  football  as  its  trump  card 
(Belgacom  acquired the broadcasting rights for the national Jupiler league for the years 
2005 to 2008). The launch of Belgacom TV made the Belgacom Group a quadruple-play 
actor,  active  in  the  field  of  fixed  as  well  as  mobile  telephony,  Internet  access  and 
television  services.  In  Flanders,  Telenet  disposes  of  a  very  strong  position  on  the 
audiovisual  market.  In  1997  it  started  as  challenger  of  Belgacom  with  Internet  access 
and value-added services (infra), joined the fixed telephony market on 1 January 1998, 
stepped  into  the  analogue  cable  TV  distribution  business  when  it  acquired  two  thirds  of 
the Flemish cable networks in 2001 and launched Telenet Digital TV in September 2005. 
It  currently  offers  twenty-five  analogue  TV  channels  which  are  also  available  digitally 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

(MHP over DVB-C). In total about eighty TV channels are available digitally. This includes 
some  TV  channels  that  were  already  available  in  analogue  and  digital  form:  Prime  (in 
Dutch)  or  BeTV  (in  French)  are  pay-TV  operators  broadcasting  several  SDTV  channels 
over one DVB-C multiplex.  

Digital  terrestrial  networks  are  also  taking  up,  although,  for  the  time  being,  only  the 
channels  of  the  two  Belgian  public  TV  networks,  the  VRT  on  the  Flemish  side  and  the 
RTBF  on  the  French-speaking  side,  are  available  via  DVB-T.  The  VRT  channels  can  be 
received all over Flanders and Brussels. Analogue terrestrial TV transmission of VRT één 
and VRT Ketnet/Canvas ended on 3 November 2008 (‘analogue switch-off’). In December 
2008,  the  VRT  sold  a  49%  stake  in  its  broadcast  transmission  network  to  Norkring,  a 
subsidiary  of  Telenor.  The  VRT  holds  the  remaining  51%  stake  in  the  network,  but  the 
plan is to increase Norkring’s stake to 75% during the next couple of years. 

The  RTBF  launched  its  DTT  platform  on  30  November  2007,  which  is  now  available  to 
most  of  French-speaking  Belgium  and  Brussels.  The  RTBF  shut  down  the  analogue 
transmitters  within  the  timespan  put  forward  by  the  EU,  in  November  2011.  In  the 
summer of 2009, the CSA published the results of the consultation on its DTT strategy. It 
should  however  be  noted  that  the  development  of  a  strategy  regarding  the  digital 
dividend  is  extremely  complicated  in  Belgium  as  a  result  of  the  division  of  powers 
between the federal and community authorities. 

TV  Vlaanderen  supplies  DVB-S  satellite  television  aimed  at  the  Flemish,  Dutch  speaking 
market, broadcasting (encrypted, Seca 2/Irdeto 2) via the Astra 1G satellite at 19.2°E. It 
has  more  than  60,000  subscribers.  In  December  2008,  a  French  language  satellite 
platform called TeleSat was launched via the Eutelsat Hot Bird satellite position at 13°E. 
It broadcasts in MPEG4/DVB-S2 in SD and consists of RTBF La Une, RTBF La Deux, RTL-
TVi, Plug TV and Club RTL as well as a number of French language Belgian radio stations. 
Both TV Vlaanderen and TeleSat are Belgian subsidiaries of the Airfield Holding, who also 
owns  the  Dutch  DTH  platform,  CanalDigitaal.  VRT  and  RTBF  both  have  international 
channels  on  digital  satellite  (DVB-S)  called  BVN  (as  a  cooperation  between  the  Flemish 
VRT and the Dutch NOS) and RTBF Sat. 

2.2.2.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

For  figures  on  audience  shares,  readership,  usage  of  Internet  offers,  see  2.2.2.2.1  to 
2.2.2.2.4 above. 

The Research Department of the Flemish Government publishes figures about the overall 
advertising revenues in Flanders: 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 9 BE: Turnover of advertising market in Flanders (gross, in million euro) 

Media 
(in millon euros) 

2007 
124,7 
14,7 

2010 
131.6 
14.2 

2009 
129,2 
13,5 

2008 
129,1 
14,8 

669.1 

640,0 

Affichage 
Bioscoop 
Written  press  (excl. 
free regional press) 
Radio 
Television 
sponsoring) 
Internet 
Free regional press 
Total 
Source: Studiedienst Vlaamse Regering, http://aps.vlaanderen.be/ 

51,6 
55,9 
1.842,17 

75,2 
54,1 
1.894,7 

83,7 
63,7 
1.932,7 

107.8 
75.7 
2,142.2 

182,5 

202.7 

193,1 

192,6 

820,1 

787,1 

941.2 

641,3 

666,2 

744,1 

(incl. 

2006 
115,8 
16,3 

2005 
109,8 
15,3 

624,2 

541,4 

169,0 

151,3 

689,8 

615,6 

27,9 
73,3 
1.716,4 

1.433,4 

Graphically, these figures can be summarised as follows: 

Figure 5 BE: Turnover of advertising market in Flanders  

(Source: Studiedienst Vlaamse Regering, http://aps.vlaanderen.be/) 

141 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.2.3.  Conclusion and Recommendations 

Main changes in comparison to the 2004 Report: 

	  establishing  of  audiovisual  media  services  regulatory  authority  in  Flanders 

(“Vlaamse Regulator voor de Media”, 2005); 

	  start  of  competition  between  digital  television  platforms,  mainly  cable  and  twisted 

pair (2005); 

	  Act  on  the  confidentiality  of  journalistic  sources  of  7  April  2005;  Constitutional 

Court in 2006 expanding the protection even to non-professional journalists; 

	  2005  –  2012:  Implementation  of  th  EU  electronic  communications  directives  and 

AVMS directive by the different communities and federal authority; 

	  2009 – 2010: establishing of self –regulatory press councils and codes of conduct in 

Flanders and French community; 

	  2011: European Court finds existing safeguards of freedom of expression violating 

ECHR in case RTBF v. Belgium; 

	  2012: Highest Court extends the constitutional protection of ‘printed press crimes’ 

to the internet, potentially leading to de facto impunity; 

	  markets:  shift  from  analogue  to  digital  audiovisual  media,  including  analogue 
switch off and launching of DTT; convergence between traditional and new media. 

Overall,  we  consider  the  obligations  for  the  media  and  the  institutions  concerning  the 
citizens’  right  to  be  fully  and  objectively  informed  are  sufficiently  implemented  into  the 
Belgian  constitutional,  legal  and  regulatory  frameworks.  Generally  speaking,  the 
provisions on the freedom of expression and freedom of the media guarantee an effective 
and  efficient  protection.  The  main  concern  relates  to  the  unclarity  about  the  precise 
scope  or  delimitation  of  the  existing  constitutional  safeguards  regarding  freedom  of 
expression,  which  are  still  essentially  different  for  printed  and  other  media,  and  to  the 
fact that powers regarding different media are divided between different authorities (e.g. 
federal  for  competition  issues,  communities  for  audiovisual  media),  thereby  creating 
barriers  for  a  truly  cross  media  regulatory  approach.  Some  additional  concerns  can  be 
expressed  about  the  application  of  these  rights  by  the  Courts  when  dealing  with  new 
trends,  such  as  user-generated  content  or  other  new  technologies.  In  this  respect,  it 
remains  to  be  seen  what  the  actual  impact  will  be  of  extending  the  protection  of 
journalistic  sources  to  non-professional  journalists,  or  even  to  individual  bloggers.  The 
question  has  not  yet  been  answered  to  what  extent  this  protection  could  make  more 
difficult  the  defence  of  a  citizen  against  the  allegations  of  another  citizen.  Moreover, 
some concerns could also be raised about the recent judgement of the Supreme Court (6 
March  2012),  in  which  it  confirms  that  ‘printed  press  crimes’  could  also  be  committed 
over the Internet. Specifically in this case, it remains to be seen to what extent this could 
lead to a de facto impunity, given the fact that the procedure before the Hof van Assisen 
is such a high threshold.  

This  possible  “overprotection”  of  the  freedom  and  rights  of  individual  citizens  by  courts 
contrasts quite significantly with the actual position of journalists and the organisation of 
their profession. Associations of journalists since a number of years are stressing the fact 
that technological and economic trends are creating an enormous pressure on their work. 

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The distribution of news through the Internet has obliged redactions to truly work across 
different media (quite often leading to internal reorganisations, or reductions in FTE), and 
always against the clock. Precisely because of the pressure they perceive, associations of 
journalists are pleading for an increased protection of their role through the formalization 
of  safeguards  for  editorial  independence  by  introducing  editorial  statutes  in  all  news 
media. 

Pluralism  and  diversity  of  the  media  are  pro-actively  monitored  by  the  respective 
regulatory  authorities.  These  monitorings  are  however  limited  to  creating  awareness 
through  transparency,  and  to  the  broadcasting  sectors  (television  and  radio).  The  VRM 
for  example  publishes  a  yearly  report  on  media  concentration,  but  does  not  dispose  of 
regulatory  powers  in  order  to  remedy  any  possible  shortcoming  or  market  failure.  In 
broadcasting, the markets are characterised by quite strong public service broadcasters, 
challenged  by  quite  vibrant  and  successful  commercial  broadcasters.  Recently,  the 
activities of SBS Belgium in Flanders were taken over by a Flemish production company 
(‘De  Vijver’),  thereby  offering  additional  guarantees  in  the  local  “anchoring”  of  content 
production.  Since  the  beginning  of  the  financial  and  economic  crisis,  different  market 
players  have  criticised  the  increasing  role  of  the  distributors  in  the  audiovisual  media 
sector. The regulatory authorities have performed an analysis of the market and came in 
July  2011  to  the  conclusion  that  besides  obligations  on  the  main  telecommunications 
operator  (Belgacom),  obligations  to  open  their  networks  should  also  be  imposed  on  the 
operators of cable networks. These decisions are now being implemented. 

It is clear that during the last decade, mainly the role of the regulatory authorities in the 
audiovisual  broadcasting  sector  has  significantly  increased.  In  Flanders,  the  previously 
existing  regulatory  authorities  have  in  2005  been  replaced  by  the  new  “Vlaamse 
Regulator voor de Media” (VRM), which supervises the application and compliance of the 
media  act.  As  the  CSA  for  the  French  community,  the  VRM  does  not  only  do  so  for  the 
commercial broadcasting sector, but also monitors the behaviour and legal compliance of 
the public service broadcaster. Moreover, the VRM also reports about the implementation 
of  the  management  contract  of  the  public  service  broadcaster.  Additional  powers  were 
assigned to the different media regulatory authorities through the implementation of the 
(revised)  EU  eCommunications  framework,  as  well  as  the  implementation  of  the  AVMS 
Directive. This has enabled the media regulatory authorities to gather a sufficient level of 
critical mass relating to the audiovisual media sectors. A true cross-media policy remains 
however  extremely  difficult  to  realise,  given  the  complex  and  fragmented  nature  of  the 
repartition of power in the Belgian federal state. 

Recommendations 

	  the  constitutional  safeguards  regarding  freedom  of  expression  should  be  revised 
and harmonised in the light of the judgement of the ECHR in  RTBF v. Belgium, as 
they  should  not  essentially  vary  depending  on  whether  print  media  or  audiovisual 
media are concerned; 

	  the  expansion  of  the  protection  of  journalistic  sources  (including  citizens 
journalists)  and  the  potential  de  facto  impunity  for  ‘printed  press  crimes’  on  the 
Internet  should  be  thouroughly  and  critically  evaluated  in  the  light  of  the freedom 
of expression; 

	  the  current  legal  frameworks  in  the  Flemish  and  French  community  are  unstable 
and  unclear  about  the  possibility  to  offer  political  commercial  communication  in 
audiovisual media and should therefore be reconsidered; 

143 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

	  editorial independence of journalists has to remain an important point of attention 
of the government; offering more guarantees through the establishment of editorial 
statutes for all news media should be considered; 

	  the  involvement  of  many  different  authorities  creates  a  barrier  for  a  truly  cross-
media policy or approach; against the background of growing convergence between 
all  different  kinds  of  media,  the  governments  in  Belgium  should  consider  a  more 
consistent  and  future-proof  approach  (e.g.  acknowledging  the  role  of  user-driven 
journalistic  initiatives);  more  pro-active  powers  for  the  existing  audiovisual  media 
regulatory authorities should in this respect also be considered. 

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BULGARIA 


2.2.3.	 

Bulgaria 

2.2.3.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.3.1.1. 

Human rights/Fundamental freedoms 

The  Bulgarian  constitution1  provides  for  the  three  fundamental  freedoms:  freedom  of 
expression, freedom of press and other mass information media and freedom of seeking, 
obtaining and disseminating information (art. 39, 40 and 41). 

  Freedom of expression/Freedom of the media 

According to the official translation2 of Art. 39 the freedom of expression is described as 
follows: 

Art.  39.  (1)  Everyone  shall  be  entitled  to  express  an  opinion  or  to  publicize  it  through 
words, written or oral, sound or image, or in any other way. 
(2) This right shall not be used to the detriment of the rights and reputation of others, or 
for  the  incitement  of  a  forcible  change  of  the  constitutionally  established  order,  the 
perpetration of a crime, or the incitement of enmity or violence against anyone. 

Art.  40  specifies  the  freedom  of  expression  with  regard  to  the  press  and  other  mass 
information media: 

Art. 40. (1) The press and the other mass information media shall be free and shall not 
be subjected to censorship. 
(2)  An  injunction  on  or  a  confiscation  of  printed  matter  or  another  information  medium 
shall  be  allowed  only  through  an  act  of  the  judicial  authorities  in  the  case  of  an 
encroachment on public decency or incitement of a forcible change of the constitutionally 
established  order,  the  perpetration  of  a  crime,  or  the  incitement  of  violence  against 
anyone. An injunction suspension shall lose force if not followed by a confiscation within 
24 hours. 

  Freedom to receive and to access information 

The freedom to receive information is enshrined in Art. 41: 

Art. 41. (1) Everyone shall be entitled to seek, obtain and disseminate information. This 
right shall not be exercised to the detriment of the rights and reputation of others, or to 
the detriment of national security, public order, public health and morality. 
(2)  Everyone  shall  be  entitled  to  obtain  information  from  state  bodies  and  agencies  on 
any matter of legitimate interest to them which is not a state or official secret and does 
not affect the rights of others. 

According to the interpretative decision of the Bulgarian Constitutional Court the freedom 
of  expression  is  the  basic  of  the  other  two  freedoms  and  it  incorporates  them.3  The 

1 

2 

3 

State Gazette No. 56 from 13 July 1991, last amendments state Gazette No. 12 from 6 February 2007.
 
http://www.parliament.bg/en/const. 

Decision No. 7 from 1996 of the Bulgarian Constitutional Court, available at  


145 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

reason  for  mentioning  the  freedom  of  the  mass  information  media  is  to  underline  their 
important  public  function  but  not  to  give  them  a  “special  privilege”  with  regard  to  the 
other citizens’.4 Furthermore, the Constitutional Court pointed out that restrictions of the 
three fundamental rights can only be based on reservation by the Constitution itself. The 
right  to  seek  and  obtain  information  under  Art.  41  (1)  encompasses  the  government 
institutions'  obligation  to  guarantee  access  to  information  of  public  significance.  The 
content  of  that  obligation  is  subject  to  further  definitions  like  in  Art.  82  of  the 
Constitution, where is foreseen that the sessions of the National Assembly shall be open. 
The  Rules  of  organisation  and  procedure  of  the  National  Assembly5  regulate  the 
modalities of the access and special provisions with regard to the public radio, television 
and  journalists.  According  to  Art.  41  of  the  Rules  the  open  assemblies  of  the  National 
Assembly  can  be  broadcast  live,  but  only  by  the  public  broadcaster  (the  Bulgarian 
National  Radio  and  the  Bulgarian  National  Television)  or  through  the  web-site  of  the 
Assembly. This can be seen as an unjustified discrimination of private broadcasters. 

Further,  according  to  Art.  121  (3)  of  the  Constitution,  all  courts  shall  conduct  their 
hearings in public, unless provided otherwise by law. 

  Safeguards on regulatory authorities 

The Bulgarian Constitution does not hold specific provisions on the statute, remit and/or 
powers of the regulatory authorities in the media and electronic communications sectors.  

  Safeguards on “universal service” 

No  stipulations  are  contained  in  the  Bulgarian  Constitution  that  would  hold  specific 
guarantees for the citizens in respect of universal service of the (electronic) media.  

2.2.3.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

Bulgaria  has  a  dual  broadcasting  system  consisting  of  two  public  television  and  radio 
broadcasters, Bulgarian National Television (BNT) and Bulgarian National Radio (BNR) on 
the one hand and private broadcasters on the other. 

- Licensing schemes; remit psm; notification for print publications 

The  main  law  regulating  broadcasting  in  Bulgaria  is  the  Law  on  Radio  and  Television 
(LRT).6  The  adopted  approach  in  connection  with  the  broadcasting-market  entry 
regulates  different  procedures,  in  accordance  with  the  way  of  programme  broadcasting. 
Two  licensing  regimes  exist,  depending  on  whether  the  broadcaster  will  broadcast  its 
programmes through a terrestrial analogue network or a digital one. In the first case, the 
CEM  issues  a  programme  license,  and  the  telecommunications  regulator  –  the  CRC  – 
issues  a  communication  permit  to  the  broadcaster.  The  number  of  licenses  is  limited  to 
the  number  of  potentially  available  frequencies.  Till  the  present  day,  this  licensing 
procedure  has  been  used  de  facto  only  in  the  radio  sector.  In  the  second  case,  the 
licensing is not related to a specific frequency, the number of licenses is not limited, and 

4	 

5	 

6	 

http://www.constcourt.bg/Pages/Document/default.aspx?ID=323. 
Ibid. 
State Gazette  No. 58 from 27 July 2009, last amendments State Gazette  No. 80 from 14 October  2011, 
available at http://www.parliament.bg/en/rulesoftheorganisations.  
State  Gazette  No.  138  from  24  November  1998,  last  amendments  State  Gazette  No.  38  from  18  May 
2012. 

146 


 
 
 
 
 
 
 
 
 
  
 
 
 
 
  
 
 
  
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
  
 
  
 
 
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  choice  of  programmes  is  given  to  the  multiplex  operator,  while  abiding  by  the  legal 
requirements and the must-carry rules. The CEM issues only a programme license to the 
broadcaster. This procedure is being applied today only for television broadcasters.  

Broadcasters  using  exclusively  cable  and/or  satellite  networks  are  subject  of  mere 
registration. With amendments in the Law on Electronic Communication (LEC)7, a fourth 
alternative  was  provided,  according  to  which  the  CRC  temporarily  provides  already 
registered  broadcasters  with  usage  rights  for  analogue  frequencies,  without  having  to 
follow the complex procedure of analogue terrestrial licensing under the LRT.  

101 permissions have been issued in June 2009 to five applicants (TV 7, TV 2 (after that 
Pro.BG  and  now  bTV  action),  Television  Evropa,  MSat,  Evrocom  International  Cable  TV) 
based solely on two criteria - advertising revenues and technical equipment. 

These  legal  provisions  were  one  of  the  reasons  why  the  European  Commission  has 
launched  an  infringement  procedure  against  Bulgaria  in  May  2011.  Other  irregularities 
mentioned  by  the  Commission  were:  the  reservation  of  the  terrestrial  frequencies  over 
the  territory  of  Sofia  only  for  the  Bulgarian  National  Television  since  the  latter  had  no 
regional programming license for this territory at that time; the requirement that bidders 
for the digital multiplexes shall not perform television activities, and the Bulgarian model 
of  must-carry  rules  as  far  as  the  digital  distribution  of  television  programmes  is 
concerned. 

On  22  March  2012  the  Commission  considered  that  Bulgaria  did  not  comply  with  the 
requirements  of  the  Competition  Directive  when  it  assigned  in  2009  the  five  spectrum 
lots  available  for  digital  terrestrial  broadcasting  via  two  contest  procedures,  limiting 
without justification the number of undertakings that could enter the market concerned. 
Moreover,  the  selection  criteria  of  the  contest  procedures  were  disproportionate  and 
therefore  not  in  line  with  the  requirements  of  the  Competition,  Authorisation  and 
Framework  Directives.  Applicants  were  not  allowed  to  have  links  with  content  providers 
(TV  channels  operators),  including  operators  active  only  outside  Bulgaria,  or  with 
broadcasting network operators.8 

The  decision  takes  the  form  of  a  reasoned  opinion.  Bulgaria  now  has  two  months  to 
inform  the  Commission  of  the  measures  taken  to  address  the  breach  of  EU  Law.  The 
official Bulgarian position on these issues was previously that Bulgaria did not breach the 
EU rules.9 

Furthermore, Bulgaria has not yet implemented the new EU telecoms rules (the deadline 
to do so was 25 May 2011). Because of that a second infringement procedure has been 
launched  by  the  European  Commission.  The  Commissions’  request  from  24  November 
2011 took the form of “reasoned opinions”. 

The non-linear services (video on-demand) are subject of a notification to be sent to the 
CEM. 

The press market entry has not been regulated by special legislative provisions. 

7 

8 

9 

State Gazette No. 41 from 22 May 2007, last amendments State Gazette No. 44 from 12 June 2012. 
See:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/298&format= 
HTML&aged=0&language=EN&guiLanguage=en. 
http://www.capital.bg/biznes/media_i_reklama/2011/07/22/1127707_ek_zabavia_ 
no_ne_zabravia/. 

147 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
  
 
 
  
 
                                                 
  
 
 
 
  
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Media pluralism/ownership; competition law aspects 

There  are  no  rules  which  regulate  specifically  the  control  over  media  concentrations. 
They are controlled only from an economic perspective, following the rules of the general 
supervision on competition under the Law on Protection of Competition10, and exercised 
by the Commission for Protection of Competition (CPC). 

- Legal framework for psm; ability to fulfill their tasks 

The LRT provides specific obligations related to the public service broadcasters. According 
to  Art.  6  (2)  LRT  they  shall  provide  inter  alia  for  broadcasting  political,  economical, 
cultural,  scientific,  educational  and  other  socially  important  information;  provide  access 
to  the  national  and  global  cultural  values  and  popularise  the  scientific  and  technical 
achievements  through  broadcasting  Bulgarian  and  foreign  educational  and  cultural 
programmes for all age groups. 

A  special  provision  is  applicable  for  BNR  and  BNT  as  they  provide  a  nationwide 
programme.  According  to  Art.  6  (3)  LRT,  BNR  and  BNT  have  to  provide  media  services 
for all citizens of the Republic of Bulgaria; to assist the development and popularisation 
of  the  Bulgarian  culture  and  Bulgarian  language,  as  well  as  of  the  culture  and  the 
language  of  the  citizens  in  compliance  with  their  ethnic  belonging;  to  provide  access  to 
the  national  and  European  cultural  heritage;  to  inform,  educate  and  entertain;  to  apply 
the  new  information  technologies;  to  relate  the  various  ideas  and  convictions  of  the 
society  by  pluralism  of  the  points  of  view  in  each  and  every  news  and  current  affairs 
programmes of political and economic subject; to contribute to the mutual understanding 
and  tolerance  in  the  relations  between  people;  to  provide  possibility  for  the  citizens  to 
acquire information regarding the official position of the state on important issues of the 
public life. 

LRT contains detailed provisions regarding the financing through fees of the public radio 
and  television  broadcasters,  and  of  the  CEM.  For  this  purpose  a  special  fund  must  be 
created, where funds from the fees from the population must be collected. The practical 
implementation  of  those  provisions  is  being  postponed  every  year  since  2002  through 
amendments  of  the  law.  They  extend  the  subsidising  of  the  public  broadcasters  and  of 
the CEM every year and from the state budget, including until the end of 2012. Thus, the 
public  broadcasters  in  Bulgaria  are  funded  through  state  budget  subsidies,  advertising 
revenues  (which  are  more  limited  in  scope  than  those  of  commercial  broadcasters), 
revenues  from  other  activities  related  to  the  broadcasting,  donations,  testaments  and 
interests.  There  is  no  mechanism  foreseen  how  to  calculate  the  amount  of  the  subsidy 
and how much it is really needed to fulfil the public remit. 

In  accordance  with  Art.  32  (2)  LRT  the  СЕМ  elects  and  relieves  from  duty  the  General 
Directors  of  the  BNT  and  BNR,  as  well  as  the  members  of  their  management  boards, 
following  proposals  from  the  General  Directors.  It  also  issues  an  opinion  on  the  draft 
proposal for the state budget subsidies to the BNT and BNR.  

- The role and functioning of regulatory authorities in these respects 

The  competent  regulatory  authority  on  the  content  of  the  private  and  public  radio  and 
television programmes is the Council for Electronic Media (CEM). The Council consists of 
a  Management  Board  of  5  members,  3  of  which  are  elected  by  the  National  Assembly, 

10 

State  Gazette  No.  102  from  28  November  2008,  last  amendments  State  Gazette  No.  73  from  20 
September 2011. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

and 2 are appointed by the President (Art. 24 Law on Radio and Television, LRT). The law 
contains  certain  guarantees,  regarding  the  independence  of  the  members,  for  instance 
the rules on incompatibility (Art. 26 and Art. 27 LRT), an obligation to declare every type 
of significant interest when taking a specific decision (Art. 28 LRT), very limited options 
for  relief  of  duty  according  Art.  30  LRT  (resignation,  continuous  inability  to  perform 
activities  of  more  than  six  months,  imprisonment).  The  bodies,  who  have  elected  or 
appointed them, do not have the right to relieve them from duty. 

The CEM regulates radio and audiovisual activities (linear and non-linear media services) 
through registration or issuing of licenses for radio and television activities, and through 
continuous  supervision  over  the  activities  of  the  private  and  of  the  public  radio 
broadcasters and audiovisual media services providers. In case their activities are not in 
compliance  with  the  legal  provisions  or  with  the  conditions  included  in  the  licenses,  the 
CEM  decides  whether  to  impose  a  fine  on  the  respective  radio  broadcaster  or  media 
service providers, and on the extent of it or to revoke the license or the registration. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Art. 15 LRT foresees in its section (1) that the media service providers shall disclose their 
sources of information not only in cases of pending court proceedings, but also in case of 
pending proceedings by CEM. According to Art. 15 (2) LRT journalists are  in the former 
case also obliged to disclose the sources of information not only to the audience but also 
to  the  management  of  the  media  service  providers.  And  Art.  15  (4)  LRT  says  that  “the 
journalists shall be obliged to keep secret of the source of information if this is explicitly 
requested by the person who has provided it”. 

These  regulations  provide  obligations  which  weaken  the  freedom  of  expression  in 
broadcasting when compared against Art. 10 ECHR. Not only that they foresee the active 
obligation to disclose sources of information also in case of a simple authority’s demand 
and  also  to  the  management  of  the  media  providers.  Moreover,  the  person  who  has 
provided the information must explicitly request its protection. 

- Specific positive content obligations 

According  to  Art.  10  of  the  LRT,  the  public  and  private  broadcasters  shall  be  guided  in 
carrying  out  their  activities  by  the  following  principles:  guaranteeing  the  right  to  free 
expression  of  opinion;  guaranteeing  the  right  to  information;  preservation  of  the  secret 
of the source of information; protection of the personal inviolability of the citizens; non-
admission  of  programmes  suggesting  intolerance  among  the  citizens;  non-admission  of 
programmes  contradicting  the  good  manners,  especially  if  they  contain  pornography, 
praise  or  excuse  cruelty  or  violence  or  incite  hatred  based  on  race,  sex,  religion  or 
nationality;  guaranteeing  the  right  to  reply;  guaranteeing  the  copyright  and  related 
rights; preservation of the purity of the Bulgarian language. 

In  2011,  controversial  amendments  of  the  Bulgarian  Penalty  Code  have  been  adopted. 
The amended Art. 162 (1) provides 1 to 4 years of imprisonment or sanctions from 5,000 
BGN  (2,556  Euro)  to  10,000  BGN  (5,113  Euro)  for  the  incitement  to  discrimination, 
violation and hate by mass media based on race, nationality or ethnic belongings.11 The 

11 

Amendments State Gazette No. 33 from 26 April 2011. 

149 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

imprisonment  sentence  of  up  to  4  years  has  been  criticised  as  a  disproportionate 
measure.

12

- Funding schemes for specifically desired content 

No such funding schemes exist in Bulgaria. 

- Political advertising and/or broadcasting time 

The  political  advertising  during  the  pre-election  campaigns  has  been  regulated  by  the 
new  Electoral  Code.13  It  provides  strict  rules  for  the  public  broadcaster,  BNR  and  BNT. 
According  to  Art.  147  (1),  all  campaign  broadcasts  of  BNT  and  BNR  and  their  regional 
programmes  are  to  be  paid  for  by  parties,  coalitions  and  nomination  committees 
according  to  a  predetermined  tariff.  Art.  147  (2)  foresees  only  two  exceptions,  namely 
for  the  closing  addresses  and  debate  appearances  of  presidential  candidates  during  a 
possible  second  round.  This  undermines  the  responsibility  of  the  public  broadcaster  to 
ensure  a  fair,  balanced  and  thorough  coverage  of  elections  in  their  news  and  current 
affairs  programs.14  The  conclusion  is  confirmed  by  the  report  on  the  monitoring  of  the  
pre-election campaign in Bulgaria for the election of the President and Vice-president as 
well as of mayors and municipal councilors issued by CEM after the first election since the 
new Electoral Code is entered into force.15 Furthermore, the “private broadcasters fail to 
make  sufficient  use  of  the  potential  freedom  in  their  programmes  to  let  journalism 
dominate, rather than paid propaganda.” 

- Codes of conduct and their organisational framing 

In 2004, the Code of Ethics of the Bulgarian media was adopted. It is the code of conduct 
for  the  Bulgarian  journalists  which  applies  for  broadcasting,  press  and  online  services. 
Regarding  dissemination  of  truthful  information  to  the  society  it  provides  three 
obligations: correctness of the information, correction of untruthful information and using 
trustful  sources.  Besides,  the  way  how  to  collect  information  and  which  kind  of 
information  can  be  disseminated  is  regulated.  Moreover,  it  is  foreseen  that  the  human 
dignity and personal life are inviolable and that media shall interfere with the personal or 
family life only in case of significant public interest. Besides there are provisions for the 
protection of minors and persons who are accused but not condemned yet. 

The  Code  provides  also  for  editorial  independence  from  political  end  economic  powers. 
On the next it regulates the relationships between the different media which have to be 
grounded  on  fair  competition  and  observance  of  the  copyrights.  The  notion  “public 
interest”  in  terms  of  the  Code  is  defined  as:  “protection  of  the  health,  safety  and 
security;  participation  in  prevention  or  detection  of  violation  or  abuse  of  power; 
protection of the society to be seriously fooled.” However, the provisions of the Code do 
not apply if the action in question unambiguously serves the public interest. 

The  “National  Council  for  Journalistic  Ethics”  Foundation  was  established  and  is 
responsible  for  monitoring  the  compliance  with  the  Code.  There  are  two  commissions 
within  the  foundation  –  Ethics  Commission  on  Printed  Media  and  Ethics  Commission  on 
Electronic Media, each of which consists of 12 members. But since the beginning of their 

12 

13 

14 

15 

See for more information OSCE/ODHIR Limited Election Observation Mission Final Report, 2011, p. 14-15.
 
State Gazette No. 9 from 28 January 2011, last amendments State Gazette No. 45 from 14 June 2011.
 
OSCE/ODHIR Limited Election Observation Mission Final Report, 2011, p. 16.
 
Report  on  the  monitoring  results  on  radio  and  television  programmes  of  media  service  providers  during
 
the  pre-election  campaign  for  the  election  of  the  president  and  vice-president  and  members  of  local 
authorities, 23 September-23 October 2011.  

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

work  in  2006  they  reviewed  and  decided  only  18  cases  with  print  media  and  11  cases 
with electronic media up to now. Most of the cases do, in view of the Commissions, not 
violate  the  Ethic  Code.  The  only  stated  violations  by  the  Commission  concerned 
incorrectly given information, one-sided data entry, picking and choosing the sources of 
information.16  One  of  the  reasons  for  the  poor  practice  is  that  in  cases  of  violation  the 
Commission  can  only  publicly  reprimand  the  respective  media  by  expressing  its 
disapproval  of  the  form  or  content  of  the  contested  material.  There  are  no  other 
sanctions  that  can  be  imposed.  In  consequence  the  citizens  prefer  to  use  the  civil  or 
criminal law procedures, if their rights have been abused.  

  Distribution Aspects 

- Access to frequencies 

On 31 January 2008, the Bulgarian government approved a Digital Plan for Introduction 
of DVB-T in Bulgaria.17 The Plan was updated again in April 2010 and in March 2012 for 
not meeting the deadlines. According to the new Plan, the analogue/digital switch-over is 
supposed to take place in two stages: Stage One is supposed to start with three national 
networks (MFNs) by simulcast broadcasting on 1 March 2013. The switch-off date for the 
first  stage  is  planed  for  1  September  2013.  The  timeframe  of  Stage  Two  depends  on 
when  the  frequencies  used  for  analogue  transmission  during  Stage  One  and  the 
frequencies  used  by  the  Ministry  of  defence  will  be  released.  Three  more  national 
networks  (MFNs)  are  provided  on  Stage  Two.  CRC  issued  permits  for  operation  and 
construction of the six national networks in 2009 and 2010.18 

The amendments of the Law on Electronic Communication (LEC) from December 201119 
and  the  new  Digital  Plan  allow  for  the  launch  of  a  new  tender  procedure  for  selecting  a 
new platform operator of a seventh national digital network before 1 September 2013.  

More information on the grant of licences (permits) which provide for the right to use a 
telecommunications infrastructure, particularly frequencies for the terrestrial emission of 
broadcasting services, is provided supra in relation to the “market entry” of broadcasters.  

- Access to distribution networks and control of actual conditions 

The access to distribution networks (cable and satellite) has not been regulated by law. It 
is  a  matter  of  private  legal  agreements  between  the  operator  of  the  network  and  the 
broadcaster.  According  to  most  of  these  agreements  the  network  operator  pays  to  the 
broadcaster  for  the  allowance  to  distribute  his  programmes.  The  regulation  concerning 
the access to terrestrial networks is described under “market entry” and “role of platform 
operators”. 

The  circulation  instruments  for  print  media  have  not  been  regulated  by  law.  But  in 
August  2011  the  Commission  for  Protection  of  the  Competition  started  analysing  the 
market  for  publishing  and  distribution  of  publications,  because  some  publishing 
companies  had  stated  that  80  %  of  the  market  was  dominated  by  the  “New  Bulgarian 

16 

17 

18 

19 

Decision  No.  12  from  20  July  2007,  Decision  No.  14  from  14  September  2007,  Decision  No.  17  from  30 
October 2008. 
A Summary of the first Plan in English (not updated version) can be seen at:  
http://ec.europa.eu/information_society/policy/ecomm/current/broadcasting/switchover/national_plans/in 
dex_en.htm. 
See for more information the “role of platform operators”. 
State Gazette No. 105 from 29 December 2011. 

151 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
  
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Media  Group  Holding”  JSC.  This  company  publishes  inter  alia  the  dailies  “Monitor”, 
“Telegraph” and the weekly “Politic”. 

- Must-carry/must-offer rules for electronic media 

In  regard  to  the  broadcasting  programmes,  intended  for  terrestrial  digital  broadcasting, 
CEM  performs  licensing  without  call  of  a  tender,  because  the  number  of  licenses  is 
unlimited.  In  addition,  the  CEM  must  define  the  type  and  profile  of  part  of  the  licensed 
programmes,  which  are  mandatory  for  broadcasting  by  multiplex  operators,  while,  for 
the other part of the batch of programmes, coordinate their type and profile. Therefore, 
according  to  the  LRT  the  multiplex  operator  has  to  transmit  three  type  programmes: 
programmes  which  have  must-carry  status  according  to  the  law;  programmes  whose 
type  and  profile  have  been  assigned  by  the  CEM,  and  programmes  whose  type  and 
profile  have  been  agreed  with  the  CEM.  Which  criteria  CEM  has  to  apply  by  assigning 
respectively agreeing the type and profile  is not regulated by the LRT. These provisions 
apply  only  to  private  television  programmes.  For  the  programmes  of  the  public 
broadcaster BNT one multiplex on the Stage One has been reserved.  

According  to  §  37  (1)  of  the  Transitional  and  Final  provisions  of  the  LRT,  the  following 
programmes  have  to  be  transmitted  via  terrestrial  digital  network  by  the  multiplex 
operator  (must-carry)  on  the  Stage  One:  programmes  for  which  the  broadcaster  has  a 
nationwide  license  for  broadcasting,  which  use  terrestrial  analogue  networks,  to  which 
not  less  than  50  %  of  the  population  has  access  to.20  Furthermore,  according  to  §  37a 
(1), the multiplex operator has to transmit the television programmes which have been 
distributed  to  not  less  than  50  percent  of  the  population  via  electronic  communications 
networks for terrestrial analogue broadcasting at the time of launching his services.21 On 
a  third  place  the  multiplex  operator  must  distribute  two  more  programmes  of  those 
broadcasters,  who  have  a  license  for  terrestrial  analogue  broadcasting  with  nationwide 
coverage,  which  expires  after  2010,  §  37a  (2).22  These  programmes  have  to  be  agreed 
with the CEM, § 37a (4).  

On  Stage  Two  of  the  digital  switch-over  the  multiplex  operator  is  obliged  to  distribute 
three programmes of which the type and profile is defined by the CEM and another three 
programmes  which  have  to  be  agreed  with  the  CEM  and  come  from  broadcasters,  who 
have  a  license  for  terrestrial  analogue  broadcasting  with  nationwide  coverage,  which 
expires after 2010, § 38 LRT. 23 

- Role of platform operators 

The  issuing  permit  for  operation  and  construction  of  electronic  networks  for  terrestrial 
digital broadcasting (multiplex) has been regulated by the rules of the telecommunication 
law  (Chapter  4,  Section  VI  LEC).  The  competent  CRC  issues  the  permit  in  a  tender 
procedure. 

On 5 June 2009, the CRC issued a permit for operation and construction of two national 
networks  to  TOWERCOM  BULGARIA  for  Stage  One,  with  a  duration  of  15  years.  On  22  

20 

21 

22 

23 

De facto these are the television programmes bTV, bTV action (former Pro.BG and TV2) and Nova.  
De  facto  this  rule  applies  to  the  programmes  of  the  registered  broadcasters  who  received  temporarily 
permits according to the Law on Electronic Communication to use analogue frequencies, without having to 
follow the complex procedure of analogue terrestrial licensing under the LRT, and especially the permits of 
the  programmes  TV7  and  TV2  (today  the  permits  of  TV2  belong  to  the  bTV  group).  Other  programmes 
which  meet  the  requirements  are  Bulgaria  on  air,  Darik  radio  and  television  and  Balkan  Bulgarian 
Television. 
De facto these broadcasters are bTV and Nova. 
De facto these are three programmes of bTV and three programmes of Nova.  

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June  2009,  the  permit  for  the  three  national  networks  from  Stage  Two  was  issued  to 
HANNU  PRO  BULGARIA,  again  with  a  duration  of  15  years.  In  July  2010  CRC  chose 
HANNU PRO BULGARIA as well as an operator and constructer of the third national digital 
network  that  is  reserved  for  transmitting  the  programmes  of  the  public  broadcasters. 
One of the bidders in the tender procedure for the public multiplex appealed against the 
decision of the CRC. He stated that the chairman of the CRC has exercised pressure on 
the  other  members  by  taking  the  decision.  The  last  instance  of  the  Supreme 
Administrative Court in Sofia rejected the claim in January 2012.  

The two permits for Stage One belong today to NURTS (National Governance “Radio and 
Television Stations”) who bought in the summer of 2010 TOWERCOM BULGARIA. NURTS 
belonged  to  the  main  fixed-line  telephony  operator  in  the  country  –  Bulgarian 
telecommunication company (BTC) who had the permit for terrestrial digital transmission 
over the territory of Sofia and was the sole owner of the national analogue network which 
transmits the programmes of BNT and BNR, bTV and Nova. In the summer of 2010 BTC 
sold  50  %  of  the  “NURTS”  to  the  Cyprus  offshore  company  Mancelord  Limitted.  The 
acquisition of the other 50 % by the Bluesat Partners Ltd. (registered in the United Arab 
Emirates)  was  approved  by  decision  of  the  Commission  for  Protection  of  Competition 
(CPC) in 2011.24 The new name of NURTS is NURTS Digital. 

- The role and functioning of regulatory authorities in these respects 

The  Bulgarian  authority  for  media  infrastructure  is  the  Communications  Regulation 
Commission  (CRC),  which  consists  of  a  Management  Board  with  five  members.  The 
chairman  is  appointed  by  the  Council  of  Ministers,  the  vice  chairman  and  two  other 
members  are  elected  by  the  National  Assembly,  and  one  is  appointed  by  the  President 
(Art.  22  Law  on  Electronic  Communication,  LEC).  The  provisions  concerning  the 
independence of the Management Board are similar to those of LRT concerning CEM. 

  Access to Information 

- Transparency of media ownership situations 

The  Law  on  compulsory  deposit  of  printed  or  other  works  (LCDPOW)25  provides  the 
obligation  for  compulsory  depositing  printed  or  other  works  at  the  National  Library. 
According  to  Art.  7a  of  the  Law,  every  periodical  printed  work  shall  publish  information 
about the “real owner” of the publication in the first issue of the year and to update the 
information  on  the  web  page  of  the  publication,  if  any,  Art.  7a  (6).  Currently,  the 
information  about  the  “real  owner”  has  been  published  only  on  the  web  sites  of  the 
publications belonging to the newspapers group Economedia. 

Further,  the  publisher  is  obliged  to  submit  a  statement  to  the  Ministry  of  Culture  which 
identifies  his  “real  owner”.  Every  change  of  the  “real  owner”  has  to  be  published  and 
notified  by  the  Ministry  and  the  Ministry  has  to  publish  the  information  on  its  own 
internet site, Art. 7a (5). This publishing obligation is fulfilled by the Ministry, but not all 
publishers  have  submitted  a  statement.  There  is  no  publicly  available  data  if  sanctions 
have been imposed.  

The notion “real owner” is defined as “the natural persons, who are the end beneficiaries 
of  the  ownership  in  the  legal  person,  who  individually  or  through  related  parties 

24 

25 

Decision No. 1098 from 30 August 2011. 
State  Gazette  No.  108  from  29  December  2009,  last  amendments  State  Gazette  No.  101  from  28 
December 2010. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

participates in the publisher”. According to the motives to the law, the amendments shall 
guarantee  the  transparency  of  the  press  ownership  and  the  effective  protection  of  the 
human rights such as the protection of the honesty and reputation. 

For  broadcasters  there  are  no  obligations  related  to  the  “real  owner”,  but  according  to 
Art.  125k  LRT,  the  CEM  has  to  maintain  a  public  register  for  the  linear  and  non-linear 
media  service  providers  and  the  operators  who  distribute  Bulgarian  and  foreign 
programmes. The register is publicly available on the web page of the CEM.26 However, 
the register contains only the information about which legal entity owns a certain media 
service  provider.  Often,  this  information  is  worthless,  because  they  are  offshore 
companies. 

E.g.  some  journalists  estimate  that  Tzvetan  Vassilev  is  the  real  natural  person  who 
stands  behind  the  offshore  company  “Crown  Media”,  which  owns  the  television 
programmes  TV7  and  Super  7.27  The  same  person  is  owner  of  the  Central  Cooperative 
Bank, which is connected to firms like “New Bulgarian Media Group Holding” JSC. The last 
one tried to monopolise the press publishing and distributing market by acquiring quite a 
number of publications during the last years. It is remarkable that this group has never 
fulfilled its obligation to publish and inform the Ministry of Culture about the “real owner” 
of the publications. 

Attention  must  also  be  paid  to  the  fact  that  the  Cyprus  offshore  company  Mancelord 
Limited, which acquired 50 % of the NURTS, has been represented in Bulgaria by Tzvetan 
Vassilev as  well. On the other hand a great  amount of the state money (ministry funds 
and  funds  of  state  owned  companies)  is  deposited  in  the  Central  Cooperative  Bank. 
According to reports in the press from 16 February 2012 the European Commission has 
begun checking unacceptable state-aid for the bank.28 

How exactly Tzvetan Vassilev is connected to the press, electronic media and the media 
distribution market and who might stand behind him, is not clear. But all this shows that 
there is no media ownership transparency in Bulgaria and no authority for overviewing it. 

- Accountability of public service media 

According to Art. 68 (1) P. 8 LRT the general directors of the public service media, BNT 
and  BNR,  have  to  prepare  the  annual  financial  reports  concerning  their  budgets.  The 
Managing Boards of BNT and BNR approve the financial reports. The National Audit Office 
controls the legal implementation of the budgets according to the rules of the Law on the 
National  Audit  Office.29  This  act  applies  to  all  institutions  which  spend  state  funds,  but 
there is no special control as regards the fulfilment of BNT’s and BNR’s public tasks.  

Since  June  2007  the  BNT  publishes  on  its  website  semi-annual  reports  about  its 
activities,  e.g.  about  new  programme  formats,  new  film  series,  audience  shares  of  the 
various  programmes,  the  activities  of  the  regional  programmes  and  international 
activities. These reports are not mandatory and they only have the function to inform the 
public.  Hence  it  follows,  that  there  are  no  publicly  available  reports  on  the  activities  of 
BNR. 

26 

27 

28 

29 

http://www.cem.bg/public_reg.php?action=1.
 
http://www.glasove.com/misteriya-okolo-mistur-ikonomika-17861.
 
http://www.trud.bg/Article.asp?ArticleId=1233044.
 
State Gazette No, 98 from 14 December 2010, last amendments State Gazette No. 99 from 16 December
 
2011. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Freedom of information laws 

State  and  local  authorities  are  obliged  to  provide  information  of  public  significance 
according to the procedures of the Law on access to public information30. Any citizen of 
the Republic of Bulgaria is entitled to get all information which is necessary to inform the 
citizens’  fully  and  objectively,  from  public  institutions.  This  right  is  often  used  by 
journalists,  especially  the  legal  possibility  to  appeal  to  the  court  in  case  of  an  unlawful 
refusal of access to information by the institutions. 

- Accessibility of products/services and distribution networks 

The  public  broadcaster,  BNT  and  BNR  are  obliged,  according  to  the  media  content 
legislation, to provide media services for all citizens of the Republic of Bulgaria (Art. 6 (3) 
LRT).  The  network  operators  have  to  distribute  the  programmes  of  BNT  and  BNR 
according to the modalities of § 3 of the Transitional and Final Provisions of the LEC. 

  “Have a Say on ...” 

Every  natural  or  legal  person  may  submit  a  complaint  against  a  radio  and  television 
broadcaster  to  the  CEM.  The  CEM  has  internal guidelines  on  how  to  proceed  with  these 
complaints.  According  to  the  last  report  of  the  CEM,  there  were  229  complaints  filed  in 
the first half of 2011. 58 of them were connected to the programme content and quality 
and  22  were  in  connection  with  the  right  to  reply  and  to  get  access  to  recorded 
broadcasting content.31 

2.2.3.2.  Main Players in the Media Landscape 

2.2.3.2.1. 

Radio 

The  private  Bulgarian  radio  landscape  consists  of  four  major  groups.  Until  November 
2011, they all were owned by international companies, when the SBS Broadcasting was 
acquired  by  the  A.E.  Best  Success  Services  Bulgaria  Ltd.,  a  company  registered  in 
Bulgaria but owned by an offshore company. The remaining three foreign groups are the 
Communicorp.  Group,  the  Balkan  News  Corporation  and  the  Emmis  International 
Holding.  All  of  their  radio  stations  are  licensed  as  regional  programmes  but  constitute 
nationwide radio chains. There is only one independent private radio station which has a 
single nationwide license and coverage, the news radio programme Darik.  

On a public side of the radio landscape there is only the Bulgarian National Radio (BNR) 
which  broadcasts  8  regional  programmes  and  three  nationwide  programmes  (Horizont, 
Hristo Botev and Bulgaria). 

Altogether  CEM  has  issued  260  licenses  for  terrestrial  radio  broadcasting  and  has 
registered 32 radio programmes for broadcasting via cable and satellite.32 

30	 

31	 

32	 

State Gazette No. 55 from 7 July 2000, last amendments State Gazette No. 39 from 20 May 2011. 
CEM,  Activity  report  for  the  period  between  01.01.2011  and  30.06.2011,  p.  16,  available  at 
http://www.cem.bg/cat.php?id=110. 
The list of these programmes is available at: http://www.cem.bg. in a form of an extract from the public 
registry kept by the CEM. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 10 BG: Main radio broadcasters 

Companies 

Ownership 
Structure 

Main Radio Stations 

Audience 
Listenership* 

BNR 

Agency 
Ltd. 

Vitosha 

Service 

Public 
Broadcaster 
A.E.  Best  Success 
Services Bulgaria Ltd. 

Horizont 
Hristo Botev 
Vesselina 
Vitosha 
The Voice  
Magic FM 
Express 
Darik 

Signal Plus Ltd. 
Radio 1 Ltd. 
Radio Tangra JSC  Limited or through 
Metro radio Ltd. 

Darik Radio JSC 
Communicorp.  Group.  Radio 1 

Veronika  
Radio  BG Radio 
City 

Metro 
International LLC 

Radio 1 Rock 

Bulgarian 
Company Ltd. 

Radio 

Radio Company CJ 
Ltd. 

Communicorp.  Group. 
Limited    (77  %),  NRJ 
Ltd.(11  %),  Media 
Team  Ltd.(11  %)  and 
Liliana  Drumeva  (11 
%) 
Balkan 
Corporation 
R 1 Ltd. 
Emmis 
Holding 

News 

NJoy 
Jazz FM 
Classic FM 
Fresh 
FM + 

29 % 
10.3 % 
22 % 
7.1 % 
4 % 
3.5 % 
-
17.4 % 
13.6 % 
9.9 % 
9.8 % 
6.9 % 

6.5 % 

12.2 % 
3.4 % 
3 % 
9.8 % 
8.2 % 

International 

Pleven Plus JSC 
Radio FM + JSC 
* Audience Listenership second half of 2011, + 18 years, multiple answers were possible.  
Source: Alpha Research, available at: 
http://alpharesearch.bg/bg/marketingovi_izsledvania/danni_i_publikacii/Radio_auditoria. 
html 

2.2.3.2.2. 

Television 

The  Bulgarian  television  market  is  dominated  by  two  international  media  groups:  the 
Modern Times Group MTG AB (MTG) and the Central European Media Enterprises (CME). 
Due  to  several  significant  transactions  MTG  acquired  in  2007  a  few  programmes 
transmitted only via cable and satellite and in 2008 the terrestrial programmes NOVA TV, 
Nova+ and 80 % of EVA magazine. At present, five more television programmes belong 
to the group of Bulgaria’s second most-watched programme Nova (licensed for analogue 
and  digital  terrestrial  transmission  and  via  cable  and  satellite),  Nova  Sport,  KinoNova, 
Diema and Diema Family.   

In July 2008 CME bought 80 % of TV2 (today bTV Action), Ring TV (today Ring.BG) and 
Mila radio station (today bTV Radio). Moreover in 2010 CME acquired the most watched 
TV-channel  bTV  and  the  programmes  bTV  Cinema  and  bTV  Comedy.  Besides  CME 
acquired the rest of the shares of TV2 and launched with bTV Lady a new TV programme 
in 2012. Accordingly CME has six television programmes – bTV, bTV Action, bTV Cinema, 
bTV Comedy, bTV Lady and Ring.BG.  

Besides  these  two  dominant  groups  the  cypress  Offshore  Company  Crown  Media  holds 
two licenses for terrestrial digital broadcasting according to the controversial Must-Carry 
Rules of the LRT,33 namely for the programmes TV 7 and Super 7. 

33 

See above 2.2.3.1.2. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  Bulgarian  public  television  broadcaster  BNT  distributes  one  programme  with  a 
national analogue terrestrial coverage (BNT 1), one cable and satellite programme (BNT 
World);  one  programme  with  regional  analogue  terrestrial  coverage  in  18  regions  (BNT 
2)  and  one  licensed  programme  for  terrestrial  digital  coverage  at  the  territory  of  Sofia 
(BNT Sofia).   

Table 11 BG: Main television broadcasters 

Broadcaster 

bTV  Media  Group 
JSC 

Ownership 
Structure  
CME Bulgaria BV 

Main 
Stations 
bTV 
bTV Comedy  
bTV Cinema 
bTV Action 
Ring.BG  
bTV Lady 

Nova 
Broadcasting 
Group JSC 

Broadcasting  Nova 

MTG 
AB (95 %) 
Apace  Media  JSC  (5  Diema Family 
%) 

Diema  

BNT 

Public 
broadcaster 

service 

TV 7 Seven JSC 

Crown Media JSC 

KinoNova 
Nova Sport 
BNT 1 
BNT World 
BNT 2 
BNT Sofia 
TV 7 
Super 7 

TV 

Audience share*  Market share** 

36.1 % 
2.5 % 
1.8 % 
1.9 % 
0.3 % 
-
14.6 % 
2.9 % 
2.6 % 
2.5 % 
0.2 % 
5.5 % 
0.3 % 
-
-
-
-

46.1 % 
1.4 % 
1.4 % 
0.8 % 
0.5  
-
14.5 % 
3 % 
2.3 % 
1.5 % 
0.3 % 
7.6 % 
0.5 % 
-
-
1.4 % 
0.3 % 

* 2011, Target All Day Audience Share. Source: TNS TV/Plan. 

** 1st week of 2012, for audiences from 3 years, source: GARB, Bulgaria, available at: 
http://garb.bg/online/resources_top_40.htm 

2.2.3.2.3. 

Press and Publishing 

Since  1997,  the  main  player  on  the  Bulgarian  newspaper  market  was  the  “Newspapers 
Group Bulgaria” which belonged to the German WAZ Media Group. The group published 
the  most  sold  dailies  “24  hours”  (“24  chasa”)  and  “Work”  (“Trud”),  the  weekly 
newspapers “168 hours” and other newspapers and magazines. In December 2010, WAZ 
sold its Bulgarian company to the Media Group Bulgaria - Holding Ltd. 

Another  important  role  on  the  press  market  plays  the  “New  Bulgarian  Media  Group 
Holding”  JSC.  It  publishes  inter  alia  the  dailies  “Monitor”,  “Telegraph”  and  the  weekly 
“Politic”.  Of  some  importance  is  also  the  Bulgarian  Economedia  Group.  It  publishes 
newspapers and magazines dedicated mainly to readers who are interested in business, 
such as the daily Dnevnik and the weekly Capital. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 12 BG: Main publishing companies 

Publishing 
Companies 

Ownership Structure  

Main Titles 

Readership* 

Group 
Media 
Bulgaria  –  Holding 
Ltd. 

Lubomir Pavlov (43 %)  
Ognyan Donev (40 %) 
BG Printmedia Ltd. (17 %) 

Balkan Media Company JSC 

New 
Media 
Holding JSC 

Bulgarian 
Group 

Economedia JSC 

24 chasa 
Trud 
168 hours 

Telegraph  
Monitor  
Politic 

Teodor  Zahov  (49  %)  through  T3 
Media Ltd. 
Ivo Prokopiev (51 %) through Agency 
for Investor Information Ltd.  

Dnevnik 
Capital 

18.9 % 
17.1% 
5.4 % 

17.9 % 
2.5 % 
-

1.0 % 
1.5 % 

*  Readership  second  half  of  2011,  +  18  years.  Source:  Alpha  Research,  available  at: 
http://alpharesearch.bg/bg/marketingovi_izsledvania/danni_i_publikacii/chitatelska_audi 
toria.html 

2.2.3.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Since 2010, when the new provision regarding the registration of providers of non-linear 
services  entered  into  force,  14  providers  have  been  registered  by  the  CEM.34 
Unfortunately, there is no data about the usage of these services. 

In connection with the usage of the internet according to data of Alpha Research Agency 
for  the  second  half  of  2011,  48  %  of  the  population  up  to  18  years  use  the  internet.35 
After the checking of email, surfing for fun, looking for a specific information, the reading 
of  on-line  editions  of  newspapers  and  looking  for  news  published  only  on-line  is  on  a 
fourth place of all activities (29 % of the population).  

34	 

35	 

The list is available at: www.cem.bg/public_reg.php?action=5. 
Available at:  
http://alpharesearch.bg/bg/marketingovi_izsledvania/danni_i_publikacii/internet.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 13 BG: Main internet content providers  

Companies 
Dir.BG JSC 
bTV Media Group JSC 
Investor BG JSC 

Ownership Structure 
Dir.BG Holding 
CME Bulgaria BV 
public traded company 

Sportal BG JSC 

Stilian Shishkov (60 %) 
Dimitur Marin (40 %) 

Signal Plus Ltd. 
Media  Group  Bulgaria
Holding Ltd. 

Economedia JSC 

Darik Radio JSC 

–  Lubomir Pavlov (43 %)  
Ognyan Donev (40 %) 
BG Printmedia Ltd. (17 %) 
Teodor  Zahov 
through T3 Media Ltd. 
(51  %) 
Prokopiev 
Ivo 
through Agency for Investor 
Information Ltd. 

(49  %) 

Name* 
dir.bg 
btv.bg 
start.bg 
dnes.bg 
investor.bg 
sportal.bg 
hotnews.bg  
novini.bg 

dariknews.bg 
24chasa.bg 
trud.bg 

dnevnik.bg 
capital.bg 

Reach** 
34.71 % 
29.02 % 
22.17 % 
14.66 % 
4.59 % 
18.85 % 
16.85 % 
11.99 % 

13.99 % 
13.21 % 
9.58 % 

12.77 % 
5.92 % 

* 
//www.audience.bg/pages/display/reach. 

December 

2011. 

Source: 

gemiusAudience, 

available 

at: 

** The percentage of visitors (real users) who generated at least one page view on the 
monitored  web  site  within  the  given  time  period  to  the  total  number  of  internet  users 
within a given time period. 

2.2.3.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

According  to  the  last  CRC  report  (end  of  2010),  Bulgaria  has  433  registered  cable 
network operators, but the number of the operators which really provide these services is 
340.36 The main players in the big cities are Blizoo Media and Broadband SJC (a merger 
of  Cabletel  and  Evrocom),  Evrotursat  TV  SJC,  M  Sat  SJC,  Skat  Ltd. There  are  two  main 
satellite  network  operators,  Bulsatcom  SJC  and  Vivacom  (the  new  brand  name  of  the 
former  telecommunication  monopolist  BTC).  IPTV  is  becoming  more  popular,  as  of  the 
end of 2010 there were 25 operators. One of the more important is Vestitel BG SJC which 
belongs to the gas distributing company, the Overgas Holding SJC. The company cleverly 
linked the gas pipeline network with the expansion of the IPTV-network. 

The most relevant internet service providers are the Vivacom, Blizoo, Easy Lan, Nexcom, 
Net  is  Sat,  Orbitel,  SpectrumNet,  Trance  Telecom,  Digital  Systems,  Max  Telecom.  The 
total number of the registered operators is 589. 

36 

Available at: http://www.crc.bg/files/_bg/II_072010_atlastfinal.pdf. 

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Table 14 BG: Main Cable/Satellite network operators and IPTV providers 

Main 
network operators 

Cable/Satellite 

Ownership Structure  

Subscription 

(in thousand)* 

Market 
share** 

IPTV providers 

Cable 

Blizoo 
Broadband SJC 

Media 

Satellite 

Vivacom 

IPTV 

Vestitel 

and 

Bultel Cable Bulgaria SJC 

1,231.1 

54 % 

Bulgarian 
company SJC 

telecommunication 

450 

31.3 % 

Overgas Holding SJC 

7,2 

0.1 % 

*  The  subscriber  number  is  given  per  market  segment  (cable,  satellite,  IPTV)  not  per 
provider.  Applicable  data  of  the  subscription  of  the  main  providers  is  missing.  Source: 
Year Report CRC 2010, available at: 
http://www.crc.bg/files/_bg/II_072010_atlastfinal.pdf. 

**  The  market  share  data  is  given  per  market  segment  not  per  provider.  Applicable 
data  of  the  market  shares  of  the  main  providers  is  missing.  Source:  Year  Report  CRC  
2010, available at: http://www.crc.bg/files/_bg/II_072010_atlastfinal.pdf. 

2.2.3.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The  table  below  outlines  the  Audience/Readership/Usage  share  and  the  share  of 
advertising revenue within the media sector: 

Table 15 BG: Share of advertising revenue within the media sector 

Media 

Audience/Readership/ 

Television 

Press 

Radio 

Outdoor 

Internet 

Usage share 

67.3 %* 

29.1 %* 

43.8 %* 

-

48 %** 

Advertising market shares 
*** 

65 % 

16 % 

8 % 

7 % 

4 % 

* The audience (TV and radio) and readership data as of 2009. Unfortunately there is no 
actual data. Source: Open Society Institute. 

** Internet users as of the second half of 2011, Source: Alpha Research Bulgaria. 

*** Data as of 2010, Source: Piero 97/TV Plan TNS.  

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2.2.3.3.  Conclusion and Recommendations 

The freedom of expression, the freedom of the media and the freedom of information are 
guaranteed  in  the  Bulgarian  Constitution,  Legislation  and  in  the  Code  of  Conduct 
concerning  the  media.  However,  there  are  some  legal  regulations  which  weaken  these 
guarantees. This applies in particular to the inadequate protection of information sources 
(Art. 15 LRT), the unbalanced rules for election advertising in public programmes and the 
restriction for the transmission of parliamentary sessions to public broadcasters. 

Furtheron, the current legislation does not provide sufficient guarantees for CEM and CRC 
members,  as  far  as  these  concern  the  independence  from  political  powers  or  economic 
interests,  mainly  due  to  the  fact  that  they  are  directly  appointed/elected  by  state 
institutions without a special legal provision  for their nomination. It could be considered 
as a positive input on their independence, if the number of institutions having the right to 
nominate the members would be expanded, preferably by organisations and institutions 
of civil society, and if only the parliament would have the right to elect the members by a 
qualified majority instead of the simple majority foreseen at present. 

At  the  beginning  of  the  summer  2010  a  working  group  has  been  established  by  the 
Council  of  Ministers.  It  had  to  prepare  a  draft  for  the  new  Law  on  radio  and  television 
until the End of November 2010. The major issue of the new Law was the reform of the 
public  broadcasters.  But  until  today  there  is  no  such  draft  and  no  public  information 
about any results of or its continued existence. Apparently the existing law satisfies the 
major  political  interests.  According  to  current  reports,  there  are  amendments  in 
discussion  which  concern  the  merger  of  the two  public  broadcasters,  BNR  and  BNT,  but 
do not consider their structural and financial strengthening. Obviously there are also no 
considerations  with  regard  to  an  enforcement  of  the  independence  of  the  media 
authorities  (CEM,  CRC)  from  governmental  influence.  A  restructuring  of  the  CEM  would 
help to improve the structural independence of BNT and BNR. In regard to the financial 
strengthening of the public broadcasters the future law should moreover include rules on 
how  to  determine  their  financial  needs  and  on  an  independent  commission  examining 
them on legally prescribed remits and their implementation by programmes. The budget 
should then be included into the State budget for the financing of BNR and BNT.  

Furthermore, the fact is remarkable that Bulgaria has no specific media concentration law 
and  that  the  regulations  for  ownership  transparency  are  incomplete  and  inconsistent. 
Although  there  is  the  legal  duty  to  disclose  the  economically-benefiting  natural  person 
behind a print media publishing company (“real owner”), this obligation is neither fulfilled 
by  all  concerned  nor  enforced  consistently  by  the  authorities.  Moreover,  this  regulation 
ignores  the  whole  electronic  media  market  and  its  importance  for  the  formation  of 
opinions. According to the statement of the chairman of the Commission for Protection of 
the  Competition  (CPC),  given  in  an  interview  for  “mediapool.bg”  on  10  February  2012, 
the Commission “ … has no power to examine who is behind the straw man and therefore 
it  reviews  only  the  obvious  form  of  ownership  of  the  companies”.37  Therefore,  it  is 
advisable  that  the  legislator  strengthens  the  Commission’s  powers  in  this  respect.  If 
Bulgaria  adopts  special  rules  and  regulations  on  media  concentration,  a  special 
department  at  the  CPC  could  efficiently  review  these  cases,  because  it  has  the  expert 
knowledge, experience and a large databank.  

The  Bulgarian  legal  framework  with  regard  to  the  digitalisation  shows  no  sufficient 
system but gives the impression of an at least partially case-related regulation with some 
inconsistencies in terms of European Union law. Therefore, the European Commission has 

37 

Available at http://www.mediapool.bg. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

already  taken  initial  steps  of  an  infringement  procedure.  In  question  is  inter  alia  the 
Bulgarian  provision  that  an  operator  of  a  digital  multiplex  may  not  be  a  broadcaster  at 
the same time, wherefore the ORF was excluded from the application procedure of 2009. 
On  the  other  hand,  the  strict  enforcement  of  this  incompatibility  regulation  is  highly 
questionable if the permits for the digital “Stage One” are given to an offshore company 
(NURTS),  which  is  naturally  not  accessible  to  full  transparency.  Beyond,  the  Bulgarian 
must-carry  rules  for  the  digital  spectrum  seem  to  be  questionable  for  it  concerns  their  
ability  to  ensure  pluralism.  Because  in  consequence  of  their  application  essentially  only 
two  families  of  channels  dominate  the  digital  capacity.  Also  for  the  remaining  capacity 
spectrum no sufficient criteria for plurality have been established yet. Finally, it is already 
clear that Bulgaria can not comply with the European timelines for the digitalisation, even 
after it revised its digitalisation plan. 

It  remains  that  Bulgaria  needs  to  review  its  media  legislation,  especially  with  regard  to 
the  implication  of  digitalisation.  But  also  the  legal  standards  concerning  pluralism, 
transparency  and  the  fundamental  freedom  of  the  media  such  as  the  freedom  of 
expression, need to be reviewed and further developed.  

The  experience  of  recent  amendments  to  the  media  laws  show  that  important  changes 
were always adopted immediately before parliamentary elections. Following this rule, an 
amendment  can  not  be  expected  until  2013.  Whether  it  will  meet  the  requirements 
described remains to be seen.   

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CYPRUS 


2.2.4.	 

Cyprus 

Cyprus joined the European Union in May 2004 as a divided country. The jurisdiction of 
the Republic of Cyprus extends to the whole island, but it was accepted that the acquis 
communautaire/unionaire  fully  applies  to  the  territory  under  the  Republic's  government 
effective  control,  until  the  island  is  re-united.  The  information  provided  in  the  present 
report  refers  to  the  institutional  framework  of  the  Republic  of  Cyprus  and  the  media 
operating under effective authority of its government. 

2.2.4.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.4.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

Freedom of expression is guaranteed under article 19 of the Constitution. 

Article 19 of the Constitution provides for “the right to freedom of speech and expression 
in  any  form”  and  its  component  rights,  the  “formalities,  conditions,  restrictions  and 
penalties” that govern its exercise, the case of eventual seizure of newspapers and other 
printed matter by the authorities and the authority of the Republic to require “licensing of 
sound and vision broadcasting or cinema services”. 

“Article 19. 

1. Every person has the right to freedom of speech and expression in any form.  

2. This  right  includes  freedom  to  hold  opinions  and  receive  and  impart  information  and 

ideas without interference by any public authority and regardless of frontiers. 

3.  The  exercise  of  the  rights  provided  in  paragraphs  1  and  2  of  this  Article  may  be 
subject  to  such  formalities,  conditions,  restrictions  or  penalties  as  are  prescribed  by 
law  and  are  necessary  only  in  the  interests  of  the  security  of  the  Republic  or  the 
constitutional order or the public safety or the public order or the public health or the 
public  morals  or  for  the  protection  of  the  reputation  or  rights  of  others  or  for 
preventing the disclosure of information received in confidence or for maintaining the 
authority and impartiality of the judiciary. 

4. Seizure  of  newspapers  or  other  printed  matter  is  not  allowed  without  the  written 
permission  of  the  Attorney-General  of  the  Republic,  which  must  be  confirmed  by  the 
decision of a competent court within a period not exceeding seventy-two hours, failing 
which the seizure shall be lifted. 

5. Nothing in this Article contained shall prevent the Republic from requiring the licensing 

of sound and vision broadcasting or cinema enterprises.” 

One  may  notice  that  the  requirement  for  any  constraint  to  freedom  of  expression  to  be 
'necessary  in  a  democratic  society'  is  missing  from  the  above  definition.  It  is  also 
noteworthy that the Attorney General, who is also the legal advisor of the government, is 

163 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

the authority that initiates seizure of a newspaper or printed matter, and not the court, 
which nevertheless can intervene on the issue within seventy-two hours. 

Article  18  of  the  Constitution  guarantees  freedom  of  thought,  conscience  and  religion, 
stipulating  that  “all  religions  are  equal  before  the  Law”;  it  also  makes  provision  for  the 
effective exercise and profession of faith and religion. 

Article  20  provides  for  the  “right  to  freedom  of  peaceful  assembly”  and  the  “right  to 
freedom  of  association,  including  the  right  to  form  and  to  join  trade  unions  for  the 
protection of own interests”. 

	  Safeguards on regulatory authorities 

The  Constitution  of  the  Republic  of  Cyprus  contains  no  provisions  regarding  regulatory 
authorities. 

	  Safeguards on “universal service” 

Article  171  provides  for  the  broadcasting  of  sound  and  vision  programmes  according  to 
specific  quotas  in  Greek  and  Turkish  languages  (for  the  Greek  and  the  Turkish 
communities). 

2.2.4.1.2. 

Media order (de lege lata and de facto) 

	  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The  broadcasting  law,  Ο  περί  Ραδιοφωνικών  και  Τηλεοπτικών  Σταθμών  Νόμος  [Law  on 
Radio  and  Television  Stations]  L.  7(I)/1998  that  incorporates  fundamental  provisions  of 
the European Union AVMS Directive, voted in 2010 and 2011, provides in article 14 that 
the 
to  serve 
broadcasting 
powers/prerogatives  of  the  regulator  established  by  the  law,  the  Radio  and  Television 
Authority (art. 3(2)), are the following: 

licences  are  granted 

interest.  Among 

the  public 

	  To  “ensure  the  editorial  and  creative  independence  of  the  employees  of  the 
interferences, 

audiovisual  media  services  provider  and 
interventions and influencing their editorial and creative work”; 

to  avert/disallow 

	  To “oversee the real ownership situation of the AVMS providers aiming at ensuring 
their  independence,  as  well  as  excluding  any  tendencies,  actions  or  attempts    for 
concentrations, oligopolies or monopolies” in the media.  

Editorial  and  creative  independence  are  also  among  the  criteria  for  assessing  an 
application for a license, along with the capacity of the applicants to ensure pluralism and 
maximum access in their programmes (art. 22.(1)(d)).  

The law makes provision for ensuring broad coverage of broadcasting services, requiring 
a free-to-air or AVMS provider to cover at least 75% of the population in order to get an 
'island-wide' licence. It is noteworthy that 67.4% of the population lives in urban areas, 
and  the  above  obligation  might  exclude  most  remote  communities  from  access  to 
television broadcasting. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Article 26 of the Law on Radio and Television Stations provides for the obligation of radio 
and  television  organisations  to  provide  programmes  characterised  by 
fairness, 
completeness,  pluralism  and  maximum  access  of  the  public  and  its  agents,  respect  for 
the dignity, reputation and the private life of individuals and respect for democratic ideals 
and  human  rights.  In  the  same  article  there  is  special  reference  to  news  and  current 
affairs programmes, required to feature fairness and pluralism. 

There  is  no  online  media-specific  legislation,  except  for  Video  On  Demand,  and  the 
operations of cable and satellite audiovisual services remain also unregulated. This poses 
among other a serious problem of fair competition, where cable and IP TV providers are 
subject to no rules with regard to content or rights on content. 

The  Office  of  the  Commissioner  of  Electronic  Communications  and  Postal  Regulation 
decides  on  technical  and  operational  aspects,  while  the  Competition  Commission 
examines competition. The issue of regulating cable and satellite was raised in the course 
of  discussions  for  the  adoption  of  the  AVMS  Directive  and  the  introduction  of  digital 
television, but no decision was taken. In a recent case, CYTA was granted a licence for IP 
television CYTAVISION CINEMA and CYTAVISION SPORTS without having the required by 
the law ownership structure. The Authority gave the company a three months deadline to 
settle the matter. 

The Corporation's obligations as public service broadcaster were set in regulations voted 
in  2003,1  which  provide  for  specific  quota  for  information,  culture  and  entertainment 
programmes. Thus, the broadcaster's public service remit is limited to a “balanced set of 
services”, meaning at least 40% of television programming dedicated to information and 
10%  to  cultural  programmes,  and  a  maximum  of  50%  of  entertainment  programmes. 
The  respective  quota  for  radio  services  are  25%,  5%  and  70%.  Regulations  4,  5  and  6 
list the type of programmes that fall under each of the above categories. 

The  Press  Law  (ο  Περί  Τύπου  Νόμος)  L.  145/1989  sets  no  prerequisites  for  the 
publication  of  a  newspaper  or  a  magazine  in  the  Republic  other  than  the  registration  of 
the title with the Minister of the Interior.2 With regard to ownership the law requires that 
the owner(s) of the publication be named on the registration form, or following a change 
in ownership, with their details; no details are asked to be communicated with respect to 
shareholding  (if  any)  and  no  restrictions  exist  in  relation  to  ownership  concentrations, 
mergers or other changes. 

- Media pluralism/ownership; competition law aspects 

Ownership  in  the  press  sector  is  completely  free  of  any  rules  or  constraints.  The  only 
requirement  of  the  law  with  respect  to  publishing  a  newspaper  or  a  magazine  (defined 
according to periodicity) is to register the title and name of the person (legal or natural) 
that owns it. Changes in ownership have to be reported by the new owner(s). The details 
of  the  owner(s)  and  the  name  of  the  person  responsible  under  the  law  –  in  case  a 
company is the owner - should be published on every issue on a page of the newspaper 
or magazine (Press Law, articles 9, 11, 13). 

In the case of the electronic media, following the incorporation of provisions of the AVMS 
Directive  into  Cyprus  law,  its  coverage  is  no  more  radio  or  television  stations  alone  but 
radio and television organisations and AVMS providers.  

1 

2 

Normative Administrative Acts, KDP 616/2003, Official Gazette, 25.7.2003.
 
The procedure goes through the Press and Information Office, the government's publicity services. 


165 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Ownership  issues  are  thoroughly  examined  during  the  licensing  procedure.  Information 
about  shareholders,  shares,  and  funding  sources  (loans  etc)  must  be  provided  in  the  
application, including a declaration under oath by every shareholder as to shares owned 
and  kinship  relations.  Several  provisions  in  article  19  of  the  law  on  Radio  Television 
Stations L.7(I)/1998 aim at limiting both horizontal and vertical ownership concentrations 
in the media sector. The main objectives are to:  

	  Limit  direct  or  indirect  interests/control  in  a  licensee's  share  capital  to  a  ceiling  of 
25%,  except  in  the  case  of  a  radio  organisation  with  local  coverage,  where  the 
ceiling is 40%, and a radio organisation with small local coverage, where no ceiling 
is required; 

	  Apply the ceiling to both legal and natural persons, including relatives up to second 

degree or husband and wife and to companies linked as affiliated or else; 

	  Further  breaking  down  to  a  ceiling  of  10%  shareholding  in  companies  that  hold 

shares in a licensee; 

	  Limit  participation  in  decision  making  bodies  of  the  licensed  organisation  and 
companies  holding  shares  in  its  capital,  in  a  way  that  the  same  persons  do  not 
participate in more than one media; 

	  Ensure that no license is transferred to persons other than those that were granted 

it; 

	  Ensure  transparency  in  shareholding,  where  if  company  B  holds  shares  in  a 
company  A,  where  company  A  is  a  shareholder  in  a  Licensed  company  L,  then 
company B can have only natural persons as shareholders, and; 

	  Ensure  that  no  changes  in  shareholding,  decision  making  officials  or  the 
memorandum of association of the licensee take place without the Authority's prior 
approval. 

The only exception in requiring the Authority's prior approval for transfers of shares is for 
broadcasting organisations listed in the stock market; the Authority's approval is required 
only in cases where the transfer results in one's shares go beyond or below a threshold 
of 5% of the licensee's share capital. 

No one can have more than a television license and no one can have more than a radio 
license  (article  18)  which  means  that  a  person  can  own  one  radio  and  one  television 
organisation. Networking between channels is prohibited. 

Foreign, meaning non-EU, ownership is possible only to a ceiling of 5% per person, with 
a  maximum  foreign  ownership  set to  25%.  In both  cases the  approval  of  the  council  of 
ministers is required. 

With regard to cross media ownership, a company cannot be granted a licence for radio 
or  television  if  its  shareholders  hold  shares  of  more  than  5%  in  a  publishing  house, 
newspaper or magazine or  more than 5% in a radio or in a television organisation with 
national coverage. 

Similarly, no company is granted a radio organisation licence if it owns or controls in any 
way more than 5% shares in a publishing house, newspaper or magazine or more than 
5% in a television organisation with national coverage. A television license is not granted 

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to  a  company  whose  shareholders  own  or  control  in  any  way  more  than  5%  in  a 
publishing house, or newspaper or a magazine. 

One of the main problems is to ascertain the beneficial owners of shares, which prompted 
the  Authority  to  take  measures,  such  as  interviews  with  the  interested  persons  and 
other, before proceeding to granting a licence. 

With  no  provision  made  for  the  media  sector  in  the  relevant  laws,  it  is  up  to  the 
Commission  for  the  Protection  of  Competition  to  examine  a  case  with  regard  to  the 
general  competition  and  mergers  rules.  A  prominent  case  in  this  respect  emerged  in 
2004,  when  the  Commission  found  that  exclusivity  rights  granted  by  Κυπριακή 
Ομοσπονδία  Ποδοσφαίρου [Cyprus Football Federation – KOP) to pay-TV channel LTV for 
television  transmission  of  football  matches  breeched  the  competition  laws.  The 
Commission consequently granted the two partners individual exemption. This meant for 
LTV  continuing  to  have  exclusivity  rights  on  football  transmissions  until  2011.  Recourse 
to  the  Supreme  Court  by  ANTENNA  television  channel  and  CYTA,  provider  of  IP  TV 
MiVision led to the Court cancelling the Commission's decision in 2007 and giving football 
clubs  the  right  to  individually  negotiate  the  rights  for  televised  transmission  of  their 
football matches. The market of sports television rights is now fully open to competition 
with more players, albeit with viewers needing a multiplicity of subscriptions in order to 
watch sports.3 

The Competition Commission has  little to do on the general issue of company mergers; 
given  that  no  change  in  licensed  companies/organisations  can  take  place  without  prior 
approval by the Radio Television Authority, it is likely that no such issue can come before 
the  Commission;  it  has  to  be  resolved  in  compliance  with  the  Law  on  Radio  and 
Television Stations 7(I)/1998. The Competition Commission, however, can have a role on 
agreements  of  cooperation/alliance  with  others,  in  particular  on  content  and  exclusive 
rights. Thus, among others, in February 2012 it started an investigation on an agreement 
offering  CYTA  exclusive  rights  on  the  programme  of  NOVA  Greece;  the  case  was 
forwarded  to  them  by  the  Commissioner  of  Electronic  Communications  and  Postal 
Regulation because “the law does not give the Commissioner authority to examine issues 
of content or exclusive television rights”.4 

In  sum,  the  operation  of  cable  and  satellite  services  providers  in  a  legal  vacuum  allows 
them to compete with broadcasters from a privileged position; offering tens of different 
channels,  these  operators  offer  also  internet  services  and  telephony  along  with  cellular 
telephony. They have a clear advantage over the broadcasters. 

- Legal framework for psm; ability to fulfill their tasks 

The law governing the operation of the public broadcaster (RIK) is Ο  περί  Ραδιοφωνικού 
Ιδρύματος  Κύπρου  Νόμος  (The  Cyprus  Broadcasting  Corporation  Law),  which 
incorporates  in  Cap.  300A  also  the  main  provisions  of  the  AVMS  Directive.  According  to 
Article  16A,  voted  with  the  amending  Law  on  Cyprus  Broadcasting  Corporation  L. 
116(I)/2003, RIK was designated as the provider of public broadcasting services, while in 
art. 16B the Radio Television Authority was named as the quality supervisory body that 
would report yearly on RIK's fulfilment of its mission. 

3 

4 

See,  Christophorou  C.  'Cyprus'  in  Blackshaw,  I.  et  al.  (eds),  TV  Rights  and  Sport,  Legal  Aspects,  TMC 
Asser Press, Hague, 2009: 299-308, and merlin.obs.coe.int/iris/2011/9/article10.en.html. 
CYTA  is  the  Telecommunications  Authority,  which  has  not  yet  been  privatised  and  keeps  a  dominant 
position  in  the  market  of  telecommunications,  offering  also  Internet  services  and  IP  television.  See, 
http://www.ocecpr.org.cy/media/documents/Announcements/ElectronicCom/EC_Announc_Demosieuma_P 
hilelefterou_Gr_30-01-2012_PM.doc. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The public service broadcaster RIK is funded through an annual state grant, while at the 
same  time  it  is  allowed  to  have  advertising  and  undertake  other  commercial  activities. 
State  grants  replaced  the  old  system  of  a  special  fee  paid  by  each  household,  indexed 
later on electricity bills. Income from the State grant and advertising in recent years was 
as follows: 

Table 16 CY: State grant and income from advertising 

Revenue of the public service broadcaster RIK 

Income 

2006 

2007 

2008 

2009 

2010 

2011 

State Subsidy  25,279,575  25,893,558  30,886,007  31,914,610 

43,137,050 

40,000,000 

Advertising 

4,064,195 

4,796,283 

5,862,580 

5,121,518 

4,577,276 

n.a. 

Source: Annual reports of the Cyprus Broadcasting Corporation. 

- The role and functioning of regulatory authorities in these respects 

The law on Radio and Television Stations 7(I)/1998 provides for extensive powers to the 
Cyprus Radio Television Authority in all aspects and in a way to ensure its independence 
and  efficient  exercise  of  its  powers.  Its  jurisdiction  extends  also  to  some  degree  to  the 
public broadcaster, the Cyprus Broadcasting Corporation, even though it is governed by a 
different  law  and  a  body  of  governors.  The  Authority  oversees  in  particular  issues  of 
content,  in  particular  those  provisions  incorporating  the  AVMS  Directive,  and  the 
fulfilment  of  the  Corporation's  remit  as  a  public  service  body.  However,  with  the 
amending  Law5  transposing  the  AVMSD,  supervision  on  content  causing  feelings  of 
hatred based on race or other, and the need for protection of minors was omitted from 
the Authority’s powers. 

The powers invested in the Authority with regard to commercial providers, as well as to 
the  public  service  broadcaster,  are  extensive  and  all  its  decisions  are  executable 
irrespective  of  any  recourse  to  the  courts.  Judicial  review  exercised  by  the  Supreme 
Court  is  the  only  means  through  which  the  Authority's  decisions  can  be  cancelled.  The 
Authority can also refer a case to a court asking the issuance of an order or a prohibition, 
including a provisional order so that an end is put to a breach. 

Delays in the examination and decision-making is the main backdrop with regard to the 
regulator's performance that may affect efficient enforcement of the law. 

In  the  case  of  the  governing  body  of  the  public  broadcaster  RIK,  the  chairman  and 
members  are  appointed  by  the  council  of  ministers  for  three  years.  The  law  sets  no 
incompatibility  with  holding  an  office  in  a  political  party;  the  chairman  of  the  present 
board  of  governors  is  member  of  the  central  committee  of  a  political  party  and  several 
members  of  the  board  hold  high  positions  in  political  parties.  This,  and  incidents  of 
interference/pressures  by  political  forces  and  politicians  pose  a  problem  as  to  the 
potential of the board to enforce its authority and to achieving real independence of the 
public broadcaster. 

5 

Law on Cyprus Broadcasting Corporation, L. 117(I)/2010, Official Gazette, 10.12.2010, p.1019. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The  only  legal  instrument  that  warrants  the  right  to  access  to  information,  albeit  by 
media  only,  and  the  obligation  of  authorities  to  offer  access  to  requested  information  is 
the  Press  Law  (ο  Περί  Τύπου  Νόμος)  L.  145/1989;  article  7  provides  for  the  right  of 
journalists  to  seek,  receive  and  impart  information,  restricted  on  grounds  of  state 
security, public order, protection of individual rights and other.  

The definition of “journalist” in the law is broad as to cover all media professionals, both 
Cypriots and aliens, not only those in printed media or with editorial tasks alone. 

In contradiction to the above, a provision in the law on Public Service (Ο  περί  Δημόσιας 
Υπηρεσίας  Νόμος)  L.  1/1990  stipulates  that  all  kind  of  information  a  public  employee 
comes across in the exercise of his/her duties must be treated as confidential; it can be 
communicated  to  third  parties  only  following  authorisation  by  the  competent  authority, 
i.e. the minister as specified in the law. 

This often raises complaints on behalf of media professionals, while at the same time it is 
used by some officials as a way to expressly 'punish' media showing thus their discontent 
for their stance. 

In the same law, art. 9 provides for the right not to disclose one's sources of information, 
except  following  decision  by  courts  or  a  criminal  investigator  related  to  a  criminal  case 
and for reasons of a superior public interest. 

Libel and defamation was decriminalised in 2003 and is now a civil law issue;6 however 
media  professionals  express  grave  concerns  over  provisions  allowing  court  orders 
(provisionally) prohibiting publication on a subject.7 Libel cases against media is a fairly 
frequent phenomenon. 

In  addition  to  the  above,  the  Law on  the  Retention  of  Telecommunications  Data  for  the 
Investigation  into  Criminal  Offences,  L.183(I)2007,  was  found  by  the Supreme  Court  to 
be  in  breach  of  art.  17  of  the  Constitution  on  secrecy  of  communication  and  also  go 
beyond  the  scope  and  goals  of  the  Directive  2006/24/EC  on  data  retention.8  The  Court 
did not take into account the sixth amendment of the Constitution voted in the meantime 
(June  2010)  that  allowed  interference  with  the  right  to  secrecy  of  communication  in 
specific cases. 

In  May  2010,  the  police  proceeded  to  the  seizure  of  computers  for  personal  and 
professional  use  of  a  young  lawyer  in  the  framework  of  an  investigation  of  threats 
published  in  a  blog  suspected  to  be  managed  by  him.  It  appears  that  seizure  of 
computers in the framework of police investigations for suspected offences constitutes a 
regular  practice,  which  raises  concerns  for  interference  with  the  right  to  secrecy  of 
communication. 

6 

7	 

8	 

See  www.apostoloulaw.com/pdf_Defamation_Article.pdf;  for  more  details  see  www.osce.org/fom/41958, 
pp. 45-47. 
See Phileleftheros newspaper, 21/02/2009, p. 3, where legal experts, politicians and others express their 
views following a similar order against the newspaper. 
See http://merlin.obs.coe.int/iris/2011/4/article14.en.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Specific positive content obligations 

The law contains no provision on specific positive content obligations. 

- Funding schemes for specifically desired content 

No funding schemes exist for specially desired content. 

- Political advertising and/or broadcasting time 

In  accordance  with  article  45(1)  of  the  law  on  Radio  and  Television  Stations  7(I)/1998, 
which  stipulates  that  various  social  agents,  such  as  political  parties  and  candidates  to 
official  offices,  trade  unions  and  others  must  enjoy  fair  treatment  by  broadcasters, 
regulations  voted  in  April  20069  set  the  parameters  that  would  define  fairness 
(proportionality, presence in parliament and overall organisation). A new amendment of 
the  law,  in  2009,  extended  these  provisions  to  cover  elections  to  the  European 
Parliament.  Following  Supreme  Court  decisions  in  October  2002  and  September  2005, 
declaring a regulation banning political advertising as ultra vires of the law, amendments 
of  the  broadcasting  laws  were  voted  in  January  2003  and  April  2006  allowing  political 
advertising and setting the parameters (time ceiling) for its screening on commercial and 
the public broadcaster.10 The latter offers also free airtime to parties and candidates for 
presenting their electoral programme. 

In their daily schedule, all broadcasters include current affairs programmes, with access 
mostly if not almost exclusively offered to political parties and the government.11 

- Codes of conduct and their organisational framing 

Article 3 of the Press Law L. 145/1989 provided for the establishment of a Press Council 
that would ensure the freedoms and independence of the Press, would defend its rights 
and ensure respect for professional ethics, according to codes of conduct it would issue. 
The short-lived Press Council never had an efficient operation due to the refusal of media 
professionals  to  accept  the  inclusion  in  the  Council  of  members  nominated  by  political 
parties; this was considered as political interference with media freedoms. 

Large  parts  of  the  Law,  therefore,  remain  inoperative  since  the  first  years  of  its 
implementation; the functions assigned to these bodies by the Law are exercised by the 
authorities. 

Regulation  20(2)  of  the  Regulations  on  Radio  and  Television  Stations,  KDP  10/2000 
requires from the broadcasters the setting-up of internal ethics commissions, responsible 
for maintaining a high standard of programmes, organise seminars on ethical issues for 
their personnel and report to the Authority at least three times per year. It is not known 
to what extent this is enforced. 

Media  professionals,  namely  the  Union  of  Journalists,  the  Association  of  Publishers  and 
the  owners  of  broadcasting  media,  established  in  1997  their  own  self-regulatory  body, 
the  Cyprus  Media  Complaints  Commission  [Επιτροπή  Δημοσιογραφικής  Δεοντολογίας  – 

9 

10 

11 

Normative Administrative Acts, KDP. 193/2006, Official Gazette, 28.4.2006.
 
Amending  laws,  L.24(I)/2003,  Official  gazette  31.01.2003,  L.85(I)2006  on  Radio  and  Television  Stations
 
and L.83(I)/2006 on Radio Broadcasting Corporation, Official Gazette, 20.04.2006. 
On the quality of newspapers and television coverage of politics and the Cyprus Issue, see, Christophorou, 
Christophoros; Sanem Sahin & Synthia Pavlou, 2010. Media Narratives, Politics and the Cyprus Problem, 
PRIO Report 1. Nicosia ISBN: 978-82-7288-323-1, online at
http://www.prio.no/upload/Media%20Narratives,%20Politics%20and%20the%20Cyprus%20Problem.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

CMCC] and their Code of Journalistic Ethics [Κώδικας  Δημοσιογραφικής  Δεοντολογίας].12 
RIK, the public broadcaster, joined them later. In respect of the code of ethics, the law 
on broadcasting L.7(I)/1998 provided that the Radio Television Authority would examine 
cases of journalistic ethics only after a request by the CMCC. Following the incorporation 
of  the  Code  as  Appendix  VIII  of  the  Regulations  (Normative  Administrative  Acts  KDP 
10/2000) on Radio Television Stations, in 2000, the Radio Television Authority examined 
various  cases  related  to  breeches  of  the  Code.  The  court  decision  pointed  at  the 
requirements  of  the  Law  with  re  to  the  examination  of  issues  pertaining  to  the  Code  of  
Ethics forcing the Authority to abide by the ruling. In any case the CMCC and the Union 
of Journalists have repeatedly made it clear that they do not wish state authorities to get 
involved  in  media  ethical  issues.  During  2011,  some  parliamentarians  and  the  Radio 
Television  Authority  promoted  the  idea  of  amending  the  law  in  order  to  enable  the 
Authority to examine breeches related to the Code of Conduct. This has not materialised 
so far. 

The Code includes the basic rules and principles related to the exercise of the profession, 
the  seeking  of  information,  respect  for  the  truth,  the  rights  of  children,  of  persons  in 
grief, and other issues.  

The  CMCC  which  is  chaired  by  a  former  judge  and  minister,  includes  nine  persons 
representing media professionals and three non media personalities; it has so far issued 
a number of decisions following complaints by people or initiated by the Commission, but 
its only weapon other than its moral authority, is the obligation of the concerned media 
to publish its verdict. This is not always respected. No regular activity report is published 
by CMCC. 

Fifteen  years  after  the  Code  was  signed,  activities  such  as  public  or  media  internal  
seminars for educating journalists in professional standards set in the Code, have almost 
never taken place; under these conditions, one may wonder about the exact number of 
media professionals that are aware of the existence of the Code and its content. 

- The role and functioning of regulatory authorities in these respects 

The Authority's chairman, who is the only member of the regulator to serve as a full-time 
executive,  and  the  members  of  the  Authority  are  nominated  by  the  council  of  ministers 
for a term of office of six years. The chairman's appointment can be renewed only once; 
his post as well as those of the members are incompatible with having direct or indirect 
interests in an AVMS provider/organisation or RIK (the public broadcaster), or holding a 
post or an office in a political party. No provision is made for the case of having interests 
in other businesses of the media/audiovisual sector. 

The Authority's activity focuses almost exclusively on monitoring and imposing sanctions, 
drastically limiting its regulatory remit. Efficiency of its work is affected by long delays in 
decision making, due to lengthy procedures of examination of cases imposed by law and 
the  very  large  number  of  cases  to  examine.  One  may  also  note  that  media  experience 
and expertise outside the public broadcaster started developing only after the 1990s. 

12

http://www.cmcc.org.cy/code_pradice2.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

  Distribution Aspects 

- Access to frequencies 

The management of the spectrum lies with the authority of the Department of Electronic 
Communications  of  the  Ministry  of  Communications  and  Works.  The  attribution  of 
frequencies  is  done  with  the  granting  of  the  broadcasting  licence  on  the  basis  of  a  plan 
that  is  designed  by  the  DEC  in  cooperation  with  the  Radio  Television  Authority.  When 
frequencies are available, interested parties are invited by the Radio Television Authority 
to  submit  an  application,  which  is  evaluated  in  accordance  to  specific  criteria  set  in  the 
Law on Radio Television Stations L. 7(I)/1998 and Regulations. Pluralism, the skills and 
qualifications  of  the  personnel,  the  quality  of  the  installations  and  equipment  and  other 
considerations are taken into account. 

The public service broadcaster manages its own frequencies and it is not subject to the 
above system. 

  Access to distribution networks and control of actual conditions 

The contracts and the terms for carrying the channels' programmes had to comply with a 
framework  set  by  the  Office  of  the  Commissioner  for  Electronic  Communications  and 
Postal Regulation (OCECPR). 

With  regard  to  the  distribution  of  newspapers  and  magazines,  art.  16  of  the  Press  Law 
L.145/1989  stipulates  that  this  can  be  done  either  by  the  publisher  or  by  a  press 
distribution agency. Press distribution agencies and sub-agencies are required to have a 
licence  from  the  Minister  of  the  Interior,  granted  following  the  advice  of  the  Press 
Authority. However this Authority has almost never functioned. 

Articles  20  to  22  of  the  Law  stipulate  that  press  distributor  agencies,  sub-agencies, 
kiosks and newspaper distributors have the obligation to distribute without discrimination 
newspapers and magazines; article 23 provides that offenders or any one obstructing the 
free circulation of newspapers is liable to a fine up to 8,500 Euros. 

- Must-carry/must-offer rules for electronic media 

Following  the  switch-over  to  digital  television,  the  only  commercial  platform  operator, 
Velister Ltd, has the obligation to carry the signal of all licensed TV (and radio) channels 
on the basis of contracts signed with them. 

- Role of platform operators 

According  to  statements  by  the  licensee  (see  http://www.velister.com.cy)  its  network 
would cover more than 95% of the population. 

- The role and functioning of regulatory authorities in these respects 

The  Radio  Television  Authority  is  granting  frequencies  with  the  broadcasting  licence  on 
the  basis  of  a  distribution  scheme  designed  by  the  Department  of  Electronic 
Communications  of  the  Ministry  of  Communications  and  Works  and  a  frequencies  plan 
they  designed  together.  The  two  bodies  are  in  close  cooperation  as  the  DEC  is 
responsible for monitoring and verifying compliance with technical issues, connected with 
equipment standards and specifications, installations and others. Decisions and sanctions 
can only be taken by the Authority. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

With  regard  to  networks,  the  main  tasks  lie  with  the  authority  of  the  OCECPR  who 
regulates and sets the parameters of operation of the networks and terms and conditions 
that  govern  the  relations  between  broadcasters  and  network  operator.  A  close 
cooperation between the above three authorities is required, each one being responsible 
for specific areas. 

The basic terms and conditions, and level of fees set in the agreements are determined in 
a  general  framework  decided  by  the  Commissioner  of  Electronic  Communications  and 
Postal Regulation (OCECPR). 

  Access to Information 

- Transparency of media ownership situations 

Article  20  of  the  Law  on  Radio  and  Television  Stations  L.  7(I)/1998  requires  the 
publication in two dailies of the names of persons that own more than 5% of a licensee's 
share capital, in January every year or one month following a change in shareholding. 

The Radio and Television Authority is required by the Law L. 7(I)/1998 to draft a report 
on  pluralism  and  ownership  every  three  years  and  submit  it  to  the  Council  of  Ministers 
and to the Parliament. The report includes the number of shareholders in each licensee, 
but crucial data, such as names and size of shares, are missing. This does not allow full 
transparency  and  the  public  to  know  who  really  owns  or  controls  the  media.  Such  an 
information  can  be  requested  from  the  Registrar  of  Companies  as  defined  in  the 
Company Law Ch. 113, upon payment of an access fee. 

The  case  of  the  media  ownership  data  is  indicative  of  paradoxical  approaches  and 
passivity:  while  detailed  data  on  shares  and  shareholders  are  by  law  deposited  to  the 
Radio  Television  Authority,  while  broadcasters  shall  and  do  publish  the  names  of 
shareholders  having  more  than  5%  of  their  capital,  this  information  does  not  appear  in  
the report on pluralism submitted by the Authority to the Council of Ministers and to the 
House  of  Representatives.  The  fact  that  this  information  is  missing  from  all  reports 
submitted to this day might mean that it has never been requested. 

- Accountability of public service media 

The  public  service  broadcaster  RIK  is  supervised  by  the  Radio  Television  Authority  with 
regard to content and its PSB remit. The Authority's annual report is sent to the Minister 
of  Interior.  The  finances  of  the  broadcaster  and  in  particular  with  respect  to  what  falls 
under the chapter 'public grants' are audited by the Auditor General of the Republic. The 
Auditor's comments and observations are published in his annual report, submitted to the 
President of the Republic that shall laid it to the House of Representatives. 

The  House  of  Representatives  exercises  also  control  through  the  vote  of  the  budget  of 
the PSB. 

- Freedom of information laws 

On the general issue of citizens' right to access to information, a study conducted in 2011 
revealed  a  variety  of  problems.  One  of  the  recommendations  of  the  study  is  for 
authorities  to  set  a  clear  legal  framework,  because  “In  the  absence  of  a  clearly  defined 

173 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

legal  framework,  public  officials  from  both  sides  of  the  island  are  reluctant  to  publish 
information or respond to requests for fear of sanctions from superiors.13 

-	 Accessibility of products/services and distribution networks 

The  law  contains  no  access  restrictions  or  satellite  installation  obstacles  for  the  citizens 
and stipulates no fee to be paid to the state. 

No  exemptions  are  provided  to  broadcasting  license  fee  and  no  subsidies  exist  for 
subscription  to  print  media  or  other.  However,  media  equipment  (presses,  broadcasting 
material, journalist material, computers, cars etc) are purchased tax-free. 

	  “Have a Say on ...” 

-	 Complaint procedures, “Ombudsmen” 

Decisions and actions by public bodies except decisions by the Council of Ministers can be 
the  object  of  a  complaint  to  the  Ombudsman.  However,  decisions  on  such  complaints, 
circumstantial  as  they  might  be,  even  though  useful  cannot  remedy  for  the  many 
difficulties  encounter  by  citizens  in  search  of  information  held  by  public  bodies 
/authorities.  

-	 Participation in media operators/(self-)regulatory bodies 

There  is  no  tradition  of  viewers'  and  listeners'  councils  participating  in  bodies  of  media 
operators. The only bodies in which private persons or representatives participate are the 
Advisory  Committee  of  the  Radio  Television Authority  and the  Cyprus Media  Complaints 
Commission, the self regulatory body of media professionals. The Advisory Committee of 
the  RTA  has  never  been  fully  constituted  –  even  functioning  yet,  due  to  gaps  or 
vagueness of the Law 7(I)/1998. With regard to the CCMC, which is/should be composed 
by  nine  members  representing  the  media  professionals  and  owners  and  three  private 
persons,  no  public  record  is  available  to  confirm  or  indicate  whether  private  individuals 
are participating. 

2.2.4.2.  Main Players in the Media Landscape 

As  already  noted,  the  report  will  cover  the  state  of  regulation  and  media  in  the  areas 
under the effective control of the government of the Republic of Cyprus.  

The  expansion  of cable  and  satellite  as  from 2004  and the  switch-over  to  digital  in  July 
2011  are  the  milestones  that  brought  significant  changes  to  the  audiovisual  media 
landscape.  On  the  other  hand,  we  are  witnessing  tendencies  for  the  development  of 
media  conglomerates;  vertical  media  ownership  has  expanded,  while  the  importance 
attributed by media owners to Internet opportunities has grown. 

The main media organisations are the following: 

	  DIAS  Publishing  company  owns  or  is  affiliated  to  Sigma  and  Sigma  Sports  1 & 2 
television  channels,  Radio  Proto,  Super  FM,  Sport  &  Star  FM  radio  channels, 
Newspapers  Simerini  (daily)  and  City  Free  Press,  more  than  a  dozen  weekly, 
monthly  and  specialised  magazines,  and  one  news  and  one  business  magazine 
internet portals. 

13

http://www.accessinfocyprus.eu/images/access-info/final_report/. 

174 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
                                                 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  Phileleftheros  Public  Company,  owns  or 

is  affiliated  with,  Newspapers  O 

Phileleftheros (daily) and Cyprus Weekly (English language weekly). 

	  Sfera  and  Kiss  FM  radio  channels,  More  than  a  dozen  weekly,  monthly  and 
specialised  magazines,  News,  sports  and  general  interest  Internet  portals,  and 
Proteas printers. 

	  Arktinos  Publishers  Ltd,  owns  or  is  affiliated  with,  Newspaper  Politis,  (daily),  2-3 

magazines, and 107.6 FM radio channel. 

	  Alfamedia Services Ltd owns or is affiliated with Alitheia (daily), and SuperSport FM 

and Dromos radio channels. 

2.2.4.2.1. 

Radio 

Radio has presented little change in recent years, with the attachment/affiliation of some 
channels  to  newspaper  organisations  being  the  most  important.  The  public  service 
broadcaster  Ραδιοφωνικό  Ίδρυμα  Κύπρου  [Cyprus  Broadcasting  Corporation  –  RIK] 
created in 2006 its 4th Programme, bringing their total radio channels to four. There are 
also ten commercial channels with nation-wide coverage, among which a couple of music 
and  one  sports  channel.14  In  the  absence  of  any  official  audit  services,  one  should  be 
cautious with regard to ratings and audience data. However, the channels RIK Trito and 
radio Proto have the higher share among news and current affairs stations, while music 
channels Super FM and Sfera are the thematic most popular channels, attracting mostly 
young audiences. 

In addition to the above, another 36 local and 6 with limited local coverage radio stations 
operate in the small market of the Republic and a highly competitive environment. Thus, 
most  of  these  stations  have  very  low  ratings  and  income  and  they  offer  mostly  or  only 
music. 

2.2.4.2.2. 

Television 

The  digital  switch-over  of  1  July  2011  modified  the  television  landscape;  no  local 
coverage licences were attributed, which led to the disappearance of those who could not 
afford switching-over to digital. Thus all but one of the seven local channels and one pay-
TV channel, ALPHA, terminated their programmes. Some saw new opportunities, so new 
channels  were  created  by  already  existing  or  new  organisations;  MADcy,  NRG  and 
MusicTV  enriched  existing  programmes  with  their  thematic,  mainly  music,  content; 
Capital  TV  turned  from  a  local  to  a  national  coverage  channel,  while  audiovisual  media 
services  networks  and  LTV  pay-TV  broadcaster  created  more  or  own  channels  for 
specialised programmes (sports and cinema). 

14 

Draft_Report_and_Recommendations_for_Consultation_24_Feb_2011_web.pdf. 
Data from http://www.crta.org.cy/default.asp?id=255. 

175 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
                                                                                                                                                         
  
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 17 CY: Selective television yearly audience share since the previous 
report 

Channel 

2005 
% 

2006 
% 

RIK1 
RIK2 
MEGA 
ANT1 
SIGMA 
PlusTV 
ERT (Greece) 
TOTAL viewership 
Pay TV 

13.8 
6.1 
17.6 
19.7 
23.5 
--
3.2 
83.9 
In 
OthersCY 
14.0 

15.9 
6.9 
17.8 
18.5 
21.3 
--
3.0 
83.4 

2007 
% 

13.1 
5.3 
15.5 
22.0 
18.8 
1.6 
3.0 
79.3 

2010 
% 

13.4 
6.3 
14.3 
20.7 
21.3 
4.1 
2.2 
82.3 

In OthersCY In OthersCY 

n.a. 

2.2 

15.3 

OthersCY 
Rest 
(DVD+Others) 
Viewers/Populatio 
n 
* For December 2011  
Compiled from data provided by AGB /Nielsen Cyprus 

66.2 

66.8 

68.1 

16.4 

1.2 

4.2 

n.a. 

n.a. 

65.9 

2011 
% 

13.2 
3.8 
16.6 
17.4 
20.8 
3.8 
1.8 
77.4 

2.8* 

8.9* 

14.0* 

59.7 

30 Jan. -
5 Feb. 2012 
% 
13.8 
2.2 
14.9 
15.5 
20.7 
3.7 
1.2 
73.0 

1.8 

11.4 

14.8 

n.a 

Two licences for the creation of digital networks were granted, to the public broadcaster 
RIK  (Cyprus  Broadcasting  Corporation)  and  to  Velister  Ltd.  The  public  broadcaster  can 
use  its  license  only  for  transmission  of  broadcasting  content;  RIK  transmits  the 
programme of its two channels, RIK1 and RIK2, of the public Greek broadcaster ERT and 
Euronews.  The  private  Velister  Ltd  was  created  by  the  private  broadcasters  and  the 
networks Primetel and Cablenet. It won a multiple round auction for obtaining a licence, 
in  2010,  against CYTA  (Cyprus  Telecommunications Authority)  and  Greek  company LRG 
Enterprises  Ltd  by  offering  12  times  the  reserved  price  of  850,000  Euros.  It  carries  the 
programmes  of  nine  open-to-air  channels  and  of  pay-TV  LTV,  which  offers  a  variety  of 
channels. Licenses were also granted to CytaVision and Primetel networks for specialised 
channels. 

In  the  new  environment,  the  first  results  show  that  the  overall  ratings  of  the  big 
broadcasters  are  declining  to  the  benefit  of  newcomers  and  the  AVMS  networks  who 
increase their subscriptions. The figures for 2011 provide averages for the pre- and post-
digital  world;  the  data  for  January  2012  showed  the  groups  of  pay-TV,  OthersCY  and 
Rest  to  reach  25-30%  with  MadCY  getting  a  good  share  in  the  group  OthersCY.  SIGMA 
remained on top of the competition in 2011, with slight lower ratings, but MEGA, owned 
by the Church, run by Teletypos, the owners of MEGA Greece, was the only channel with 
net increase of more than two points. 

Soap operas produced locally or originating in Greece are mostly among the top 25 every 
week. 

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2.2.4.2.3. 

Press and Publishing 

The main features of the press and publishing sector since 2004 are the following: 

	  The increasing interest of newspapers publishers for radio and the Internet and the 
multiplication  of  magazines  published  or  affiliated  to  newspapers  (see  above,  the 
introduction to this section); 

	  The continued expansion of specialised newspapers and magazines, along with the 

shrinking of dailies; 

	  The  multiplication  of  publications  in  languages  other  than  Greek  and  English, 

addressing in particular groups coming from EU countries and Russia. 

The number of dailies was reduced in 2010 to five in Greek and one in English language; 
daily  Μάχη  [Machi  - Battle)  turned  to  weekly,  replacing  its  sibling  Θάρρος  [Tharros  – 
Courage).  Other  changes,  in  the  group  of  weeklies,  were  the  publication  of  a  Sunday 
Cyprus  edition  of  Athens'  Καθημερινή  [Kathimerini  -Daily],  as  of  2  November  2008  and 
the  acquisition  of  the  largest  English  language  newspaper  Cyprus  Weekly15  by  the 
publishers of Φιλελεύθερος [Phileleftheros - Liberal), the largest Greek language daily. 

Many  specialised  magazines  are  published  in  the  Republic  or  have  a  Cyprus  edition  of 
their publication in Greece. 

No  circulation  audit  bureau  has  ever  operated  in  Cyprus,  which  makes  difficult  to 
ascertain the exact circulation figures of newspapers and magazines, in particular those 
of subscriptions, distributed for free or bought by air transport- or other companies. The 
two main distribution agencies are Kronos and Hellenic Press Agency, affiliated with the 
English language daily Cyprus Mail, the oldest of the existing newspapers. They disclose 
no data to the public. 

According to a readership survey covering summer 2011,16 only 25.9% on average of the 
population  over  13  years  old  read  at  least  one  newspaper  in  September  2011  during 
weekdays,  49.7%  on  Saturdays  and  43.3%  on  Sundays.  To  these  figures,  one  should 
add  Internet  reading17  which  was  12.7%  (weekdays),  6.0%  (Saturdays)  and  4.2% 
(Sundays). Compared to September 2010, daily hard copy readership declined by three 
points. 

First  in  circulation  figures  and  readership  remains  by  far  Phileleftheros,  with  16.2%, 
jumping  to  35%  on  Saturdays  and  24.2%  on  Sundays.  It  is  followed  by  Politis  and 
Simerini  with  6.5%  and  5.3%,  which  increase  on  weekends  up  to  8-10.7%.  Χαραυγή 
[Charavgi – Dawn], the only party newspaper18 – mouthpiece of Communist party AKEL 
(32.7% in May 2011) was read by 4.4%. 

2.2.4.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Network AVMS services developed  after 2004 with CYTA, the public telecommunications 
provider, leading the way with MyVision, renamed later CytaVision. NOVA Cyprus, along 
with Multichoice were allied to Lumiere TV (LTV) offering terrestrial and satellite pay-TV 
up to 30 June 2011, when their contract of cooperation came to an end.  

15 

16 
17 

18 

Published every Friday, more than 15,000 copies.
 
Published by Gnora Communication Consultants, www.gnora.com. 

All dailies provided for free a pdf copy of their hard copy edition. 

Reference in the 2004 report to “many newspapers controlled by parties” is not true.
 

177 


 
  
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 18 CY: Websites and company establishment/network operation 

CytaVision (miVision) 

www.cytavision.com.cy  

2004 

2004 

Cablenet 

Primetel 

www.cablenet.com.cy 

2003 

2006 

www.primetel.com.cy 

2003 

2006 

Velister Ltd (digital platform) 

www.velister.com.cy 

2009 

2009 

Data compiled by Christophoros Christophorou (2012) 

Table 19 CY: List of Cyprus media and websites 

Daily newspapers 

Website 

Owner 

Founded 

Phileleftheros 

www.philenews.com 

Phileleleftheros  Public  Company 
ltd 

Politis 

Simerini 

Alithia 

Haravgi 

www.politis-news.com 

Arktinos Publishers 

www.simerini.com 

Dias Publishers 

www.alithia.com.cy 

Alfamedia Services Ltd 

www.haravgi.com.cy 

Telegraphos ltd 

Cyprus Mail (EN) 

www.cyprus-mail.com  

Cyprus Mail ltd 

Weeklies 

Mahi 

www.maxhnews.com 

Atrotos ltd 

Kathimerini 

www.kathimerini.com.cy 

Kathimerini ltd (Eidikes Ekdoseis 
&  Kathimerines  Ekdoseis  A.E. 
Greece) 

1955 

1999 

1976 

1952 

1956 

1945 

1960 

2008 

Cyprus Weekly (EN) 

www.incyprus.com.cy 

Phileleftheros  Public  Company 
ltd 

1979 

Television 

RIK 

ANT1 

Sigma 

Mega 

TvPlus 

LTV 

Extra 

Capital 

www.cybc.com.cy 

RIK (Public Law Company) 

www.ant1.com.cy 

Antenna ltd 

www.sigmatv.com 

Dias Publishers 

www.megatv.com (Greece)  Mega  & 
Company 

Logos 

Pliroforiaki 

n.a. 

n.a 

www.ltv.com.cy 

Lumiere TV Public Company 

www.extratv.com.cy 

K.K.New Extra ltd 

http://www.capital-tv.com 

n.a. 

Energy (NRG) 

www.nrg.com.cy  

NRG TV ltd 

Music TV 

MadCy 

www.madtv.com.cy 

Eidikes 
MusicBox Entertainment LTD  

Ekdoseis 

n.a 

1953 

1993 

1995 

1992 

2006 

1993 

1994 

2001 

2011 

2011 

2011 

Source: 
http://www.moi.gov.cy/moi/pio/pio.nsf/mass_media_gr/mass_media_gr?OpenDocument 
, accessed 10 June 2012.  

2.2.4.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

There are in all three network services providers, CYTA, Primetel and Cablenet. 

Primetel  started  offering  NOVA's  services  through  its  network  until  January  2012,  when 
CYTA signed an agreement for exclusive rights on NOVA's content of programmes.  

178 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 20 CY: Network services providers offer the following: 

Provider 

Telephony 

Cellular (GSM) 

Internet 

IPTV 

CableTV 

CYTA 

Primetel 

Cablenet 

YES 

YES 

YES 

Yes 

Yes 

--

YES 

YES 

YES 

CytaVision 

PrimeHome 

--

--

--

CableView 

Compiled from information on the Service providers' websites. 

CYTA continues to dominate the telecommunications sector with 92% for PSTN analogue 
telephony  and  84%  for  broadband  Internet  connections.19  It  occupies  also  the  largest 
part of the IPTV sector with 88.8%, with the rest 11.2% going to Primetel. The providers' 
share  of  'triple  service'  broadband  subscriptions  (Internet,  Telephony  and  IPTV-Cable 
TV),  in  June  2011  was  CYTA:  58.9%, Primetel:  16.8% and Cablenet:  24.3%. According 
to  the  observatory  of  the  OCECPR,  three  out  of  four  new  subscribers  were  choosing 
Cablenet. 

The  number  of  households  connected  to  broadband  networks  passed  from  33,799  in 
2005 to 147,276 in 2008 and 186,650 in 2011, which is 66.4% of the total. 

2.2.4.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

In  the  audiovisual  media  services  sector,  the  television  public  declined  from  68.1%  in 
2007  to  59.7%  in  2011,  while  the  share  of  broadcasters  with  national  coverage  shrunk 
from  83.9%  in  2005  to  77.4%  in  2011.  This  can  be  attributed  to  the  development  of 
cable  and  IP  TV  services  and  the  fact  that  some  local  broadcasters  expanded  their 
coverage to national after the digital switch-over. In 2012 there were clear signs that the 
overall share of those providers would reach almost 30% viewership.20 

As  shown  in  table  below,  television  received  74.2%  of  the  advertising  expenditure  in 
2011,  with  its  share  clearly  up  from  68,9%  in  2008.  The  sums  shown  are  nominative 
(gross),  based  on  the  price-lists  of  advertising  space  and  time  in  the  media  and 
advertisements  published.  The  global  economic  crisis  has  also  hit  the  advertising 
industry  and  the  media,  which  meant  a  decline  of  expenditure/income  respectively. 
Television was hit much less than the printed media, which appear to have lost 13% of 
their  2010  advertising  income.  However,  in  the  absence  of  official  audit  bodies,  one 
should be cautious both with numbers provided below and the validity of price-lists as a 
basis  for  estimating  expenditure;  it  is  clear  that  in  times  of  crisis  prices  negotiated 
between the advertising sector parties can be over-discounted. 

19	 

20	 

All  data  in  this  section  refer  to  the  second  quarter  of  2011  and  come  from  reports  of  the  Office  of  the 
Commissioner for Electronic Communications and Postal Regulation. Accessed online on 10 February 2012, 
at:http://www.ocecpr.org.cy/media/. 
documents/General/EC_Doc_RevisedofTelecomBulletin2Q2011Broadband_GR_PK.doc. 
Data provided by AGB and report in weekly Καθημερινή, 15.01.2012. 

179 


 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
   
 
 
 
 
 
 
                                                 
 
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 21 CY: Distribution of advertising expenditure in the media sector 

Nominative expenses of the advertising industry media 

TELEVISION - PRESS – RADIO 2008 -2011 

2011 

2010 

2009 

2008 

TV 

299,730,200  74.2%  305,528,955  72.6%  277,874,049  70.8%  240,681,677 

68.9% 

Press 

61,120,948  15.1%  70,205,971  16.7%  69,871,930  17.8%  68,195,095 

19.5% 

Radio 

43,074,553  10.7%  45,159,102  10.7%  44,801,105  11.4%  40,519,887 

11.6% 

TOTAL (All)  403,925,701 100.00% 420,894,029 100.00% 392,547,085  100.00%  349,396,658  100.00% 

Source Matrixmedia, online at www.inbusiness.com.cy (accessed 10 April 2012). 

The  income  from  advertising  is  not  proportional,  as  successful  broadcasters  receive  a 
higher share compared to their audience share, while for others the situation is inverted: 
their  advertising  income  is  proportionally  much  smaller  than  their  audience  ratings. 
According to AGB-Nielsen, advertising revenue shared by the major open-to-air channels 
was as follows: 

Table 22 CY: Advertising income – Share of major broadcasters 

Broadcaster 

RIK1 

RIK2 

ANT1 

Sigma 

Mega 

TVPlus 

2011 

6.7% 

1.5% 

25.1% 

38.7% 

22.7% 

5.4% 

Source: AGB/Nielsen. 

2.2.4.3.  Conclusion and Recommendations 

Overall,  the  regulatory  framework  and  media  landscape  warrant  pluralism  and  freedom 
of  expression  with  a  plurality  of  media  and  pluralism  of  access  within  individual  media. 
Constitutional  provisions  and  the  laws  on  public  and  commercial  AVMS,  along  with  the 
Press  law  offer  the  required  guarantees.  In  specific  sectors,  an  independent  regulator 
with  extensive  powers,  strict  control  on  issues  of  ownership  and  ensuring  editorial 
independence are the prominent features in commercial media; plurality of access is also 
warranted in all AVMS. Secrecy of sources and access by journalists to sources are also 
warranted in the Press law. However, there are in practice various constraints and issues 
of concern. 

Main issues of concern and recommendations to remedy the situation are the following: 

	  The constitutional powers of the Attorney General, advisor of the executive, to seize 
newspapers  or  printed  matter  constitutes  a  threat  to  freedom  of  expression;  the 
powers  offered  to  courts  to  intervene  within  72  hours  may  not  offer  sufficient 
remedy  for  such  a  censorship  act.  An  amendment  of  the  Constitution  may  be  the 
answer to such threat, in a way that any censorship powers need a court decision. 

180 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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	  Following  the  sixth  amendment  of  the  Constitution  in  June  2010  and  practices 
leading to interference with secrecy of communication and seizure of computers or 
access  to  the  content  of  communication  by  police  raise  concerns  of  abuse  and 
violation of fundamental rights. A law is needed that will enforce the provisions of 
the  Constitution  in  order,  among  other,  to  make  it  clear  that,  in  the  absence  of 
specific  court  order,  the  authorities  can  interfere  only  with  the  external 
characteristics of communication and not with the content. 

	  With  regard  to  ownership,  there  is  need  for  establishing  transparency  through  the 
Press  law  for  printed  media;  the  Radio  Television  Authority  should  disclose 
ownership  and  shareholding  information  for  the  audiovisual  media;  the  clear  need 
for  transparency  so  that  every  citizen  is  aware  who  owns  and  ultimately  controls 
the media, as a major requirement for evaluating information they disseminate, can 
be met either by a decision by the Authority to make this kind of information public 
or through a specific provision in the relevant law. 

	  The  media  landscape  and  the  public  can  benefit  more  from  the  regulator's 
extensive powers with substantial activity in regulatory issues which is missing and 
from speeding up decision making procedures for cases of breech of the laws. This 
is  a  matter  depending solely  on  the  Radio  Television  Authority's will  to  assume  its 
regulatory role. 

	  The  composition  of  the  governing  body  of  the  public  broadcaster  RIK  and  the 
inclusion  of  party  officials  pose  a  real  problem  of  authority;  it  is  not  easy  for  the 
board  of  directors  to  prove  their  independence  from  party/political  influences  and 
respond  to  the  requirements  of  the  public  service  broadcaster.  The  law  must 
exclude party officials from the governing body and warrant the Corporation's real 
independence.  Outside  political  interference  and  the  lack  of  internal  systematic 
monitoring or quality control within the institution, are also issues that have to be 
addressed in order to enable it to fully respond to its obligations. The failure to vote 
in time and cuts in the public service broadcaster's budget by opposition parties, on 
claims of not fair treatment of parties and other arguments underlines the dangers 
of political interference with RIK's and media affairs. Ensuring a really independent 
governing  body  and  quality  control  can  curtail  any  attempts  against  the 
independence of the Corporation by opposition parties. 

	  The  definition  of  the  public  service  broadcaster  obligations  in  terms  of  simply 
programme  quota  must  change  and  additional  quality  criteria  must  be  established 
in order to better ensure a public service remit. 

On  general  issues,  media  must  extent  access  beyond  political  parties  and  allow  the 
expression of a larger plurality of ideas in society ensuring in this way a broader role for 
the media. This opening should extent to the choice by media of those to whom access is 
offered  and  to  media's  policy  to  act  as  advocates  of  certain  groups' opinions  and  ideas. 
Public dialogue should go beyond positions on the Cyprus Problem, to allow discussion of 
social  and  other  issues.  While  the  law  warrants  the  above,  the  above  should  better  be 
promulgated through proactive measures than law enforcement. 

Connected to  the  latter  issue  are frequent  criticisms  by  politicians  and  parties and  legal 
measures  taken  against  media  or  persons  for  libel  and  defamation;  we  observe  an 
increase of court cases in recent years, in particular by state officials and politicians. 

181 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Self-regulation  in  the  form  of  the  Media  Complaints  Commission,  an  independent  body 
that  acts  with  reference  to  a  Code  of  Ethics,  is  a  positive  example.  However,  its  
composition  must  include  more  people  from  the  civil  society,  while  powers  for 
enforcement  and  sanctions  should  be  part  of  its  arsenal.  Along  with  the  above,  regular 
reporting on its activities could strengthen its efficiency and authority. 

There  is  a  general  need  for  all  sides,  authorities,  social  and  political  actors  and  the 
media,  for  fully  understanding  the  importance  of  the  role  of  media  in  a  democratic 
society and respect for both freedom of expression and freedom of the media. Pressures 
or  interference  with  media  work  and  lack  of  tolerance  should  stop,  while  on  the  other 
hand, a systematic effort by media for training to raise the standards of awareness and 
the quality of their work is urgent.21 

Opening  airwaves  and  the  media  in  general  to  more  voices  is  also  necessary,  given,  in 
particular, the fact that civil society in Cyprus and NGOs are weak. 

The  courts  of  the  Republic  interpret  the  laws  with  reference  to  the  case-law  of  the 
European  Court  of  Justice,  the  European  Court  of  Human  Rights  and  they  eventually 
remedy  for  gaps  in  the  Republic's  law  or  conflicts  with  the  clauses  of  the  European 
Convention.  However,  the  enjoyment  of  this  kind  of  rights  and  freedoms  must  be  self-
evident  and  unhindered;  no  one  must  wait  to  ascertain  and  enjoy  one's  rights  through 
years-long procedures before the courts. 

21 

At the time of finalising the report (June 2012), a draft law was sent to the House of Representatives by 
the government  setting the  conditions under which journalists  should disclose  their sources. This caused 
an outcry and the draft bill was withdrawn. 

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CZECH REPUBLIC 


2.2.5.	 

Czech Republic 

2.2.5.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.5.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The starting point is the right to freedom of expression and the right to information under 
Article 17 of the Declaration of Human Rights and Fundamental Freedoms – which is an 
integral  part  of  the  Czech  Constitution:  “Everyone  has  the  right  to  express  his  views  in 
speech, writing, printing, painting or otherwise, as well as the freedom to seek, receive 
and impart information and ideas regardless of frontiers”. Specific safeguards and rights 
for the media are not anchored in the Constitution.  

The  Czech  Constitutional  Court  has  heard  a  complaint  from  a  broadcaster  about  a  fine 
imposed  on  it  for  broadcasting  a  “Big  Brother”-type  reality  show.  The  Broadcasting 
Council had decided that the broadcaster should pay a fine of CZK 200,000 for violating 
Article  32  of  Law  no.  231/2001,  which  prohibits  broadcasters  from  broadcasting  TV 
programmes  that  endanger  the  physical,  spiritual  or  moral  development  of  children, 
between  6  a.m.  and  10  p.m.  Some  parts  of  the  programme  had  contained  scenes  that 
harmed  human  dignity  and  interpersonal  relations,  as well  as  vulgar  and  bad  language. 
After  appeals  against  the  Broadcasting  Council’s  decision  had  been  rejected  by  the 
Prague Municipal Court and the Supreme Administrative Court, the broadcaster lodged an 
appeal with the Constitutional Court because it thought the decisions of the Broadcasting 
Council  and  the  courts  had  infringed  its  fundamental  rights.  The  Constitutional  Court 
agreed with the administrative courts’ interpretation of the law. It also explained that the 
appellant had not been prosecuted for broadcasting the show, but because of the timing 
of  the  broadcast.  The  fact  that  the  appellant  disagreed  with  the  courts’  conclusions  did 
not  mean  that  the  complaint  about  infringement  of  the  Constitution  was  well-founded 
and,  in  any  case,  did  not  represent  a  violation  of  its  fundamental  rights.  Since  the 
decisions  of  the  courts  could  not  be  described  as  arbitrary,  they  did  not  infringe  the 
appellant’s fundamental rights. The Constitutional Court therefore rejected the complaint. 

On  25  November  2010,  the  Constitutional  Court  of  the  Czech  Republic  ruled  on  a  case 
concerning  freedom  of  expression  in  caricatures  and  noted  that  the  freedom  of 
expression was not limitless and that drawings showing naked politicians carrying out sex 
acts exceeded the admissible limit of satire and exaggeration. This decision represented 
victory  for  a  former  Czech  minister  in  a  legal  dispute  with  the  Czech  magazine  Reflex. 
The magazine’s publisher, Ringier, therefore lost its appeal to the Constitutional Court, in 
which it had claimed that it had suffered damage as a result of the courts’ order that it 
should  apologise  for  the  aforementioned  caricatures.  It  had  argued  that  its  freedom  of 
expression  and  artistic  freedom  had  been  violated.  The  dispute  over  the  caricatures 
lasted  nine  years.  In  May  2001,  a  caricature  had  been  published  in  the  satirical  comic 
strip  Green  Raoul,  showing  the  then  minister  naked,  engaging  in  sex  acts  with 
colleagues. The minister sued the magazine for damaging his reputation as a citizen and 
a minister and exceeding the limits of freedom of speech. The municipal court in Prague, 
the appeal court and the Supreme Court all decided that the magazine’s publisher should 
apologise. They rejected the defence’s argument that political satire and exaggeration of 
this kind were acceptable. The Supreme Court in Prague ruled that the images bordered 

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on pornography and seriously infringed the common rules of decency. The Senate of the 
Constitutional Court upheld the courts’ arguments and rejected the magazine publisher’s 
claims.  The  judges  confirmed  that,  although  politicians  had  to  endure  a  high  level  of 
criticism,  freedom  of  expression  was  not  totally  limitless.  Even  caricatures,  which  could 
go further than other works, had to respect certain boundaries in relation to the freedom 
of expression. 

  Safeguards on regulatory authorities 

The Czech Constitution does not hold any provisions relating to the status, remit and/or 
powers to be attributed to the supervisory authorities in the broadcasting and electronic 
communications sectors. 

  Safeguards on “universal service” 

Aspects  of  “universal  service”  in  terms  of  either  content  to  be  offered  by  the/specific 
media  or  with  regard  to  technical  coverage  and  reachability  of  networks  and  services 
necessary  for  accessing  information  (via  the  media)  are  not  dealt  with  by  the  Czech 
Constitution.  Neither  have  the  Constitutional  Court  or  other  jurisdictions  adjudicated  on 
this  subject  matter,  e.g.  in  view  of,  and  by  interpreting,  Art.  17  of  the  Declaration  of 
Fundamental Rights and Freedoms.  

2.2.5.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

(hereinafter:  Council)  and 

The competencies of the two main regulators of the broadcasting market, the Council for 
the  Czech 
Radio  and  Television  Broadcasting 
Telecommunication  Office  (CTO),  are  enshrined  in  the  Broadcasting  Act1  and  the 
Electronic  Communications  Act.2  The  former  regulates  broadcast  content  and  the  latter 
deals  mainly  with  managing  the  frequency  spectrum.  The  Council  is  an  administrative 
office,  which  performs  state  administration  of  radio  and  television  broadcasting, 
retransmission and audiovisual media services on demand. It oversees the maintenance 
and  development  of  a  plurality  of  programming  and  information  on  radio  and  television 
broadcasting and retransmission, ensures the independence of its content, and performs 
other  tasks  stipulated  by  law  and  special  regulations.  The  Council  grants  a  license  to 
operate radio and television broadcasts, performs registration of retransmission of radio 
and  television  broadcasts  and  holds  files  of  operators  of  audiovisual  media  services  on 
demand.  It  also  monitors  the  content  of  these  services  and  gives  the  penalties  for 
breaking  the  law.  The  Council  consists  of  13  members,  appointed  and  dismissed  by  the 
Prime  Minister  on  a  proposal  from  the  Chamber  of  Deputies  for  a  term  of  6  years.  The 
tasks associated with professional technical support activities are provided by the Office 
of the Council. 

The  CTO  performs  the  regulation  of  electronic  communications  (infrastructure).  The 
Authority is the administrator of the frequency spectrum. It determines the allocation of 
frequencies to operators of electronic communications in the field of radio and television 
broadcasting. It collaborates with the Council in the allocation of frequencies to operators 
of  radio  and  television  broadcasting  and  maintains  a  database  of  these  frequencies  and 
passes them to the Council.  

1 

2 

Act  No.  231/2001  on  Radio  and  Television  Broadcasting  Operation  and  on  amending  other  laws,  Sbírka 
zákonů,  4  June  2001,  further  amended inter  alia  by  Acts  No.  274/2003,  341/2004,501/2004,  626/2004, 
82/2005, 127/2005, 348/2005, 235/2006, 160/2007, 296/2007, 304/2007, 47/2010. 
Act No. 127/2005 on Electronic Communications, Sbírka zákonů, 22 February 2005. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Licensing schemes; remit psm; notification for print publications 

The amendments by Acts No. 235/2006 Coll and No. 304/2007 Coll. to the Broadcasting 
Act  brought  major  changes  in  the  area  of  digital  licensing,  stripping  the  Council  of 
decision-making  power.  According  to  the  new  provisions,  the  licensing  tender  and 
application procedures administered by the Council were dropped and replaced by a short 
application  procedure  almost  identical  with  the  application  for  the  registration  of  cable 
and  satellite  broadcasters.  Any  party  interested  in  airing  digitally,  whether  via  cable, 
satellite  or  terrestrially,  will  only  be  required  to  apply  for  a  licence  from  the  regulator. 
The  Council  will  no  longer  organise  contests  for  licences,  instead  receiving  individual 
applications with information about the applicant’s financial, organisational and technical 
readiness  to  start  broadcasting,  and  an  agreement  with  a  cable  or  satellite  provider  to 
host its programme. The Council is obliged to interview the applicant within 30 days and 
can  reject  the  application  only  if  he  or  she  is  late  in  paying  state  taxes,  has  been 
imprisoned,  or  has  already  had  a  licence  withdrawn  for  violating  legal  provisions  on 
programming.  In  other  words,  the  Council  will  have  to  grant  licences  to  any  party  with 
the  necessary  financing  and  an  agreement  with  a  network  operator.  The  amended 
legislation is a breakthrough that will liberalise the TV market in an unprecedented way 
and strengthen pluralism in broadcasting. The legislation marked the end of the “beauty 
contest  era”  in  broadcasting,  when  the  Council  decided  by  itself  who  would  be  able  to 
broadcast  and  who  would  not.  The  terrestrial  frequency  spectrum  would  continue  to  be 
limited,  but  there  will  be  much  more  space  on  it.  In  total,  the  country  will  have  up  to 
seven  nation-wide  digital  multiplexes  able  to  host  70  individual  channels.  As  now  on 
cable and satellite, there will be virtually no limit to the number of programmes. On the 
other hand, the State will be able to withdraw licences in cases of breaches of legislation. 
There  have  been  no  changes  in  the  Council’s  monitoring  of  compliance  with  licence 
conditions. 

- Media pluralism/ownership; competition law aspects 

An  application  for  a  license  to  broadcast  must  include  information  regarding  the 
ownership  structure  of  the  applicant.  If  such  a  legal  person  is  a  joint-stock  company,  a 
precondition for obtaining a licence is that its shares are registered  shares. Without the 
consent of the Council it is not possible to change the amount of capital, the manner of 
distribution of voting rights, the contribution of individual members (including the content 
specifications  and  financial  evaluation  of  in-kind  contributions),  and a  list  of  partners  or 
shareholders.  The  Broadcasting  Act  contains  provisions  related  to  restrictions  on  media 
concentration;  restrictions  on  the  number  of  licenses  of  one  operator  and  both  the 
analogue  and  the  digital  broadcasting  at  national  and  local  and  regional  level.  Mergers 
and the mutual influence of operators of radio and television broadcasts are limited. The 
major  ownership  disputes  have  been  settled  and  the  ownership  structures  in 
broadcasting  media  are  now  more  transparent  than  they  were  before.  The  bulk  of  the  
capital  in  the  media,  including  broadcasting,  is  foreign.  The  2006  amendments  to  the 
Broadcasting Act introduced provisions preventing cross-ownership between the operator 
of  an  electronic  communications  network  (such  as  digital  multiplexes  or  cable  TV)  and 
the  holder  of  a  broadcasting  licence.  More  changes  have  been  made  by  the  Law  No. 
196/2009  Coll.  These  provisions  were  added  to  the  Article  21  of  the  Broadcasting  Law 
No. 231/2001 Coll.:  

“(7) 	 A licensed television broadcaster, which is a legal person, or a member within such 
a  legal  person,  may  transfer  to  third  parties  a  share  in  the  licensed  television 
broadcaster  company  with  prior  consent  of  the  Council.  The  consent  may  only  be 
withheld  if  the  plurality  of  information  under  Articles  55  and  56  would  be  limited. 

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The  persons  who  were  members  in  the  legal  person  as  of  the  date  of  issuance  of 
the decision to grant the licence shall remain holders of at least 66% of the stock or 
66%  of  the  voting  rights  for  the  period  of  5  years  from  the  date  on  which  the 
licence was granted. 

(8)	  With  a  prior  consent  of  the  Council,  a  legal  person  or  a  natural  person  who  is  a 
member  of  more  than  one  legal  person  –  licensed  broadcaster  –  with  a  100% 
ownership interest may transfer these legal persons, or some of them, into a single 
successor company by merger or amalgamation, the successor company becoming 
either a public limited company or a limited liability company. 

(9) 	 A natural person who is a licensed broadcaster or a rebroadcaster may request that 
the  licence  or  registration,  which  was  awarded  to  it,  be  transferred  to  a  legal 
person. The Council will grant the request only in the case that the natural person 
has a 100% ownership interest in such a legal person. 

(10)  With a prior consent of the Council, a licensed radio broadcaster may retransmit the 
programme  of  another  licensed  broadcaster,  including  the  identification  of  such  a 
programme,  provided  that this  does  not  lead  to  a change  in  the basic  programme 
specification.  A  licensed  broadcaster  may  not  retransmit  the  programme  or 
programme parts of a statutory broadcaster.” 

In  pursuance  of  the  latest  changes  of  legislation,  it  is  worth  to  be  mentioned  that  the 
Broadcasting Council approved the merger of several radio stations so that their number 
decreased. 

- Legal framework for psm; ability to fulfill their tasks 

Czech  Television  (ČT)  and  Czech  Radio  (ČRo)  are  operators  of  public  service  television 
and  radio  broadcasts.  Czech  Television  provides  a  public  service  by  creating  and 
distributing television programmes or other multimedia content and services throughout 
the Czech Republic. Czech Radio is tasked with the production and broadcasting of radio 
programmes. ČT and ČRo were founded by separate laws that establish their personality 
and  independence  of  the  state.  These  laws  defined  the  tasks  of  public  services  and  the 
organization of these institutions. 

The  head  of  each  of  the  two  institutions  is  the  General  Director,  who  is  elected  by  the 
Council  of  ČT  and  by  the  Council  of  ČRo.  The  respective  councils  are  elected  by  the 
Chamber  of  Deputies  on  a  proposal  from  interest  groups.  The  council  is  the  authority 
which  should  secure  the  public  exercises  its  right  to  control  ČT  and  ČRo.  They  approve 
and  control  the  budgets,  oversee  the  fulfilment  of  the  public  service,  and  approve 
development plans. 

According  to  the  Law  on  the  Czech  TV  (Nr.  483/1991  Coll),  the  remit  is  defined  more 
precisely  in  Article  2  as  follows:(1)  Czech  Television  shall  provide  public  service  by 
creating and distributing television programmes and prospectively also other multimedia 
content  and  supplemental  services  in  the  entire  territory  of  the  Czech  Republic 
(hereinafter referred to as “public service in the television broadcasting area”). 

(2)	  The main tasks of public service in the television broadcasting area include, without 

being limited to: 

a) 

	provision  of  objective,  verified  and  generally  balanced  and  comprehensive 
information as may be needed for opinions to be freely formed,  

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

b) 	 contributing to legal awareness among the citizens of the Czech Republic, 

c)  	 creating  and  disseminating  programmes  and  providing  a  well-balanced  offer  of 
programme  units  for  all  groups  of  population  with  respect  to  the  freedom  of  their 
faith and conviction, culture, ethnic or national origin, national identity, social origin, 
age  or  gender  so  that  the  programme  units  reflect  the  diversity  of  opinions  and 
political,  religious  and  philosophical  orientations  and  artistic  trends,  with  a  view  to 
promoting  mutual  understanding  and  tolerance  and  supporting  coherence  of  the 
plurality society. 

Both broadcasters are financed primarily from radio and television fees paid by holders of 
radio and television receivers. Furthermore, both institutions broadcast a limited range of 
business  communications  and  provide  some  additional  business  services.  ČT  also 
generates  income  from  advertising  and  sponsorship,  selling  services  and  rights, 
teleshopping  and  programme  production.  Advertising  on  public  television  programmes 
remained only on ČT2 and ČT4. The proceeds from advertising on ČT2 are transferred to 
the  State  Fund  of  Culture,  the  means  generated  by  advertisements  broadcast  on 
television are used by ČT4 to produce and broadcast programmes with sports themes. A 
special  provision  in  the  Electronic Communications  Act  tasked  ČT  to lead  the  process  of 
digitisation,  reserving  Multiplex  A  for  its  exclusive  use.  ČT  launched  digital  terrestrial 
broadcasting on Multiplex A, known also as the Public Service Multiplex, in all regions of 
the country. The latest amendments to the Czech Television Act entitled the broadcaster 
to operate at least two more TV channels on top of its two nationwide analogue channels, 
ČT1 and ČT2. ČT launched an all-news channel, ČT24, which airs digitally over terrestrial 
networks and via satellite, cable and internet. Then it launched ČT4 Sport, which is aired 
digitally, and via satellite and cable.  

ČT  was  allowed  to  continue  to  broadcast  commercials  during  the  digital  transition,  in 
order  to  preserve  some  balance  on  the  TV  market.  The  extra  income  covered  the 
development  of  terrestrial  digital  television  broadcasting,  digitisation  of  the  station’s 
archives  and  the  development  of Czech  cinematography.  The  public  service  broadcaster 
ČT  has  distinguished  itself  more  clearly  as  an  alternative  to  commercial  TV.  It  has 
continued  to  make  a  difference  compared  with  its  commercial  peers,  which  are  geared 
mostly to providing low-brow entertainment and blockbusters. There have been no major 
changes  in  ČT’s  output  over  recent  years.  It  has  continued  its  strategy  of  airing  more 
elitist  and  cultural  programming  on  its  second  channel,  which  targets  a  smaller,  more 
high-brow audience. However, the first channel, which attracts a much bigger audience, 
also  broadcasts  a  significant  amount  of  public  service  programming.  Drama  and  news 
occupy the largest proportion of the schedule, followed by documentaries, reportage and 
current  affairs.  The  station  does  not  specify  in  its  reports  the  amount  of  programming 
devoted to minorities. The specific obligations on public service broadcasters, as defined 
mainly in the Czech Television Act and in the Czech Radio Act, have not changed over the 
past  years.  Commercial  broadcasters  continue  to  have  no  specific  public  service 
obligations  imposed  by  legislation,  such  as  requirements  to  air  regional  or  minority 
programming.  The  amendments  to  the  Czech  Television  Act  did  not  change  the 
governance  of  Czech  public  service  broadcasting.  MPs  still  control  the  appointment  of 
Council  members.  Politicians  still  believe  that  Council  membership  should  reflect  the 
distribution of power in Parliament. 

- The role and functioning of regulatory authorities in these respects 

The  Broadcasting  Council  does  not  control  the  fulfilling  of  the  public  service  obligations, 
so that there is no control mechanism.  

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  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Protection  of  the  journalistic  information  source  and  content  is  regulated  by  the 
Broadcasting Act and by the Press Act3: 

Any  natural  person  or  legal  person  who/which  took  part  in  obtaining  or  processing  the 
information made public or to be made public in radio or television broadcasting or by the 
press  shall  have  the  right  to  deny  disclosure  of  the  origin  of  such  information  or  the 
content  thereof  to  the  court  or  any  other  State  authority  or  public  administration 
authority.  Any  natural  person  or  legal  person  who/which  took  part  in  obtaining  or 
processing  the  information  made  public  or  to  be  made  public  in  radio  or  television 
broadcasting  shall  have  the  right  to  deny  submission  or  delivery,  to  a  court  or  a  State 
authority or public administration authority, of any items from which the origin or content 
of  such  information  might  be  derived.  The  obligations  laid  down  in  a  special  legal 
regulation  and  requiring  avoidance  of  any  favouritism  for  offenders  and  to  prevent  or 
report  criminal  offence  shall  remain  unaffected  by  the  rights  referred  to  above,  and  so 
shall  remain,  in  relation  to  such  obligations  laid  down  in  specific  legislation,  any 
obligations as may be prescribed in the penal proceedings. 

By its decision of 30 October 2003, the High Court of Prague restricted the possibility of 
broadcasting a court hearing live. The decision was taken on the occasion of an appeal by 
five persons accused for the preparation of murdering a journalist who published several 
articles  on  a  corruption  case  affecting  the  ministerial  level.  In  the  Czech  Republic,  live 
coverage or recordings by the media in courtrooms are allowed in principle. The coverage 
must be expressly permitted by the competent judicial authorities. Such reporting should 
be authorised only where it does not involve a serious risk of undue influence on victims, 
witnesses,  parties  to  criminal  proceedings  or  the  judges.  In  the  relevant  case,  a  TV-
studio was set up in the court building, from where lawyers and experts could comment 
on  the  proceedings.  Inside  the  courtroom  three  cameras  were  installed  and  the  fourth 
was  placed  in  the  entrance  hall.  Czech  TV  planned  to  invite  guests  into  the  studio  to 
comment  on  the  circumstances  of  the  case  and  the  personality  of  the  defendants.  The 
main  accused  approved  the  live  reporting,  but  did  not  approve  the  commentary  on  the 
procedure.  At  the  very  beginning  of  the  hearing,  the  magistrate  of  the  Court  ruled  that 
the live transmission should be allowed. However, the solicitors of two other defendants 
did  not  approve  the  live  transmission  of  the  trial  and  asked  that  the  question  of 
broadcasting  should  be  decided  by  the  whole  court  and  not  by  a  magistrate  only.  The 
President of the Court pronounced the Court's decision that the right to a fair trial was ­
in  this  case  -  more  important  than  the  public's  right  to  information.  In  the  context  of 
criminal proceedings, particularly those involving juries or lay judges, judicial authorities 
and police services should refrain from publicly providing information that involves a risk 
of  substantial  prejudice  to  the  fairness  of  the  proceedings.  Respect  for  the  principle  of 
presumption  of  innocence  is  an  integral  part  of  the  right  to  a  fair  trial.  Accordingly, 
opinions  and  information  relating  to  ongoing  criminal  proceedings  should  only  be 
communicated  or  disseminated  through  the  media  where  this  does  not  prejudice  the 
presumption  of  innocence  of  the  suspect  or  accused.  Where  the  defendants  are  able  to 
show  that  the  provision  of  information  is  highly  likely  to  result,  or  has  resulted,  in  a 
breach of the right to a fair trial, they have an effective legal remedy. The trial continued 
without  live  transmission.  At  the  end,  Czech  TV  was  allowed  to  broadcast  live  only  the 
public pronouncement of the judgment.  

3 

Tiskový zákon (Press Law) Nr. 46/2000 Coll. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Specific positive content obligations 

According  to  the  Law  No.  483/1991  Coll.  (Law  on  the  Czech  TV),  some  specific  content 
obligations are contained in Article 2 as follows: 

“d)  developing  the  cultural  identity  among  the  citizens  of  the  Czech  Republic,  including 

members of national or ethnic minorities, 

e)  producing  and  broadcasting  news  and  political/public  programme  units, 
documentaries, art, drama, sports, entertainment and educational programming, and 
programmes for minors.” 

- Funding schemes for specifically desired content 

Some quality books and magazines are subsidised. 

- Political advertising and/or broadcasting time 

The Broadcasting Law states in Art. 48 as follows: 

“(1) Broadcasters are not allowed to broadcast: 

(e)	  political  parties’  and  movements’  commercial  communications  and  those  of 
independent candidates standing for the posts of deputies, senators or members of 
a municipal or local council or council of a higher-level self-government unit, unless 
otherwise provided in specific legislation,” 

For  elections  to  the  Chamber  of  Deputies  the  political  advertising  is  allowed  during  the 
period beginning 16 days and ending 48 hours before the election day. The candidates or 
the  political  parties,  political  movements  and  coalitions  whose  candidate  list  has  been 
registered  in  the  Czech  Radio  earmarked  a  total  of  14  hours  and  also  the  Czech 
Television, a total of 14 hours, within their broadcast areas provided free airtime, divided 
equally to the candidate, the political parties, political movements and/or coalitions . The 
broadcasting  time  will  be  determined  by  lot.  The  candidates,  the  political  parties,  the 
political  movements  and  coalitions  have  each  full  responsibility  for  the  content  of  the 
political messages transmitted. 

- Codes of conduct and their organisational framing 

No changes in this sector worth to be mentioned since our last country report in 2004. 

- The role and functioning of regulatory authorities in these respects 

The Broadcasting Act provides in its Article 5: 

“The Broadcasting Council shall: 

x) cooperate within the range of its competence with Czech legal persons whose activities 
include self-regulation in any of the fields to which this Act or specific legislation apply, 
such  self-regulation  involving  active  participation  of  broadcasters,  rebroadcasters  or 
on-demand  audiovisual  media  service  providers  (hereinafter  referred  to  as  “self­
regulatory bodies”), provided that such cooperation is requested in writing by such a 
self-regulatory body, especially in developing effective self-regulatory systems and in 
implementing  measures  supporting  media  literacy;  publish  a  list  of  the  cooperating 

189 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

self-regulatory bodies (hereinafter referred to as “list of self-regulatory bodies”), using 
methods that facilitate remote access, etc.” 

  Distribution Aspects 

- Access to frequencies 

Article  4  of  the  Law  on  Czech  TV  recognises  the  special  situation  of  the  public  service 
broadcaster in respect of access to frequencies: 

“(2) 	 The State body responsible for the administration of the frequency spectrum on the 
basis  of  a  specific  legal  regulation  shall  co-operate  with  the  Council  for  Radio  and 
Television  Broadcasting  to  reserve  for  Czech  Television  the  radio  frequencies  that 
enable  the  operation  of  broadcasting  within  the  range  specified  in  Articles  3(1)(a) 
and 3(1)(b).” 

Besides, the regulation governing the granting of rights of use of frequencies reserved for 
broadcasting services are laid out in licensing chapter. 

- Access to distribution networks and control of actual conditions 

Access  to  distribution  services  (radio,  television,  press)  is  generally  free.  For  digital  TV 
broadcasting  there  are  sufficient  capacities  and  therefore  the  procedure  for  obtaining  a 
licence is of a merely formal nature. Only radio broadcasting in FM radio frequency bands 
remains submitted to a licence procedure with contest. 

- Must-carry/must-offer rules for electronic media 

The  Council  determines  programmes  and  the  services  directly  related  thereto  to  be 
mandatory distributed in the public interest over electronic communications networks for 
radio  and  television  broadcasting  (“must-carry  obligations”),  review  whether  the 
mandatory  distribution  of  such  programmes  is  still  necessary  and  submit  to  the  CTO 
binding  opinions  in  respect  of  the  imposition  or  lifting  of  such  mandatory  distribution 
under  specific  legislation.  When  assessing  whether  there  is  public  interest  or  whether 
public interest continues, the Council must in particular take into account the proportion 
of public interest programme units and own-produced programme units, the multimodal 
access  to  programme  units  that  are  broadcast  for  the  hard  of  hearing  and  the  visually 
impaired  (sound  descriptions,  Czech  sign  language,  subtitles  with  indication  of  the  non­
verbal  part  of  the  story,  easy  navigation)  and  the  suitability  of  the  broadcasters’ 
programme for immediate notification.  

  Access to Information 

- Transparency of media ownership situations 

All  the  information  regarding  the  owners  of  the  broadcasters  and  their  shares  can  be 
found in the Commercial register. 

- Accountability of public service media 

The Television (ČT) Council and the Radio (ČRo) Council are responsible to submit their 
annual activity reports to the Chamber of Deputies. 

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- Freedom of information laws 

The  Law  Nr.  106/1999  Coll.,  on  Free  Access  to  Information  regulates  the  conditions  of 
free access to information and provides the basic conditions of their provision. Obligation 
to provide information has all the scope of the public authorities, regional authorities and 
public  institutions  managing  public  funds.  The  information  can  be  asked  for  by  any 
natural  or  legal  person.  The  Act  provides,  inter  alia,  the  application  requirements,  the 
provision  of  information,  limits  to  the  right  to  information,  the  procedure  for  submitting 
and processing of written requests, appeals, payment of costs. 

In  a  decision  of  10  July  2006  on  an  application’s  admissibility,  the  European  Court  of 
Human  Rights  (ECtHR)  has,  for  the  first  time,  applied  Article  10  of  the  Convention  in  a 
case  where  a  request  for  access  to  administrative  documents  was  refused  by  the 
authorities. The case concerns a refusal to grant an ecological NGO access to documents 
and  plans  regarding  a  nuclear  power  station  in  Temelin,  Czech  Republic.  Although  the 
Court  is  of  the  opinion  that  there  has  not  been  a  breach  of  Article  10,  it  explicitly 
recognised  that  the  refusal  by  the  Czech  authorities  is  to  be  considered  as  an 
interference  with  the  right  to  receive  information  as  guaranteed  by  Article  10  of  the 
Convention. Hence, the refusal must meet the conditions set out in Article 10 para. 2. In 
the  case  of  Matky  v.  Czech  Republic,  the  Court  refers  to  its  traditional  case  law, 
emphasising that the freedom to receive information “aims largely  at forbidding a State 
to  prevent  a  person  from  receiving  information  which  others  would  like  to  have  or  can 
consent  to  provide”.  The  Court  is  also  of  the  opinion  that  it  is  difficult  to  derive  from 
Article 10 ECHR a general right to have access to administrative documents. The Court, 
however,  recognises  that  the  refusal  to  grant  access  to  administrative  documents,  in 
casu  relating  to  a  nuclear  power  station,  is  to  be  considered  as  an  interference  in  the  
applicant’s right to receive information. Because the Czech authorities have reasoned in a 
pertinent and sufficient manner the refusal to grant access to the requested documents, 
the  Court  is  of  the  opinion  that  there  has  been  no  breach  of  Article  10  para.  2  of  the 
Convention in this case. The refusal was justified in the interest of protecting the rights of 
others  (industrial  secrets),  national  security  (risk  of  terrorist  attacks)  and  public  health. 
The  Court  also  emphasised  that  the  request  to  have  access  to  essentially  technical 
information  about  the  nuclear  power  station  did  not  reflect  a  matter  of  public  interest. 
For these reasons, it was obvious that there had not been an infringement of Article 10 
ECHR, thus, the Court declared the application inadmissible.  

The Ombudsman of the Czech Republic had asked the Constitutional Court to rule on the 
compatibility  with  the  Constitution  of  the  Decree  implementing  the  Secrecy  Act.  It  was 
claimed that the Decree would not be consistent with the constitutional law principles of 
legal  certainty  and  the  predictability  of  state  action.  The  protection  of  classified 
information is organised on two levels in the Czech Republic: general regulations are set 
out  in  the  Secrecy  Act,  which  defines  matters  that  should  be  kept  secret  as  “matters 
which,  if  known  to  the  public,  could  jeopardise  the  interests  of  the  Czech  Republic  or 
interests which the Czech Republic is obliged to protect”. In order to implement the Act, 
the government has to issue a Decree listing matters that must be kept secret. A list of 
18 such matters was appended to the Decree that was subsequently issued. Of these, 17 
refer  to  actual  files,  while  the  final  one  covers  “sensitive  economic  and  security 
information linked to international relations”. In the Ombudsman's view, such a general 
provision is open to abuse and arbitrariness on the part of the authorities, particularly in 
relation to the transmission of information to the media. The list of secret matters should 
be  worded  in  precise  terms.  However,  the  Constitutional  Court  dismissed  the 
Ombudsman's  application  on  the  grounds  that  if  all  secret  matters  had  to  be  worded  in  

191 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

precise  terms,  the  objectives  of  the  Act  could  not  be  met.4  Then,  secret  information 
might instead have to be revealed. Predictability and legal certainty, however, should not 
be considered absolute objectives. The Constitution also protects the legitimate interests 
of the Czech Republic, and the legislator had to take all of these elements into account. 
Furthermore,  citizens  already  had  sufficient  legal  protection  against  any  abuse  and 
arbitrariness in the way these provisions were applied. 

- Accessibility of products/services and distribution networks 

There are no obstacles to the access to products and services.  

2.2.5.2.  Main Players in the Media Landscape 

2.2.5.2.1. 

Radio 

Table 23 CZ: Largest radio channels, weekly rating (WR) and daily rating (DR) 

Programme 

Broadcaster 

WR  2011 

DR 

Radio Impuls 

Evropa 2 

Frekvence 1 

Lagardere 

Lagardere 

Lagardere 

Radio Blaník 

MMS 

2059          

976 

1837          

872 

1813          

897 

1252          

667 

ČRo 1 

Public CRo 

1243          

692 

http://www.radiotv.cz/poslechovost/ 

4 

Ruling of the Constitutional Court of the Czech Republic, 23 February 2004, No. Pl. ÚS 31/03. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 24 CZ: Terrestrial broadcasters 

2005 

2007 

2008 

2009 

2010 

Indicator 

70 

79 

1 

1 

69 

7 

83 

15 

68 

16 

4 

2 

67 

11 

56 

1 

1 

1 

1 

78 

7 

94 

15 

79 

16 

4 

2 

78 

11 

67 

1 

1 

76 

1 

1 

75 

7 

99 

15 

84 

16 

4 

12 

83 

11 

72 

1 

1 

78 

57 

Radio broadcasting operators 

1 

1 

77 

7 

98 

15 

83 

1 

1 

6 

7 

By law (public) 

With nationwide coverage 

Based on licence 

With nationwide coverage 

104 

Radio stations 

15 

89 

Public 

Private 

16 

16 

With nationwide coverage 

4 

12 

82 

11 

71 

1 

1 

4 

2 

88 

11 

77 

1 

1 

Public 

Private 

Without nationwide coverage 

Public 

Private 

Radio stations having other  
target audience than Czech 
nationals 

Public 

Source: Czech Statistical Office 

All the broadcasters are operating terrestrially, some of them on the internet, or on cable 
too. Satellite broadcasting is an exemption. Terrestrial broadcasting is most important. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.5.2.2. 

Television 

Table 25 CZ: Audience Share of TV (2010) %  

Station 

TV Nova 

CT 1 

Prima TV 

1 

CT 2 

CT 24 

Nova Cinema 

Prima Cool 

% 

32.9 

17.3 

6.7 

5.7 

3.4 

3.2 

2.4 

Source: ATO - Association of TV Organizations 

2.2.5.2.3. 

Press and Publishing 

Table 26 CZ: Daily press 

Title 

No. of readers 

No. of copies sold 

Blesk 

Mladá fronta DNES 

Právo 

Aha! 

Sport 

Lidové noviny 

Hospodářské noviny 

1 404 000 

791 000 

415 000 

259 000 

251 000 

219 000 

196 000 

346 962 

221 223 

121 014 

88 214 

50 929 

42 974 

41 511 

http://www.reklamavnovinach.cz/naklady_deniku 

Blesk  and  Aha!  are  tabloids.  There  are  slowly  descendent  trends  in  number  of  readers 
and sold copies.  

2.2.5.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Table 27 CZ: Internet population 

Size of the internet population in the ČR 

6 291 356 

All visitors 

visitors from the ČR 

Number of visits 

7 999 529 

6 146 655 

8 046 057 973 

Number of visits from the ČR 

7 530 179 597 

http://www.netmonitor.cz/sites/default/files/vvnetmon/2011_12_netmonitor_offline_rep 
ort.xls 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 28 CZ: Raking of the websites 

Portal 

Number of visitors December 2011 

Seznam.CZ 

Centrum.cz 

Idnes.cz 

News 

Novinky.cz 

Idnes.cz 

Centrum.cz 

TV 

Stream.cz 

Ceskatelevize.cz 

Nova.cz 

Iprima.cz 

5 394 894 

1 223 434 

1 051 563 

3 494 457 

1 498 734 

1 115 583 

2 749 965 

1 437 435 

847 386 

795 231 

This  is  from  the  website  of  the  Association  for  Internet  Publicity,  which  contains 
information about Internet attendance.  

2.2.5.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

In the Czech Republic there are about 100 cable broadcasting operators with more than 
100  participants.  Most  of  them  are  small  enterprises  broadcasting  in  a  small  city.  The 
greatest  players  are  UPC  Czech  Republic,  Karneval,  T-  Mobile,  Telephonica  O2,  Nej  TV, 
a.s.. 

2.2.5.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The advertising industry has desperately needed more competition for years. The arrival 
of digitisation has shaken the dominant position enjoyed for years by TV Nova, which has 
grown  used  to  imposing  its  own  rules  and  tariffs  on  advertisers.  MPs  decided  to  help 
commercial broadcasters by reducing advertising on ČT and increasing the licence fee.  

High demand for advertising slots has increased the price of advertising. This trend has 
been exacerbated by the overall fall in viewing time, which observers trace to a complex 
of  reasons,  including  the  lifestyle  changes  due  to  economic  growth.  At  the  same  time, 
Czechs  are  dissatisfied  with  the  limited  TV  offer,  which  also  explains  the  scarcity  of 
advertising  space.  The  most  attractive  advertising  slots,  in  prime  time,  are  sold  far  in 
advance. The situation is worsened by the harsh limits on advertising on ČT and the low 
penetration of satellite and cable TV. Eager for a decrease in prices and to reach younger 
audiences,  advertisers  are  increasingly  drawn  to  other  forms  of  communications  and 
media  such  as  the  internet.  The  entrance  of  the  new  digital  players  is  not  expected  to 
dent  the  pre-eminence  of  TV  Nova  and  Prima  TV  in  the  short  term.  However,  as  the 
digital newcomers’ footprint increases over the coming years, they are naturally expected 
to break the current quasi-monopoly in commercial. 

195 


 
 
 
 
  
 
  
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 29 CZ: Advertising revenues in Czech Crowns (26 CZK = 1 Euro) 

January till November 2010 

January till November 2011 

Television 

Press 

23,149,134.692 

19,904,502.503 

Internet (display)  

885,042.347 

Outdoor 

Radio 

Shops 

Cinema 

2,562,973.515 

1,189,068.208 

236,114.646 

207,492.102 

Source: Czech Statistical Office 

2.2.5.3.  Conclusion and Recommendations 

26,325,516.148 

17,884,428.640 

3,718,785.699 

2,933,055.362 

1,043,315.816 

211,987.588 

155,156.800 

After a decade of legal wrangling, digitisation is finally finished. The positive side of the 
delays was that the unsuccessful applicants for digital licences, frustrated advertisers and 
broadcast media professionals, including journalists, instigated a fairly productive debate 
on digitisation, which reached the general public through the media themselves, including 
a number of news servers specialising in digitisation and new technologies. These heated 
discussions  also  led  to  legal  changes  that  contributed  to  unblocking  the  digitisation 
process  and  opening  the  market  to  new  players.  More  digital  channels  appeared  during 
digital switchover in between 2008 and 2012.  

The Government and Parliament should push forward legislative changes to increase the 
independence,  sanctioning  power  and  effectiveness  of  the  Council  turning  it  into  a 
regulator that would be able to monitor the rapid changes in the broadcasting markets. 
The  Council  should,  for  example,  be  entitled  to  adopt  by-laws  for  the  sector.  The 
Government  and  Parliament  should  ensure  that  the  newly  adopted,  liberal  licensing 
system will not endanger diversity and standards in the broadcasting markets. Yet, with 
a  new  procedure  that  makes  licensing  appear  more  like  a  mere  formality,  the  Czech 
Republic  has  one  of  the  most  liberal  licensing  systems  in  Europe.  It  has  yet  to  be  seen 
how this will shape the media market and whether this system will bring more diversity. 
A lot of the regulation has been left to the market. The newly-adopted licensing system 
resembles  the  licensing  of  satellite  and  cable  broadcasting.  The  change  is  likely  to 
intensify competition in the broadcast market, which is something that advertisers have 
wanted to see happen for a long time.  

The  Government  and  Parliament  should  adopt  legislative  changes  to  guarantee  the 
independence of the public service broadcaster. The Government should initiate changes 
in legislation to increase the TV and radio licence fee regularly and in line with the rate of 
inflation or the retail price index. 

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2.2.6.	 

Denmark 

DENMARK 


2.2.6.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.6.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The freedom of speech provision in section 77 of the Constitution1 goes as follows: ‘Any 
person  shall  be  entitled  to  publish  his  thoughts  in  printing,  in  writing,  and  in  speech, 
provided that he may be held liable in a court of justice. Censorship and other preventive 
measures shall never again be introduced.’ The provision has been in force since the first 
Constitution of 5 June 1849, except that the word ‘in writing, and in speech’ was added 
in 1953 (as a minor part of a larger change). 

The  second  subsection  clearly  prohibits  censorship.  Thus, 
legislation  or  other 
arrangement  requiring  approval  before  publication  of  expressions  would  clearly  be 
unconstitutional.  However,  the  ban  on  ‘preventive  measures'  has  not  precluded 
preliminary  measures  such  as  interim  injunctions  or  even  seizures  of  pamphlets  etc.  by 
the  police.2  The  first  subsection  makes  it  clear  that  any  sanction  towards  unlawful 
expressions  must be  decided  by  the  courts,  i.e.,  the  judiciary,  and not  the  executive  or 
the legislature for that matter. 

For  many  years  a  distinction  between  ‘formal’  and  ‘substantive’  freedom  of  speech 
prevailed.  Formal  freedom  relates  to  formalities,  such  as  prior  acceptance,  and 
substantive  freedom  relates  to  the  content  of  the  expressions.  Section  77  fully  protects 
the formal aspect, prohibiting prior procedures, but not the substantial aspect, leaving it 
for the legislature to decide subsequent sanctions for expressions. Thus, in principle any 
kind of expression can be sanctioned subsequently according to a parliamentary act. It is 
solely a political decision, not a legal decision. As a consequence, section 77 cannot play 
any part in e.g. libel, slander and privacy cases, which for many years were solved solely 
with reference to the statutes and their interpretation, not to the constitutional protection 
of freedom of speech. 

The  distinction  between  formal  and  substantive  freedom  of  speech  was  generally 
accepted  until  the  mid-1970s,  where  the  courts  (and  the  Parliamentary  Ombudsman) 
started  to  include  freedom  of  expression  considerations  when  dealing  with  cases 
involving debate of public issues, not merely looking narrowly at the statute in question. 
Contemporary case law indicates firstly that section 77 of the Constitution (still) does not 
play any direct part in such cases (as the provision has never been explicitly mentioned), 
and secondly that the courts do take freedom of speech aspects into consideration when 
interpreting the statutes and deciding concrete cases.3 

From around 1990 the courts start to take judgments from the ECtHR into consideration. 
This is before the ECHR was incorporated into Danish statutory law (which happened in 
19924),  but  after  the  first  conviction  of  Denmark  before  the  ECtHR  (Hauschildt  v. 
Denmark, 24 May 1989.). From this time on  it has been impossible to isolate European 

1 

2 

3 

4 

Act No 169/1953.
 
U 1949.922 H.
 
See inter alia U 77.872 V, U 80.1037 H and U 87.726 H.
 
Cf. Consolidated Act 750/1998 with later amendments.
 

197 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
  
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

human rights from Danish national law, and section 77 of the Constitution still plays no 
part in the protection of freedom of speech, except for the works written by constitutional 
scholars. 

There  are  no  provisions  in  the  Constitution  relating  directly  to  broadcasting  issues  or 
protection of the press or the media at large. 

  Freedom to receive and to access information 

There  are  no  constitutional  provisions  relating  to  access  to  information  from  the 
executive. 

2.2.6.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

With  regard  to  broadcasting,  section  1  of  the  Broadcasting  Act5  provides  the  public 
service6  undertakings  Denmark’s  Radio  (DR),  the  regional  TV2  stations  and  the 
nationwide TV2 with a statutory right to provide programme services. An administrative 
license  is  thus unnecessary.  Provision  of  programme  services  for  other  enterprises  than 
the public service undertakings requires either a permission from or registration with the 
Radio and Television Board7. 

The statutory right applies only to the public service activities. Programme services which 
fall  outside  of  the  public  service  activities  require  a  permission  or  registration.  A 
permission is only required if the programme services require access to scarce spectrum 
resources. Where permissions are required they are issued subject to a public tender. In 
other cases only a registration is required. Hence, providers of e.g. cable or satellite radio 
and TV as well as online services need only to be registered. 

No notification requirements for print publications exist. 

- Media pluralism/ownership; competition law aspects 

There is no general regulation on media ownership under Danish law. Hence, no general 
ownership  restrictions  exist  with  respect  to  changes  in  ownership,  neither  within  a 
specific media sector (television, radio, print, Internet, etc.) nor between different media 
sectors (cross ownership). There are no restrictions in foreign undertakings ownership in 
Danish media undertakings either. 

This  means  that  changes  in  the  ownership  of  media  undertakings  are  in  general  only 
subject to the general merger control rules in section 12 of the Danish Competition Act.8 
Pursuant hereto the merger control rules apply to mergers where i) the aggregate annual 
turnover in Denmark of all undertakings involved is more than DKK 900 million and the 
aggregate  annual  turnover  in  Denmark  of  each  of  at  least  two  of  the  undertakings 
concerned  is  more  than  DKK  100  million;  or  ii)  the  aggregate  annual  turnover  in 
Denmark  of  at  least  one  of  the  undertakings  involved  is  more  than  DKK  3.8  billion  and 

5 

6 

7 

8 

Consolidated Act No 988/2011.
 
The Broadcasting Act section 10 stipulates that the public service institutions in their programme planning
 
shall aim at ‘quality, versatility and diversity’. 
Ibid, section 45.  
Consolidated Act No 972/2010. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  aggregate  annual  world-wide  turnover  of  at  least  one  of  the  other  undertakings 
concerned is more than DKK 3.8 billion. 

Mergers  covered  by  the  threshold  rules  must  be  notified  to  the  Competition  Council 
before the merger can be carried out. If the merger is assessed to create or strengthen a 
dominant  position  as  a  result  of  which  effective  competition  would  be  significantly 
impeded,  the  Council  can  prohibit  the  merger.  If  the  Council  approves  a  merger,  the 
Council may attach conditions and obligations to the approval. 

The merger control rules, however, are primarily concerned with a transaction's effect on 
competition  in  the  relevant  market,  not  concerns  regarding  media  pluralism  or  other 
media political or societal considerations. 

The absence of general media ownership rules – and the reliance on general competition 
law  –  does  not  mean  that  considerations  regarding  media  pluralism  do  not  exist  under 
Danish  law.  Several  provisions  scattered  around  in  various  acts  and  other  regulatory 
measures intend to safeguard media pluralism. Considerations regarding media pluralism 
follow inter alia from the Act on Radio Frequencies9 section 14(2), according to which the 
IT and Telecoms Agency, when issuing a frequency license, can impose conditions which 
restrict  the  supply  of  certain  services  if  such  restrictions  are  found  to  be  necessary  in 
fulfilling a common aim, including the promotion of media pluralism. 

- Legal framework for psm; ability to fulfill their tasks 

The  public  service  institutions’  (DR,  TV2/Denmark  and  the  regional  TV2  companies) 
organisation,  funding  and  tasks  are  regulated  in  the  Broadcasting  Act.  Their  obligations 
apply  to  both  activities  on  radio  and  TV  and  online  media.  DR  and  the  regional  TV2 
companies  are  financed  via  the  public  service  license.  TV2/Denmark  is  financed  via 
advertisements  and  subscription  fees.  In  general,  the  public  service  media  are  able  to 
fulfill  their  tasks  and  perform  well.  The  Radio  and  Television  Board  (an  independent 
authority under the Ministry of Culture) oversees that the public service media fulfill their 
tasks. 

- The role and functioning of regulatory authorities in these respects 

See above regarding the Competition Council and the Radio and Television Board. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Limitations in freedom of speech are largely regulated by criminal law. The Penal Code10 
has provisions dealing with e.g. intrusion of privacy, dissemination of private information, 
defamation, libel, hate speech and blasphemy. These provisions also apply to the media. 
However, when dealing with cases involving the media the courts take into consideration 
the “information aspect” and weigh the opposing interests, on the one hand the interest 
to society of the information disseminated to the public, and on the other hand the public 
interest  behind  the  provision  limiting  the  freedom  of  information  in  the  specific  case. 
Moreover,  the  circle  of  persons  who  can  be  held  liable  when  a  media  is  violating  the 
provisions of the Penal Code is regulated under the Media Liability Act. 

9 

10 

Act No 475/2009. 
Consolidated Act No 1062/2011. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Journalists who work for a media covered by the Media Liability Act are entitled to protect 
their sources by exceptions to the duty of giving evidence in court, cf. the Administration 
of  Justice  Act11  section  172,  and  protection  against  seizure,  search  and  edition  (the 
obligation  to  hand  over  documents  to  the  court),  cf.  the  Administration  of  Justice  Act 
sections  804  and  807.12  The  protection  also  includes  due  considerations  as  to  the 
importance of the protection of sources, not primarily as a privilege for journalists, but as 
a prerequisite for a free flow of information. 

The Media Liability Act13 applies to three groups, cf. section 1: (1) domestic periodicals; 
(2)  DR  and  TV  2  and  other  stations  with  sending  permissions  (either  authorization  or 
registration); and (3) any other printed or electronic material (including online services) 
with news reporting characteristics. In order to be covered by the Media Liability Act, the 
last group must report itself to the Press Council, cf. section 8. 

The  Media  Liability  Act  instigates  a  very  special  liability  regime  in  order  to  protect  the 
free flow of information. Roughly, the main idea is that there are two principal actors, the 
wrongdoer,  i.e.,  the  one  who  has  actually  made  a  racist  remark  or  written  a  defaming 
statement,  and  the  editor  who  may  have  done  nothing  except  being  the  editor.  As  a 
point  of  departure,  nobody  else  can  be  held  liable,  even  though  they  have  participated 
one  way  or  the  other.  Thus,  the  speaker  who  reads  out  an  unlawful  statement,  the 
newspaper  vendors  and  the  signal  carriers  are  not  liable  even  though  they  may  have 
contributed  to  the  unlawful  act  by  disseminating  unlawful  expressions.  Explicitly 
publishers or other owners of media are (with a few exceptions) not liable for the content 
of  the  media.  Generally,  the  editor  is  liable  for  any  anonymous  content;  i.e.,  not  only 
anonymous articles or letters to the editor (which in practice are never anonymous), but 
also headlines etc. 

Being included in the Media Liability Act is not only relevant for liability issues, but for a 
range of other questions: 

The Press Council (see further below, ‘codes of conduct’), which gives opinions in relation 
to ethics of journalism, has only authority to deal with media under the Act. Media that 
are  not  covered  do  not  have  to  bother  with  the  Press  Council  –  but  may  have  to  face 
court proceedings as the alternative. 

There  is  a  special  right  for  reply  under  the  Media  Liability  Act  under  sections  36  to  40. 
Only media under the Act have this obligation. 

The rules in the Administration of Justice Act regarding protection of sources, restrictions 
in search, seizure and obligations to produce documents etc. in court are all connected to 
the status as media under the Media Liability Act. 

The  media  have  special  rights  in  relation  to  court  cases.  If  the  court  is  considering 
meetings in camera, any present media reporter has the right to protest, and if the court 
in fact does decide to proceed in camera, the media can appeal this decision – provided 
that the media comes under the Media Liability Act. 

The  media  have  special  rights  in  relation  to  access  to  court  material.  The  special  rights 
are contingent on being covered by the Media Liability Act. 

11 

12 

13 

Consolidated Act No 1063/2011.
 
Cf. U 2002.2503 H, U 2000.1005 Ø and 2009.75 Ø.
 
Consolidated Act No 85/1998.
 

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- Specific positive content obligations 

Generally  there  are  in  the  legislation  no  specific  positive  content  obligations,  but  it  is 
worth  mentioning  that  the  radio  station  Nova  FM  is  obligated  to  have  news  and  public 
affairs programmes. 

- Funding schemes for specifically desired content 

The  daily  newspapers  are  subsidized  by  the  Danish  state  primarily  in  two  ways:  they 
receive direct support for the distribution costs and indirect support due to an exemption 
from paying Value Added Tax (VAT). All together, the business in 2007 received Danish 
Kroner  (DKK)  1.3  billion  (approximately  EUR  175,000,000)  on  that  account.  Magazines 
do  not  qualify  for  the  state  subsidy  measures  (neither  the  distribution  support  nor  the 
VAT exemption). 

- Political advertising and/or broadcasting time 

In  relation  to  advertisements  for  political  parties  and  views  section  76  of  the 
Broadcasting Act stipulates that advertisements for political parties, political movements 
and elected members or candidates for political assemblies are not allowed on television. 
Further,  advertisements  for  political  views  and  messages  are  not  allowed  on  television 
during  the  period  from  the  date  on  which  an  election  for  a  political  assembly  or  a 
referendum is called until the election or the referendum has been held. If the date of the 
election  or  the  referendum  is  announced  more  than  three  months  before  it  is  held,  the 
advertisement-free  period  comes  into  force  three  months  before  the  election  or 
referendum is held. 

- Codes of conduct and their organisational framing 

According  to  the  Media  Liability  Act,  section  34,  the  content  and  conduct  of  the  mass 
media  shall  be  in  conformity  with  ethics  of  journalism.  The  legal  norm  “ethics  of 
journalism”  is  based  on  set  of  Guiding  Rules.14  The  Guiding  Rules  are,  as  the  name 
indicates,  not  binding  as  a  statute,  but  only  guiding.  However,  the  Press  Council,  who 
supervises  section  34,  often  –  and  apparently  increasingly  in  recent  years  –  cites  a 
guiding  rule  if  applicable.  Ethics  of  journalism,  however,  covers  a  larger  area  than  the 
Guiding Rules, and the Press Council has set up its own case ‘law’ without backing in the 
rules, especially as regards the use of hidden camera. 

The Press Council is funded by public means. It consists of 8 members appointed by the 
Minister  of  Justice  and  representing  legal  expertise,  editors,  journalists  and  members 
representing  “the  public  opinion”.  The  Press  Council  can  only:  (1)  make  decisions  as  to 
whether the media has acted in accordance with the ethics of journalism; (2) require the 
media to publish the decision; and (3) direct the media to bring a reply (as for this right, 
see  Chapter  4  above).  The  Council  cannot  impose  fines,  require  compensation  to  be 
made, let alone punish the media, and it cannot make decisions as to whether the Penal 
Code or any other law has been violated, all of which are a matter for the courts. All it 
can do is to express its views and require the media to publish it. A media that does not 
publish the view of the Press Council or publish an ordered reply is liable to punishment, 
a  situation  dealt  with  by  the  public  prosecutor  and  the  court.  A  media  that  does  not 
follow  the  content  of  the  decisions  from  the  Press  Council  only  faces  the  hassle  of 
publishing the view by the Council that the media is violating ethics of journalism. 

14 

An English version of the rules can be found on the Press Council's web page www.pressenaevnet.dk. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  Guiding  Rules  states,  inter  alia,  that  the  media  is  obliged  to  bring  correct 
information. When a person is seriously criticized in the media the person must be given 
the  opportunity  to  provide  his  view.  Information  which  can  violate  a  person’s  privacy 
must  be  avoided,  unless  there  is  a  clear  public  interest  which  requires  publication.  To 
avoid  that  the  media  infringe  the  presumption  of  innocence  and  the  right  to  privacy, 
there  are  also  rules  concerning  court  reporting,  including  that  the  name  and  identity  of 
the convicted as a rule may not be released until after the judgment, unless it is a case 
of a clear public interest. Use of hidden camera is as a point of departure to be avoided, 
unless the information cannot be obtained by other means and is of public relevance. 

- The role and functioning of regulatory authorities in these respects 

As  mentioned  in  the  chapters  above,  specific  provisions  regarding  the  role  and 
functioning of the regulatory authorities are described in the applicable Codes and Acts. 

  Distribution Aspects 

- Access to frequencies 

In  general,  media  distribution  aspects  are  regulated  under  the  telecoms  regulation, 
notably  the  Act  on  Electronic  Communications  Networks  and  Services15  and  the  Act  on 
Radio Frequencies16 (implementing the relevant EU telecoms regulation). 

As  a  main  rule  access  to  establish  electronic  communications  networks  or  provide 
electronic communications services do not require authorization from a public authority, 
save where the access is depending on the use of scarce radio frequencies. This means 
that media undertakings that do not provide audiovisual media services or other content 
services themselves, but only distribute media services provided by third party, such as 
operators  of  cable  or  satellite  television  networks  under  Danish  jurisdiction,  are  neither 
required to obtain a programme license pursuant to the Broadcasting Act, nor required to 
obtain an authorization under the telecoms regulation. Hence, they are free to establish 
an  electronic  communication  network  of  any  kind  and  offer  to  content  providers 
(broadcasters  and  others)  to  distribute  their  content  services  to  the  end  users.  Only  if 
radio frequencies are needed, a license is required under the Radio Frequency Act. 

The  use  of  radio  frequencies  –  being  a  scarce  public  resource  –  is  subject  to  a  license 
provided  by  the  Business  Agency,  according  to  section  6(1)  of  the  Frequency  Act.  A 
frequency license is required regardless of what kind of communications service is being 
transmitted  via  the  frequency.  Thus,  the  use  of  radio  frequencies  for  broadcasting 
purposes  also  requires  a  license  pursuant  to  the  Frequency  Act.  However,  if  a 
broadcaster  has  obtained  permission  under  the  Broadcasting  Act  which  requires 
possession  of  a  radio  frequency,  a  frequency  license  under  the  Frequency  Act  will 
automatically be issued. 

The  allocation  of  available  frequencies  is  based  on  a  ‘first  come,  first  served’  principle, 
see  section  7.  However,  if  the  number  of  applicants  exceeds  the  number  of  spare 
frequencies,  the  licenses  are  awarded  subject  to  an  auction  (based  solely  on  the  price 
offers) or a public tender (based on a number of criteria). Previously, a specific frequency 
was reserved for specific services (e.g., mobile communication, data broadband services, 
etc.). In conformity with the developments in the underlying EC regulation, the Business 
Agency  can  now  decide  that  a  certain  frequency  is  not  subject  to  any  restrictions  with 

15 

16 

Act No 169/2011.
 
Act No 475/2009 on Radio Frequencies.
 

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regard to choice of service. Likewise, allocated radio frequencies could previously only be 
assigned  with  consent  of  the  IT  and  Telecom  Agency.  Now,  frequencies  can  be 
transferred without consent, however, provided that the transfer does not unduly restrict 
competition  on  the  relevant  market.  The  IT  and  Telecom  Agency  and  the  Competition 
Council oversee the effect on competition resulting from a license transfer. 

- Access to distribution networks and control of actual conditions 

In  accordance  with  Article  18  of  the  Framework  Directive  the  Danish  Act  on  Electronic 
Communications Networks and Services section 48 set forth rules on third party’s right to 
access  to  “bottlenecks”  related  to  digital  television  in  the  form  of  application  protocol 
interfaces (API) and electronic programme guides (EPG). The rules are supervised by the 
Business Agency. Apart from this, the general rules in the Competition Act apply. 

There are no rules regarding circulation instruments for the press, except that the printed 
press receives state subsidy for their distribution systems. 

- Must-carry/must-offer rules for electronic media 

The Broadcasting Act section 6(1) contains the ‘must-carry’ rules, according to which the 
owners  of  communal  aerial  installations  are  required  to  ensure  that  the  public  service 
channels  from  DR  (DR1  and  DR2,  the  Children’s  channel  and  the  Cultural  channel)  and 
TV2  as  well  as  the  regional  TV2  stations  are  distributed  in  the  network.  The  purpose  of 
the  must-carry  obligations  is  to  ensure  that  the  part  of  the  population  which  receives 
radio  and  television  programmes  via  cable-based  networks  has  access  to  the  public 
service channels. The Ministry of Culture supervises the must-carry rules. 

- Role of platform operators 

The switch from analogue terrestrial to digital terrestrial television (DTT) was effected on 
1 November 2009, from which date the analogue signal was cancelled and replaced with 
the  digital.  The  Swedish  company ‘Boxer’  has,  subject  to a  public  tender  (conducted  by 
the Radio and Television Board), been appointed as gatekeeper on the new platform, i.e. 
is  the  exclusive  administrator  of  the  available  frequencies  (save  the  frequencies  which 
are by statute allotted to the public service broadcasters or other purposes, e.g., mobile 
television). Pursuant to the DTT rules set forth in the Broadcasting Act, access to the DTT 
platform  is  based  on  a  commercial  agreement  on  market  terms  between  the  content 
provider and the gatekeeper. 

- The role and functioning of regulatory authorities in these respects 

See  above  regarding  the  Business  Agency,  the  Ministry  of  Culture  and  the  Radio  and 
Television Board.  

  Access to Information 

- Transparency of media ownership situations 

The law foresees no special rules on transparency.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Accountability of public service media 

The  public  service  media  are  obligated  to  enter  into  a  public  service  contract  with  the 
Minister of Culture, and to prepare annual reports to the Minister on the fulfilment of the 
objectives set forth in the contract.  

- Freedom of information laws 

Access  to  information  contained  in  public  documents  and  files  are  regulated  by  the 
Freedom of Information Act.17 According to section 1 of the, the scope of the Act is very 
broad,  as  it  applies  to  ‘all  activity  exercised  by  the  public  administration’.  The  Act  does 
not  apply  to  the  courts  or  legislators.  Documents  relating  to  criminal  justice  or  the 
drafting  of  bills  before  they  are  introduced  in  the  Danish  Parliament  (Folketinget)  are 
exempted.  Authorities  who  orally  receive  information  of  importance  to  a  pending  case 
have an obligation to prepare a written note of the information, see section 6(1). 

The  main  rule  of  the  Act  is  section  4(1),  which  provides  ‘everyone’  with  a  right  to 
demand documents that are subject to administrative case work or procedure. The right 
is primarily used by journalists, but also private individuals and organizations make use 
of  the  Act.  The  notion  of  ‘documents'  is  interpreted  widely,  encompassing  not  only 
physical  documents  (papers)  but  also  electronic  documents,  tapes,  microfilm,  etc.  It  is, 
however, a requirement according to section 4(3) that a person demanding access is able 
– at least broadly – to identify the documents or case he/she wants to examine.18 

Besides  the  right  according  to  section  4(1)  to  demand  access  to  documents  in  general, 
section  4(2)  provides  a  person  whose  personal  information  is  included  in  a  document 
within a public authority with the right to access to that information. The right pursuant 
to  section  4(2)  in  the  Freedom  of  Information  Act  is  supplemented  by  a  similar  right 
according to the Data Processing Act19 Chapter 9. 

Chapter 3 of the Act (sections 7–14) contains a number of exceptions to the main rule of 
access in section 4(1). For instance, due to considerations to the administrative decision-
making process, section 7 exempts internal documents, e.g., recommendations from civil 
servants  to  ministers  and  minutes  of  proceedings.  Records,  documents  and  minutes  of 
the  Council  of  State  and  meetings  between  ministers,  correspondence  between 
authorities  and  outside  experts  in  drafting  laws  or  for  use  in  court  proceedings  or 
deliberations  on  possible  legal  proceedings,  as  well  as  material  gathered  for  public 
statistics  or  scientific  research  are  also  exempted  in  their  entirety  according  to  section 
10. 

However,  notwithstanding  sections  7  and  10  information  in  such  documents  which 
regards  factual  circumstances  is  subject  to  access  in  accordance  with  the  main  rule  in 
section  4(1),  see  section  11.  Hence,  such  information  must  be  extracted  from  the 
relevant documents which are exempted from access. 

Access to information can also be restricted to the extent it is deemed necessary subject 
to considerations relating to the security of the state and defence of the realm, protection 
of foreign policy, law enforcement, taxation and public financial interests, see section 13. 

The  authorities  are  obliged  to  consider  in  each  case  whether  access  to  a  wider  extent 
than  stipulated  can  be  provided.  The  Parliamentary  Ombudsman,  who  supervises  and 

17 

18 

Act No 572/85.
 
See e.g. the Parliamentary Ombudsman’s case 2001-0619-501 and case 1996–2735-401.
 

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controls the legality of the public administration's decisions and activities, has stated that 
this  obligation  is  considerably  strong  with  regard  to  the  press'  requests  for  access  to 
information. 

Pursuant  to  section  15(2),  an  authority's  decision  on  access  to  information  can  be 
brought  before  the  authority  which  is  competent  to  handle  complaints  regarding  the 
substance  matter  of  the  case  from  which  the  request  on  access  is  derived.  Pursuant  to 
section 16, authorities must respond as soon as possible to requests, and if the response 
takes  longer  than  ten  days  they  must  inform  the  requestor  of  why  the  response  is 
delayed  and  when  an  answer  is  expected.  In  practice,  it  happens  very  often  that  the 
response  takes  a  lot  longer  than  ten  days,  and  information  on  when  an  answer  can  be 
expected is often insufficient, making it difficult for notably journalists to obtain access in 
due time. 

Decisions  regarding  access  to  documents  can  also  be  brought  before  the  Parliamentary 
Ombudsman, cf. the Ombudsman Act.20 

Besides access to documents, access to information in the public sector can be achieved 
via access to meetings held in public authorities. As opposed to documents there are no 
general rules on the public's (including the press) access to meetings in the public sector. 
In  the  absence  of  such  general  rules  the  starting  point  is  that  unless  an  express  rule 
authorizes access  to  specific  meetings  held  in  the  public  sector, no right  to  such  access 
exists. Court hearings are open unless decided otherwise by a statute or according to a 
statute, section 28a of the Administration of Justice Act. When delivering judgments and 
passing sentences, the court is always open, cf. section 28a. 

- Accessibility of products/services and distribution networks 

To  the  knowledge  of  the  author  of  this  report,  there  are  no  relevant  schemes  to  be 
reported upon in the above regards. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The  Ombudsman  controls  all  parts  of  the  administration  on  behalf  of  the  Parliament. 
He/she is, however, independent of Parliament in the discharge of his/her functions. Any 
person  can  lodge  a  complaint  with  the  Ombudsman  against  a  public  authority.  The 
Ombudsman  can  also  start  its  own  investigations.  The  Ombudsman  decides  for 
himself/herself  whether  he/she wants  to  investigate  a  case  or  not. Thus,  as  opposed  to 
the courts the Ombudsman is not forced to take up a case. 

The Ombudsman has no power to impose formal sanctions. Hence, he/she cannot alter or 
repeal an authority's decision on access to information, or order public authorities to act. 
According to section 22 he/she can only review decisions and issue his/her opinions and 
recommendations,  e.g.,  that  requested  documents  be  released  or  that  the  authority 
justify its decisions better. His/her recommendations are, however, generally followed by 
the administration. 

19 

20 

Act No 429/2000, implementing Directive 95/46/EC on the Processing of Personal Data. 
Act No. 473/1996. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Participation in media operators/(self-)regulatory bodies 

As mentioned above, the Press Council consist of inter alia two members of “the public”. 

2.2.6.2.  Main Players in the Media Landscape 

2.2.6.2.1 

Radio 

A  large  number  of  radio  channels,  Danish  as  well  as  foreign,  are  available  to  Danish 
listeners  via  terrestrial  networks,  cable,  satellite  or  the  Internet.  However,  the  Danes 
almost exclusively listen to Danish-produced radio. 

Besides DR's 3 nationwide public service radio channels there is a 4th nationwide channel 
with  public  service  obligations  which  previously  belonged  to  DR.  However,  in  order  to 
create  more  competition  on  public  service  radio  the  channel  was  in  2011  subject  to  a 
public  tender  allotted  to  a  new  station,  Radio24/7.21  Further,  there  are  two  partly 
nationwide  FM  radio  channels,  which  subject  to  public  tender  are  allotted  to  the 
commercial  stations  Nova  FM  (owned  80%  by  SBS  Broadcasting  and  20%  by  TV2)  and 
Radio  100  FM  (owned  by  Talpa  Radio  International).  In  addition  to  the  nationwide 
channels, there are approximately three hundred local radio stations, commercial or non­
commercial.  The  non-commercial  stations  can  apply  for  state  funding  based  on  the 
amount of air-time. 

2.2.6.2.2 

Television 

Until  the  launch  of  TV2  in  1988,  Danmark  Radio  (DR)  had  a  monopoly  to  broadcast 
nationwide  television  on  the  Danish  territory.  A  few  channels  from  our  neighbouring 
countries Sweden and Germany could also be viewed locally in nearby places in Denmark 
due  to  the  surplus  of  signals  which  crossed  the  Danish  border  from  the  transmitters 
placed close to the Danish border. 

Both DR and TV2 are state-owned public service enterprises. As opposed to DR, which is 
financed  by  public  service  licenses22  (and  is  not  permitted  to  sell  television 
advertisements),  TV2  is  solely  financed  by  sale  of  television  advertisements  and  other 
commercial funds. Today, DR also runs the channels DR2, the news channel DR Update, 
a HD (high definition) channel, a children's channel and a cultural channel. TV2 also runs 
the channels TV2 News, TV2 Charlie, TV2 Zulu, TV2 Film and – in cooperation with Viasat 
– TV2 Sport. Only the ‘mother’ channel, TV2, is subject to public service obligations. 

Despite  the  availability  of  many  foreign  television  channels,  the  Danes  still  prefer  the 
channels from DR and TV2. 

There are also a large number of local or regional stations in Denmark, either commercial 
or non-commercial, which are distributed on cable networks or in ‘windows' on the digital 
terrestrial network. None of these holds a market share of any significance. 

2.2.6.2.3 

Press and Publishing 

The  many  new  digital  media  and changes  in  media  habits  in general  have  resulted  in  a 
decrease of more than 30% of the total number of newspapers sold annually compared 
to  1995.  Today,  there  are  less  than  forty  different  newspapers  left,  most  of  which  are 
local  newspapers  dealing  mainly  with  local  news.  Only  about  ten  are  nationwide,  daily 

21 

22 

Owned jointly by Berlingske Media A/S and the advertising agency People Group A/S. 
DR receives about EUR 400 million annually in public service license fees. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

newspapers  covering  a  broad  spectrum  of  subjects  (news,  sports,  art/culture,  business, 
etc.). 

Printed magazines are sold in subscriptions or in single copies and are published weekly, 
monthly  or  quarterly.  They  normally  cover  a  more  narrow  scope  than  newspapers  and 
are  thus  targeted  at  a  more  limited  segment  of  people.  There  are  more  than  hundred 
different magazines in Denmark. 

2.2.6.2.4	 

Online media (non-linear audiovisual (media) services; websites) 

All  significant  Danish  media  providers,  both  within  print  and  audiovisual  media  services 
(radio,  television,  video,  music,  etc.),  have  established  a  website  on  the  Internet  as  a 
supplement to their main distribution platform. 

2.2.6.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

The  cable  network  operators  YouSee  (a  subsidiary  of  the  incumbent  telecom  provider 
TDC) and Stofa (owned by the Swedish equity company Ratos) cover large parts of the 
country.  Yousee  and  Stofa  are  not  themselves  programme  service  providers,  but  only 
distribute  programmes  provided  by  other  broadcasters.  In  addition,  there  are  several 
hundred  communal  aerial  installations  in  Denmark  which  provide  cable  based  radio  and 
TV to people in local areas. 

The main distributors of satellite television are Viasat (a MTG company) and Canal Digital 
(owned by the Norwegian telecom provider Telenor). Besides distributing other providers' 
channels,  Viasat  and  Canal  Digital  also  distribute  their  own  channels.  As  with  cable 
distribution,  the  channels  are  either  transmitted  directly  to  the  households  or  to 
communal aerial installations. 

Besides,  cable  or  satellite  television  is  also  distributed  via  the  new  digital  terrestrial 
network which by 1 November 2009 replaced the analogue terrestrial network. Subject to 
a  public  tender,  the  Swedish  company  Boxer  has  obtained  the  right  to  administer  the 
distribution  of  channels  on  the  digital  terrestrial  platform,  apart  from  a  number  of 
frequencies  which  by  statute  are  allotted  directly  to  the  Danish  public  service 
broadcasters or reserved for, inter alia, mobile television. 

Finally,  a  growing  number  of  households  –  but  still  a  very  small  part  of  the  total 
households  –  receives  television  via  the  Internet  or  other  IP-based  platforms  such  as 
fibre networks. 

As mentioned, YouSee is a subsidiary of the ISP TDC. No other ISP’s are providing radio 
and TV programmes to the public. 

2.2.6.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

DR dominates the Danish radio market with a market share of almost 70%. Most of the 
remaining 30% market share is held by Radio 24/7 the various commercial stations, with 
Radio 100 FM as the runner-up. 

The channels from DR and TV2 have a market share of more than two-thirds of the total 
television viewing. The last third is divided between a number of foreign enterprises, with 
the  channels  from  the  UK-established  Viasat  (TV3  and  TV3+)  and  SBS  Broadcasting 
(primarily the channels Kanal 4 and Kanal 5) as the dominating ones. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  main  players  of  the  ten  nationwide,  daily  newspapers  are  Berlingske  (owned  by 
Berlingske  Media  A/S,  which  is  owned  by  the  British  controlled  Mecom  Group  PLC), 
Jyllands-Posten  (owned  by  the  joint  venture  JP/Politikens  Hus  A/S),  Politiken  (likewise 
owned  by  JP/Politikens  Hus  A/S)  and  the  two  tabloids  BT  and  Ekstra  Bladet  (owned  by 
Berlingske Media A/S and JP/Politikens Hus A/S, respectively). 

In  the  printed  magazines  sector,  the  Danish  market  is  dominated  by  magazines 
published  by  the  Danish  media  undertakings  Aller  and  Egmont,  together  with  the 
Swedish  Bonnier.  The  total  revenue  from  sale  of  magazines  has,  by  and  large,  been 
constant  in  recent  years,  however,  with  fluctuations  among  the  various  kinds  of 
magazines. 

The  most  popular  newspapers'  websites  as  well  as  the  public  service  broadcasters  DR's 
and TV2's websites are among the most visited by Danish Internet users. 

YouSee  and  Stofa  are  the  biggest  competing  cable  network  operators,  while  Viasat  (a 
MTG  company)  and  Canal  Digital  are  the  dominant  distributors  of  satellite  television  to 
Danish viewers. 

The  competition  on  advertising  has  been  very  intense  among  Danish  newspapers.  In 
2005 the Danish newspapers had a share of 27 percent (421 million Euro), and in 2008 it 
was  down  to  19  percent  (367  million  Euro).  This  only  adds  to  the  fragile  financial 
situation among all papers losing advertising, mainly to the Internet23. 

2.2.6.3.  Conclusion and Recommendations 

In  conclusion,  the  citizen’s  fundamental  right  to  be  fully  and  objectively  informed  is 
generally well insured in Denmark. Although the Constitution itself serves a rather limited 
protection  of  the  media’s  right  to  expression  and  information,  such  protection  follows 
from  Denmark’s  implementation  of  the  ECHR  as  well  as  case  law  and  legal  tradition. 
Danish  media  law  and  regulation  generally  constitutes  a  framework  which  on  the  one 
hand  secures  the  media’s  protection  of  sources,  access  to  court  proceedings  and  public 
documents etc., and on the other hand protects the citizen’s against the media’s violation 
of  privacy,  defamation,  use  of  undocumented  information  etc.  The  legal  framework 
regarding market entry is rather liberal and conforms with the underlying EU regulation. 
The  absence  of  media  ownership  rules  in  Denmark  makes  it  possible  for  media 
companies, national as well as foreign, to expand both vertically and horizontally  in the 
media  value  chain.  For  the  time  being  this  has  not  resulted  in  concentrations  to  the 
detriment  of  competition  and  media  plurality  in  the  Danish  media  market,  but  it  is  an 
issue which should be monitored closely in future.   

23 

http://www.ejc.net/media_landscape/article/denmark/. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

ESTONIA 


2.2.7.	 

Estonia 

2.2.7.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.7.1.1. 

Human rights/Fundamental freedoms 

Human rights and fundamental freedoms are set forth in the Estonian Constitution1 and 
can be restricted by law only if such possibility is specifically set forth in the constitution. 

  Freedom of expression/Freedom of the media 

The  freedom  of  expression  –  everyone’s  right  to  freely  circulate  ideas,  opinions, 
persuasions,  and  other  information  by  word,  print,  picture  and  other  means  -  is 
enshrined in Art. 45 of the Estonian Constitution, as already quoted in the study of 2004 
titled “Information of the citizens in the EU.” 

- Specific safeguards and rights for the media 

The  Estonian  Constitution  does  not  contain  any  specific  safeguards  and  rights  for  the 
media. 

  Freedom to receive and to access information 

The freedom of information – everyone’s right to freely receive information circulated for 
general use, as well as certain information on the work of state and local government or 
personal information held by state and local government - is guaranteed in Art. 44 of the 
Estonian  Constitution  as  already  quoted  in  the  study  of  2004  titled  “Information  of  the 
citizens in the EU.” 

- Specific rights for the citizens 

Art.  44  of  the  Estonian  Constitution  provides  that  Estonian  citizens  may  request 
information, and to the extent and in accordance with procedures determined by law, all 
state  and  local  government  authorities  and  their  officials  are  obliged  to  provide 
information on their work, with the exception of information which is forbidden by law to 
be  divulged,  and  information  which  is  intended  for  internal  use  only.  Furthermore, 
Estonian citizens have the right to become acquainted with information about themselves 
held  by  state  and  local  government  authorities  and  in  state  and  local  government 
archives, in accordance with procedures determined by law. This right may be restricted 
by  law  in  order  to  protect  the  rights  and  liberties  of  other  persons,  and  the  secrecy  of 
children's ancestry, as well as to prevent a crime, or in the interests of apprehending a 
criminal or to clarify the truth for a court case. 

Unless  otherwise  determined  by  law,  the  same  rights  exist  equally  for  Estonian  citizens 
and citizens of other states and stateless persons who are present in Estonia. 

1

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=p%F5hiseadus.  


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Policy Department C: Citizens' Rights and Constitutional Affairs 

	  Safeguards on regulatory authorities 

No such safeguards have been specifically mentioned in Estonian law. 

	  Safeguards on “universal service” 

Universal  service  is  regulated  in  Estonian  law  only  in  the  context  of  electronic 
communications law. 

2.2.7.1.2. 

Media order (de lege lata and de facto) 

The  written  press  is  not  specifically  regulated  in  Estonian  legal  acts  and  relies  on  self-
regulation  and  general  laws,  while  the  requirements  of  the  provision  of  media  services 
such as radio and television services have been laid out in the Media Services Act2 that 
was adopted on 16 December 2010 and that came into force on 16 January 2011. Before 
the  adoption  of  the  Media  Services  Act,  the  same  principles  were  contained  in  the 
Broadcasting Act that became invalid as of the enforcement of the Media Services Act. 

	  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

To enter the market, the media service providers require a media service license. 

According  to  Art.  32  of  the  Media  Services  Act  television  or  radio  service  can  only  be 
provided on the basis of an activity licence for provision of television or radio service that 
is issued to a natural or legal person on the following conditions: its programme service 
complies  with  the  requirements  provided  for  in  the  Media  Services  Act;  its  activities  do 
not cause violation of contractual obligations taken by the Republic of Estonia; it is not by 
means of the governing effect over management connected to the undertaking that has 
been granted the activity licence for provision of television and radio service which may 
result  in  substantially  damaging  the  competition  in  the  media  services  market, 
particularly through creation or reinforcement of the dominant position in the market. 

The  Media  Services  Act  sets  forth  the  following  types  of  activity  license:  activity  license 
for provision of free access television service (Art. 33), for provision of conditional access 
television  services  (Art.  34),  provision  of  radio  service  (Art.  35),  provision  of  satellite 
television  service  (Art.  36)  and  for  temporary  provision  of  television  and  radio  service 
(Art.  37).  Applications  for  activity  license  are  filed  with  the  Ministry  of  Culture  and 
reviewed and evaluated by an Advisory Committee of up to 11 members, which include 
the  representatives  of  agencies  related  to  media  services  and  experts  (Art.  39  and  Art. 
41). 

According  to  Art.  43  Sect.  1  of  the  Media  Services  Act,  for  the  issuance  of  an  activity 
licence  for  the  provision  of  free  access  television  and  radio  service,  a  competition  is 
organised  and  the  license  is  issued  to  the  applicant  who  has  made  the  best  bid  in  the 
selection  procedure.  Art.  43  Sect.  2  of  the  Media  Services  Act  sets  forth  the  criteria  for 
selecting the best bidder, these include among others: 

	  the  diversity  of  the  intended  programme  service  and  distinction  from  other 

programme services of the same kind; 

2 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=xxxxxx01&keel=en 

&pg=1&ptyyp=RT&tyyp=X&query=meedia.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  proportion of own production in the programme service;
 

  target audience; 


  proportion of verbal and news broadcasts in the programme service;
 

  business plan; 


  the former activities of the applicant in the provision of media services;
 

  the  economic  situation  of  the  applicant  and  sustainability  in  the  provision  of  the  


service. 

According to Art. 47 of the Media Services Act, on-demand audiovisual media service can 
be  provided  by  a  media  service  provider  that  has  been  entered  in  the  Register  of 
Economic  Activities,  whereas  such  service  provider  may  provide  only  on  demand 
services. The relevant application for registration is submitted to the Ministry of Culture 
and the information of the application is entered into the Register of Economic Activities 
in the procedure provided for by the Register of Economic Activities Act3. 

National  Broadcasting  is  a  legal  person  in  public  law  founded  by  the  Estonian  National 
Broadcasting  Act  and  it  does  not  require  any  activity  license  or  registration  for  its 
activities. 

The objective of National Broadcasting is to assist in the performance of the functions of 
the  Estonian  state  provided  by  the  Constitution  of  the  Republic  of  Estonia  (Art.  4).  For 
such purposes, National Broadcasting creates programme services, produce and mediate 
programmes and organise other activities which, separately or as a set: 

  support the development of the Estonian language and culture; 

  enhance  the  guarantees  of  the  permanence  of  the  Estonian  state  and  nation,  and 
draw  attention  to  the  circumstances  which  may  endanger  the  permanence  of  the 
Estonian state and nation; 

  assist in the increase of the social cohesion of the Estonian society; 

  assist in the increase of the economic wellbeing and competitive ability of Estonia; 

  assist in the promotion of the democratic system of government; 

  explain the need for the economical use and sustainable development of the natural 

environment; 

  enhance the family-based model of society; 

  assist in the audio-visual recording of Estonian history and culture; 

  guarantee  the  availability  of the  information  needed  by  each  person for  his  or  her 

self-realisation. 

3 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X80016K2&keel=en 

&pg=1&ptyyp=RT&tyyp=X&query=majandustegevuse.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In order to achieve the above goals, National Broadcasting performs the following public 
functions (Art. 5): 

	  produce at least two television programme services and four twenty-four-hour radio 
programme  services;  the  programme  services  must  be  available  to  the  public  by 
public means. As far as possible, the original programmes offered by the television 
programme  services  shall  be  made  available,  to  the  maximum  extent,  to  persons 
with hearing disabilities; 

	  make  available,  to  a  reasonable  extent,  the  programme  services  and  the 

programmes' archive through electronic networks; 

	  produce  other  media  services  with  the  permission  of  the  National  Broadcasting 

Council, and distribute the products related to them; 

	  record  events  and  works  of  significant  importance  to  the  Estonian  national  culture 

or history, and guarantee the preservation of the recordings; 

	  guarantee, under the conditions provided by law, the accessibility of its audio-visual 
records. The records are used for profit-making activities pursuant to the procedure 
provided by the National Broadcasting Council; 

	  distribute  the  programmes  and  media  services  introducing  Estonian  culture  and 

society all over the world; 

	 

intermediate the best works of the world culture; 

	  transmit  programmes  which,  within  the  limits  of  the  possibilities  of  National 
Broadcasting,  meet  the  information  needs  of  all  sections  of  the  population, 
including minorities; 

	  maintain  and  develop  the  professional  creative  and  technical  level  of  National 

Broadcasting; 

	  guarantee the operational transmission of adequate information in situations which 

pose a danger to the population or the state; 

	  reflect, to the maximum possible extent, the events which take place in Estonia in 

its news programmes and other programmes. 

The programme services and media services have to:  

	  meet the objectives of National Broadcasting and serve the public interest; 

	  be diverse and deal with the topics of social life in a balanced manner; 

	  promote communication between the members of the society and social groups, the 

social cohesion of the society, and reflect different opinions and beliefs. 

The  news  programmes  of  National  Broadcasting  have  to  be  diverse,  balanced, 
independent  and  appropriate.  Before  transmitting  the  news,  the  information  on  which 
they are based has to be verified with reasonable diligence. Fact and commentary have 
to be clearly differentiated in a news broadcast. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Launching of print publications in the market does not require any license, registration or 
notification. 

-	 Media pluralism/ownership; competition law aspects 

There  are  no  specific  provisions  in  the  Competition  Act4  with  regard  to  the  media  and 
thus the general competition rules on concentrated parties and mergers also apply to the 
media sector. 

The  Competition  Act  sets  forth  the  criteria  for  determining  when  a  concentration  is 
subject  to  control  in  Estonia.  A  concentration  is  subject  to  control  by  the  Competition 
Authority if, during the previous financial year, the aggregate turnover in Estonia of the 
parties  to  the  concentration  exceeded  6.391.200  EUR  and  the  aggregate  turnover  in 
Estonia of each of at least two parties to the concentration exceeded 1.917.350 EUR (Art. 
21 Sect. 1 of the Competition Act). A concentration is not controlled by the Competition 
Authority  if  the  concentration  is  subject  to  control  pursuant  to  Council  Regulation 
139/2004/EC  on  the  control  of  concentrations  between  undertakings  (OJ  L  24, 
29.01.2004, pp. 1–22), unless the European Commission appoints, pursuant to Article 9 
of  such  Regulation,  the  Competition  Authority  as  the  authority  competent  to  exercise 
control over the concentration (Art. 21 Sect. 2 of the Competition Act). According to Art. 
22 Sect 3 of the Competition Act, the Competition Authority shall prohibit a concentration 
if it is likely to significantly restrict competition in the goods market above all, by creating 
or strengthening a dominant position. 

According  to  Art.  13  Sect.  1  of  the  Competition  Act,  an  undertaking  in  a  dominant 
position  is  an undertaking or several undertakings operating in the same market whose 
position enables it/them to operate in the market to an appreciable extent independently 
of competitors, suppliers and buyers. Dominant position is presumed if an undertaking or 
accounts  for  at  least  40  per  cent  of  the  turnover  in  the  market  or  several  undertakings 
operating in the same market if it/they account for at least 40 per cent of the turnover in 
the market. Art. 16 prohibits the abuse of dominant position. 

There  are  no  restrictions  on  foreign  ownership  of  the  media  services  providers  or  print 
media. 

-	 Legal framework for psm; ability to fulfill their tasks 

The  legal  status,  objective,  functions,  financing,  and  organisation  of  management  and 
activities  of  Estonian  National  Broadcasting  are  set  forth  in  the  Estonian  National 
Broadcasting  Act.5  According  to  Art.  7  of  the  Estonian  National  Broadcasting  Act,  the 
financing of the National Broadcasting is based on its revenue comprised of the following: 

	  the annual appropriation from the state budget; 

	 

	 

income  from  the  sale  of  the  transmission  and  distribution  rights  of  its  own 
programmes and media services; 

income from the grant for use for profit-making activities of the materials from its 
archives; 

4 

5 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X50066K7&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=konkurentsi. 
http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XX10025&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=ringh%E4%E4lingu+seadus.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

	 

income from the sale of the property of National Broadcasting; 

	  gifts and donations which are not deemed to be support received from sponsorship; 

	 

	 

interest and other financial income; 

income from the sale of the products and services of National Broadcasting which is 
not in conflict with the objectives of National Broadcasting; 

	  financing for projects intended for specific purposes; 

	  other income from the activity of National Broadcasting which is not in conflict with 
the  objectives  of  National  Broadcasting  and  which  has  been  approved  by  the 
National Broadcasting Council. 

The  budget  is  prepared  by  the  management  board  of  the  National  Broadcasting  before 
the  beginning  of  the  next  financial  year  or  not  later  than  within  two  weeks  after  the 
approval  of  the  state  budget  by  the  Parliament.  The  budget  sets  out  all  the  income, 
expenditure and financing transactions for the next financial year and is prepared using 
the accrual method, and a cash flow plan for the financial year and the next four years 
shall be appended to it. 

The  budget  of  the  National  Broadcasting  is  approved  by  the  National  Broadcasting 
Council.  Until  the  budget  has  been  approved,  the  expenditure  of  National  Broadcasting 
for  one  calendar  month  cannot  exceed  the  total  expenses  during  the  same  calendar 
month of the previous year. 

During  a  financial  year,  the  National  Broadcasting  Council  may  pass  a  supplementary 
budget  of  National  Broadcasting  in  order  to  correspondingly  increase  or  decrease  the 
revenue and expenditure of National Broadcasting in a balanced manner. 

The National Broadcasting Council approves the procedure for registration and disclosure 
of  the  donations  and  support  for  projects  intended  for  specific  purposes  which  are 
granted  to  National  Broadcasting.  If  such  disclosure  takes  place  via  the  programme 
services of National Broadcasting, the information concerning the supporters and donors 
of a project include only the name of the supporter or donor. 

According to Art. 8 of the Estonian National Broadcasting Act, the National Broadcasting 
possesses,  uses  and  disposes  of  its  assets  for  performance  of  its  functions  pursuant  to 
the procedures established on the basis of the Estonian National Broadcasting Act. 

National Broadcasting has no right to: 

	  be  the  founder  of  a  company  or  non-profit  association,  or  a  shareholder  of  a 

company; 

	  guarantee, with its assets, the liabilities of other persons; 

	  secure its obligations with all of their immovable or movable property or with a part 
thereof  which  exceeds  50  per  cent  of  the  book  value  of  all  of  the  immovable  or 
movable property; 

	  transfer their assets free of charge or for a charge less than the usual value of the 

assets, to grant sponsorships or other financial donations, or give loans. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

National  Broadcasting  is  prohibited  from  assuming  obligations  if,  as  the  result  of  the 
transaction, the planned repayments and interest payments during even one year exceed 
20 % of the annual income of National Broadcasting. 

The  term  for  performance  of  the  obligations  assumed  by  National  Broadcasting  cannot 
exceed twenty five years. 

According  to  Art  9  of  the  Estonian  National  Broadcasting  Act,  each  financial  year,  the 
management board of the National Broadcasting prepares a development plan that must 
cover  the  following  financial  year  and  the  three  financial  years  following  that  year.  The 
development  plan  sets forth  the  goals  for  development  of  the  National  Broadcasting  for 
each  corresponding  financial  year,  the  tasks  for  reaching  such  goals  and  the  reasoning 
behind  it,  and  a  budgetary  strategy  for  reaching  the  development  goals.  Among  other, 
the  development  plan  sets  forth  the  structure  of  the  programme  service  to  be 
transmitted  during  the  financial  year  and  the  considerations  for  its  creation,  a 
justification of how the structure of the chosen programme services helps to perform the 
functions of National Broadcasting, the objectives and reasons for developing the media 
services,  co-operation  with  international  organisations  and  the  principles  for  using  the 
budget planned for the financial year in order to reach the goals and perform the duties 
that have been set. The management board of National Broadcasting submits the draft of 
the  development  plan  to  the  National  Broadcasting  Council  for  approval  not  later  than 
eleven  months  before  the  beginning  of  the  relevant  financial  year.  The  National 
Broadcasting  Council  approves  the  development  plan  not  later  than  by  1  March  each 
year. If the development plan is not approved by the prescribed date, the development 
plan  prepared  during  the  preceding  year  is  deemed  to  be  the  development  plan  for  the 
next year. 

Together  with  the  draft  of  a  development  plan,  the  National  Broadcasting  Council 
receives  also  an  impact  analysis  which  provides  a  reasoned  assessment  of  the 
performance  of  the  development  goals  set  forth  in  the  development  plan  and  the 
conformity of the activity of National Broadcasting to the law. The impact analysis is an 
annex  to  the  development  plan  of  the  next  financial  year  (Art.  12  of  the  Estonian 
National Broadcasting Act). 

In order to receive support from the state budget for the performance of the functions of 
the National Broadcasting as set out in the law, a contract under public law is concluded 
between  National  Broadcasting  and  the  Ministry  of  Culture  (Art.  10  of  the  Estonian 
National Broadcasting Act). The management board of the National Broadcasting submits 
the draft of the contract which has been approved by the National Broadcasting Council 
to  the  Ministry  of  Culture  not  later  than  by  15  February  of  the  current  year. 
Simultaneously  with  approving  the  national  budgetary  strategy,  the  Government  of  the 
Republic  authorises  the  Minister  of  Culture  to  conclude  the  contract.  The  contract  is 
signed by the Ministry of Culture and the chairman of the management board of National 
Broadcasting. If the amount of support allocated from the state budget provided by the 
contract changes after approval of the national budgetary strategy and after the approval 
of  the  state  budget,  or  it  is  altered  by  a  supplementary  budget  or  amendment  to  the 
state budget, the corresponding amendments are made to the contract under the terms 
and pursuant to the procedure prescribed by the contract.  

National  Broadcasting  is  independent  in  the  production  and  transmission  of  its 
programmes, programme services and other media services, and is guided exclusively by 
the requirements of law (Art. 3 of the Estonian National Broadcasting Act). 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

National  Broadcasting  cannot  transmit  advertising  and  teleshopping  and  cannot  receive 
support 
from  sponsorship.  The  National  Broadcasting  Council  may  permit  the 
transmission of advertising or sponsor information in the programmes or media services 
of National Broadcasting as an exception, if: 

	 

	 

it relates to the broadcasting rights of an international major event acquired via the 
EBU (European Broadcasting Union), or 

it relates to the broadcasting rights of a cultural or sports event of significant public 
interest. 

- The role and functioning of regulatory authorities in these respects 

According to Art. 54 of the Media Services Act, the Ministry of Culture has the authority 
of  the  state  supervision  over  the  compliance  of  media  service  providers  with  the  Media 
Services Act. 

According to Art 13 of the Estonian National Broadcasting Act, the National Broadcasting 
Council  (hereinafter  Council)  is  the  highest  directing  body  of  National  Broadcasting  that 
plans  the  activities  of  National  Broadcasting,  organises  the  management  of  National 
Broadcasting and supervises the activities of the management board. 

According  to  Art.  14  of  the  Estonian  National  Broadcasting  Act,  the  Council  consists  of 
members  of  the  Parliament  and  of  acknowledged  experts  in  the  field  of  activity  of 
National  Broadcasting.  On  the  proposal  of  the  Parliament’s  Cultural  Affairs  Committee, 
the Parliament appoints one representative from each faction of the Parliament until the 
date  of  termination  of  the  authority  of  the  composition  of  the  Parliament  (upon 
termination  of  the  authority  of  the  composition  of  the  Parliament,  the  Council  members 
who are members of the Parliament stay with the Council until the entry into force of the 
decision  to  appoint  members  of  the  new  composition  of  the  Parliament  to  the  Council) 
and four experts from among the acknowledged experts in the field of activity of National 
Broadcasting whose term of office lasts for five years.  

The Council has exclusive competence to: 

	  approve  of  and  supervise  over  the  execution  of  the  budget  of  National 

Broadcasting; 

	  approve of the internal audit rules and the work schedule of the internal auditor of 

National Broadcasting; 

	  approve of the procedure for use and disposal of assets of National Broadcasting; 

	  approve  of  the  interim  report  on  execution  of  the  budget  and  the  audited  annual 

account of National Broadcasting; 

	  determine the structure of National Broadcasting; 

	 

increase the number of programme services of National Broadcasting;  

	  exercise  supervision  over  performance  of  the  objectives  and  functions  of  National 

Broadcasting. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

According  to  Art.  34  of  the  Estonian  National  Broadcasting  Act,  the  State  Audit  Office 
exercises  economic  control  over  the  activity  of  National  Broadcasting  pursuant  to  the 
State Audit Office Act, the Technical Supervisory Board exercises control over compliance 
of  the  National  Broadcasting  with  the  Electronic  Communications  Act,  the  Ministry  of 
Culture exercises supervision over adherence to the requirements provided in the Media 
Services Act and Estonian National Broadcasting Act, whereas the Ministry of Culture has 
the right to involve experts in the exercise of supervision. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Art.  13  of  the  Media  Services  Act  sets  forth  the  right  of  a  media  service  provider  to 
determine  the  contents  and  positioning  of  its  broadcasts  and  programmes  within  the 
limits  of  the  media  services  license  held  by  it.  Transmission  of  a  broadcast  or  a  part 
thereof may be prohibited by court in matters being reviewed by it on the grounds and 
following the procedures set forth under the law. 

Art.  15  of  the  Media  Services  Act  sets  forth  the  principles  of  protecting  sources.  The 
person  processing  information  for  journalistic  purposes  is  entitled  not  to  disclose 
information that may reveal the source and can disclose such information only upon the 
prior  consent  of  the  source.  No  consent  for  disclosure  is  needed  if  the  source  has 
knowingly  provided  false  information.  The  same  applies  to  persons  who  due  to  their 
professional  duties  become  aware  of  the  information  that  may  reveal  the  source  of  the 
person processing the information for journalistic purposes. The law further prohibits any 
direct  or  indirect  influencing  of  such  persons  with  the  purpose  to  identify  the  source  of 
information.  Information  enabling  to  reveal  the  source  however  has  to  be  disclosed  on 
the terms and conditions set forth in the Criminal Proceedings Act6. 

According  to  the  amendments  made  into  the  Criminal  Proceedings  Act  in  the  end  of 
2010, the person processing information for journalistic purposes (this include media and 
written  press  journalists  both)  has  the  right  to  refuse  as  a  witness  in  criminal 
proceedings  to  disclose  information  which  may  reveal  the  identity  of  the source  of  such 
information,  except  in  case  the  collection  of  evidence  in  other  way  is  excluded  or 
materially  difficult  and  the  subject  of  the  criminal  proceedings  is  a  crime  which  is 
punishable  with  at  least  up  to  eight  years  of  imprisonment,  there  is  dominant  public 
interest in the testimony and the person is obliged to testify on the grounds of a ruling of 
a preliminary investigation judge or court issued at the request of the prosecutor’s office. 
There is no right to refuse from testifying when testimony is requested by the suspect or 
the  accused.  The  same  applies  with  regard  to  persons  who  in  the  course  of  performing 
his or her duties become involved with circumstances enabling to identify the identity of 
the  source  of  person  processing  information  on  journalistic  purposes.  If  the  court  finds 
that refusal to testify is not related to professional activities, the relevant persons might 
still be obliged to testify. 

Searches  can  be  conducted  at  the  premises  of  the  person  processing  information  on 
journalistic purposes only upon the ruling of a preliminary investigation judge or court. 

Similar rules for refusing to testify are now set forth also in the Code of Civil Procedure7. 

6 

7 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X60027K6&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=kriminaalmenetluse. 
http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90041&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=tsiviilkohtu. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  said  amendments  faced  resistance  and  strong  criticism  from  journalists.  In  March 
2010  six  major  Estonian  dailies  left  some  pages  blank  in  protest  against  the  said 
amendments as these were found to compel journalists to reveal their sources and seen 
as a restriction on press freedom that could lead to imprisonment especially  in the field 
of investigative journalism. 

The  right  to  privacy  is  enshrined  in  Art.  26  of  the  Estonian  Constitution:  “Everyone  has 
the right to the inviolability of private and family life”. 

Art.  11  of  the  Personal  Data  Protection  Act8  allows  processing  of  personal  data  for 
journalistic  purposes  and  disclosing  these  in  media  without  the  consent  of  the  data 
subject  if  there  is  dominant  public  interest  in  it  and  if  it  is  in  compliance  with  the 
principles  of  journalism  ethics.  Disclosure  of  data  cannot excessively  harm  the  interests 
of  the  data  subjects.  If  data  is  being  disclosed  in  accordance  with  the  aforementioned 
principle, the data subject has no right to demand that disclosing of data is stopped. If no 
dominant public interest can be identified, then data can be disclosed upon the consent 
of  the  data  subject  and  in  such  case  the  data  subject  may  demand  at  any  time  that 
disclosure is stopped, unless the continuing disclosure does not harm the data subject’s 
rights excessively. It is not possible to demand stopping of disclosure with regard to such 
data  carriers  over  which  the  person  who  disclosed  the  data  has  no  control  when  the 
request for stopping is submitted. 

Protection  of  one’s  reputation  against  defamation  is  set  forth  in  Art.  17  of  the  Estonian 
Constitution: 

According  to  Art.  131  of  the  Law  of  Obligations  Act,  in  the  case  of  an  obligation  to 
compensate  for  damage  caused  by  defamation  or  by  violation  of  any  other  personality 
right,  the  obligated  person  has  to  compensate  the  aggrieved  person  for  the  expenses 
caused to the person and for damage arising from a decrease in income or deterioration 
of the future economic potential of the aggrieved person. Art. 134 Sect. 2 of the Law of 
Obligations  Act  sets  forth  that  in  the  case  of  an  obligation  to  compensate  for  damage 
arising  from  violation  of  personality  rights,  including  defamation  of  a  person,  the 
aggrieved  person  has  to  be  paid  a  reasonable  amount  of  money  as  compensation  for 
moral damage. The gravity and scope of the violation and the conduct and attitude of the 
person  who  caused damage  to  the  aggrieved  person  after  the  violation  has to be  taken 
into  account  for  the  purposes  of  determining  the  compensation  for  moral  damage  (Art. 
134  Sect.  5).  In  addition  the  court  may,  upon  determining  the  compensation  for  moral 
damage  for  defamation  of  a  person,  inter  alia  by  passing  undue  judgement  or  by 
disclosure  of  incorrect  information,  for  unjustified  use  of  the  name  or  image  of  the 
person,  or  for  breaching  the  inviolability  of  the  private  life  or  other  similar  personality 
rights of the person, take into consideration the need to exert influence upon the person 
who  caused  the  damage  to  avoid  causing  further  damage,  taking  into  account  the 
financial situation of the person who caused the damage (Art. 134 Sect. 6). The concept 
of  so-called  “preventive  damages”  based  on  the  financial  situation  of  the  person  who 
caused the damage is new in Estonian law and was introduced only in the end of 2010.  

So  far  the  issue  of  moral  damage  has  been  problematic.  The  courts  tend  to  adjudicate 
moral damage only in relation to bodily injuries and judgments related to moral damage 
arising  out  of  defamation  are  scarce,  the  biggest  issue  remaining  how  to  assess  the 
amount of moral damage. 

8

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XXXX041K1&keel= 
en&pg=1&ptyyp=RT&tyyp=X&query=isikuandmete.  


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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Pursuant to Art. 1055 Sect. 1 of the Law of Obligations Act if unlawful damage is caused 
continually  or  a  threat  is  made  that  unlawful  damage  will  be  caused,  the  victim  or  the 
person who is threatened has the right to demand that behavior which causes damage be 
terminated or the making of threats with such behavior be refrained from. In the case of 
violation  of  inviolability  of  personal  life  or  any  other  personality  rights,  it  may  be 
demanded,  inter  alia,  that  the  tortfeasor  be  prohibited  to  approach  other  persons 
(restraining  order),  the  use  of  housing  or  communication  be  regulated  or  other  similar 
measures  be  applied.  The  right  to  demand  that  behavior  which  causes  damage  be 
terminated  does  not  apply  if  it  is  reasonable  to  expect  that  such  behavior  can  be 
tolerated  in  human  co-existence  or  due  to  significant  public  interest.  In  such  case,  the 
victim  has  the  right  to  make  a  claim  for  compensation  for  unlawfully  caused  damage 
(Art. 1055 Sect. 2). 

A  notice-and-take-down  policy  has  being  introduced  to  anonymous  comment  sections 
online, a forced outcome of some corresponding court rulings. Internet companies have 
tried  to  decline  their  liability  for  the  content  of  the  anonymous  comments  readers  may 
add to editorial news items. Media sites do not produce this content — rather, it is user-
generated—  and  some  websites  do  not  pre-review  user-generated  content  at  all.  The 
notice-and-take-down  policy  relies  on  readers  to  report  “bad”  comments,  which 
consequently shall be removed from the website by the editorial board.9 

Art. 20 of the Media Services Act entitles any private individual or legal entity, regardless 
of citizenship or location, whose legal rights, especially reputation, has been harmed as a 
result of presenting incorrect facts in the course of provision of media services, to object 
or  request  taking  of  other  equal  measures  allowed  under  the  law.  The  media  service 
provider  has  to  ensure  the  possibility  to  object  or  take  other  equal  measures  without 
presenting any undue deadlines or terms and conditions. In order to object, one has to 
send his or her request in writing to the media service provider within 20 days as of the 
transmission of the broadcast that caused the need for objection. The objection has to be 
transmitted in the same programme free of charge within 20 days as of the receiving the 
request  for  objection.  A  request  for  objecting  may  be  rejected  if  the  objection  is 
ungrounded  and  if  the  request  constitutes  a  punishable  act  or  if  satisfaction  of  the 
request would bring along civil liability for the media service provider or if it violates the 
generally acknowledged moral norms.  

Everyone  has  the  right  to  file  objections  against  statements  made  in  a  programme  of 
National  Broadcasting  within  thirty  days  after  the  programme  was  broadcast.  An 
objection  is  to  be  first  reviewed  by  the  executive  producer  of  the  programme  against 
which  the  objection  was  filed,  and  the  executive  producer  decides  on  broadcasting  the 
objection.  If  the  executive  producer  decides  not  to  broadcast  the  objection,  he  or  she 
informs the ethics adviser of the National Broadcaster thereof and submits the objection 
together  with  his  or  her  explanation  to  the  management  board  of  the  National 
Broadcaster for making a decision. For deciding on the broadcasting of the objection, the 
ethics  adviser  submits  a  reasoned  opinion  to  the  management  board.  The  National 
Broadcasting  shall  broadcast  the  objection  or  make  a  decision  not  to  broadcast  the 
objection  without  delay  but  not  later  than  within  thirty  days  after  receiving  the 
application for broadcasting the objection. 

- Specific positive content obligations 

According  to  Art.  8  of  the  Media  Services  Act,  a  television  and  radio  service  provider 
reserves  inter  alia  that  at  least  five  percent  of  the  daily  transmission  time  of  the 

9

http://www.ejc.net/media_landscape/article/estonia/. 

219 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

programme  service  on  at  least  six  days  a  week  for  transmitting  self-produced  news 
programmes,  except  in  the  programme  service  of  National  Holidays.  A  self-produced 
news programme is also deemed to be such a news programme that includes the news 
produced by at least two different news producers. 

Each year the television service provider has to submit to the Ministry of Culture the data 
on meeting the above requirement.  

- Funding schemes for specifically desired content 

According  to  Media  Services  Act,  news  and  current  affairs  programmes  shall  not  be 
sponsored. There are no funding schemes for specifically desired content. 

- Political advertising and/or broadcasting time 

The  programmes  of  National  Broadcasting  have  to  be  politically  balanced.  In  particular, 
the political balance requirement must be adhered to during the period of active election 
propaganda in the elections of the President of the Republic, the Riigikogu, the European 
Parliament and local government councils. For such purpose, National Broadcasting gives 
equal opportunities to all the candidates participating in the elections of the President of 
the  Republic,  to  all  the  political  parties  and  independent  candidates  participating  in  the 
elections of the Riigikogu and the European Parliament and, taking account of the large 
number  of  election  coalitions  and  independent  candidates  in  the  elections  of  local 
governments,  creates  opportunities  for  as  many  powers  as  possible  who  participate  in 
the  elections  and  have  an  integral  programme  to  adequately  present  their  viewpoints. 
Similarly to the elections of local governments, equal opportunities have to be created in 
the event of referendums. The rules for reflecting elections in the programme services of 
National Broadcasting are approved by the National Broadcasting Council and such rules 
are  disclosed  not  later  than  within  a  week  after  the  date  of  announcement  of  the 
elections. 

Art.  14  of  the  Media  Services  Act  requires  the  media  service  providers,  who  allocate 
during  the  active  election  rallies  of  elections  to  European  Parliament,  Estonian 
Parliament,  councils  of  local  governments  broadcasting  time  for  a  party  or  a  political 
movement  to  present  their  opinions,  to  offer  an  equal  presentation  opportunity  without 
any undue delay also to another party or political movement upon their written request. 

- Codes of conduct and their organisational framing 

There are still two main self-regulation bodies – the Council of the Public Word10 and the 
Press  Council11  -  as  described  in  the  study  of  2004.  These  two  bodies  do  not  recognize 
each other, but use the same Code of Ethics, which is followed both by electronic media 
and  written  media  journalists.  The  principles  set  forth  in  the  Code  of  Ethics  have 
remained  the  same  since  2004.  The  majority  of  mainstream  media  organizations 
(including  online  media  and  TV  broadcasters)  only  recognize  the  press  council  that  is 
affiliated  with  the  Estonian  Newspaper  Association.  The  original  press  council  works 
jointly  with  the Journalists’  Union,  still  finding  cooperation  with  some  media  outlets  and 
channels12. 

Art. 22 of the Media Services Act allows persons active in the sphere of media services to 
create  on  their  own  initiative  a  system  the  participants  in  which  voluntarily  determine 

10 

11 

http://www.asn.org.ee/.  
http://www.eall.ee/pressinoukogu/index.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

common recommendations and rules establishing standards as an operation manual with 
the purpose of regulating the activities taking place in the sphere of media services and 
establish  the  limits  of  good  and  bad  practises  for  the  participants.  Such  self  regulating 
associations also determine voluntarily the procedure of adhering to the established rules 
and the liability for breach thereof. 

Complaints  can  be  also  filed  with  the  Council  of  the  Public  Word13  and  the  Press 
Council14. 

The Press Council accepts a complaint about an article not older than three months and 
rejects  a  complaint  in  case  the  identity  of  the  person  filing  a  complaint  cannot  be 
ascertained,  if  there  already  is  a  pending  court  procedure  in  the  same  issue  or  in  case 
the complaint is not related to good journalistic practices15. 

The  Council  of  the  Public  Word  accepts  a  complaint  about  an  article  or  broadcast  not 
older  than  six  months.  On  its  own  initiative,  the  council  may  review  also  complaints 
regarding older materials. The complaint is not processed if:  

	  the  case  is  already  pending  in  court  or  investigative  body  (an  exception  can  be 

made at the request of such court or investigative body; 

	  the case is not in the competence of the Council of the Public Word; 

	 

it is evident from the materials of the case or complaint that the matter is a legal 
dispute; 

	  the object of the complaint is not evident; 

	  the contents of the complaint is explicit or derogatory or slanderous; 

	  the  complaint  has  not  been  translated  into  Estonian  (an  exception  can  be  made  if 
the  person  filing  the  complaint  is  a  citizen  of  a  foreign  country  and  in  a  language 
easily understandable for the members of the council); 

	  the complaint is anonymous16. 

- The role and functioning of regulatory authorities in these respects 

The relevant supervisory functions are carried out by the Ministry of Culture. 

According to Art. 38 of the Estonian National Broadcasting Act, the National Broadcasting 
has  to  record  all  programmes  that  are  broadcast,  whereas  such  recordings  of 
programmes  have  to  be  preserved  at  least  for  thirty  days  after  the  time  of  their 
broadcasting. After the expiry of the said term, deliberation whether the recording has to 
be  preserved  for  a  specified  term  or  without  a  specified  term  will  take  place  by  a 
committee  formed  by  the  management  board  of  the  National  Broadcasting,  which 
committee, based on the guidelines concorded with the National Archives and approved 
by the National Broadcasting Council, will deliberate the preservation of the recording of 
programmes. If an objection is submitted concerning the content of a programme or the 

12 

13 
14 
15 
16 

http://www.ejc.net/media_landscape/article/estonia/. 
http://www.asn.org.ee/. 
http://www.eall.ee/pressinoukogu/index.html. 
http://www.eall.ee/pressinoukogu/kuidas_esitada_kaebust.html. 
http://www.asn.org.ee/kodukord.html. 

221 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
  
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

content of a programme is contested before the expiry of the said term of preservation 
the  recording  of  the  programme  is  preserved  until  the  objection  has  been  broadcast  in 
the programme service of National Broadcasting or until the dispute is brought to a final 
conclusion. 

According to Art. 39 of the Estonian National Broadcasting Act, everyone has the right to 
examine  the  recording  of  a  programme  within  the  above  referred  term  of  preservation. 
Where  necessary,  the  National  Broadcasting  issues  a  copy  of  the  programme  to  the 
applicant. The applicant bears the costs of making the copy. 

According  to  Art.  32  Sect  1  of  the  Personal  Data  Protection  Act,  the  supervision  of  the 
compliance  with  the  principles  of  the  Personal  Data  Protection  Act  is  exercised  by  the 
Estonian Personal Data Protection Inspectorate.  

According  to  Art.  22  and  23  of  the  Personal  Data  Protection  Act,  a  data  subject  has  a 
right of recourse to the Data Protection Inspectorate or a court if the data subject finds 
that  his  or  her  rights  are  violated  in  the  processing  of  personal  data.  If  the  rights  of  a  
data subject have been violated upon processing of personal data, the data subject has 
the  right  to  demand  compensation  for  the  damage  caused  to  him  or  her:  on  the  basis 
and  pursuant  to  the  procedure  provided  by  the  State  Liability  Act17  if  the  rights  were 
violated in the process of performance of a public duty, or on the basis and pursuant to 
the  procedure  provided  by  the  Law  of  Obligations  Act18  if  the  rights  were  violated  in  a  
private law relationship. 

  Distribution Aspects 

Requirements related to access to frequencies and distribution networks and must carry 
rules for electronic media are set forth in the Electronic Communications Act19. 

- Access to frequencies 

Radio frequencies are regulated in Chapter 3 of the Electronic Communications Act. The 
manner,  regime  and  purpose  of  using  radio  frequencies  is  determined  in  the  Estonian 
radio  frequency  allocation  plan.  The  preparation  of  the  Estonian  radio  frequency 
allocation plan shall be based on the principles of neutrality of electronic communications 
services and technological neutrality, which observance may be derogated from only for 
the purposes of service quality, maximization of radio frequency sharing and efficient use 
of  radio  frequencies.  The  Estonian  radio  frequency  allocation  plan,  among  other  things, 
determines  the  radio  frequency bands  for  the  introduction  of  new  technologies  together 
with  restrictions  on  new  and  existing  users,  self-planned  frequency  bands  and  radio 
frequency bands the right of use of which is granted by way of public competition or the 
right  of  use  of  which  can  be  transferred.  As  a  rule  the  use  of  radio  frequencies  is 
permitted on the basis of a frequency authorization issued by the Technical Surveillance 
Authority. 

Upon grant of the right to use a radio frequency band by way of public competition, the 
Minister of Economic Affairs and Communications may determine a one-off authorisation 
charge  of  up  to  1,597,000  EUR  and  a  deposit  for  participation  in  the  competition.  The 

17 

18 

19 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X40075K2&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=riigivastutuse. 
http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X30085K4&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=v%F5la%F5igusseadus. 
http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90001K4&keel=en 
&pg=1&ptyyp=RT&tyyp=X&query=elektroonilise+side. 

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one-off authorisation charge is determined as a fixed charge or, in the case of an auction, 
as a starting price. The deposit must be equal to all participants in the public competition 
and must not exceed the one-off authorisation charge taken for the right to use a radio 
frequency  band.  The  deposit  is  returned  after  the  winner  of  the  competition  is 
ascertained.  In  2010  the  Minister  of  Economy  and  Communications  issued  a  regulation 
laying  down  the  procedures  for  holding  a  public  competition  for  granting  frequency 
permits for provision of the service of transmitting television broadcasts and programmes 
in the frequency band 470–790 MHz20. 

The right to use radio frequencies may not be transferred or granted for use on the basis 
of  a  contract  for  use  in  the  case  of  a  frequency  authorization,  whereby  the  right  to use 
radio frequencies in the broadcasting network is granted. 

- Access to distribution networks and control of actual conditions 

Art.  67  of  the  Electronic  Communications  Act  obliges  a  communications  undertaking 
which provides conditional access systems to ensure that the conditional access systems 
allow  the  technical  conduct  of  cost-oriented  cross-checks  of  services  provided  by  other 
communications undertakings by means of conditional access systems. If the access of a 
provider of television or radio services to the potential viewers and listeners depends on 
the conditional access services, a communications undertaking which provides services of 
conditional access to the provider of television and radio services is required to: provide 
to  the  provider  of  television  or  radio  services  on  a  fair,  reasonable  and  non­
discriminatory  basis,  technical  services,  which  allow  the  viewers  or  listeners  equipped 
with  decoding  devices  to  receive  the  digitally  transmitted  services  of  the  provider  of 
television  or  radio  services;  keep  separate  accounts  of  its  activities  as  a  provider  of 
conditional access services. 

- Must-carry/must-offer rules for electronic media 

Art.  90  of  the  Electronic  Communications  Act  sets  forth  the  obligation  of  the 
communications undertaking which provides cable distribution services to guarantee the 
continuous  retransmission  of  the  following  programmes:  television  programmes  of  the 
Estonian  public  provider  of  media  services;  television  programmes  transmitted  by  a 
provider  of  television  services  with  unrestricted  access  that  are  received  in  the  cable 
network area at a signal intensity compatible with the technical requirements and for the 
transmission of which the provider of television services requires no charge. 

The  above  programmes  have  to  be  transmitted  as  a  single  package  based  on  a 
subscription  contract  entered  into  between  the  communications  undertaking  which 
provides  cable  distribution  services  and  the  end-user.  The  programmes  not  specified 
above are transmitted based on an agreement between the communications undertaking 
and  the  end-user.  A  communications  undertaking  must  ensure  the  end-user  with  the 
possibility  to  view  the  programmes  offered  by  way  of  cable  distribution  services  to  the 
full extent of the duration of the broadcasting time, unless the contracting parties agree 
otherwise. 

In May 2012 the private broadcasters TV3 and Kanal 2 raised an issue over leaving the 
freee acess television scheme because it was not clear from the above referred Art. 90 of 
the  Electronic  Communications  Act  whether  they  can  charge  fees  from  the  cable 
distribution  service  providers  for  retransmission  of  their  programmes  or  not,  and  both 

20 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X90001K4&keel=en 

&pg=1&ptyyp=RT&tyyp=X&query=elektroonilise+side (not available in English). 


223 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

concerned  parties  interpret  the  provision  proceeding  from  own  business  interests.  As  a 
result  the  Economic  Affairs  Committee  of  the  Parliament  initiated  amendments  to  the 
said  provision  that  would  clearly  provide  for  such  right  in  order  to  enable  the  private 
broadcasters  to  receive  reasonable  compensation  for  the  significant  costs  they  incur  in 
connection  with  the  production  of  their  programmes.  The  relevant  amendment  law  has 
currently  passed  second  reading  in  the  Parliament  and  is  envisaged  to  be  adopted  by 
autumn.  The  cable  distribution  service  providers  have  however  questioned  this  move, 
because it might raise prices of their services to end-users. 

- Role of platform operators 

Art  901  of  the  Electronic  Communications  Act  sets  forth  the  obligation  of  a  provider  of 
multiplexing services to ensure, at the request of a public provider of media services, the 
transmission of television programmes of the latter. A public provider of media services 
must give the provider of multiplexing services an advance written notice of its wish for 
least  six  months  prior  to  the 
transmission  of 
commencement  of  transmission.  A  provider  of  multiplexing  services  who  transmits 
television  programmes  of  the  public  provider  of  media  services  and  the  holder  of  an 
activity  licence  for  the  provision  of  television  services  with  unrestricted  access  may 
change the transmission parameters such that the reception of television programmes is 
guaranteed in conformity with the established requirements. 

its  television  programmes  at 

- The role and functioning of regulatory authorities in these respects 

Radio frequencies are managed by the Ministry of Economic Affairs and Communications 
and the Technical Surveillance Authority. 

Supervision over compliance with the Electronic Communications Act is exercised by the 
Ministry  of  Economic  Affairs  and  Communications  and  the  Technical  Surveillance 
Authority  (granting  of  authorizations  and  technical  aspects)  and  the  Competition 
Authority  (market  related  issues).  In  aspects  concerning  end-users  as  consumers, 
supervision is also exercised by the Consumer Protection Board. 

  Access to Information 

- Transparency of media ownership situations 

All  media  undertakings  have  to  be  also  registered  in  the  Estonian  Commercial  Register 
and depending on the type of undertaking their shares have to be or may be registered 
in Estonian Central Register of Securities, which registers both are public and accessible 
to everyone.  

- Accountability of public service media 

The report on execution of the budget and the audited annual account is published on the 
website  of  National  Broadcasting  not  later  than  by  the  end  of  the  month  of  their 
preparation. 

A  development  plan  approved  by  the  National  Broadcasting  Council  is  forwarded  to  the 
Ministry  of  Finance  through  the  Ministry  of  Culture.  A  development  plan  is  published  on 
the website of National Broadcasting. 

224 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The contract under public law concluded between National Broadcasting and the Ministry 
of  Culture  in  order  to  is  published  on  the  web  pages  of  the  Ministry  of  Culture  and 
National Broadcasting within one week after the date of signing of the contract. 

The National Broadcasting Council submits a written and an oral report on its activities to 
the Parliament’s Cultural Affairs Committee once a year. 

In order to fulfil its tasks, the Council has the right to examine all documents of National 
Broadcasting  and  to  check  the  accuracy  of the  accounting  of  National  Broadcasting,  the 
existence  of  assets  of  National  Broadcasting  and  the  conformity  of  the  activities  of 
National Broadcasting with the law. The members of the Council may demand copies of 
reports and documents unless the Council decides otherwise. The Council has the right to 
obtain  information  concerning  the  activities  of  National  Broadcasting  from  the 
management board and to demand an activity report and preparation of a balance sheet 
from the management board. 

According to Art. 23 of the Estonian National Broadcasting Act, the management board of 
National  Broadcasting  is  the  management  body  who  represents  and  manages  National 
Broadcasting.  While  doing  so,  the  management  board  is  guided  by  the  budget, 
development  plan  and  strategic  documents  approved  by  the  Council.  The  management 
board  presents  the  Council  with  an  overview  of  the  economic  activities  and  economic 
situation  of  National  Broadcasting  at  least  once  every  three  months  and  gives 
immediately  notice  of  any  material  deterioration  in  the  economic  condition  of  National 
Broadcasting or of any other material circumstances related to the economic activities of 
National Broadcasting. 

After the end of the financial year, the management board of the National Broadcasting 
prepares  the  annual  report  and  activity  report  pursuant  to  the  procedure  provided  by 
law.  The  reports  are  submitted  to  the  Council  of  the  National  Broadcasting  for  approval 
within  four  months  after  the  end  of  the  financial  year.  Prior  to  submitting  the  annual 
report to the Council for approval,  the management board submits the annual accounts 
to  the  auditor  for  audit.  The  audited  and  approved  annual  report  and  activity  report  of 
National Broadcasting are published in the Riigi Teataja Lisa (Annex to State Gazette) and 
the  website  of  National  Broadcasting  (Art.  32  and  33  of  the  Estonian  National 
Broadcasting Act). 

- Freedom of information laws 

As referred to in the constitution, the extent and procedures of access to information are 
determined  by  the  law.  Such  law  is  the  Public  Information  Act21  that  is  in  force  since  1 
January 2001. Although the said legal act has since then over the years undergone some 
amendments, the main principles of access to information have remained essentially the 
same  as  described  in  the  study  of  2004.  The  Public  Information  Act  contains  a  specific 
obligation  of  state  and  local  government  agencies  to  communicate  information 
concerning events and facts that they possess and in respect of which public interest can 
be  presumed  to  providers  of  media  services  or  the  printed  press  for  disclosure  (Art.  30 
Sect.  4).  In  addition,  the  holder  of  information  is  obliged  to  immediately  disclose  any 
information  concerning  any  threats  to  life,  health,  private  property  or  environment  by 
choosing the fastest and most appropriate way to avoid danger and mitigate its potential 
consequences (Art. 30 Sect. 3).  

21 

http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X40095K5&keel=en 

&pg=1&ptyyp=RT&tyyp=X&query=avaliku+teabe.
 

225 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

According  to  the  Public  Information  Act,  state  supervision  over  holders  of  information 
during  compliance  with  requests  for  information  and  the  disclosure  of  information  is 
exercised  by  the  Estonian  Data  Protection  Inspectorate,  who  may  initiate  supervision 
proceedings on the basis of a challenge or on its own initiative (Art. 45 Sect. 1 and 2). A 
person whose rights are violated may file a challenge with  the Estonian Data Protection 
Inspectorate  or  initiate  an  action  with  an  administrative  court  either  personally  or 
through a representative (Art. 46). 

- Accessibility of products/services and distribution networks 

According to Art. 23 of the Media Services Act, an audiovisual media service provider has 
to make its service accessible to people with a visual or hearing disability using for this 
purpose,  among  others,  supplying  the  programme  with  subtitles,  sign  language 
translation,  separate  audio  channels,  teletext  and  other  ancillary  services  that  enable 
people with a visual or hearing disability to use the provided service. 

In Estonia there is no TV or radio license fee for end-users and no specific right to install 
reception devices or any aid schemes to purchase such. In general there are no obstacles 
to  purchase  and  install  reception  devices  in  so  far  as  these  conform  with  the 
requirements and do not create radio interferences. 

There is no state subsidy system for the printed press or private broadcasting in Estonia. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

According to Art. 31 of the Estonian National Broadcasting Act, the National Broadcasting 
has  an  ethics  adviser  who  monitors  the  conformity  of  the  operation  of  National 
Broadcasting  to  the  professional  ethics  and  good  practices  of  journalism,  reviews  the 
objections and challenges submitted against the content of a programme or programme 
service of National Broadcasting and monitors the balance of the programme service. The 
management  board  of  the  National  Broadcasting  appoints  the  ethics  adviser  with  the 
consent of the Council of the National Broadcasting.  

The  ethics  adviser  reports  on  his  or  her  activities  to  the  Council  of  the  National 
Broadcasting  twice  a  year  and  makes  proposals  on  the  elimination  of  deficiencies  and 
prevention  of  errors  to  the  management  board  and  the  Council  of  the  National 
Broadcasting as and when necessary.  

The decisions and proposals of the ethics adviser made to the management board of the 
National Broadcasting are advisory in nature but the board is required to provide reasons 
for non-compliance with such decisions and proposals.  

- Participation in media operators/(self-)regulatory bodies 

According to Art. 29 of the Estonian National Broadcasting Act there is a public advisory 
board at the National Broadcasting that has the task to advise the management board of 
the  National  Broadcasting  in  matters  related  to  the  content  of  programmes  and  other 
media  products,  and  the  structure  of  programme  services  of  the  National  Broadcasting 
and  the  preparation  of  the  draft  development  plan  of  National  Broadcasting.  The  public 
advisory  board  has  nine  to  fifteen  members  who  are  appointed  by  the  decision  of  the 
Council  of  the  National  Broadcasting  on  proposal  of  the  management  board  of  the 
National  Broadcasting  for  a  period  of  up  to  five  years.  Appointment  of  the  members  of 

226 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  public  advisory  board  is  based  on  the  representation  of  the  interested  groups  and 
walks of life of the society. 

No such participation or bodies exist in private media operators. 

2.2.7.2.  Main Players in the Media Landscape 

As described in the study of 2004 Estonian media market is small and there is a division 
between  language  groups  –  Estonian  and  Russian  –  who  have  their  own  media 
consumption  patterns.  Due  to  the  smallness  of  the  market  a  certain  degree  of 
concentration occurs. 

2.2.7.2.1. 

Radio 

According to the chart of activity licenses available from the webpage of the Ministry of 
Culture22  there  are  29  private  radio  programmes  -  8  nationwide  (all  in  Estonian 
language), 20 regional (13 in Estonian and 7 in Russian language) and 1 international (in 
Russian  language).  There  are  18  private  radio  broadcasters.  Among  the  biggest  are 
Taevaraadio AS (Sky Media Group owned by a group of Estonian businessmen) operating 
6  programmes  (2  nationwide  and  4  regional)  and  AS  Trio  LSL  (Trio  LSL  Radio  Group 
owned by an Irish media company Communicorp Group Ltd., AS Eesti Meedia (Scibstedt) 
and  a  private  person)  operating  6  programmes  (3  nationwide  and  3  regional,  two  are 
operated  through  subsidiaries),  followed  by  Tartu  Pereraadio  Ühing  (a  Christian  station) 
operating  3  programmes  (1  nationwide,  1  regional  and  1  international)  and  AS 
Mediainvest (owned by Modern Times Group) operating 2 programmes (1 nationwide and 
1 regional). Other private radio broadcasters each operate one programme (1 nationwide 
and the rest regional). 

The  National  Broadcasting  operates  5  public  radio  programmes  (1  in  Russian  and  4  in 
Estonian; 4 nationwide and 1 regional)23. 

Table 30 EE: Main radio operators 

Sky Media Group 

Trio LSL Group 

Radio  Sky  Plus,  Radio  Mania,  Raadio  3,  Russkoje  Radio,  Sky  Radio, 
Russkoje Radio 

Raadio Kuku, Raadio Uuno, Raadio Elmar, Spin FM, DFM, Radio 100 
FM Narodnoje Radio 

Tartu Pereraadio Ühing 

Pereraadio, Semeinoje Radio, Radio Eli 

Modern Times Group 

Star FM, Power Hit Radio 

National Broadcasting 

Vikerraadio, Klassikaraadio, Raadio 2, Raadio 4, Raadio Tallinn 

Programmes  of  the  public  radio  air  across  nationwide  coverage  areas  delineated  by  law 
while private stations are  limited to semi-national coverage areas provided by ‘regional’ 
licenses.  All  radio  stations  broadcast  terrestrially;  most  of  them  have  a  parallel  stream 
running on the Internet. Digital radio has not been implemented and probably shall not 
be in the probable future.24 

22 
23 
24 

http://www.kul.ee/index.php?path=0x2x60x86. 
http://www.err.ee/files/ERR_struktuur_01.01.2012.pdf. 
http://www.ejc.net/media_landscape/article/estonia/. 

227 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

According to the survey of TNS Emor in the summer of 2010 the average Estonian listens 
to radio 4 hours and 1 minute per day. Estonians are more eager radio-listeners (4 hours 
12 minutes) than non-Estonians (3 hours and 38 minutes). 

228 


 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 31 EE: Radio stations (Estonian-speaking) audience share/week 

TOP 10 Estonian language radio stations in June-July 2010  
Listeners per week 
No 

Station 

Listeners 

1 

2 

3 

4 

5 

6 

7 

8 

9 

Vikerraadio 

Sky Plus 

Raadio Elmar 

Star FM 

Raadio Uuno 

Raadio Kuku 

Raadio 2 

Raadio 3 

Power Hit Radio 

10 

Klassikaraadio 

320 000 

308 000 

274 000 

219 000 

140 000 

116 000 

114 000 

112 000 

106 000 

55 000 

Listeners (%) 

29.7 

28.6 

25.4 

20.3 

13.0 

10.8 

10.5 

10.4 

9.8 

5.1 

Table 32 EE: Radio stations (Russian-speaking) audience share/week 

TOP 5 Russian language radio stations in June-July 2010 (Listeners per week) 

No  Station 

1  Raadio 4 

2  Russkoje Radio 

3  Sky Raadio 

4  Narodnoje Radio/100FM 

5  Euro FM 

2.2.7.2.2. 

Television 

Listeners 

Listeners (%) 

188 000 

186 000 

158 000 

111 000 

38 000 

17.5 

17.2 

14.7 

10.3 

3.6 

According to the chart of activity licenses available from the webpage of the Ministry of 
Culture25  there  are  2  private  nationwide  free  access  television  channels  and  10  private 
nationwide  conditional  access  television  channels.  There  are  9  private  TV  broadcasters. 
The  biggest  are  AS  Kanal  2  (owned  by  Schibsted)  operating  3  channels  (1  free  access 
channel and 2 conditional access channels) and AS TV 3 (owned by Modern Times Group) 
operating 2 channels (1 free access channel and 1 conditional access channel). The rest 
of the private TV broadcasters each operate one conditional access channel. 

The National Broadcasting operates 2 nationwide channels. 

25

http://www.kul.ee/index.php?path=0x2x60x86. 

229 


 
 
 
 
 
 
  
 
 
                                                 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 33 EE:Main television companies 

AS Kanal 2 (Schibsted) 

Kanal 2, Kanal 11, Kanal 12 

AS TV 3 (Modern Times Group) 

National Broadcasting 

TV 3, TV 6 

ETV, ETV2 

According to TNS Emor, the economic crisis influenced the Estonian media market hard in 
2009 and in the 1st quarter of 2010. The TV advertising revenues decreased in 2009 by 
31%  compared  to  2008  and  by  an  additional  12%  in  the  1st  quarter  of  2010.  Four 
channels ceased transmission in 2009: Neljas, Elion TV, Kalev Sport (also known as TV4) 
and MTV Estonia. In 2009 a new channel TV 14 was launched (which however does not 
exist anymore) and in May 2010 local channel Tallinn TV. 

According to TNS Emor in March 2012 the average resident watched TV for 4 hours and 
10 minutes per day. Non-Estonians appeared to be more eager TV watchers (4 hours and 
34 minutes) than Estonians (3 hours and 59 minutes). Estonians watched ETV (24.4%), 
Kanal  2  (23.0%)  and  TV3  (17.9%)  and  non-Estonians  PBK  (23.7%),  NTV  Mir  (12.5%) 
and  RTR  Planeta  (9.0%)  (none  of  these  are  Estonian  licensed  channels).26  Thus, 
Estonians prefer domestic programmes while Russian speakers like those broadcast from 
Russia.  Channels  from  the  Russian  Federation  (as  well  as  other  pan-European  satellite 
channels) can be watched on cable networks27. 

Table 34 EE: Daily audience share in percent from total viewing time 

Channel 

ETV 
Kanal 2 
TV3 
Kanal 11 
PBK 
RTR Planeta 
Video watching 
NTV Mir 
Seitse 
TV6 
ETV 2 
3+ 
Ren TV Estonia 
Fox Crime 
Fox Life 
National Geographics 
Sony Entertainment TV 
Kanal 12 
Tallinna TV 
CTC 
Other channels 

III 

XI 

XII 

I 

II 

17,5 
15,8 
11,4 
2 
10,7 
3,8 
2,2 
4,5 
0,2 
1,9 
2,5 
2,7 
2,7 
0,9 
0,8 
0,4 
0,6 

2011 
14,6 
17,2 
12,8 
2 
10,6 
3,6 
2,4 
4,4 
0,2 
2 
2,9 
3,2 
1,9 
0,8 
1 
0,2 
0,6 
1,1 
0,2 

19,4 

18,2 

15,2 
15,8 
13,4 
1,9 
10 
2,7 
2,9 
4,3 
0,2 
1,7 
2,9 
3 
2 
0,8 
0,9 
0,3 
0,6 
1,3 
0,4 
0,4 
19,4 

16,1 
14,3 
12 
2 
8,6 
3,7 
2,8 
4,5 
0,2 
2,2 
3,2 
3,1 
2,2 
0,8 
0,9 
0,3 
0,6 
1,2 
0,4 
0,4 
20,5 

2012 
18,1 
14,2 
11,1 
1,7 
8,8 
3,2 
2,5 
5 
0,2 
2,4 
2,7 
3,1 
2,3 
1 
1 
0,3 

1,3 
0,3 
0,5 
20,3 

III 

16,7 
15,8 
12,3 
1,5 
8,7 
3,3 
2,5 
5,2 
0,3 
2,4 
2,6 
2,6 
2,3 
0,9 
1 
0,3 

1,2 
0,3 
0,5 
19,7 

26 
27 

http://www.emor.ee/teleauditooriumi-ulevaade-martsikuus-2012/. 
http://www.ejc.net/media_landscape/article/estonia/. 

230 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.7.2.3. 

Press and Publishing 

Although  the  market  is  small,  there  is  a  great  variety  of  newspapers  and  magazines  - 
about  70  different  newspapers  (40  of  which  are  members  of  the  Estonian  Newspaper 
Association),  among  which  are  6  large  dailies  and  10  larger  weeklies,  over  20  local 
newspapers and up to 80 magazines28. 

According  to  TSN  Emor’s  survey  in  early  spring  201229,  there  are  99  newspapers  and 
magazines  in  total  on  the  Estonian  market.  At  least  one  of  them  is  read  by  572  000 
people  or  81.3%  of  the  Estonians  in  the  age  group  of  15-74.  As  an  average  Estonian 
reads 3 different newspapers and 2.8 magazines.30 

There  are  five  daily  newspapers  and  a  number  of  weekly  papers  and  regional 
newspapers.  The  biggest  publishers  of  newspapers  are  Bonnier  Group,  Schibsted  and 
Ekspress Group: 

Table 35 EE: Newspaper publishers and titles 

Bonnier Group 

Äripäev, Delovõje Vedomosti 

Schibsted (via Eesti Meedia AS) 

Postimees, Õhtuleht (50%), 5 regional newspapers 

Ekspress  Group  (via  AS  Eesti 
Ajalehed) 

Eesti Ekspress, Eesti Päevaleht, Maaleht, Õhtuleht  
(50 %) 

According  to  the  statistics  available  from  the  Estonian  Newspapers’  Association  the 
Estonian  newspaper  industry  sales  and  advertising  revenues  in  2010  were  the  following 
(based on the data of its 41 member papers): 

Table 36 EE: The Estonian newspaper industry sales and advertising revenues in 
2010 

Sales revenues  
(000 EEK) 

Advertising 
revenue 
(000 EEK) 

Advertising revenue 
shares 

dailies 

National 
(Eesti 
Päevaleht, Postimees, Õhtuleht, 
Äripäev, 
language 
Russian 
Postimees) 

Regional  papers  (including  22 
papers) 

weeklies 

National 
(Eesti 
Ekspress,  Maaleht,  MK-Estonia, 
Eesti  Kirik,  Õpetajate  Leht, 
Delovõje  Vedomosti,  Den  za 
Dnjom,  Komsomlskaja  Pravda 
P-E, Vestnik ZOZ) 

429 000 

145 000 

34% 

135 000 

58 000 

43% 

140 000 

62 000 

44% 

Free papers 

Total (all newspapers) 

15 000 

719 000 

13 000 

278 000 

87% 

39% 

28 
29 
30 

http://www.asn.org.ee/english/legal_background.html. 
http://www.emor.ee/99-trukimeedia-valjaannet-varakevadel-2012/. 
http://www.emor.ee/eestlased-loevad-ligi-6-erinevat-valjaannet-vaid-veerand-neist-on-tellitud/. 

231 


 
  
 
 
 
 
 
 
 
       
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

According to the statistics available from the Estonian Newspapers’ Association, in March 
2012  the  average  number  of  printed  copies  of  member  newspapers  (based  on 
information of printing houses, in thousands, in alphabetic order): 

Table 37 EE: The average number of printed copies of newspapers 

NATIONAL DAILIES  REGIONAL PAPERS 

Eesti Päevaleht  27,1   Elva Postipoiss 

1,5 

NATIONAL 
WEEKLIES 

FREE PAPERS 

Delovője 
Vedomosti 

4,2 

Severnoje 
Poberežje Ekstra 

65,8 

Postimees 

58,2  Harju Elu 

3,8  Den za Dnjom  12,3 

Postimees 
(venekeelne) 

10,3  Hiiu Leht 

2,8  Eesti Ekspress  30,4 

Õhtuleht  

54,0  Hiiu Nädal 

1,0  Eesti Kirik 

2,1 

Sillamjaeski 
Vestnik 
Tallinna 
Linnaleht 
Tallinna 
Linnaleht 
keeles 

3,0 

32,5 

vene 

27,0 

Äripäev 

11,8  Järva Teataja 

4,3 

Komsomolskaj 
a Pravda Baltia 

11,0  Tartu Ekspress  20,0 

Lääne Elu 

3,7  Maaleht 

Tartu-Pärnu 
Linnaleht 

25,5 

43,9 

12,3 
13,0 

7,3  MK-Estonia 
11,0Vestnik ZOZ 

3,0  Õpetajate Leht 2,9 

6,6 

Meie Maa 
Narva 
(Nädaline) 
Raplamaa 
Sõnumid 
Pőhjarannik/ 
Sev.Poberezhje 
Pärnu Postimees  13,0 
4,6 
Saarte Hääl 
9,2 
Sakala 
1,8 
Sőnumitooja 
2,9 
Valgamaalane 
2,0 
Vali Uudised 
Virumaa Teataja  6,8 
5,3 
Viru Prospekt 
Vooremaa 
2,5 
Vőrumaa Teataja  4,1 

According  to  TSN  Emor  the  most  read  newspapers  are  dailies  Postimees  and  Õhtuleht 
with  respectively  194,000  and  143,000  readers  and  the  weekly  Maaleht  with  125,000 
readers31. 

2.2.7.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

As of the end of 2011 71% of households have Internet connection in Estonia (in 2006 – 
46%).32  Thus  the  rate  of  computerization  and  Internet  penetration  in  Estonia  is 
comparatively high. 

The  biggest,  thriving  and  influential  news  portal  is  Delfi.ee,  operated  by  the  Ekspress 
Group. This portal produces along with references to other media sources some original 
content  (including  video  and  podcast)  with  the  emphasis  on  headlines  and  the 
opportunity  to  comment  on  the  news.  Comment  sections  have  invoked  several  debates 

31 
32 

http://www.emor.ee/99-trukimeedia-valjaannet-varakevadel-2012/. 
http://uudised.err.ee/?06241093. 

232 


 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
                                                 
  
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

and  court  cases  about  the  liability  of  the  media  owner  for  the  comments  left  by  the 
visitors. Delfi.ee runs also a portal in the Russian language. The company has affiliations 
with other Baltic states and Ukraine33. 

Most  Estonian-language  newspapers  have  free  online  versions,  the  contents  of  the  two 
versions  are  somewhat  different.  The  National  Broadcasting  also  runs  an  online  news 
portal that often serves as an agency source for radio stations, as does the Baltic News 
Service and dailies’ online versions. The National Broadcasting, as well as Kanal 2 and TV 
3,  make  available  their  television  programmes  on  demand.  Most  terrestrial  radio 
programmes  can  be  listened  online  and  the  National  Broadcasting,  Radio  Kuku  (a  talk 
station  run  by  the  Trio  LSL  Group)  and  some  other  radio  stations  make  their  talk 
programmes available as on-demand archives34. 

2.2.7.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

According to the Annual Report of the Estonian Competition Board of 201035 there were 
15 cable network service (incl. IPTV service) on the market. The biggest were Starman, 
STV ja Elion. Compared to 2009 the number of end-users increased by 5.3% (by approx. 
17,000 end-users). Availability of IPTV service has been mostly expanded by Elion.  

2.2.7.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

According  to  TSN  Emor  in  201136  the  turnover  of  media  advertising  market  was  72.24 
million EUR. The overall increase of turnover when compared to 2010 was 9.4%. Most of 
the  increase  can  be  attributed  to  internet  and  outdoor  media  advertising  (respectively 
16%  and  15%),  but  also  magazine,  radio  and  television  advertising  turnover  increased 
more than average. The smallest increase was in newspaper sector (4%). 

Table 38 EE: Estonian media advertising market shares in 2011 

Newspapers 
Magazines 
Television 
Radio 
Outdoor media 
Internet 
Total 

19,76 
4,62 
22,86 
7,16 
6,62  
11,22  
72,24 

27,3% 
6,4%  
31,7% 
9,9% 
9,2%  
15,5%  
100,0% 

2.2.7.3.  Conclusion and Recommendations 

4,3% 
11,1%  
8,5% 
10,7% 
15,2%  
16,0%  
9,4% 

From  the  legislative  point  of  view,  Estonia  offers  a  rather  liberal  environment  for  the 
media.  There  is  no  universal  “media  law,”  which  would  set  forth  similar  principles  for 
both print media and broadcasters. While private broadcasters and National Broadcasting 
is  regulated  by  specific  laws,  print  media  issues  are  covered  by  general  laws  and  self-
regulation,  which  sometimes  results  in  “gray”  unregulated  areas.  At  the  moment  there 
does  not  appear  to  be  any  initiatives  to  introduce  print  media  regulation  or  a  universal 
“media  law.”  However,  in  light  of  the  increased  awareness  of  privacy  issues  by  the 
readers,  as  well  as  the  developments  of  technology,  it  would  be  recommendable  to 

33 
34 
35 

36 

http://www.ejc.net/media_landscape/article/estonia/. 
http://www.ejc.net/media_landscape/article/estonia/. 
http://www.konkurentsiamet.ee/public/Aastaraamat/AASTARAAMAT_2010.pdf. 
http://www.emor.ee/eesti-meediareklaamiturg-kasvas-ligi-9/?utm_source= 
feedburner&utm_medium=feed&utm_campaign=Feed:%20TnsEmorMeediauuringud%20(TNS%20Emor:% 
20Meediauuringud)&utm_content=FeedBurner. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

initiate  also  regulation  of  print  media,  specifically  in  matters  concerning  professional 
ethics  and  observance  of  the  Code  of  Ethics  of  journalists  to  all  print  media,  including 
tabloids. 

There  also  remains  in  focal  point  the  issue  of  concentration,  the  inevitability  of  which 
could  be  explained  by  the  smallness  of  the  market  and  lack  of  investment  and  other 
resources,  as  well  as  economic  downturn  period.  Although  the  Media  Services  Act  sets 
forth that activity license is not issued in case this would result in cross media ownership, 
the  situation  where  cross  media  ownership  emerges  during  the  validity  period  of  the 
license  is  not  regulated.  Therefore  further  concentrations  are  possible.  In  order  to 
prevent cross-media ownership, it would be recommendable to address in legislation also 
the issue of emerging of cross-media ownership during the license validity period. Since 
print media is not regulated at all, but concentration occurs also in this sphere, it would 
be recommendable to address also print media cross-ownership situations. 

With  recent  court  cases,  the  issue  of  who  is  responsible  for  user  created  online  content 
has emerged. Also, the public debates heavily on when publication of personal data is in 
public interest and when a person becomes a public figure. The latter is largely due to a 
recent ruling of a court of first instance adjudicating a compensation of moral damage in 
the  amount  of  10,000  EUR  from  a  tabloid  Kroonika  to  a  popular  song  contest  TV  show 
participant. In light of the said court ruling, a lot more court cases like this are likely to 
be  initiated.  The  mentioned  court  case  has  also  raised  a  question  whether  tabloids  are 
bound by the Code of Ethics of journalists. 

Another recently emerged issue is the alleged breach of the National Broadcasting of its 
prohibition to transmit advertising. Namely, the private TV broadcasters have complained 
to  the  Council  of  Broadcasting  (the  highest  body  of  the  National  Broadcasting)  that  the 
National  Broadcasting  interprets  the  rules  on  allowed  advertising  too  widely  and  thus 
attempts to take a share of advertising revenues that would otherwise go the private TV 
broadcasters. Thus, the future may see a change of regulation of the allowed advertising 
by the National Broadcasting. 

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FINLAND 


2.2.8.	 

Finland 

2.2.8.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.8.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The Constitution of Finland includes Section 12 entitled “Freedom of expression and right 
of access to information” (in force since 2000, paragraph 1 quoted in the national report 
of 2004).1 

- Specific safeguards and rights for the media 

The  Constitution  contains  no  specific  safeguards  and  rights  for  the  media.  These  are, 
however, included in the Act on the Exercise of Freedom of Expression in the Mass Media 
(460/2003, quoted in the national report of 2004).2 

  Freedom to receive and to access information 

- Specific rights for the citizens 

The openness of government activities was established in the Constitution as paragraph 
2 of above-mentioned Section 12 (quoted in the national report of 2004).  

  Safeguards on regulatory authorities 

The Constitution contains no specific provisions on regulatory authorities regarding media 
and communication. These are established as part of State administration, mainly under 
the Ministry of Transport and Communications, including the Finnish Regulatory Authority 
(FICORA).3 

  Safeguards on “universal service” 

The  Constitution  contains  no  specific  provisions  on  universal  service  in  media  and 
communication. 

1 

2 

3 

http://www.finlex.fi/en/laki/kaannokset/1999/en19990731.pdf. 
http://www.finlex.fi/en/laki/kaannokset/2003/en20030460.pdf. 
http://www.lvm.fi/web/en/communications_policy. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.8.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Commercial  broadcasters  are  granted  operating  licences  from  the  Government  for  a 
maximum period of 10 years. This is done on the basis of the Act on Television and Radio 
Operations (744/1998).4 

Online  services  do  not  need  licences  but  can  be  operated  as  extensions  of  periodic 
publications, broadcasters or other legal persons. An online service, called in the above-
mentioned  Act  on  the  Exercise  of  Freedom  of  Expression  in  Mass  Media  (460/2003) 
“network  publication”,  is  defined  as  “a  set  of  network  messages,  arranged  into  a 
coherent whole comparable to a periodical, from material produced or processed by the 
publisher,  and  intended  to  be  issued  regularly”.  Network  publications  are  required  to 
designate a responsible editor, like all periodical publishers and broadcasters. There is no 
obligation  to  name  a  responsible  editor  for  websites  maintained  by  private  individuals, 
nor portals and chat groups; however, these are subject to the Penal Code and the Tort 
Liability Act. 

The remit of public service media is defined in the Act on Yleisradio Oy (1380/1993)5, the 
Finnish Broadcasting Company known also as YLE. Section 7 of the Act, slightly revised in 
2012, reads as follows: 

“The  company  shall  be  responsible  for  the  provision  of  versatile  and  comprehensive 
television  and  radio  programming  with  the  related  additional  and  extra  services  for  all 
citizens  under  equal  conditions.  These  and  other  content  services  relating  to  public 
service  may  be  provided  in  general  telecommunications  networks  on  national  and 
regional levels. 

The public service programming shall in particular: 

1) 	

support democracy and everyone’s opportunity to participate by providing a wide 
variety of information, opinions and debates as well as opportunities to interact; 

2)  	 produce,  create,  develop  and  preserve  Finnish  culture,  art  and  inspiring 

entertainment; 

3)	 

4)  	

take  educational  and  equality  aspects  into  consideration  in  the  programmes, 
provide  an  opportunity  to  learn  and  study,  give  focus  on  programming  for 
children and adolescents, and offer devotional programmes; 

treat  in  its  broadcasting  Finnish-speaking  and  Swedish-speaking  citizens  on 
equal grounds and produce services in the Sámi, Romany, and sign languages as 
well  as,  where  applicable,  in  the  languages  of  other  language  groups  in  the 
country; 

5)	 

support  tolerance  and  multiculturalism  and  provide  programming  for  minority 
and special groups; 

6)	 

promote cultural interaction and provide programming directed abroad; and 

4 

5 

http://www.finlex.fi/en/laki/kaannokset/1998/en19980744.pdf. 
http://www.finlex.fi/en/laki/kaannokset/1993/en19931380.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

7) 	

broadcast official announcements, for which further provision shall be issued by 
decree,  and  make  provision  for  television  and  radio  broadcasting  in  exceptional 
circumstances.” 

Print publications do not need licences but if issued regularly as periodicals they need to 
designate a responsible editor. 

- Media pluralism/ownership; competition law aspects 

There are no anti-concentration rules for the media and the general competition rules are 
expected  to  govern  also  the  media  field.  Relevant  legislation  is  provided  by  the 
Communications Market Act (393/2003)6, as described in the 2004 study. 

- Legal framework for psm; ability to fulfill their tasks 

The  main  framework  is  provided  by  the  Act  on  Yleisradio  Oy.  The  supreme  body  of  the 
Finnish  Broadcasting  Company  (YLE)  is  the  Administrative  Council,  appointed  by 
Parliament,  which  decides  the  economic  and  operational  guidelines  and  oversees  and 
supervises  how  the  tasks  involving  public  service  programme  activities  are  carried  out. 
The  Administrative  Council  also  appoints  the  board  of  directors  and  decides  on  issues 
concerning considerable restriction or expansion of the activities.  

YLE’s  programme  service  output  is  planned  in  an  extensive  and  detailed  process.  The 
plans  are  brought  to  the  central  management  to  be  analysed  as  a  whole  and,  where 
necessary,  revised.  The  proposition  is  then  brought  to  the  Executive  Board  by  the 
Director General to be approved on an overall strategic level as the basis for the planning 
of operations. The Board decides the budget for the following year. 

- The role and functioning of regulatory authorities in these respects 

There have been no essential changes since the national report of 2004. 

The  licences  granted  by  the  Government  for  television  and  radio  operations  are 
monitored by FICORA, which is responsible for the compliance with the licence terms. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Finland  joined  the  European  Convention  on  Human  Rights  (ECHR)  in  1989  and  had  to 
bring  national  legislation  into  line  with  its  spirit.  The  existing  legislation  concerning 
protection  of  the  freedom  of  expression  was  regarded  adequate  and  did  not  need 
alterations.  However,  the  implementation  of  the  principles  of  human  rights  in  Finnish 
court practice has been problematic. 

Finnish courts interpret the issues of freedom of expression more narrowly, applying the 
reduced  level  of  privacy  protection  only  to  high-ranking  public  persons.  For  instance, 
private people as participants of public incidents do not belong to this category, even if 
the  information  about  them  would  be  important  for  the  public  and  the  public  interest 
could be predicted. 

6 

http://www.finlex.fi/en/laki/kaannokset/2003/en20030393.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In  Finnish  society  and  culture,  privacy  is  highly  valued  and  violation  of  somebody’s 
privacy by the media is a sensitive issue. It has been a general baseline in Finnish courts 
that  private  information  should  not  be  published  without  the  approval  of  the  person 
concerned. When judging cases where the freedom of speech and right for privacy are in 
conflict,  the  courts  emphasise  the  legality  of  issues  published  and  do  not  sufficiently 
consider  the  public  importance  aspect.  It  is  relatively  safe  to  pronounce  sentence  when 
the  essential  elements  of  the  offence  have  been  identified  and  ignore  the  freedom  of 
speech  and  public  interest  arguments.  Hence  the  problems  with  keeping  Finnish  court 
practice in line with the ECHR principles. During the past decade (2000-2011) the ECtHR 
has  issued  24  Finnish  judgments  (12  of  them  during  2010-2011)  related  to  freedom  of 
expression, nine of them concerning the media. In seven cases out of nine, Finland was 
convicted for favouring protection of privacy and dignity at the expense of the freedom of 
expression. 

In 2010, the Ministry of Justice commissioned an expert study comparing legislation and 
court  practice  concerning  the  freedom  of  speech,  protection  of  personal  privacy  and 
dignity in Finland, Sweden, Norway and The Netherlands. According to the report, Finnish 
legislation  is  not  more  restrictive  than  the  legislation  in  the  compared  countries.  After 
analysing the freedom of speech related convictions, the report concluded that the laws 
could  have  helped  to  solve  the  cases  in  favour  of  the  freedom  of  speech.  The  problem, 
however, is the interpretation of the laws by Finnish courts that tend to rely too much on 
precedent and do not give sufficient consideration to the practices and interpretations of 
the ECtHR. The report also emphasises that the precedents used by the courts too often 
come  from  the  1970s,  when  the  interpretation  of  the  freedom  of  speech  was  much 
narrower  and  the  precedents  of  the  ECtHR  had  yet  to  occur.  According  to  the  judge  of 
the ECtHR from Finland, Päivi Hirvelä, Finnish judges trust that the balance between the 
freedom of  expression  and personal privacy has been sufficiently deliberated during the 
national  legislation  process.  In  several  Finnish  cases,  reasons  to  interference  in  media 
freedom  have  been  significant  but  not  sufficient  according  to  the  ECtHR.  The  aspect  of 
the freedom of expression has often been completely missed out in the courts’ reasoning 
even when the social importance of the case has been obvious and it should have been 
taken into consideration. 

For achieving better harmonisation with the principles of the ECHR, the Supreme Court of 
Finland has started to justify its rulings more carefully  and to deliberate the freedom of 
speech aspect more properly. For example, the practice of regarding highly critical value-
laden  expressions  intended  for  raising  public  discussion,  as  expressions  that  require 
factual proof, is gradually changing in favour of the freedom of expression. 

A specific right to reply and right to correction is established in the Act on the Exercise of 
Freedom of Expression in Mass Media (460/2003). 

- Specific positive content obligations 

The  above-quoted  remit  of  public  service  broadcasting  includes  several  provisions, 
notably  regarding  languages,  which  serve  as  positive  content  obligations.  In  its 
broadcasting YLE must treat Finnish-speaking and Swedish-speaking citizens equally and 
produce services in the Sámi, Romany, and sign languages as well as, where applicable, 
in the languages of other language groups in the country. 

- Funding schemes for specifically desired content 

No  funding  schemes  exist  for  specifically  desired  content.  In  a  broader  context,  the 
funding on public service broadcasting, to be reformed from the beginning of 2013 by an 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

“YLE tax”,7 can be seen as a general funding scheme for fulfilling the public service remit 
as determined by law. Similarly, financial support of the Finnish Film Foundation can be 
seen  as  a  general  funding  scheme  for  film  and  independent  television  programme 
production for all companies. 

- Political advertising and/or broadcasting time 

Political advertising before elections is permitted and widely used in the press as well as 
commercial  radio  and  television  services.  The  public  service  broadcaster  YLE  does  not 
have advertising but a lot of programmes during election  campaigns, with an obligation 
to  treat  different  parties  and  candidates 
impartially  and  equally.  Commercial 
broadcasters have also election programmes apart from political advertising. 

- Codes of conduct and their organisational framing 

The Council for Mass Media (CMM)8 deems not only the media-produced content but also 
the  consumer-produced  content  to  be  subject  to  journalistic  self-regulation,  and  clearly 
distinguishes  between  editorial  and  non-editorial  content.  The  respective  amendment  to 
the  Guidelines  of  Journalists  came  into  force  in  the  beginning  of  2011.  The  Guidelines 
stipulate  that  certain  fundamental  principles  concern  public  discussions  even  if  they  do 
not  contain  editorial  material  and  regardless  of  whether  they  are  moderated  before  or 
after  publishing.  The  Guidelines  oblige  the  news  media  organisations  to  impede 
publication of the materials that violate personal privacy or offend human integrity and to 
immediately  remove  them  if  they  appear  on  their  web  sites.  The  main  purpose  of  the 
new  amendment  is  to  confirm  trustfulness  and responsibility  of  the  media  regardless  of 
their  format  and  publishing  platform.  Leaving  consumer-produced  content  outside  the 
publisher’s responsibility may undermine the  principle  of media responsibility, according 
to the CMM. Websites produced for children and youngsters should be supervised with a 
special care. 

Pressure on the CMM comes sometimes from inside the media. For example, in a case in 
2011,  a  number  of  newspaper  editors-in-chief  criticized  the  CMM  for  dismissing  a 
complaint  concerning  a  YLE  broadcast.  Their  concern  appeared  to  be  that  the  decision, 
favourable to the media, could have damaged the trustworthiness of the CMM among the 
public.  As  a  result  of  this  case  and  accompanying  criticism,  amendments  were  made  to  
the Guidelines for Journalists: if an anonymous source has been used in a story of high 
public  interest  and  societal  importance,  and  causing  negative  publicity,  the  news 
organisationis  supposed  to  demonstrate  how  the  reliability  of  the  source  has  been 
verified.9 

- The role and functioning of regulatory authorities in these respects 

FICORA monitors advertising, sponsorship and product placement in television and radio 
operations and it also handles customer complaints made in the framework of the Act on 
Television and Radio Operations.  

7 

8 

9 

http://www.lvm.fi/web/en/topical/pressreleases/-/view/1280788. 
http://www.jsn.fi/en/Council_for_Mass_Media/the-council-for-mass-media-in-finland/. 
http://www.jsn.fi/en/complain_instructions/, section 14. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

  Distribution Aspects 

- Access to frequencies 

Frequencies are allocated by the Government in accordance with the needs defined. This 
is  done  through  a  frequency  allocation  plan  issued  as  a  decree.  The  legal  basis  is  the 
following: 

Telecommunications  radio  networks  and  digital  television  and  (sound)  radio  distribution 
networks are both regulated by the Communications Market Act (393/2003). 

As far as digital broadcasting is concerned, there are separate network operating licences 
and programme operating licences. The network operating licences are regulated by this 
Act,  and  the  programme  operating  licences  by  the  Act  on  Television  and  Radio 
Operations (744/1998). 

The holders of network operating licences are obliged to provide the distribution capacity 
needed  by  the  Finnish  Broadcasting  Company  (YLE)  and  the  holders  of  programme 
operating licences. 

The  Act  on  Radio  Frequencies  and  Telecommunications  Equipment  (1015/2001)10  is 
intended  to  promote  efficient,  interference-free  and  non-discriminatory  use  of  the 
spectrum. Based on this Act the Government issues decrees whereby specific frequencies 
are  allocated  to  analogue  and  digital  television  and  radio  networks  and  mobile 
telecommunications networks (GSM, UMTS, DVB-H).  

- Access to distribution networks and control of actual conditions 

The  Act  of  Television  and  Radio  Operations  (744/1998)  sets  out  in  Section  10  the 
conditions  for  granting  a  licence  to  “aim  at  promoting  freedom  of  speech  as  well  as 
safeguarding the diversity of the provision of programmes as well as the needs of special 
groups of the public”. 

- Must-carry/must-offer rules for electronic media 

This  is  governed  in  Section  134  of  the  Communications  Market  Act  (393/2003)  as 
follows: 

1)  	 A  telecommunications  operator  providing  a  network  service  in  a  cable  television 
network has an obligation to transmit the following in the network without charge: 

-

-	

-	

public  service  television  and  radio  programmes  that  are  receivable  in  the 
municipality in which the network is located; 

ancillary and supplementary services related to these programmes;  

freely receivable television and radio programmes that are in the public interest and 
broadcast  by  virtue  of  a  national  programming  licence,  and  that  shall  be 
accompanied by an audio-subtitling and subtitling service; 

10 

http://www.finlex.fi/en/laki/kaannokset/2001/en20011015.pdf. 

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-

freely receivable material supplied for a particular item in a programme referred to 
in  paragraph  3,  advertisements  included  in  the  programmes,  and  ancillary  and 
supplementary services related to the programmes. 

2)  The  transmission  obligation  referred  to  in  subsection  1  above  also  applies  to  a 
telecommunications  operator  providing  a  network  service  in  a  cable  television 
network, using other than traditional cable television technology in the transmission 
of  programming,  provided  that  the  reception  of  the  programming  is  possible  with 
conventional reception equipment. 

3)  However, a telecommunications operator has no transmission obligation if the cable 
television  network  capacity  is  for  the  operator’s  use  in  its  television  or  radio 
operations or if it is necessary for this purpose in order to meet a reasonable future 
need  of  the  operator.  In  fulfilling  its  transmission  obligation,  a  telecommunications 
operator  need  not  make  any  improvements  in  network  capacity  that  would  require 
significant financial investments. 

4) The programmes and associated services referred to in subsection 1 shall be provided 
to users free of charge. However, a telecommunications operator providing a network 
service  in  a  cable  television  network  may  require  users  to  pay  a  reasonable  fee  for 
maintenance of the network. 

5) The programmes and services referred to  in subsection 1 above shall be provided to 

users unmodified and simultaneously with the original broadcast. 

- Role of platform operators 

Cable  and  satellite  operations  are  not  subject  to  special  laws  beyond  general  regulation 
of  enterprise  and  technical  conditions.  Multiplex  operators  are  granted  a  licence  by  the 
Government  for  terrestrial  mass  communication  with  terms  determined  by  the 
Communications Market Act (393/2003). 

- The role and functioning of regulatory authorities in these respects 

FICORA  monitors  the  licence  holders  and,  if  needed,  takes  steps  to  enforcement  and 
sanctions in accordance with the law.  

  Access to Information 

- Transparency of media ownership situations 

The ownership situation of all media companies is transparent in principle, but there is no 
central  database  easily  accessible.  Major  media  companies  listed  in  Helsinki  stock 
exchange  have  their  ownership  details  filed  there,  while  other  media  companies  can  be 
found in the Finnish Trade Register, an open register covering all businesses. Television 
and  radio  companies  have  also  their  ownership  situation  documented  in  licence 
applications which are under public domain. 

- Accountability of public service media 

The Act on Yleisradio Oy requires YLE to submit a report to the Finnish Communications 
Regulatory  Authority  (FICORA)  on  the  public  service  broadcasting  provided  during  the 
previous calendar year. FICORA shall issue a statement to Government about the report 

241 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

by  the  end  of  September.  These  reports  do  not  aim  to  measure  the  qualitative 
performance but rather the legality of YLE’s public service operations. 

In relation to the Finnish Broadcasting Company (YLE), the Administrative Council (AC) is 
ultimately  accountable  to  Parliament:  submitting  a  report  every  second  year  on  the 
implementation  of  the  public  service  and  on  the  fulfilment  of  its  own  supervisory 
obligations.  This  report  can  be  seen  as  a  qualitative  evaluation  of  public  service 
broadcasting. On the basis of this report there is a discussion in Parliament. According to 
recent  amendments  to  the  Act  on  Yleisradio  Oy,  coming  into  force  in  2013,  the  public 
service  function  of  YLE  will  be  better  secured.  The  AC  will  be  required  to  evaluate  in 
advance  the  public  service  nature  and  possible  market  impact  of  significant  new  YLE 
services  and  products.  An  official  in  the  Parliament’s  Transport  and  Communications 
Committee will prepare and present the pre-evaluation to AC. Reports to Parliament will 
from this date be submitted annually.  

- Freedom of information laws 

Finland,  among  the  other  Nordic  countries,  has  a  long  tradition  of  guaranteeing  public 
accessibility  to  official  documents  by  legislation.  The  national  FOIA,  Act  on  Openness  of 
Government Activities (621/1999)11, sets the principle that official documents shall be in 
the  public  domain  unless  there  is  a  specific  reason  for  withholding  them.  The 
transparency  of  government  regards  activities  of  authorities  and  not  only  documents 
they  possess.  Therefore,  authorities  have  certain  informing  requirements.  The  intention 
of  the  Act  is  to  promote  openness  and  good  practice  on  information  management  in 
government,  and  provide  private  individuals  and  corporations  with  an  opportunity  to 
monitor the exercise of public authority and the use of public resources, to freely form an 
opinion,  to  influence  the  exercise  of  public  authority  and  protect  their  rights  and 
interests. 

The application of the Act is very broad: in addition to public authorities it also applies to 
private  bodies  that  exercise  public  authority:  in  addition  to  general  authorities  as  state 
administrative and municipal authorities, state agencies and institutions, the Act applies 
also  to  corporations,  institutions,  foundations  and  private  individuals  appointed  for  the 
performance of a public task on the basis of the Act. The public right to access refers to 
the information of official documents regardless of their form. The document may be in a 
paper or electronic format, a micro film, a register entry or a collection of entries, a voice 
recording, etc. The Act applies to both documents in the possession of an authority and 
to documents prepared by an authority or delivered to an authority. 

According  to  the  Act,  access  to  documents  is  the  main  principle,  while  secrecy  is  an 
exception.  Access  may  thus  not  be  restricted  without  a  lawful  reason,  or  more  than 
necessary  for  the  interest  that  is  being  protected.  The  Finnish  FOIA  consists  of  32 
categories of secret documents that are exempted from release according to a variety of 
potential harm tests depending on the type of information. Documents are kept secret for 
25  years  unless  otherwise  provided  by  the  law,  with  the  exception  of  personal 
information  which  must  be  kept  secret  for  50  years  after  the  death of  the  individual.  If 
the  release  would  “obviously  cause  significant  harm  to  the  interests  protected”,  the 
Government can extend the classification for another thirty years. 

Access  is  limited  to  non-official  documents  which  may  not  be  archived,  such  as  private 
notes  and  documents  of  the  internal  activity  of  an  authority.  Documents  which  contain 
information  on  decision-making  must  be  stored.  Preparatory  documents  are  to  be 

11 

http://www.finlex.fi/en/laki/kaannokset/1999/en19990621.pdf. 

242 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

entered into the public domain at the time of any decisions, if not earlier. If a document 
contains only partially secret information, access must be granted to the public part of it, 
by  covering  the  parts  to  be  kept  secret  in  a  document.  If  necessary,  an  authority 
possessing the document is required to make this kind of distinction. Information seekers 
are not required to provide reasons for their request or to verify their identity unless they 
are requesting personal or otherwise secret information. Responses to requests must be 
made  within  14  days.  In  cases  where  the  information  requested  is  withhold,  authorities 
are required to give written refusals containing the reasons for the refusal and including 
guidelines  to  appeal.  Appeal  to  a  decision  made  by  an  authority  is  usually  made  to  an  
administrative court. 

In  addition  to  answering  document  requests,  authorities  are  under  the  obligation  to 
promote access and to assist those requesting information to find it without knowing its 
location.  Moreover,  they  are  required  to  produce  and  disseminate  information  on  their 
services and practices, as well as on the social conditions and developments in their field 
of  competence.  Authorities  are  obliged  to  produce  sets  of  data  on  request.  Computer 
systems  must  be  planned  to  ensure  easy  access  to  information.  Releasing  the 
information  requested  need  not  be  free  of  charge.  Authorities  have  the  right  to  charge 
reasonable  printing  expenses  (cost  prices)  of  the  paper  documents  delivered  to 
information seekers. 

However,  in  spite  of  legislative  possibilities,  several  technical  and  other  kinds  of 
restrictions  have  been  found  for  the  access  of  information.  Problems  partly  arise  from 
inconsistent legal interpretations of public and non-public issues, partly from the negative 
attitudes  of  the  authorities  providing  information  requested  and  partly  from  uninformed 
journalists  and  hectic  journalism  practices  not  giving  time  to  apply  for  documents  or  to 
complain  if  they  are  not  turned  over.  The  amount  of  information  requested  may  be  too 
vast or the documents may only be partially public, and separating the public part from 
the secret would be too difficult. Moreover, according to the authorities, they do not have 
enough time to look for the information, or the format of the information is problematic 
for  access  or  the  archives  are  not  organised  enough  to  find  the  information  requested. 
When  authorities  are  uncertain  whether  the  information  is  public  or  not,  they  usually 
refuse to provide access, just to be on the safe side 

- Accessibility of products/services and distribution networks 

Based  on  the  earlier  National  Broadband  Strategy  of  the  Ministry  of  Transport  and 
Communications, initiatives were taken to declare the Internet connection of minimum 1 
Mbits/s as a universal service obligation (USO) in Finland. The provision was adopted as 
official Government policy in 2008. 

The  USO  in  broadband  connections  would  certainly  mean  a  major  leap  forward  for 
Finland. However, there is also a major problem: Finland’s geographic area is large, and 
the  population  is  small  (ca.  5.5  million  inhabitants).  To  build  up  a  high-speed  network 
that  would  reach  every  corner  of  the  country  would  be  extremely  expensive  and 
commercially  risky.  To  resolve  this  dilemma,  and  counter  to  the  Ministry’s  previous 
broadband  strategy,  which  was  based  on  the  virtuosity  of  the  market,  the  Ministry  now 
has  had  to  bow  to  the  necessity  of  State  aid:  “The  Finnish  state  will  contribute  to  the 
financing  of  the  Broadband  Programme.  Public  aid  will  cover  67  per  cent  of  the 
investments at most, with the Government contribution amounting to a maximum of 33 
per  cent.  Public  funding  is  used  when  the  target  levels  of  the  Broadband  Programme 
cannot be achieved on commercial terms.” 

243 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Since  the  Internet  has  opened  unrestricted  opportunities  for  all  kinds  of  content  and 
content  producers,  there  is  a  requirement  to  prevent  dissemination  of  harmful  content 
and establish principles of responsibility of online service providers. Gradually, legislation 
concerning  the  content  of  web  sites  is  being  developed  in  Finland.  In  the  Act  on  the 
Exercise  of  Freedom  of  Expression  in  Mass  Media  (460/2003),  the  responsibility  of 
Internet  service  providers  is  limited  to  technical  and  distributional  matters,  such  as 
deleting  illegal  material  after  a  court  decision  and  revealing  technical  identification 
information during criminal investigation. 

In  2011,  new  amendments  to  the  Penal  Code  came  into  force,  which  specify  the 
responsibility of web-operators (adminstrators) for the content of their sites. Particularly, 
the amendments concern racist and hate speech and dissemination of child pornography. 
The operators can be sued according to the article of hostile ethnic agitation of the Penal 
Code (39/1889) if they are unwilling to remove the illegal material in their websites even 
if  they  are  pointed  out  of  its  problematic  character.  Making  child  pornographic  material 
intentionally available can bring about punishment according to the article that concerns 
dissemination of sexually obscene pictures. 

Regarding public subsidies, no essential changes have been made since the 2004 report, 
apart  from  the  above-mentioned  reform  of  financing  public  service  broadcasting  by  the 
“YLE tax” from 2013 on and a VAT reform concerning the printed press. The VAT reform 
removed  from  newspapers  and  magazines  their  decades-old  exemption  not  to  pay  VAT 
on subscriptions – subscriptions being among Finns the main form of paying for the press 
(paying  for  individual  issues  has  always  included  VAT).  A  9%  VAT  was  added  to 
subscriptions  from  the  beginning  of  2012,  increasing  the  state  tax  revenues  by  an 
estimated amount of 90 million euros per year, but raising the cost of press subscriptions 
by  the  same  amount  as  no  publishers  were  prepared  to  cover  the  added  expense  from 
other  sources.  Higher  subscription  costs  will  obviously  somewhat  reduce  the  press 
consumption,  which  has  already  suffered  from  declining  readership  during  the  past  few 
years. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Complaints about media performance can be lodged, in addition to the above-mentioned 
Council  for  Mass  Media,  to  ombudsmen  who  are  responsible  for  specific  areas  such  as 
consumers,  equality,  children,  and  data  protection.  A  couple  of  newspapers  introduced 
their own readers’ ombudsmen, but they did not prove sustainable. 

The public should be provided with an opportunity to notify about inappropriate contents 
and to get a confirmation that their notification has been received. 

- Participation in media operators/(self-)regulatory bodies 

Apart from the self-regulatory body, the Council for Mass Media, there are no established 
platforms  of  media  audiences  for  systematic  feedback  and  participation.  Similarly,  an 
association  of  listeners  and  viewers  was  established  for  mobilising  media  criticism  and 
audience  participation  of  television  and  radio  programmes  in  the  early  2000s,  but  also 
this initiative dried out after a couple of years. 

244 


 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.8.2. 

Main Players in the Media Landscape 

The overall picture of Finland’s media landscape remains the same as in the 2004 report, 
but essential changes have occurred in details including ownership. 

Table 39 presents an overview with a list of top twelve media companies, based on their 
financial  volume  measured  in  annual  turnover.  It  shows  the  situation  in  2010,  with 
changes  from  the  previous  year  and  pointing  out  different  media  sectors  where  each 
company is operating in 2011.  

Table 39 FI: Top twelve media companies by turnover 2010 

Turnover 

€ million 
2010 

Change % 
2009-10 

Newspapers 

Magazines 

Books 

Radio 

TV 

Cab le TV 

Media activities 2011 

1  Sanoma Oyj 
2  Yleisradio Oy 
3  Alma Media Oyj 
4  Otava Oy 
5  MTV Oy* 
6  TS-Yhtymä Oy 
7  Edita Oy 
8  Keskisuomalainen Oyj 
9  A-lehdet Oy 

10  Pohjois-Karjalan Kirjapaino Oyj 
11  Talentum Oyj 
12  Suomen Lehtiyhtymä Oy 

2 761 
398 
311 
223 
214  * 
213 
110 
102 
91 
85 
81 
67 

0 
3 
1 
0 
11 
-4 
-1 
4 
-2 
2 
21 
-1 

x 

x 

x 

x 

x 

x 

x 

x 
x 

x 

x 

x 
x 

x 

x 

x 
x 

x 

(x) 

(x) 

x 
x 

x 
x 

x 
x 

x 
x 

Media activities in parentheses indicate minority shares in the sector. 
* In addition to MTV Oy, MTV Media group is composed of Sub tv Oy with net revenue € 48 million, and Suomen Uutisradio Oy with n et revenue 
€ 14 million 

Source: Statistics Finland b ased on company annual reports and other company data 

By  far  the  largest  by  turnover  is  Sanoma  company,  but  over  half  of  its  economic 
activities  are  based  outside  Finland  including  Belgium,  the  Netherlands,  Russia  and 
Central and East European countries. Finland accounts for 47% or 1,300 million € of the 
company’s  net  sales  –  three  times  the  second  largest  turnover  of  the  public  service 
broadcaster YLE. Since the national report of 2004, Sanoma has sold its book publishing 
branch  WSOY  (deleting  this  acronym  from  its  corporate  name)  to  the  Swedish  Bonnier, 
which for its part has acquired full ownership of Finland’s main commercial TV company 
MTV.  In  2004  MTV  was  part  of  the  Alma  Media  company,  also  including  several 
newspapers circulated throughout Finland, and Bonnier held 33% of its shares. In 2005 a 
new  deal  was  done  whereby  Alma  sold  its  shares  in  MTV  to  Bonnier,  leaving  Alma  a 
purely  print  media  company  in  Finnish  ownership.  Bonnier’s  various  media  holdings  in 
Finland  add  up  to  375  million  €,  making  it  the  third  largest  player  in  Finnish  media 
market.  Yet  this  is  only  12%  of  the  total  turnover  of  Bonnier  –  the  largest  media 
company  in  Scandinavia.  Measured  in  overall  turnover,  Sanoma  is  the  second  largest 
Scandinavian media company. 

The total monetary volume of the Finnish media market in 2010 was 4,291 million €. This 
corresponds to 2.4% of Finland’s Gross National Product – a share which has consistently 
diminished since 1990 when it reached 3.1%. Print media accounted for 64% of the total 
in  2010,  while  electronic  media  represented  29%  and  the  rest  7%  being  occupied  by 
cinema,  video  and  sound  recordings.  The  print  media  sector  has  been  decreasing  since 
1980  when  its  share  was  80%,  while  electronic  media  sector  has  been  growing 
respectively. 

245 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.8.2.1. 

Radio 

As in 2004, Finland’s radio landscape is dominated by the public service broadcaster YLE, 
with its four nationwide radio channels in Finnish and two in the official minority language 
Swedish. One of each language channels is  divided at certain hours to local broadcasts, 
providing  altogether  26  regional  windows.  The  public  service  channels  capture  slightly 
over  half  of  the  total  listening  time,  while  the  private,  predominantly  commercial  radio 
stations count together nearly half of total audience. Finns listen to radio on the average 
about three hours a day, but much of this time is exposure with little concentration. 

Table 40 lists the largest private radio networks. All except the last one are national by 
their reach, while there are nearly 50 channels of regional or local character, five of them 
community-owned. 

Table 40 FI: Largest private radio channels and networks 2010 
Coverage 
% of population 

Established 

Owner 

Nationality 

Radio Nova 
SBS-Iskelmäradiot 
SuomiPOP 
Radio Rock 
NRJ 
The Voice 
Radio Aalto 
Groove FM 
Rondo Classic 
Radio Dei 
Radio Sputnik 

1997 
2001 
2000 
2007 
1995 
2007 
2007 
1999 
2010 
1997 
1999 

99 
92 
87 
85 
87 
99 
73 
62 
68 
78 
28 

Market share 
% of listening 
11 
7 
5 
5 
4 
3 
1 
1 
.. 
.. 
.. 

Bonnier (74%), MTG (26%) 
SBS Broadcasting & al. 
Communicorp Group 
Sanoma 
NRJ 
SBS Broadcasting 
Sanoma 
Communicorp Group 
Classicus 
Kristillinen Media 
Radio Satellite Finland 

Sweden 
Germany 
Ireland 
Finland 
France 
Germany 
Finland 
Ireland 
Finland 
Finland 
Russia 

Sources: Statistics Finland based on Ministry of Transport and Communications, Finnpanel and RadioMedia 

2.2.8.2.2. 

Television 

The  overall  landscape  of  television  in  Finland  remains  otherwise  the  same  as  in  2004, 
with  three  major  companies  providing  several  channels,  except  that  since  2007 
digitalisation  has  multiplied  the  number  of  free  channels  up  to  around  20  and  pay-TV 
channels up to around 30.  

Table  41  shows  that the  public  service  broadcaster  YLE  has  four terrestrially  distributed 
channels freely available throughout the country, one of them in Swedish language, while 
the  commercial  broadcasters  MTV  Media  and  Nelonen  Media  offer  each  three  open 
channels plus several pay-TV channels.  

The  YLE  channels  occupy  45%  of  the  total  viewing  time,  the  MTV  channels  30%,  the 
Nelonen  channels  15%,  and  the  remaining  10%  is  divided  among  smaller  Finnish 
companies  and  a  number  of  foreign  channels.  One  of  the  small  commercial  channels  is 
Suomi  TV,  which  changed  ownership  in  early  2012  from  a  Canadian  company  to  Fox 
International – the first entry of Rupert Murdoch’s media empire to Finland. 

Television viewing among Finns is on the average about three hours a day – less than in 
most other comparable countries, although Finland had for several years more television 
channels and programme supply than for example other Scandinavian countries. 

246 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 41 FI: Top 3 TV companies in Finland and their channels 2011 

Company (Owner)  Channel 

Financing 

Penetration (%) 

Distribution  Year established 

Public service 

YLE 

(State ) 

YLE TV1 

YLE TV2 

YLE Teema 

FST5 

Lic. 

Lic. 

Lic. 

Lic. 

The largest private TV groups 

MTV Media 

(Bonnier) 

MTV3 

Sub 

AVA 

MTV3 Max 

MTV3 Juniori 

MTV3 Leffa 

MTV3 Fakta 

MTV3 Komedia 

MTV3 Sarja 

MTV3 Scifi 

Comm. 

Comm. 

Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

100 

100 

100 

100 

100
 

100
 

-


100
 

100
 

100
 

95
 

-


-


-


T/C/S 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

C 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

C 

C 

C 

Canal+ (4 - 12 channels) 

Sub. 

90
 

T/C/S 

Nelonen Media 

Nelonen 

(Sanoma) 

JIM 

Liv 

KinoTV 

Nelonen Pro1 

Nelonen Pro2 

Nelonen Perhe 

Nelonen Maailma 

Comm. 

Comm. 

Comm. 

Sub. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

Sub. & Comm. 

100
 

100
 

95
 

95
 

90
 

78
 

95
 

95
 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

T/C/S 

T/C 

T/C 

Financing: Lic = Licence fees, Comm = Commercials, Sub = Subscription fees 
Penetration: Technical penetration in terrestial networks. 
Distribution: T = Terrestial, C = Cable, S = Satellite 

1958 

1956/1965 

2001 

2001 

1957 

2001 

2008 

2001/2006 

2006 

2006 

2007 

2011 

2008 

2008 

2004 

1997 

2001/2007 

2009 

2007 

2001 

2007 

2011 

2011 

Sources: Statistics Finland based on Ministry of Transport and Communications, www.digitv.fi and company webpages 

2.2.8.2.3. 

Press and Publishing 

Despite the trend of decreasing financial share of print media sector, it is still dominant 
and  Finland  profiles  in  international  statistics  as  an  exceptionally  strong  press  country. 
Finns  read  newspapers  and  magazines  on  the  average  for  about  one  hour  a  day  –  not 
only in print copies but increasingly on the screen through the Internet, especially among 
the  younger  generation.  Actually  the  most  essential  change  in  Finland’s  press  sector 
since the 2004 report is the growing role of electronic distribution and online media. Yet 
print media companies in the production end, and individual readers at the receiving end, 
remain more or less unchanged. 

Table 42 presents top ten newspaper publishers with the number and circulation of their 
titles in 2010. The total number of dailies (published 4–7 times a  week) is 49 and their 
total  circulation  exceeds  2  million  –  nearly  500  copies  per  thousand  inhabitants,  which 
gives Finland the third place in the world after Japan and Norway. Of the dailies 41 were 
published  in  Finnish  and  eight  in  Swedish,  the  latter  representing  5%  of  the  total 
circulation  –  roughly  the  same  as  the  share  of  Swedish-speaking  population  of  the 
country. In addition to dailies there are about 150 non-daily newspapers (published 1–3 
times a week), mostly local by character, but their total  circulation  is only 30% of total 
newspaper press. 

247 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 42 FI: Top ten newspaper publishers according to circulation 2010 

Publisher 

Titles 

Dailies 

Circulation  Share of total Major owner 

circulation 

(thousands) 

(%) 

Sanoma Oyj 

Alma Media Oyj 

Keskisuomalainen Oyj 

TS-yhtymä Oy 

Ilkka-Yhtymä Oyj 

Viestilehdet Oy 

Länsi-Savo Oy 

Kaleva Oy 

Pohjois-Karjalan Kirjapaino Oyj 

Suomen Lehtiyhtymä Oy 

5 

25 

20 

9 

7 

1 

11 

1 

7 

6 

5 

10 

4 

2 

2 

0 

2 

1 

1 

4 

615 

555 

244 

174 

104 

83 

82 

78 

77 

76 

Top 10 

92 

31 

2 088 

All newspapers 

194 

49 

2 886 

21,3  Erkko family (ca 40%) 
19,2  Ilkka-Yhtymä Oyj (30%) 

8,4  No major owner 
6,0  Ketonen family 
3,6  No major owner 

2,9 

2,8 

2,7 

2,7 

2,6 

68,1 

100 

Sources: Statistics Finland based on Finnish Audit Bureau of Circulations and Finnish Newspapers Association 

While  Finland’s  newspaper  press  is  quite  abundant,  it  is  relatively  concentrated.  There 
are  few  towns  where  more  than  one  daily  newspaper  is  published,  and  the  traditional 
variety of politically-affiliated newspapers has practically disappeared outside the capital 
Helsinki. Two leading publishers occupy over half of the total daily newspaper circulation 
in the country: Sanoma 31% and Alma Media 23% (in 2010). 

Table  43  presents  the  largest  periodical  press  publishers  of  consumer  magazines.  The 
first three are in Finnish ownership, representing about two thirds of the total circulation, 
while the rest have significant foreign owners. Consumer magazines of general interest in 
popular  social  issues  (women,  fashion,  cars,  travel,  etc.)  constitute  38%  of  the  total 
volume  of  periodical  press  (measured  in  copies  distributed  in  2010),  the  rest  being 
magazines of various associations and professional interests (46%), customer magazines 
published  by  cooperatives,  banks,  municipalities,  etc.  (14%),  and  culture  &  opinion 
magazines (2%). 

The total number of periodical press in Finland, counting all published at least four times 
a year, is as high as 3,000. 

Table 43 FI: Largest publishers of consumer magazines by volume and titles 
2010 

Publisher 

2010 

No. of 
titles

Major owner 

Million 
copies 

% 

Magazines 

Sanoma 
Finland 

Otavamedia 

A-lehdet 

Aller Media 

Bonnier Publications 

Forma Publishing Group 
Valitut 
Digest  

Palat-Reader's 

49,6 

33,0 

34,0 

22,6 

18,3 

12,2 

13,6 

3,2 

3,2 

2,5 

9,1 

2,2 

2,1 

1,7 

50 

30 

12 

6 

10 

5 

2 

248 


Sanoma Oyj (Erkko family ca 40 %) 

Otava  Oy  (Reenpää  family  &  Otava  Book 
Foundation) 
Lyytikäinen family 

Aller holding A/S (Aller family) 

Bonnier AB (Bonnier family) 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Egmont Kustannus 

Other 
Total 
Source: 

2,4 

23,3 
150,2 

1,6 

15,5 
100 

55 

Statistics Finland/Media statistics 

2.2.8.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

This  is  the  fastest  growing  part  of  Finland’s  media  landscape.  Internet  as  infrastructure 
has expanded so that in the 2010s it reaches over 80% of the households, while in 2004 
it covered less than 50%. In 2010 three out of four Finns used Internet practically on a 
daily basis, 86% at home and 49% in work place. 

Table  44  presents  the  top  twelve  online  media  based  on  the  frequency  of  their  use  in 
2011.  By  far  the  mostly  used  online  media  are  the  web  versions  of  Finland’s  two 
afternoon papers (tabloid by format and partly by content), followed by the websites of 
the  leading  commercial  television  company,  the  leading  daily  newspaper  and  the  public 
service  broadcaster.  Ten  of  the  twelve  online  media  are  extensions  of  respective 
newspapers or television news services, while two are online only. 

All  Finnish  daily  newspapers  (49  in  2010)  have  also  a  web-based  version,  increasingly 
behind  a  subscription  wall.  Also  most  of  the  non-daily  newspapers  are  online.  Of  the 
periodical press, about 250 titles display themselves online. 

Table 44 FI: Top twelve Finnish WWW media pages 2011 

Browsers/ 
week 

Sessions 
/week 

Sessions/ 
browser 

Publisher 

Type of media  Ranking 

among 
websites 

Iltalehti 

Ilta-Sanomat 

MTV3 

Helsingin 
Sanomat 

YLE 

2.442.074 

2.237.153 

17.224.65 
2 
13.388.41 
2 

5,5 

Alma Media  

Newspaper 

4,8 

Sanoma 

Newspaper 

1.862.770 9.918.915 

4,6 

MTV 
Media/Bonnier 

Television 

1.399.413 7.091.797 

3,6 

Sanoma 

Newspaper 

1.251.891 5.902.962 

3,6 

Yleisradio 

Taloussanomat 

683.664 2.100.630 

2,5 

Sanoma 

and 

TV 

PBS 
radio 
Web-only 
business 
newspaper 

Kauppalehti 

Sub.fi 

Nelonen.fi 

Kaksplus 

Aamulehti  

Uusi Suomi 

546.072 2.460.004 

3,5 

Alma Media  

Newspaper 

439.335 1.882.803 

4,0 

MTV 
Media/Bonnier 

Television 

392.855  846.845 

2,0 

Sanoma 

Television 

308.374  549.147 

1,7 

Sanoma 

Magazine 

296.554  953.070 

2,5 

Alma Media  

Newspaper 

278.138  896.277 

2,6 

Kustannusosake 
yhtiö 
Uusi 
Suomi 

Web-only 
newspaper 

Source: http://www.gallupweb.com/tnsmetrix/site.aspx 

249 

1 

2 

3 

4 

5 

10 

12 

18 

20 

22 

23 

25 

 
             
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.8.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Table 45 presents the largest cable television operators in 2010, most of them telephone 
companies. 

Table 45 FI: Main cable TV network operators including IPTV 2010 

DNA 
Elisa 
Sonera 
Finnet-liitto 
Turun Kaapelitelevisio 
Others 
Total 
Total number of connections 

Share of connections 
% 
41 
18 
15 
16 
6 
4 
100 
1 432 000 

Source: Finnish Federation for Communications and Teleinformatics FiCom 

2.2.8.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Table 46 shows how three out of four Finns are daily exposed to each of the main news 
media  of  press,  radio  and  television.  Internet  as  a  new  distribution  channel  is 
increasingly used to read newspapers and also to listen to radio and view television. This 
explains part of the declining trend of newspaper reach since the mid-1990s – research 
methods have not managed to specify various types of Internet use. 

Table 46 FI: Daily reach of main media 1992-2010, % of population over 12 
years 

1992  1994  1996  1998  2000  2002  2004  2006  2008  2010 

Newspapers 

Radio 

Television 

89 

83 

69 

87 

85 

72 

87 

82 

72 

91 

81 

71 

86 

81 

77 

87 

83 

78 

82 

80 

75 

81 

79 

75 

78 

78 

73 

75 

78 

74 

Internet 

.. 

.. 

5 

14 

26 

36 

46 

56 

66 

72 

Source: TNS Gallup 

The  total  daily  time  which  people  were  exposed  to various  media  in  Finland was  on the 
average eight and a half hours in 2011. It is divided between different media as follows, 
in  minutes:  Television  152,  Internet  126,  Radio  103,  Newspapers  34,  Books  33,  Sound 
recordings  33,  Magazines  21,  and  Video  recordings  11.  Internet  comes  here  as  the 
second with two hours of average use per day, but it is not a separate medium like the 
others  as  a  substantial  part  of  its  use  is  made  up  of  following  other  media,  especially 
newspapers. 

As  far  as  advertising  is  concerned,  it  constitutes  one  third  of  all  media  revenues,  1,347 
million € in 2010. 

Table 47 presents the shares of media advertising in different media sectors, counted in 
expenditures. Print media occupies 58% of the media advertising total, leaving 20% for 

250 


 
  
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

television and 15% for online media which has rapidly grown to be four times bigger than 
the share of commercial radio. Although advertising is nowadays less important a source 
of income for the press than it used to be in 2004, it still constitutes around one half of 
the  income  of  newspaper  companies  and  about  one  fourth  of  the  consumer  magazine 
companies. 

Table 47 FI: Shares of media advertising by sector in 2010 

Dailies (7-4 times a week) 

Non-dailies 

Newspapers total 

Urban and pick-up papers 

Newspapers and free papers total 

Consumer magazines 

Trade & business magazines 

Customer magazines 

Magazines & periodicals total 

Printed directories 

Print media total 

Television 

Radio 

Cinema 

Display and classified web advertising 

Electronic directories and SEM 

Web advertising total 
Electronic media advertising total 

Outdoor/Transport 

% 

31,7 

4,4 

36,1 

5,4 

41,5 

6,0 

4,0 

1,4 

11,4 

5,1 

58,1 

19,8 

3,9 

0,2 

7,4 

7,9 

15,3 
39,2 

2,9 

Mass media advertising total 
Sources:  Finnish  Advertising  Council,  TNS  Gallup  Group  (Announcements,  notices, 
column advertisements and public offices are not included in press advertising.) 

100 

2.2.8.2.  Conclusion and Recommendations 

Finland  stands  at  the  top  in  international  comparisons  of  democracy  and  press  freedom 
as shown by surveys such as World Audit12 and Freedom House13. Also, the factual map 
of  Finland’s  media  landscape  looks  quite  impressive,  with  an  exceptionally  abundant 
supply of media channels and products. 

However,  a  qualitative  look  at  the  content  of  media  production  and  consumption  gives 
rise  to  critical  reflection  especially  regarding  the  role  of  media  in  democratic  process. 
Despite media abundance, Finnish citizens are exposed to fairly uniform and hegemonic 
media  culture,  which  is  far  from  the  ideals  of  freedom  and  versatility  suggested  by 
theories  of  democracy.  The  problem  is  to  a  large  extent  based  on  market  liberalism, 
which  -  while  facilitating  formal  competition  and  multiplicity  -  has  failed  to  ensure 
pluralism  in  the  social,  cultural  and  political  spheres.  The  problem  should  not  only  be 
seen  in  the  private  commercial  sector  but  also  in  the  public  service  broadcasting  which 

12 

13 

http://www.worldaudit.org/press.htm. 
http://www.freedomhouse.org/report/freedom-press/freedom-press-2012. 

251 


 
 
     
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

has not fully materialized its potential for serving the citizens and democracy. Moreover, 
part  of  the  problem  is  rooted  in  the  citizens  themselves,  who  have  not  exerted  notable 
resistance to the commercially dominated media culture. 

In this respect it is encouraging that the current Government of Finland is considering to 
bringing the concept of public interest as a touchstone of future communication policies. 

Here  are  some  recommendations  which  arise  from  the  Finnish  situation  with  a  view  to 
ensuring media diversity and pluralism: 

First, the concentration of the media market should be addressed by legislation and more 
systematic media policies, including neglected community radios. 

Second,  state  subsidies  should  be  provided  to  online  newspapers  and  small  circulation 
dailies which have proved not to be commercially sustainable. 

Third,  the  concepts  of  public  service  media  and  Internet  neutrality  should  be  carefully 
defined within the changing media landscape. 

The  following  are  some  specific  recommendations  based  on  the  Finnish  experience  in  a 
European research project. 14 

Media  ownership:  Public  information  about  ownership  of  media  companies  should  be 
stored  in  an  easily  accessible  central  database  on  the  Internet.  This  information  is  an 
important part of the transparency of the business, helping the public to evaluate media’s 
engagements. 

Court practices: More precise account of the European Convention on Human Rights as a 
fundamental right in exercising the freedom of expression. Courts should simultaneously 
assess  citizens'  right  to  information  and  the  significance  of  the  matter  in  a  socially 
important public discussion. 

Access  to  information:  Training  of  authorities  to  answer  requests  by  the  public  and  to 
understand  the  importance  of  their  public  role  in  serving  citizens’  needs  for  information 
through  the  media.  Databases  should  be  redesigned  for  easy  access  to  digital 
information. 

Journalists’ autonomy: Journalists should have more personal freedom in developing and 
realizing  their  own  stories.  The  scale  and  viewpoints  of  a  story  should  be  based  on  the 
importance  of  the  issue  explored  by  journalist’s  own  research  and  not  on  editorial 
meetings without prior knowledge. 

Journalism  education:  Education  of  journalists  should  increase  their  ability  to  think 
independently  and  assess  critically  their  own  information  gathering  and  content 
production.  Training  runs  the  risk  of  concentrating  too  much  on  media  companies’ 
immediate interests including applications of new technologies. 

In addition, it is important to maintain throughout Europe media statistics, which covers 
all  media  sectors  and  different  aspects  from  ownership  to  media  use.  Statistics  Finland 
serves as a good example in the area of culture and media.15 

14 

15 

http://www.mediadem.eliamep.gr/. 
http://www.stat.fi/til/klt_en.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

FRANCE 


2.2.9.	 

France 

2.2.9.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.9.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

Article 34 of the French Constitution, as amended by the reform of 23 July 20081, states 
as  follows:  “The  law  establishes  the  rules  on  (…)  freedom,  pluralism  and  media 
independence.”  Therefore,  it  is  the  responsibility  of  the  legislator  to  lay  down  the  rules 
concerning  both  freedom  of  communication  which  follows  from  Article  11  of  the  1789 
Declaration  and  pluralism  and  independence  of  the  media  which  are  of  constitutional 
value.2 

  Freedom to receive and to access information 

The  public’s  right  to  information  is  not  expressly  embraced  by  the  constitutional 
jurisprudence.  However,  the  aspect  of  freedom  of  communication  arises  from  the 
interpretation by the Constitutional Council and the purpose that has been assigned to it 
by the Council: allow viewers, listeners and readers to exercise their free choice. See for 
example  a  recent  decision:  “The  free  communication  of  thoughts  and  opinions,  as 
guaranteed by Article 11 of the Declaration of 1789, would not be effective if the users of 
audiovisual media do not have programmes, both in the private and in the public sector, 
that  guarantee  the  expression  of  different  trends  while  respecting  the  need  for  honest 
information. Ultimately, the aim is to realize that listeners and viewers, who are among 
the essential recipients of the freedom proclaimed in Article 11, are able to exercise their 
free choice without neither private interests nor the government being in the position to 
substitute it with their own decisions.”3 

In  the  absence  of  formal  hierarchy  between  fundamental  rights  and  freedoms,  it  is  the 
responsibility  of  the  legislator  under  the  control  of  the  constitutional  court  to  conciliate. 
Freedom of communication is no exception to this rule. It must be reconciled with other 
rights  and  constitutional  freedoms,  including  property  rights,  and  some  limits  must  be 
imposed upon it. The decisions of the Constitutional Council on the Hadopi laws I and II 
illustrate  the  reconciliation  between  copyright  and  related  rights  (covered  by  the  law  of 
property)  and  right  of  free  internet  access  (component  of  freedom  of  communication) 
made by the legislator. The Council controls the proportionality of the object pursued by 
the Hadopi laws (the fight against illegal download of music, films and audiovisual works) 
and the limitation of constitutional rights (in this case, freedom of access to internet). 

The  Act  on the  criminal  protection  of  literary  and  artistic  property  on  the  internet  of  28 
October 2009, called Hadopi II,4 sets up a so-called “flexible response” or “three strikes 

1 

2 

3 

4 

Constitutional Law No. 2008-724 of 23 July 2008 to modernize the institutions of the Fifth Republic, OJ of 
24 July 2008, p. 11890. 
Constitutional Council, Decision No. 2009-577 DC of 3 March 2009, OJ of 7 March 2009, p. 4336. 
Constitutional  Council  decision  No.  2009-577  DC,  3  March  2009,  OJ  of  7  March  2009,  p.  4336;  law  on 
audiovisual communication the new public service television, cons. 2, Rec. p. 64. 
Act No. 2009-1311 of 28 October 2009 on the criminal protection of literary and artistic property on the 
internet, OJ 29 October 2009, p. 18, 290. 

253 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
  
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

procedure” meaning a new system of penalties based on the suspension of the internet. 
This  Act  is  following  the  Act  No.  2009-669  of  12  June  2009  encouraging  the 
dissemination  and  protection  of  creation  on  the  internet  (Hadopi  I)  which  the 
Constitutional Council has partially censored. Freedom of communication under Article 11 
of  the  Declaration  of  Human  and  Civil  Rights  of  1789  involves  “the  freedom  to  access 
these communications by the public online.”5  With this decision the Constitutional Council 
recognizes the freedom of internet access as a component of freedom of communication. 
Therefore an administrative authority, in this case the commission to protect the rights of 
the  high  authority  for  the  dissemination  of  works  and  protection  of  rights  on  the 
internet,6 cannot impose sanctions which would restrict or prevent access to the internet 
by holders of subscription in order to protect copyright holders. 

The  “Environmental  Charta”  of  20047  completes  the  preamble  of  the  Constitution.  It 
conferred  constitutional  status  to  the  right  of  environmental  information  through  its 
Article 7 which provides that “everyone has the right (…) to access information relating to 
the environment held by public authorities and to participate in the development of public 
decisions affecting the environment.” Local authorities and their associations, as well as 
state and public institutions, have to ensure this right to information. It includes the right 
of access to administrative documents and the right to be informed by public authorities 
and  it  is  a  prerequisite  for  the  right  of  participation  of  the  public  in  the  development  of 
decisions affecting the environment. 

However, the public authority has the right to reject a request for information relating to 
the  environment  where  the  consultation  or  communication  violates  certain  interests8 
including  those  covered  by  Article  6  of  the  Act  of  17  July  1978  introducing  various 
measures  to  improve  relations  between  the  administration  and  the  public.9  Finally,  the 
documents in preparation are generally not accessible. 

  Safeguards on regulatory authorities 

The  Constitution  of  the  French  Republic  does  not  provide  for  any  special  protection  for 
the status, mandate and powers of regulatory authorities in the fields of audiovisual and 
electronic communications. 

  Safeguards on “universal service” 

The  Constitution  of  the  French  Republic  does  not  provide  any  special  protection  for  the 
universal services. 

2.2.9.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Since  2004,  the  legal  framework  for  the  audiovisual  sector  has  substantially  changed 
after a series of legislative amendments. However, the main Act, the Act No. 86-1067 of 

5 

6 

7 

8 

9 

Constitutional Council decision No. 2009-580 DC, 10 June 2009, OJ 13 June 2009, p. 9675. 
Haute autorité pour la diffusion des oeuvres et la protection des droits sur internet (HADOPI). 
Constitutional Law No. 2005-205 of 1 March 2005 on the Charta of the Environment, OJ of 2 March 2005, 
p. 3697. 
Art. L. 124-4 of the Environmental Code. 
Act  No.  78-753  of  17  July  1978  introducing  various  measures  to  improve  relations  between  the 
administration and the public and various administrative, social and fiscal provisions, OJ of 18 July 1978, 
p. 2851 (last amended by Law No. 2011-525 of 17 May 2011). 

254 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
                                                 
  
 
 
 
  
  
 
 
 
 
 
 
  
 
  
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

30  September  1986  on  freedom  of  communication  (hereinafter  1986  Act),  is  still  in 
force.10 Since November 2011 (date corresponding to the complete cessation of analogue 
terrestrial  broadcast)  digital  terrestrial  television  (DTT) 
is  the  only  terrestrial 
broadcasting  network  for  audiovisual  programmes  in  France.  The  law  “on  the 
modernization  of  audiovisual  broadcasting  and  the  future  of  television”  (2007)  and  the 
law  on  “the  fight  against  the  digital  divide”  (2009)  determined  when  and  how  the 
analogue signal is turned off.11 Private services which are broadcast by digital terrestrial 
signal  are  subject  to  an  authorization  scheme  issued  by  the  “Conseil  supérieur  de 
l’Audiovisuel”12 (CSA) after an invitation to tender.  

The  legal  framework  for  digital  broadcasting  has  also  been  adapted  in  view  of  the 
development of mobile television (“télévision mobile personnelle”, TMP) which is seen as 
a  “method  of  broadcasting  television  services  for  mobile  devices  over  the  air  using 
spectrum resources mainly dedicated to this purpose and high definition television.” The 
TMP is seen as a category of DTT services like high definition services.13 The legal system 
applicable to DTT can be used for TMP with certain specifics on how to finance the service 
and programme formats. For now, services are selected by the CSA after the invitation to 
tender which is open to producers of services (Article 30-1 of the 1986 Act as amended 
by the Act of 5 March 2007). In order to grant authorization, the CSA takes into account 
the  engagements  in  volume  and  the  description  of  the  candidate  concerning  the 
production  and  distribution  of  the  programmes,  especially  whether  there  are  European 
and  French  audiovisual  and  cinematographic  works,  as  well  as  whether  the  candidate 
supplies programmes (especially news) in formats best suited for mobile devices. It also 
takes  into  account  its  commitments  concerning  territorial  coverage,  the  quality  of  the 
reception for mobile devices, particularly inside a building, and the largest conditions of 
commercialisation  of  the  service  for  the  public.  The  current  legislation  does  not  provide 
for  a  general  right  to  information.  However,  Article  20-2  of  the  1986  Act  as  amended 
establishes  the  principle  of  access  to  "major  events"  for  viewers  and  thus  claims  to 
guarantee the right of citizens to receive information of general interest. 

Section  29  of  the  1986  Act  provides  that  the  CSA  is  inviting  for  tender  for  geographic 
areas  and  categories  of  services  which  it  has  previously  determined  and  thereby 
establishes the main regulatory power available to the CSA in the radio sector. The CSA 
uses the option given to it by the law to issue invitations to tender for service categories 
by  combining  different  criteria:  commercial  or  not,  local  or  not,  general  or  thematic, 
independent  or  not.  To  grant  permission  the  CSA  takes  into  account  in  particular  “the 
interest of each project for the public with regard to the priority requirements which are 
safeguarding  pluralism  of  socio  cultural  expressions,  the  diversity  of  operators  and  the 
need  to  avoid  abuse  of  a  dominant  position  as  well  as  restraints  of  trade.”  The  Council 
ensures  “that  a  sufficient  part  of  the  frequency  resources  is  allocated  to  the  services 
which are produced by an association and which are carrying out a mission of close social 
communication  meaning  the  promotion  of  exchanges  between  the  different  social  and 
cultural  groups,  favouring  the  expression  of  various  socio-cultural  trends,  supporting 
local  development,  the  protection  of  the  environment  and  the  fight  against  social 
exclusion.” 

10 

11 

12 

13 

Act No. 86-1067 of 30 September 1986 on freedom of communication, OJ 1 October 1986, p. 11755 (last 
amended by the Act No. 2012-158 of 1 February 2012). 
Act  No.  2007-309  of  5  March  2007  on  the  modernization  of  audiovisual  broadcasting  and  the  future  of 
television, OJ 7 March 2007, p. 4347 (last amended by the Act No. 2009-1572 of 17 March 2009); Act no. 
2009-1572 of 17 December 2009 on the fight against the digital divide, OJ 18 December 2009, p. 21825. 
Higher Audiovisual Council. 
Government report on the application of the last paragraph of V of Article 30-1 of the Act No. 86-1067 of 
30 September 1986 on freedom of communication, October 2009. 

255 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
 
 
 
  
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Radio  control  is  always  based  on  five  categories  of  radio  (A  to  E).  However,  the  new 
wording  of  Article  42-3  of  the  Act  of  30  September  1986,  as  amended  by  the  Act  of  9 
July  2004  on  electronic  communication  and  audiovisual  communication  services,  gives 
the  CSA  the  possibility  to  authorise  a  change  of  ownership  along  with  a  change  of 
category without recourse to the procedure invitation to tender, if necessary. 

The  Act  of  17  January  1989  established  the  radio  technical  committees,  which  are 
responsible for examining applications for authorization and for observing the compliance 
with their obligations by their holders. Unfortunately, the act did not confer the necessary 
power for this task to the committees what gives them a mere advisory role. 

There  are  other  broadcast  networks  (cable,  satellite,  DSL  …).  The  CSA  has  also 
jurisdiction  with  regard  to  Web  TV  and  Web  Radio.  The  regulation  is  based  on  the 
approval by the CSA (Art. 33-1). 

The  conventions  are  applicable  to  all  radio  and  television  services  independent  of  their 
method  or  medium  of  broadcast  provided  that  they  are  within  French  jurisdiction. 
However,  since  the  Act  of  9  July  200414  this  is  no  longer  true  for  services  which 
broadcast  without  using  frequencies  allocated  by  the  CSA  and  whose  annual  budget  is 
less  than  75,000  Euro  for  radio  services  and  150,000  Euro  for  television  services  (prior 
declaration system). Furthermore, services, that repeat simultaneously and completely a 
public  channel  or  radio,  or  a  channel  or  radio  beneficiary  of  an  authorisation,  are  not 
subject  to  the  convention  anymore  and  need  no  approval  (except  the  repeat  has  the 
effect that the reach of a local television increases to more than 10 Million inhabitants). 

The  audiovisual  media  services  on  demand15  (like  catch-up  TV  and  TV  on  demand)  are 
included in the new definition of audiovisual communication (Section 2 of the 1986 Act as 
amended).16  Nevertheless,  certain  provisions  of  the  1986  Act  have  been  adapted, 
including  those  relating  to  the  protection  of  minors,  the  use  of  the  French  language, 
advertisement  and  promotion  of  European  and  French  audiovisual  and  cinematographic 
works.17  Catch-up  TV  is  not  subject  to  the  invitation  to  tender.  In  contrast,  video  on 
demand by downloading may be authorized on DTT only after a procedure of invitation to 
tender. 

The Act of 12 June 2009 promoting the dissemination and protection of creation on the 
internet18 supplemented Article 1 of the Act No. 86-897 of 1 August 1986 reforming the 
legal system of the press19 in order to establish a specific legal and economic system for 
all online news services regardless of whether they concern websites linked to a product 
of  the  printing  press  or  independent  news  sites  called  “pure  players”.  The  decree  of  29 

14 

15 

16 

17 

18 

Act No. 2004-669 of 9 July 2004 on electronic communication and audiovisual communication services, OJ 
10 July 2004, p. 12483 (last amended by the Act No. 2008-776 of 4 August 2008). 
Services de médias audiovisuels à la demande – SMAD. 
The  Act  No.  2009-258  of  5  March  2009  on  audiovisual  communication  and  the  new  public  service 
television  (OJ  7  March  2009,  p.  4321)  transposes  the  directive  2007/65/EC  of  the  European  Parliament 
and  Council  of  11  December  2007  (known  as  “audiovisual  media  service”  or  “AVMSD”)  into  French  law. 
The Articles 61 to 66 of the Act of 5 March 2009 change in particular the dispositions of chapter V of title 
II of the Act of 30 September 1986 on the determination of television services within the scope of the law. 
See also decree No. 2010-1379 of 12 November 2010 on audiovisual media services on demand, OJ du 14 
November 2010, p. 20315. 
Articles  27  and  28  of  the  Act  No.  2009-669  of  12  June  2009  promoting  the  dissemination  and  the 
protection of creation on the internet, OJ 13 June 2009, p. 9666 (last amended by the Act No. 2009-1311 
of  21  October  2009).  “Online  press  service  means  any  online  communication  service  to  the  public 
published professionally by a natural or legal person who has control of its editorial content consisting of 
the  production  and  the  supply  to  the  public  of  a  original  content  which  is  of  public  interest,  regularly 
renewed, containing the latest news, edited journalistic and which is not a promotional tool or influenced 
by the industry or business.” 

19  Act  No. 86-897 of 1 August  1986 reforming the  legal system of the press, OJ of 2 August 1986, p.  9529 

(last amended by the Act No. 2011-525 of 17 May 2011). 

256 


 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
  
 
 
 
 
 
 
 
 
 
 
  
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

October  200920  specifies  how  to  recognize  an  online press  service  in  order  to  enjoy  the 
benefits attached to it (like the exemption of territorial economic contribution, access to 
the  benefit  of  the  investment  allowance,  aid  funds  to  the  development  of  online  news 
services).  The  Joint  Committee  of  publications  and  news  agencies  (la  Commission 
paritaire des publications et agences de presse - CPPAP) is responsible for the recognition 
of  online  news  services.  The  main  criteria  are  the  editorial  control  by  the  individual 
publisher; the production and supply of original content which is renewed regularly; the 
journalistic  dealing  with  news;  the  exclusion  of  promotional  tools  or  commercial 
communication. 

- Media pluralism/ownership; competition law aspects 

In  his  report  of  the  commission  of  2005,21  Alain  Lancelot  recognized  that  there  is  no 
apparent  increase  in  concentration  in  France  besides  from  some  special  cases. 
Nonetheless, he asked for substantial reforms. Even though only little legislative changes 
have  been  made,  a  number  of  improvements  have  been  made  to  support  the 
introduction  of  DTT.  The  new  version  of  Article  39  I  of  the  Act  of  20  September  1986 
provides that one natural or legal person cannot own directly or indirectly more than 49 
%  of  the  share  capital  or  voting  rights  of  a  company  holding  an  authorization  for  a 
national television service which is broadcast by DTT and whose annual average audience 
using  an  electronic  communication  network  exceeds  8%  of  the  total  audience  of 
television  service.22  Raising  the threshold  of  2.5%  to  8% should  permit  to  maintain  the 
temporary  exemption  from  the  rule  for  new  DTT  channels.  A  similar  threshold  for 
audience applies in order to limit ownership of one person, holding an authorization for a 
national television service terrestrially broadcast, to 33% of the capital or voting rights of 
a local channel (Article 39 III). 

The  provisions  concerning  accumulation  of  permission  of  televisions  are  laid  down  in 
Article  41  of  the  Act  of  9  July  2004  and  state  that  one  person  can  have  a  maximum 
number  of  seven  authorizations  for  national  DTT  services.  The  accumulation  of 
permissions  for  local  DTT  services  is  possible  provided  that  the  population  in  the  areas 
served  by  all  of  these  services  does  not  exceed  12  million.  Finally,  a  person  holding  a 
license to operate a local television service by terrestrial radio in digital mode in a specific 
area  cannot  become  entitled  to  a  new  authorization  for  a  similar  service  broadcast  in 
digital mode in the same area. 

Concerning services operated by terrestrial radio in analogue mode, the same natural or 
legal  person  is  only  entitled  to  have  multiple  networks  if  the  population  in  the  areas 
served  by  the  networks  does  not  exceed  150  million  inhabitants.  In  view  of  the 
dissemination  of  radio  services  in  digital  mode,  the  Act  of  9  July  2004  added  a  new 
criterion for the accumulation of analogue and digital permissions. No one can hold one 
or  several  authorizations  for  a  radio  service  where  the  potential  terrestrial  audience 
exceeds 20% of all public or licensed terrestrial radio services (Article 41.) 

In  order  to  prevent  damage  to  the  national  pluralism  in  digital  mode  the  provisions  on 
concentration called “multi-media” (Article 41-1-1) state that no license may be issued to 
a person who would find itself in more than two of the following situations: 

20 

21 

22 

Decree  No.  2009-1340  of  29  October  2009  issued  for  purposes  of  Article  1  of  the  Act  No.  86-897  of  1 
August 1986 reforming the legal system of the press, OJ of 30 October 2009, p. 18671. 
“The  problems  of  concentration  in  the  media  sector,”  Alain  Lancelot,  in  January  2005,  Prime  Minister, 
French Documentation. 
This threshold arises from the Act No. 2008-776 of 4 August 2008 on the modernization of the economy, 
OJ 5 August 2008, p. 12471. 

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-	 Holding  one  or  more  licenses  for  televisions  services  broadcast  by  terrestrial  radio  in 
digital  mode  allowing  the  servicing  of  areas  with  a  population  of  four  million 
inhabitants; 

- Holding one or more licenses for radio services allowing the servicing of areas with a 

population of thirty million people; 

- Publishing or controlling one or more daily print media containing political and general 
news which represent 20 % of the total circulation of similar daily print media on the 
national territory assessed over the last twelve months preceeding the date on which 
the application has been presented. 

In  addition  (article  42-2-1),  no  permission  other  than  national  may  be  issued  for  a 
specific  geographical  area  to  a  person  who  would  find  itself  in  more  than  two  of  the 
following situations: 

- Holding  one  or  more  licenses  for  digital  television  services,  whether  national  or  not, 

terrestrially broadcast in the area; 

-	 Holding  one  or  more  licenses  for  radio  services,  whether  national  or  not,  where  the 
potential  audience  in  the  area  exceeds  10  %  of  the  cumulative  potential  audience  of 
similar, public or licensed, services in the same area 

- Publishing or controlling one or more daily print media containing political and general 

news whether national or not distributed in this area. 

Finally, the specificity of personal mobile television (“télévision mobile personelle” - TMP) 
was  taken  into  account:  An  operator  cannot  hold  more  than  20%  of  the  total  potential 
audience of all TMP services terrestrially broadcast, both public and private (article 41).23 

The  role  of  the  CSA  in  the  control  of  concentration  is  mainly  related  to  its  tasks 
pertaining to broadcast licenses. Article 41-4 of the amended Act of 30 September 1986 
specifies the relation that should exist between the CSA and the Competition Authority as 
the  audiovisual  sector  is  also  subject  to  the  general  rules  on  merger  control.  The 
Competition Authority was created by the Act No. 2008-776 of 2008 on modernization of 
the  economy24  replacing  the  Competition  Council,  and  was  provided  with  new  powers. 
Now,  the  Authority  controls  concentrations,  replacing  the  Minister  of  Economy.  In 
addition, it  is now able to conduct its own investigations  and has the ability to take the 
initiative with regard to notice on any competition matter and to make recommendations 
to the Minister responsible for the sector to improve effective competition in the market. 
The  CSA  must  be  consulted  by  the  Competition  Authority  where  a  merger  concerning 
directly or indirectly a publisher or distributor of radio and television is subject to scrutiny 
and  where  it  detects  anti-competitive  practices  in  the  field  of  radio,  television  and 
audiovisual media services on demand. 

In  March  2010,  the  CSA  approved  the  acquisition  of  the  entire  share  capital  of  the  AB 
group  by  the  corporation  TF1  which  had  the  purpose  of  controlling  80%  of  “Télé  Monte 
Carlo”  (TMC)  and  10%  of  NT1  (publisher  of  general  television  services  broadcast  by 
terrestrial  radio  in  digital  mode).  The  CSA  issued  a  favourable  opinion  to  the  various 
proposed transactions to the Competition Authority in September 2009. It was however 

23 

24 

This follows from Act No. 2007-309 of 5 March 2007 on the modernization of audiovisual broadcasting and 
television of the future. 
Act  No.  2008-776  of  4  August  2008  on  modernization  of  the  economy,  OJ  of  5  August  2008,  p.  12471 
(last amended by the Act no. 2011-1978 of 28 December 2011). 

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subject to reservations to ensure  competition between the channels of digital terrestrial 
television,  particularly  in  the  fields  of  advertising  and  the  acquisition  of  broadcasting 
rights of sports events. The Competition Authority approved the acquisition but imposed 
substantial commitments to the TF1 group. 

The Council of State dismissed the action for annulment of M6 against the decision of the 
CSA of 23 March 2010 in its decision of 30 December 2010.25 It considered in particular 
that the relevant operation did not compromise the maintenance of a sufficient diversity 
of operators as in 2003, “when TMC and NT1 got their license, five other channels, four 
of  which  were  held  by  new  operators,  were  present  on  the  free  digital  terrestrial 
television  besides  the  public  or  commercial  incumbent  channels  which  were  also 
broadcast  through  analogue  cable,  nine  other  channels,  including  four  held  by 
incumbents  and  five  by  independent  operators,  will  be  present  after  the  transaction  at 
issue, in addition to the public  or  commercial incumbent channels.” That same day, the 
Council  of  State  also  dismissed  the  action  for  annulment  of  the  decision  of  the 
Competition Authority ruling that the effects on competition of the transaction were “not 
of such importance that the prohibition is the only available proportionate measure” and 
that the transaction could be authorized given the commitments made by the parties.26 

- Legal framework for psm; ability to fulfill their tasks 

The  Act  of  5  March  2009  on  audiovisual  communication  and  the  new  public  television 
service27  also  initiated  major  reforms  in  the  public  audiovisual  sector.  The  act  achieves 
the  transformation  of  the  France  Télévisions  group  into  a  single  national  programme 
company (Article 44 of the 1986 Act as amended). The audiovisual services published by 
France 2, France 3, France 4, France 5 and RFO are now published directly by the holding 
company France Télévisions. The reform also introduced duties and responsibilities solely 
for France Télévisions which reinforced its mission of public interest and its specificity. 

Until  1982,  the  managers  of  public  companies  in  the  audiovisual  industry  had  always 
been appointed by the executive power. The Act No. 82-652 of 29 July 198228 made an 
additional  guarantee  for  the  exercise  of  freedom  of  communication  by  entrusting  an 
independent  administrative  authority  with  the  task  of  appointing  the  president  of  public 
broadcasting  companies.  The  Act  of  5  March  2009  (Article  13)  is  thus  considered  as  a 
step backwards, as it places the state - in this case the President of the Republic - in the 
centre  of  the  appointment  procedure  of  the  presidents  of  national  programme 
companies, instead of the regulatory authority. However, according to the Constitutional 
Court  the  law  "does  not  deprive  the  constitutional  requirements  for  audiovisual 
communication  of  legal  guarantees".29  Firstly,  these  appointments  are  subject  to  the 
opinion of the parliamentary committees with veto power three-fifths of the votes cast in 
the two commissions. Secondly, the assent of the CSA is necessary. 

To affirm the identity of public service broadcasting, the law also provides the procedures 
for phasing out advertising on France Télévisions from 5 January 2009 (Article 53 of the 
Act of 30 September 1986). However, there will be a total suppression of advertising on 
public  channels  only  from  1  January  2016  on.  The  Act  thus  reforms  the  financing  of 

25 

26 

27 

28 

29 

Council of State, 30 December 2010, Société Métropole télévision, No. 338273. 
Council of State, 30 December 2010, Société Métropole télévision, No. 338197. 
Act  No.  2009-258  of  5  March  2009  on  audiovisual  communication  and  the  new  public  television  service 
(1), OJ of 7 March 2009 p. 4321 (last amended by Order No. 2009-901 of 24 July 2009). 
Act No. 82-652 of 29 July 1982 on audiovisual communication, OJ 30 July 1982 p. 2431 (last amended by 
Order No. 2009-901 o 24 July 2009). 
Constitutional Council decision No. 2009-577 DC, 3 March 2009, OJ 7 March 2009, p. 4336. cons. 5 to 8 
and 10. Similar guarantees accompany the dismissal of the presidents of national program companies by 
reasoned decree of the President of the Republic. 

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public  television.  The  license  fee  is  renamed  "contribution  to  public  broadcasting"  and 
remains the main source of financing of the company France Télévisions. Two new taxes 
are designed to offset the removal of advertising revenue. One is imposed on advertising 
on private television channels, the other on services provided by telecom operators.30 On 
20  July  2010,  the  European  Commission  approved  the  annual  funding  mechanism  of 
France Télévisions as complying with European Union rules on State aid. This mechanism 
provides  for  the  allocation  of  some  of  the  resources  of  the  contribution  to  public 
broadcasting and a budget subsidy. 

Furthermore, the Act of 1 August 200031 introduced provisions on tasks, structures and 
resources  of  public  sector  organizations,  designed  to  assert  the  identity  of  the  public 
sector.  The  general  tasks  of  the  public  sector  are  laid  down  in  article  43-11  and  are 
mainly  focused  on  the  concepts  of  pluralism,  programme  quality  and  innovation. 
Pluralism  is  broadly  defined  and  includes  both  cultural  and  linguistic  pluralism  and 
pluralism of information and genres. Respect for human rights and democratic principles 
or the access of deaf and hearing impaired to programmes are also covered. Several acts 
extended  these  tasks,  like  the  Act  of  5  March  2009  which  clarified  that  national 
programme  companies  are  also  involved  in  programmes  of  "education,  environment, 
protection  and  sustainable  development."  The  tasks  also  include  the  promotion  of 
regional  languages  in  the  same  way  as  the  French  language.  According  to  the  Act  No. 
2006-396  of  31  March  2006  for  equal  opportunities  the  national  programme  companies 
"implement measures to promote social cohesion, cultural diversity and the fight against 
discrimination  and  propose  a  programme  that  reflects  the  diversity  of  French  society." 
"They  provide  a  mission  for  information  on  health  and  sexuality,"  according  to  Act  No. 
2010-121 of 8 February 2010 which aims at including incest committed against minors in 
the French penal code and at improving the detection and the care for victims of incest. 
Finally,  Act  No.  2010-769  of  9  July  2010  on violence  specifically  to  women,  on  violence 
within  couples  and  the  impact  they  have  on  children  introduced  "the  fight  against 
discrimination,  gender  bias,  violence  against  women,  violence  within  the  couple  and 
equality between men and women" in Article 43-11. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

In the audiovisual sector, the Act of 5 March 2009 supplemented Article 44 of the 1986 
Act by a chapter VI, which states that "any journalist of a national programme company 
has the right to refuse any pressure, to refuse to disclose its sources, to refuse to sign a 
programme  or  a  part  of  it  the  form  or  content  of  which  has  been  modified  without  his 
knowledge or against his will. He cannot be compelled to accept any act contrary to his 
personal professional conviction." 

The  Act  No.  2010-1  of  4  January  2010  on  the  confidentiality  of  journalists'  sources 
(Article 56-2 of the Code of Criminal Procedure) enhanced the procedural safeguards with 
regard  to  house  searches  at  journalists’,  drawing  heavily  on  the  regulation  on  house 
searches  conducted  in  the  office  or  home  of  lawyers.  The  protection  is  extended  to  the 
premises  of  news  agencies,  journalists'  homes,  where  the  investigations  carried  out  are 
related to their profession, or company cars. Searches can only be performed by a judge 
if  they  are  conducted  on  the  premises  of  a  media  company,  of  an  audiovisual 
communication enterprise, of a communication company to the public who is online, of a 

30 

31 

Article 302 KG and 302 KH of the French Tax Code. 
Act  No.  2000-719  of  1  August  2000  amending  Act  No.  86-1067  of  30  September  1986  on  freedom  of 
communication, OJ 2 August 2000, p. 11903. 

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news  agency,  in  cars  of  these  companies  or  agencies  or  at  the  home  of  a  journalist, 
where the investigations are related to his work. The judge "indicates the nature of the 
offense  or  offenses  at  issue  in  the  investigations  and  the  reasons  justifying  the  search 
and  the  subject  thereof".  The  judge  ensures  that  the  investigations  respect  the  free 
exercise  of  the  journalistic  profession,  that  they  do  not  violate  the  confidentiality  of 
sources in breach of Article 2 of the Act of 29 July 1881 on freedom of the press and that 
they  do  not  hinder  or  do  not  result  in  undue delay  in  the  dissemination  of  information. 
The act also established a procedure for objecting to the seizure of documents that could 
identify  one  of  the  sources.  Where  appropriate,  the  judge  of  freedoms  and  detention, 
after  hearing  the  judge  and  the  journalist,  decides  either  that  the  document  has  to  be 
returned immediately if he considers that there is no need to seize it or that the seal is 
removed  and  the  report  is  attached  to  the  case  file.  Moreover,  a  journalist  who  is  sued 
for  defamation  can  no  longer  be  prosecuted  for  concealing  if  he  puts  forward  in  his 
defence  documents  covered  by  the  secrecy  of  investigation  or  any  other  professional 
secrecy that is capable of establishing its good faith or the correctness of the defamatory 
facts (Article 35 of the Act of 29 July 1881 on freedom of the press as amended). 

The  Act  of  4  January  201032  enshrines  the  general  principle  of  confidentiality  of 
journalists'  sources  in  the  Act  of  29  July  1881  on  freedom  of  the  press.33  The 
confidentially  of  sources  can  only  “directly  or  indirectly”  be  undermined  if  an  overriding 
public interest justifies it and if the measures are strictly necessary and proportionate to 
the  legitimate  aim  pursued”.  However,  this  impairment  cannot  consist  in  any  way  in  an 
obligation to reveal sources for the journalist.  

Concerning criminal proceedings, the Act extends the right of the journalist as a witness 
to protect his sources. That is to say not only in the context of an appraisal process but 
also when he is summoned as a witness in the criminal court. 

Despite the passing of the Act of 4 January 2010, the fight for the protection of sources 
is not over which is demonstrated by the following case, known as "fadettes du Monde". 
After the publication of an article reporting on investigations written by two journalists in 
the newspaper “Le Monde” the prosecutor in Nanterre received a complaint for violation 
of  professional  secrecy  and  therefore  ordered  a  preliminary  investigation,  notably  by 
enabling  police  officers  to  obtain  the  identification  of  the  phone  numbers  of  the 
correspondents  of  the  authors  of  the  article  through  requisitions  from  telephone 
operators. In its decision of 6 December 2011, the Supreme Court affirmed the decision 
of the Court of Appeal of Bordeaux by saying that “the infringement of the confidentiality 
of journalists' sources was not justified by the existence of an overriding public interest 
and that the measure was not strictly necessary and proportionate to the legitimate aim 
pursued (...)”.34 

Under the agreement that distributors of the service sign with the CSA, they agree to a 
duty  of  honesty  regarding  information.  The  CSA  is  responsible  for  ensuring  compliance 
with  the  commitments  entered  into  and  may,  "order  the  publication  of  a  statement,  of 
which it sets the terms and conditions of distribution, in all cases of breach of obligations 
by  publishers  of  audiovisual  communication  services."35  By  decision  of  9  March  2010 
which was strongly discussed by journalists and chairmen of channels, the CSA imposed, 

32 

33 

34 

35 

Act No. 2010-1 of 4 January 2010 on the confidentiality of journalists’ sources, OJ of 5 January 2010, p. 
272. 
Act  of  29  July  1881  on  freedom  of  the  press,  OJ  of  30  July  1881,  p.  4201  (last  amended  by  legislative 
decree of 6 May 1931, art. 1). 
Cour de cassation, c. crim., 6 December 2011, No 11-83970. 
CSA, decision No. 2010-133 of 2 March 2010 ordering the insertion of a statement in the program of Canal 
+ as a sanction, OJ NO 0082 du 8 April 2010, text No 53. 

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for the first time, the reading of a statement of apology on their antenna to two channels 
(TF1  and  Canal  +)  because  of  the  lack  of  thoroughness  of  their  information.  TF1  was 
accused of three violations in this case: dissemination of a photograph of a German killer 
who  was  not  the  one  at  issue;  images  of  a  protest  by  Muslims  showing  the  opposite  of 
what  was  announced  in  the  commentary,  images  of  the  vote  of  the  Hadopi  law  in  the 
National  Assembly  showing  a  full  semicircle  while  it  was  half  empty.  Canal  +  had 
broadcast a parody from the internet in a magazine programme, presenting it as a true 
extract from German television news on the election of the president of a French public 
institution. 

Act No. 2010-769 of 9 July 2010 on violence against women, violence within couples and 
the  impact  they  have  on  children  gave  the  right  to  submit  a  case  to  the  CSA  to 
associations defending the rights of women (Article 48-1 of the 1986 Act). The CSA can 
then  request  publishers  and  distributors  of  audiovisual  communication  services  and 
satellite  operators  to  fulfil  their  legal  and  regulatory  obligations  and  those  obligations 
arising from the principles laid down in Articles 1 and 3-1 of the 1986 Act like the respect 
for  human  dignity.  This  possibility  is  also  available  to  professional  organizations  and 
unions representing the sector of audiovisual communication and to the National Council 
of  regional  languages  and  cultures  and  family  associations  recognized  by  the  National 
Union of Family Associations. 

- Specific positive content obligations 

The Act of 31 March 2006 for equal opportunities36 enshrined the promotion of diversity 
undertaken for many years by the CSA. The legislator amended the Act of 1986 (Article 
3-1)  by  giving  the  regulator  the  task  of  ensuring  the  representation  of  diversity  in  the 
audiovisual media, and of contributing to the promotion of social cohesion and the fight 
against  discrimination.37  The  2006  Act  further  requires  television  channels  to  reflect 
diversity  in  their  programming.  The  Act  of  5  March  2009  on  audiovisual  communication 
and the new public service television also contains several provisions intended to ensure 
that  the  national  programme  companies  take  better  account  of  French  diversity  in  both 
programming  and  managing  their  human  resources.  Since  2004,  the  France  Télévisions 
group carries out activities in this area (e.g. the project "Equal Pluriel-Média"). In 2007, 
the  CSA  established  a  working  group  on  diversity  and  then  a  research  institute  on 
diversity (L’Observatoire), which aims at supporting the CSA by guiding its research and 
by making proposals on all issues relating to diversity in the media. The quantitative and 
qualitative  study  of  the  representation  of  diversity  on  television,  conducted  in  2008  by 
l’Observatoire,  showed  that  “diversity  on  television  increased  by  only  one  point  in  a 
decade with regard to TV news, fiction and presenters”. In 2009, the CSA commissioned 
the IFOP company with a semi-annual evaluation of the perception of diversity on TV for 
at least three years. 

- Funding schemes for specifically desired content 

Public  aid  to  the  press  recently  underwent  a  major  reform  with  the  publication  of  the 
decree  of  13  April  201238  which  is  the  expected  result  of  the  Convention  of  the  press 
(“Etats généraux de  la presse”) organized in  2008. It focuses on the governance of the 
various devices of direct aid to the press. An agreement was signed for a period of three 

36 

37 

38 

Act No. 2006-396 of 31 March 2006 for equal opportunities, OJ of 2 April 2006, p. 4950 (last amended by 
the Act No. 2011-1977 of 28 December 2011). 
On this basis the CSA has taken the decision of 10 November 2009 for furthering the representation of the 
diversity of French society in the programs of national terrestrial free channels and Canal +. 
Decree No 2012-484 of 13 April 2012 on aid reform to the press and strategic funds for the development 
of the press. 

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years  with the  government  for  companies  receiving  significant  amounts  of  State  aid  "to 
secure the mutual commitments and ensure regular monitoring". Incentives in the form 
of  bonuses  may  be  granted  to  any  of  those  companies  which  made  a  special  effort, 
particularly  in  terms  of  compliance  with  standards,  action  on  environmental  issues, 
vocational  training  or  corporate  social  responsibility.  The  decree  also  provides  for  a 
periodic review of the effectiveness and appropriateness of the various aids. The annual 
maximum  amounts  allocated  and the  breakdown  by beneficiary  are  now  made public  in 
the interests of transparency.  

In  respect  of  aid  which  intends  to  promote  the  pluralistic  expression  of  currents  of 
thoughts  and  opinions,  the  fund  to  support  local  radio  in  the  audiovisual  sector  is  also 
worth  mentioning  (Article  80  of  the  1986  Act).39  It  concerns  community  radio  stations 
whose  business  resources  coming  from  messages  broadcasted  on  the  air  having  the 
character  of  brand  advertising  or  sponsorship  are  less  than  20%  of  their  total  turnover 
(e.g. neighbourhood, community, cultural or school radio stations). This funding includes 
grants for installation, equipment, operating and grants for radio operation. 

- Political advertising and/or broadcasting time 

Pursuant  to  the  provisions  of  Article  13  of  the  1986  Act  as  amended,  the  CSA  "ensures 
respect for the pluralistic expression of thoughts and opinions in the programmes of radio 
and television services, especially in programs on general and political news." The mode 
of assessment of political pluralism is rather quantitative. 

The CSA determines how long a politician appears on radio and television by monitoring 
the programmes. The assessment criteria which was used for a long time was based on 
the  so-called  "three-thirds”  rule  according  to  which  the  Government,  the  parliamentary 
majority  and  the  opposition  shall  each  have  an  equal  time.  In  2000,  a  new  reference 
system  called  "relative  balance"  was  substituted  to  this  customary  rule.  Four  categories 
(Government,  parliamentary  majority,  parliamentary  opposition,  political  parties  not 
represented  in  Parliament)  are  then  subject  of  a  presentation  of  speaking  time  overall 
and  by  subject.  However,  following  a  decision  of  the  State  Council,40  a  new  method  for 
ensuring  compliance  with  the  principle  of  political  pluralism  was  adopted  on  21  July 
2009.41  The  administrative  judge  held  that  speeches  by  the  President  of  the  Republic 
falling  within  the  national  political  debate  should  be  taken  into  account.  Following  this 
decision,  the  CSA  adopted  a  new  principle  of  pluralism  providing  for  the  taking  into 
account  of  those  speeches  of  the  Head  of  State  which  fall  under  the  national  political 
debate according to their content and their context. 

The  time  corresponding  to  a  speech  by  the  President  of  the  Republic  as  part  of  the  
political  debate  is  added  to  the  speaking  time  of  other  politicians  of  the  category 
"majority"  (members  of  the  Government,  representatives  of  the  parliamentary  majority 
and collaborators of the President). 

The rule, which was introduced in 2009, also provides that the parliamentary opposition 
has  at  least  half  of  the  total  time.  In  addition,  the  Council  insists  that  the  parties  not 
represented  in  Parliament  and  the  parliamentary  formations  that  belong  neither  to  the 
majority  nor  to  the  opposition  continue  to  have  equitable  access  to  the  antenna 
(considering the number of elected and the results of the various elections). 

39 

40 

41 

Decree No. 2006-1067 of 25 August 2006 adopted for the application of Article 80 of the Act No. 86-1067 
of 30 September 1986 on freedom of communication, OJ of 26 August 2006, p. 12678. 
State Council, 8 April 2009, François Hollande and Didier Mathus, No. 311136. 
Deliberation of the CSA of 21 July 2009 on political pluralism. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Thus, each quarter, the CSA will release the speaking time of politicians on the news, on 
news  magazines  and  on  other  programmes  of  the  major  national  television  channels, 
news channels and the main news radio stations to the presidents of the Senate and the 
National  Assembly  and  to  the  leaders  of  political  parties  represented  in  Parliament.42  In 
addition, the CSA warns broadcasters and ultimately punishes those services that do not 
respect Article 13 of the 1986 Act.43 

The  prohibition  of  propaganda  in  its  commercial  form  ensures  not  only  the  control  of 
election  expenses,  but  also  the  equal  treatment  of  candidates.  Article  L.  52-1  of  the 
Election  Code  prohibits  the  use  of  any  method  of  commercial  advertising  through  the 
press  or  through  any  audiovisual  communication  for  purposes  of  election  propaganda, 
during  the  six  months  preceding  the  first  day  of  the  month  of  an  election  and  until  the 
election  day.  With  regard  to  the audiovisual  communication,  this  provision  adds  little  to 
Article  14  of  the  1986 Act  which  prohibits  advertising  programmes  of  political  nature  at 
all times. 

- Codes of conduct and their organisational framing 

The National Union of Journalists (le Syndicat national des journalistes - SNJ) said that, 
the  Charter  of  the  journalist's  professional  duties  in  1918,  last  amended  in  1938,  was 
again revised "to take into account both the emergence of new means of communicating 
information and the ongoing crisis in the press companies (...)”. The modernized version 
was  published  in  March  201144  and  is  contained  in  the  agreement  concluded  for  more 
than 2,500 journalists at France Télévisions. 

The  new  version  takes  into  account  the  emergence  of  new  means  of  communicating 
information  and  the  ongoing  crisis  in  the  press  companies.  It  specifically  affirms  "the 
public's right to complete, free, independent and pluralistic high quality information (...)”. 
The principles and ethical rules in the Charter "oblige every journalist, independent of his 
position,  his  responsibility  in  the  publishing  chain  and  the  form  of  press  for  which  he  is 
working”. 

It  says,  that  the  responsibility  of  the  journalist  may  not  "be  confused  with  that  of  the 
publisher,  nor  exempt  the  latter  from  his  obligations".  It  also  emphasizes  the  material 
and  moral  security,  which  is  the  "basis  of  the  independence  of  the  journalist".  The 
Charter  also  emphasizes  the  protection  of  sources  and  the  freedom  of  opinion  and 
conscience of journalists. 

  Distribution Aspects 

- Access to frequencies 

The  authorization  of  frequency  usage  remains  a  major  task  of  the  CSA,  especially  with 
regard to ensuring external pluralism of the operators. However, the authorization is less 
relevant for the determination of specific obligations borne by the license holders, to the 
benefit  of  other  instruments.  Throughout  the  licensing  procedure  (Article  29,  29-1,  30, 
30-1  and  30-2  of  the  1986  Act),  the  CSA  has  a  broad  competence  in  guaranteeing 
pluralism,  especially  by  ensuring  that  the  authorized  services  comply  with  the  anti­

42 

43 

44 

For  the  second  trimester  2011,  see  for  example  http://www.csa.fr/Espace-juridique/Decisions-du­
CSA/Temps-d-intervention-des-personnalites-politiques-a-la-television-et-a-la-radio-au-premier­
semestre-2011. 
For  example,  on  the  19  October  2011,  the  CSA  announced  that  it  had  sent  a  formal  notice  for  non­
compliance  with  these  rules  to  the  three  news  channels  iTélé,  LCI  and  BFM-TV,  as  well  as  to  the  radio 
stations Europe 1 and France Inter. 
See on http://www.snj.fr/spip.php?article1032. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

concentration scheme. This power is limited insofar as the CSA is sharing the definition of 
the  content  of  the  obligations  of  licensees  with  the  Government  which  sets  out  the 
general  obligations  imposed  on  licensees,  especially  in  particularly  sensitive  areas  of 
advertising and the programme industry. However, the Government is not involved in the 
procedure for issuing the licenses. 

The  procedure  for  issuing  licenses  for  national,  regional  or  local,  private  television 
services  broadcast  by  terrestrial  means  is  basically  identical  to  that  for  private  radio 
stations  (see  above).  The  1986  Act  (Article  28-1)  sets  the  simplified  procedure  for 
renewal. This procedure allows renewing the license outside a call for application but only 
twice  in  addition  to  the  initial  license  and  each  time  for  five  years.  Only  one  renewal  is 
possible for television services by terrestrial distribution in digital mode. 

The  public  service  channels  (like  France  2,  France  3,  France  4,  France  5,  France  Ô,  as 
well as Arte and the parliamentary channel), on the other hand, have a priority right to 
use the spectrum resource. This is “justified by the public service tasks incumbent upon 
them.”  However,  the  State  Council  said  in  a  notice  that  the  regulatory  authority  has  a 
discretion which would justify refusal of the requested access priority “if the granting of it 
would reduce the available resource for private operators to such an extent that it would 
undermine pluralism of the programs and opinions in the area concerned.45 

The  signing  of  an  agreement,  which  contains  the  definition  of  the  obligations  of  the 
broadcaster, prevails now as an instrument of regulation on the authorization. 

The Act of 5 March 2007 compensates the loss that the publishers of national television 
services  terrestrially  broadcast  in  analogue  mode  (Canal  +,  TF1  and  M6)  have  due  to 
early termination and phasing out of the validity of their licenses. 

Two  compensations  have  been  defined  by  the  legislator:  firstly,  the  extension  of  the 
permission to broadcast terrestrially for a period of five years from the date of the final 
extinction  of  analogue  broadcasting.  Secondly,  the  allocation  of  an  additional  right  to 
broadcast  to  these  same  publishers  under  certain  conditions  ("compensatory  channel"  -
Article 103 of the 1986 Act.).46 

Concerning mobile television, the CSA is required to give a part of the radio resource to 
the  dissemination  of  radio  services  and  audiovisual  communication  services  other  than 
radio and television (such as broadcast data services - Art. 30-7). 

Due  to  the  frequencies  released  by  the  shutdown  of  analogue  television  in 
October  2011,  France  was  able  to  launch  the  mobile  broadband.47  It  can  thus 
ensure the development of mobile broadband by releasing additional frequencies, 
especially  by  rearranging 
to  electronic 
communications:  first  studies  estimate  a  need  for  additional  450  MHz  by  2020. 
Concerning  digital  television,  all  channels  of  DTT  should  now  switch  to  high 
definition. The plan is to develop interactivity and mobility, and to launch at least 
one 3D channel. To achieve this goal and to optimize the use of frequencies, the 

frequency  bands  allocated 

the 

45 

46 

State Council Notice no. 384 781 of 25 January 2011 on the interpretation of the first paragraph of II of 
Article 26 of the amended Act of 30 September 1986. 
A complaint relating to Article 103 of the 1986 Act gives rise to an action for breach (under the "Telecoms 
Package")  and  to  a  review  procedure  (compatibility  with  State  aid  rules  )  before  the  European 
Commission. 

47  Mid-2011,  there  were  66  million  mobile  subscribers  in  France,  representing  a  penetration  level  of  the 
French  population  of  over  101%.  The  multimedia  3G  subscriber  base  rose  meanwhile  to  29.3  million  in 
mid-2011. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

compression  format  MPEG  4  will  be  standardized  by  2015  and  the  broadcasting 
standard will be DVB-T2 in 2020. 

Access to distribution networks and control of actual conditions 

The  distribution  chain  of  the  press  consists  of  three  levels  of  distribution:  The  "convey 
service of the press" that do long-range transports of publications, the 150 "newsagents" 
who  act  as  wholesalers,  finally,  more  than  29,000  "distributors"  who  hold  the  point  of 
sale  of  the  press.  France  is  characterized  by  a  cooperative  system of  distribution  of  the 
press  to  ensure  the  impartiality  of  the  entire  distribution  chain,  meaning  that  any 
document has to be distributed, regardless of its political viewpoint or its circulation. 

Given  the  economic  difficulties  faced  by  the  press,  the  Act  of  20  July  2011  on  the 
regulation  of  the  distribution  system  of  the  press48  modernized  the  regulatory 
mechanisms of the distribution sector of the press established by the Act of 2 April 1947, 
known  as  the  "Bichet"  Act.  The  sales  figures  depend  on  the  development  of  press 
distribution on digital media as well as on major industrial imbalances affecting the media 
sector. The Act revises the composition of the Supreme Council of the convey service of 
the  Press  (Conseil  supérieur  des  messageries  de  presse  -  CSMP),  a  professional 
regulatory body, whose role is also strengthened.49 The Act establishes a control system 
that  is  headed  by  both  the  CSMP  and  an  independent  administrative  authority:  the 
authority  to  regulate  the  distribution  of  the  press  (l’Autorité  de  régulation  de  la 
distribution  de  la  presse  -  ARDP).  The  latter  is  responsible,  on  the  one  hand,  for 
mediating disputes between the players in the sector and, on the other hand, for giving 
effect  to  the  regulatory  decisions  of  the  CSMP.  In  March  2010,  Bruno  Mettling  noted  in 
his report on the financial recovery of the messaging service Presstalis (former nouvelles 
messageries  de  la  presse  parisienne-  NMPP),  that  "the  monopolistic  tendency  that 
traditionally characterizes level 1 and 2 of the distribution of press, the interpenetration 
of  competition  levels  between  actors  in  the  different  parts  of  the  distribution  chain  and 
constitutional  issues  relating  to  the  distribution  of  the  political  and  general  news  media 
and  to  the  access  of  the  readers  to  the  plurality  of  news  supply  on  the  whole  territory 
clearly  argue  for  the  creation  of  a  true  independent  administrative  authority,  which 
ensures  sectoral  economic  regulation  based  on  the  principles  of  independence  and 
impartiality  together  with  a  body  directly  involving  professionals”.  The  Act  of  20  July 
2011 organizes the interaction of the sectoral regulators and the Competition Authority. 

- Must-carry/must-offer rules for electronic media 

The 1986 Act guarantees that public channels are offered (France 2, France 3, France 5, 
Arte, TV5, France Ô, La Chaîne Parlementaire and for digital offers France 4 – Art. 30-2 
of the 1986 Act “must carry”). 

With  regard  to  personal  mobile  television  (TMP),  the  Act  also  requires  distributors  to 
comply  with  must-offer  rules  concerning  their  offers  made  by  service  providers  of 
personal  mobile  television  which  are  also  broadcast  unencrypted  on  digital  terrestrial 
television  (Art.  30-2).  Accordingly,  it  forces  these  providers  to  comply  with  those 
requests of the distributors that ensure the resumption of services within the offerings of 
these distributors. However, there are some exceptions. 

48 

49 

Act n° 2011-852 of 20 July 2011 on the regulation of the distribution system of the press, OJ of 21 July 
2011, p. 12454. 
See in this regard: “Proposals for the reform of the Conseil supérieur des messageries de presse”, report 
of Bruno Lasserre, president of the Competition Authority, 9 July 2009. 

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Distributors whose offering uses a network that does not use the frequencies allocated by 
the  CSA  (cable,  satellite,  DSL,  mobile  network,  etc.)  must  make  a  declaration,  except 
those serving less than one hundred households (Art. 34). They must carry public service 
channels in their offering (Art. 34-2). Any distributor of services using a network (other 
than  satellite)  not  using  frequencies  allocated  by  the  CSA  provides  its  subscribers  with 
“local  public  services  for  information  on  local  life"  (Art.  34-2  -  "must-carry  local  public 
channels”).  Finally,  they  must  offer  free  digital  terrestrial  channels  on  all  media  (cable, 
satellite, DSL - Art. 34-4). 

- Role of platform operators 

Article  30-2  of  the  1986  Act  as  amended  lays  down  the  legal  system  applicable  to 
distributors  of  services  terrestrially  broadcast  in  digital  mode.  The  Act  forces  the 
programme  editors  who  have  channels  within  the  same  multiplex  to  come  together  to 
designate  a  common  technical  operator  called  "service  distributor."  All  editors  on  this 
multiplex, authorized by the CSA, jointly propose a separate company to the regulatory 
authority  within  two  months  to  which  the  CSA  will  assign  the  corresponding  spectrum 
resource.  Failing  agreement  between  the  editors  in  question,  the  CSA  should  initiate  a 
new  call  for  applications.  The  service  distributor  is  subject  to  authorization  by  the  CSA 
which assigns the corresponding spectrum resource. However, the distributor responsible 
for the marketing function of the supply of programmes  is obliged to make only a prior 
declaration. 

  Access to Information 

- Transparency of media ownership situations 

Act  No.  86-897  of  1  August  1986  as  amended  reforming  the  legal  system  of  the  press 
lays down an anti-concentration regime and prohibits in Article 3: “to lend ones name to 
any publishing company, by simulating the acquisition of stock or shares, the acquisition 
or the lease management of a business or security." Article 4 lays down the nominative 
nature of shares in the case of corporations. In addition, "any transfer is subject to the 
approval of the board of directors or the supervisory board." 

Article  5  of  the  Act  of  1  August  1986  was  supplemented50  by  an  obligation  for  media 
publications to disclose the composition of their shareholding. The scope of this measure 
is  limited  to  shareholders  who  hold  at  least  10%  of  the  capital  in  order  to  be  in 
compliance  with  the  laws  on  publicly  traded  companies.  In  any  press  publication,  the 
following  information  must  thus  be  revealed  to  the  readers  in  every  issue  (or  on  the 
homepage of any online news service): the full name of the owner or principal owner if 
the  publishing  company  does  not  have  legal  personality;  if  the  publishing  company  has 
legal  personality,  its  firm  name,  its  registered  office,  its  legal  form  and  the  name  of  its 
legal  representative  and  of  the  natural  or  legal  persons  holding  at  least  10%  of  its 
capital;  the  name  of  the  publication  director  and  the  editor-in-chief.  Finally,  article  6  of 
the Act of 1 August 1986 as amended provides that "any publishing company must bring 
to  the  attention  of  their  readers  or  the  users  of  the  online  publication  or  online  news 
service:51 any assignment or promise of assignment of shares which would result into an 
assignee  having  at  least  one  third  of  the  share  capital  or  voting  rights;  as  well  as  a 
transfer  or  promise  of  transfer  of  ownership  or  exploitation  of  a  security  on  press 

50 

Act No. 2011-525 of 17 May 2011 on the simplification and improvement of the quality of law (Art. 66), OJ 
of 18 May 2011, p. 8537. 

51  Wording  resulting  from  the  Act  No.  2011-525  of  17  May  2011  on  the  simplification  and  improvement  of 

the quality of the right. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

publication  or  online  press  service."  This  must  be  done  within  one  month  after  they 
acquired knowledge of the fact or in the next issue of the publication. 

Articles  35  to  38  of  the  Act  of  30  September  1986  provide  for  similar  measures  with 
regard to audiovisual communication (prohibition of lending the name, nominative nature 
of shares, information on changes in share capital to the CSA). 

- Accountability of public service media 

The public sector organizations of audiovisual communication annually submit a report to 
Parliament in order to set out the performance of their duties (Article 43-11 of the 1986 
Act). 

Contracts  on  the  objectives  and  resources  are  concluded  between  the  state  as 
shareholder  and  France  Télévisions,  Radio  France,  the  company  responsible  for 
audiovisual services outside of France, Arte-France and l'Institut national de l'audiovisuel 
for  a  period  of  four  or  five  years.  Those  contracts  contain  the  specific  remit  of  those 
various  services  and  should  allow  clarifying  the  position  in  the  programming  and  the 
development  strategy  of  their  tasks.  These  contracts  are  laid  down  in  Article  53  of  the 
1986 Act and are part of an approach that encourages the responsabilisation of channel 
directors. 

The Act No. 2010-769 of 9 July 2010 on violence against women, violence within couples 
stipulates  that  the  president  of  France  Télévisions  annually  reports  on  the  activity  and 
work of this Council when it reports on the performance of the contract on the objectives 
and  resources  of  the  company  before  the  committees  of  the  National  Assembly  and 
Senate responsible for cultural affairs and Finance. 

- Freedom of information laws 

The recognition of the right to information is confined to specific areas at the legislative 
level,  such  as  that  of  administrative  documents  (Article  1  of  Act  No.  78-753  of  17  July 
1978 introducing various measures to improve relations between the administration and 
the public and various administrative, social and fiscal provisions). 

Act  No.  78-753  of  17  July  1978  (Article  1)  provides  that  every  person  has  the  right  to 
obtain disclosure of administrative documents produced or received as part of their public 
service task by the State, local authorities or by other persons in public law or persons in 
private law responsible for such a task and that this right exists regardless of “the date, 
storage place, form and medium" of the documents. However, there are restrictions for 
documents  affecting  the  interests  mentioned  in  Article  6  of  the  1978  Act:  national 
defence  secrets,  conduct  of  foreign  policy  of  France,  state  security,  public  safety, 
personal  security,  secrecy  of  the  deliberations  of  the  Government,  currency  and  public 
credit, conduct of proceedings before the courts, etc. In addition, documents that contain 
information on natural persons may be disclosed only to the persons concerned or their 
representatives  to  maintain  medical  confidentiality  and  the  right  to  privacy.  The 
Commission  on  Access  to  Administrative  Documents  (La  Commission  d’accès  aux 
documents administratifs - CADA) is responsible for ensuring the proper implementation 
of this right of access. 

- Accessibility of products/services and distribution networks 

The  Government  has  noted  the  decision  of  the  Constitutional  Council  of  10  June  2009 
(see  above)  and  reaffirmed  its  commitment  to  prevent  the  plundering  of  works  on  the 

268 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

internet.  The  prevention  of  copyright  infringements  will  be  achieved  by  punishing  the 
perpetrators of illegal download. To this end, the Hadopi law II submits the judgment of 
counterfeiting offenses committed on the internet to specific rules of criminal procedure 
(judgment  by  a  single  judge  and  simplified  procedure).  Furthermore,  it  establishes  tort 
liability  (Article  L.  335-7  of  the  Code  of  Intellectual  Property)  and  liability  for 
misdemeanour (Article L. 335-7-1), which lead to the suspension of internet access. The 
criminal  judge  has  jurisdiction  as  was  required  by  the  Constitutional  Council  in  its 
decision  of  June  2009.  Despite  the  lack  of  guarantees  made  under  this  new  law,52  the 
Constitutional  Council  has  validated  it  in  general.  However,  it  did  not  approve  of  the 
procedure  which  allows  the  judge  to  decide  on  the  request  for  damages  by  penal  order 
because  the  legislator  failed  to  clarify  the  rules.53  The  Constitutional  Council  notably 
approved the suspension of access to internet for a period not exceeding one year as well 
as the obligation imposed to the subscriber to pay the subscription fee. It held that "no 
rule  or  constitutional  principle  precludes  that  an  administrative  authority  participates  in 
the implementation of the execution of the penalty of suspension of internet access”.54 

In  accordance  with  the  commitment  in  the  government  plan  "Digital  France  2012",  the 
goal of implementation of digital broadcasting everywhere in France before 30 November 
2011  has been  achieved.  100%  of  the French  (including those  overseas)  have  switched 
to  digital  terrestrial  television  (DTT)  and  now  have  access  to  19  free  channels  in  digital 
quality.  The  plan  “Digital  France  2012”  was  presented  in  October  and  included  154 
operational  measures.  The  Ministry  of  Economics  assures  that  95%  of  those  measures 
have been achieved or will be achieved. 

99%  of  the  population  now  has  access  to  broadband  via  DSL.55  The  effort  continues  in 
less  dense  areas  of  the  territory  with  the  national  programme  "very  high  speed".  To 
expand  access  to  broadband,  the  Government  launched  in  December  2009  a  label 
"broadband for all", applicable to affordable offers of broadband access available on the 
entire  territory  (maximum:  35  €  per  month).  Four  bids  using  satellite  technology  and 
offering  data  rates  of  2  Mbit/s  have  been  labelled.  The  aim  is  to  implement  very-high­
speed broadband for fixed56 and mobile devices for all inhabitants of Franceh. 70% of the 
population will have very-high-speed broadband in 2020 and 100% in 2025 thanks to the 
national  very-high-speed-broadband  programme.  The  state  provides  support  to  public 
initiative  networks  carried  by  local  authorities  which  complement  private  initiatives 
initiated within 3 to 5 years ("Guichet public initiative networks" to co-finance neutral and 
passive deployment projects of open optical fibre, up to 900 million Euro in subsidies).57 

The decree also creates a strategic fund for the development of the press, which merges 
the two main aid funds for industrial projects (the aid funds for the modernization of the 
daily press and the press identified with political and general information established by 
Decree  No.  99-79  of  5  February  1999)  and  digital  projects  (the  aid  funds  for  the 
development of online news services created by Decree No. 2009-1379 of 11 November 
2009). This new fund is managed by a joint committee and has three sections: industrial 

52 

53 

54 

55 

In  this  sense,  D.  Rousseau  "After  Hadopi  1  and  2,  Hadopi  3?”,  Légipresse,  December  2009,  p.  173.  "If, 
indeed, the Hadopi law 2 gives jurisdiction to the judge, as requested by the Council, it does so according 
to a procedure (the penal order) which deprives litigants of the principles applicable to any sanction with 
the character of a punishment." 
Constitutional Council Decision No. 2009-590 DC, 22 octobre 2009, OJ of 29 October 2009, p. 18292. 
The decree No. 2009-1773 of 29 December 2009 established the High Authority for the dissemination of 
works and the protection of rights on the internet (OJ of 31 December 2009, p. 23348). 
End of June 2011, there were 21.5 million subscribers for broadband internet for landline in France. DSL 
subscriptions amounted to 20.5 million, plus a million subscribers connected through cable networks, radio 
network or satellite. 

56  Mid-2011, there were 550,000 subscribers to very-high-speed broadband in France. 
57 

The  deployment  of  optical  fibre  has  increased  from  less  than  100,000  households  in  2007  to  1.3  million 
households today. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

modernization  and  transformation,  digital  innovations,  winning  new  readerships.  The 
decree  also  extends  the  scope  of  aid  recipients.  The  Ministry  of  Culture  said  that 
newspaper companies which are editors of at least one daily publication become eligible 
for  the  first  section  of  the  new  fund  if  they  obtained  a  certificate  of  the  “commission 
paritaire  des  publications  et  agences  de  presse”  (CPPAP)  (joint  committee  of  press 
publications and press agencies) and if they provide regular news and commentary of all 
sports. The free newspapers also become eligible for the first section of the fund for their 
prints made in a printing press. 

The  decree  of  13  April  2012  finally  makes  an  adjustment  of  certain  devices.  A  third 
section  is  created  for  the  allocation  of  aid  to  national  dailies  with  low  advertising 
resources provided for by Decree No. 86-616 of 12 March 1986. It allows preventing that 
the  development  of  advertising  revenue  will  lead  to  a  brutal  suppression  of  aid.  Decree 
No. 2002-629 of 25 April 2002 on aid for the distribution of the daily press is amended to 
create  a  second  section  which  integrates  the  objectives  and  recipients  of  aid  for 
distribution  and  promotion  of  French  press  abroad.  Parallel  to  this,  Decree  No.  2004­
1311  of  20  November  2004  on  aid  funds  for  distribution  and  promotion  of  the  French 
press  abroad  is  repealed.  Decree  No.  2010-1088  of  15  September  2010  on  the 
development and modernization of the press in New Caledonia, French Polynesia and the 
Wallis  and  Futuna  Islands  is  also  amended  to  allow  media  companies  located  in  these 
geographic  areas  benefiting  from  the  new  aid  instituted  by  the  decree.  The  decree  also 
contains provisions for the continuation of aid to the transport of the press. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The newspaper Le Monde was the first to have a mediator in France (since 1994). Since 
1998,  public  broadcasting  also  has  mediators.  In  2002,  Radio  France  followed  and, 
finally,  since  2004,  the  regional  daily  press  got  mediators  (e.g.  Sud-Ouest  or  L’Est 
républicain).  This  form  of  mediation  differs  from  the  so-called  institutional  mediation, 
whose  best-known  examples  are  those  of  the  Défenseur  du  droit  (Article  71-1  of  the 
French  Constitution,  organic  laws  No. 2011-333  and  No.  2011-334,  ordinary  law  of  29 
March  2011)  or  the  mediator  of  the  cinema  (established  by  Act  No.  82-652  of  29  July 
1982). 

- Participation in media operators/(self-)regulatory bodies 

The  Act  of  1  August  2000  introduced  Article  46  in  the  1986  Act  which  provides  for  the 
establishment of an advisory board for programs at France Télévisions. Four years after 
the  introduction  of  this  provision,  the  legislator  noticed  that  it  had  remained 
unimplemented  and  amended  the  wording  with  Act  No.  2004-669  on  electronic 
communications  and  audiovisual  communication  services.  Article  46  of  the  Act  of  30 
September 1986 as amended by the 2004 Act removed any reference to the drawing of 
lot  among  the  persons  liable  to  pay  the  license  fee  and  referred  to  a  decree  for  the 
definition of the composition, the tasks and operating procedures of this advisory board 
which is designed to give voice to the viewers of France Télévisions. However, neither the 
writing of 2000, nor that of 2004 allowed the effective establishment of this council. The 
Act  of  5  March  2009  imposes  an  obligation  of  result  to  France  Télévisions  without 
determining  the  composition  and  operating  procedures  of  the  advisory  council  for 
programmes.  Since  2010,  France  Télévisions  compels  itself  to  maintain  a  regular  and 
direct dialogue with a small group of twenty viewers, who have the possibility to express 
themselves  on  public  service  television  and  how  it  performs  its  tasks.  The  application 

270 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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deadline  is  renewed  each  year  on  the  website  of  Club  France  Télévisions  to  ensure  a 
geographic, age and socio-professional balance. 

However,  viewers’  associations  are  not  involved  in  this  scheme  which  confirms  the 
insoluble  question  of  their  representativeness.  The  influence  of  these  institutions,  which 
intend to integrate the public in the media and to force the media to explain their choice 
to  public  representatives,  is  questionable.  The  intervention  of  these  advisory  boards  in 
the field of information is particularly problematic as a prior consultation is difficult in this 
field. 

2.2.9.2.  Main Players in the Media Landscape 

2.2.9.2.1. 

Radio 

“Radio France” includes five public national radio stations: France Inter, France Musique, 
France Culture, France Info and France Bleu (43 decentralized stations offer a regional or 
local program). 

The legal framework for digital terrestrial radio is gradually emerging.58 For now, the CSA 
has  regularly  been  authorizing  experiments  in  large  cities  (Paris,  Lyon,  Nantes  and 
Rouen) since 2009. 

Three main commercial groups, RTL, NRJ, and Lagardère active have half of the market 
share. The RTL group operates four radio stations, with RTL being the radio station with 
the  highest  audience  share  among  public  and  private  stations.  The  group  also  owns  or 
has shares of many TV channels as a producer of audiovisual programmes (including RTL 
9, M6 and W9). 

The NRJ Group operates four radio stations in France. The founder Jean-Paul Baudecroux 
controls the company through the NRJ Group. The group also owns a television channel 
(NRJ12) and the first music channel broadcast via cable, satellite and DSL (NRJ Hit).59 

The  Lagardère  group,  managed  by  Arnaud  Lagardère,  operates  in  nearly  40  countries 
and  has  four  business  lines.  La  Lagardère  Publishing  (Hachette  Livre  is  the  publishing 
imprint);  Lagardère  Active  combines  the  group’s  activity  in  the  press  and  audiovisual 
media  area  (several  magazines,  three  radio  stations,  several  television  channels  with 
youth  and  music  programmes);  Lagardère  Services  is  doing  all  the  supply  activities; 
finally  Lagardère  Unlimited  now  includes  the  activities  Sports  and  Entertainment 
(audiovisual  production).  Lagardère  Publicité  is  the  third  largest  advertising  agency  in 
France. 

58	 

59 	

Act of 30 September 1986 amended by the Act of 9 July 2004, of 5 March 2007 and of 5 March 2009. 
Emmanuelle Machet, country report France, Study on “the information of the citizen in the EU: obligations 
for the media and the Institutions concerning the citizen’s right to be fully and objectively informed”, The 
European Institute for the Media, 2004, p. 74 et seq. 

271 


 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 48 FR: Main Radio Companies 

Companies 

Ownership Structure 

Main Radio Stations 

Radio France 

Public service 

France Inter (9.4 %) 
France Bleu (6.1 %) 
France Info (3.5 %) 
France Musiques (0.9 %) 
France Culture (1.1 %) 

RTL Group 

Bertelsmann (89,8 %)  RTL (12.7 %) 

NRJ Group 

Jean-
Paul Baudecroux (75,5 
%) 

Lagardere Active 

Lagardère 

Fun Radio (3.9 %) 
RTL2 (2.7 %) 
Chérie FM (2.3 %) 
Nostalgie (4.2 %) 
NRJ (6.2 %) 
Rire et Chansons (1.6 %) 
Europe 1 (7,4 %) 
Virgin radio (anciennement Eu 
rope 2) (2.1 %) 
RFM (2.8 %) 

Next Radio Tv 

RMC 
Les Indés Radios : 1 
23 stations 
* Source: Audience share- Key figures and Balance sheets- CSA 

2.2.9.2.2. 

Television 

Total Market Share 
in 2010 
22.2 % 

19.6 % 

14.8 % 

12.6 % 

7 % 
11.4% 

The  DTT  currently  has  18  free  national  channels  broadcasting  full-time  in  metropolitan 
regions  (four  of  them  are  also  broadcast  in  high  definition),  10  pay  TV  channels  (1  of 
them being broadcast in high definition), 50 local channels. Overseas, the first multiplex 
contains eight to ten channels depending on local peculiarities. 

At  the  end  of  2011,  141  channels  were  under  contract  with  the  CSA  and  62  reported 
(annual  budget  of  less  than  150,000  €)  for  broadcasting  on  networks  not  using 
frequencies  allocated  by  the  CSA  (cable,  satellite,  DSL,  mobile,  internet).  At  that  time, 
concerning  video  on  demand,  France  had  no  less  than  55  active  platforms  available  on 
the internet, IPTV, on portable media player or video game consoles. 

Since  July  2010,  a  new  national  public  service  channel  is  broadcast  for  free  on  DTT: 
France  Ô.  That  month  the  group  “France  Télévisions”  has  also  launched  the  website 
containing catch-up TV “Pluzz”. 

The  channel  group  “Canal  +”  (off  Canal+  SA)  with  23  channels  produced  by  nine 
different companies (Multithématiques, Jimmy/Comédie, Planète Câble, TPS Star, Canal+ 
Distribution (Kiosque Sport), Kiosque (Ciné+), Cuisine TV, TPS Sport (Infosport), Sport+) 
is  leading  on  the  pay-TV  market.  Canal+  plays  an  essential  role  in  the  satellite 
distribution  of  free  (TNTSat)  or  commercial  (CanalSat  or  Canal+)  digital  channels. 
CanalSat is the largest distributor of satellite digital channels ever since its founding. 

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Table 49 FR: National audience share of digital terrestrial television channels of 
June 2011 

Main TV Stations 

Broadcasters 

TF1 
France 2 
M6 
France 3 
TMC 
France 5 
W9 
Canal Plus 
NRJ12 
Direct 8 
France 4 
Gulli 
NT1 
Arte 
BFM TV 
Direct Star 
ITV 
Source: Médiamétrie 

TF1 Group 
France Télévisions 
M6 Group 
France Télévisions 
TF1 Group 
France Télévisions 
Edi TV (M6) 
Canal+ SA 
NRJ TV 
Bolloré Média 
France Télévisions 
Jeunesse TV (Lagardère-France Télévisions) 
TF1 Group 
Arte France 
BFM TV 
Bolloré Média 
SESI (Canal+) 

2.2.9.2.3. 

Press and Publishing 

Total Market Share 2011 
in % 
23.3 
15.2 
10.5 
9.6 
3.6 
3.2 
3.1 
3.0 
2.6 
2.4 
2.1 
2.1 
2.0 
1.6 
1.5 
1.4 
0.9 

At  the  end  of  2010  there  were  16  national  dailies,  52  regional,  43  Sunday  papers  and 
several regional weeklies being published in France.60 

The national daily newspaper market is dominated by three main groups.61 

“Socpresse”  (formerly  part  of  the  Robert  Hersant  empire)  was  owned  until  2006  by  the 
Dassault  group  (87%)  and  Robert  Hersant’s  granddaughter  (Aude  Reuttard,  13%). 
“Socpresse”  is  now  wholly  owned  by  the  industrialist  Serge  Dassault.  It  publishes  “le 
Figaro”,  all  its  supplements  and  various  specialized  titles.  However,  Socpresse  has 
completely  divested  from  the  regional  daily  press.  The  magazine  “L’Express”  and 
“L’Expension” were also sold to the Belgian Roularta group. 

The Amaury group publishes the dailies Le Parisien, Aujourd’hui en France, and l’Equipe 
(sports paper) and several sports magazines (France Football, Vélo Magazine). It is also 
the owner of the sports television channel l’Equipe TV.  

The  third  group  is  the  Le  Monde-La  vie  Group,  which  publishes  the  popular  daily  Le 
Monde. Since the merger with PVC (Publications de La Vie catholique) at the end of last 
year,  the  group  owns  43  press  titles,  magazines,  books  and  libraries.62  Regional  dailies 
(Midi  Libre,  The  Independent  and  Press-Centre)  belong  ever  since  to  the  Sud-Ouest 
group. “Monde libre” controls 59.55% share of the group since 2 November 2010 (date 
of  capitalization)  and  is  owned  by  Pierre  Bergé,  Xavier  Niel  and  Matthieu  Pigasse.  Prisa 
owns 20% of the “Monde libre”, the other three shareholders having the remaining 80%. 
The Lagardère group exercised its right to withdraw and is no longer shareholder of “Le 

60 

61 

62 

OJD figures. 
Emmanuelle Machet, Country report France, Study on “the information of the citizen in the EU: obligations 
for the media and the Institutions concerning the citizen’s right to be fully and objectively informed”, The 
European Institute for the Media, 2003, P. 76 et seq. 
Emmanuelle Machet, country report France, Study on “the information of the citizen in the EU: obligations 
for the media and the Institutions concerning the citizen’s right to be fully and objectively informed”, The 
European Institute for the Media, 2004, p. 76 et seq. 

273 


 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Monde” but it remains a shareholder of the “Monde interactif” (subsidiary managing the 
group’s internet activities). At the end of a backup procedure in late December 2011, the 
owner of “France Soir”, Alexander Pougachev, decided to stop the print edition in order to 
make a free daily which is to 100% digital. 

Table 50 FR: Main publishers of daily newspapers 

Publishing 
companies 
Groupe Amaury 

Socpresse 

Le Monde SA 

Libération 

Ownership Structure 

Amaury family (75 %) 
Lagardère Active (25 %) 
Groupe Industriel Dassault 

Le Monde libre 
(Niel/Bergé/Pigasse/Prisa 

Edouard de Rothschild (38 %) 
Carlo Caracciolo (30 %) 
Personnel 

Groupe Les Echos  LVMH 

Valérie Decamp (80 %) 
Alain Weill (20 %) 

Main Titles  Market Share  DFP 2010 
(in copies) 
302,147 
169,227 
316,732 
56,452 

L’Equipe 
Le Parisien/Aujourd’hui en France 
Le Figaro 
Paris Turf 

Le Monde 

Libération 

Les Echos 

La Tribune 

286,348 

113,099 

115,706 

68,813 

L’Humanité  

France Soir 

74,531 

L’Humanité  

48,118 

Alexandre Pougatchev 
Société des lectrices et lecteurs 
de l’Humanité (20 %) 
Société Humanité  
Investissements Pluralisme  
(Hachette-TF1­
Caisse d’Epargne) (20 %) 
Société des 
l’Humanité (10 %) 
Société des 
l’Humanité (10 %) 

personnels de 

Amis de 

New York Times 
* Figures : Diffusion France Payée (DFP) 2010, OJD/Stratégies les chiffres clés 2010.  

Internat. Herald Tribune 

19,603 

At  the  regional  level,  there  are  many  large  press  groups  that  also  have  interests  or 
subsidiaries  in  radio,  advertising  and  multimedia  products.  The  Ouest  France  Group 
publishes the top selling newspaper Ouest France, with 2231 regular readers and 47 local 
editions  distributed  in  Normandy,  Brittany  and  the  Loire.  It  owns  about  60  paid  local 
newspaper titles and has interests in free press (50% in 20 minutes France SA). Through 
its  subsidiary  Publihebdos,  it  also  owns  58  weekly  newspapers.  In  2005,  the  groupe 
acquired  three  dailies  from  Socpresse  (Le  Courrier  de  l’ouest,  Presse-Océan,  Le  Maine 
libre). 

Groupe Sud Ouest publishes several newspapers (dailies and weeklies), and magazines. 
It  has  a  6%  share  in  the  Spanish  Group  Correo  and  is  also  involved  in  television  (TV7 
Bordeaux).  However,  in  2010,  the  group  stopped  making  business  in  the  field  of  free 
advertising. 

In France, Lagardère Active is particularly strong in the field of women’s magazines and 
television journals. In the field of the daily press, Lagardère Active owns several outlets 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

in the South East of France.63 In 2010, the group announced the assignment agreement 
of the business in international magazines and the digital television channel. “Virgin 17” 
was also sold at the end of May 2010. In 2007, it sold the regional daily “La Provence” to 
the Hersant group (127317 – DFP 2010). 

The  group  “Est  Bourgogne  Rhône  Alpes”  (formerly  “Groupe  Est  Républicain”)  publishes 
many  regional  dailies,  and  also  has  interests  in  advertising,  free  press,  and  television 
(Télé Lyon Métropole et M6 Nancy until it closed). In 2006, after it repurchased Rhône-
Alpes from Socpresse, it became the main group of French Regional daily press. 

The group Centre France – La Montagne also is active in television (Clermont Première). 
From  2009  to  2011,  the  group  «Centre  France  continues  to  grow  by  incorporating 
L’Yonne  Républicaine  (Auxerre),  La  République  du  Centre  (Orléans)  and  L’Echo 
Républicain  (Chartres).  Today,  the  group  Centre  France  distributes  more  than  400.000 
copies per day and has an audience of more than 1.3 million of readers daily. 

63 

Emmanuelle Machet, country report France, Study on “the information of the citizen in the EU: obligations 
for the media and the Institutions concerning the citizen’s right to be fully and objectively informed”, The 
European Institute for the Media, 2004, p. 77 et seq. 

275 


 
 
 
 
 
 
 
 
                                                 
  
 
 
Ownership Structure 

Main Titles 

DFP 2010 
(in copies) 

Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 51 FR: Main Publishing Companies of regional press 

Publishing 
companies 

Groupe Ouest  
France 

Socpresse 

SIPA (Société d'Investissements
 et de Participations) which is 
ownedby l'Association pour le 
Soutien des 
Principes de la Démocratie 
Humaniste 
(association loi 1901) 
Dassault 

Ouest France 
La Presse de la Manche 
Le Courrier de l’ouest 
Presse Océan 
Le Maine libre 

Groupe Sud Ouest 

80 % Lemoine family 
20 % members of the staff 

Lagardère Active 

Lagardère 

Groupe Rossel 

Groupe NRCO 

Groupe Rossel - VNI ­
 Crédit agricole 

Centre France –
 La Montagne 

Fondation Varenne 

Groupe Est 
Bourgogne 
Rhône Alpes (EBRA) 

Crédit mutuel 
Famille Lignac 
Philippe Hersant 

Sud Ouest 
La Charente Libre 
La République des  
Pyrénées 
Midi Libre 
L’indépendant 

Nice-Matin 
Var-Matin 
La Voix du Nord 

La Nouvelle République du
 Centre Ouest 
La Montagne 
Le Populaire du Centre 
Le Berry Républicain 
Le Journal du Centre 
L’Echo républicain 

L’Est Républicain 
Dernières Nouvelles  
d’Alsace 
Le Progrès-La Tribune 
Le Dauphine Libéré 

757,115 
24,033 

97,627 

33,470 
45,574 

293,072 
36,285 

32,269 

136,795 
59,328 
106,213 
72,601 
265,173 

188,381 

187,836 
41,719 

35,801 

28,781 

27,934 
154,543 

171,663 

207,270 

231,324 

* Figure : Diffusion France Payée (DFP) 2010, OJD/Stratégies les chiffres clés 2010. 

2.2.9.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Table 52 FR: Main services of video on demand on the French market 

CanalPlay (group Canal Plus) 

Free Home Vidéo (Free) 

iTunes (Apple) 

24/24 Vidéo d'Orange (Orange) 

Club Vidéo de SFR (SFR) 

TF1 Vision (group TF1) 

Source: Idate, July 2011 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 53 FR: Catch-up TV services of the five main channels (ranked by viewing 
figures) 

TF1 

TF1 replay 

France 2 

Pluzz* 

France 3 

Pluzz 

M6 

M6 Replay 

Canal Plus 

Canal Plus à la demande (réservé aux abonnés) 

* Pluzz also allows reviewing the programs of France 4, France 5 and France Ô.  

Source: Idate, July 2011 

France  Televisions  launched  Pluzz.fr  and  Pluzz  on  “Orange”  and  on  “Free”  in  July  2010 
catching  up  with  the  delay  in  this  matter  on  TF1,  M6  and  Arte  that  have  such  services. 
This  offer  allows  viewers  to  review  most  of  the  programmes  of  all  channels  of  France 
Television  (France  2, France  3,  France4,  France  5,  France  Ô  and  the  overseas  network) 
for free during usually seven days. 

2.2.9.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

The  group  AB  offers  a  range  of  channels  via  satellite  (BIS  Televisions)  since  December 
2007. 

Orange offers satellite television complementary to its multi-service on DSL since August 
2008. 

Finally,  Fransat  (controlled  by  Eutelsat)  broadcasts  via  satellite  free  DTT  channels  since 
2009. 

Since August 2007, “Numericable” has been the only operator gathering the old networks 
“France  Télécom  Câble”,  “NC  Numericable”,  “UPC”,  “Noos”  and  “Est  Vidéo 
Communication”  and  “thereby  completing  the  concentration  of  the  sector  started  in  the 
2000s.”64  The  number  of  households  connected  to  cable  TV  is  between  3.4  and  3.7 
million,  of  which  nearly  1.5  million  receive  the  mere/basic  “antenna  service” 
(corresponding  to  the  resumption  of  terrestrial  channels  available  in  the  area).  The 
number of broadband internet access via cable has risen sharply since 2004. 

DSL TV, which has strongly grown since its launch in 2003, is marketed by main internet 
service providers in connection with offers called “triple play” which combine high speed 
internet  access,  local  and  national  (even  international)  telephony  and  television.  All  the 
DSL television offers (SFR, Free, Alice, Orange, Darty, Bouygues) involve a basic offering 
of at least fifty free channels when a multi-service offer is subscribed (including the free 
DTT  channels)  and  the  ability  to  subscribe  to  optional  channels  by  unit  or  channel 
packages  (mostly  foreign)  composed  by  the  operators.  11.3  million  of  the  22  million 
subscribers  to  internet  with  high  or  very  high  speed  (20.5  million  by  DSL)  are  coupled 
with  a  TV  offering.65  7.4  million  households  use  the  internet  (DSL  or  optical  fibre)  to 
watch terrestrial broadcast television (DTT).66 

64 

65 

66 

Le Guide des chaînes numériques, 9th edition, February 2011.
 
Source:  Observatoire  trimestriel  des  marchés  des  communications  électroniques  en  France  de  l’ARCEP  –
 
2nd quarter of 2011. 
Source: Médiamétrie, September 2011. 

277 


 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
  
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The  digital  channels  are  also  available  on  mobile  phones  in  the  offerings  of  mobile 
operators  such  as  Orange,  SFR  and  Bouygues  Télécom.  The  notion  of  “connected  TV” 
also  includes  game  consoles  (70%  of  the  households  have  a  console  that  can  be 
connected  to  the  internet),  tablets  (1.3  million  tablets  were  in  French  households  in 
2010)  and  internet-enabled  TV  (2.4  million  internet-enabled  TVs  were  in  France  in 
2010).67 

2.2.9.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Table 54 FR: Share of advertising revenue within the media sector 2010 

Media 

In billion Euros 

Market Share in % 

National dailies 

Regional dailies 

Magazines 

Spécialised press 

Free press 

Regional weeklies 

Total publishing 

Television 

Outdoor 

Radio 

Cinema 

Internet (Display) 

Sources: Irep-France Pub 2010. 

0.266 

0.962 

1.215 

0.400 

0.719 

0.129 

3.691 

3.441 

1.188 

0.744 

0.090 

0.540 

2.5 

9.0 

11.3 

3.7 

6.7 

1.2 

34.4 

32.1 

11.1 

6.9 

0.8 

5.0 

According  to  the  “Institut  de  recherches  et  d’études  publicitaires”  (IREP)  in  2011,  the 
advertising  market  continues  at  a  slower  pace  the  restart  that  began  in  2010.  The 
communication  costs  of  advertisers  increased  by  +  1.9%  (against  3.4%  in  2010  vs.  ­
8.6% in 2009) and reached 31.4 billion Euro. Media advertising revenue is stabilizing at 
+  0.1%  (against  3.9%  in  2010  vs.  -12.6%  the  previous  year)  and  amounted  to  10.7 
billion  euro.  If  one  excludes  the  revenues  of  the  free  press  whose  major  market  player 
(Comareg) disappeared during the year, the development is then +1.2%. 

The  mobile  (+37.5%),  cinema  (+16.5%)  and  internet  display  (+14%)  are  the  fastest 
growing media before free press (+5.5%) and TV (+1.6%). 

2.2.9.3.  Conclusion and Recommendations 

“Smart  TV”,  also  called  “connected  TV”,68  challenges  the  traditional  regulations  mainly 
because  of  its  rarity.  It  also  calls  into  question  the  regulatory  instruments  based  on 
territoriality.  Services  regulated  by  the  CSA  co-exist  with  services  from  the  internet  for 
which the regulatory authority is not competent (in case of services broadcast from other 
countries  and  "user  generated  content"  such  as  YouTube  or  Dailymotion).  This 
coexistence  is  so  well-working,  that  the  mission  of  “Smart  TV”  said  in  a  report  to  the 

67 

68 

Source: Strategy Analytics (December 2010). 
See  in  this  regard  "The  connected  TV,"  CANDILIS  Takis,  LEVRIER  Philippe,  MANIGNE  Jérémie,  ROGARD  
Martin,  TESSIER  Marc,  TROJETTE  Mohammed  Adnène,  Ministry  of  Culture  and  Communication,  La 
Documentation française, September 2011. 

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Minister  of  Culture  in  September  2011,  that  for  the  defence  of  freedom  of  audiovisual 
communication  it  is  now  "more  crucial  to  ensure  the  open  access  to  networks  than  to 
provide general restrictions on the broadcasting of services." The relevance of the rules 
of  control  of  concentrations  is  questioned,  especially  with  regard  to  the  maximum 
number  of  authorizations  for  national  television  services  one  person  can  hold.  The 
Competition  Authority  thus  had  to  intervene  even  though  the  maximum  number  of 
channels  was  complied  with  (e.g.  acquisition  of  TMC  and  NT1  by  TF1;  acquisition  of 
Direct 8 and Direct Star by Canal Plus). The report on "Smart TV" proposes to give "more 
importance  to  audience  share  (real  or  potential)  and  market  share  made  on  different 
broadcast  media  than  to  the  number  of  controlled  channels  on  the  terrestrial  network." 
In addition, the report notes that three sets of rules could be simplified (those organizing 
and  quantifying  the  programming  of  cinematographic  and  audiovisual  works  on 
television;  those  on  advertising;  those  guaranteeing  the  pluralistic  expression  of 
thoughts). 

In  a  statement  of  5  December  2011,  the  president  of  CSA,  Michel  Boyon,  insisted  that 
four principles to which the Council is very committed should be respected. In particular, 
he  expressed  the  refusal  of  any  reduction  in  the  definition  of  areas  which  warrant 
regulation  (child  welfare,  dignity,  consumer  protection,  pluralism,  etc.).  Relief  from 
certain  rules  imposed  on  the  chains  would  instead  concern  media  chronology,  the 
maximum concentration, or the circulation of works "without prejudicing the interests of 
creators." The CSA also stresses the obligation to help finance the work for any company 
deriving  income  from  the  exploitation  of  the  work.  Finally,  the  regulatory  authority 
advocates the development of a co-regulation with professionals for audiovisual content 
circulating on the internet. 

The new services call for an individual solution based on freedom of choice of the viewer. 
The  development  of  these  new  services  enhances  access  to  information  primarily  on  a 
quantitative level. In this respect, the flexibility of the regulatory authority is reduced to 
control  all  programmes  broadcast  by  conventional  means  parallel  to  those  terrestrially 
broadcast  (cable,  satellite,  DSL  ...).  This  difficulty  is  compounded  where  the  programs 
received  by  viewers  are  of  foreign  origin  (is  it  appropriate  to  create  a  European 
regulatory body?). 

The  multitude  of  titles  in  print  or  audiovisual  services  allows  the  public  to  make  their 
choice. However, the market structure of the French media mainly remains oligopolistic. 
Four  to  five  groups  stand  out  in  each  sector.  In  this  respect,  the  decision  of  the 
Competition  Authority  concerning  the  acquisition  of  TPS  by  Canal  Plus  is  much 
anticipated. The operation combined the pay-TV activities of TPS and CanalSat in Canal+ 
France.  It  gave  complete  control  of  both  French  satellite  platforms  to  the  Canal  Plus 
group and the Vivendi group of which it is a subsidiary. Those satellite platforms include 
the  whole  business  value  chain  of  the  pay  TV  sector:  everything  from  the  control  over 
the  content  to  the  access  to  the  viewer.  Therefore,  the  authorization  of  sole  control  of 
TPS  and  CanalSatellite  by  the  Vivendi  group  and  the  Canal  Plus  group  in  August  2006 
was  conditioned  by  the  implementation  of  some  fifty  commitments  which  intend  to 
remedy  the  monopoly  in  publishing  and  marketing  of  premium  channels  of  the  new 
entity. In September 2011, the Competition Authority found out that the parties had not 
implemented  ten  of  these  commitments  including  the  most  significant  and  decided  to 
withdraw  its  authorization.  The  following  month,  the  Vivendi  group  and  the  Canal  Plus 
group challenged the decision of the Authority before the State Council and at the same 
time, they again notified of their takeover, as required by procedure. The decision of the 
Competition Authority is expected after the ongoing investigation process. 

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As  to  public  broadcasting,  it  should  be  noted  that  the  suppression  of  advertising  laid 
down in the act of 5 March 2009 did not allow a real shift in the editorial line of France 
Televisions. Most persons who were interviewed as part of the review of implementation 
of  the  act  considered  that  the  audience  remained  a  major  challenge  for  the  public 
broadcasting  group.69  This  finding  is  particularly  reflected  in  poor  development  of 
qualitative  tools.  The  group's  situation  also  remains  fiscally  insecure.  The  new  funding 
model  is  now  largely  dependent  on  a  budget  allocation  negotiated  by  the  State.  The 
proceeds of the tax on advertising on television are also much lower than that planned by 
the  reform.  Finally,  the  legal  basis  for  the  tax  on  telecommunication  services  is 
challenged. On 14 March 2011, the European Commission turned to the Court of Justice 
of the European Union and asked to clarify the compatibility of Article 302 bis KH of the 
Tax Code with the directive "authorization" of the "Telecom Package". 

The  audiovisual  sector  faced  another  problem:  the  allocation  procedure  of  the  radio 
resource  to  mobile  television  has  been  a  failure  for  the  CSA  which  decided  on  14 
February 2012 to withdraw the permissions it had granted for the broadcasting of sixteen 
television services in April 2010. 

Technological  change  also  impacts  print  media  which  must  also  cope  with  increasing 
financial  difficulties.  This  was  evidenced  by  the  recapitalization  plans  of  the  major 
national dailies in 2010 (Libération and Le Monde). On 30 January 2012, La Tribune, the 
second  French  business  daily,  published  its  last  paper  edition.  That  same  day,  the 
Commercial  Court  of  Paris  accepted  the  offer  made  by  the  company  Hi-Media  and  the 
regional press group “France Economies Régions”70 for the resumption of the daily which 
was  in  insolvent  restructuring  since  December.  La  Tribune,  which  has  already  changed 
owners  several  times  the  last  few  years,  will  continue  as  a  weekly  (with  a  target 
circulation  of  100,000  copies)  while  there  will  be  daily  news  on  its  website.  This  is  the 
second national newspaper that disappears after France Soir in December 2011. 

In  addition  to  the  criticism  on  the  institutional  level,  the  "Hadopi"  law  has  also  many 
enemies  among  supporters  of  Free  Software.  This  hostility  is  especially  expressed 
through  the  association  "April"  or  the  organization  of  the  defence  of  the  rights  and 
freedoms  on  the  Internet  "La  Quadrature  du  net".  According  to  its  co-founder,  Gerald 
Sédrati-Dinet,  "it  is  impossible  to  effectively  control  the  flow  of  information  by  law  and 
technology  in  the  digital  age  without  seriously  undermining  civil  liberties  and  hamper 
economic and social development". The collective says that, in addition to its inefficiency, 
this regime "delays the inevitable debate on recognition of sharing and the establishment 
of pooled funds controlled by users." 

For now, it is clear that the scope of the regime is essentially symbolic.71 It took nearly a 
year  after  the  publication  of  the  Act  of  28  October  2009  (Hadopi  II)  to  publish  the 
decrees of application defining the offense of “gross negligence”.72 The effectiveness of it 

69 

70 

71 

72 

Rapport d’information n° 572 de MM. David Assouline et Jacques Legendre, fait au nom de la commission 
pour le contrôle de l'application des lois, Sénat, 30 mai 2012. 
France  Economie  Régions  consists  of  five  regional  newspapers  (Objectif  Aquitaine,  Objectif  News  Midi-
Pyrénées, Objectif Languedoc-Roussillon, MéridienMag, Acteurs de l'Économie en Rhône-Alpes). 
According  to  Marie-Françoise  Marais,  president  of  the  Hadopi:  in  November  2011,  there  were  736,000 
recommendations  of  first  level.  The  number  of  recommendations  for  second  level  is  62,000.  As  for  the 
third level, there are 165 cases and “the Commission of rights protection wants to inform about them at 
all  costs.”  “It  convenes  the  persons  and  a  genuine  dialog  is  taking  place  again.”  It  depends  on  the 
circumstances whether or not it transmits the files. 
Decree No. 2010-695 of 25 June 2010 establishing a contravention of gross negligence protecting literary 
and artistic property on the internet, OJ 26 June 2010, p 11536; decree No. 2010-872 of 26 July 2010 on 
proceedings  before  the  commission  to  protect  the  rights  of  the  High  Authority  for  the  dissemination  of 
works and the protection of rights on the internet, OJ of 27 July 2010, p. 13874. Contravention of “gross 
negligence”  is  recognized  when:  the  subscriber  has  failed  without  good  cause  to  establish  a  means  of 

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is subject to the development of a legally pertinent offer (41 platforms have applied the 
label). However, the mechanism of labelling offers73 is of particular complexity. 

“The  provisions  currently  in  force  do  not  give  any  satisfaction,”  says  Marie-Christine 
Blandin  in  a  report  dated  20  March  2012  on  behalf  of  the  Committee  on  Culture, 
Education and Communication of the Senate, entitled “How to reconcile internet freedom 
and  remuneration  of  creators.”  “A  few  years  ago,  the  protagonists  of  downloading 
controls and sanctions by the DADVSI Act (copyright and related rights in the information 
society74) have in fact quickly realized the impossibility of its application while consumer 
advocates joined the ranks of the outraged defenders of civil liberties,“ says the Senator 
who  also  stresses  “the  excessiveness  of  the  sanctions.”  The  Senator  expressed  her 
doubts about a system in which it is the duty of the accused to prove his innocence and 
in which the proof of innocence consists of providing proof of purchase and installation of 
firewall devices from a company if these devices are incompatible with the free version of 
the software.” 

security or lack of diligence in the implementation of this means, while (i) he had previously received two 
recommendations of the Hadopi, the first by electronic mail (email) and the second by email coupled with 
a  letter  delivered  against  signature;  and  (ii)  further  acts  of  infringements  were  made  from  his  internet 
connection in the year following the receiving of the second recommendation. 
See  decree  No.  2010-1366  of  10  November  2010  concerning  the  labeling  of  the  offers  of  the 
communication  services  to  the  public  online  and  concerning  the  regulation  of  technical  measures  of 
protection  and  identification  of  works  and  objects  protected  by  copyright,  OJ  13  November  2010,  p. 
20216, on this subject. 
Droit d’auteur et des droits voisins dans la société de l’information. 

73	 

74	 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

GERMANY 


2.2.10.	  Germany 

2.2.10.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.10.1 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

In Germany the constitution (Grundgesetz) is the basis for the protection of the freedom 
of  speech,  but  in  addition  to  this,  the  jurisdiction  of  the  Federal  Constitutional  Court1 
plays a considerable role. As mentioned in the study of 2004, the right of expression is 
enshrined  in  Art. 5  para 1  s.  1  alt.  1  Grundgesetz2.  Specifically,  the  expressing, 
spreading  and  the  contents  of  opinion  are  protected  in  word,  writing,  picture  and  any 
other conceivable form. The negative stamping of freedom of speech is protected, too. 

The freedom of press is granted in Art. 5 para 1 s. 2 alt. 1 Grundgesetz. The free press 
shall be protected in its entirety: all behavioural patterns which belong to the production 
and  spreading  of  a  press  product  are  protected.  The  protection  of  the  confidentiality 
relationship between press and private informants, including the secrecy of the source of 
information,  also  belongs  to  the  freedom  of  press.  The  BVerfG  has  clarified  this  in  its 
"Cicero3-decision”. It held, that the search of a magazine’s editorial desk and the seizure 
of evidence is an inadmissible violation of the freedom of press, if the investigations have 
mainly purpose of determining the press informants.  

In accordance with this, the BVerfG decided on 10 December 2010, that the basic right 
enshrined  in  Art. 5  para 1  s.  2  alt.  2  Grundgesetz  also  protects  the  institutional 
independence of broadcasters from the obtaining of information to its dissemination. This 
includes the confidentiality of editorial work, which prohibited State bodies from gaining 
insight  into  the  working  processes  involved  in  producing  reports.  Organisational 
documents  containing  details  of  work  routines  or  the  identity  of  editorial  staff  are  also 
covered  by  editorial  confidentiality.  While  it  was  true  that  the  order  to  search  the 
premises of the local broadcaster FSK for the audio recording and related documents did 
not  infringe  the  ban  on  seizure  enshrined  in  Sec. 97  para  5  of  the  Code  of  Criminal 
Procedure (StPO)4, the proportionality of the measure was not entirely demonstrated. It 
was  necessary  to  weigh  the  actual  interest  of  a  criminal  investigation  against  the 
interference  with  broadcasting  freedom  that  such  a  search  would  create.  The  effects  of 
such an investigation on the media organisation should be taken into account, since the 
search of a broadcaster’s premises often disrupted the relationship of trust between the 
broadcaster and its sources, and an unlimited search order had an extremely intimidating 
effect  on  the  media  organisation  concerned.  The  BVerfG  also  ruled  that  the  taking  of 
photographs and drawings of the premises and the seizure of editorial documents as well 

1 

2 

3 

4 

Bundesverfassungsgericht, BVerfG. 
Grundgesetz, GG, availabe in English at: 
http://www.gesetze-im-internet.de/englisch_gg/index.html . 
Bundesverfassungsgericht,  decision  of  27  February  2007  (1  BvR  538/06,  1  BvR  2045/06),  available  in 
German at: 
http://www.bverfg.de/entscheidungen/rs20070227_1bvr053806.html . 
Strafprozessordnung, StPO, available in English at:  
http://www.gesetze-im-internet.de/englisch_stpo/index.html. 

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as  the  copying  of  those  documents  infringed  broadcasting  freedom,  since  there  was  no 
obvious need for such measures.5 

In  a  decision  on  general  principle,  the  BVerfG  strengthened  the  rights  of  publishers.  It 
ruled that the right of reply to ambiguous remarks should not be adjucated if the breach 
of personality rights is the result of only one possible interpretation of a text. This would 
infringe  the  freedom  of  the  media  enshrined  in  Art. 5  para 1  s. 2  Grundgesetz.  In  its 
reasoning,  the  Court  said  that  in  cases  in  which  one  does  not  know  whether  there  is  a 
hidden  meaning  laying  beneath  the  obvious  one,  decisions  should  have  regard  to  the 
principles  for  dealing  with  ambiguous  remarks.  The  freedom  of  opinion  is  violated  if  a 
court bases its decision on only one of the possible interpretations without first excluding 
the other ones, which would not have justified a sanction. If a writer must fear that he 
will be punished for making remarks even though the meaning of those remarks could be 
interpreted  in  a  way  that  would  not  lead  to  such  a  punishment,  this  could  cause  a 
suppression of admissible comments and a form of intimidation that contradicts the basic 
freedom  of  communication.  Therefore,  the  Court  ruled  it  was  compatible  with  the 
Constitution to only grant the right of reply if the hidden remarks that were the basis of 
the complaint were understood by the reader as the undeniable message of the text.6 

As stated, in Art. 5 para 1 s. 2 alt. 2 Grundgesetz, the freedom of broadcasting finds its 
manifestation.  It  guarantees  the  freedom  of  all  activities  which  are  necessary  for 
broadcasting. The guarantee of the programme freedom shall assure an adequate supply 
of  the  population  with  varied  broadcasting  offers  as  a  basis  of  a  free  opinion-forming 
process  in  the  democratic  community.  The  concept  of  broadcasting  includes  all  modern 
services such as pay-TV and teletext.7 

In 2007 the BVerfG decided, that the fixing of the licence fees for the period from 2005 
to  2008  by  the  legislative  bodies  of  the  German  Federal  States  (Länder)  violated  the 
freedom  to  broadcast  of  the  public  service  broadcasters  (PSB).  They  argued  about  the 
fact,  that  the  Minister–President  decided  not  to  observe  the  recommendation  of  the 
Commission for the Financial Needs of broadcasters (KEF)8 to raise the future level of the 
fees. The Court admitted, that most of the arguments of the Länder justified the action 
taken  by  their  legislative  bodies.  But  it  pronounced,  that  the  justifications  for  the 
arguments  were  insufficient  and  inaccurate.  As  a  consequence  of  that,  the  BVerfG 
declared  the  laws  of  the  Länder,  that  contained  the  fixing  of  the  licence  fees,  to  be 
incompatible with Art. 5 para 1 s. 2 alt. 2 Grundgesetz. Within this decision, the BVerfG 
confirmed  its  previous  jurisdiction  about  the  freedom  to  broadcast.  It  emphasised,  that 
the  programming  autonomy  is  granted  by  the  freedom  to  broadcast,  too.  In  the 
judgement  was  also  confirmed  that  „the  demands  put  up  by  the  Federal  Constitutional 
Court  to  protect  the  freedom  of  broadcasting  are  not  outdated  by  the  development  of 
communication  technology  and  media  markets“.  Because  of  the  risk  of  a  one-sided 
influencing control on the public opinion-forming, the court makes further arrangements 
to protect journalistic diversity.9 

5 

6 

7 

8 

9 

BVerfG, 1 BvR 1739/04, of 10 December 2010, available in German at: 
http://www.bundesverfassungsgericht.de/entscheidungen/rk20101210_1bvr173904.html;  BVerfG,  1  BvR 
2020/04 of 10 December 2010, available in German at:
http://www.bundesverfassungsgericht.de/entscheidungen/rk20101210_1bvr202004.html . 
BVerfG, 1 BvR 967/05, of 19 December 2007, available in German at:
http://www.bundesverfassungsgericht.de/entscheidungen/rk20071219_1bvr096705.html. 
Ruling of the Federal Constitutional Court, BVerfGE 74, 297 [345]. 
Kommission zur Ermittlung des Finanzbedarfs der Rundfunkanstalten, KEF. 
Decision  of  the  Federal  Constitutional  Court,  11  September  2007  (1  BvR  2270/05,  1  BvR  809/06  and  1 
BvR 830/06). 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In  a  BVerfG  judgement  of  12  March  200810,  the  Rules  on  the  Involvement  of  Political 
Parties in Private Broadcasting were set. The BVerfG explained that the legislator, which 
was obliged under Art. 5 para 1 s. 2 Grundgesetz to guarantee freedom of broadcasting, 
had, on the one hand, creative leeway to regulate the involvement of political parties in 
private broadcasting, because it is necessary to prevent any form of political influence of 
broadcasting.  It  was  therefore  free  to  prohibit  the  involvement  of  political  parties  in 
private  broadcasting  if  they  were  able  to  have  a  determining  influence  on  programme 
organisation  or  content.  On  the  other  hand,  an  absolute  restraint  on  the  ownership  of 
shares  in  private  broadcasting  companies  by  political  parties  is  not  an  admissible 
legislative  means  of  protecting  broadcasting  freedom,  if  it  is  regardless  of  whether  the 
parties  were  able  to  exercise  any  influence  at  all  on  the  broadcasting  company.  The 
judges  determined  that  there  is  a  need  of  protecting  the  relevant  legal  positions  of  the 
parties,  broadcasters  and  broadcasting  licence  applicants,  in  the  organisation  of 
broadcasting  regulations.  They  further  explained  that  such  an  absolute  restraint  is 
restricting the rights of the parties, to participate in the formation of the political will of 
the people by exercising the freedom of communication, including freedom to broadcast 
enshrined  in  Art. 5  para 1  s. 2  in  connection  with  Art. 21  para 1  s. 1  Grundgesetz. 
However, there is no need of such a strict ban to safeguard the diversity of opinion, since 
it  is  not  clear  whether  minority  shareholdings  that  did  not  provide  any  determining 
influence could harm diversity of opinion in broadcasting.11 

  Freedom to receive and to access information 

The  freedom  of  information  is  enshrined  separately  in  Art 5  para 1  s.  1  alt.  2 
Grundgesetz. It entails the freedom to inform oneself from generally accessible sources, 
including  the  possibility  to  gain  State  information  which  is  administered  by  authorities 
and publicly available. 

A  specific  aspect  of  the  freedom  of  the  person  is  enshrined  in  the  “basic  right  to  a  
guarantee of the confidentiality and integrity of IT-systems” as a particular manifestation 
of  the  general  personality  right  enshrined  in  Art. 2  para 1  Grundgesetz.  According  to  a 
BVerfG  judgement  of  27  February  200812,  computers  owned  by  people  who  are 
suspected  of  committing  a  criminal  offence  may  only  be  picked  up  by  using  spying 
software  if  there  is  a  special  need  for  the  protection  of  extremely  important  general 
interests.  The  court  emphasised  the  importance  of  the  use  of  IT-systems  for  the 
development of the personality and from the risks to the personality associated with that 
use that there was a considerable need for basic rights to be protected. It stated that an 
interference  with  this  right  might  be  justified  for  reasons  of  prevention  as  well  as 
prosecution of crimes but the secret infiltration of an IT-system is only allowed if there is 
actual evidence of a concrete danger to a very important legally protected interest (such 
as life and limb and individual freedom). In addition, the court called, inter alia, for the 
secret  intrusion  into  IT-systems  to  be  subject  to  a  judicial  order  and  for  precautions  to 
protect the core sphere of private life. 

10 

11 

12 

BVerfG, 2 BvF 4/03, of 12 March 2008, available in German at:
http://www.bundesverfassungsgericht.de/entscheidungen/fs20080312_2bvf000403.html. 
BVerfG, (1 BvR 967/05), of 19 December 2007 available in German at: 
http://www.bundesverfassungsgericht.de/entscheidungen/rk20071219_1bvr096705.html. 
BVerfG, 1 BvR 370/07, of 27 February 2008, available in German at:
http://www.bundesverfassungsgericht.de/entscheidungen/rs20080227_1bvr037007.html. 

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  Safeguards on regulatory authorities 

There  are  no  explicit  specific  safeguards  on  Regulatory  Authorities  in  the  German 
Constitution.  However,  media  regulatory  authorities  are  considered  to  be  encompassed 
by the freedom of broadcasting as stipulated in Art. 5 GG. 

  Safeguards on “universal service” 

In the German Constitution, Art. 87f provides a universal service entitlement in the range 
of  telecommunication  and  postal  services.  Besides,  it  is  derived  from  the  freedom  of 
broadcasting  according  to  Art.  5  GG,  for  the  part  of  PSB,  that  they  must  ensure  a 
universal  coverage  both  in  terms  of  content  and  as  far  as  technical  distribution  (and 
possibility to receive programmes) are concerned. 

2.2.10.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Media legislation in Germany is characterised by the principle of federalism, which means 
that it is primarily in the remit of the Länder and a nation-wide legislation in this area has 
to be negotiated between these. In the field of broadcasting this has been made by the 
agreement  of  a  (nation-wide)  Interstate  Treaty,  supplemented  by  media  laws  of  the 
Länder. In the print sector there is no press legislation on a national level. 

Private  broadcasters  need  a  license  which  allows  them  to  operate  radio  or  television 
programmes.  In  principle,  this  applies  to  national,  regional  and  local  broadcasters 
regardless  of  whether  the  particular  programme  is  distributed  via  satellite,  cable  or 
antenna. Notwithstanding this principle, the Länder may – within their legal responsibility 
–  allow  for  simplified  licensing  procedures  (for  programmes  connected  locally  or 
temporally  to  a  certain  public  event  or  to  a  certain  institution)  or  even  desist  from  the 
licence  obligation  (programmes  aimed  to  a  limited  number  of  housing  units  or  in 
institutions restricted to one building). The legal requirements for licensing are set up in 
the Interstate Broadcasting Treaty (RStV)13 as far as nation-wide programme offers are 
concerned (see Art. 20 et seq. RStV). For other programmes relevant legislation can be 
found in the Media Laws of the Länder (Landesmediengesetze, LMG and the Inter State 
Media  Treaties  (Medienstaatsverträge)  agreed  between  Berlin  and  Brandenburg  and 
between  Hamburg  and Schleswig-Holstein)14.  Furthermore, it  is said that such a license 
shall not be granted to e.g. political parties or regional administrative bodies15. 

Radio  programmes  which  are  transmitted  via  Internet  only,  are  not  required  to  have  a 
license,  but  have  to  notify  the  competent  Länder  authority  of  their  service  (Art. 20b 
RStV).  In  this  context  it  should  be  noted  that  Art. 2  para  3  RStV  excepts  certain  offers 
from  the  “Broadcasting”-term,  these  are  such  that:  (1)  are  offered  to  fewer  than  500 
potential  users  for  simultaneous  reception  in  any  case;  (2)  are  destined  for  the 
immediate  reproduction  from  reception  equipment  storage  media;  (3)  exclusively  serve 

13 

14 

15 

Rundfunkstaatsvertrag, RStV, available in English at:  
http://www.die-medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/13._RStV­
englisch.pdf.  
An overview on the Landesmediengesetze is available at: 
http://www.die-medienanstalten.de/service/rechtsgrundlagen/landesmediengesetze.html. 
See – as an example – Sec. 13 of the LMG of Baden-Württemberg, available in German at:  
http://www.lfk.de/fileadmin/media/recht/2011/LmedienG_2011_Oktober.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

personal  or  family  purposes;  (4)  are  not  journalistic  edited  offers;  or  (5)  consist  of 
programmes which are each activated against individual payment. 

Art. 54 et seq. RStV contain provisions concerning providers of online services. According 
to these provisions providers of telemedia in the meaning of the law do not require any 
license  or  notification.  The  same  is  true  under  Sec. 4  Telemedia  Act  (TMG)16.  Certain 
preconditions concerning the content remain unaffected by this freedom (see below). 

The  remit  of  public  service  broadcasting  (PSB)  is  provided  for  in  Art. 11  RStV.  This 
provision  determines  the  general  requirements  put  on  PSB  in  order  to  fulfil  their  public 
tasks17. The following provisions deal with other aspects of PSB, as their offers (i.e. radio 
and television services as well as telemedia under the RStV and the respective LMG), the 
television services in detail, permitted telemedia and funding. According to Art. 13 RStV 
PSB in Germany are funded primarily by licence fees, but they also generate income from 
advertising  and  product  placement.  In  December  2010  the  15th  Treaty  Amending  the 
Interstate Broadcasting Treaty (RÄStV)18 was signed by the Länder and it will enter into 
force on 1 January 2013. This agreement will fundamentally change the financing system 
of PSB. While up to now, the licence fee depends on the ownership of a reception device 
it will in future be based on the ownership of a home, place of business or non-privately 
used vehicle (so called “Haushaltsbeitrag”)19. Some of the LMG include provisions on the 
public remit, too, see for example Sec. 23 of the LMG of Saarland20. Besides this, there 
exist  legislation  concerning  the  respective  broadcasters  which  describe  the  public  remit 
and make reference to the RStV21. 

As  mentioned  above,  there  is  no  press  legislation  on  a  national  level  in  Germany,  but 
Press  and/or  Media  Laws  adopted  by  the  Länder22.  Although  these  Laws  differ  in  detail 
they  coincide  with  each  other  in  the  main  parts.  The  press/media  laws  of  the  Länder, 
determine that press activities including the establishment of a publishing company or an 
undertaking of the press industry should not be made conditional of any authorisation. 

- Media pluralism/ownership; competition law aspects 

Ownership and participation regulations relevant for the media sector in Germany are to 
be found on different levels.  

Under  the  federal  competence  the  Act  Against  Restraints  of  Competition  (GWB)23 
contains  general,  cross-sectoral  antitrust  provisions.  Sec. 30  GWB  (Resale  Price 
Maintenance  for  Newspapers  and  Magazines)  takes  out  from  the  general  prohibition  of 
agreements  restricting  competition  (under  Sec. 1  GWB)  the  vertical  resale  price 
maintenance by which an undertaking producing newspapers or magazines requires the 
purchasers of these products by legal or economic means to demand certain resale prices 

16	 

17 

18 

19 

20 

21 

22 

23	 

Telemediengesetz (TMG), available in German at:  
http://www.gesetze-im-internet.de/tmg/BJNR017910007.html. 
The “public remit” as such is treated in more detail in the chapter below. 
15th  Rundfunkänderungsstaatsvertrag, RÄStV, available in German at:  
http://www.rlp.de/ministerpraesident/staatskanzlei/medien .   
“15th Inter-State Broadcasting Agreement Signed” by A. Yliniva-Hoffmann, IRIS Legal Observations 2011­
2/20. 
Saarländisches Mediengesetz, available in German at:  
http://www.lmsaar.de/die-lms/rechtsgrundlagen/I_2_SMG.pdf. 
As an example Bayerisches Rundfunkgesetz, available in German at:  
http://www.br.de/unternehmen/inhalt/organisation/bayerisches-rundfunkgesetz100.html. 
An overview of these Acts is available in German at: 
http://www.presserecht.de/index.php?option=com_content&task=category&sectionid=4&id=14&Itemid=2 
6. 
Gesetz  gegen  Wettbewerbsbeschränkungen,  GWB,  available  in  English  at:  http://www.gesetze-im­
internet.de/englisch_gwb/englisch_gwb.html.   

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

or to impose the same commitment upon their own customers, down to the resale to the 
final  consumer.  The  control  of  concentration  is  governed  by  Sec. 35  GWB  et  seq.  The 
threshold as of which the provisions at hand are applicable is to be determined according 
to the respective turnover of the last business year preceding the planned concentration. 
With  regard  to  the  calculation  of  the  relevant  turnover  and  market  shares  the  GWB 
foresees  that  for  the  publication,  production  and  distribution  of  newspapers,  magazines 
and  parts  thereof  and  for  the  production,  distribution  and  broadcasting  of  radio  and 
television programmes and the sale of radio and television advertising time, the twenty­
fold amount of the turnover shall be taken into account. This means that concentrations 
in the media sector are subject to stricter statutory provisions than in other branches of 
the  economy.  The  idea  behind  this  is  to  prevent  dominant  positions  in  the  media  and 
opinion-making  markets.  At  this  point  it  should  be  mentioned  that,  in  November  2011, 
the  Federal  Ministry  of  Economics  and  Technology24  proposed  an  amendment  to  the 
GWB,  amongst  others  to  the  rules  concerning  the  described  threshold  and  its 
calculation25.  According  to  the  proposal  the  multiplier  “twenty”  as  relevant  for  the 
turnover calculation shall be reduced to “eight”. In absolute numbers this would mean a 
rise  of  the  threshold  from  EUR 25  Mio.  to  EUR 62,5  Mio.  This  shall  make  it  easier  for 
press  companies  to  secure  their  competitiveness  and  financial  fundament  by  merger. 
Particularly  small  and  medium-size  companies  would  benefit  from  this  change,  but  not 
the  big  publishers.  It  is  argued  that  press  companies  are  particularly  affected  by  the 
technological  and  economical  changes  in  the  media  sector  –  especially  due  to 
digitalisation  –  and  should  therefore  be  strengthened.  The  competent  cartel  authorities 
are  the  Bundeskartellamt,  the  Federal  Ministry  of  Economics  and  Technology,  and  the 
supreme Länder authorities26. The allocation of responsibilities is regulated in Sec. 48 et 
seq. GWB. 

An  important  decision  in  this  field  was  the  one  concerning  the  planned  merger  of  the 
broadcaster  ProSiebenSat.1  and  the  Axel  Springer  AG  (leading  German  multi-media 
company) in 2006. The Bundeskartellamt prohibited the planned merger due to concerns 
about  competition.  Axel  Springer  AG's  appeal  against  this  decision  was  initially  rejected 
by the Oberlandesgericht Düsseldorf (Düsseldorf Regional Appeal Court) as inadmissible. 
The  Axel  Springer  AG successfully  appealed  to  the  Bundesgerichtshof  (Federal  Supreme 
Court)  against  this  ruling  and  the  matter  was  referred  back  to  the  Oberlandesgericht 
Düsseldorf. The latter rejected the company's request for a declaratory judgement on 3 
to  appeal.  The 
left 
December  2008  as  unfounded,  but 
Bundesgerichtshof  confirmed,  on  8  June  2010,  the  Oberlandesgericht  Düsseldorf's 
decision27 .  The  companies  involved  in  the  planned  merger  would  have  formed  an 
oligopoly with a dominant market position and would have represented more than 80% 
of  the  German  television  advertising  market.  It  was  therefore  likely  that  this  oligopoly 
would have been strengthened further if the merger had been approved. The merger ban 
imposed by the Bundeskartellamt had therefore been lawful28. 

its  decision  open 

24 

25 

26 

27 

28 

für  ein  Achtes  Gesetz  zur  Änderung  des  Gesetzes  gegen 

Bundesministerium für Wirtschaft und Technologie, BMWi, see: http://www.bmwi.de.  
The  Bill  “Entwurf  des  BMWi 
Wettbewerbsbeschränkungen”, available in German at:  
http://www.bmwi.de/BMWi/Redaktion/PDF/G/gwb­
novelle,property=pdf,bereich=bmwi,sprache=de,rwb=true.pdf.   
An overview on the competition authorities of the Länder is available at: 
http://www.bundeskartellamt.de/wDeutsch/service/LKB.php. 
Decision of the Bundesgerichtshof of 8 June 2008, KVR 4/07, available at: 
http://juris.bundesgerichtshof.de/cgi­
bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=121d6152e0faa8fa7b5abf5e6f0ef025&nr=421 
97&pos=0&anz=1. 
“BGH  Confirms Ban on Merger between Springer and ProSiebenSat1” by  A. Yliniva-Hoffmann, IRIS  Legal 
Observations 2010-7/12. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The RStV includes the basic rules concerning public and commercial broadcasters in the 
dual broadcasting system of the Länder, thus, also provisions concerning admissibility of 
and  control  over  the  investment  of  broadcasters  in  other  companies.  Art. 16a  et  seq. 
RStV  prescribe  that  PSB  are  –  under  certain  conditions  –  allowed  to  be  commercially 
active, through legally independent subsidiaries and at market conditions. Such activities 
must  be  approved  by  the  competent  councils  of  the  broadcasting  corporations  prior  to 
their commencement. The PSB are permitted to take out direct or indirect shareholdings 
in  companies  pursuing  a  commercial  or  otherwise  economic  business  purpose.  A 
prerequisite  is,  however,  that  this  shareholding  is  in  pertinent  connection  to  their  legal 
tasks,  the  respective  company  is  constructed  as  a  legal  person  and  the  statute  or  the 
articles  of  association  of  the  company  provide  for  a  supervisory  board  or  comparable 
body. In case of an investment in a company, the broadcasting corporations are required 
to  secure  the  necessary  influence  upon  the  management  of  the  company  in  an 
appropriate  manner,  in  particular,  an  appropriate  presentation  in  supervisory  bodies. 
Further,  the  PSB  have  to  establish  an  effective  control  system  regarding  their 
shareholdings.  The  Director  General  (Intendant)  must  notify  the  respective  competent 
supervisory body of the broadcasting corporation regularly of such operations and report 
annually  to  the  supervisory  body  on  the  shareholdings.  This  report  is  submitted  to  the 
respective  competent  audit  offices  and  the  State  Government  exercising  legal 
supervision,  too.  The  commercial  activities  are  controlled  as  well.  The  PSB  must  not 
assume any liability for associated companies pursuing commercial activities. 

With  regard  to  commercial  broadcasters  the  RStV  stipulates  in  Art. 25  et  seq.  how 
plurality of opinion shall be ensured. This shall happen by creating broadcasting content 
that  provides  the  major  political,  ideological  and  social  forces  and  groups  adequate 
opportunity for expression in the general channels and takes minority views into account, 
too.  Furthermore,  the  two  general  channels  transmitted  nationally  with  the  largest 
audience  reach  shall  incorporate  window  services  providing  up  to  date,  authentic 
presentations  of  the  political,  economic,  social  and  cultural  life  in  the  respective  State. 
The  editorial  independence  of  the  window  service  provider  shall  be  guaranteed  and  it 
shall be granted a separate license.  

In  addition  to  that  it  shall  also  be  prevented  that  a  television  broadcaster  acquires 
dominant power of opinion. Such a dominant power of opinion is measured according to 
annual average audience share (see Sec. 26 para 2 RStV). In the event that a television 
company  has  acquired  dominant  power  of  opinion,  no  further  services  attributable  to  it 
may  be  permitted,  nor  may  the  acquisition  of  further  participating  interests  in 
broadcasters  attributable  to  it  be  admitted.  Along  with  this,  the  State  media  authority 
shall together with the Commission on Concentration in the Media (KEK)29 and involving 
the  television  broadcaster  elaborate  measures  in  order  to  reduce  audience  share  or 
market  power  of  the  respective  company.  If  an  agreement  cannot  be  found,  the  State 
media authorities shall – as last resort – revoke the licenses of as many of the services 
attributable to the company as may be required to ensure that the undertaking no longer 
exercises  dominant  power  of  opinion.  Under  Art. 29  RStV  the  competent  State  media 
authority  must  be  notified  of  any  planned  change  in  participating  interests  or  other 
influences prior to their implementation. Measures the television broadcaster can take in 
order  to  ensure  plurality  are  the  concession  of  broadcasting  time  to  independent  third 
parties and the establishment of a programme advisory council, see Art. 30 et seq. RStV. 

29 

Kommission zur Ermittlung der Konzentration im Medienbereich, Art. 35 para 2 RStV; information on the 
KEK are available in English at: http://www.kek-online.de/cgi-bin/esc/englisch.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Besides this, the media laws of the Länder can determine further measures to preserve 
and promote media diversity30. 

- Legal framework for psm; ability to fulfill their tasks 

The RStV contains in its first part general provisions applying to both public service and 
commercial broadcasting, as on short news reporting, European productions, advertising 
principles, consumer protection and the right to information. Art. 11 et seq. RStV include 
the  provisions  for  public  service  broadcasting.  They  refer  to  the  Länder  broadcasting 
corporations  forming  the  association  of  public-service  broadcasters  in  Germany31,  the 
second  national  public-service  broadcasting 
the  national 
Deutschlandradio33 . 

corporation32  and 

According to these the public remit (Art. 11) is defined as follows: 

(1)  Under  their  remit,  the  public-service  broadcasting  corporations	  are  to  act  as  a 
medium  and  factor  in  the  process  of  the  formation  of  free  individual  and  public 
opinion through the production and transmission of their offers, thereby serving the 
democratic,  social  and  cultural  needs  of  society.  In  their  offers,  the  public-service 
broadcasting  corporations  must  provide  a  comprehensive  overview  of  international, 
European, national and regional events in all major areas of life. [...] Entertainment 
should also be provided in line with a public-service profile of offers. 

(2)  The  public-service  broadcasting  corporations  in  fulfilling  their  remit  shall  pay  due 
respect  to  the  principles  of  objectivity  and  impartiality  in  reporting,  plurality  of 
opinion and the balance of their offers. 

Subsequently, it is determined which kind of programme PSB generally may offer (radio, 
television, certain telemedia and print publications with programme-related content) and 
afterwards itemised which programmes these are in particular.  

With  regard  to  the  online  activities  (telemedia)  of  PSB  Art. 11d34  para 1  RStV 
determines: 

„(1)  The  state  broadcasting  corporations  forming  the  ARD  association,  the  ZDF  and 
Deutschlandradio  shall  provide  telemedia  as  necessitated  from  a  journalistic  or 
editorial point of view as journalistic edited offers.“ 

Hence, this makes clear that offering telemedia is to be seen as a part of the public remit 
of  PSB,  as  far  as  these  contribute  to  the  shaping  of  public  opinion.  In  the  following 
paragraphs it is described in more detail which kind of content (programme-related), for 
which  period  (e.g.  seven-days-catch-up)  and  for  which  purposes  (especially  the 
participation of all groups of society in the information society) are allowed to be offered. 
Press-type  offers  not  related  to  a  programme  are  not  permitted  in  order  to  avoid 
competitive  advantages  of  the  licence  fee  financed  PSB  over  the  press.  With  regard  to 
the continuous extension of such offers by the PSB this legal prohibition, however, was in 
practice not sufficient to avoid conflicts between the both sectors. Furthermore, Art. 11d 
para 5  prohibits  advertising  and  sponsoring  as  well  as  acquired  feature  films  and 

30	 

31 

32 

33 

34 

See  for  instance  Sec.  23  of  the  Landesmediengesetz  Rheinland-Pfalz,  available  in  German  at: 
http://www.lmk-online.de/service/rechtsgrundlagen/landesmediengesetz/#c2267. 
Arbeitsgemeinschaft der Landesrundfunkanstalten, ARD. 
Zweites Deutsches Fernsehen, ZDF. 
Deutschlandradio, DRadio. 
This  was  introduced  by  the  12th  Agreement  Amending  the  Interstate  Broadcasting  Agreement  (RÄStV); 
see “12th Broadcasting Agreement Signed” by A. Yliniva-Hoffmann, IRIS Legal Observations 2009-2/15. 

289 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
   
  
  
 
  
  
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

episodes of television series which have not been commissioned in telemedia. The annex 
to Art. 11d para 5 RStV includes a negative list of public service telemedia. The PSB shall 
further  concretise  the  content  and  direction  of  their  telemedia  in  so-called  telemedia 
concepts35. 

A new or modified telemedia can be introduced under certain conditions, only. Due to the 
potential  of  conflict  that  is  connected  to  the  permission  of  licence  fee  financed  online 
services  –  particularly  with  regard  to  the  press  –  the  so  called  “Drei-Stufen-Test” 
(Art. 11f  RStV)  was  introduced.  In accordance  with  this,  the  respective  PSB  has  –  for  a 
planned  new  offer  or  a  planned  modification  of  an  existing  offer  –  to  set  out  to  the 
competent  council  that  the  offer  at  hand  fits  the  requirements  of  its  public  remit. 
Following to this the council has to examine pursuant to the mentioned test, whether this 
is  the  case:  In  a  first  step  it  shall  analyse  to  what  degree  the  offer  conforms  to  the 
democratic, social and cultural needs of society, which can be seen as a concretion of the 
„public  remit“-condition.  After  that,  the  council  has  to  check  to  what  degree  the  offer 
contributes to editorial competition in a qualitative manner, taking into consideration the 
quantity  and  quality  of  the  existing,  freely  accessible  offers,  the  impact  of  the  planned 
offer  on  the  market  and  its  function  regarding  the  formation  of  opinion  in  the  light  of 
existing  comparable  offers  including  those  of  public  service  broadcasting.  Thus,  this 
second  step  of  the  “Drei-Stufen-Test“  can  be  considered  as  the  main  emphasis  of  the 
examination.  In  a  final  step  it  shall  be  controlled  what  financial  expenditure  is  required 
for the offer which means that the cost must not be out of proportion to the journalistic 
added value. 

It  should  be  noted  at  this  point  that  Art. 54  et  seq.  RStV  provide  for  further  rules 
concerning  all  telemedia,  not  only  those  of  the  PSB.  These  include  general  provisions, 
certain  obligations  for  the  providers  as  well  as  content-related  regulation  and  shall 
therefore be described in the relevant chapter below. 

The funding of PSB (Art. 12 et seq. RStV) has to be adequate and sufficient in order to 
ensure that PSB are able to fulfil their public tasks. The funding is in the first line based 
on  device-dependent  license  fees  (as  to  the  amendments  entering  into  force  on  1 
January 2013 with a move to the so called “Haushaltsabgabe”, see above). The financial 
requirements  are  regularly  reviewed  and  determined  by  the  independent  commission 
assessing  the  funding  requirements  of  public  service  broadcasting  (KEF)  by  taking  into 
account  the  principles  of  efficiency  and  economy  including  the  related  potentials  for 
rationalisation. The amount of the license fee as well as the calculation of the needs are 
determined under two other Interstate Treaties36. 

In  addition  to  these  fees  PSB  are  –  within  limits  –  permitted  to  obtain  revenues  from 
product  placement,  advertising  and  sponsoring  but  not  from  teleshopping  (Art. 15,  16, 
18 RStV). 

As  described  above,  PSB  are  –  under  certain  legal  preconditions  as  provided  for  in 
Art. 16a  et  seq.  RStV  –  also  entitled  to  perform  commercial  activities  through  legally 
independent subsidiaries at market conditions. 

35 

36 

Telemedia concepts of the ARD are available in German at:
http://www.ard.de/intern/onlineangebote/dreistufentest/-/id=1086834/qvxjpw/index.html; 
Telemedia concepts of the ZDF are available in German at:  
http://www.unternehmen.zdf.de/index.php?id=475;  telemedia  concept  of  DRadio  is  available  in  German 
at: http://www.dradio.de/download/107686. 
Rundfunkgebührenstaatsvertrag, 
medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/RGebStV_10.pdf 
Rundfunkfinanzierungsstaatsvertrag, 
medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/RFinStV_11.pdf. 

http://www.die­

http://www.die­

RGebStV, 

available 

available 

RFinStV, 

German 

German 

at: 

at: 

in 

in 

; 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

According to Art. 11e RStV PSB shall enact statutes or directives detailing the execution 
of their respective remit as well as specifying the procedures governing the development 
of  offer-concepts  and  the  procedure  governing  new  or  modified  telemedia,  and  are 
obliged to report regularly on the fulfilment of their respective remit, on the quality and 
quantity of the existing offers as well as on the focus of the respective planned offers.  

Such  directives  on  the  different  aspects  of  the  execution  of  the  public  remit  have  been 
established and published by the ARD37, ZDF38 and DRadio in accordance with the RStV. 
Some  of  the  State  broadcasting  corporations  united  in  the  ARD  have  issued  own 
directives39.  The  ARD  has  published  its  last  report  on  the  fulfilment  of  its  remit,  on  the 
quality  and  quantity  of  its  telemedia  offers  and  on  the  planned  focus40,  in  December 
2010.  This  report  holds  out  in  its  future  prospects  (item  13)  an  extension  of  telemedia 
offers and of the use of mobile terminal devices. The ZDF has published its programme 
perspectives  2011-2012,  which  according  to  the  ZDF-statute41  shall  include  the  duty  to 
report  under  the  RStV42.  The  named  ZDF  report  reveals  what  is  planned  in  2011-2012 
(online  offers  are  described  in  item  7)  and  holds  out  the  prospect  of  a  report  on  the 
fulfilment of the obligations for mid-2012. So, too, DRadio has published its report on the 
programme  achievements  and  perspectives  of  the  national  radio  broadcasting  2011­
201243, which in its item 16 comments the past and planned online activities as well as 
the review of these according to the described “Drei-Stufen-Test”. 

Supplement to the Interstate Treaties described above there are the ARD-Treaty44 and – 
Statute45  and  –Television  Treaty46,  the  ZDF-Treaty47  and  –Statute48  as  well  as  the 
DRadio-Treaty49.  The  Treaties  complement  the  RStV,  for  instance  concerning  the 
collaboration  of  the  State  broadcasting  corporations  within  the  association  of  the  ARD 
and the organisation, content and other obligations (ZDF and DRadio). The Statutes are 
the respective founding documents which primarily deal with aspects of internal structure 
and cooperation and external representation. 

37	 

38	 

39	 

40	 

41	 

42	 

43	 

44	 

45	 

46	 

47 

48 

49 

the 

ihrer 

internal 

the  ZDF 

is  available 

in  German  at: 

regulations  concerning 

ihres  Auftrags,  über  die  Qualität  und  Quantität 

ARD-Leitlinien 11/12, available in German at:  
http://www.ard.de/intern/-/id=2447794/property=download/nid=1886/acfjvv/ARD­
Leitlinien1112%2BBericht0910.pdf. 
Overview  on 
http://www.unternehmen.zdf.de/index.php?id=15. 
See  as  one  example  the  terms  of  reference  of  Rundfunk  Berlin-Brandenburg  (RBB),  available  in  German 
at: 
http://www.rbb-online.de/unternehmen/organisation/grundlagen/die_zielvorgaben_des.file.pdf. 
Bericht  der  ARD  über  die  Erfüllung 
Telemedienangebote sowie über die geplanten Schwerpunkte, available in German at:  
http://www.ard.de/intern/-/id=2447820/property=download/nid=1886/ 
19tcfs8/ARD-Leitlinien-Telemedien1112%2BBericht0910.pdf. 
Satzung des Zweiten Deutschen Fernsehens, available in German at:  
http://www.unternehmen.zdf.de/uploads/media/Satzung_des_ZDF_Fassung__vom__9_12_11.pdf. 
Programm-Perspektiven 2011-2012 Selbstverpflichtungserklärung, available in German at:  
http://www.unternehmen.zdf.de/fileadmin/files/Download_Dokumente/ 
DD_Das_ZDF/Fernsehrat/ZDF_Selbstverpflichtungserkaerung_Programmperspektiven_2011-2012.pdf. 
Bericht über programmliche Leistungen und Perspektiven des nationalen Hörfunks 2010-2012, available in 
German at: http://www.dradio.de/download/128293. 
ARD-Staatsvertrag, available in German at: 
http://www.ard.de/intern/organisation/-/id=2421034/property=download/nid=8036/20qys9/ARD­
Staatsvertrag_2009.pdf. 
ARD-Satzung, available in German at:  
http://www.ard.de/intern/abc/-/id=2254374/property=download/nid=1643802/3n05n9/ARD-Satzung.pdf. 
ARD-Fernsehvertrag, available in German at:  
http://www.ard.de/intern/abc/­
/id=1659728/property=download/nid=1643802/dvd7ul/Fernsehvertrag_2006.pdf. 
ZDF-Staatsvertrag, available in German at: 
http://www.unternehmen.zdf.de/uploads/media/zdf-staatsvertrag_neu.pdf.  
ZDF-Satzung, available in German at:  
http://www.unternehmen.zdf.de/uploads/media/5.1.1.4.1_u_Satzung_des_ZDF.pdf.  
Deutschlandradio-Staatsvertrag, available in German at:  
http://mv.juris.de/mv/gesamt/DLRStVtr_MV_1994.htm#DLRStVtr_MV_1994_rahmen. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Furthermore the State broadcasting corporations associated in the ARD have issued legal 
provisions of their own. It should be noted that some of these are State Treaties between 
two or four Länder establishing a  joint regional PSB. Since the treatment of all of these 
would go beyond the scope of this country report, the consideration shall be focussed on 
the  WDR-Law50.  The  reason  for  this  choice  is  that  the  WDR  is  the  biggest  of  the  State 
broadcasters. With regard to telemedia Sec. 3 of the WDR-Law makes a reference to the 
relevant  articles  (11d-11f)  of  the  RStV.  Sec. 4  et  seq.  of  the  WDR-Law  determine  the 
public remit, its fulfilment, the issuance of relevant directives and the duty to report as 
described  before.  The  provisions  concerning  the  content of  the  services  offered  shall  be 
object of the relevant chapter below. 

- The role and functioning of regulatory authorities in these respects 51 

The  regulation  of  media  has  to  be  considered  in  the  context  of  the  constitutional 
protection  under  Art. 5  Grundgesetz.  The  freedom  from  State  interference  induces  that 
the legislator must not use its room to manoeuvre to influence media in the interest of a 
certain  opinion.  Again,  it  should  be  stressed  that  –  within  the  German  system  of 
federalism  –  it  is  in  principle  within  the  responsibility  of  the  Länder  to  implement  the 
relevant laws in this field. 

With  regard  to  PSB  and  the  aspects  examined  above  the  following  applies:  The  internal 
supervision on PSB's broadcasting and telemedia services is exercised by the respective 
Broadcasting  Council52  of  each  broadcaster  regarding  those  associated  in  the  ARD.  The 
Broadcasting  Councils  inter  alia  monitor  the  compliance  with  the  programme  principles. 
With  regard  to  the  ZDF  the  ZDF-Treaty  determines  the  responsibility  of  the  Television 
Council53  for  internal  supervision.  The  Television  Council  can  issue  guidelines  and  is 
empowered  to  supervise  compliance  with  these  guidelines  and  with  the  legal  provisions 
contained  in  the  ZDF-Treaty  and  the  RStV.  Structure  and  duties  of  these  councils  are 
regulated in the respective broadcasting laws of the Länder, the Interstate Treaties and 
the  ZDF-Treaty.  In  addition  to  this,  DasErste,  which  is  a  national  programme  jointly 
produced  by  the  broadcasting  corporations  associated  under  the  roof  of  the  ARD,  is 
advised and monitored by an internal commission, the Advisory Council for Programme54. 
The  joint  activities  of  the  regional  broadcasters  under  the  roof  of  the  ARD  are  advised 
upon by the  Councils  Chairpersons'  Conference  of  the  ARD55  which  also  coordinates  the 
work of the respective councils of the regional PSB. External supervision is exercised by 
the  respective  Länder-Governments56.  Legal  supervision  on  the  ZDF  is  exercised  by  the 
Länder-Governments  on  the  basis  of  an  alternating  two-years  period57.  In  order  to 
ensure freedom from state interference as mentioned above, the external supervision is 
limited  to  the  question  of  legality  of  administrative  activities.  The  Advisory  Council  and 
the GVK of the ARD are empowered to monitor the programme of DasErste ex officio and 
to  act  on  complaints  by  viewers.  As  far  as  supervision  of  the  single  programmes  is 
concerned  the  monitoring  is  in  the  responsibility  of  the  specific  board  competent  for 
supervising the respective regional PSB who has produced the programme in question. If 
the Advisory Council and the GVK of the ARD determine an infringement of the relevant 

50 

51 

52 

53 

54 

55 

56 

57 

Gesetz über den Westdeutschen Rundfunk, WDR-G, available in German at:  
http://www.wdr.de/unternehmen/senderprofil/rechtsgrundlagen/pdf/WDR_20100317_WDR-Gesetz.pdf. 
This section was produced with the valuable support of Peter Matzneller, LL.M. Eur. 
Rundfunkrat, see Sec. 15 et seq. WDR-G. 
Fernsehrat, see Sec. 19 et seq. ZDF-Treaty. 
Programmbeirat, see Art. 11b RStV, Sec. 1, 7 ARD-Treaty and Sec. 2 of the ARD-Television Treaty. 
Gremienvorsitzendenkonferenz der ARD (GVK), see Sec. 7 ARD-Treaty; this is not to be confused with the 
Councils  Chairpersons'  Conference  established  under  the  roof  of  the  State  Media  Authorities  (Die 
Medienanstalten) in respect of the supervision of commercial broadcasters.  
See Sec. 54 WDR-G. 
See Sec. 31 ZDF-Treaty. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

rules they contact the various organs of DasErste or the concerned regional broadcasting 
corporation  and  are  entitled  to  make  public  comments.  The  Television  Council  monitors 
the  ZDF  ex  officio  and  is  entitled  to  act  on  viewers’  complaints.  As  regards  ZDF,  the 
Television  Council  may  under  Sec. 20  of  the  ZDF-Treaty  publicly  express  its  criticism 
about broadcasts of the ZDF.  

The  members  of  DRadio  are  according  to  Sec. 1  Deutschlandradio-Treaty  the 
broadcasting  corporations  associated  under  the  roof  of  the  ARD  and  the  ZDF.  Internal 
supervision  is  exercised  by  the  Radio  Council58.  The  Radio  Council  monitors  DRadio  ex 
officio  and  acts  on  viewers’  complaints  (Sec. 15  Deutschlandradio-Treaty).  Legal 
supervision is exercised by the Länder-Governments on the basis of an alternating two-
years period59. 

Besides this, the competent councils for ARD, ZDF and DRadio can require the respective 
Director-General to publish complaints issued by the councils due to a breach of the legal 
provisions in the respective services (Art. 19a RStV). 

The  bodies  and  organs  described  in  this  section  are  also  competent  for  supervising  the 
respective non-linear audiovisual media services' activities of DasErste, the regional PSB 
associated in the ARD and of the ZDF.  

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The  term  “journalist”  is  not  protected  as  occupational  title.  According  to  the  definition 
provided by the German Journalists Association (DJV)60 a journalist is: a person that – in 
accordance  with  certain  criteria,  as  journalistic  standards  and  high  personal  and 
professional quality – works full-time on the preparation or dissemination of information, 
opinion  and  entertainment  via  the  media  in  words,  pictures,  sound  or  a  combination  of 
these61. Thus, although there are put high requirements on the occupational image of a 
journalist the pursuance of this vocation shall depend on the individual capacity but not 
on external demands as to the professional or training qualification. This attitude reflects 
the  intention  to  save  freedom  of  media  and  freedom  of  opinion  from  restrictions  –  and 
correlates  with  the  freedom  of  registry  for  publishers  (see  above).  The  protection  of 
these  freedoms  is  of  major  importance  which  is  reflected  in  the  relevant  legislation  and 
its implementation. 

First, it should be noted that there is no national press law in Germany to provide for a 
legal  framework  for  journalistic  activities.  In  the  1950s  the  Federal  Ministry  of  Internal 
Affairs  submitted  the  draft  of  a  “Bundespressegesetz”  (National  Press  Law)  which 
proposed the establishment of a self-monitoring body in the form of a public corporation. 
This planned State supervision caused indignation of journalists and publishers and was 
discarded  again.  As  a  reaction  to  this  attempt  about  ten  publishers  and  editors  in  chief 
founded the German “Presserat62” along the lines of the British Press Council. This self-
monitoring body will be treated in more detail in the chapter below. 

58 

59 

60 

61 

62 

Hörfunkrat, Sec. 20 et seq. Deutschlandradio-Treaty.
 
See Sec. 31 Deutschlandradio-Treaty.
 
Deutscher Journalisten Verband, DJV, see: http://www.djv.de.  

Berufsbild Journalistin – Journalist, DJV-publication available in German at:  

http://www.djv.de/fileadmin/DJV/Journalismus_praktisch/Broschueren_und_Flyer/Berufsbild_2009.pdf . 
See: http://www.presserat.info. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Under the press and media laws of the Länder63 the function and duty of the press/media 
is  to  procure  and  distribute  information,  to  comment  on  an  issue,  to  criticise,  to 
contribute to opinion-making and education. 

The press/media are obliged to the liberal and democratic order of the Federal Republic 
of Germany. The freedom of the press/media shall be subject only to such limitations as 
permitted  by  the  Grundgesetz  and  in  the  immediate  context  of  the  respective 
press/media law. 

The press/media have certain rights, as the right to information, and besides these also 
obligations,  as  for  example  the  obligation  to  careful  investigation,  to  publishing 
information, to identify advertising and to concede a right to reply. 

To be enabled to fulfil their public tasks media depend on obtaining information. To this 
end  public  authorities  are  –  with  a  few  exceptions  –  obliged  to  provide  information  to 
journalists. This right to information is regulated in the RStV, LMG, LPrG as well as in the 
respective freedom of information laws. 

Art. 9a  RStV  determines  a  right  to  information  according  to  which  broadcasters  are  – 
subject  to  certain  exemptions  due  to  matters  of  public  interest  –  entitled  to  obtain 
information  from  authorities.  In  addition  to  this  some  LMG  provide  for  the  right  to 
information  towards  public  authorities  in  favour  of  broadcasters  and  telemedia 
providers64.  The  same  applies  to  the  LPrG  which  foresee  the  right  to  access  to  public 
authorities'  information  for  the  press,  again  provided  with  exceptions  for  certain 
prevailing public or private interests65. 

On 1 January 2006 the Federal Act Governing Access to Information held by the Federal 
Government  (IFG)66  entered  into  force.  According  to  the  IFG  everyone  is  entitled  to 
(comprehensive) official information from the authorities of the Federal Government and 
from other Federal bodies and institutions insofar as they discharge administrative tasks 
under public law. 

Everyone  means  every  citizen  and  refers  to  natural  and  legal  persons  –  as  well  as  to 
journalists. The reference in Sec. 1 para 3 IFG, which determines that provisions in other 
legislation on access to official information shall take precedence does not mean that the 
right to information as provided in favour of journalists under the LMG/LPrG (see above) 
would exclude journalists from the scope of application of the IFG. It has explicitly been 
ruled by court67 that journalists belong to the beneficiary category of persons under the 
IFG, too. The precedence as described in Sec. 1 para 3 IFG applies only if and when the 
other legislation provides comprehensively for a special right to information68. Moreover, 
it would contravene the intention of the LMG/LPrG – i.e, to improve the media’s position 

63 

64 

65 

66 

67 

68 

Landespressegesetze, LPrG. 

See  for  example  Sec. 38a  of  the  LMG  Baden-Württemberg,  available  in  German  at:  http://www.lfm­
nrw.de/fileadmin/lfm-nrw/Medienrecht/lmg2009.pdf. 
See for example Sec. 4 LPrG Nordrhein-Westfalen, available in German at:  
https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=2&gld_nr=2&ugl_nr=2250&bes_id=4493&menu=1&sg 
=0&aufgehoben=N&keyword=pressegesetz#det188988. 
Gesetz  zur  Regelung  des  Zugangs  zu  Informationen  des  Bundes,  Informationsfreiheitsgesetz,  IFG, 
available in English at: http://www.gesetze-im-internet.de/englisch_ifg/index.html.  
Oberverwaltungsgericht  (administrative  appeals  court)  Nordrhein-Westfalen,  of  26  October  2011  (8  A 
2593/10), available in German at:
http://www.justiz.nrw.de/nrwe/ovgs/ovg_nrw/j2011/8_A_2593_10urteil20111026.html. 
An example for this is the Act on the documents of the State Security of the former German Democtartic 
Republic  (StUG) which will be described below. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

–  if  journalists  would  enjoy  the  privileging  provision  of  the  LMG/LPrG  but  would  be 
excluded from the “Jedermannsrecht69” under the IFG.  

Usually the respective applicant may request a certain form of access to the information. 
Furthermore, the IFG introduced a reversal of the burden of proof, which means that it is 
not  the  applicant  who  has  to  prove  his  or  her  legitimate  interest  in  the  requested 
information, but it is the authority which has to explain why – in the particular case – the 
information  requested  is  refused.  The  protection  of  special  public  interests  (e.g. 
international  relations  or  military  interests),  of  the  official  decision-making  process,  of 
personal data and of intellectual property and business or trade secrets can constitute a 
legal  exception  to  the  right  to  information.  The  information  is  to  be  made  accessible  to 
the applicant within one month. Fees and expenses shall be charged for official acts but 
not for the furnishing of basic items of information. Anyone considering his or her right to 
access to information to have been violated may appeal to the Federal Commissioner for 
Freedom  of  Information70.  It  is  permissible  to  challenge  the  decision  to  reject  the 
application  by  lodging  an  administrative  appeal  or  bringing  an  action  to  compel 
performance of the requested administrative act.  

As  compared  with  the  right  to  information  provided  for  in  the  LMG  and  LPrG  the  IFG 
expands this right and facilitates its realisation. 

Some of the Länder have introduced Freedom of Information Acts on regional level, too. 
These Länder-IFG71 provide for the right to access to information as far as the respective 
State authorities are concerned.  

Journalists  are  regularly  confronted  with  personal  rights  aspects  when  exercising  their 
profession.  As  press  freedom  is  not  guaranteed  without  any  limits,  in  some  cases  there 
has to be a weighting of the respective interests, namely the freedoms protected under 
Art. 5 Grundgesetz and the personal rights affected which are for their part protected by 
the  Grundgesetz.  The  consideration  of  interests  is  made  with  regard  to  the  diligence  of 
the journalist’s work and to the public interest in the topic in question. 

The right to one’s own picture and the right in one’s own name are part of the protected 
personal rights that have to be respected by journalists. If an individual feels his or her 
rights infringed he or she can claim: 

	  right of reply as determined by the LPrG or LMG;  

	  non-disclosure or omission of a certain statement of facts or abusive criticism;  

	  withdrawal of a statement that has been proven to be wrong;  

	  completion  or  correction  if  a  reporting  was  incomplete  or  facts  were  presented 

wrong; 

	  damages72. 

69 

70 

71 

72 

German  term  which  characterises  a  certain  right  as  one  which  can  be  asserted  by  any  person  living  in 
Germany, in distinction from such that can be claimed by German nationals, only. 
Der Bundesbeauftragte für den Datenschutz und die Informationsfreiheit, see:
http://www.bfdi.bund.de/IFG/Home/homepage_node.html. 
An overview on the existing Länder-IFG is available at:  
http://www.bfdi.bund.de/IFG/Gesetze/Landesgesetze/Landesgesetze_node.html. 
Claims  according  to  civil  law  can  be  based  inter  alia  on  the  following  provisions:  Sec.  12,  823,  1004 
German  Civil  Code  (Bürgerliches  Gesetzbuch,  BGB)  available  in  English  at:  http://www.gesetze-im­

295 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
  
 
                                                 
  
 
 
 
  
  
 
  
 
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The  German  Criminal  Code73  prohibits  journalists  inter  alia  insult  and  (intentional) 
defamation74.  Journalists  must  not  violate  privacy  under  Sec. 201  et  seq.  StGB  (e.g. 
privacy  of  the  spoken  an  written  word,  violation  of  intimate  privacy  by  taking 
photographs)  or  commit  offences  related  to  religion  or  ideology  under  Sec. 166  et  seq. 
StGB  (e.g.  defamation  of  religions,  religious  and  ideological  associations).  Furthermore, 
journalists  must  not  in  their  reporting  incite  to  a  war  of  aggression  (Sec. 80a  StGB), 
disseminate  propaganda  material  of  unconstitutional  organisations  (Sec. 86  StGB), 
publicly incite to crime (Sec. 111 StGB), commit a burglary (Sec. 123 StGB; which is of 
importance  when  private  locations  or  events  are  concerned),  incite  to  hatred  (Sec. 130 
StGB), attempt to cause the commission of offences by means of publication (Sec. 130a 
StGB) and to disseminate depictions of violence (Sec. 131 StGB).  

Sec. 353b StGB on the breach of official secrets and special duties of confidentiality has – 
in  connection  with  the  provisions  on  abetting  and  aiding75  –  gained  importance  in  this 
context,  too.  In  this  combination  there  have  been  conducted  investigations  against 
journalists, too, sometimes in connection with searches and sequestration in editorial or 
journalists offices. Although these investigations were directed at the journalists, the aim 
was – at least also – to reveal the informant. For this very reason this criminally relevant 
accusation  has  been  subject  of  fierce  criticism  by  journalists.  An  important  decision  in 
this  context  was  issued  in  2007  by  the  German  Constitutional  Court  in  the  so  called 
Cicero-case.  In  this  ruling  the  BVerfG  strengthened  the  freedom  of  press  and  the 
protection of sources by declaring that both investigation measures taken – a search of 
the  editorial  offices  of  the  political  magazine  Cicero,  and  the  confiscation  of  computer 
data, in September 2005 – were unconstitutional. In this case, the magazine Cicero had 
cited confidential documents of the Federal Criminal Police Office. The responsible public 
prosecutor's office subsequently launched an investigation into the aiding and abetting of 
a breach of official secrecy, during which the magazine's editorial offices were searched 
and documents confiscated. The magazine complained  successfully to the Constitutional 
Court about these measures (see above under the first chapter).  

The  protection  of  (confidential)  sources  is  provided  for  in  the  German  Code  of  Criminal 
Procedure  (StPO)76.  Sec. 53  para 1  no. 5  StPO  (Right  to  Refuse  Testimony  on 
Professional Grounds) determines, that “individuals who are or have been professionally 
involved  in  the  preparation,  production  or  dissemination  of  periodically  printed  matter, 
radio  broadcasts,  film  documentaries  or  in  the  information  and  communication  services 
involved  in  instruction  or  in  the  formation  of  opinion”  may  refuse  to  testify  before  the 
court  concerning  the  author  or  contributor  of  comments  and  documents,  or  concerning 
any  other  informant  or  the  information  communicated  to  them  in  their  professional 
capacity  including  its  content.  This  applies  also  to  the  content  of  materials  which  they 
have produced themselves and matters which have received their professional attention. 
The right to refuse is confined to contributions, documentation, information and materials 
for  the  editorial  element  of  the  persons'  activity,  or  information  and  communication 
services which have been editorially reviewed. 

internet.de/englisch_bgb/index.html;  Sec.  22  Act  on  the  Protection  of  Copyrights  concerning  Artistic 
Works  and  Photographs  (Kunsturhebergesetz,  KUrhG)  available  in  German  at:  http://www.gesetze-im­
internet.de/kunsturhg/BJNR000070907.html;  on  Art.  1  para  1  and  2  para  1  Grundgesetz;  and  with 
reference to the relevant criminal law provisions as described below. 
Strafgesetzbuch, StGB, available in English at:  
http://www.gesetze-im-internet.de/englisch_stgb/index.html. 
Sec. 185-187 StGB. 
Sec. 26 and 27 StGB. 
Strafprozessordnung, StPO, available in English at:  
http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p0172. 

73	 

74	 

75	 

76	 

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As  far  as  the  content  of  materials  which  they  have  produced  themselves  and  matters 
which  have  received  their  professional  attention  are  concerned,  the  right  to  refuse 
testimony shall expire if the evidence is required to clear up a felony77, or if the object of 
the investigation is a crime against peace and of endangering the democratic state based 
on the rule of law, or of treason and of endangering external security78, a crime against 
sexual self-determination79 or a money-laundering or concealment of unlawfully acquired 
assets80. A prerequisite to this is – as far as the investigation concerns a misdemeanour 
–  that  an  enquiry  into  the  facts  and  circumstances  or  an  investigation  as  to  the 
whereabouts  of  the  accused  would  otherwise  offer  no  prospect  of  success  or  be  much 
more  difficult.  However,  even  in  the  latter  described  cases  testimony  may  be  refused  if 
this would otherwise result in the disclosure of the identity of the author or contributor of 
comments  and  documents,  or  of  any  other  informant,  or  of  the  information 
communicated  to  him  in  his  professional  capacity  or  of  the  content  of  such 
communication. 

The aim of this rule is to protect the relationship of trust between “the media” and their 
informants. This mutual trust is part of the freedom of expression as protected in Art. 5 
para 1 Grundgesetz, too. The right to refuse to testify does therefore not primarily aim at 
the  protection  of  the  informant,  but  of  the  public  interest  in  a  functioning  print  and 
audiovisual  media.  The  whistleblower  does  not  have  a  legal  claim  to  the  journalist 
refusing to testify, nevertheless, the “Journalists Law81” requires such behaviour. 

Chapter  VIII  of  the  StPO  (Seizure,  Interception  of  Telecommunications,  Computer-
assisted Search, Use of Technical Devices, Use of Undercover Investigators and Search) 
includes relevant provisions, too. 

Sec. 97 StPO determines which objects may not be subject to seizure. It says, that the 
seizure  of  documents,  sound,  image  and  data  media,  illustrations  and  other  images  in 
the custody of persons referred to in Sec. 53 para 1 no. 5, or of the editorial office, the 
publishing house, the printing works or the broadcasting company, shall be inadmissible 
insofar as they are covered by the right of such persons to refuse to testify (see above). 
This restriction on seizure shall not apply if certain facts substantiate the suspicion that 
the  person  entitled  to  refuse  to  testify  participated  in  the  criminal  offence,  or  in 
accessoryship after the fact, obstruction of justice or handling stolen goods, or where the 
objects concerned have been obtained by means of a criminal offence or have been used 
or are intended for use in perpetrating a criminal offence, or where they emanate from a 
criminal  offence.  But  in  these  cases,  too,  seizure  shall  only  be  admissible,  however, 
where it is not disproportionate to the importance of the case having regard to the basic 
rights  arising  out  of  Art. 5  Grundgesetz,  and  the  investigation  of  the  factual 
circumstances  or  the  establishment  of  the  whereabouts  of  the  perpetrator  would 
otherwise offer no prospect of success or be much more difficult. Seizure in the premises 
of an editorial office, publishing house, printing works or broadcasting company may be 
ordered  only  by  the  court.  If  during  a  search  objects  which  indicate  the  commission  of 
another criminal offence are found on the premises of a person named in Sec. 53 para 1 
no. 5 such objects being, covered by the right of the person named to refuse to testify, 
the  object  shall  only  be  admissible  as  evidence  in  criminal  proceedings  insofar  as  the 
subject  of  these  criminal  proceedings  is  a  criminal  offence  which  is  punishable  by  a 

77 

78 

79 

80 

81 

Sec. 12 (1) of the Criminal Code. 

Sec. 80a, 85, 87, 88, 95, in conjunction with sections 97b, 97a, 98 to 100a of the Criminal Code.
 
Sec. 174 to 176 and section 179 of the Criminal Code.
 
Sec. 261 (1) to (4) of the Criminal Code.
 
See no. 5 „Professional Secrecy“ of the  Press Code of the  German Press  Council, available  in English at:
 
http://www.presserat.info/uploads/media/Press_Code.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

minimum sentence of five years’ imprisonment and is not a criminal offence pursuant to 
Sec. 353b StGB. 

With  regard  to  investigation  measures  –  as  e.g.  telecommunications  surveillance  – 
directed  at  persons  that  have  a  right  to  refuse  testimony  Sec. 160a  StPO  determines, 
that if such shall come into operation against journalists or with an effect on journalists 
there has to be made a weighing of interests in the particular case to decide whether the 
respective  measure will be taken or not. This means that journalists are put  in  a worse 
position  regarding  the  protection  of  their  sources  and  informants  as  compared  to  other 
persons whose profession swears them to secrecy as for instance deputies, clergypersons 
or criminal attorneys. 

In  the  present  context  a  quite  current  development  in  Germany  concerning  media 
freedom shall be noted. On 11 May 2012 the Länder-Chamber of the German Parliament 
(Bundesrat) adopted82 a  bill strengthening the freedom of the press in criminal  law and 
criminal  procedure  law83,  as  introduced  by  the  Government  Parties  on  21  October 
201084.  Before  this,  the  federal  chamber  of  the  German  Parliament  (Bundestag)  had 
agreed with the proposal85. The PrStG was submitted to the President and will enter into 
force after being signed by the President and published in the Federal Law Gazette. The 
defined  goal  of  the  PrStG86  is  to  strengthen  the  position  of  the  members  of  the  media, 
i.e. persons working in the media field, and their sources. To this end the PrStG foresees 
amendments to certain provisions of the StGB and of the StPO.  

The  first  amendment  concerns  Sec. 353b  StGB  on  the  breach  of  official  secrets  and 
special  duties  of  confidentiality,  which  is  part  of  Chapter  30  on  offences  committed  in 
public office. Sec. 353b refers to the illegal release of confidential and secret information 
by certain officials and will be supplemented with an additional paragraph 3a according to 
which individuals under Sec. 53 para 1 no. 5 StPO (see above) may not be punished for 
aiding and abetting breaches of official secrecy if they merely receive, analyse or publish 
the secret or the information that is supposed to be kept secret. These activities include 
the  research  as  well  as  other  measures  preparing  the  publication.  Media  stakeholders 
welcomed the aim to back the journalists work by reducing their criminal responsibility, 
but criticised the approach ad hand as falling too short. The critics argue inter alia that it 
is  not  reasonable  to  exclude  from  this  vindicatory  rule  all  abetting  activities  that  lie 
temporally before the act of disclosure by the official, and hence leave these indictable. 
Journalistic investigation may take place even before this disclosure, without necessarily 
being a direct involvement in the offence. Furthermore, it is pointed out that due to the 
practical difficulties to distinguish between abetment and incitement – particularly in the 
journalistic  field  of  work  –  and  the  consequences  that  might  result  from  a  “wrong” 
assessment  of  the  situation  by  the  investigating  bodies,  incitement  activities  should  be 
included in the new paragraph 3a, too87. 

82 

83 

84 

85 

86 

87 

is  available 

in  German  at:  http://www.bundesrat.de/ 

The  Protocol  of  11  May  2012 
cln_117/nn_6906/SharedDocs/Downloads/DE/Plenarprotokolle/2012/Plenarprotokoll­
896,templateId=raw,property=publicationFile.pdf/Plenarprotokoll-896.pdf. 
Gesetz zur Stärkung der Pressefreiheit im Straf- und Strafprozessrecht, PrStG. 
The Bill (BT-Drs. 17/3355) of 21 October 2010 is available in German at: 
http://dipbt.bundestag.de/dip21/btd/17/033/1703355.pdf. 
The decision of the Bundestag of 29 March 2012 (Drs. 203/12) is available in German at:  
http://www.bundesrat.de/cln_152/SharedDocs/Drucksachen/2012/0201-300/203­
12,templateId=raw,property=publicationFile.pdf/203-12.pdf. 
See on the proposed bill: “Government Adopts Bill Strengthening Press Freedom” by A. Yliniva-Hoffmann, 
IRIS Legal Observations 2010-9/22. 
See  the  common  statement  of  several  representatives  of  broadcasting  and  print  media,  available  in 
German at:  
http://www.djv.de/fileadmin/DJV/Infothek_NEU/Stellungnahme_BT-Drs-17-3355-3989.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

A further change introduced by the PrStG amends Sec. 97 para 5 StPO. According to this 
individuals under Sec. 53 para 1 no. 5 StPO may only have their property seized if they 
are  seriously  suspected  of  an  involvement  in  the  respective  offence.  Previously,  any 
degree  of  suspicion  was  sufficient.  With  regard  to  this  the  mentioned  statement  of 
stakeholders  criticises  that  this  amendment,  which  has  been  claimed  by  media 
representatives for a long time, is not extended to Sec. 160a para 4 StPO, too. This latter 
provision  concerns  investigation  measures  against  persons  that  have  a  right  to  refuse 
testimony.  It  is  criticised  that  certain  investigation  measures  –  as  for  example  the 
collection of telecommunication data – may still be adopted against this special category 
of persons based on a simple suspicion of their involvement in the respective offence. 

The need for this reform arose following the so-called "Cicero-ruling" of the BVerfG (see 
above).  In  that  case,  the  magazine  "Cicero"  had  cited  confidential  documents  of  the 
Federal  Criminal  Police  Office,  following  which  the  responsible  public  prosecutor's  office 
had launched an investigation, searched the magazine's editorial offices and confiscated 
documents88. 

Besides this, there are further provisions that have an impact on journalistic activities – 
with a view to the increasing significance of security aspects. As a consequence from the 
global  fight  against  terrorism  there  has  arisen  a  public  debate  on  an  alleged  conflict 
between  (press-)freedom  and  security.  These  developments  affect  several  aspects  of 
journalistic  work,  as  professional  secrecy,  the  protection  of  journalistic  resources  and 
editorial  secrecy  through  an  expansion  of  police  and  secret  service  surveillance 
competencies. 

In  this  context  journalists  have  criticised  the  impact  of  data  retention  provisions89. 
Having  regard  to  the  so  called  “Telekom-Affäre90”  they  pointed  to  the  risk  of  abuse  the 
retention  of  data  entails.  This  is  aggravated  by  the  fact  that  the  awareness  of  the 
retention  of  communication  data  could  have  a  chilling  effect  of  potential  sources. 
Although  data  retention  under  the  EU-Directive  does  explicitly  not  provide  for  the 
retention  of  the  communication  content,  solely  from  the  stored  communication  data 
conclusions  could  be  drawn  with  regard  to  the  respective  informant  or  whistleblower. 
Hence,  this  could  have  a  significant,  detrimental  impact  on  the  relationship  of  trust 
between the journalist and his/her source of information, on their “safe” communication 
lines – and ultimately on the acquisition of information in general. 

Another  investigation  measure  concerning  the  activities  of  journalists  is  the  so  called 
online-search  of  hard  disks.  In  the  beginning  of  2009  the  Law  on  the  Federal  Criminal 
Police Office (BKAG)91 entered into force. The BKAG entitles the competent investigation 
authorities to search information stored on hard disks by either installing a Trojan on the 
computer  when  the  user  is  online  or  by  gaining  entrance  to  the  home  or  office  of  the  
person  to  be  surveilled  in  order  to  install  a  surveillance  software.  Legal  precondition  to 
the online-search is that there are circumstances which indicate a concrete threat to an 

88 

89 

The Plenary Protocol as well as the common statement of stakeholders include proposals of the opposition 
parties, too. Since these proposals have not found entrance into the PrStG they are not part of the present 
work. 
In  Germany  the  provisions  of  the  European  Data  Retention  Directive  2006/24/EC  were  transposed  into 
national  law  through  amendments  to  the  Telecommunications  Act  (Telekommunikationsgesetz,  TKG). 
These  provisions  were  declared  unconstitutional  by  the  Federal  Constitutional  Court  and  are  therefore 
invalid. The Member State Germany has not implemented effectively Directive 2006/24/EC yet and is thus 
facing an infringement procedure before the European Court of Justice. 

90  With 

the 

intention 

to  reveal 

internal  whistleblowers 

the  Deutsche  Telekom  AG  spied  out 

91 

telecommunications data of journalists and members of the supervisory board. 
Gesetz  über  das  Bundeskriminalamt  und  die  Zusammenarbeit  des  Bundes  und  der  Länder  in 
kriminalpolizeilichen Angelegenheiten (BKAG), available in German at: 
http://www.gesetze-im-internet.de/bkag_1997/index.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

important value, as life and limb, freedom of a person, public goods the threat of which 
endangers the fundament of a State or the existence of human beings. The online search 
requires  a  prior  judicial  order.  According  to  Sec. 20u  BKAG  (protection  of  individuals 
entitled  to  refuse  from  testimony)  such  investigation  measures  may  be  taken  against 
journalists,  after  a  consideration  of  interests  as  described  above  concerning  Sec. 160a 
StPO.  Journalists  demanded  to  be  exempted  from  the  category  of  persons  possibly 
addressed by such measures, at all.  

Besides these legal measures there have also been changes of the accreditation practice. 
Regarding big – sporting92 or political93 or other94 – events there have developed stricter 
requirements  to  journalists  in  order  to  be  accredidated  to  such.  It  has  become 
increasingly  usual  to  demand  the  agreement  to  so-called  Regelanfragen,  which  are 
“ordinary  questions”  to  Criminal  Offices  or  offices  responsible  for  defending  the 
constitution (Verfassungsschutz) prior to the accreditation. In this context it is criticised 
that  this  checking  of  personal  data  and  police  or  other  investigation  authorities 
information lacks a legal basis, interferes with the journalists’ freedoms as guaranteed by 
the  Constitution,  puts  a  great  pressure  on  the  journalists  and  grants  police  and  secret 
service  bodies  the  discretion  to  decide  who  is  allowed  to  report  on  certain  events. 
Furthermore, data protection rights could be infringed.95 

Sec. 383  of  the  Code  of  Civil  Procedure96  provides  for  the  right  to  refuse  to  testify  on 
personal  grounds.  According  to  this,  persons  who  collaborate  or  have  collaborated,  as 
professionals,  in  preparing,  making  or  distributing  printed  periodicals  or  radio  or 
television broadcasts, may refuse to testify, if their testimony would concern the person 
of  the  author  or  contributor  of  articles  or  broadcasts  and  documents,  or  the  source 
thereof,  as  well  as  the  information  they  have  been  given  with  regard  to  these  persons’ 
activities, provided that this concerns articles or broadcasts, documents and information 
published in the editorial part of the periodical or broadcast. Even if such a person does 
not refuse to testify, his or her examination is not to be aimed at facts and circumstances 
regarding  which  it  is  apparent  that  no  testimony  can  be  made  without  breaching  the 
confidentiality obligation. 

92	 

93	 

94	 

95 	

96	 

In 2006, during the Football World Cup in Germany journalists had to agree to such Regelanfragen to the 
police and the Verfassungsschutz, because of a higher security risk. 
Before the G8-Summit in Heiligendamm in 2007 journalists had to give their consent to a Data Protection 
Information which meant a check of the respective person by the police, the Federal Criminal Police Office 
and the National Secret Service; 20 journalists did not receive an accreditation. Some of these jounalists 
felt  violated  in  their  rights  and  took  legal  action.  The  Higher  Administrative  Court  of  Berlin-Brandenburg 
judged for example that Art. 5 Grundgesetz does not give a right to accreditation to journalists, but they 
have  a  right  to  a  fact-bounded,  arbitrary-free  decision  of  the  administrative  authority  concerning  their 
accreditation. The decision of the Oberverwaltungsgericht Berlin-Brandenburg (No. OVG 10 B 1.11) of 22 
June 2011 is available in German at:
http://www.gerichtsentscheidungen.berlin­
brandenburg.de/jportal/portal/t/326/bs/10/page/sammlung.psml?doc.hl=1&doc.id= 
JURE110013177%3Ajuris-r00&documentnumber=1&numberofresults=1& 
showdoccase=1&doc.part=L&paramfromHL=true.  
In 2006, during the visit of the Pope in Germany, the same accreditation rules applied as during the World 
Cup. 
In  order  to  save  the  journalists’  rights,  the  German  Journalists  Association  (DJV)  has  developped  -  in 
cooperation with the ARD, the ZDF, the Bundesverband Deutscher Zeitungsverleger (BDZV), the Verband 
Deutscher  Zeitschriftenverleger  e.V.  (VDZ),  the  Deutsche  Journalisten-Verband  (DJV),  the  Deutscher 
Journalistinnen- und Journalisten Union (dju), the Verband Privater Rundfunk und Telemedien (VPRT) and 
the  German  Press  Council  -  some  basic  points  and  principles  concerning  the  practice  of  accreditation, 
available at:  
http://www.djv.de/fileadmin/DJV/Infothek_NEU/Akkreditierungspraxis-Grundsätze.pdf. 
Zivilprozessordnung, ZPO, available in English at:  
http://www.gesetze-im-internet.de/englisch_zpo/index.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Specific positive content obligations 

In  Germany,  no  specific  positve  content  obligations  exist.  On  broadcasting  level,  the 
corresponding legal norms contain certain programming principles which are laid down in 
rather general terms. For example, according to the RStV, the PSB are obliged to respect 
and  protect  human  dignity,  moral  and  religious  beliefs  of  the  population,  life,  freedom 
and the opinions of others in their offers. 

The  absence  of  specific  content  obligations  results  from  the  interpretation  which  the 
Federal  Constitutional  Court  has  given  to  Art.  5  GG.  According  to  the  BVerfG, 
broadcasters enjoy freedom of programme. Freedom of programme does not mean that 
the German legislator cannot limit programm contents but he is not allowed to prescribe 
concrete content standards which results in that the PSB or private broadcasters cannot 
make use any more of their freedom, but have to implement a specified proramme.97 

- Funding schemes for specifically desired content 

In Germany, no such funding schemes exist. 

- Political advertising and/or broadcasting time 

According to the RStV advertising of political, ideological or religious nature is prohibited, 
which  applies  to  teleshopping  accordingly.  Public  service  announcements  transmitted 
free-of-charge, including charitable appeals, are not considered as advertising. 

With  regard  to  (nation-wide)  commercial  broadcasters  the  RStV  determines  the 
obligation  to  grant  appropriate  broadcasting  time  to  political  parties  participating  in 
elections  to  the  German  Parliament,  subject  to  a  reimbursement  of  the  costs,  if  an 
election list of a party has been accepted for said party in at least one state. Besides this, 
political  parties  or  other  political  associations  participating  in  the  elections  of 
representatives  to  the  European  Parliament  shall  be  granted  appropriate  broadcasting 
time, if at least one electoral proposal has been accepted, subject to the reimbursement 
of costs. 

According to the LMG broadcasters providing a state-wide full programme can be obliged 
to  offer  adequate  broadcasting  time  to  political  parties  or  other  political  associations 
participating  in  elections  to  the  European  Parliament,  the  German  Parliament  or  the 
respective  State  Parliament  if  an  election  list  of  the  respective  party  or  association  has 
been  accepted98.  The  broadcasters  are  allowed  to  offer  such  time  also  in  the  course  of 
municipal elections. 

The WDR-Gesetz determines such an obligation for the regional PSB, too. 

According  to  the  Press  Code  issued  by  the  German  Press  Council,  reporting  during 
election  campaigns  must  inform  accurately,  which  means  also  to  publish  opinions  the 
press does not share.   

97	 

98	 

Decision of the BVerfG (No. 1 BvR 2270/05, 809/06, 830/06) of 11 September 2007, available in German 
at: http://www.bverfg.de/entscheidungen/rs20070911_1bvr227005.html. 
See for example Sec. 36 LMG-NRW. 

301 


 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
                                                 
  
 
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Codes of conduct and their organisational framing 

The  German  Press  Council99  is  an  organisation  of  the  German  publisher's  associations 
and  journalists'  associations  Bundesverband  Deutscher  Zeitungsverleger  (BDZV),  the 
Verband  Deutscher  Zeitschriftenverleger  e.V.  (VDZ),  the  Deutsche  Journalisten-Verband 
(DJV) and the Deutscher Journalistinnen- und Journalisten Union (dju). The Press Council 
was founded in 1956; it has two main organs, namely the Trägerverein and the plenary 
sitting.  The  Trägerverein  consists  of  eight  members,  two  people  of  each  of  the  four 
member associations. It acts for the freedom of press and protects the reputation of the 
German  press.  The  plenary  meeting  consists  of  30  members,  eight  members  from  VDZ 
and DJU, and additionally seven of BDZV and DJV, respectively. The task of the plenary 
meeting  as  a  voluntary  self-controlling  body  of  the  German  press  is  the  removal  of 
mismanagement  in  the  press  as  well  as  to  speak  up  for  the  free  access  to  generally 
accessible  sources.  Both  main  organs  become  active  within  the  scope  of  the  so-called 
complaint procedures. 

The  German  Press  Council  has  elaborated  journalistic  principles  and  has  incorporated 
them  in  the Pressekodex  (Press  Code).  It  was  first  published  in  1973  and  was  renewed 
for  the  last  time  on  3  December  2008.100  It  includes  principles  the  Press  Council 
recommends  to  take  into  account  as  journalist;  these  are  amongst  others:  truthfulness 
and  preservation  of  human  dignity,  professional  secrecy  and  respect  for  the  intimate 
sphere of individuals, presumption of innocence and the rightful treatment of minors. 

If  a  press  enterprise  in  print  media  or  online  media  offends  against  one  of  these 
journalistic principles, everybody can direct a complaint to the Press Council. Since 2009 
it  is  possible  to  do  this  online.  If  the  complaint  is  not  obviously  unsubstantiated,  the 
affected  medium  is  asked  for  a  statement.  Afterwards  the  board  of  complaint,  which 
meets  four  times  in  a  year,  decides  on  the  case.  If  the  complaint  is  founded 
substantiated by the committee, it takes a measure against the medium. 

During its meetings the committee decides whether the complaint is substantiated or not. 
Afterwards it has the possibility to take one of the following measures: 

In  cases  of  lower  offence  against  the  code,  it  can  give  a  hint  to  the  concerned  editorial 
team. 

A non-official disapproval goes out for a heavier offence against the code. Under Sec. 15 
of  the  complaint  order,  there  is  no  duty  to  print  disapproval  in  the  affected  publication 
organs.  Nevertheless,  the  complaint  recommends  such  an  editorial  decision  like  an 
expression of fair reporting. 

The  most  severe  sanction  is  the  rebuke:  public  rebukes  have  to  be  published  by  the 
medium.  Non-public  rebukes  are  pronounced  in  cases  of  serious  offence,  if  another 
publication is inappropriate for reasons of victim’s protection. 

Since  1976  the  Federal  Republic  pays  regularly  subsidies  to  the  Press  Council,  without 
having any influence on it. 

99 

100 

Presserat; key facts on the Press Council are available in English at:  
http://www.presserat.info/service/english/keyfacts-in-english.html. 
Pressekodex; available in English at:  
http://www.presserat.info/uploads/media/Press_Code.pdf.  

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The  ARD  has  –  according  to  the  provisions  of  the  RStV  –  issued  guidelines  on  several 
topics, too: in the report101 that was already mentioned above, the ARD has determined 
certain guidelines concerning DasErste on information, culture, education, entertainment, 
family  and  minors,  regional  competence,  integration  of  people  with  disabilities  or 
migrants and advertising102. Such guidelines also exist with regard to telemedia offers103. 
Programme  guidelines  are  also  issued  by  the  regional  broadcasters  associated  in  the 
ARD, themselves104. 

- The role and functioning of regulatory authorities in these respects 

The  media  authorities  of  the  Länder  supervise  the  compliance  of  the  commercial 
broadcasters  with  the  relevant  media  regulations.  In  Germany  there  exist  14  media 
authorities,  whereas  Berlin  and  Brandenburg  on  the  one  hand  and  Hamburg  and 
Schleswig-Holstein on the other hand established joint authorities, respectively. Structure 
and organisation of these authorities are provided for by the respective LMG.  

These  14  authorities  have  built  up  a  common  roof  –  the  Association  of  State  Media 
Authorities  (ALM)105.  Besides  there  exist  several  organs,  in  charge  of  different  subjects 
and, thus, supporting the work of the media authorities. These organs are the following:  

	  Commission  on  Licensing  and  Supervision  (ZAK)106  which  is  responsible  for  issues 
related  to  the  licensing  and  supervision  of  national  broadcasters,  platform 
regulation and the development of digital broadcasting;  

	  Conference of Directors of the State Media Authorities (DLM)107 which is responsible 
for representing the interests of its members concerning broadcasting issues on the 
national and international levels; 

	  Conference  of  Chairpersons  of  the  Decision-Taking  Councils  (GVK)108  which  under 
the RStV makes the selection decisions on the designation of wireless transmission 
capacities  to  commercial  service  providers  and  on  the  allocation  of  platform 
capacities; 

	  Commission for the Protection of Minors in the Media (KJM)109 which is responsible 
for  assessing  commercial  broadcasting  and  telemedia  content  with  a  view  to  the 
protection of minors; 

	  Commission  on  Concentration  in  the  Media  (KEK)110  which  is  in  charge  of 
monitoring  and  enforcing  compliance  with  the  provisions  on  plurality  in  national 
commercial television. 

101	 

The report is available in German at: http://www.daserste.de/service/Leitlinien10-091210-p.pdf. 

102	  ARD-Werberichtlinien, available in German at:

http://www.ard.de/intern/abc/-/id=1794740/property=download/nid=1643802/14g8mzr/ARD-
Werberichtlinien+ 
f%C3%BCr+Werbung+und+Sponsoring+vom+M%C3%A4rz+2010.pdf.  
The report including the guidelines concerning telemedia is available in German at:  
http://www.daserste.de/service/Telemedien10-091210-p.pdf. 

103 

104  See as an example the Programmleitlinien des WDR, available in German at:

http://www.wdr.de/unternehmen/senderprofil/pdf/aufgabe/WDR_200812_Programmleitlinien.pdf. 

105  Arbeitsgemeinschaft der Landesmedienanstalten, ALM; see: www.alm.de. 
106  Kommission für Zulassung und Aufsicht, ZAK. 
107  Direktorenkonferenz der Landesmedienanstalten, DLM. 
108  Gremienvorsitzendenkonferenz, GVK. 
109  Kommission für Jugendmedienschutz, KJM. 
110  Kommission zur Ermittlung der Konzentration im Medienbereich, KEK. 

303 


 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
  
 
  
  
  
  
 
 
  
  
  
  
  
  
  
 
  
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

With  regard  to  commercial  telemedia  services  the  supervision  comes  under  the 
competent  Länder-authority,  which  can  be  the  respective  media  authority  or  a  body 
within the State administration.  

  Distribution Aspects 

- Access to frequencies 

The  decision  on  the  assignment,  designation  and  use  of  transmission  capacities  for  the 
distribution of broadcasting services and comparable telemedia (telemedia directed at the 
general  public)  is  governed  by  the  RStV  and  the  respective  Länder  laws.  Besides,  the 
allocation  of  the  respective  frequencies  is  regulated  by  the  Telecommunications  Act 
(TKG)111. 

Responsible for the allocation of frequencies is the Federal Network Agency (BNetzA)112. 
When  it  comes  to  broadcasting,  the  competence  of  the  Länder  is  concerned.  Thus,  the 
BNetzA and the Länder have to decide and act in mutual consent (see Sec. 57 TKG). To 
this  end  the  Länder  inform  the  BNetzA  about  their  frequency-needs.  On  the  basis  of 
these  and  taking  into  account  the  aim  to  ensure  general  supply  with  broadcasting,  the 
BNetzA assigns the respective frequencies. For a due organisation and realisation of the 
frequency  policy  the  BNetzA  issues  plans113  and  regulations114  which  specify  the 
procedures and conditions. An example for this procedure is the allocation of frequencies 
for digital terrestrial broadcasting. 

With  regard  to  wireless  transmission  capacities  Art. 51  et  seq.  RStV  determine  that  the 
Länder  shall  –  as  far  as  a  nation-wide  transmission  is  concerned  all  of  them,  as  far  as 
several Länder are concerned just these – decide unanimously on their frequency-needs. 
With  regard  to  ARD,  ZDF  and  DRadio  the  Prime  Ministers  of  the  Länder  shall  decide 
consensually.  

Sec. 10  et  seq.  LMG-NRW  provide  for  the  assignment  of  transmission  capacities  on 
regional  level.  The  provisions  stress  the  importance  of  ensuring  general  supply  with 
(public  service)  broadcasting.  Besides  this,  the  allocation  of  frequencies  shall  be  guided 
by  the  principles  of  programme  diversity  and  the  proper  fulfilment  of  the  public  remit. 
The capacities shall be allocated for a limited period of time. 

- Access to distribution networks and control of actual conditions 

As regards the distribution of television services the RStV permits the simultaneous and 
unaltered retransmission which can be received nationally, or which is operated in Europe 
legally  and  in  accordance  with  the  provisions  of  the  European  Convention  on 
Transfrontier  Television.  The  retransmission  of  other  television  services  shall  be  notified 

111 

Telekommunikationsgesetz, TKG, available in German at: 
http://www.gesetze-im-internet.de/tkg_2004/BJNR119000004.html. 

112  Bundesnetzagentur, BNetzA, information in English available at:  

113 

http://www.bundesnetzagentur.de/cln_1932/EN/Home/home_node.html.  
Frequenznutzungsplan, available in German at:  
http://www.bundesnetzagentur.de/ 
SharedDocs/Downloads/DE/BNetzA/Sachgebiete/Telekommunikation/Regulierung/Frequenzordnung/Frequ 
enznutzungsplan/Frequenznutzungsplan2011pdf.pdf?__blob=publicationFile. 

114  Verwaltungsvorschrift  für  Frequenzzuteilungen  für  den  Rundfunkdienst,  available  in  German  at: 

http://www.bundesnetzagentur.de/SharedDocs/Downloads/. 
DE/BNetzA/Sachgebiete/Telekommunikation/Regulierung/Frequenzordnung/VerwaltungsvorschriftenFuerFr 
equenzzuteilung/VVRuFu_VVorschriftFrequZutlgRundfunk01042010pdf.pdf?__blob=publicationFile. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

to  the  responsible  media  authority,  which  has  to  check  the  legal  conformity. 
Retransmission may be regulated in more detail within the LMG115. 

Cable  allocation  for  broadcasting  is  provided  for  in  the  respective  LMG.  Sec. 18  et  seq. 
LMG-NRW  rule  that  analogue  cable  operators  shall  –  in  the  first  line  –  supply  the 
subscribers  with  the  legally  determined  PSB,  local  radio  and  collegiate  programmes.  If 
the  capacity  is  not  sufficient  to  include  all  other  broadcasting  programmes  offered  the 
respective  media  authority  shall  decide  upon  which  programmes  are  to  be  fed  in.  This 
decision  has  to  take  into  account  programme,  offer  and  provider  diversity  and  shall  be 
made in agreement with the cable operator and the concerned PSB.  

Transmission and retransmission through digital cable networks shall be conducted under 
the RStV. Digital cable operators that plan to retransmit programmes have to notify the 
media authority about their intentions at least one month before the start. The regional 
media  authority  then  controls  the  legal  conformity  of  the  respective  enterprise.  In  the 
case  that  the  retransmitted  programme  infringes  legal  obligations  the  media  authority 
can issue an objection or even prohibit the retransmission as such.  

For  the  distribution  of  broadcasting  and  telemedia  the  RStV  makes  arrangements  for 
platforms,  Sec. 52  et  seq.  RStV.  Regarding  access  to  platforms  the  providers  of  such 
must  ensure  diversity  of  programmes,  opinions  and  offers.  To  this  end  providers  of 
broadcasting  services  and  comparable  telemedia  including  electronic  programme  guides 
must  not  be  unduly 
impeded  through  conditional  access  systems,  application 
programming  interfaces,  user  surfaces  providing  the  first  access  to  the  services,  or  any 
other technical specifications in the distribution of their offers, or without justifiable cause 
be treated differently to comparable providers. The same applies to the structure of fees 
and tariffs. The use of such access systems or conditions as well as of the tariffs has to 
be notified to the media authority. 

The structure of fees and tariffs for the distribution must not unduly impede providers of 
broadcasting  services  and  comparable  telemedia  nor  result  in  their  being  treated 
differently to comparable providers without justified cause. The control of the tariffs is in 
the responsibility of the ZAK and the BNetzA116. 

The distribution of press products – i.e. marketing, sales and delivery – shall secure the 
freedoms  guaranteed  under  Art. 5  Grundgesetz.  There  exist  different  systems  for  this 
distribution  the  predominant  of  which  is  the  so-called  Presse-Grosso.  In  this  system  a 
wholesaler  is  interposed  between the  publishing  houses  and  the  retail  sector.  According 
to  industry  data  there  are  69  press  wholesalers  in  Germany117.  The  wholesalers  are 
allocated  territories  and  shall  treat  all  publishing  houses,  publications  and  retail  trades 
equally.  This  neutrality  shall  ensure  diversity  and  freedom  of  press  products  offered. 
Moreover, retail traders and wholesalers have the right to return unsold products to the 
publishing  houses  and  receive  a  credit  note  for  these  products.  Besides  this,  the 
publishing houses fix  the  prices  for  both  the wholesalers  and the  retail  sector.  All  these 
characteristics  shall  ensure  an  independent,  broad  and  diverse  offer  of  printed  products 
to  consumers  and,  thus,  contribute  to  the  protection  of  press  freedom.  On  14  February 
2012 the District Court of Cologne decided upon the claim of the Bauer Media publishing 
house  against  one  aspect  of  the  system  of  Presse-Grosso118.  The  claimant  did  not 

115 

This has been made e.g. in Sec. 23 et seq. LMG-NRW.
 

116  Sec. 52d RStV and Sec. 30 et seq. TKG.
 
117  Bundesverband  Deutscher  Buch-,  Zeitungs-  und  Zeitschriften-Grossisten,  BVPG,  Federal  Association  of
 
German Books-, Newspapers- and Magazines-Wholesalers, available at: http://www.pressegrosso.de.  
Landgericht Köln (Az. 88 O (Kart) 17/11), available in German at:  
http://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2012/88_O__Kart__17_11_Urteil_20120214.html. 

118 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

question  the  system  as  a  whole,  but  argued  that  the  fact,  that  the  BVPG  as  a  central 
institution negotiates the trade margins for all its members, violates antitrust rules. The 
claimant recommended a system of bilateral agreements between the publishing houses 
and  the  wholesalers  as  this  would  allow  for  having  regard  to  regional  peculiarities.  The 
Court backed this opinion and ruled that the abolition of the central negotiating mandate 
would not endanger the Grosso-system as such but would put an end to the illegal price 
and conditions cartel of the BVPG. The BVPG appealed the decision and the procedure is 
still pending. The Association argues that the Court’s decision weakens the neutral press 
distribution  system  as  the  central  negotiation  mandate  was  a  vital  centrepiece  of  the 
Grosso-system,  and  claimed  that  there  was  an  urgent  need  for  political  action  to  save 
this  solidary  trade  system.  On  27  April  2012  the  Federal  Ministry  for  Economy  and 
Technology held a round-table-meeting on the question of how the Presse-Grosso could 
be  safeguarded119.  The  BVPG,  publishing  houses  and  deputies  from  the  Bundestag 
participated  in  the  meeting  and  declared  that  they  –  principally  –  wanted  to  uphold  the 
Presse-Grosso  as  this  guarantees  for  a  diversity  of  opinions,  content  and  offers.  The 
participants  discussed  opportunities  for  action  in  order  to  optimise  the  system  and 
agreed to work further on this before the parliamentary summer break.  

- Must-carry/must-offer rules for electronic media 

Platform  operators  have  to  obey  certain  obligations  when  compiling  their  programme 
offers in order to secure diversity and freedom of opinion. This is of particular relevance 
for regional and local programmes. Under the provisions of the RStV the provider has – 
when  allocating  platform  capacities  –  to  consider  the  inclusion  of  certain  (nation-wide) 
PSB  or  commercial  programmes,  of  regional  and  local  radio/television  programmes  and 
of certain digital or telemedia offers. The same applies if the platform operator offers an 
electronic programme guide (EPG) the access to and presence in which has to be equal.  

As  to  cable  and  satellite  transmission  capacities  the  LMG120  determine  an  obligation  for 
the  operators  to  –  in  the  first  line  –  ensure  a  comprehensive  supply  of  the  population 
with  PSB  programmes  and  programme-related  services  as  well  as  with  local  radio 
programmes. Following to this it shall be ensured that PSB are able to fulfil their public 
remit  and  that  the  population  is  provided  –  as  comprehensively  as  possible  –  with 
commercial programmes. 

- Role of platform operators 

Along  with  the  advance  of  digital  technologies  the  scarcity  of  transmission  capacities 
almost  disappeared.  Thus,  the  question  is  no  longer  the  transmission  as  such  but  the 
conditions of access to distribution networks – and finally to the audience. This access is, 
today, mostly provided by platform operators that bundle the respective offers.  

The RStV differentiates between platforms in open (Internet, UMTS or similar networks) 
and such in closed networks. To platforms in open networks only Sec. 52a and 52f RStV 
apply,  which  means  that  these  do  not  have  to  fulfil  the  same  range  of  regulatory 
conditions, unless they have a dominant market position. The competent regional media 
authorities shall determine in statutes and directives the status of the respective platform 
providers. 

119 

Press release of the Ministry available in German at:  
http://www.bmwi.de/BMWi/Navigation/Presse/pressemitteilungen,did=487120.html?view=renderPrint. 

120  Sec. 10 et seq. and 18 et seq. LMG-NRW. 

306 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Platform operators shall notify the competent media authority of their planned activities 
beforehand.  The  ZAK  then  examines  which  kind  of  platform  is  in  question  and  hence, 
which legal conditions shall apply. 

- The role and functioning of regulatory authorities in these respects 

The main tasks of the media authorities is – in respect of commercial broadcasters – the 
licensing  and  monitoring  of  private  radio  and  television,  the  monitoring  of  non­
discrimination and free access to platforms, especially cable networks, and the support of 
digitisation and broadcasting infrastructure. 

Regarding the assignment of frequencies and the consent between or within the Länder 
required  in  this  context,  the  respective  media  authorities  also  play  an  important  part, 
including representation of the interest of private broadcasters. Furthermore, the media 
authorities  allocate  the  frequencies,  which  on  their  part  were  allocated  to  the  media 
authorities, to the respective private broadcasters.  

As  to  the  distribution  of  programmes  the  media  authorities  shall  support  actively  the 
switch-over  from  analogue  to  digital  transmission  as  well  as  the  introduction  of  digital 
terrestrial transmission121. 

With regard to platform operators the regional media authority – as the case may be in 
cooperation  with  the  BNetzA  –  examines  whether  the  provider  observes  the  legal 
provisions  on  the  access  of  broadcasters  to  the  platform.  This  means  both  the  free  and 
non-discriminatory  access  of  programme  providers  to  the  audience  and  the  free  and 
diverse  choice  of  the  audience.  The  media  authority  furthermore  controls  the  appliance 
with  all  legislation  concerning  the  content  of  the  distributed  programmes  and  –  in  this 
context – may take measures if these provisions are violated.  

The competent regional media authorities control the observance of the must-carryrules 
by  the  platform  operators.  The  latter  have  to  notify  the  authority  about  their  choice  of 
programmes  beforehand.  If  the  provider  fails  to  fulfil  the  programme  obligations  the 
media authority shall allocate capacities for broadcasting services.  

In addition to this the LMG contain provisions on the allocation of transmission capacities, 
too122. These determine that the provision with PSB programmes and their programme-
related services have priority over other offers. Local and regional programmes as well as 
commercial programmes shall be transmitted as comprehensively as possible. 

  Access to Information 

- Transparency of media ownership situations 

The  provisions  on  the  investment  of  broadcasters  in  other  companies  as  well  as 
competition law and reporting duty aspects have been described above. In order to fulfil 
its  task  concerning  the  enforcement  of  plurality  of  opinion,  the  aforementioned 
Commission  on  Concentration  on  the  Media  (KEK)  provides  a  report  of  the  participating 
structure in Germany on its website.123 

121  Sec 27, 28 LMG-NRW.
 
122  Sec. 10 et seq. LMG-NRW.
 
123  Report of the participating interests, available in German at:  


http://www.kek-online.de/Inhalte/beteiligung.php. 

307 


 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
                                                 
  
 
  
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

With  a  view  to  the  print  sector  it  should  be  noted  that  some  of  the  press  laws  of  the 
Länder  provide  for  media  ownership  rules,  too.  Sec. 7a  of  the  Berliner  Pressegesetz 
(BlnPrG)124  prescribes  that  the  publisher  of  a  periodical  printed  work  has  to  disclose  at 
regular  intervals  information  on  the  ownership  and  participation  relationships  of  the 
publishing  company  as  well  as  on  the  legal  relationships  held  to  other  press  or 
broadcasting  companies125.  The  aim  of  all  these  rules  is  particularly  to  preserve  and 
promote diversity in the media sector.  

Besides  this,  the  German  Commercial  Code  provides  for  the  right  of  free  access  to  the 
commercial and business registers126. 

- Accountability of public service media 

According  to  the  Interstate  Treaty  on  the  Financing  of  Broadcasting  (RFinStV)127  the 
regional  broadcasting  operations  associated  within  the  ARD,  the  ZDF  and  the  DRadio 
have to report to the Länder-Parliaments on their economic and financial situation, soon 
after the Commission on the Financial Needs of the Broadcasters (KEF)128 has submitted 
its  report  on  the  financial  situation  to  the  Länder-Governments129.  The  report  of  the 
broadcasters  shall  include  the  information  relevant  for  the  assessment  of  the 
participation in other companies and subsidiaries and representatives of the broadcasters 
shall be available for parliamentary hearings on the reports.   

Besides,  according  to  the  RStV,  the  state  broadcasting  corporations  forming  the  ARD 
association,  the  ZDF  and  Deutschlandradio  shall,  commencing  on  1  October  2004, 
publish a report every two years on the fulfilment of their respective remit, on the quality 
and  quantity  of  the  existing  offers  as  well  as  on  the  focus  of  the  respective  planned 
offers. 

- Freedom of information laws 

As  described  above  there  exists  the  IFG130  on  Federal  level,  along  with  the  (eleven) 
respective Länder-IFG. According to the IFG everyone has a comprehensive right to free 
access to information held by authorities of the Federal Government or by other Federal 
bodies  and  institutions  insofar  as  they  discharge  administrative  tasks  under  public  law. 
This right does not depend on nationality or the place of residence and can be exercised 
by  natural  as  well  as  by  legal  persons.  Usually  the  application  for  access  to  information 
does not require any statement of grounds, but such may be necessary where personal 
data,  copyrights  or  business  or  trade  secrets  are  concerned.  Access  to  the  requested 
information can be provided both orally and in writing, by direct inspection on-site or by 
making  the  information  available  in  any  other  way,  e.g.  through  providing  a  copy  of  a 
file. As a rule the applicant decides on the form of access, and it shall be granted within 
one  month.  The  application  has  to  be  directed  to  the  responsible  authority  and  can  be 

124	  Berliner Pressegesetz, BlnPrG, available in German at:  

http://gesetze.berlin.de/default.aspx?vpath=bibdata%2Fges%2FBlnPrG%2Fcont%2FBlnPrG.P7a.htm . 
125	  Similar provisions can be found in Pressegesetz des Landes Brandenburg, Hessisches Gesetz über Freiheit 
und  Recht  der  Presse,  Landespressegesetz  für  das  Land  Mecklenburg-Vorpommern,  Sächsisches  Gesetz 
über die Presse, Pressegesetz Schleswig-Holstein, Thüringer Pressegesetz. 

126  Sec. 9 Handelsgesetzbuch, HGB, available in German at: 

http://www.gesetze-im-internet.de/hgb/index.html#BJNR002190897BJNE001304377. 

127  Rundfunkfinanzierungsstaatsvertrag, RFinStV, available in German at:  

http://www.die­
medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/RFinStV_11.pdf. 

128  Kommission zur Ermittlung des Finanzbedarfs, KEF. 
129  Sec. 5 and 3 RFinStV. 
130 

Federal  Act  Governing  Access  to  Information  held  by  the  Federal  Government  (Freedom  of  Information 
Act), available in English at: http://www.gesetze-im-internet.de/englisch_ifg/index.html.  

308 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
  
 
 
  
 
  
  
  
  
  
  
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

made  without  fulfilment  of  specific  requirements  relating  to  form.  The  exceptions  under 
which  access  can  be  rejected  as  well  as  possible  legal  remedies  have  been  described 
above. 

The function of the Federal Commissioner for Freedom of Information (BFDI)131 is defined 
in Sec. 12 IFG: Everyone who considers his or her right to access to information to have 
been  violated  may  appeal  to  the  BFDI.  The  BFDI  can  give  advise  in  the  concrete  case, 
can  check  the  request,  can  ask  the  respective  public  body  for  a  statement  in  the 
particular case or – if so – to give in the controversy. The BFDI does not have the power 
to  direct  with  respect  to  the  public  authorities.  Besides  this,  the  BFDI  also  advises  the 
Parliament, the Government and the authorities of the Federal Government in questions 
of  freedom  of  information  and  makes  recommendations.  In  addition,  the  BFDI  controls 
the obligated authorities and – in the event of infringements of the right to information – 
issues objections. 

Every two years the BFDI publishes an activity-report on the freedom of information. In 
the  recently  published  report  concerning  the  years  2010-2011132,  the  BFDI  states  that 
the  amount  of  applications  under  the  IFG  has increased  significantly  within  the  last  two 
years.  The  report  describes  in  detail  cases  and  areas  in  which  freedom  of  information 
became important and where conflicts came up. Conflicts in this field arose inter alia with 
a view to trade and business secrets, data protection aspects and the question,in how far 
the IFG is applicable to governmental activities, particularly to the preparatory legislative 
work. 

The  report  points  also  to  an  evaluation  of  the  IFG  on  behalf  of  the  Parliament  
(Bundestag)  the  results  of  which  shall  be  submitted  to  the  Parliamentary  home  affairs 
committee in 2012. 

Besides, there is a law on the further use of all information held by public authorities133 
and a bylaw on the charges and costs under the IFG134. 

Special rights to information are provided by numerous other laws135. 

In  this  context  a  ruling  of  the  Federal  Administrative  Court  (BVerwG)136  should  be 
mentioned. On 3 November 2011, the BVerwG decided that the IFG applies, in principle, 
to all activities of the federal ministries.  

In  the  case  at  hand,  the  plaintiffs  required  access  to  certain  documents  of  the  Federal 
Ministry of Justice (BMJ)137: firstly, internal submissions to the Minister in connection with 
the investigation into the possible need to reform the law on parent-child relations and, 

131	  Bundesbeauftragter für den Datenschutz und die Informationsfreiheit, BFDI. 
132	 

Tätigkeitsbericht  zur  Informationsfreiheit  für  die  Jahre  2010  und  2011,  available  in  German  at: 
http://www.bfdi.bund.de/SharedDocs/Publikationen/Taetigkeitsberichte/ 
TB_IFG/3TB10_11.pdf?__blob=publicationFile. 

133  Gesetz  über  die  Weiterverwendung  von  Informationen  öffentlicher  Stellen,  IWG,  available  in  German  at: 

http://www.gesetze-im-internet.de/iwg/index.html. 

134  Verordnung über die Gebühren und Auslagen nach dem Informationsfreiheitsgesetz, IFGGebV, available in 

135	 

zu  digitalen  Geodaten,  GeoZG,  available 

German at: http://www.gesetze-im-internet.de/ifggebv/index.html. 
These special provisions in other legislation on access to official information take precedence to the IFG as 
far  as  their  scope  of  application  reaches,  such  other  information  laws  are  e.g.:  the  Gesetz  über  den 
Zugang 
internet.de/geozg/index.html; 
in  German  at: 
http://www.gesetze-im-internet.de/uig_2005;  the  Gesetz  zur  Verbesserung  der  gesundheitsbezogenen 
Verbraucherinformation, VIG, available  in German at: http://www.gesetze-im-internet.de/vig/index.html; 
the Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen 
Republik, StUG, available in German at: http://www.gesetze-im-internet.de/stug. 

the  Umweltinformationsgesetz,  UIG,  available 

in  German  at:  http://www.gesetze-im­

136  Bundesverwaltungsgericht, BVerwG. 
137  Bundesjustizministerium, BMJ. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

secondly,  BMJ  statements  to  the  Petitions  Committee  of  the  Bundestag  concerning  the 
rehabilitation of the victims of the land reform in the Soviet occupation zone. The lower-
instance court had upheld these claims, on the grounds that the IFG was applicable only 
regarding  the  exercise  of  public  administration  activities,  but  not  of  governmental 
activities.  

The BVerwG rejected the appeals lodged against these rulings, stating that the BMJ was 
a  Federal  authority  obliged  to  provide  access  to  information  under  Sec. 1  IFG.  The  IFG 
did  not  distinguish  between  an  authority’s  governmental  and  administrative  activities; 
such  a  differentiation  would  run  counter  to  the  purpose  of  the  Act.  The  fact  that  the 
BMJ’s  statement  had  been  submitted  to  the  Petitions  Committee  in  accordance  with  a 
constitutional obligation was irrelevant. There were no obvious grounds to refuse access 
the  protection  of 
to 
confidentiality138. 

information  (Sec. 3  et  seq.), 

requested 

including 

the 

There exists further jurisdiction concerning the Länder-IFG. Out of these, one case shall 
be described, concerning the application for information submitted by a journalist to the 
PSB Westdeutscher Rundfunk (WDR). 

On  9  February  2012,  the  Münster  Administrative  Appeals  Court  (OVG)139  ruled  that  the 
WDR is obliged to provide information to a journalist under the IFG-Nordrhein-Westfalen. 
The  journalist  requested  information  about  which  companies  WDR  cooperated  with  and 
how much money was involved. The journalist suspected that the broadcaster, which is 
funded by the licence fee, commissioned work from companies that employed members 
of  its  own  Broadcasting  Council.  WDR  did  not  dispute  the  applicability  of  the  IFG-
Nordrhein-Westfalen, but refused to disclose the information on the grounds that it was 
not  entitled  to  reveal  trade  secrets  and  internal  company  information.  In  the  court's 
view,  WDR  is  not  obliged  to  disclose information  to  the  press  under  the  PrG-Nordrhein-
Westfalen.  However,  under  the  IFG-Nordrhein-Westfalen  in  conjunction  with  the  WDR-
Gesetz,  it  must  provide  access  to  all  information  which  do  not  allow  conclusions  to  be 
drawn about editorial secrets and the programming mandate. This guaranteed the basic 
right  to  freedom  of  reporting.  Providing  access  to  information  did  not  prevent  public 
service  broadcasters  from  fulfilling  their  traditional  remit  and  competing  with  private 
broadcasters140. 

This  decision  complies  with  the  resolution  of  the  Conference  of  the  Commissioners  for 
Freedom  of  Information  in  Germany  from  24  June  2010  which  argues  in  support  of  a 
principal applicability of the IFGs to PSB141. 

- Accessibility of products/services and distribution networks 

Apart  from  aid  in  the  context  of  social  welfare,  State  subsidies  for  the  purchase  of 
reception devices – e.g. for digital reception – do not exist. For free-TV there do not incur 
any  further  costs,  besides  the  acquisition  of  equipment.  The  licence  fee  remains 
unaffected.  

138 

The decision of the BVerwG (No. 7 C 3.11 and 7 C 4.11) of 3 November 2011 is available in German at: 
http://www.bverwg.de/pdf/2820.pdf;  see  also  “  BVerwG  Rules  on  Scope  of  Freedom  of  Information  Act” 
by A. Yliniva-Hoffmann, in IRIS Legal Observations 2012-1/18. 

139  Oberverwaltungsgericht Münster, (No. 5 A 166/10), available in German at:

140 

http://www.justiz.nrw.de/nrwe/ovgs/ovg_nrw/j2012/5_A_166_10urteil20120209.html. 
“OVG  Rules  WDR  Must  Provide  Information  under  NRW  Freedom  of  Information  Act”  by  P.  Matzneller  in 
IRIS Legal Observations 2012-4/16. 

141  Entschließung der 20. Konferenz der Informationfreiheitsbeaufgragten in Deutschland "Informationsfreiheit 

bei öffentlich-rechtlichen Rundfunkanstalten", available in German at:  
http://www.lda.brandenburg.de/sixcms/detail.php?gsid=bb1.c.216373.de&template=lda_entschl. 

310 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
  
  
 
 
  
  
 
 
 
 
  
 
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The media authority of Berlin-Brandenburg (mabb) had established a funding programme 
in order to support the introduction of digital terrestrial television in its region. According 
to  this  programme  private  broadcasters  were  subsidised  for  the  use  of  DVB-T.  The 
European Commission considered this financial support as violation of European State aid 
rules  an  prohibited  the  subsidies.  This  decision  was  confirmed  by  the  Court  of  First 
Instance (T-21/06) and finally by the European Court of Justice (C-544/09)142. 

As  described  above  the  device-dependent  licence  fee  is  still  valid.  Certain  reception 
devices  are  exempted  from  the  obligation  to  pay  a  fee,  e.g.  so  called  second-devices. 
Furthermore,  certain  natural  persons  can  be  exempted  from  this  obligation,  particularly 
due to their social indigence or special needs. 

Newspapers  are  generally  sold  at  affordable  prices  and  newspaper  subscriptions  usually 
offer graduated prices, e.g. specific subscriptions for pupils and students.  

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

In Germany a completely developed ombudsman's system in the media sector does not 
exist. But there are trends which point to such a development. In the media business, in 
which traditionally a large audience is demanded and accordingly a lot of conflict material 
is  given,  several  of  such  complaint  committees  have  been  established  during  the  last 
years.  Their  job  consists  in  mediating  between  the  readers  and  clients  from  the 
advertising industry on the one hand, and the editorial staff and publishing companies on 
the  other  hand.  In  addition  to  this  they  shall  guarantee  an  impartial  approach  with  the 
treatment  of  issues.  They  are  contact  boards  for  complaints  and  they  strengthen  the 
transparency  of  the  whole  editorial  work.  The  "Berliner  Zeitung"  was  the  first  to  get  an 
ombudsman.  Since  1997  their  ombudsman  represents  the  reader's  interests  against 
authorities, enterprises and politics. In the meantime, ten of such complaint committees 
have  been  established  by  different  German  newspapers.  Though  they  are  partly  called 
ombudsman,  reader's  lawyer  or  reader's  representative,  they  are  working  in  the  same 
way, and act as a „megaphone for the readers“. 

The  established  complaint  committees  are  organised  differently  in  Germany.  While  the 
"Frankfurter  Rundschau",  the  "Berlin  newspaper",  the  "Westphalia  review",  the  "franc 
post" and the "Main Post" have an internal ombudsman who works in the enterprise, the 
"Brunswick newspaper" and the WDR chose an external ombudsman who is not working 
firmly in the enterprise, but does his work at determined times. 

Another  manifestation  of  these  complaint  committees  are  the  reader's  advisory  boards. 
These chosen readers meet with the heads of the newspaper editorial staff regularly and 
represent  the  reader's  interests  in  open  discussions.  The  most  prominent  example  of 
these reader's advisory boards is Germany’s most popular tabloid "Bild". It has founded 
its reader's advisory board in 2007 and still works together with it closely. 

Besides,  in  the  Länder  media  laws  (except  Baden-Württemberg,  Niedersachsen  and 
Thüringen)  complaint  procedures  are  expressly  provided.  Though  they  are  formulated 
differently, they contain the same contents. They enable everybody to raise a complaint 

142  Court decision (C-544/09) of 15 September 2011, available in English at: 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=114009&pageIndex=0&doclang=EN&m 
ode=lst&dir=&occ=first&part=1&cid=453276. 

311 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

against  a  private  broadcasting  programme  either  to  the  media  authority  and/or  to  the 
broadcasting operator. So, everybody has the possibility to act in case-of-need. 

- Participation in media operators/(self-)regulatory bodies 

The  Broadcasting  Council  (in  the  ZDF:  Television  Council)  is  the  uppermost  supervision 
committee  of  the  German  PSB  and  is  responsible  for  programme  control.  It  supervises 
the  observance  of  the  legal  broadcasting  order.  In  addition  to  this,  the  Broadcasting 
Council shall grant the free access to the programme of the PSB for all different socially 
relevant groups within the underlying concept of safeguarding variety. 

Nevertheless,  the  Broadcasting  Council  does  not  determine  about  the  programme 
planning,  this  is  a  job  of  the  Director-General.  The  Broadcasting  Council  just  has  a 
counselling  function.  Important  duties  of  the  Broadcasting Councils  are  the  election  and 
choice of the Director-General, the supervision of the legally fixed programme principles, 
the  election  of  the  members  of  the  administrative  council  and  the  approval  of  the 
household.  The  legal  regulations  concerning  the  broadcasting  company  councils  are 
determined by the Länder. 

According to this, the duties and the number of members of the Broadcasting Councils of 
the broadcasting stations vary in the different Länder. The Broadcasting Council consists 
of  members  of  different  social  groups  and  organisations,  and  is  mostly  represented  by 
functionaries  (e.g.,  of  the  trade  unions,  women's  associations,  churches).  The 
Broadcasting Council shall depict a cross section of the population. In every Land, an own 
media institution has been established. They serve as regulation authority for the private 
broadcasters. 

2.2.10.2.  Main Players in the Media Landscape 

2.2.10.2.1. 

Radio 

The radio is a frequently used medium in Germany, it comes right after the television. As 
already mentioned in the study of 2004, the radio market in Germany follows the federal 
state  structure.  Nation-wide  broadcasting  stations  of  the  PSB  as  well  as  of  the  private 
broadcasting  companies  are  of 
importance.  The  „long  time  study  mass 
communication  of  ARD  and  ZDF  in  2010“  showed  that  there  were  252  private  radio 
stations  with  54  national  ones  among  them  in  Germany  in  2010.  The  share  of  private 
broadcasting on the basis of the regional hearing duration sways in the single Länder. In 
2009,  the  share  of  the  market  of  the  private  broadcasting  merely  lay  at  21.7 %  in 
Bremen, while in Sachsen it lay at 55.9 %.143 

less 

While  the  PSB  is  financed  by  license  fees,  the  private  broadcasting  finances  itself  by 
advertising and other commercial revenues exclusively. According to the "media analysis 
2012  radio  I",  a  daily  average  of  52.1 %  of  the  German-speaking  population,  aged  ten 
years or older, listens at least to one of the PSB radio programmes. In 2011, the public 
service  radio  showed  a  daily  range  of  50.2%  (35.02  Mio.),  the  private  radio  a  reach  of 
41.1 %  (28.7  Mio.).  The  whole  daily  reach  of  the  radio  lay  at  77.4%  in  2011.  That 
corresponds to an average daily listening duration of 185 minutes per person. 

143 

Information available at:  
http://www.kek-online.de/Inhalte/dlm-band-45_vierter_konzentrationsbericht.pdf. 

312 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
  
 
 
 
 
                                                 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 55 DE: Main Radio Companies 

Major Groups 

Ownership Structure 
(Shares %) 

Main Radio Stations 
(Shares %) 

ARD 

PSB 

Bayern1 
NDR 1 
SR 
WDR 4 
SWR 4 

-

Axel Springer AG 

Axel  Springer  Ges.  für 
& 
Publizistik 
Co.KG(50.1) 
Friede Springer (7) 
others (40.8) 

mbH 

Radio Hamburg (25.0) 
ANTENNE BAYERN 16.0 
HIT  RADIO  FFH/planet  radio/harmony.fm 
(15.0) 

RTL Group 

Bertelsmann (90.4) 
others (9.6) 

104,6 RTL (100) 
RTL Radio – Die größten Oldies (100) 
Radio Brocken und 89,0 RTL (53.5) 
Hit-Radio Antenne Niedersachsen (49.9) 

Burda,  Prof.  Dr.  Hubert 
(59.98) 
Furtwängler, 

Elisabeth  DONAU 3 FM (50) 

Hubert Burda Media  (19.99) 

Holding 

Madsack 
Verlagsgesellschaft 

Regiocast GmbH & 
Co. KG 

für 

Maisel 

Burda, Jacob (19.99) 
Burda 
Betriebsführungsgesellsc 
haft m.b.H. (0.04) 
Dr. Erich Madsack GmbH 
(Komplementärin)  0.214 
% 
Sylvia  Madsack  20.896 
% 
Ursula 
Familiengesellschaft 
Koller 11.606 % 
Deutsche  Druck-
und 
Verlagsgesellschaft  mbH 
23.083 
Gerstenberg 
Gebrüder 
GmbH & Co. KG 7.255 % 
26
limited 
  more 
partners (36.946 %) 
medien 
GmbH 
Axel Springer AG 
over 
persons 

holding:nord 

individual 

40  

BB Radio (50) 
Ostseewelle (17.26) 
Radio Galaxy (10.5) 

Radio Brocken/89.0 RTL (21,9) 
Hit-Radio Antenne Niedersachsen (7,7) 
radio ffn (13,7) 
RPR1./bigFM (9,7) 

90elf (100) 
Radio BOB! (100) 
RADIO PSR (100) 
ANTENNE MV (55.97) 

Source: Information from company websites, Media-Perspektiven Basisdaten 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 56 DE: Market shares of Privates and ARD 

Market share (%) 
10 years and older 

Market share (%) 
14-49 agers 

ARD (public service) 

Privates 

Others 

52.9 

44.5 

2.6 

Source: Media Analyse, ma 2012 Radio I 

2.2.10.2.2. 

Television 

40.7 

56.1 

3.2 

The television is still the mostpopular medium in Germany with an average daily reach of 
71 % and 222 minutes of viewing duration per person. 

Table 57 DE: Daily usage of TV 

Daily usage (in min) 

Daily coverage of population (in %) 

Adolescents 
and Adults 
(14y+) 

Children 

(3-13y) 

all viewers  Adolescents 
and Adults 
(14y+) 

Children 

all viewers 

(3-13y) 

2007 

223 

2008 

221 

2009 

226 

2010 

237 

2011 

236 

87 

86 

88 

93 

91 

208 

207 

212 

223 

222 

73 

72 

73 

73 

72 

58 

56 

57 

56 

54 

72 

70 

71 

71 

71 

Source: ARD Annual Report 2010, p. 382; Media-Perspektiven Basisdaten 

In  Germany  a  total  of  202  nation-wide  private  television  programmes  are  admitted  by 
mid 2011 including 25 foreign-language programmes. All together are 136 programmes 
of  private  broadcasters  on  air,  including  a  total  of  19  full  programmes,  12  German-
speaking  and  7  foreign-language  programmes.  The  remaining  117  programmes  are 
special-interest  channels,  of  which  another  14  are  foreign-language  channels.  The 
number  of  organised  nation-wide  television  programmes  in  German  language  has  more 
than doubled since 2003. 

The general usage of public service TV broadcasters in Germany remains nearly constant. 
From  a  total  of  23  full  and  special-interest  stations  of  the  PSB,  the  transmission  of  six 
special-interest  stations  (EinsExtra,  EinsPlus,  Einsfestival,  ZDFkultur,  ZDFinfo  and 
ZDFneo)  is  made  exclusively  in  a  digital  way.  On  the  German  nation-wide  television, 
special  groupings  have  developed  quite  early.  These  consist  of  a  group  of  several 
operators. The German RTL channels, united under the roof of Media Group RTL Germany 
is  Europe's  largest  media  entertainment  company  with  a  market  share  of  26.1 %.  The 

314 


 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

RTL Group SA with its 45 TV- and 32 radio stations is Europe’s largest operator of private 
advertising-financed television and private radio. On rank two the ProSiebenSat.1 Media 
AG follows with a market share of 21.3 %.144 

The total market share of the private TV channel providers in 2011 came to 58.3 %, the 
share  of  publicsector  operators  came  to  41.7 %. Fittingly,  in  2010  a  private  TV  channel 
(RTL) achieved the highest viewers’ market shares. If one adds up the audience shares 
of the eight most viewed programmes in Germany, they achieve a share of two thirds of 
all viewers. 

Table 58 DE: Audience share of selected TV channels of general genre 

Audience Share (in %) 

TV channel 

2007 

2008 

2009 

2010 

2011 

ARD 

ZDF 

RTL Television 

Sat.1 

ProSieben 

VOX 

kabeleins 

RTL II 

Super RTL 

13.4 

12.9 

12.4 

9.6 

6.5 

5.7 

3.6 

3.9 

2.6 

13.4 

13.1 

11.7 

10.3 

6.6 

5.4 

3.6 

3.8 

2.4 

12.7 

12.5 

12.5 

10.4 

6.6 

5.4 

3.9 

3.9 

2.5 

13.2 

12.7 

13.7 

10.1 

6.3 

5.6 

3.9 

3.8 

2.2 

12.5 

12.1 

14.1 

10.1 

6.2 

5.6 

4.0 

3.6 

2.2 

Source: AGF/GfK-Television Research; Media-Perspektiven Basisdaten 

In Germany there are four modes of transmission, cable, satellite, terrestrial (DVB-T) and 
Internet (DSL-TV). The distribution of the modes of transmission hardly changed during 
the last five years: Until July, 2011 the cable was still the most far-reaching transmission 
mode with 50.2 % (19 Mio. TV households), followed by satellite with 44.7 % (17 Mio.), 
and  the  terrestrial  with  11.8 %  (4.4  Mio.).  DSL  TV  increases  its  reach  up  to  3 %  (1.1 
Mio.).145 

In the field of digitisation of transmission paths, steady growths are to be registered. In 
contrast to 2010, now 42.5 % of the cable households receive digital TV, in 2010 there 
were  just  37.8 %.  Even  more  clearly  this  trend  appears  within  the  satellite  households. 
There, the digital reception rate is already 86.4 %, in 2010 the figure was 79.1 %. This 
rate  changed  again  in  the  end of  April  2012,  when  the  analogue  satellite  television  was 
turned off and satellite reception is only possible in a digital way. Since the switch-over in 
2009, the terrestrial television is already entirely digitally (DVB-T). 

All  together  67.8 %  (25.5  Mio.)  of  the  television  households  already  receive  digital 
television (2010: 61.7 %).  

144  Media-Perspektiven Basisdaten 2011. 
145  Digitalisierungsbericht (2011) der Medienanstalten. 

315 


 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.10.2.3. 

Press and Publishing 

The  German  newspaper  market  is  the  largest  in  Europe.  Newspapers  enjoy  a  high 
credibility  in  Germany.  Information  from  the  newspaper  is  awarded  a  higher  substance 
than  those  from  the  Internet  or  television.  Especially  at  regional  level,  the  newspapers 
play  an  essential  role.  Regional  subscription  newspapers  are  Germany’s  newspaper 
species  with  the  highest  reach  and  print  density  with  a  daily  sales  figure  of  13.9  Mio. 
copies.  For  the  daily  newspapers,  a  reach  of  68.4 %  in  total  is  reported  for  the  year 
2011. According to this, more than 48 Mio. Germans - that is an average of seven out of 
ten Germans over 14 years - read a daily newspaper regularly. 

351  different  titles  with  a  total  circulation  of  over  23.8  Mio.  copies  are  sold  per  date  of 
publication (IVW: II. Quarter 2011)146. 

These  are  broken  down  into  18.83  Mio.  daily  newspaper  copies,  3.25  Mio.  Sunday 
newspapers and 1.76 Mio. weekly newspapers. 

In the daily newspaper market, a few publishing groups achieve high market shares. 

Nevertheless,  the  circulation  figures  in  the  range  of  daily  and  Sunday  newspapers 
decrease continuously. While in 2004 25.9 Mio. copies were sold, it were only 23.2 Mio. 
copies in 2009.147 

Compared  to  the  2004  study, nothing  in  the  ownership  structure  of  German  newspaper 
publishers  has  changed.  Even  today,  the  people  behind  the  newspapers  are  known  by 
name. Often they are family members, devoted to an far-reaching family tradition. Thus, 
the Axel Springer Verlag AG, Germany's largest and most important publishing group, is 
still mostly family owned. 

146	 

Information available at:
http://www.bdzv.de/markttrends-und-daten/wirtschaftliche­
lage/artikel/detail/zur_wirtschaftlichen_lage_der_zeitungen_in_deutschland_2011/. 
147	  http://www.kek-online.de/Inhalte/dlm-band-45_vierter_konzentrationsbericht.pdf. 

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Table 59 DE: Major publishing Companies 

Major Group 

Main Titels 

Axel Springer Verlags AG 

Verlagsgruppe Stuttgarter Zeitung 

Verlagsgruppe WAZ 

Bild 
Die Welt 
Hamburger Abendblatt 
Berliner Morgenpost 

Stuttgarter Zeitung 
Märkische Oderzeitung 
Die Rheinpfalz 
Südwestpresse 

WAZ 
Westfälische Rundschau 
Neue Rheinzeitung 
Thüringer Allgemeine 

Verlagsgruppe 
Schauberg 

M. 

DuMont 

Kölner Stadtanzeiger/Rundschau 
Kölner Mitteldeutsche Zeitung 
Berliner Zeitung 
Hamburger Morgenpost 

Verlagsgruppe  Ippen  (Münchener 
Zeitungsverlag) 

Münchener Merkur 
Hessisch/Niedersächsische Allgemeine 
Westfälischer Anzeiger 

Verlagsgruppe Madsack 

Hannoversche Allgemeine Zeitung 
Märkische Allgemeine 
Neue Presse 

Total Market 
Share 

19.6% 

8.6% 

5.8% 

5.5% 

4.2% 

4.0% 

Source: Media-Perspektiven Basisdaten information from company websites 

2.2.10.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

In Germany there is a variety of websites that provide on-demand services. The main TV 
market players have their own video-on-demand services which offer the opportunity to 
follow-up viewing. 

Art. 11 d (2) No. 4 RStV provides that PSB material of contemporary or cultural history 
can  be  provided  without  limitations  in  time,  whereas  generally  all  the  other  broadcast 
programmes have to be deleted from the website within seven days after their first linear 
broadcast. 

In  addition  to  the  commercial  broadcaster  on-demand  services,  there  are  a  number  of 
other  providers  that  offer  their  broadcast  material  via  on-demand  services  against 
payment  of  a  fee  or  monthly  subscription.  There  is  MSN  Movies,  Videoload,  Alice 
Videothek and Maxdome (provided by the ProSiebenSat.1 Media AG). 

There  have  been  plans  of  RTL  and  the  ProSiebenSat.1  Media  AG  to  create  a  channel­
overarching  online-video  platform,  but  the  German  competition  authority  rejected  the 
establishment for reasons of prevailing market power. 

317 


 
 
 
 
  
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 60 DE: Demand of video files 

Overall 

Video platforms 

Webcasting 

Simulcasting 

Video podcasts 

Demand of video files (at least occasionally in %) 

2008 

55 

51 

14 

12 

7 

2009 

2010 

2011 

62 

52 

21 

18 

6 

65 

58 

23 

15 

3 

68 

58 

29 

21 

4 

Source: ARD/ZDF Onlinestudie 2011, www.ard-zdf-onlinestudie.de/index.php?id=312 

2.2.10.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Currently,  1.26  Mio.  of  the  digitised  television  households,  use  the  premium  cable  TV 
service  from  Kabel  Deutschland,  1.6  Mio.  have  a  digital  TV  subscription  of  the  Unity 
Media Group, Kabel BW has over 324,000 pay-TV subscribers and the platform provider 
Sky even has 2.76 Mio. direct subscribers. 

In  addition  to  this,  Germany  has  a  total  of  about  1.4  Mio.  IPTV  subscribers,  of  which 
approximately 1.3 Mio. subscribers use the Entertain service of Deutsche Telekom. Alice 
TV  has  79,500  subscribers  and  Vodafone  has  a  total  of  25,000  TV  IPTV  customers 
(source: company data, state: June 2011). 

The  Sky  Deutschland  Fernsehen  GmbH  &  Co.  KG  is  represented  on  both  satellite  and 
cable  platforms.  With  a  reach  of  2.759  Mio.  subscribers  (as  of  30  June  2011)  it  is  the 
market leader. 

There are several cable operators in Germany.148 

Like  mentioned  in  2004,  Kabel  Deutschland  is  still  the  leading  cable  operator  (Cable 
Germany  Sales  &  Service  GmbH  &  Co.  KG)  with  a  range  of  8.745  Mio.  connected  TV 
households and 1.264 Mio. premium TV-subscriptions (state: March 2011). 

It  is  followed  by  Unitymedia  (Unitymedia  NRW  GmbH  und  Unitymedia  Hessen  GmbH  & 
Co. KG) with a range of approximately 4.5 Mio. basic cable customers, including 1.6 Mio. 
digital TV subscribers (state: June 2011). 

The  Platform  Kabel  Kiosk  (Eutelsat  visAvision  GmbH  of  the  satellite  operator  Eutelsat) 
has a potential audience of 3.5 Mio. households (state: February 2011). 

Kabel  BW  (Kabel  Baden-Württemberg  GmbH  &  Co.  KK)  which  was  recently  acquired  by 
unitymedia  reaches  more  than  2.3  Mio.  cable  subscribers  and  324,000  have  pay-TV 
subscribers (state: June 2011). 

A  similar  range  is  reached  by  tele  columbus  (Tele  Columbus  GmbH),  which  supplies 
around 2.3 Mio. cable-connected television homes (state: August 2011). 

With  over  1  Mio.  cable-connected  television  homes,  primacom  (PrimaCom  Management 
GmbH) comes in last (state: August 2011). 

148  http://www.kek-online.de/Inhalte/jahresbericht_10-11.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  HD  +  (HD  PLUS  GmbH,  a  subsidiary  of  SES  ASTRA),  with  a  range  of  769,000 
households (all households with HD + transmitters can be received) (state: March 2011) 
and  the  Music  Television  via  Satellite–  Platinum  Stage  Ltd,  whose  range  is  not 
specified.149 

The  latest  television  technology  IPTV  (Internet  Protocol  TeleVision),  which  transfers  the 
audiovisual  contents  via  a  closed  network  digitally,  is  available  in  Germany.  The  three 
providers are: 

Table 61 DE: IPTV providers 2011 in Germany 

Provider 

Network 

Subscribers 

Entertain 
(Deutsche Telekom AG) 
Alice TV 
(Telefónica  Germany  GmbH  & 
Co. OHG) 
Vodafone TV 
(Vodafone D2 GmbH) 

DSL or VDSL 

-

DSL 

DSL 

1.3 Mio 

79,500 

25.,000 

Source: www.kek-online.de/Inhalte/jahresbericht_10-11.pdf 

2.2.10.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The  recently  published  results  of  the  media  analysis  (ma)  2012  Radio  I  (March  2012) 
show consistently high levels of radio use in Germany. 58.43 Mio. people per day tune in 
a radio and stay tuned for more than four hours (about 250 minutes). So the daily reach 
increased up to 79.6 %. 

The  increase  of  the  reach  is  even  clearer  when  the  younger  ones  are  looked  at:  The 
young people between 10 and 19 years achieve a daily reach of 69.9 %, that means an 
increase by 3.7 % over the last two years (I ma 2010: 67.4 %). The high stability of the 
classic  radio  lies  in  its  multi-channel  capability.  In  particular,  the  mass  distribution  of 
smartphones  and  Tablet  PCs  ensures  that  the  radio  is  always  present  and  reaches  the 
people even on the road. 

There is a positive development in the range of advertising revenue. In 2010, the radio 
advertising revenue achieved 692,1 Mio. Euro150. 

The programme development of the German television market was shaped by the strict 
cost  management  of  all  competitors  in  2010,  despite  of  the  significant  increase  of  the 
advertising revenue. Nevertheless, the private TV broadcasters could expand its audience 
share  in  2010  again,  this  time  to  58.3 %.  As  a  consequence  thereof,  especially  the 
private  broadcasters  could  raise  their  advertising  revenue.  While  the  main  broadcasters 
revenues  nearly  stay  stable,  the  smaller  programme  broadcaster  could  raise  their 
revenue up to 74.6 % in 2010.151 

The  second  year  in  a  row,  the  revenues  of  the  sale  of  newspapers  in  Germany  were 
higher  than  the  revenues  of  advertising  and  promotion.  The  traditional  rule  that  two 
thirds of the revenue come from advertising and one-third from the sale of newspapers is 

149 

Information available at: www.kek-online.de/Inhalte/jahresbericht_10-11.pdf. 
150  Zentralverband der deutschen Werbewirtschaft, Media Perspektiven Basisdaten 2011. 
151  Media Perspektiven 6/ 2011, Media Perspektiven Basisdaten 2011. 

319 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
                                                 
  
  
  
 
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

not valid any more since the first major economic and commercial crisis of 2001 to 2003, 
but the reversal of the figures is a sign of the structural changes within the industry. 

Table 62 DE: Audience statistics 

2005 

2010 

Regional dailies (in mio.) 

Television viewing (average min per day) 

Radio listening (average min per day) 

28 

220 

221 

Source: ARD/ZDF Langzeitstudie Massenkommunikation 

Table 63 DE: Revenues in the range of media 

23 

220 

187 

Revenue 2005 

Revenue 2010 

Regional dailies (in mio. Euro) 

Television viewing (in mio. Euro) 

Radio listening (in mio. Euro) 

4476.6 

3929.6 

663.7 

3637.8 

3953.7 

692.1 

Source:  Zentralverband  der  deutschen  Werbewirtschaft,  Media  Perspektiven  Basisdaten 
2011 

2.2.10.3.  Conclusion and Recommendations 

The  freedom  of  expression  is  a  very  valuable,  legally-protected  good  in  Germany,  the 
safeguard  of  which  is  also  explicitly  enshrined  in  the  Grundgesetz  (the  German 
constitution). 

In  addition  to  this,  the  rights  of  the  media  are  guaranteed  in  particular  by  the  duty  of 
information  by  the  authorities,  free  admission  for  press  organs,  the  prohibition  of  prior 
censorship  and  the  right  to  refuse  to  give  evidence  in  relation  to  the  protection  of 
confidential  sources.  Especially  the  freedom  of  the  media  in  its  various  forms  plays  a 
considerable role in Germany, and is continuously strengthened by the jurisdiction of the 
Federal Constitutional Court. 

The access to information held by public authorities has improved. As can be seen from 
the  development  of  the  legislation  in  the  field  of  freedom  of  information:  unlike  before, 
the  IFG  introduced  the  possibility  to  receive  information  irrespective  of  the  proof  of  a 
legitimate  interest.  The  right  to  access  to  information  under  the  IFG  exists  without 
presuppositions and thus makes administration more transparent. Exceptions to the right 
to access have to be made evident to the applicant. Detrimental to the citizens right to 
information  is,  however,  the  fact  that  not  all  Länder  have  issued  a  regional  IFG. 
Nevertheless,  it  should  be  noted  that  for  example  in  Bayern152  at  least  the  respective 
municipal statutes provide for certain (local) information rights.  

Still,  freedom  of  access  to  information  held  by  public  authorities  is  not  enshrined  in  the 
Grundgesetz.  Art. 5  (1)  Grundgesetz  determines  the  right  for  every  person  to  inform 
him-/herself without hindrance from generally accessible sources, but it does not provide 
for the right that an information source is made available. 

152  See Activity Report 2010-2011 of the BFDI p. 33. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

As  to  the  improvement  of  transparency  and  democracy  in  public  activities,  the  right  to 
access  to  information  could  be  grounded  as  a  positive  participation  right  in  the 
Grundgesetz.  But  also  in  cases  in  which  third  party  interests  are  concerned  by  an 
application  for  information,  the  applicant’s  position  is  still  inferior  to  that  of  the  third 
party if the latter can refer to constitutional rights, as e.g. business secrets. Business and 
trade secrets are protected by the exemption clauses of the IFG itself and – besides this 
–  enjoy  constitutional  protection.  Due  to  this,  a  weighing  of  interests  (which  is  not 
foreseen  according  to  the  IFG153)  would  have  to  go  to  the  disadvantage  of  freedom  of 
information.  Although  the  protection  of  business  and  trade  secrets  is  of  great  economic 
importance  –  as  e.g.  to  the  protection  against  spying  out  of  technical  know-how  –  the 
information interests – as e.g. considering alleged corruption or the use of public funding 
– have to get their appropriate attention, too. 

With a view to technological development as well as to the changed expectations as well 
as  the  ways  and  means  of  the  citizens  to  get  access  to  information,  public  authorities 
should of their own accord, proactively provide (free) information to the public (fostering 
of open data and open government)154. A legal and nation-wide uniform obligation would 
be conceivable. 

Regarding  harmonisation  and  simplification  of  freedom  of  information  policy,  the  IFG, 
UIG and VIG could be merged, as for instance recommended by the German Conference 
of the Commissioners for Freedom of Information155. 

While  in  the  area  of  television,  radio  and  newspapers  the  user  community  has  declined 
continuously  in  the  last  few  years,  the  group  of  Internet  users  has  grown  considerably 
(2000: 23 %, 2010: 67 %). 

In  the  most  affected  newspaper  market,  the  progressive  monopolisation  within  the 
means of horizontal concentration is controlled by media merger control limits. Till now, 
there  are  no  negative  impacts  on  the  freedom  of  expression  and  journalistic  diversity 
observed by the also increasing diagonal integration (cross-media ownership), which can 
especially be noticed in the range of daily press and the national television. 

Although  there  is  a  significant  decline  in  use,  the  traditional  media  benefits  from  the 
increased  importance  of  the  Internet.  In  particular,  this  gets  clear  if  one  regards  the 
advancing use of radio broadcasting over the Internet, as well as the steadily increasing 
use of online newspaper subscriptions. 

If  one  distinguishes  the  average  use  of  the  Internet  in  media  and  non-media  contents, 
the  mass  media  reaches  28 %  of  the  adults  (in  the  form  of  newspaper,  radio  and 
television)  via  the  Internet.  In  the  young  target  audience  even  57 %  use  mass  media 
content over the Internet. 

153	  Such  a  reservation,  according  to  which  information  rights  shall  be  balanced  against  business  secrets 

interests, is foreseen in the IFG-Bremen. 

154	  Sec. 11  of  the  IFG  of Bremen,  which  is  considered  to  be  very  progressive,  provides  for  such  a  proactive 

information policy; BremIFG is available in German at:  
http://bremen.beck.de/default.aspx?vpath=bibdata\ges\brifg\cont\brifg.htm&mode=all.  

155	  Konferenz  der 

Informationsfreiheitsbeauftragten 

in  Deutschland, 

IFK;  statement  available  at: 

http://www.vigwirkt.de//fileadmin/sites/default/files/Evaluation/ 
VIG_Stellungnahme_IFK_100902.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

GREECE 


2.2.11.	  Greece 

2.2.11.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.11.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  Greek  Constitution  from  1975  guarantees  freedom  of  expression.  Article  14  states 
that  every  person  may  express  his  thoughts  orally,  in  writing  and  through  the  press  in 
compliance with the laws of the state.  

- Specific safeguards and rights for the media 

Article  14  also  states  that  the  press  is  free;  censorship,  as  well  as  the  seizure  of 
newspapers and other publications before or after publication, is prohibited. 

  Freedom to receive and to access information 

- Specific rights for the citizens 

The  Greek  Constitution  (Art.  10(3))  and  the  Code  of  Administrative  Procedure  (Art.  5) 
stipulate  that  citizens  have  the  right,  upon  written  request,  to  access  administrative 
documents  held  by  public  authorities.  Citizens  also  have  the  right  to  access  private 
documents,  insofar  as  a  ‘special  legitimate  interest’  can  be  established.  The  right  of 
access cannot be exercised if the document at hand concerns the private or family life of 
others,  or  if  the  confidentiality  of  the  document  is  safeguarded  by  specific  legal 
provisions. Authorities may deny access to documents that concern the discussions of the 
Ministerial  Council  or  when  access  can  obstruct 
investigations  of  criminal  or 
administrative violations. 

Article 14 of the Constitution also guarantees the right to reply to errors published in the 
press or broadcast.  

In  balancing  between  competing  rights  with  regard  to  the  freedom  of  expression  in  the 
media  and  the  freedom  of  information,  national  courts  apply  a  number  of  criteria  and 
principles. Initially, the media must inform the public about issues and aspects that are in 
the public interest (not merely to satisfy any kind of curiosity of its audience). The notion 
of ‘justified interest’ is invoked to assess the content of articles or news that is of interest 
to the society at large. In such cases, media content that interferes with one’s private life 
or is sharply critical of one’s actions may be justified by the need to inform the public on 
a matter of broad social interest. It is not always straightforward what or whose actions 
involve  ‘justified  public  interest’,  and  Greek  courts  have  not  specified  consistent  criteria 
to determine this.1 

1 

Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP).  

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  Safeguards on regulatory authorities 

In 2001, the Greek National Council of Radio and Television (NCRTV) was recognised by 
the Constitution, in Art. 15(2), as having an independent status. 

	  Safeguards on “universal service” 

According  to  the  Constitution  of  1975,  ‘radio  and  television  will  be  under  the  direct 
control of the state’2. Although ‘direct control’ did not necessarily mean ‘state monopoly’, 
the  state  monopoly  was  justified  on  the  grounds  of  the  limited  frequencies  being 
available,  as  well  as  the  need  to  provide  full  coverage  for  such  a  mountainous  country 
with its many islands. 

The Greek constitution provides in Article 15 that audio-visual media must ensure quality 
demanded by the social role of radio and television and the cultural development of the 
country. 

2.2.11.1.2. 

Media order (de lege lata and de facto) 

	  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The  basic  operational  framework  of  private  television  and  local  radio  is  defined  by  the 
Law  2328/19953,  in  essence  the  first  serious  attempt  to  regulate  the  commercial 
broadcasting market effectively. 

Law 2644/19984 made provision for the supply of broadcasting subscription services and 
regulated  all  new  pay-TV  services  regardless  of  their  process  (digital  or  analogue)  and 
means of broadcast (terrestrial, cable or satellite).  

In general terms, in order for a natural or legal person to enter the broadcasting market 
they must obtain a license from the government. A competitive licensing procedure exists 
only  for  terrestrial  transmission,  due  to  the  scarcity  of  specific  frequencies.  Yet,  anyone 
applying  for  a  satellite  transmission  licence  must  submit  an  application  to  the  NCRTV. 
Licences  are  only  granted  to  limited  companies  (S.A.),  the  shares  of  which  should  be 
registered. In an attempt to prohibit the creation of dominant positions, Law 2328/1995 
made provisions for limitations of the holding of licenses, but these provisions have now 
been updated by Law 3592/20075 . This new Law provides for a number of issues, among 
them  licensing  for  analogue  television,  digital  terrestrial  television  (DTT)  and  media 
concentration. 

Law 2863/20006 provided that the NCRTV is an independent authority and has the sole 
responsibility for:  

	  granting, renewing or revoking licenses for radio and TV services; 

	  practicing control on radio and TV services, both state and private, on whether they 

adhere to the relevant legislation; 

2 

3 

4 

5 

6 

Alivizatos, 1986; Dagtoglou, 1989.
 
FEK (Official Gazette) A’ 159/1995.
 
FEK A’ 223/1998.
 
FEK A’ 161/2007.
 
FEK A’ 262/2000.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

	  ensuring  political  and  cultural  diversity  in  mass  media  in  cases  where  Laws 

2328/1995 and 2644/1998 are breached; 

	  supervising free competition in the mass media industry (together with the Hellenic 
Competition Commission and National Telecommunications and Post Commission); 

	 

imposing fines and administrative measures; 

	  examining requests for remedies for personal insults caused by mass media.  

Law 1730/19877 united public radio and television into a single corporate body titled ERT 
(Elliniki  Radiofonia  Tileorasi  -  Hellenic  Broadcasting  Corporation  S.A.).  As  stipulated  by  
law, the mission of ERT S.A. is the organization, the exploitation and the development of 
state radio and TV, as well as their contribution to public education and entertainment, as 
well  as  the  presentation  of  the  activities  of  the  Greek  Parliament.  It  is  further  provided 
that  state  radio  and  TV  should  reach  diverse  social  groups  and  cover  a  wide  range  of 
fields, since their purpose is not to make profits but to promote the public interest. 

The law does not foresee any specific requirements for other types of media, so general 
rules apply to the print media or internet web sites. 

-	 Media pluralism/ownership; competition law aspects 

The constitutional basis of media ownership regulation derives from Article 14 (9) of the 
Greek Constitution, which outlines the obligation for media outlets to register ownership 
status  and  information  regarding  the  financing  of  the  outlet.  The  same  article  provides 
for the setting up of laws that would prohibit concentration of media ownership. In effect, 
Law  3592/2007  titled  ‘New  Act  on  Concentration  and  Licensing  of  Media  Undertakings’ 
and known as the “Law of the Basic Shareholder”, was passed by the Greek Parliament in 
late 2007. Regarding media concentration the 2007 law also updated the strict ownership 
rules  that  had  been  passed  with  Law  2328  from  1995.  In  particular,  Law  2328/1995 
stipulated  that  a  natural  or  legal  person  could  hold  only  one  broadcast  licence  and  only 
up  to  25%  of  the  capital  of  the  company,  while  ownership  of  more  than  one  electronic 
mediums of the same type was prohibited. The same rules applied to relatives of natural 
persons  of  up  to  the  fourth  degree.  Concerning  cross-media  ownership,  a  ‘two  out  of 
three’  rule  existed,  meaning  that  a  single  company  or  individual  cannot  participate  in 
more than two traditional media categories (TV, radio or newspapers). The participation 
of non-Europeans in the shareholding of media companies was also limited to 25% of the 
capital. 

However, this strict regulatory framework has not prevented high levels of concentration 
of  media  and  cross-media  ownership,  as  evidenced  by  the  control  of  electronic  media 
through  powerful  publishing  interests.  For  example,  MEGA  Channel,  one  of  the  main 
terrestrial  television  channels,  is  owned  by  Teletypos  SA,  a  company  controlled  by  a 
consortium  of  the  major  newspapers  publishers  in  Greece,  like  Pegasus  Publications  SA 
(owning  26.82%),  Lambrakis  Press  SA  (22.11%)  and  Tegopoulos  Publications  SA 
(2.68%). Teletypos SA also have a 40% holding in Multichoice Hellas SA, which operates 
pay-TV  digital  satellite  service  “Nova”,  a  powerful  player  in  the  film  and  sports  rights 
markets. 

In  light  of  evidence  of  concentration  of  media  ownership  and  cross-media  ownership, 
especially  between  publishing  and  television  interests,  the  new  law  attempts  to  address 

7 

FEK A’ 145/1987. 

324 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  dominance  of  the  powerful  publishing  groups  and  private  broadcasters,  by  re­
emphasizing the provisions made by Law 2328/1995. In particular, Law 3592/2007 sets 
limits  for  the  concentration  of  media  ownership  in  the  print  media  industry.  Concerning 
the  press  industry,  the  law  provides  that  a  person  and  his  relatives  (up  to  the  fourth 
degree) may own or participate in only: 

	  a  maximum  of  two  daily  political  newspapers  distributed  in  the  main  cities  of 

Athens, Piraeus and Thessaloniki; 

	  one daily financial paper and one daily sport paper circulated in Athens, Piraeus or 

Thessaloniki; 

	  two non-daily provincial newspapers issued in different regions;  

	  one Sunday publication. 

Concentration  of  ownership  is  also  restricted  in  the  broadcasting  industry.  According  to 
Law  3592/2007,  a  joint  stock  company  can  own  up  to  a  100%  of  a  television  station 
and/or  one  radio  station.  However,  ownership  of  more  than  one  electronic  information 
media  company  is  prohibited.  The  “Law  of  the  Basic  Shareholder”  permits  the  parallel 
acquisition of shares in more than one media companies under specific qualifications: the 
prospective  owner  should  not  be  among  the  10  basic  shareholders  of  the  company. 
Further, the prospective owner’s market share in both companies should not exceed 35% 
for the same media category (for example, two TV stations) or 32% for different media 
(for example, one newspaper and one TV station). 

Media owners, partners, main shareholders or management executives may not act in a 
similar capacity in an enterprise that undertakes public administration.  

Thus  the  scope  of  application  of  Law  3592/2007  covers  the  horizontal  and  vertical 
concentrations  between  media  enterprises  that  affect  the  broadcasting  and  print  media 
markets. Concentrations in other markets that are relevant for the media (i.e. the market 
of content production, the market of rights acquisition, the market of content distribution 
or the press printing market) and concentrations that involve media companies operating 
at  different  levels  of  the  supply  chain  (i.e.  upstream  and  downstream  markets)  are  not 
specifically  assessed  on  the  basis  of  Law  3592/2007.  This  is  also  the  case  regarding 
concentrations  between  media  enterprises  and  undertakings  in  other  sectors  of  the 
economy, concentrations that implicate media enterprises with an online presence only, 
and the evaluation of the vertical effects that the concentrations coming under the scope 
of Law 3592/2007 may produce. All the aforementioned cases fall under the auspices of 
general  competition  law,  whose  main  objective  is  to  provide  open  and  fair  competition 
(economic  consideration),  rather  than  explicitly  safeguarding  pluralism  and  diversity 
(socio-cultural consideration). 

Law  2644/1998  limits  licence  holders  in  order  to  secure  pluralism  and  to  avoid  the 
creation  of  dominant  market  positions.  For  example,  an  interested  party  may  only 
participate  in  one  company  that  provides  subscription-based  services  using  the  same 
means  of  distribution  as  well  as  a  second  company  that  uses  different  means  of 
distribution. Furthermore, any natural or legal entity can acquire a maximum of 40% of 
the  total  capital  of  one  subscription-based  television  (or  radio)  company.  For  further 
participation  in  other  media  industries  (i.e.  cross-media  ownership),  the  provisions  of 
Law 3592/2007 are applied. 

325 


 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Legal framework for psm; ability to fulfill their tasks 

In the case of broadcasting the state not only intervenes but is the active agent. Greek 
broadcasting was established, as in most European countries, as a state monopoly which 
remained after the restoration of Parliament. Therefore, the state became the sole agent 
of  the  broadcast  media.  The  government  manipulation  of  state  TV  news  output  is  a 
suitable  example  of  the  dirigist  role  of  the  state,  since  it  has  traditionally  reflected  and 
reinforced government views and policies8. 

As  a  result,  ministerial  censorship  was  common  practice  and  state  control  greater  than 
was the case elsewhere. The general pattern of the Greek state broadcasting media was 
(and  still  is)  that  a  transfer  of  political  power  will  be  followed  by  an  equivalent  change­
over in the state media institutions' executives. The outcome, especially in the past, was 
news  and  editorial  judgments  of  particular  importance  in  close  agreement,  if  not 
identical, to the government announcements on a whole range of policies and decisions. 
Thus, it is not surprising that the responsible posts in state broadcasting have come and 
gone  with  great  frequency,  and  when  the  major  political  parties,  New  Democracy 
(Conservatives) and PASOK (Socialists), come to power they usually adopt a policy they 
strongly criticised when they were in the Opposition9. 

ERT  is  funded  by  a  combination  of  the  licence  fee  and  advertising  revenues,  but  as 
advertising  income  has  been  falling  steadily  following  market  liberalisation,  the  main 
source of ERT’s income is in fact the licence fee. However, the annual mandatory licence 
fee  at  just  over  50  Euro  is  one  of  the  lowest  in  Europe  and  cannot  therefore  guarantee 
the broadcaster’s financial independence. This creates a severe problem. The licence fee 
is arguably aimed at protecting ERT from financial pressures and competition, so that the 
broadcaster can be accountable to the public and fulfil its public service remit by offering 
quality  informational,  educational  and  entertainment  services.  But  ERT  has  difficulty  to 
fulfil its public service remit and ensure accountability for as long as it is financially weak. 
For example, its weak finances prevent it from launching digital and online services, and 
therefore  conveying  content  via  various  platforms  (digital,  online,  mobile)  to  reach  all 
citizens in the information society10. 

Law  1730/1987  recognises  the  administrative  and  financial  independence  of  public 
broadcaster ERT (Art. 1(3)). However, whenever there has been a change in government 
this has regularly been followed by shifts in the composition of ERT’s managing board11. 
This  demonstrates  that  selection  has  for  the  most  part  been  based  on  political  criteria 
and affiliation. The government has regularly exercised the possibility to exert  influence 
on  ERT’s  managing  board  by  appointing  most  of  its  members.  Law  3878/201012  which 
brought  changes  to  ERT’s  executive  structure  did  not  entail  any  modifications  in  this 
regard.  The  law  provided  for  the  separation  of  the  post  of  the  president  and  of  the 
managing director but required both to be appointed by a joint decision of the Minister of 
Finance  and  the  Minister  of  Culture  and  Tourism  (MCT)  (Art.1).  Pursuant  to  Law 
3965/201113,  the  MF  and  the  MCT  are  also  responsible  for  appointing  four  members  of 
ERT’s  board  whereas  ERT  employees  elect  one  board  member  as  their  representative. 

8 

9 

10 

11 
12 

13 

Papathanassopoulos,  S.  (1990)  ‘Broadcasting,  Politics  and  the  State  in  Socialist  Greece’,  Media,  Culture 
and Society, 12 (3), pp. 338-97. 
Ibid. 
Iosifidis,  P.  (2010)  (ed.)  Reinventing  Public  Service  Communication:  European  Broadcasters  and  Beyond 
(London: Palgrave Macmillan). 
Papathanassopoulos, 2010. 
FEK A’ 161/2010. 
FEK A’ 113/2011. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Law 3965/201114 provided that all public enterprises in Greece must be governed by 7­
member managing boards.15 

In  the  era  of  the  dominance  of  private  television  such  a  practice  is  rather  absurd. 
However, the political affiliation of the executives of the public broadcaster is self-evident 
as  all  parties  in  the  Opposition  still  accuse  the  government  of  the  day-to-day  control  of 
the  news  output.  In  this  sense,  it  could  be  said  that  public  service  broadcasting  never 
really  existed  in  Greece.  The  troubled  political  history  of  the  country  formed  a  ‘state’ 
rather  than  a  ‘public’  broadcaster.  To  understand  this,  one  has  to  note  that  the  license 
fee is not collected directly from the TV households, but from the very beginning though 
the  electricity  bills.  In  this  sense  there  was  never  a  license  fee  in  a  Western  European 
way. By and large, in Greece the public broadcaster was unable to function according to 
the public service obligations evident in territories like the United Kingdom, Germany and 
Scandinavia.16 

Alongside  the  aforementioned  political  influences  that  have  impacted  on  ERT’s 
governance, the Greek state broadcaster has also suffered from the austerity measures 
the government has recently adopted. In a midst of a serious economic crisis facing the 
country,  substantive  reductions  in  labour  costs  and  operational  expenses  have  placed 
ERT  under  severe  strain  and  could  substantially  undermine  its  ability  to  operate  in  the 
public  interest.  In  August  2011,  the  then  government  spokesman  announced  an 
overwhelming  plan  for  ERT’s  restructuring,  including  measures  such  as  reducing  the 
number of ERT TV and radio channels and placing greater emphasis on the Internet and 
multimedia  services.  Whilst  one  would  welcome  the  government’s  firm  commitment  to 
implement  a  policy  of  cutting  down  and  rationalising  expenses  on  a  chronically  failing 
company, nevertheless the changes do not address fundamental questions regarding the 
role  of  public  service  media  in  society  and  the  characteristics  that  should  define  them.  
The  intention  behind  the  plan  is  to  convert  a  ‘state’  broadcaster  into  a  ‘public  service’ 
media, but the announced measures do little to reduce undue pressures and influence on 
ERT’s  operation  from  the  political  elite.  Meanwhile,  excessive  emphasis  on  competition 
and  efficiency  may  jeopardise  the  very  essence  of  public  service  media,  that  is,  the 
fulfilment  of  a  clear  public  service  remit  and  the  offering  of  quality  informational  and 
educational services that commercial operators are arguably unable to offer. 

- The role and functioning of regulatory authorities in these respects 

Law  2863/200017  established  the  status  of  the  NCRTV  as  an  independent  authority 
overseeing the broadcasting sector. However, as will be shown below, from its inception, 
the  NCRTV  was  not  given  full  autonomy  and  its  role  until  today  remains  mainly 
consultative. 

The  NCRTV  has  the  mandate  to  guarantee  that  public  and  private  broadcasters  comply 
with domestic and European legislation, and can impose administrative sanctions in case 
of  violations.  The  Council  is  responsible  for  the  supervision  of  broadcast  content 
regulation  and  is  assigned  with  the  task  of  licensing  the  radio  and  television  channels 
transmitted by terrestrial, cable and satellite networks in line with pre-defined criteria. As 

14 

15 

16 

17 

FEK A’ 113/2011. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
Papathanassopoulos,  S.  (2010)  in  Iosifidis  (ed.)  Reinventing  Public  Service  Communication:  European 
Broadcasters and Beyond (London: Palgrave Macmillan). 
FEK A’ 262/2000. 

327 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

such,  the  role  of  the  NCRTV  remains  limited  to  ensuring  compliance  with  domestic  and 
European Union provisions. 

The Council is a seven-member body, consisting of a president, a vice president and five 
members, all appointed by the Greek Parliament. All seven members are elected by the 
Conference  of  Presidents,  a  cross-party  parliamentary  body,  with  a  4/5  majority  upon 
nomination  by  the  governing  party.  In  the  search  of  candidates  meeting  the  4/5 
majority,  this  procedure  has  caused  significant  delays  in  the  renewal  of  the  Council 
members.  This  has  resulted  in  the  automatic  extension  of  the  term  of  office  of  the 
NCRTV’s  past  members,  raising  serious  concerns  about  the  legality  of  the  Council’s 
decisions and independence. 

Meanwhile, the limited expertise of the members of the board, combined with their part-
time  term  of  employment  has  devalued  the  performance  of  the  NCRTV.  Other  factors 
inhibiting  the  effectiveness  of  the  Council  are  the  lack  of  financial  independence,  and 
insufficient  personnel  and  information  technology  equipment.  The  NCRTV  appears  to  be 
unable  to  establish  itself  as  an  authoritative  body  that  effectively  regulates  the  media 
and  supports  media  freedom.  This  stems  mainly  from  the  behaviour  of  the  dominant 
political  forces,  which  have  been  ambivalent  with  regard  to  promoting  the  Council’s 
independence.  This  is  demonstrated  in  the  politicised  procedure  for  the  appointment  of 
the  members  of  the  NCRTV’s  board.  Another  example  of  the  NCRTV’s  inability  to 
effectively regulate the market relates to media ownership. The Council indeed publishes 
information  on  media  ownership  and  shareholding,  but  does  not  really  engage  in  a 
vigorous assessment of their compatibility with the law.18 

The  national  Committee  of  Electronic  Means  of  Communication  (EEHME)  monitors  the 
quality of public and private audiovisual services and reports to the NCRTV. 

The  Hellenic  Competition  Commission  (HCC),  which  was  set  up  in  1977,  but  was  only 
awarded an independent status in 1995, is an authority consisting of eight members and 
charged with applying competition rules in the media and communications industry (Law 
3592/2007).  The  president  and  vice-president  are  selected  by  the  Parliament’s 
Conference  of  Presidents  and  are  appointed  by  the  Ministry  of  Development, 
Competitiveness  and  Shipping  (MDCS),  while  the  remaining  six  members  are  directly 
appointed  by  the  MDCS  (Art.  12(3)  Law  3959/201119).  The  HCC  guarantees  the  open 
operation of the market and applies the competition law, the principal source of which is 
Law 703/197720 as amended by Law 3371/200521 and Law 3959/2011. Together with the 
NCRTV,  the  authority  is  responsible  for  the  implementation  of  Law  3592/2007  on  the 
‘Concentration and Licensing of Media Undertakings’. 

Similarly  to  competition  authorities  operating  in  other  European  countries,  the  HCC 
pursues  the  view  that  the  public  interest  is  best  met  through  applying  market 
mechanisms  to  electronic  communications.  This  emphasis  on  industrial  and  economic 
issues makes the authority less keen to focus on socio-cultural issues and values like the 
editorial independence of the media or freedom of expression. The decisions of the HCC 
largely base their reasoning on economic aspects. 

18 

19 

20 

21 

Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
FEK A’ 138/2011. 
FEK A’ 278/1977. 
FEK A’ 178/2005. 

328 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  National  Telecommunications  and  Post  Commission  (NTPC)  is  an  independent 
administrative  authority  that  regulates,  supervises  and  monitors  the  electronic 
communications  and  postal  services  market  in  Greece.  The  NTPC  consists  of  nine 
members, including the President and two Vice Presidents responsible for the sectors of 
to  Law 
electronic  communications  and  postal  services  respectively.  According 
3371/200522,  the  President  and  the  Vice  Presidents  are  appointed  by  the  Council  of 
Ministers, upon proposal by the Minister of Transport and Communications following the 
opinion  of  the  Special  Permanent  Committee  on  Institutions  and  Transparency  of  the 
Parliament.  The  NTPC's  other  six  members  are  appointed  by  the  Minister  of  Transport 
and  Communications.  According  to  Article  12  of  Law  3431/200623 ,  the  NTPC  regulates 
issues  related  to:  the  definition  of  the  relevant  markets,  products  or  electronic 
communications  services;  and  the  assignment  and  obligations  of  operators  with 
significant  market  power  in  the  above-mentioned  markets  in  accordance  with  national 
and  EU  legislation.  NTPC  also  carries  out  spectrum  monitoring.  Moreover,  the  NTPC  is 
responsible  for  the  application  of  Law  703/1977  on  the  control  of  monopolies  and 
oligopolies  and  the  protection  of  free  competition.  This  law  was  amended  by  Law 
3373/2005  to  incorporate  the  EC  provision  on  pre-notification  of  mergers.  It  also 
incorporates  Articles  81  and  82  of  the  EC  Treaty  in  accordance  with  Council  Regulation 
1/2003, in relation to the activities of electronic communication undertakings.24 

The  NTPC  enjoys  financial  autonomy  and  consists  of  members  that  demonstrate  a  high 
degree  of  expertise.  It  is  therefore  regarded  as  an  effective  and  influential  regulatory 
body. However, similarly to the HCC, its decisions are based on the economic reasoning, 
neglecting socio-cultural aspects of the media and communication sectors.  

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

In general terms, audiovisual media content is subject to state regulation and owners of 
broadcasting licences should adhere to certain rules, whereas the print media content is 
largely self-regulated on the basis of a variety of codes of ethics (alongside requirements 
of general civil and criminal statutory law)25. The regulatory and self-regulatory forms of 
content  control  also  apply  to  the  electronic  versions  of  newspapers  and  magazines,  as 
well  as  the  online  radio  and  television  channels.  But  there  is  currently  regulatory 
uncertainty  regarding  the  extent  to  which  news  content  in  blogs  should  be  subject  to 
regulation.  The  disciplinary  councils  of  the  Union  of  Journalists  of  Daily  Newspapers  of 
Athens  and  of  the  Union  of  Journalists  of  Daily  Newspapers  of  Macedonia-Thrace 
investigates alleged breaches of the code mainly on the basis of specific complaints. 

In line with their constitutional recognition, the freedom of expression through the media 
and  the  right  to  information  are  generally  accepted  as  media  policy  principles.  Yet,  in 
practice, they have not been at the core of the formulation of media policy objectives and 
in regulatory implementation in Greece. References to the freedom of expression and the 
right  to  information  have  been  almost  absent  from  media  policy  documents  and  elite 
discourse. What does prevail,  instead, in Greek policy debates, is the declared intent to 
render  the  media  free  and  independent  from  the  multiple  political  and  economic 
pressures that have shaped it. In the name of democracy, successive governments have 

22 

23 

24 

25 

FEK A’ 178/2005. 
FEK A’ 885/2006. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
Iosifidis, 2011. 

329 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

since the early 1990s  – the time  when liberation of the broadcasting market occurred - 
repeatedly  expressed  their  commitment  to  combating  the  interweaving  of  interests 
between  the  political  and  powerful  media  interests.  Courts  both  at  the  national  and  the 
European  level  play  a  crucial  role  in  shaping  the  law  affecting  the  media  through 
statutory  interpretation.  Individuals  whose  respect  for  their  personality,  reputation, 
private/family  life,  etc.  has  been  violated  by  the  media  can  make  a  case  to  the  courts. 
The  Greek  Constitution  does  not  prioritise  in  abstracto  any  one  right  over  another. 
Instead,  competing  rights  claims  must  be  balanced  vis-à-vis  one  another  ad  hoc  and  in 
relation  to  the  context  of  each  case  at  hand.  Domestic  courts  have  emerged  as 
increasingly  important  norm  setters  in  areas  that  are  directly  linked  to  the  freedom  of 
expression  and  the  freedom  of  imparting  and  receiving  information  through  the  media. 
While  they  are  the  central  fore  where  conflicts  concerning  journalistic  freedom  are 
resolved,  nonetheless,  their  decisions  are  rarely  invoked  by  political  decision-makers 
when they formulate laws and policies.26 

The  European  Court  of  Human  Rights  (ECtHR)  constitutes  an  alternative  platform  for 
journalists  and  individuals  to  seek  correction  for  the  infringement  of  their  rights. 
Strasbourg  jurisprudence  has  challenged  domestic  courts’  case  law  on  a  number  of 
occasions. However, the ECtHR’s rulings have not contributed to broader domestic legal 
reforms as far as prevention of new violations of Article 10 of the European Convention 
on  Human  Rights  (ECHR)  on  freedom  of  expression  and  freedom  of  information  is 
concerned.  Similarly,  the  EU  Charter  of  Fundamental  Rights  and  in  particular  its 
provisions  on  the  freedom  of  expression  and  media  freedom  have  not  had  a  significant 
impact on domestic media policy.27 

- Specific positive content obligations 

Concerning the preservation and promotion of socio-cultural objectives, and as provided 
by the “Law of the Basic Shareholder”, the NCRTV may grant licences for commercial TV 
and radio stations only in cases where the commercial outlets serve the “public interest”. 
In this sense, the commercial stations are required to provide high-quality programmes, 
objective information and news reports, promote cultural development and diversity. 

- Funding schemes for specifically desired content 

No such funding schemes exist in Greece.  

- Political advertising and/or broadcasting time 

Greece  allows  political  advertising,  but  foresees  certain  legal  restrictions  to  avoid  the 
discriminatory  character  of  the  practice.  This  includes  limits  on  the  maximum  election 
expenditure  that  is  permitted  by  the  law.  Political  parties  in  Greece  are  usually  granted 
free  airtime  to  present  their  programmes,  normally  in  the  format  of  short  advertising 
spots.  As  far  as  the  criteria  and  principles  guiding  the  allocation  of  free  airtime  are 
concerned,  in  Greece,  allocation  of  free  airtime  is  made  on  the  basis  of  the  principle  of 
“analogic  equality”  that  is  in  analogy  with  their  performance  at  the  previous  elections 
also taking into account the need for all political parties to inform the public about their 
political programmes and ideas. In Greece, paid political advertising of political parties is 

26 

27 

Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 

330 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

permitted, but there is a permanent and wide-ranging ban on the political advertisement 
of persons28. 

As  far  as  the  rules  regarding  political  pluralism  are  concerned,  especially  during  pre­
election periods, these are also monitored by the NCRTV. According to these rules, media 
coverage  of  political  parties  is  determined  on  the  basis  of  their  parliamentary 
representation  (Arts  1(1)  and  3(22)  Law  2328/1995).  The  extent  to  which  these  rules 
promote  political  pluralism  though  is  questioned:  the  required  exposure  of  political 
parties  specifically  applies  to  their  coverage  in  the  news,  disregarding  other  forms  and 
channels of political information and communication in the media, while in a pre-election 
period,  it  is  based  on  the  agreement  reached  by  a  cross-party  committee.  Besides, 
reporting the percentage of news time allotted to each political party, which is contained 
in  the  political  diversity  reports  issued  by  the  NCRTV,  tells  us  little  about  how  inclusive 
and balanced is the airing of the different political views and positions that define public 
debate.  The  substantive  lines  of  disagreement  may  not  be  defined  by  political  party 
positions but by the stances of different kinds of political and social actors depending on 
the issue that is covered29. 

- Codes of conduct and their organisational framing 

Besides  the  press,  self-regulation  was  also  expected  to  be  an  important  means  for 
defining  and  respecting  a  set  of  principles  and  rights  in  news  and  other  programme 
content in the audiovisual media. As will be shown in detail below, comprehensive media 
legislation  that  was  introduced  in  the  1990s  provided  for  the  creation  of  self-regulatory 
codes  of  conduct  to  be  adopted  by  a  variety  of  stakeholders,  such  as  journalists, 
advertisers and commercial broadcasting. 

The  NCRTV  can  draft  codes  of  conduct  for  advertising  and  news  and  entertainment 
programmes  and  has  from  time  to  time  provided  politicians  with  recommendations, 
which have occasionally been taken into account. On the whole, however, its involvement 
in the formulation of normative rules has been marginal or non-existent. 

Nevertheless, the Code of ethics for journalists and audiovisual programmes was decreed 
by the NCRTV and published in 1990 as part of a collective contract signed by the Union 
of Journalists of Daily Newspapers of Athens (ESIEA) and the management of the Greek 
Public Broadcaster ERT. 

The  journalists  do  not  accept  any  advantage,  benefit  or  promise  of  benefit  offered  in 
exchange  for  the  restriction  of  the  independence  of  their  opinion  while  practicing  their 
function. 

The  Code  of  ethics  for  journalists  and  audiovisual  programmes  applies  to  public 
broadcasting - national and local - as well as to private radio and television stations and 
stipulates  further  that  broadcast  programmes  must  be  of  high  quality  and  promote  the 
national  culture;  news  and  factual  programmes  should  be  accurate  and  conform  to 
reality;  the  Constitution,  laws  and  institutions  of  the  country  must  be  respected;  the 
writing  in  the  programmes  and  their  presentation  must  carefully  conform  to  the 
grammatical  rules  of  the  Greek  language;  during  the  programmes,  the  rule  for  both 

28 
29 

See http://www.rtdh.eu/pdf/20060517_epra_meeting.pdf. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 

331 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

presenters  and  guests  is  to  be  well-mannered,  especially  when  the  programmes  are 
meant for, or could be watched by, under-age children30. 

In  addition  to  the  above  code,  a  Code  of  conduct  for  news  and  other  political 
programmes  for  journalists  working  for  broadcast  media  was  ratified  by  Presidential 
Decree 77/200331 of March 2003. This code of conduct was drawn up in accordance with 
the procedure set out in Article 3(15) of Law 2328/1995. 

It  applies  to  all  radio  and  television  broadcasts,  both  free-to-air  and  subscription 
services,  and  aims  at  the  protection  of  individuals'  rights  and  respect  for  public  order, 
pluralism  and  democracy,  within  the  framework  of  the  Greek  constitution.  The  code  of 
conduct regulates specific issues relating to the presentation of news bulletins, reporting 
on legal proceedings, the protection of the presumption of innocence of the accused, as 
well as the protection of minors, especially when children or adolescents are involved in 
criminal acts or accidents. Special concern is demonstrated for the protection of private 
life  and  of  the  rights  of  individuals  who  participate  in  radio  and  television  programmes 
and  talk  shows.  According  to  the  new  rules  of  conduct  for  news  reports  and  political 
programmes, the broadcasting of information acquired through illegal telephone bugging, 
secret  microphones  or  cameras  is  forbidden.  It  is  also  explicitly  stipulated  that  the 
broadcasting  media  are  bound  to  respect  and  not  to  transmit  aggravating  comments 
regarding the refusal of an individual to participate in a news programme.32 

News  should  be  presented  with  due  accuracy  and  impartiality.  Events  must  not  be 
confused  with  personal  views  expressed  by  journalists  during  a  news  or  political 
programme. The broadcasting of breaking news must be restricted  and take place after 
careful  consideration.  Special  attention  is  given  to  the  presentation  of  violence  and  the 
reporting of crimes, criminal techniques and terrorist acts. Such reporting must in no way 
encourage imitation. Also, it is explicitly laid down that reporters' investigations must not 
be a substitute for police inquiries and interrogations. During the coverage of protests or 
party  political  events  it  is  forbidden  to  use  methods  that  encourage  misleading  the 
audience.33 

The  promotion  of  the  professional  interests  of  journalists  employed  in  newspapers  and 
the  electronic  media  is  ensured  through  the  establishment  of  four  regionally  organised 
unions,  of  which  two  are  the  most  prominent:  the  Union  of  Journalists  of  Daily 
Newspapers  of  Athens  (ESIEA)  and  the  Union  of  Journalists  of  Daily  Newspapers  of 
Macedonia-Thrace  (ESIEMTH).  The  Periodical  and  Electronic  Press  Union  (ESPIT) 
represents journalists who work for magazines and the online media. Grouped under the 
Pan-Hellenic  Federation  of  Journalists’  Unions  (POESY),  the  unions’  principal  aim  is  to 
negotiate  labour  contracts,  wages,  employment  conditions  and  social  security  benefits 
with the state and the employers. The unions are also tasked with supervising journalists’ 
ethical  performance,  self-regulating  journalists’  professional  behaviour,  and  protecting 
the  principles  of  journalistic  autonomy  and  editorial  independence.  Relevant  here  is  the 
Code  of  Conduct  of  Greek  Journalists,  decreed  by  the  NCRTV  and  published  in  1990  as 
part  of  a  collective  contract  signed  by  the  ESIEA  and  the  management  of  the  Greek 

30 

31 

32 

33 

See International Journalists’ Network.
 
FEK A’ 75/2003.
 
Kostopoulou, M. (2003) Decree No. 77/2003 “Code of conduct for news and other political programmes”, 

Official  Journal  A,  28  March  2003,  published  in  IRIS  legal  observations  of  the  European  audiovisual 
observatory, IRIS 2003-7:10/20. Available at: http://merlin.obs.coe.int/iris/2003/7/article20.en.html. 
Kostopoulou, M. (2003) Decree No. 77/2003 “Code of conduct for news and other political programmes”, 
Official  Journal  A,  28  March  2003,  published  in  IRIS  legal  observations  of  the  European  audiovisual 
observatory, IRIS 2003-7:10/20. Available at: http://merlin.obs.coe.int/iris/2003/7/article20.en.html. 

332 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Public  Broadcaster  ERT.  The  rules  in  the  code  apply  both  to  public  and  private 
broadcasting channels34. 

The disciplinary councils of the aforementioned unions investigate alleged breaches of the 
code ex officio, and have the power to impose penalties (i.e. reprimands, suspension of 
membership  or  expulsion)  on  journalists  found  guilty  of  breaches,  such  as  defamation, 
distortion of facts or anti-collegial behaviour. It should be noted that it is not mandatory 
for  a  journalist  to  be  a  member  of  a  professional  union,  while  there  are  a  number  of 
requirements  that  must  be  fulfilled  before  qualifying  for  entry,  such  as  a  minimum  of  
three  years  of  employment  as  a  journalist.  As  the  code  and  the  imposition  of  penalties 
apply only to members, self-regulation through the code is limited.35 

On another issue, the tasks of the journalists are not always clear, despite the drafting of 
the code of ethics. For example, in Greece it is incompatible for journalists to hold more 
than one post, especially  if the second post is not related to the function of journalism. 
Specifically,  it  is  not  allowed  for  journalists  to  be  holders  of  a  stake  in  a  media  and/or 
advertising company, or participate in public relations companies, or relate with political 
offices. However, in practice some journalists do. The Journalists Union (ESIEA) is aware 
of the problem, but has only recently started drafting principles for journalists addressing 
it.  ESIEA  has  initiated  negotiations  with  the  relevant  Minister.  If  and  when  these 
principles are enforced they will complement the code of ethics. 

In  the  midst  of  an  economic  crisis  in  2011-2012  Greek  journalists  working  in  public 
broadcaster  ERT  AE  went  on  a  prolonged  strike  as  many  of  them  faced  short-term  
contracts,  low  salaries,  and  even  redundancies  as  there  was  wide  speculation  that  ET1 
would close down. In addition, many journalists working in private media felt their  jobs 
insecure  and  in  fact  some  were  made  redundant  following  the  closure  of  commercial 
television  channel  ALTER  in  early  2012.  There  have  been  reported  arrests  of  leaders  of 
the  Greek  journalists’  trade  unions,  apparently  carried  out  in  direct  response  to  trade 
union actions. It should be noted though that Greece has ratified the International Labour 
Organisation (ILO) Convention of 1987 and has committed itself to respect the principles 
of freedom of association. 

- The role and functioning of regulatory authorities in these respects 

The  development  of  the  aforementioned  self  or  co-regulatory  mechanisms  –  code  of 
ethics  of  Greek  journalists;  code  of  conduct  for  news  and  other  political  programmes  ­
has  provided  a  valuable  alternative  to  governmental  regulation.  Of  course,  one  could 
argue that, as the above codes have been elaborated by the regulatory agency NCRTV, 
they  cannot  be  considered  as  purely  self-regulatory  mechanisms.  Instead,  they  can  be 
considered as cooperative regulatory measures in the meaning of a combination of non-
state  regulation  and  state  regulation  in  such  a  way  that  a  non-state  regulatory  system 
links up with state regulation (‘co-regulation’). 

The Hellenic Data Protection Authority (HDPA), governed by a seven-member plenary, is 
the  independent  administrative  body  which  oversees  the  implementation  of  regulations 
referring  to  the  protection  of  personal  data  against  processing  and  the  privacy  of 

34 

35 

The provisions of the Code of ethics for journalists and audiovisual programs in terms of journalists are to 
be found in http://www.esiea.gr. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 

333 


 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
                                                 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

individuals36. The HDPA is primarily tasked with the granting of permits for the collection 
and  processing  of  public  figures’  sensitive  data  for  journalistic  purposes.  However,  the 
authority  openly  refrains  from  granting  such  permits,  as  it  considers  their  provision  a 
repressive  measure  against  the  press,  which  is  prohibited  by  the  Constitution37.  The 
HDPA  is  also  responsible  for  examining  complaints  and  issuing  decisions  on  alleged 
breaches  of  data  protection  legislation.  In examining  such  cases, the  authority seeks  to 
balance the freedom of expression and the service to the public’s interest in information 
with an individual’s right to privacy.38 

  Distribution Aspects 

- Access to frequencies 

Law 2863/2000 provided that the regulatory agency NCRTV has the sole responsibility for 
granting,  renewing  or  revoking  licenses  for  terrestrial  transmission  of  broadcasting 
services. 

- Access to distribution networks and control of actual conditions 

The access to the distribution networks of cable and satellite is not regulated by law. It is 
a  matter  of  private  legal  agreements  between  the  operator  of  the  network  and  the 
broadcaster.  In  the  majority  of  such  agreements  the  network  operator  pays  to  the 
broadcaster  for  the  right  to  distribute  his  programmes.  The  circulation  instruments  for 
print media are not regulated by law. 

- Must-carry/must-offer rules for electronic media 

No such rules exist in Greece. 

- Role of platform operators 

ERT  is  active  as  a  network  operator  and  according  to  Law  3592/2007,  commercial 
analogue  TV  broadcasters  are  encouraged  to  collaborate  with  ERT  in  forming  a  single 
multiplex  operator  company  that  will  act  as  the  network  operator  for  the  whole  Greek 
Digital Terrestrial Platform. Typically, the venture was politicised. One of the main points 
of contention for opposition parties for this new ERT’s digital subsidiary was that in this 
way  ERT  Digital  would  be  a  mixed  public-private  company,  with  the  state  retaining  a 
51%  stake.  The  Opposition  parties  charged  that  this  signalled  the  gradual  beginning  of 
the  end  of  the  public  nature  of  the  public  broadcaster  since  private  investors  would 
participate in its capital. 

The private terrestrial broadcasters in Greece accuse the government of giving the ‘green 
light’  to  the  public  broadcaster  to  enter  the  digital  terrestrial  landscape  and  allege  that 
they are left only with promises. In effect, the first Law that deals with the issue of digital 
TV  (independently  of  platform  such  as  satellite,  cable,  terrestrial  or  IPTV)  is  Law 
3592/2007  which  makes  a  clear  distinction  between  platform,  or  multiplex  (network) 
operator  and  content  provider.  The  platform  or  multiplex  operator  is  under  a  general 

36 

37 

38 

Law  2472/1997,  transposing  Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24 
October  1995  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  and  on  the 
free movement of such data, OJ L 281, 23/11/1995, p. 31; see also Law 3471/2006. 
see Art. 14(2) of the Greek Constitution and HDPA decisions no 26/2007, para. 11, no. 17/2, para. 18 and 
no. 63/2010, para. 6. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 

334 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

license  regime,  provided  that  the  undertaking/company  is  registered  by  the  National 
Telecommunications  and  Post  Commission.  The  Ministry  of  Transport  and 
Communications and the Ministry of Press and the Media (renamed Secretariat General of 
Mass Media) are responsible for establishing the digital frequencies map and plan for the 
relevant  assignments  and  allotments.  The  Law  makes  it  possible  for  licensed  television 
stations to digitally transmit their analogue TV programme using frequencies that are to 
be allocated for the period up until the digital switchover. 

- The role and functioning of regulatory authorities in these respects 

Law  3592/2007  deals  with  the  issue  of  digital  TV  frequencies  allocated  to  multiplex 
(network)  operators.  According  to  the  Law,  the  responsibilities  for  the  Ministry  of 
Transport  and  Communications  and  the  Secretariat  General  of  Mass  Media  are  to 
establish the regulatory framework for the licensing procedure; create the frequency map 
and establish the technical requirements; and grant the licenses. The two bodies have up 
to  this  point  created  a  provisional  frequency  map  where  the  whole  country  is  being 
divided into 14 broader service areas. 

The  granting  of  terrestrial  broadcasting  licenses  is  based  on  a  tender  initiated  by  the 
NCRTV.  Candidates  are  classified  based  on  the  following  criteria:  duration  of  service; 
economic  viability;  number  of  employees;  programming;  negative  marking;  and 
merging.  Following  the  adoption  of  Law  3431/2006,  the  authority  is  responsible  for  the 
provision  of  general  authorisations  to  operators  providing  electronic  communication 
networks  and/or  services.  The  NCRTV  can  collaborate  with  NTPC  on  technical  matters 
(allocation  of  electromagnetic  spectrum,  digital  dividend,  etc.)  but  such  collaboration  is 
rare. 

Law  3592/2007  does  not  provide  for  a  special  authority  (organisation  or  body)  with 
competence  to  settle  issues  relating  to  the  switchover  process,  nor  does  it  propose  a 
timetable for this process. However, it is widely believed that Greece will be ready for the 
switchover  within  2012-15.  This  delay  is  mainly  due  to  the  indecision  of  the  private 
broadcasters  especially  within  the  current  financial  crisis.  These  private  consortia  have 
adapted  a  ‘wait-and-see’  policy  in  case  they  can  be  supported  by  the  government  at  a 
later stage. 

However,  according  to  the  same  Law,  commercial  analogue  TV  broadcasters  are 
encouraged to collaborate with ERT in forming a single multiplex operator company that 
will  act  as  the  network  operator  for  the  whole  Greek  Digital  Terrestrial  Platform. 
Moreover,  the  Law  provides  that  15%  of  the  taxes  earmarked  for  ERT  go  to  the  new 
public-private  digital  company,  dubbed  ERT  Digital  and  allows  the  ERT  board  to provide 
material resources to the new company. 

  Access to Information 

- Transparency of media ownership situations 

Article 14 (9) of the Greek Constitution affirms the importance of ensuring transparency 
and pluralism in information across the media and in the workings of the media industry. 
The  imposition  of  transparency  requirements  (for  example  with  regard  to  media 
ownership  or  the  media’s  types  of  funding)  is  not  linked  to  media  education,  thereby 
undermining the ability of consumer-citizens to make informed choices about the media 
services they choose and consume. 

335 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

In  the  past  few  years,  there  have  been  adopted  a  number  of  measures  to  increase 
transparency in the operation of the media. The Secretariat General of Mass Media keeps 
record  of  the  allocation  of  state  subsidies  and  other  support  tools  aiming  at  the  media, 
including the amount of public sector advertising that is channelled to specific outlets and 
the  amount  of  total  press  distribution  and  telecommunications  subsidies,  which  are 
published  on  its  website.  Such  information,  however,  is  neither  always  presented  in  a 
comprehensive  manner  nor  is  it  regularly  updated.39  Concerning  the  electronic  media, 
the  NCRTV  publishes  on  its  website40  all  licensed  radio  and  TV  outlets,  mentioning  the 
company  name,  contact  details  and  the  scope  of  the  outlet’s  territorial  coverage 
(national, regional/local). The regulatory agency is also charged with keeping record and 
shareholder  information  of  media  and  media-related  enterprises  (including  press 
undertakings, advertising and media research companies)41. 

While this information is accessible to the public through the authority’s website, there is 
no data on the degree to which people are actually aware of it or the percentage of the 
population actually accessing it.42 Art. 6 of PD 109/201043 also contains rules that cater 
for  increased  transparency  in  the  audiovisual  media  sector  by  mandating  audiovisual 
media  service  providers  to  make  their  company  name,  address  and  contact  details 
available through their website or teletext service. Press undertakings are required to list 
the  name(s)  of  their  owner  (natural  or  legal  person),  publisher  and  manager  in  their 
edition44. 

- Accountability of public service media 

As  aforementioned  Law  1730/1987  defines  the  mission  of  the  Greek  public  broadcaster 
which  is  to  inform,  educate  and  entertain  the  Greek  nation.  ERT’s  broadcasts  must  be 
governed  by  the  principles  of  objectivity,  polyphony,  good  quality  of  broadcasts, 
preservation  of  quality  of  the  Greek  language,  promotion  and  dissemination  of  Greek 
culture and traditions. Furthermore, ERT must ensure radio and television coverage and 
reporting of the activities of the Parliament, of the pre-election campaigns by the political 
parties,  of  issues  related  to  local  government,  and  of  the  activities  of  other  organisms 
involved in the cultural, social and economic development of the country. The information 
is handed over to parliament on a yearly basis. 

- Freedom of information laws 

As aforementioned the Greek Constitution guarantees the right to information. The right 
for citizens to obtain information from state/municipal institutions is a generally accepted 
media policy principle, but without any ordinary law fundaments provided for it yet. 

- Accessibility of products/services and distribution networks 

The  Greek  print  media  have  been  supported  by  indirect  subsidies,  such  as  distribution 
subsidies,  reduced  value  added  tax,  and  preferential  rates  for  telecommunication 
services. 

39 

40 
41 

42 

43 

44 

Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
http://www.esr.gr. 
See  Art.  10a  Presidential  decree  (PD)  213/1995  (FEK  Α’  112/1995)  and  Art.  10  Law  3310/2005  (FEK  A’ 
30/2005) as amended by Law 3414/2005 (FEK A’ 279/2005. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
Presidential decree 109/2010 transposed the AVMS Directive. 
See Art. 3 Law 1178/81, FEK A’ 187/1981. 

336 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  public  broadcaster  ERT  is  obliged  to  provide  media  services  for  all  Greek  citizens 
(universal  coverage).  Analogue  broadcasting  in  Greece  will  probably  be  switched-off 
sometime  between  2012-2015.  The  owners  of  digital  networks  (multiplexes)  are 
technically  ready  for  the  digital  switchover  and  are  already  broadcasting  some  of  the 
programmes  digitally.  However,  not  all  households  are  equipped  with  television  sets  or 
decoders capable of receiving digital services. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Relevant to the consumer policy and protection is the Consumer Ombudsman, which was 
established with Law 3297/200445 and represents an independent agency of extrajudicial 
dispute  resolution  in  the  area  of  consumer  disputes.  This  agency  is  supervised  by  the 
Minister of Development. 

Between  the  poles  of  state  regulation  and  self-regulation,  a  rare  instance  of  co­
regulation,  is  that  of  the  ethics  committees,  which  national  broadcasting  media  (both 
public  and  private)  in  Greece  are  required  to  establish.  Within  the  existing  legal 
framework, in order to be licensed, radio and television channels must create and enter 
into  multi-party  self-regulatory  agreements  that  define  and  adopt  rules  of  conduct  and 
ethics standards concerning media content (Art. 8(1)-(2) Law 2863/2000). The parties to 
such  self-regulatory  agreements  are  also  required  to  establish  ethics  committees 
(Epitropes  Deontologhias)  responsible  for  overseeing  the  implementation  of  the 
respective  content-related  rules  and  principles,  which  must  in  turn  communicate  their 
decisions  to  the  NCRTV  (Art.  8(3)-(4)  Law  2863/2000).  In  practice,  however,  and 
similarly to the fate of self-regulation, this co-regulatory measure has largely remained a 
dead  letter.  To  the  extent  that  they  have  actually  been  established,  these  committees 
have  been  inactive,  not  having  imposed  any  sanctions  as  provided  for  by  the  relevant 
law.46 

- Participation in media operators/(self-)regulatory bodies 

The  representative  supervisory  Assembly  of  Viewers  and  Listeners  (ASKE)  is  a 
consultative body which exercises control over programmes and advertisements. 

2.2.11.2.  Main Players in the Media Landscape 

2.2.11.2.1. 

Radio 

Radio is an important means of information (news) and entertainment (notably music) in 
Greece.  ERT  S.A.  owns  five  NATIONAL  radio  broadcasting  stations (Second  Programme, 
ERA-3, NET Radio, ERA Sport, KOSMOS) and an international sixth programme (ERA-5), 
which  transmit  via  AM  to  Mediterranean  countries,  Baltic  and  Black  Sea  countries, 
western  Europe,  Africa  and  nearby  Asian  countries.  However,  these  stations  attract 
negligible market shares and do not feature in the Table One below. The first non-pirate 
private radio station was ATHENA 9.84 FM, which went on air in 1987 broadcast by the 
Municipality of Athens. Nowadays the station is still on air and owned by Municipality of 
Athens with journalist G. Politis as director, but does not feature in the table below as it 
has  a  mere  0.4%  listenership  share.  Currently,  around  1,058  radio  stations  broadcast 

45 

46 

FEK A’ 259/2004. 
Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP).  

337 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
                                                 
 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

regularly in Greece (among them 56 in Attica prefecture), the vast majority of which are 
private  and  transmit  locally  or  regionally.  Most  private  stations  (928)  are  not  officially 
licensed but are considered eligible to be awarded a licence. 

Multicultural  radio  is  also  developing  fast  as  a  response  to  the  cultural  diversity  that 
currently  characterises  Greek  society  after  an  influx  of  immigrants  and  the  EU  EQUAL 
programme.  There  is  a  range  of  multicultural  radio  stations,  such  as  Athens  & 
Thessaloniki  Community  Radio,  Radio  Filia,  which  broadcast  via  a  local  frequency  or 
online. Also, some radio stations such as ATHENA 9.84 and SKAI adopt their programmes 
for multicultural publics. Around 40.6 percent of immigrants to Greece listen to the radio 
on 
at: 
basis 
http://www.ejc.net/media_landscape/article/greece). 

Landscape: 

Greece’, 

‘Media 

daily 

(see 

a 

Table 64 below shows the listenership shares of the top fifteen (licensed) radio stations in 
the  Attica  region  in  the  last  3-month  period  of  2011  and  the  first  3-month  period  of 
2012.  It  can  be  seen  that  SKAI  (owned  by  Alafouzos  Publishing  Company)  and  REAL 
(owned by entrepreneur Andreas Kouris – who also owns music radio station LOVE along 
with various  publishing  outlets)  are  the top news  stations  in  terms of  listenership  share 
and  typically  set  the  political  agenda.  The  majority  of  the  rest  of  the  radios  with  a 
significant share, such as RYTHMOS, KISS and MELODIA have mainly a music format. In 
recent years, there has been an increase in sport radio programmes with NOVA SPOR in 
the lead with 4.4% of the market. 

Table 64 GR: Market shares of the top 12 licensed radio stations in the Attica 
region (2011-2012) 

RANK 
(2011) 

RADIO 
STATIONS 

PARENT COMPANY  DIRECTOR OF 

STATION 

AE 

Alafouzos 

MARKET 
SHARES 
(%, 2011) 
7.6 

MARKET 
SHARES 
(%, 2012) 
5.9 

1 

2 
3 

4 

5 
6 
7 
8 
9 

10 
11 

12 

13 

14 
15 

SKAI 100.3 

REAL 97.8 
NOVASPOR 
94.6 
DIESI 101.3 

RYTHMOS 94.9 
KISS 92.9 
MELODIA 99.2 
BEST 92.6 
ATHENS 
95.2 
GALAXY 92.0 
EN LEFKO 87.7 

DJ 

Emporiki 
(Alafouzos 
Publishing) 
Real Media SA 
NOVASPOR FM 

Radio 
Communication  
Sound & Rythm AE 
Kiss Operations AE 
Melodia AE 
Three D AE 
International Radio 

Aktina  
Frontstage AE 

LOVE 97.5 

LAMPSI 92.3 

Love 
Broadcasting AE 
Lampsi AE 

Radio 

RED 96.3 
PEPPER 96.6 

Airlink AE 
Captain Hijack AE 

Kouris 
Christoglou 

G. Psaltis 

G. Mitrou 
P. Kostakis 
O. Ioannou 
Lymperis 
D. Tsakaliotis 

S. Georgakis 
Daskalopoulou, 
P. Oikonomou 
A. Kouris 

M. 
Tsaousopoulos 
Spanolios 
K. Sfaelos 

4.6 
4.4 

3.9 

3.9 
3.8 
3.5 
3.5 
3.3 

3.3 
3.1 

3.0 

2.9 

2.9 
2.3 

9.8 
4.4 

4.6 

3.6 
3.5 
5.1 
3.1 
2.9 

3.2 
2.8 

2.9 

2.6 

2.9 
2.5 

Source:  FOCUS  BARI,  radio  listenership  share  in  the  Attica  region  in  the  periods 
26/09/2011 – 18/12/2011 and 02/01/2012 – 25-02-2012 

338 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.11.2.2. 

Television 

Television  broadcasting  in  Greece  was  introduced  in  1966,  with  the  first  network,  ERT 
broadcasting out of the capital Athens, as a state-owned monopoly. However, throughout 
the  1980s,  as  the  country  began  to  reform  and  modernize  at  an  unprecedented  pace, 
audiences  demanded  a  wider  choice  of  viewing  options,  following  the  example  of  other 
European  countries  which  had  already  allowed  private  television.  Also,  as  a  member  of 
the European Union, Greece had to adapt to TV market liberalization policies pursued by 
the  European  Commission.  But  similarities  with  other  European  TV  markets  stop  there, 
for  the  development  of  the  Greek  TV  sector  is  distinctly  different  from  that  of  most  EU 
member states. In more particular: 

Public television took its first steps during a military junta (which ruled Greece in 1967­
1974), in an environment hostile to the development of objective TV broadcasts. 

The direct dependence of public television on political authority continued even after the 
restoration of democracy and undermined the validity and reliability of ERT. The problem 
was  intensified  by  frequent  changes  in  ERT’s  management.  This  was  not  conducive  to 
long-term planning and action-taking. 

The  process  of  liberalization  at  the  end  of  the  1980s  was  conducted  without  any  prior 
economic analysis of the consequences on existing companies. ERT was the main victim 
of this de-facto liberalization as it lost a significant part of its advertising income almost 
overnight  and  today  has  in  fact  the  lowest  audience  share  of  all  European  public  TV 
broadcasters. 

The  first  attempt  to  regulate  the  TV  sector  occurred  in  the  mid-1990s,  but  even  at  the 
time of writing private TV channels are operating under a quasi legal state as they only 
have provisional licenses. 

The  penetration  of  cable  and  satellite  services  is  negligible,  mainly  because  of  the  wide 
availability of free-to-air national channels. 

television  became 

the  dominant  medium  of 

The  restoration  of  democracy  in  1974  brought  new  impetus  to  the  Greek  media 
landscape  and 
information  and 
entertainment,  penetrating  citizens’  everyday  life.  The  TV  sector  is  characterized  by 
cataclysmic  changes  which  have  continued  with  undiminished  intensity  since  the  end  of 
the  1980s,  when  the  first  private  television  stations  MEGA  (owned  by  Tylepypos,  a 
consortium of major newspaper publishing interests) and ANT1 (owned by ANT1 TV S.A. 
with  interests  also  in  radio,  publishing  and  recording)  went  on  air.  Alongside  these 
pioneer  private  services  and  the  three  public  channels  ET1,  NET  and  ET3,  there  is  a 
multitude of national terrestrial private channels, funded mainly by advertising, the most 
important of which are ALPHA, STAR and SKY (commercial channel ALTER closed down in 
early 2012). 

Private TV grew and expanded rapidly, but it strives to adjust to a pluralistic profile in a 
highly politicized and commercialized environment, driven by an increasing populism. In 
1994  Multichoice  Hellas  (owned  by  multinational  NetMed  BV)  started  offering  analogue 
subscription TV services and in 1999 introduced the digital service NOVA, now occupying 
a monopoly status in the digital satellite pay-TV market after the collapse of rival digital 
satellite  platform  Alpha  Digital  Synthesis  (ADS).  NOVA  has  acquired  the  rights  to 
broadcast latest blockbusters as well as live football matches from the Greek League and 
European  Champions  League  (now  it  shares  these  rights  with  free-to-air  terrestrial  TV 
broadcasters). As in many other European countries public broadcaster ERT has acted as 

339 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
Policy Department C: Citizens' Rights and Constitutional Affairs 

a  pioneer  introducing  Digital  Terrestrial  Television  (DTT)  exclusive  TV  services  to  the 
Greek  public.  The  digital  channels  are  being  broadcast  free-to-air  and  are  funded 
exclusively  from  ERT’s  budget  as  they  carry  no  advertisements.  ERT’s  digital  terrestrial 
offerings are only available in the big cities of Athens, Thessaloniki and a handful of other 
major cities. ERT also plans to launch a second multiplex which will broadcast the current 
analogue  channels  (ET1,  NET  and  ET3)  and  the  Parliament  Channel.  Meanwhile  it  is 
planning to launch an interactive information service for citizens called info+.47 

While satellite TV has found a niche in the Greek audiovisual market, cable TV is virtually 
non-existent. Likewise, IPTV (Internet Protocol Television) is largely unknown to Greeks. 
On  the  contrary,  Digital  terrestrial  Television  (DTT)  seems  to  be  taking  off,  boosted  by 
the  Greek  government’s  decision  to  switch-off  the  analogue  terrestrial  frequency  during 
2012-2015, responding to the European Commission’s intention to harmonize switch-off 
dates. As it is the case in most other European countries, the government has introduced 
a  new  law  which  intends  to  achieve  the  migration  from  analogue  to  DTT  through  the 
public  broadcaster  in  collaboration  with  commercial  analogue  TV  broadcasters.  ERT  has 
responded  by  setting  up  a  subsidiary  ERT  Digital  and  therefore  acting  as  a  pioneer  in 
introducing  DTT  services.  More  specifically,  since  2006  the  public  broadcaster  has 
launched three digital terrestrial channels which are available in big cities – Prisma Plus, 
Cine  Plus  and  Sport  Plus.  The  reception  of  the  signal  is  free-to-view  and  the  plan  is  to 
extend  the  coverage  nation-wide,  the  programmes  are  advertising-free  and  they  are 
different from those of the main channels ET1, NET and ET3, thereby making them more 
innovative and attractive. But their audience share is negligible. 

Greeks are avid viewers. It is striking that in the multi-channel, Internet era television is 
still  considered  the  most  important  medium  for  news  (78%  of  Greeks  turn  to  TV  for  
news), followed by the press, the Internet and radio. In 2010-2011 the average daily TV 
viewing totalled 265 minutes, well above the European average. This could be attributed 
to the wide availability of popular national TV series, US blockbuster movies and sporting 
events,  in  particular  football,  which  has  become  available  on  free-to-air  television, 
whereas  previously  was  confined  to  satellite  pay-TV  operator  NOVA.  All  of  the  most 
popular  programmes  are  available  on  terrestrial  analogue  television,  which  is  the 
dominant  transmission  form.  There  is  low  satellite  pay-TV  penetration  and  negligible 
Digital  Terrestrial  Television  (DTT)  shares  (see  Table  65).  This,  however,  may  offer  a 
substantial  growth  opportunity  for  broadband  Internet  Service  Providers  (ISPs)  as  the 
broadband Internet access market matures. 

Table 65 GR: TV shares in Greece, by transmission medium (2011) 

Analogue Terrestrial Television 

Pay TV (satellite)* 

Digital Terrestrial Television 

86% 

10% 

4% 

Source: Author’s analysis based on company reports 

* Cable TV and IPTV (broadband TV) are virtually non-existent 

Table  66  gives  us  a  snapshot  of  the  trends  in  audience  shares  in  the  years  2010-2011, 
indicating that the three channels of public broadcaster ERT combined had in 2011 one of 
the  lowest  audience  shares  among  their  European  counterparts.  NET,  a  purely  news 
channel is the most popular public channel with a share of 7.7%, followed by ET3 (mostly 
addressed  to  citizens  of  Northern  Greece)  at  3.4%  and  general  interest  channel  ET1  at 

47 

Papathanassopoulos, S. and K. Papavasilopoulos (2009) ‘The Status of Digital Television in Greece’ in W. 
Van den Broeck and J. Pierson (eds.) Digital Television in Europe (Brussels: VUBpress), pp. 91-100. 

340 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
                                                 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.5%. There are six commercial channels, of which the two leading ones are MEGA and 
ANT1  with  shares  as  high  as  19.8%  and  16.7%  respectively.  The  audience  shares  of 
these two leading commercial channels decline steadily over the years due to the fierce 
competition  from  other  private  operators,  like  ALPHA,  STAR,  SKY  and  ALTER  (which 
however closed down in February 2012). There is also speculation that ET1 will be closed 
down as part of the Greek government’s austerity plan to cut down public expenses. 

Table 66 GR: Annual % audience shares of the main Greek TV channels (2010­
2011) 

Year 

ET1  NET 

ET3 

ANT1  MEGA  ALPHA  STAR  ALTER  SKAI  OTHER 

2010 

3.0 

9.5 

3.6 

15.1 

20.2 

12.2 

9.7 

10.9 

2011 

2.5 

7.7 

3.4 

16.7 

19.8 

12.9 

10.3 

8.9 

Source: AGB Nielsen Media Research, Annual Reports 2010, 2011 

4.0 

4.9 

11.8 

12.9 

Table  67  shows  that  MEGA  and  ANT1  are  also  leaders  in  terms  of  advertising 
expenditure, for the first half of 2011 they attract 31.6% and 27.3% respectively of the 
total  advertising  expenditure  in  Greece,  followed  by  ALPHA  at  17.4%,  STAR  at  15.6% 
and  ALTER  at  5.9%.  State  channels  NET  and  ET1  combined  got  only  2%  advertising 
share  in  the  first  half  of  2011,  down  from  4.6%  in  2010  (ET3’s  advertising  share  is 
negligible).  It  can  be  seen  that  the  two  leading  channels  MEGA  and  ANT1  have  in  fact 
increased  their  advertising  share  in  recent  years  (2008-2011),  whereas  in  the  same 
period the share of most of the other private channels has either decreased or remained 
unchanged. 

Table 67 GR: Allocation of TV advertising expenditure (%, 2008-2011) 

2011 
(Jan-MAY) 
31.6 

27.3 

15.6 

17.4 

5.9 

2.0 

CHANNEL 

OWNERS 

2008 

2009 

2010 

MEGA 

ANT1 

STAR 

ALPHA 

ALTER 

NET/ET1 

Press 

Kiriakou 

Teletypos SA 
M. 
Group 
Vardinoyiannis 
family; 
Institution SA 
E. Tsotsoros 
Kouris, 
Pavlopoulou, 
Koutra 
Public  Service 
Broadcaster 

Source: Media Services 

31.3 

19.4 

16.8 

15.5 

10.8 

31.4 

21.5 

17.2 

14.3 

11.4 

29.8 

25.5 

14.1 

15.4 

10.3 

6.0 

3.9 

4.6 

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2.2.11.2.3.  Press and Publishing 

The  newspaper  press  is  an  industry  in  decline  as  Greek  national  newspaper  circulation 
has been falling steadily in the past decades. Similarly to the trends observed in most of 
the  other  European  countries,  the  role  of  newspapers  as  the  main  purveyor  of 
information and entertainment in Greece was usurped first by television and later by the 
internet,  digital  media  and  online  social  networks.  However,  many  publishers  have 
expanded  into  broadcasting  following  the  deregulation  of  the  market,  thereby  raising 
levels of media market concentration and especially cross-media ownership. In addition, 
almost all newspapers have launched online versions, though the online revenues cannot 
compensate for off line revenues. 

Saturday  and/or  Sunday  newspapers  dominate  circulation  with  the  offering  of  free 
magazines and gifts like CDs, films and books. This is followed by evening newspapers, 
whereas morning papers come third in circulation terms. In 2011 there were 13 evening 
newspapers  selling  about  45  million  copies,  21  Sunday  newspapers  selling  about  37 
million  copies, 6 morning newspapers selling about 15 million copies, and just 1 financial 
newspaper  (CHRIMATISTIRIO)  with  a  total  circulation  of  226,765.  There  were  also  14 
Monday sports newspapers selling 23 million copies and 12 Sunday sports papers selling 
just above 700,000 copies.  

Table 68 below shows the numbers of copies sold and the shares of the morning papers 
(including  their  Sunday  publications).  It  can  be  seen  that  the  market  is  dominated  by 
KATHIMERINI,  a  conservative  newspaper  owned  by  the  Alafouzos  family,  with  serious 
economic  and  political  analysis.  A  distant  second  is  left-wing  newspaper  RIZOSPASTIS, 
followed by four other publications with small shares. Most of the newspapers are sold in 
the Attica region, covering Athens and Piraeus.   

Table 68 GR: Morning Newspapers 2011 (Sunday publications included)  

NEWSPAPERS 

OWNERS 

ATHENS/ 
PIRAEUS 

OTHER REGIONS 

TOTAL 

SHARE 
% 

KATHIMERINI 

RIZOSPASTIS 

Alafouzos 
family 

Greek 
Communist 
Party 

6,938,120 

4,873,844 

11,811,964 

79.73 

1,153,437 

1,205,785 

2,359,222 

15.93 

AVGI 

NIKI 

LOGOS 

AKROPOLIS 

307,484 

179,089 

486,573 

3.28 

72,583 

19,348 

91,931 

0.62 

39,498 

14,921 

4,326 

1,072 

43,824 

0.3 

15,993 

0.14 

TOTAL 

8,526,043 

6,283,464 

14,809,507 

100.00 

Source: 
Athens 
(http://www.eihea.gr/default_en.htm) 

Daily 

Newspaper 

Publishers 

Association 

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Table  69  shows  the  numbers  of  copies  sold  and  the  shares  of  the  evening  papers 
(excluding  their  Sunday  publications).  It  is  obvious  that  evening  papers  are  selling  far 
more  copies  than  the  morning  ones.  The  market  also  appears  to  be  more  competitive 
than  the  morning  paper  market  with  five  papers  attracting  shares  of  between  around 
10% and 22%. In contrast to the morning press, the evening press shows a balance in 
the number of newspaper copies sold in the Attica region and the rest of Greece.  

Table 69 GR: Evening Newspapers 2011 (Sunday publications excluded) 

NEWSPAPERS 

OWNERS 

ATHENS/PIRA 
EUS 

OTHER 
REGIONS 

TOTAL 

SHARE 
% 

TA NEA 

ETHNOS 

ELEFTHEROTYPIA 

Lambrakis 
Press SA 

Bobolas 
Group 

Tegopoulo 
s 
Publishing 

5,629,668 

4,964,457 

10,594,125 

22.53 

2,805,113 

4,604,278 

7,409,391 

15.59 

3,498,856 

3,476,400 

6,975,256 

15.16 

ESPRESSO 

2,768,075 

3,361,023 

6,129,098 

12.85 

ELEFTHEROS TYPOS  Press 

1,925,518 

2,428,770 

4,354,288 

9.13 

Institution 
SA 

DIMOKRATIA 

688,186 

785,736 

1,473,922 

6.13 

ADESMEFTOS 
TYPOS (RIZOS) 

EXEDRA 
SPORTS 

1,380,927 

1,222,659 

2,603,586 

5.38 

TON 

716,737 

1,629,974 

2,346,711 

4.85 

ALEFTHEROS 

704,618 

97,595 

802,213 

2.92 

AVRIANI 

VRADINI 

ESTIA 

368,756 

366,895 

735,651 

1.56 

446,967 

221,677 

668,644 

1.41 

459,128 

186,031 

645,159 

1.34 

ELEFTHERI ORA 

264,864 

281,715 

546,579 

1.15 

TOTAL 

21,657,413 

23,627,210 

45,284,623 

100.00 

Source: 
Athens 
(http://www.eihea.gr/default_en.htm) 

Daily 

Newspaper 

Publishers 

Association 

Table 70 shows the numbers of copies sold and the shares of the Sunday press. It should 
be noted that most of the Sunday newspapers are affiliates of the same groups owning 
the  evening  papers.  The  Sunday  papers  are  selling  approximately  the  same  number  of 
copies  as  the  evening  press,  though  their  circulation  in  the  Athens/Piraeus  region  is 

343 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

smaller  compared  to  other  regions.  The  market  is  competitive  with  six  newspapers 
having a circulation share of roughly between 12% and 18% of the total market. 

Table 70 GR: Sunday Newspapers 2011 

NEWSPAPERS 

OWNERS 

ATHENS/ 

PIRAEUS 

OTHER 
REGIONS 

TOTAL 

SHARE 
% 

PROTO THEMA 

T. 
Anastasiadis 

KATHIMERINI 
KYRIAKIS 

TIS 

Alafouzos 
family 

TO 
KYRIAKIS 

VIMA 

TIS 

Lambrakis 
Press SA 

2,753,983 

4,131,641 

6,885,624 

18.05 

3,324,617  

3,174,693  

6,499,310  

17.03  

2,609,986 

3,493,121 

6,103,107 

15.99 

REALNEWS 

2,000,813 

2,801,560 

4,802,273 

ETHNOS TIS KYRIAKIS  Bobolas 

1,660,161 

2,818,970 

4,479,131 

12.59 

11.74 

KYRIAKATIKI 
ELEFTHEROTYPIA 

TYPOS TIS KYRIAKIS 

RIZOSPASTIS 
KYRIAKATIKOS 

ESPRESSO 
KYRIAKIS 

TO PARON 

OTHER 

TOTAL 

Group 

Tegopoulos 
Publishing 
SA 

Press 
Institution 
SA 

Greek 
Communist 
Party 

1,699,633 

2,318,270 

4,017,903 

11.20 

586,218 

990,929 

1,577,147 

4.22 

432,890 

611,413 

1,044,303 

2.74 

TIS 

265,294 

362,230 

627,524 

1.68 

253,235 

237,706 

490,941 

-

-

-

1.29 

3.41 

100.00 

Source: 
Athens 
(http://www.eihea.gr/default_en.htm) 

Daily 

Newspaper 

Publishers 

Association 

2.2.11.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

According to IAB Hellas, the amount of investment in online display advertising in Greece 
reached 62 million Euro, up 7% compared to 2009 when online display advertising was at 
57.8  million  Euro.  This  is  a  small  increase  compared  to  other  European  countries, 
especially from northern Europe, but it is still significant as it occurred in the midst of an 
ongoing  economic  crisis  facing  Greece  and  demonstrates  the  growing  importance  of 
online media even during a period of austerity.  

The  financial  sector  appears  to  be  top  in  terms  of  advertising  expenditure  with 
investments reaching 12.7 million Euro (20% share of the total expenditure), followed by 
the  telecommunications  sector  (10.1  million  Euro  investment,  representing  a  16.2% 
share)  and  the  commercial  goods  sector  (8.4  million  Euro  investment,  representing  a 
13.6%  share).  In  the  top  five  sectors  one  can  find  the  retail  sector  (5.8  million  Euro 

344 


 
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

investments  with  a  9.4%  share)  and  the  entertainment  sector  (5.3  million  Euro 
investments with an 8.6% share). 

2.2.11.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Cable  TV  and  IPTV  (broadband  TV)  are  virtually  non-existent  in  Greece.  Whereas  cable 
network operators are yet to be launched, satellite TV has found a market niche with the 
launch  of  NOVA,  a  digital  satellite  network  operator,  launched  in  December  1999  by 
Multichoice Hellas. NOVA offers its subscribers a wide range of international and domestic 
programmes (including news, sports, movies, music, children's programmes and general 
entertainment  channels).  The  platform  also  carries  the  majority  of  popular  Greek 
terrestrial TV channels along with a number of Greek terrestrial radio stations. In 2008, 
Greek  telecommunications  company  Forthnet  acquired  Netmed,  which  is  the  parent 
company  of  NOVA  Greece.  NOVA  is  estimated  to  have  about  450,000  subscribers,  the 
majority of whom have signed up to watch ‘premium content’ as NOVA has acquired the 
exclusive  rights  to  broadcast,  among  others,  the  domestic  football  league  matches  and 
blockbuster movies. 

2.2.11.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

In terms of advertising market shares involving all media in Greece, the media attracting 
most of the advertising expenditure are magazines and television. However, according to 
Table  71  the  magazine  sector  dropped  a  significant  share  (22.26%)  during  2010-2011, 
whereas  in  the  same  period  the  medium  of  television  lost  a  moderate  2.89%  share. 
Meanwhile, the radio sector dropped almost 30% of its share. The newspaper sector also 
showed  significant  losses  of  over  17%,  owing  primarily  to  the  ongoing  economic  crisis 
but  also  to  the  appearance  of  the  Internet,  online  media  and  social  networks.  As 
aforementioned,  the  amount  of  investment  in  online  display  advertising  in  Greece  is 
much smaller compared with other European countries. 

Table 71 GR: Total Advertising Expenditure (2010-2011) (in EURO) 

MEDIUM 

JAN 2010-DEC 
2010 

SHARES 
(%) 

JAN 2011-DEC 
2011 

SHARES 
(%) 

CHANGE 
(%) 

Television 

583,161.818 

30.9 

566,303.741 

35.53 

- 2.89 

Magazines 

746,009.155 

39.52 

579,919.160 

36.38 

- 22.26 

Newspapers 

434,131.644 

23.0 

359,907.549 

22.58 

- 17.1 

Radio 

124,237.490 

6.58 

87,815.214 

5.51 

- 29.32 

TOTAL 

1,887,540.106 

100.0 

1,593,945.665 

100.0 

- 15.55 

Source:  Author 
(http://www.eihea.gr/default_en.htm) 

analysis;  Athens  Daily  Newspaper 

Publishers  Association 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.11.3.  Conclusion and Recommendations 

The  Greek  print  media  sector  is  largely  self-regulated  -  as  in  most  other  European 
countries  –  on  the  basis  of  a  wide  range  of  codes  of  ethics,  alongside  provisions  of 
general civil and criminal statutory law. The sector is dominated by a handful of powerful 
publication  companies  which  have  expanded  to  the  broadcasting  field,  thereby  raising 
levels  of  media  market  concentration.  The  broadcasting  sector  is  characterized  by  a 
saturated  private  radio  and  TV  market,  a  weak  state  broadcaster,  and  it  is  highly 
politicized.  The  analogue  terrestrial  television  landscape  is  still  unregulated  and  any 
attempt  to  ‘bring  order’  in  the  chaotic  analogue  UHF  frequencies  faces  resistance  from 
various  interests  –  commercial  channels,  opposition  political  parties,  etc.  Successive 
governments  have  been  indecisive  in  regulating  adequately  the  analogue  broadcasting 
landscape although one can detect a willingness to set up an efficient regulatory regime 
to oversee the emerging digital environment (i.e. Law 3592/2007 attempts to deal with 
the regulation of digital media as well as chronic matters such as media concentration). 
in  the 
However,  Greece 
broadcasting  industry,  in  spite  of  some  positive  recent  steps  towards  strengthening  the 
political and financial independence of the main broadcasting regulatory body NCRTV. It 
is  in  this  context  that  one  can  understand  why  the  power  of  the  media  has  increased 
considerably,  but not the  power  of  journalists and  of  course  not  the  public  broadcaster. 
Having  said  this,  the  Greek  broadcasting  industry  has  been  surprisingly  resilient  and 
adaptable to changes, particularly given that it only emerged out of a dictatorship some 
thirty-seven years ago. 

independent  regulatory  bodies,  especially 

lacks  truly 

Greece  is  lagging  behind  most  other  European  countries  when  it  comes  to  new  media 
technologies,  such  as  the  Internet  and  digital  television.  While  there  is  no  digital  or 
analogue cable TV service in Greece, digital satellite broadcasting has been developed to 
a  certain  extent,  though  the  main  pay-TV  operator  NOVA  has  monopolised  the  market. 
Digital terrestrial television seems to be the next priority of the country due in part to the 
recommendation of the EU to its Member-States to switch-over from analogue to digital 
by 2012. Law 3592/2007 deals with the issue of digital TV and makes a clear distinction 
between  platform,  or  multiplex  operator  and  content  provider.  However,  meeting  the 
2012  target  date  for  analogue  switch-off  is  not  a  priority  for  the  Greek  government, 
given  the  ongoing  economic  crisis.  In  effect,  it  seems  likely  the  digital  switch-over  to 
occur at a later date, sometime between 2012 and 2015. 

As far as the Internet is concerned and in the light of the absence of specific legislation to 
regulate content on the Internet and in blogs, Greek courts have been at a disagreement 
as to whether existing provisions against defamation, insult or libel in the press and the 
audiovisual  media  can  be  applied.  While  extending  existing  legislation  to  the  electronic 
versions of magazines and newspapers, as well as to online broadcasting content may be 
relatively  straightforward,  this  is  not  so  with  regard  to  self-generated  content  such  as 
blogs, which are an interactive medium of communication with content shaped by various 
actors like the owner, editor or journalist, or an ordinary citizen. Is it right to extend to 
blogs the large sums of indemnification that are granted in cases of insult or libel in the 
press?  Some  put  forward  the  view  that  self-generated  content  should  be  regulated  and 
that  offence  or  insult  involved  in  blogs  is  the  responsibility  of  the  blogger,  whilst  some 
others argue that freedom of expression should be guaranteed on the Internet and that 
in  cases  an  offence  occurs  it  should  be  subject  to  general  rules  for  insult  against  one’s 
personality, which are contained in general statutory rules. Prior to the 1980s in Greece, 
political  reporting  emanated  mainly  from  the  government  via  its  spokesperson,  who 
briefed  journalists.  While  this  continues  today,  the  Internet  has  contributed  greatly  to 
multiplying  and  decentralising  the  sources  of  information,  and  speeded  up  their 

346 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

dissemination, but without necessarily enhancing their credibility. A number of interviews 
carried  out  in  the  context  of  a  recent  study48  concluded  that  the  vast  majority  of 
‘journalistic’ blogs exist to disseminate any kind of real, but more often false or distorted 
information,  leading  to  the  proliferation  of  insulting  and  appalling  texts  against 
individuals, and to a kind of journalistic product that is unreliable and of bad quality. 

Domestic  legislation  contains  a  number  of  provisions  devised  to  promote  content 
diversity  in  broadcasting.  For  a  start,  diversification  and  plurality  of  media  content  was 
achieved in the late 1980s, at the time of the liberalisation of broadcasting market. Prior 
to  that,  broadcasting  content  was  largely  uniform  and  centralised  as  the  monopoly 
operator  ERT  delivered  homogenised  news  bulletins  and  current  affairs  programming. 
The entry of commercial broadcasters allowed the representation of more political views 
(not merely the views of the ruling party), thus enhancing political diversity and cultural 
pluralism.  The  arrival  of  commercial  broadcasters  called  for  the  introduction  of  content-
related rules to place limits, for example, as far as advertising is concerned, and protect 
editorial independence from sponsorship pressures.  

Technological  innovations  and  especially  the  advent  of  the  Internet  and  digital  media 
have  changed  the  way  information  and  other  types  of  media  content  are  produced  and 
delivered. The Greek state, however, still lags behind in exploring the opportunities that 
the  new  media  opens  up  for  freedom  of  expression  and  information.  At  the  same  time,  
policy-makers  have  been  reluctant  to  explore  ways  to  regulate  new  applications  and 
media  services  that  do  not  strictly  fall  into  the  traditional  regulatory  systems  for  the 
press  and  broadcasting.  Despite  the  trend  toward  technological  convergence,  the 
telecommunications and the broadcasting sectors are still regarded as separate sectors, 
and no systematic efforts are deployed to coordinate in an effective manner the activities 
of  the  two  independent  authorities  in  charge  of  them:  the  NTPC  and  the  NCRTV, 
respectively. Given the current financial crisis facing the country it would make sense to 
reduce  public  spending  by  merging  the  NCRTV  with  the  NTPC,  but  such  a  proposal  has 
been  met  with  scepticism  by  the  president  of  the  NCRTV  primarily  on  the  grounds  that 
the merger would be unconstitutional49. 

To  sum  up,  technological  advances,  media  market  liberalisation  and  political  shifts 
brought  about  a  proliferation  of  actors,  norms  and  institutions  beyond  the  state.  Yet, 
media  regulation  has  remained  highly  centralised  in  the  hands  of  the  state,  and  of  the 
government of the day in particular. The government-centric model of media regulation 
was  and  it  is  still  influenced  by  powerful  economic  and  business  interests  and  media 
entrepreneurs  exerting  pressure  over  policy  issues.  Their  interests  are  typically 
unaccountable  and  unchecked  due  to  the  absence  both  of  a  strong  and  independent 
professional  journalism  and  of  civil  society  institutions.  As  an  EU  member-state  Greece 
has an obligation to impose rules guaranteeing fair competition, but more often than not 
EU membership has not managed to counter the distinctive economic, political and media 
structures  and  practices  of  dependence  and  favouritism  that  have  distorted  the  media 
market.  The  current  financial  crisis  has  further  exposed  the  weakness  of  a  defective 
media system as many print publications and some TV channels went bankrupt and it is 
likely  to  have  a  negative  impact  on  media  independence  and  their  ability  to  create  an 
informed public sphere. The viability of media outlets will largely depend on their ability 
to pursue high editorial standards and avoid the tendency toward populism. 

48 

49 

Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy  promote  media  freedom 
and  independence?  The  case  of  Greece’  Athens:  Hellenic  Foundation  for  European  and  Foreign  Policy 
(ELIAMEP). 
see  Iosifidis,  2011;  Psychogiopoulou,  E.,  D.  Anagnostou,  and  A.  Kandyla  (2011)  ‘Does  media  policy 
promote media freedom and independence? The case of Greece’ Athens: Hellenic Foundation for European 
and Foreign Policy (ELIAMEP). 

347 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Recommendations 

	  The  government  should  pursue  further  liberalisation  of  the  media  market  in  order 
to  promoted  greater  diversity  and  pluralism  in  the  news,  information  and  current 
affairs accessible to the public. 

	  The  regulatory  framework  should  prohibit  concentration  of  media  ownership, 
including cross-media concentration especially between the powerful press interests 
and  broadcasting  and/or  internet  firms.  This  can  be  achieved  through  the 
proliferation  and  upgrading  of  the  power  of  politically  and  financially  independent 
regulatory  agencies,  which  can  bring  abound  a  new  culture  of  policymaking 
encompassing democratic, pluralistic functions that the media should perform. 

	  The undue influence of media owners and business interests can also be addressed 
through the establishment of a strong and independent professional journalism, as 
well as the strengthening of civil society pressures. 

	  It  is  essential  to  reform  ERT  in  order  to  become  a  public  service  broadcaster  that 
would  serve  the  public  interest  through  the  provision  of  quality,  accurate  and 
impartial news coverage and reporting. This can be done by ensuring the financial 
and editorial independence of ERT. In the midst of a difficult economic climate, the 
viability  of  the  public  news  medium  will  largely  depend  on  its  ability  to  promote 
high  standards  of  journalism  and  prioritise  quality  information  to  sensational  and 
populist reporting. 

	  There should be further investment in new media technologies like the Internet and 
digital  television  which,  alongside  the  progressive  technological  convergence,  will 
contribute to the proliferation of players, norms and institutions beyond the state. 

	  Greece  should  take  advantage  of  its  membership  in  the  EU  and  the  obligations 
imposed  by  European  authorities  in  order  to  counter  and  shift  the  distinctive 
political  economy  structures  and  the  informal  practices  of  dependence  and 
favouritism that have traditionally distorted the communications sector. This can be 
achieved  by  ensuring  implementation  of  EU  rules  and  norms  that  defend  media 
impartiality  and  independence  against  state  or  powerful  commercial  interests  that 
seek to undermine these. 

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HUNGARY 


2.2.12.	  Hungary 

2.2.12.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

Since the study of 2004 there have been extensive changes in the regulatory framework 
of  Hungary.  At  the  beginning  of  this  year  (2012)  a  new  Fundamental  Law  has  entered 
into  force.  The  media  segment  is  also  regulated  by  new  laws  dated  from  2010,  having 
come into force and been amended in 2011.  

2.2.12.2.	  Human rights/Fundamental freedoms 

	  Freedom of expression/Freedom of the media 

At the constitutional level the basic norms of freedom of expression and freedom of the 
media are defined by Article IX of the Fundamental law1 as follows:  

„(1) Everyone shall have the right to freely express their opinion.  

(2)  Hungary  shall  recognise  and  protect  the  freedom  and  pluralism  of  the  press,  and 
ensure  the  conditions  for  freedom  of  information  necessary  for  the  formation  of 
democratic public opinion.  

(3) The detailed rules relating to the freedom of the press and to the organ supervising 
media  services,  press  products  and  the  infocommunications  market  shall  be  laid 
down in a cardinal Act.”2 

Within the context of the Fundamental law “cardinal acts” means those acts that have to 
be adopted by a two-thirds majority of the Parliament.  

The laws directly governing the media are  

	  Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media 

Content (“MC”);3 

	  Act CLXXXV of 2010 on Media Services and Mass Media (“MM”).4 

MC, often dubbed as “Media Constitution”, defines the basic rules of media content, while 
MM provides the detailed rules of media regulation.  

In  December  2011  the  two  acts  have  been  subject  of  a  decision  of  the  Constitutional 
Court  (decision  165/2011.  (XII.20.)  AB).  As  a  consequence  of  this  decision  the 
Parliament  is  currently  in  the  process  of  the adoption  of  an  act5  amending  MC,  MM  and 
various  connected  laws.  The  amendment  will  lift  a  number  of  obligations  originally 

1 

2 

3 

4 

5 

http://hunmedialaw.org/dokumentum/152/Smtv_110803_EN_final.pdf.
 
The source of translations of the legal texts quoted in this paper is the hunmedialaw.org website.
 
http://hunmedialaw.org/dokumentum/152/Smtv_110803_EN_final.pdf.
 
http://hunmedialaw.org/dokumentum/153/Mttv_110803_EN_final.pdf.
 
Bill T/7022. “on amending certain acts related to media services and press products”. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

imposed on print and online media, will introduce detailed rules for protecting journalistic 
sources, and will re-regulate access to data by the media authority in its procedures.6 

As regards to specific safeguards and rights for the media at the constitutional level the 
long-standing  and  consequently-followed  practice  of  the  Constitutional  Court  is  to  be 
recalled.  According  to  the  court  freedom  of  opinion  is  directly  linked  to  the  existence  of 
the democratic public opinion. As it is constantly held by the court7 the role of the state 
cannot be limited to non-interfering in this respect, instead, it is the responsibility of the 
state to promote and maintain the “institution” of the democratic public opinion. 

	  Freedom to receive and to access information 

Beyond  the  constitutional  provision  that  grants  freedom  of  expression  to  individuals 
(Article  IX.  (1)  quoted  above),  Article  VI.  (1)  and  (2)  of  the  Fundamental  Law  also 
provide  special  constitutional  protection  for  accession  to  and  dissemination  of  data  of 
public interest: 

“(2) Every person shall have the right to the protection of his or her personal data, and 

to access and disseminate data of public interest.  

(3) The exercise of the right to the protection of personal data and the access to data of 

public interest shall be supervised by an independent authority.” 

	  Safeguards on regulatory authorities 

As  regards  constitutional  safeguards  concerning  regulatory  authorities  reference  has  to 
be made to Article IX (3) of the Fundamental Law as quoted above.  

	  Safeguards on “universal service” 

In the Hungarian law the term “universal service” is used generally within the meaning of 
Directive  Directive  2002/22/EC  (Universal  Service  Directive).  The  constitutional 
requirements  related  to  public  service  media  are  developed  by  the  Constitutional  Court 
from the “institution” of the democratic public opinion and the constitutional obligation of 
the state to maintain and promote it.  

2.2.12.1.2. 

Media order (de lege lata and de facto) 

	  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The legal possibilities of entering into the media market are defined by the MC. According 
to its relevant provisions 

	  “The  Act  may  set  official  registration  as  a  precondition  for  the  commencement  or 
pursuit of media services and the publication of press products. The conditions set 
for registration may not restrict the freedom of the press.”8 

6 

7 

8 

A summary of the decision: Standards Media Monitor (Mérték Médiaelemző Műhely): Ruling No. 165/2011. 
(XII. 20.) AB of the Constitutional Court – Summary, is available at:  
http://mertek.eu/en/article/ruling-no-1652011-xii-20-ab-of-the-constitutional-court-summary. 
See inter alia decision 30/1992. (V.26.) AB of the Constitutional Court. 
MC 5. § (1). 

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	  “When  limited  state-owned  resources  are  used  by  the  media  service  provider, 
successful  participation  in  a  tender  procedure  announced  and  conducted  by  the 
Media Authority may also be set as a condition for the commencement of the media 
service.”9 

In accordance with these MM defines the rules of procedures for 

	  tendering  the  broadcasting  possibilities  that  are  given  via  analogue  terrestrial 

frequencies10, and 

	  registration  of  radios  and  televisions  operating  via  other  channels  (digital 

terrestrial, cable, satellite, etc ...)11 

	  registration of non-linear audiovisual media services12 

	  registration of printed and online press products under the scope of the acts13. 

Printed  and  online  press  products  can  be  published  simultaneous  with  the  initiating  of 
registration.  According  to  the  Media  Law,  the  media  authority  shall  withdraw  the 
registration if a specified conflict of interests exists vis-à-vis the notifier, or the name of 
the  notified  press  product  is  identical  with,  or  is  confusingly  similar  to,  the  name  of  a 
press  product  registered  earlier  with  valid  records  at  the  time  said  application  was 
submitted. The press product shall be deleted from the register in the previous cases, in 
case  of  the  requesting  of  the  deletion,  in  case  of  interruption  of  publication  for  over  5 
years,  or  if  a  final  decision  by  the  court  has  decreed  cessation  of  a  trade  mark 
infringement perpetrated through the title  of the press product and barred the infringer 
from  further  trade  mark  infringement.  The  prospect  of  deletion  by  the  authority  as  a 
sanction  against  the  publisher  is  not  holded  out.  If  the  publisher  or  founder  of  a  press 
product  fails  to  comply  with  its  obligations  related  to  registration,  the  media  authority 
may impose a fine of up to one million forints. 

The registration rules regarding the non-linear media services are more or less the same 
as the previous rules, but the rules on the registration of linear media services are more 
detailed  and  stricter.  The  main  difference  is  the  content  of  the  notification  and  the 
possibility  of  the  deletion  of  the  service  provider  from  the  register  as  a  sanction  in  the 
case of repeated and serious violation of the law. 

The  regulation  of  the  tendering  for  broadcasting  possibilities  is  imperfect  and 
controversial at many points. One of the most crucial points of this regulation is that the 
rules  on  tender  procedures  for  broadcasting  frequencies  allow  the  Media  Council  to 
prolong the closing of bids for a given media service right (frequency) as long as there is 
a  bidder  who  is  to  the  authority's  liking.  In  fact,  the  authority  may  terminate  the 
tendering process at any time if “by its own consideration, the media policy aspects […] 
cannot be ensured by completing the tender procedure”. There are other tender rules as 
well  that  allow  the  authority  to  arbitrarily  apply  the  laws,  such  as by  failure  to  regulate 
the evaluation criteria, and may lead to complete legal uncertainty, as well as ambiguous 
and unpredictable procedure with regards to the bidders. 

9 

MC 5. § (2). 

10  MM. 
11  MM 42. §. 
12  MM 45. §. 
13  MM 46. §. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Tender  decisions  can  be  contested  before  the  court  (Regional  Court  of  Budapest).  The 
court has to overview the decision within 30 days, and against its decision no appeal  is 
permissible.14 

The  Media  Council  and  media  providers  winning  a  bid  enter  into  a  so-called  official 
administrative contract which provides for a significant part of the terms and conditions 
under which the provider will operate. The contract reveals how much the provider is to 
pay  the  media  authority,  sets  forth  commitments  regarding  programming  structure  and 
content,  stipulates  sanctions,  and  may  even  impose  obligations  for  a  digital  switchover 
further  down  the  line.  Although  these  details  have  a  fundamental  bearing  on  the  entire 
media system in Hungary, they are not public at the present time. 

In  the  tender  procedures,  the  media  service  provision  fee  is  a  constant  and  important 
criterion. This fee is to pay by all media service providers, irrespective of the distribution 
technology. In case of providers on cable, satellite, IPTV or DVB-T platforms, the amount 
of the fee is determined by a decision of the media authority. Recently, the Media Council 
has revised the contracts of the nationwide commercial television stations in light of the 
new  Media  Act,  and  did  the  same  with  the  contracts  of  the  nationwide  radio  stations. 
Very  likely,  this  revision  was  more  than  just  a  formality  and  effected  material  and 
substantive parts of the contracts, particularly as regards the rate of the media provision 
fee.  The  Media  Council  amended  the  contracts  not  only  in  complete  secrecy  but  even 
disregarding  the  explanation  requirements  stipulated  by  procedural  rules.  The  contract 
itself  is  not  public,  and  the  officially  posted  explaination  of  the  resolution  declaring  its 
transformation into an administrative contract is evasive.15 

The conclusions of the tender practise can be summarized as follows. 

	  In the completed process of the Media Authority, a few “preferred” applicants were 

awarded nearly half of the announced frequencies.  

	  Although local content was a pre-eminent evaluation criterion during the evaluation 
process,  certain  decisions  by  the  Media  Council  overruled  the  previously 
represented  media  policy  considerations.  The  purity  of  the  tendering  process,  the 
equality of treatment and of competitive conditions are threatened when a contract 
is  amended  within  a  short  period  and,  as  a  result,  the  commitment  that  initially 
made it a winning tender can no longer be fulfilled. 

	  The  three  applicants  who  were  successful  in  the  processes  endeavour  national 
coverage  and  place  life  of  faith  in  the  center  of  their  broadcast;  the  underlying 
media  political  aspects  were  omitted  from  the  justification  of  the  Media  Council's 
decisions. 

	  The situation has worsened for those participants who endeavour national coverage 
and  operate  on  the  basis  of  former  market  conditions.  They  were  unable  to  win 
tenders  where  there  was  a  competition.  There  was  only  one  music  radio  (Rádió1) 
winning  two  tenders,  but  only  on  those  frequencies  where  it  was  the  only  bidder. 
The  marginalization  of  former  market  participants  also  means  less  economical 
danger  from  the  major  national  radio  stations  (Class  Fm,  Neo  Fm),  and  other 
broadcasters  on  the  radio  market  with  different  profiles  and  ever-expanding 
coverage areas become the leading participants. 

14  MM 62. § (5)-(6) 
15  Mérték Médielemző Műhely (Standards Media Monitor): Secrets and Lies: The Contracts of National Media 

Providers, http://mertek.eu/en/article/secrets-and-lies-the-contracts-of-national-media-providers. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  Due to deficiencies in the justification of decisions and, primarily, deficiencies in the 
publicity  of  decisions  made  during  such processes,  the  requirement  of  transparent 
and controllable decision-making was not fully satisfied. 

	  The  voting  on  the  final  results  was  unanimous  in  each  case,  which  indicates  that 
the  Media  Council  has  established  those  media  political  objectives  that  were 
realized in the decisions as a uniform approach.16 

MM  provides  the  detailed  rules  on  the  regulatory  authority  for  the  media.  The  National 
Media  and  Telecommunications  Authority17  (NMHH)  is  a  “convergent”  authority 
responsible for administering both the segments of telecommunications and media. Tasks 
related to media regulation are performed by the Media Council18, a collective body with 
relative  autonomy  within  the  organisation  of  the  authority.  In  performing  their  duties, 
members  of  the  Media  Council  cannot  take  orders  from  anyone19;  they  cannot  be 
recalled20;  and  they  have  to  comply  with  strict  incompatibility  rules21.  The  elected 
members  of  the  Media  Council  are  expected  to  have  no  ties,  either  formal  or  informal, 
with any political party or with the government22. 

It is also to note that the Commissioner for Fundamental Rights (the “ombudsman”) has 
recently  submitted  a  motion23  to  the  Constitutional  Court  regarding  the  regulation 
governing  the  election  of  the  president  of  the  Media  Council.  In  his  motion  the 
commissioner  suggests  the  court  to  annihilate  these  rules  as  they  lack  proper  legal 
clarity. The Parliament remedied_ these objections of the Commissioner by modifying the 
act  in  June  2012;  the  result  of  this  modification  is  that  the  present  chairman  and 
members of the Media Council will hold their position until the new Parliament can elect a 
new chairman and new members with a two-third majority.  

The remit of the public service media is summarized by the MC stating that “Public media 
service  is  operated  in  Hungary  in  order  to  preserve  and  strengthen  national  and 
European identity, foster and preserve national, family, ethnic and religious communities, 
and  promote  and  enrich  Hungarian  language  and  culture  and  minority  languages  and 
culture and meet the needs of citizens for information and culture.”24 

Other provision regarding the remit of the public service media are also foreseen in the 
Public Service Code. The content of this code is defined by MM as follows: 

„The Code can, among other things, regulate the following: 

a) the means and method of attaining the statutory objectives of public media service, 

b) the basic principles of independence from political parties and political organisations, 

c)  the  principles  regarding  the  presentation  of  the  diversity,  objectivity  and  balanced 
nature of news and timely political programmes, presentation of disputed matters and 
the diversity of opinions and views, (...) 

16	 

17  
18 

Furher  information:  Mérték  Médielemző  Műhely  (Standards  Media  Monitor):  The  Media  Council's  Tender 
Procedures  for  Broadcasting  Frequencies  -  Executive  Summary,  http://mertek.eu/en/reports/the-media­
councils-tender-procedures-for-broadcasting-frequencies-executive-summary. 
http://www.nmhh.hu/inex.php?lang=en.
 
http://www.mediatanacs.hu/english.php. 


19  MM 123. § (2).
 
20  MM 129. § (1).
 
21  MM 118. § (1); 127. § (1).
 
22  MM 118. § (3); 127. § (1).
 
23  Motion AJB-3299/2012.
 
24  MC 11.§.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

f)  the principles of presenting cultural, scientific, ideological and religious diversity, 

g) the principles of performing tasks with regard to the protection of minors, 

h)  the  principles  relating  to  ethical  norms  governing  the  broadcasting  of  commercial 

communications, advertising activities and the sponsorship of programmes, (...) 

j)  the principles relating to the extent and guarantees of the autonomy and responsibility 
of  production  companies  employed  by  the  public  media  service  provider,  and  to  the 
guarantees  of  their  participation  in  the  definition  of  the  principles  of  the  production 
and editing of programmes. 

The  Code  of  Public  Service  was  finalised  in  the  summer  of  2011,  but  it  is  a  handful  of 
declarations, failing to offer tangible guidance as to the operation of public service. One 
of  the  cardinal  flaws  of  the  new  law  is  its  omission  to  expressly  provide  for  a  public 
service mandate. 

As  regards  registration  of  press  products  it  is  to  note  that  the  scope  of  the  acts  covers 
exclusively  content  services  that  are  provided  as  commercial  services25.  As  a 
consequence, private blogs without any economic purpose, for example, are not subjects 
of, inter alia, registration on the basis of the acts. But the definitions in the act are not 
clear enough to delineate unambiguously the scope of the law. 

The  rules  of  registration  are  designed  in  a  way  to  make  decisions  automatic.  If  the 
applicant  complies  with  the  formal  criteria  defined  by  the  MM  its  registration  is 
compulsory. The NMHH is not in the position to exercise any discretion in this regard.  

In the case of printed and online press products the authority cannot refuse registration 
even if their application is incomplete26. 

- Media pluralism/ownership; competition law aspects 

Media  ownership  rules  are  generally  based  on  the  actual  ratings  of  media  outlets. 
According  to  MM  “linear  audiovisual  media  service  providers  with  an  average  annual 
audience  share  of  at  least  thirty-five  percent,  linear  radio  media  service  providers,  and 
media  service  providers  having  a  joint  average  annual  audience  share  of  at  least  forty 
percent  on  the  linear  audiovisual  and  linear  radio  markets,  any  owners  of  the  media 
service provider and any person or undertaking having a qualifying holding in the media 
service provider’s owner 

a)  	 may  not  launch  new  media  services,  may  not  acquire  shares  in  undertakings 

providing media services, and 

b)  	 shall  take  measures  in  order  to  increase  the  diversity  of  the  media  market  by 
modifying  the  programme  flow  structure  of  its  media  services,  by  increasing  the 
proportion of Hungarian works and programmes prepared by independent production 
companies, or in any other way.”27 

Considering the actual market circumstances, the 35 percent limit can not be reached by 
any  market  actors.  The  new  media  ownership  rules  ensure  wider  latitude  to  the  media 
enterprises,  but  the  obligations  applicable  in  case  of  reaching  the  legal  ownership 

25  MC 1. § 1., MM 203. § 40. 
26  MM 46. § (4) – (5). 
27  MM 68. § (1). 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

restrictions  are  not  clear.  The  affected  media  service  provider  shall  take  measures  in 
order  to  increase  the  diversity  of  the  media  market,  but  the  act  gives  just  some 
examples  to  this  obligation,  and  in  case  of  doubt,  it  is  the  media  service  provider’s 
responsibility to prove that the measures are able to strengthen the diversity.  

The  complete  lack  of  rules  restricting  the  interweaving  of  various  media  types  (cross­
ownership)  threatens  fulfilling  of  the  requirement  of  diversified  information  in  the  long 
run.  The  media  market  trends  confirm  the  risk  that  a  given  enterprise  may  be  able  to 
present its own views via various media types – television, radio, newspapers and online 
services. This poses a serious constitutional risk particularly with regards to the domestic 
media market trends. 

Beyond these, MM also defines the category of “media service providers with significant 
influence”  as  “linear  audiovisual  media  service  providers  and  linear  radio  media  service 
providers with an average annual audience share of at least fifteen percent (…) provided 
that  the  average  annual  audience  share  of  at  least  one  of  their  media  service  reaches 
three  percent”28.  Currently  there  are  two  television  and  two  radio  broadcasters  of 
significant influence, the national channels operating on analogue terrestrial frequencies. 
Broadcasters  of  significant  influence  have  to  broadcast  a  news  programme  or  general 
information  programme,  and  to  ensure  in  the  course  of  all  of  its  media  services 
transmitted  by  digital  media  service  distribution,  that  at  least  one  quarter  of  the 
cinematographic  works  and  film  series  originally  produced  in  a  language  other  than 
Hungarian, shall be available in their original language, with Hungarian subtitles. 

Independently  of  these  specific  qualifications  and  the  attached  obligations  general  rules 
of competition law are also applicable. But the new Media Act entitled the Media Council 
to  intervene  in  the  procedure  of  the  competition  authority  in  the  cases  of  concentration 
regarding the media market.29 According to the act, the Hungarian Competition Authority 
shall obtain the position statement of the Media Council for the approval of concentration 
of enterprises, which enterprises bear editorial responsibility and the primary objective of 
which  is  to  distribute  media  content  to  the  general  public  via  an  electronic 
communications network or a printed press product. The position statement of the Media 
Council binds the Hungarian Competition Authority. This rule had to apply also to ongoing 
procedures.30 It made possible to prevent the merger between Ringier and Axel-Springer 
which would have had the effect to weaken the market position of the biggest opposition 
newpaper.  The  decision  of  the  Media  Council  was  not  established;  it  is  not  suitable  to 
give directions to prospective concentrations. 

- Legal framework for psm; ability to fulfill their tasks 

In  2011  the  substantial  restructuring  of  the  Hungarian  public  service  media  took  place. 
The definitive element of the system of the Hungarian public service media is the Media 
Service  Support  and  Asset  Management  Fund31  (MTVA).  The  MTVA  secures  the 
production capacities and handles the assets of the four public service media entities:  

  the Hungarian Television Non-profit Co. Ltd. 

  the Hungarian Radio Non-profit Co. Ltd. 

  the Duna Television Non-profit Co. Ltd. and 

28  MM 69. § (1).
 
29  MM 171. §.
 
30  MM 216. § (5).
 
31 

http://www.mtva.hu/hu/english. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

	  the MTI Non-profit Co. Ltd., the national news agency. 

	  the MTVA, as a fund, is managed by the Media Council.  

Media content available through public service media consists of these offers: 

	  One  national  broadcasting  TV  channel  (M1)  with  terrestrial  transmission,  three 

satellite TV channels (M2, Duna TV, Duna World); 

	  Seven  radio  stations  (three  national  FM  channels:  one  talk  radio  (Kossuth  Rádió), 
one  music  radio  (Petőfi  Rádió),  one  classical  music  radio  (Bartók  Rádió),  one 
national middle wave channel with programmes for ethnical minorities, one middle 
wave regional channel with network transmission, two online radio stations (one life 
broadcast from the parliament, one with folk music content)).  

There is a Board of Public Service Curators (Trustees), which exercises ownership rights, 
and there is a Public Service Body destined to exercise social control over the operation. 
Besides  the  ownership  rights  the  Board  of  Trustees  has  the  following  major  tasks  and 
responsibilities related to public service media (Article 90.): 

“(1) The Board of Trustees: 

a) 	 monitors whether the objectives of the public media service are fulfilled through the 

activities of the public media service providers, 

b)	 

if in its opinion the behaviour of a public media service provider seriously violates or 
threatens the attainment of public media service objectives, then it may initiate the 
Media Council’s proceedings, 

c) 	 safeguards the independence of the public media service provider,  

d) 	 establishes and amends the Statutes of public media service providers,  

e)  	 elects  the  Director  Generals  of  the  public  media  service  providers,  and  determines 

the terms and conditions of their employment contract and remuneration,” 

The Board of Public Services has the following tasks (Article 97.): 

“(7)  	 The  Board  of  Public  Services  constantly  monitors  how  public  service  orientation  is 
manifested, and exercises control in accordance with Paragraphs (8)-(13) over the 
public  media  service  providers  in  relation  to  the  enforcement  of  the  provisions  of 
this Act. 

(8)  	 Once  every  year,  by  28  February  of  the  year  following  the  current  calendar  year, 
the  Director  Generals  of  the  public  media  service  providers  prepare  a  report  on 
whether  the  media  service  provider  under  their  management,  in  their  own 
assessment,  has  fulfilled  the  requirements  outlined  in  this  Act  regarding  the 
objectives and basic principles of public media service.” 

Although  these  organisations  are  operational  and  functional,  until  today  they  have  not 
left any footprint in the publicity, and in the design of the public media content. 

The  several  cases  of  counterfeit  reporting  in  2011,  including  the  Cohn-Bendit  affair  and 
the Lomnici Affair, failed to provoke the Media Council, the Board, and the Body to speak 

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out in any meaningful way. In the Lomnici case, the managing directors of the Fund and 
MTI, the national news agency, took measures in the capacity of employers, although it 
never  came  to  light  precisely  along  what  procedural  lines  the  disciplinary  action  was 
taken  and  based  on  what  official  explanation.  Certain  individuals  were  named  and  held 
accountable,  but  nothing  that  happened  really  taught  us  anything  about  what  public 
service should consist of and how it should operate. In other words, these cases did not 
offer any legally useful lesson as to the nature of public service in the media. On the level 
of  day-to-day  operation,  the  currently  effective  provisions  fail  to  lay  down  the 
prerequisites  of  public  service  (an a  priori omission)  and  fail  to  set  forth  the  procedures 
of holding violators accountable (an a posteriori oversight). 

Neither  does  the  new  MM  formulate  a  coherent  order  of  responsibilities  for  compliance 
with  public  service  requirements.  The  most  characteristic  attributes  of  the  new  system 
are  the  absence  of  transparency  and  regulating  the  field  on  an  “as-it-were”  basis.  It 
seems that all necessary actors are present. In reality, however, they are not the crucial 
players.  The  key  decisions  are  taken  by  the  MTVA  and  the  Media  Council  and  its 
president. In the present scheme of things, neither the Board nor the Body has properly 
regulated  relations  with  the  Fund,  despite  the  fact  that  the  Fund  has  inherited  the 
relevant public service assets, manufacturing capacities, and the professional staff. 

The  most  frequently-debated  element  of  this  restructuring  was  the  role  of  MTI  as  the  
central news agency for the entire public service media. Opponents of this structure refer 
to recent cases of editorial behaviour on behalf of MTI and MTVA that induced criticism. 
On the other hand, defenders of this solution emphasise the aspect of cost efficiency. 

There  is  no  pertinent  data  available  which  would  support  an  assessment  on  the  cost 
efficiency of the Hungarian public service media. It is fact, however, that the official state 
budget allocated to the PBS has increased in 2012 in comparison with the previous years. 

- The role and functioning of regulatory authorities in these respects 

The  Media  Council,  which  has  significant  and  material  control  over  the  entire  media 
selection  and  the  programmes  of  each  broadcaster  through  the  distribution  of 
broadcasting  rights  and  monitoring  programme  requirements,  was  created  on  the  basis 
of  nomination  and  selection  rules  that  allowed  for  the  involvement  of  nominees 
exclusively  from  the  larger  governing  party.  As  a  result,  the  government  and/or  the 
parliamentary  majority  gains  sole  influence  over  the  control  of  the  media  system  while 
making  it  impossible  for  third  parties  to  oversee  the  media  authority's  operations. 
Completely  excluding  the  opposition  from  the  media  authority's  operations  does  not 
exclusively and primarily mean exclusion from decision-making, but it may also make it 
impossible to monitor the preparation and justification of decisions. 

The chairman of the Media Council is nominated by the prime minister, the members of 
the  Council  are  nominated  by  an  ad  hoc  committee  of  the  Parliament,  in  that  the 
members  have  a  number  of  votes  corresponding  to  the  headcount  of  the  parliamentary 
faction  they  were  appointed  by.  In  the  first  voting  round,  the  nominating  is  bound  to  a 
soild  vote,  but  in  the  second  round  the  members  can  be  nominated  by  a  two-third 
majority. These rules resulted in the exclusivity of the candidates of the Fidesz. 

The chairman of the NMHH is the chairman of the Media Council, and he has a scope of 
authority  broad  enough  to  enable  him/her  to  effectively  shape  the  most  important 
decisions relevant to the media system, and she/he is the only decision-maker regarding 
the telecommunication issues.  

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The competences of the Media Council cover i.a. the tendering of radio frequencies, the 
registration  of  the  media  service  providers  and  the  press  organisations,  the  control  and 
sanctioning  of  all  media  contents,  the  subsidies  to  the  media  service  providers32,  the 
nomination  of  the  chairman  and  a  member  of  the  Board  of  the  Public  Broadcasting 
Foundation,  the  nomination  of  the  CEO  of  PBS  providers,  and  the  appointment  of  the 
chairman of the Media Service Support and Asset Management Fund that is the trustee of 
the PBS providers.  

The registries of the services mentioned above in this chapter are kept by the NMHH. 

The Media Council is entitled to nominate candidates for the board of the Public Service 
Foundation  for  the  positions  of  the  director  generals  of  the  public  service  media 
providers. The Media Council is obliged to nominate two candidates for each position. The 
director generals are elected by the Board of Trustees of the Public Service Foundation.33 

The  informal  power  of  the  Media  Council  and  its  president  in  the  newly  established 
structure is secured through the appointment and election process of the leaders at PBS 
organs. Neither the Council, nor the Board Trustees, nor the Board of Public Service has 
so far practiced its rights established by MM for the transparent and formal accountability 
of content control. 

In some cases the Media Council declared to reject any responsibility for the fulfilment of 
the requirements of PBS. Despite of such declarations the MM establishes a named task 
as follows (Article 182 bm): 

“Acting  in  its  regulatory  powers,  the  Media  Council,  in  accordance  with  Article  132, 
(b)  shall  perform  regulatory  supervision  regarding  the  following  statutory  provisions 
herein defined: 

(bm) rules on the performance of tasks in public media service;” 

The latest public correspondence in the subject took place in April 2012. 

The  Works  Council  of  the  MTI  addressed  an  open  letter,  signed  by  the  majority  of  the 
news  agency’s  employees,  to  the  president  of  the  Media  Council,  demanding  that  the 
Fund  restore  the  agency’s  professional  and  organizational  independence.  The  letter  was 
motivated by the recognition of the fact that the merger of the public service media and 
the MTI, along with the attendant problems of employment law and financing, hinder the 
work of the agency. 

A few days later, the president of the Media Council sent a letter in reply, explaining that 
neither  the  National  Media  and  Infocommunications  Authority  nor  its  Media  Council 
possessed any competence regarding the operation of MTI Nonprofit Zrt. 

In  their  reports,  all  the  international  organizations  raise  criticism  over  the  alleged 
independence  of  public  service  media.  The  procedure  of  nominating  and  appointing 
senior management official to public service media — a procedure crucially overseen by 
the  President  of  the  Media  Council  —  ran  counter  to  international  standards  because  it 
failed  to  ensure  freedom  from  undue  political  influence.  For  much  the  same  reason, 
international  criticism  was  strong  over  the  move  whereby  the  President  of  the  Media 
Council became, indirectly through the Media Support and Asset Management Fund, the 
employer of practically every single journalist working in public service media. As for the 

32 

About  the  problems  of  this  practise  see  Support  and  Policy:  The  Subsidization  of  Community  Radio 
Stations, http://mertek.eu/en/article/support-and-policy-the-subsidization-of-community-radio-stations. 

33  MM 102. §. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

regulation of the public service system, different international reports also conclude that 
the  current  scheme  of  control  over  the  institutions  fails  to  guarantee  political 
independence,  nor  does  the  regulation  of  financing  ensure  the  independence  of  day-to­
day operations. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The basic rules and safeguards of journalistic activities are defined by the MC. On the one 
hand,  it  provides  for  the  protection  of  human  dignity34  and  human  rights35,  the 
constitutional  order36,  minors37,  and  consumers38  without  giving  real  definitions  as  to 
what  these  legal  terms  mean  in  everyday  journalistic  practice.  For  the  linear  media 
services  it  provides  for  a  number  of  similarly  vaguely  defined  terms  such  as  the 
obligation  of  diverse,  comprehensive,  factual,  up-to-date,  objective  and  balanced 
coverage.39  It  is  important  to  note  that  the  legislation  introduces  a  wide  variety  of 
sanctions  and  investigative  powers  in  the  hands  of  the  Media  Authority  against  media 
outlets disregarding these obligations. 

On  the  other  hand,  it  grants  certain  privileges  for  journalists,  by  providing  explicit 
protection  against  interference  of  owners  of  media  outlets  to  editorial  work40  and  by 
granting  immunity  for  journalists  for  minor  offences  committed  in  the  course  of  their 
investigative work41. These privileges, however, remain inadequately determined and are 
not incorportated in relevant other legislations. 

MC  also  contains  rules  of  protecting  sources  of  journalists’  information42.  These  rules 
have been subjects of the recent decision of the Constitutional Court. 

The  single  most  critical  legislative  issue  in  the  above-mentioned  order  of  the 
Constitutional  Court  is  whether  the  supervision  of  the  printed  and  online  press  by  the 
media authority will be allowed to stand. Although instating control over the media by a 
media authority must be seen as the most regressive step in the cause of the free press, 
the Constitutional Court did not rule out the possibility of such control but merely placed 
restrictions  upon  it.  Pursuant  to  the  ruling,  the  media  authority  retains  its  power  — 
theoretically at least — to take action against hate and discriminative speech posted on 
online  journals  or  news  portals,  violations  of  constitutional  law  and  order,  the  self-
serving, offensive representation of helpless and vulnerable individuals, content deemed 
severely  harmful  for  children,  and  unlawful  commercial  messages  (advertising).  No 
media authority supervision is allowed regarding posts and publications violating human 
dignity, privacy, and human rights in general, nor regarding violations of the obligation to 
withdraw  such  statements.  The  authority’s  options  to  step  in  against  messages  of  hate 
and  discrimination  have  been  scaled  back  by  the  Constitutional  Court  far  enough  as  to 
virtually prevent such intervention in the future. 

The  Constitutional  Court  ordered  to  revise  the  rules  of  source  protection  following  the 
case of a non-profit investigative journalism site, Atlatszo.hu, which challenged the rules. 

34  MC 14. §. 
35  MC 16. §. 
36  MC 16. §. 
37  MC 19. §. 
38  MC 20. §. 
39  MC 13 § 
40  MC 7. §. 
41  MC 8. §. 
42  MC 6. §. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Acknowledging  that  atlatszo.hu’s  claims  were  right,  the  Constitutional  Court  of  Hungary 
decided  that  the  protection  of  journalists’  sources  is  not  sufficiently  guaranteed  by  the 
new,  widely  criticised  2010  media  law.  It  happened  with  reference  to  this  law  that  the 
organised crime unit of the Hungarian Police summoned Tamás Bodoky, editor-in-chief of 
atlatszo.hu, as witness, after he refused to identify a confidential source. 

Bodoky  did  not  identify his  source as  a  witness  either,  he  claimed  reporter’s  privilege  – 
police  seized  a  hard  disk  as  evidence  at  the  journalist’s  appartment.  Atlatszo.hu  filed 
several legal complaints against the police obligation to identify a journalist’s source and 
seizing  confidential  data,  but  the  Public  Prosecution  Office  –  responsible  for  overseeing 
criminal  investigations  and  ensuring  that  the  police  comply  with  the  law  –  stated  that 
police claim to reveal the sources was justifiable. 

In revising the provisions regulating the protection of information sources, the decision of 
the Constitutional Court made it indispensable to incorporate substantive and procedural 
safeguards,  for  instance  by  prohibiting  investigative  agencies  to  order  a  journalist  to 
reveal his source unless the information sought cannot be obtained in any other manner. 
Furthermore,  the  Court  order  means  that  the  modifications  should  enshrine  the 
journalist’s  right  to  seek  remedy  against  such  an  investigative  resolution  prior  to 
revealing  his  source.  It  will  be  impossible  to  maintain  the  precedence  of  classified 
information, such as state secrets, over the interests in keeping sources anonymous. For 
this  reason,  legislators  should  incorporate  the  option  of  deliberating  between  the 
respective benefits of revealing sources and of keeping them unidentified, even when the 
information in question is classified, and must again uphold the right to seek remedy in 
court.  Additionally,  an  amendment  of  penal  and  civil  procedures  is  called  for  to  make  it 
unequivocally clear that journalists are entitled to protect their sources in all conceivable 
procedures. 

The forthcoming amendment of MC was to clarify that only courts may oblige journalists 
to  reveal  their  sources  of  information  in  exceptional  cases  during  criminal  procedures. 
The  amending  bill  also  aimed  at  introducing  safeguards  into  various  procedural  laws 
strengthening this right of journalists. According to the proposed amendment of MC the 
right  of  journalists  to  keep  their  sources  confidential  would  be  applicable  mutatis 
mutandis to their records and documents.  

The Hungarian Parliament adopted on 24 May 2012 a more flexible version of the much­
criticised media law, that mainly introduced the requested amendments guaranteeing the 
protection  of  journalists’  sources.  According  to  the  new  provisions,  the  media  authority 
NMHH  no  longer  controls  editorial  content  in  print  media,  but  the  examination  of 
audiovisual  media  content  remains  under  its  attributions.  Journalists  can  no  longer  be 
forced by the NMHH to disclose their sources and breaking of the law, such as breach of 
privacy, can only be heard in court. 

Still not included in the amendments is the aspect regarding the political independence of 
the  media  regulatory  authority,  its  president  being  further  appointed  by  the  prime 
minister personally. 

- Specific positive content obligations 

Public  service  media  are  subjects  of  content  obligations  defined  by  the  Public  Service 
Code regarding: the criteria for supporting and sustaining the mother tongue culture, the 
principles of the rules of presenting the culture and life of national and ethnic minorities 
living  in  Hungary,  the  principles  of  communicating  public  service  announcements,  the 
principles  of  keeping  members  of  the  Hungarian  nation  living  abroad  adequately 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

informed,  and  also  of  providing  adequate  information  about  them,  the  principles  of 
formulating  basic  ethical  rules,  other  than  those  in  this  Act,  applying  to  staff  members, 
with special regard to those employed in relation to news and political programmes.”43 

The  Code  has  established  only  fragments  of  professional,  ethical  rules.  Apart  from  the 
general declarations the Code does not provide further guidelines on the creation of the 
content. Is generally understood, that in the lack of professional standard the operation 
of the public service media is running in a black box. 

In  the  commercial  sector  media  service  providers  with  significant  market  power  are 
subject  to  special  content  obligations  (they  are  obliged  to  provide  news  services  and  to 
make a proportion of their content available with subtitles or sign language for persons of 
impaired hearing). 

- Funding schemes for specifically desired content 

MTVA  is  also  the  source  of  funding  public  service  programme  items,  community  media, 
films and contemporary music. Funding is provided by the decisions of the Media Council 
of the NMHH in tendering procedures.  

- Political advertising and/or broadcasting time 

According to the relevant provisions of MM: 

“(3)	  During election campaign periods, political advertisements may only be published in 
accordance  with  the  provisions  of  the  acts  on  the  election  of  members  of 
Parliament,  members  of  the  European  Parliament,  representatives  of  local  and 
county  governments,  mayors  and  the  election  of  minority  self-governments. 
Outside  of  election  campaign  periods,  political  advertisements  may  only  be 
published  in  connection  with  referendums  already  ordered.  The  media  service 
provider  shall  not  be  responsible  for  the  content  of  the  political  advertisement,  if 
the  request  for  the  publication  of  the  political  advertisement  is  in  compliance  with 
the provisions of the Act on election procedures, and in such case the media service 
provider  shall  be  obliged 
further 
consideration. 

the  advertisement  without 

to  publish 

(4) 	 Upon the publication of political advertisements, public service announcements and 
public service advertisements, the person or entity ordering the publication shall be 
identified unequivocally.”44 

- Codes of conduct and their organisational framing 

As  a  new  legal  institution  of  the  media  regulatory  system  the  MM  established  a  co­
regulatory  scheme  in  which  the  self-regulatory  organisations  and  the  Media  Council  of 
the  NHMM  work  together  in  favour  of  a  more  flexible  and  more  effective  prosecution  of 
media rights. 

The  MM  contains  also  the  mechanism  of  cooperation  in  detail45.  The  self-regulatory 
organisations should draw up their codes of conducts, and sign an administrative contract 
with  the  Media  Council  of  the  NMHH.  According  to  the  authorization  which  derives  from 
these documents the organisations can carry out self-management activities among their 

43  MM 96. §. 
44  MM 32 (3)-(4). 
45  MM 190-196. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

members46. On this basis the co-regulation creates a connection between the authority of 
the  state  and  the  union  of  media  market  actors.  .Nevertheless,  self-regulatory  bodies 
operating  also  as  co-regulatories  are  forums  of  the  first  instance  in  case  of  public 
complaints concerning their members. Complaints come in the second ground before the 
authority,  for  official  adjudication,  which  obliges  the  members  concerned  to  follow  the 
self-regulatory forum just in need. Funding for performing the co-regulatory tasks is also 
provided to the self-regulatory organisations by the Media Council of the NMHH47. From 
one  side  the  bodies  of  the  new  legal  institution  keep  distance  both  from  the  state  and 
from  the  market  to  fulfil  individually  the  bridge-function  between  them,  but  from  the 
other side the state provides the funding for completing their tasks and the actors of the 
market are the salariats to carry out the tasks. The real loophole is that the rules in case 
of conflicts of interest are not layed down. 

The  other  weakness  of  the  new  legal  institute  is  that  at  the  time  the  drafts  of  the 
regulation  occured,  in  Hungary  there  were  only  two  self-regulatory  bodies  on  this  field 
carrying  out  self-management  activities  among  their  members  according  to  their 
declared  professional  standards.  Voluntary,  effective  and  independent  self-regulation 
does not have a long tradition, stable basis, it can hardly fulfil the tasks the co-regulation 
put on it without the impair of the professional background. The regulation conceals the 
prospect  for  the  self-  and  co-regularories  to  become  the  alternative  dispute  resolution 
forum of the Media Council of the NMHH.  

At  the  moment  there  are  four  organisations  performing  self-regulatory  tasks  within  this 
system. 

These are: 

  the Association of Hungarian Content Providers (MTE)48, 

  the Association of Hungarian Electronic Broadcasters, 

  the Association for Self-regulating Advertisers (ÖRT)49, and 

  the Association of Hungarian Press Publishers (MLE)50. 

According  the  latest  analyses  public  complaints  do  not  arise  at  the  associations.  The 
reason  can  be  the  complicated  process  prior  to  sending  in  a  complaint  or  that  the 
complaint forum function of the assosiations are not part of the common knowledge yet. 

- The role and functioning of regulatory authorities in these respects 

The media authority is responsible for applying the rules of MC and MM in this regard too. 
Decisions of the NMHH are subjects of judicial control.  

It  is  also  the  role  of  the  NMHH  to  supervise  the  activities  of  the  self-regulatory 
organizations,  as  mentioned  above,  in  accordance  with  the  agreements  concluded  with 
the respective parties. 

46  MM 191. (1)
 
47  MC 190 – 202. §.
 
48 

49 

50 

http://www.mte.hu/eng_egyesulet.html.
 
http://www.ort.hu/.  

http://www.mle.org.hu/.
 

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  Distribution Aspects 

Distribution aspects of electronic media are dealt with primarily within the framework of 
telecommunications law. 

- Access to frequencies 

Frequency management is the role of the NMHH. Act LXXIV of 2007 on digital switchover 
and  on  rules  of  programme  distribution  provides  a  comprehensive  set  of  rules  for 
distributing radio and television programmes. The act defines 31 December 2014 as the 
date of digital switch-over (analogue switch-off) of television broadcasting51. The original 
date was 31 December of 2011, but the Parliament modified it several times because of 
the  deficiencies  of  public  information  and  the  deficiencies  of  forming  the  financial  aid 
system,  and  because  of  the  market  uncertainties.  The  former  telecommunications 
authority  tendered  five  nationwide  digital  television  and  two  nationwide  digital  radio 
frequencies  in  2008.  The  object  of  the  tendering  was  the  operating  of  the  digital 
terrestrial platforms. The winner, the Antenna Hungaria owned by Télédiffusion de France 
(TDF), is entitled to distribute the digital capacities to the media service providers. Media 
service  providers  on  the  digital  terrestrial  platform  do  not  need  to  take  part  on  specific  
tender  procedures.  They  have  to  register  at  the  Media  Council  and  to  agree  with  the 
operator  on  the  conditions  of  digital  transmission.  The  procedure  of  the  local  digital 
switch-over  is  not  clarified  yet,  in  spite  of  the  fact  that  the  new  media  act  contains  the 
applicable procedure rules. 

A  frequently-cited  recent  case  of  controversy  related  to  tendering  broadcasting 
possibilities  via  analogue  terrestrial  frequencies  is  the  case  of  Klubrádió.52  This  is  a 
regional  radio  station  presenting  mainly  news  and  current  affairs.  As  the  broadcasting 
contract of the station expired the NMHH launched a tender concerning the frequency it 
operates  on.  Having  lost  the  tender  Klubrádió  has  initiated  the  judicial  review  of  the 
process.  The  court  examining  the  case  has  found  that  the  procedure  of  the  NMHH  was 
not  in  accordance  with  the  relevant  provisions  of  MM  and  annulled  the  decision  of  the 
authority. 

The  future  of  Klubradio  may  well  hinge  on  the  outcome  of  two  court  reviews.  The  first 
has to do with the tender announced for the 92.9 MHz frequency in Budapest. Although 
Klubradio  won  the  tender  in  April  2010,  the  Media  Council  that  had  formed  in  the 
meantime  refused  to  sign  a  contract  with  the  station.  The  other  process  reviews  the 
results of the tender for the 95.3 MHz frequency, in which Klubradio finished as a close 
second bidder. In both litigations, the court ruled — in the first instance in the first case, 
and in a final and non-appealable judgment in the second case — that the Media Council 
had violated the law. It clearly follows from these judgments that Klubradio actually won 
both tenders. 

In the case of the 92.9 MHz frequency, the Media Council sought to justify its refusal to 
sign a contract with the station by saying that Klubradio had not been eligible to file a bid 
in the first place, because it was airing broadcasts at the time using another frequency in 
Budapest. However, the station had made the commitment, obeying the requirement set 
forth in the tender announcement, to resign that other frequency if it won. It is true that 
certain  lawsuits  over  other  radio  tenders  pending  at  the  time  did  feature  similar 
rationalizations about initial eligibility, but these arguments had disappeared by the time 
those  cases  reached  final  judgment.  Furthermore,  even  if  there  had  been  a  flaw  in 

51 

52 

Act LXXIV of 2007 38. § (1).
 
Summary of the Case of Klub Radio, http://mertek.eu/en/article/summary-of-the-case-of-klub-radio. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

Klubradio’s  bid,  it  would  not  have  affected  the  winning  bid  unless  another  bidder 
contested the final result in court. Consequently, entering into contract with the winning 
bidder — with Klubradio, in the case of the 92.9 MHz frequency — is not an option but an 
obligation and a liability, and at once the only way to uphold the option of the losers to 
seek legal redress in their turn. 

Ultimately, the court not only declared that the Media Council had acted against the law 
by  refusing  to  sign  the  contract,  but  in  effect  produced  that  contract  itself  by  virtue  of  
this  very  judgment.  The  Media  Council,  nevertheless,  filed  an  appeal  against  this  first-
instance decision. 

In the case of the 95.3 MHz frequency, Klubradio appealed the Media Council’s resolution 
after  it  had  lost  to  a  competitor  by  a  few  points.  In  some  of  its  parts,  the  result  of  the 
tender is bound to objective criteria, in the evaluation of which the Media Council has no 
discretion to deliberate, and the number of points can be calculated beyond any dispute. 
The other part of the total awarded score, however, comes from the quality assessment 
of the proposed programme schedule, where the authority can easily tailor points to suit 
its preferences, and ultimately to the end result it would prefer to see. The suspicion that 
this  is  indeed  what  happened  is  substantiated  by  the  fact  that,  in  the  course  of  the 
lawsuit,  the  Media  Council  modified  its  own  explanation  originally  attached  to  the 
resolution in respect of these very subjective criteria. 

Finally,  the  court  annulled  the  result  of  the  tender  citing  formal  errors,  noting  that  the 
winning  bid  was  not  affixed  by  properly  authorized  signatures.  The  court  then  ordered 
the  Media  Council  to  reevaluate  the  submitted  bids.  Since  the  original  evaluation  had 
relegated Klubradio to the second place, the outcome of this reevaluation could hardly be 
other  than  declaring  Klubradio  as  the  winner.  The  Media  Council,  however,  has  not 
passed a new resolution in the matter ever since. 

After  all  these,  the  Parliament  intervened  in  the  court  procedure  in  June  2012  by 
modifying the Media Act.53 The final text of the modification – which had more versions 
before the passing – contains three risks to Klubradio. There is no process to convert the 
contract concluded on the basis of the old media law to a contract appropriate to the new 
law. Secondly, the Klubradio cannot get a community license. According to the new law, 
community  status  can  be  awarded  just  in  a  tender  that  was  published  by  the  Media 
Council or in a specific process that can be initiated by a radio or television provider that 
does not use frequencies; Klubradio not meeting these requirements. In the end, it can 
be  only  concluded  that  the  future of  Klubradio  depends on  the  law interpretation  of  the 
court in the 92.9 MHz case. 

Evaluation  of  the  tendering  practice  of  NMHH  proves  the  marginalization  of  former 
incumbent  radio  stations,  while  the  right-wing  Lanchid  Radio  and  two  religious  stations, 
Maria Radio and Europa Radio, won several local frequencies.54 

- Access to distribution networks and control of actual conditions 

MM defines specific rules for securing pluralism on distribution network as follows: 

“(1)  The number of media services in the providers of which the same undertaking has a 
qualifying holding shall not exceed one quarter of the audiovisual media services or 
half the radio media services distributed on the given transmission system. 

364 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

(2)  	 The  number  of  media  services  the  providers  of  which  also  perform  media  service 
distribution  activities  or  in  the  providers  of  which  the  same  media  service 
distributor undertaking has an ownership stake shall not exceed one quarter of the 
audiovisual  media  services  or  half  the  radio  media  services  broadcasted  on  the 
given transmission system. 

(3)  	 The  ratios  defined  under  Paragraphs  (1)-(2)  shall  also  apply  to  the  programme 
package,  offered  by  the  media  service  distributor  undertaking  to  viewers  or 
listeners,  which  had  the  highest  number  of subscribers  at  the  end  of  the  previous 
calendar year in the given transmission system”55 

Beyond  specific  rules  radio  and  television  programme  distribution  is  also  subject  of  the 
general rules of competition law. 

- Must-carry/must-offer rules for electronic media 

The  role  of  the  multiplex  operators  is  developed  by  the  act  as  a  “strong”  one.  In  this 
model,  while  complying  with  a  set  of  “must-carry”  obligations,  multiplex  operators  are 
free to decide which programmes they distribute.  

Detailed “must-carry” and “must-offer” rules for platform operators (most importantly for 
cable operators) are defined by the MM56. 

Beneficiary  media  service  providers  of  the  must-carry  rules  are  the  public  service 
broadcasting  providers  and  the  community  providers.  All  platform  operators  have  to 
distribute 4 PSB channels, 2 local and 3 local or regional community channels. The Media 
Authority  may  define  2  other  PSB  channels  and  1  community  channel  as  subject  of  the 
must-carry  rules.  The  biggest,  so-called  influential  media  service  distributors  have  an 
obligation  to  contract  in  respect  of  three  further  community  media  services.  Altogether, 
media  service  distributors  have  to  distribute  14  channels;  these  obligations  are  a 
significant  burden  on  the  platform  operators.  Furthermore,  the  criteria  of  community 
services  are  not  clear  enough  to  prevent  abuses.  The  rules  made  possible  to  new 
channels  as  community  providers  to  get  into  the  cable  packages  and  demand  a  large 
amount  of  copyright  fee  from  the  operator.  The  last  modification  of  the  Media  Act  has 
reacted  on  this  failure;  according  to  the  modification,  if  the  community  media  service 
provider  and  the  platform  operator  have  debates  on  the  distribution  conditions,  the 
media  authority  will  decide  this  debate  in  the  way  that  it  will  define  the  price  of 
distribution in 0 HUF. 

These  prescriptions  are  completed  with  some  must-offer  obligations.57  A  media  service 
provider  with  significant  influence  or  a  media  service  provider  in  which  an  influential 
media  service  distributor  has  a  qualifying  holding  shall  contract  with  any  media  service 
distributor  in  respect  of  all  its  linear  media  services  in  order  to  be  able  to  transmit  the 
media  services  within  the  distributor’s  programme  packages.  The  obliged  media  service 
provider  may  not  make  the  conclusion  of  an  agreement  pertaining  to  any  of  its  media 
services,  or  the  determination  of  the  material  contents  of  this  agreement,  conditional 
upon  the  entering  into  another  agreement  in  respect  of  its  other  media  services  which 
are not essential for the distribution of the given media service, or upon the purchase or 

53 

54 

On  Lex  Klub  Radio:  The  legislative  machinery  will  not  rest  …,  http://mertek.eu/en/article/on-lex-klub­
radio-the-legislative-machinery-will-not-rest. 
http://mertek.eu/sites/default/files/reports/report_on_tender_procedures.pdf. 

55  MM 72. § (1) – (3). 
56  MM 73 - 81. §. 
57  MM 78. § 

365 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
 
 
 
 
  
  
  
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

use of other services or products. The obliged media service provider and media service 
distributor  shall  formulate  the  agreement  and  the  contractual  terms  and  conditions 
thereof  –  in  particular,  but  not  solely  the  fee  –  in  line  with  the  principle  of  equal 
treatment,  by  setting  an  affordable  price  level  and  having  regard  to  the  principles  of 
technological neutrality and economies of scale. 

- The role and functioning of regulatory authorities in these respects 

The supervision of the implementation of the rules above by operators is the role of the 
NMHH.  The  Media  Council  is  entitled  to  decide  the  debates  on  must-carry  or  must-offer 
rules between media service providers and platform operators. 

  Access to Information 

- Transparency of media ownership situations 

The  registry  of  media  service  providers,  as  described  in  this  paper  under  the  heading 
“market  entry”  is  public.  This  is  complemented  by  the  publicity  of  the  records  of  the 
courts of registration.  

- Accountability of public service media 

In this regard reference has to be made to the director generals’ obligation to prepare a 
report  on  „whether  the  media  service  provider  under  their  management,  according  to 
their  own  assessment,  has  fulfilled  the  requirements  outlined  in  [MM]  regarding  the 
objectives and basic principles of public media service.”58 If the Board of Public Services, 
after  having  personally  interviewed  the  CEO,  decides  to  reject  the  report,  the  Board  of 
Public  Services  may  consider  submitting  a  proposal  to  the  Board  of  Trustees  for  the 
termination of the CEO’s employment relationship. 

During  the  course  of  May  all  management  reports  have  been  accepted  by  the  Board  of 
Public Services. 

A  major  gap  of  the  Hungarian  media  legislation  is  that  the  MM  does  not  make  a  clear 
description  on  the  public  service  mandate.  In  this  context,  the  budget  to  render  the 
public service mission is consequently missed. The current financing method of the PSB 
most probably does not fulfil the requirements of the EU Commission on the State aid to 
PSB. 

Due  to  the  lack  of  essential  regulation,  it  is  not  able  to  establish  and  maintain  a 
transparent operation. 

As  to  the  role  and  composition  of  the  Board  of  Public  Services  see  the  reference  to 
“participation in bodies of media operators (viewers’ and listeners’ councils or alike) or in 
(self-)regulatory authorities/bodies” below. 

- Freedom of information laws 

Reference  shall  also  be  made  to  Act  CXII  of  2011  on  Informational  Self-determination 
and Freedom of Information59 (“Freedom of Information Act”). Beyond defining the right 
of  the  individual  to  privacy  in  respect  of  his/her  personal  data  the  act  also  defines  the 

58  MM 97. § (8). 
59 

http://www.naih.hu/files/act_2011_cxii_in_eng_v2.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

circle of data of public interest and provides for their openness as a general rule. For the 
protection  of  the  rights  enshrined  in  the  Freedom  of  Information  Act  the  Authority  for 
Data  Protection  and  Freedom  of  Information60  has  been  set  up  as  an  autonomous 
regulatory organ. 

The  act  also  defines  the  procedure  of  granting  access  to  data  of  public  interest.  In 
accordance with its rules  

	  “Requests for accessing data of public interest may be made verbally, submitted in 

writing or electronically by anyone. “61 

	  “The  body  undertaking  public  duties  controlling  the  data  shall  satisfy  the 
requirements  relating  to  accessing  data  of  public  interest  within  the  shortest 
possible space of time, but within a maximum period of 15 days.”62 

Beyond  providing  information  on  request,  state  institutions  also  have  the  obligation  to 
publish  a  circle  of  specified  data  of  public  interest  “free  of  charge  in  digital  format  on 
internet  websites  for  anyone  interested,  without  disclosing  any  personal  ID  data  or 
applying  restrictions,  in  printable  format  ensuring  the  opportunity  to  copy  parts  of  the 
text  without  data  loss  or  distortion,  enabling  the  document  to  be  viewed,  copies  to  be 
downloaded and printed, as well as network data transfer”63 . Access to such data cannot 
be subject to the disclosure of personal data64. 

-	 Accessibility of products/services and distribution networks 

There are no information to mention or applicable here. 

	  “Have a Say on ...” 

-	 Complaint procedures, “Ombudsmen” 

As  a  representative  of  the  public  in  issues  related  to  telecommunications  and  media 
services  MM  established  the  institution  of  the  Media  Commissioner65.  The  role  of  the 
Commissioner is to consider complaints from members of the public and initiate dialogue 
with the service providers.  

Since his appointment the Commissioner, inter alia, conducted an inquiry regarding SMS 
votings  in  television  programmes.  This  resulted  in  a  report  and  a  recommendation. 
Another  action  of  the  Commissioner  was  the  initiation  of  a  professional  debate  on  the 
portrayal of suicide in the media. 

It  is  to  note  that  on  the  basis  of  the  recent  decision  165/2011.  (XII.20.)  AB  of  the 
Constitutional  Court66,  the  amendment  currently  under  acceptance  by  the  Parliament 
provides  that  the  Commissioner  will  no  longer  be  in  the  position  to  consider  complaints 
with regard to any individual media outlet. 

60 

61 

62 

63 

64 

65 

66  

http://www.naih.hu/information.html. 

Freedom of Information Act 28. § (1). 

Freedom of Information Act 29. § (1). 

Freedom of Information Act 33. § (1). 

Freedom of Information Act 33. § (1). 

http://www.mhb.nmhh.hu/?id=hfjkmenu&mid=1373.
 
http://hunmedialaw.org/dokumentum/94/08_1652011_Abh_final.pdf.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Participation in media operators/(self-)regulatory bodies 

In order to carry out the function of “social control over the public media service”67 MM 
instituted  the  body  of  the  Board  of  Public  Services.  This  board  constantly  monitors  how 
public  service  orientation  is  manifested,  and  exercises  certain  control  over  the  public 
media service providers68. The membership of the board is composed of representatives 
of organisations of the civil society, churches, and other similar associations. 

2.2.12.3.  Main Players in the Media Landscape 

Hungary  is  a  relatively  small  media  market  with  approximately  3.8  million  households. 
This has definitive consequences for its media markets.  

2.2.12.2.1. 

Radio 

At the national level there are two commercial radio channels Class FM and Neo FM. They 
concluded  their  broadcasting  contract  with  the  ORTT  (the  predecessor  of  the  Media 
Council of the NMHH) in 2009 following a tender. The tender itself was scandalous, and 
the president of the ORTT has resigned after the decision. It was clear that the financial 
bids of the two winners were absolutely unrealistic (Class FM: 200 million HUF + 55% of 
the  revenue,  Neo  FM:  200  million  HUF  +  50%  of  the  revenue  annually).  The 
developments of the last years proved the worst-case scenarios in two ways, the political 
forces determining the sustainability of the two stations: Class FM, closely related to the 
biggest  governmental  party,  is  heavily  financed  by  making  available  airtime  to 
commercials of state-owned companies (e.g. gambling monopoly), while Neo FM, linked 
to the Socialist Party, has no prospects for profitable operation. It was unable to pay the 
licence fee, so the NMHH cancelled its contract on 20 June 2012. Neo FM will  be closed 
after the legal procedure. 

The  public  service  radio  is  present,  inter  alia,  with  three  national  programmes  on  the 
market.  MR1-Kossuth  is  a  generalist  channel  focusing  mainly  on  news  and  talk.  MR2­
Petőfi is dedicated mainly to light entertainment (i.e. contemporary music). On the other 
hand, the backbone of the programme MR3-Bartók is provided by classical music. 

Among  the  national  radios  Class  FM  has  the  highest  ratings.  It  is  followed  by  MR1­
Kossuth and Neo FM69. 

The  national  level  of  the  radio  market  is  complemented  by  a  considerable  segment  of 
local  radio  channels.  Currently  there  are  222  local  broadcasters  in  the  registry  of  the 
NMHH,  most  of  them  are  local  radio  stations  (local  television  channels  account  for  a 
significantly smaller portion among them). Local radios have typically high ratings70. 

2.2.12.2.2. 

Television 

A  definitive  characteristic  of  the  Hungarian  television  broadcasting  landscape  is  the 
almost  total  lack  of  the  regional  and  local  level.  Although  there  are  a  number  of  local 
television channels they cannot be considered as a significant part of the media market, 
both in terms of ratings and revenues. As to the different actors of the Hungarian media 
landscape their three main types can be distinguished: 

67  MM 97. § (6).
 
68  MM 97. § (7).
 
69 

70 

Data of 2011 december, IPSOS-GfK, ReachN.
 
IPSOS-GfK, research of 2011 September – available at:
 
http://www.helyiradiok.hu/index.php?action=kutatas_hallg. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  In market terms the most important broadcasters are M-RTL Zrt. and MTM-SBS Zrt, 
the operators of the two national terrestrial television channels under the brands of 
“RTL-Klub” and “Tv2”. Both of them are subsidiaries of major pan-European media 
enterprises:  M-RTL  is  part  of  the  RTL  Group,  MTM-SBS  has  been  acquired  by  the 
Pro7Sat.1-holding. They began to provide their programmes right after the creation 
of  the  dual  media  system  in  1997  at  about  the  same  time.  Their  broadcasting 
contracts  are  valid  until  the  summer  of  2012.  After  the years  of  close  competition 
between  the  two  national  commercial  channels  RTL  Klub  became  the  dominant 
player.  Today  RTL  Klub  is  clearly  the  market  leader,  while  market  share  of  Tv2  is 
declining and it generated huge financial loss in 2012. There are rumours about the 
sale  of  MTM-SBS  and  the  potential  buyer  is  Infocenter.  It  is  one  of  the  biggest 
Hungarian media groups, partly owned by Zsolt Nyerges, who is closely related to 
the  current  right-wing  government.  Infocenter  owns  Class  FM  commercial  radio, 
Heti  Valasz,  a  political  weekly  magazine,  and  Lanchid  Radio,  the  regional  radio 
station that acquired several local frequencies in the first months of 2012.   

	  The  second  most  significant  group  of  television  broadcasters  in  Hungary  is  the 
segment  of  thematic  channels.  There  are  approximately  100  television  channels 
available for the Hungarian audiences in the national language as parts of the offers 
of  various  cable  television  and  satellite  network  operators.  It  is  worth  noting  that 
only  22  of  them  operate  under  the  Hungarian  jurisdiction.  The  rest  are  registered 
mostly in the Czech Republic, Romania or in the UK. 

	  The two public service television companies, MTV and Duna Tv, have obviously not 
recovered from the shock they suffered by losing their monopoly in 1997, when M­
RTL  and  MTM-SBS  entered  the  Hungarian  market.  Now,  compared  to  their  huge 
economic weight (their aggregated yearly turnover equals approximately one third 
of  the  total  Hungarian  market’s)  their  audience  share  is  extremely  low  (in  the 
fourth  quarter  of  2011  it  was  13.6%)71.  They  operate  four  public  television 
channels. 

2.2.12.2.3. 

Press and Publishing 

The  daily  of  the  largest  circulation  is  Metropol,  with  an  average  of  274 296  copies72 
disseminated per issue. However, Metropol is distributed for free, therefore it cannot be 
compared to other newspapers.  

The daily newspaper sold in the highest numbers is the Ringier-owned tabloid Blikk with 
173 969 copies sold as a daily average.  

The  best  selling  political  daily  is  the  Ringier-owned  Népszabadság,  with  61 811  copies 
sold  per  day.  The  other  major  political  dailies  are  Magyar  Nemzet  (with  44 610  copies 
sold as daily average), Népszava (with 19 149 copies sold as daily average) and Magyar 
Hírlap (with 10 651 copies sold as daily average).  

Concerning  the  readership  data,  Blikk  is  the  market  leader  daily  newspaper  (1,043,000 
readers), followed by Metropol (623,000 readers) and Nemzeti Sport, the only Hungarian 
sports newspaper (261,000 readers). The most popular political daily, Népszabadság, has 
only 222,000 readers.73 

71	 

72	 

73	 

http://www.agbnielsen.com/Uploads/Hungary/stat_shr_negyedeves_2011.pdf. 
The source of the data in this chapter is http://www.matesz.hu/data/#mainpart_2. All data reflects to the 
4th quarter of 2011. 
2011Q4 data. Source: Marketing&Média (2012 April 25-May 8, p. 22). 

369 


 
 
 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
  
 
 
 
 
 
                                                 
  
  
  
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

In  the  local  press  sector  the  German  Axel  Springer  publishing  house  is  still  the  largest 
player  with  ten  titles  published  daily.  The  market  of  weeklies,  monthlies  and  other 
magazines are dominated by Axel Springer, Ringier and Sanoma.  

In  general,  the  market  of  the  printed  press  is  characterised  by  a  constant  and  general 
decline. Népszabadság, for example, has lost more than a third of its readers since 2008. 
However, due to the similar scale of losses at other newspapers, it managed to keep its 
leading position among political dailies even with this shrinkage. 

2.2.12.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Non-linear  audiovisual  media  services  account  for  a  small  part  of  the  Hungarian 
audiovisual market. There are currently 59 non-linear media service providers registered 
at  the  media  authority.  These  services  are,  in  most  of  the  cases,  ancillary  services  to 
other content services (radio and television programmes).  

The  most  frequently  visited74  Hungarian  website  is  origo,  a  subsidiary  of  the  incumbent 
telecommunications services provider T-Com. The other most visited group of websites is 
of  the  Central  European  Media  &  Publishing  (CEMP)  group,  index  being  the  largest  of 
them. Both origo and index are news sites.  

Ringier  (Népszabadság  Online  –  Nol),  Sanoma  (Startlap)  and  Axel  Springer 
(Világgazdaság online, internet versions of regional newspapers) are also present in the 
on-line segment of the Hungarian media market with their content services.  

Just  like  in  other  countries,  blogs,  social  networking  sites  and  other  web  2.0  services 
became  an  important  field  of  the  public  debates;  mainstream  media  companies  have 
decreasing influence on agenda setting.  

2.2.12.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

The  dominant  platform  of  audiovisual  programme  distribution  is  cable  in  Hungary.  The 
share of the particular programme distribution methods can be outlined as follows75: 

Table 72 HU: Shares of distribution platforms  

Analogue cable 

Digital cable/IPTV 

Satellite with subscription 

Digital terrestrial 

Analogue terrestrial 

40% 

18% 

24% 

3% 

14% 

The three main operators of programme distribution platforms are:  

  UPC (with 25.8% of the television households) 

  Digi (with 23% of the television households) 

  T-Home (with 22.7% of the television households)76 

74 

75 

The basis of the information provided under this chapter is the data of Webaudit concerning the week of 
20th – 26th  of February this year. 
http://english.nmhh.hu/dokumentum/150011/tv_gyorsj_2012_marcius_eng.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  digital  switchover  on  the  terrestrial  radio  and  television  platforms  began  in  2008, 
when  the  telecom  regulator  NHH  (predecessor  of  the  current  NMHH),  following  a 
tendering  procedure,  has  concluded  the  administrative  contracts with  Antenna Hungária 
Zrt.  for  digital  radio  and  television  programme  distribution.  According  to  data  of  the 
NMHH the share of digital transmission was 60.0% on the Hungarian television market in 
March of 201277. The share of digital terrestrial television was 3%78. 

As regards Internet access the leading fix internet providers are T-Home (a subsidiary of 
Deutsche  Telekom),  UPC  and  Digi.  operators.  Although  the  dominant  way  of  internet 
access is fixed access, mobile broadband services are gaining an increasing share on the 
market, all of the three players (T-mobile, Telenor, Vodafone) have growing subscription 
base.79. 

2.2.12.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Data on media usage can be obtained from various actors:  

	  Radio audience measurement is provided by the GfK80/Ipsos81–consortium;    

	  Television ratings are provided by Nielsen Audience Measurement82; 

	  Circulation  of  newspapers  is  followed  by  the  Hungarian  Association  for  Controlling 

Circulation (MATESz) Print Audit83; 

	  Data on the usage of websites are provided by gemius/Ipsos84. 

According to the estimates of the Hungarian Advertisers’ Association the total volume of 
the  Hungarian  advertising  market  was  151.474  billion  Huf  (approximately  587.337 
million Euros) in 201185. The shares of the main types of media within this total turnover 
were86: 

Table 73 HU: Advertising market shares 

Television 

Print media 

Internet 

Outdoor + Ambient 

Radio  

36.2% 

27.5% 

18.8% 

10.0% 

4.9% 

76	 

77	 

78	 

79	 

80	 

81	 

82	 
83	 

84	 

85	 

86	 

of 

see 

details 

research 

source of data: nmhh flash report on television 2012 march, available at
http://english.nmhh.hu/dokumentum/150011/tv_gyorsj_2012_marcius_eng.pdf. 
http://english.nmhh.hu/dokumentum/150011/tv_gyorsj_2012_marcius_eng.pdf. 
http://nmhh.hu/dokumentum/151795/dig_atallas_2012_tavasz_webre_vegleges.pdf. 
the 
for 
2220/lakossagi_net_2011_vegleges_webre.pdf. 
http://www.gfk.hu/index.en.html. 
http://www.ipsos.hu/site/?lang=en. 
http://www.agbnielsen.net/whereweare/dynPage.asp?lang=english&id=318&country=Hungary. 
http://www.matesz.hu/data/index.php. 
http://opa.gemius.hu/. 
http://mrsz.hu/download.php?oid=Ta3f31594b5d0814974b2fe97a550276;aid= 
T73735504853071a9b4cc369a0a43f00. 
http://mrsz.hu/download.php?oid=Ta3f31594b5d0814974b2fe97a550276;aid= 
T73735504853071a9b4cc369a0a43f00. 

the  NMHH 

2011: 

of 

http://nmhh.hu/dokumentum/ 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  overall  turnover  of  the  Hungarian  advertising  market  is  constantly  declining  since 
2008. 

2.2.12.4.  Conclusion and Recommendations 

Media fulfils the same dual role in every culture: it preserves and develops the common 
cultural  heritage  and  provides  the  free  flow  of  credible  information  necessary  for  the 
functioning of democracy. By the very nature of media economics these roles require the 
same scale of commitment from small and great countries. In this context the relatively 
small size of the Hungarian media  market means that the Hungarian media has to fulfil 
its role on a significantly smaller economic basis than some of its European counterparts. 
This  leads  to  sometimes  unavoidable  compromises  in  terms  of  quality  and  diversity  of 
content. 

As regards regulation reference has to be made to the widespread international criticism 
expressed in relation with the legislation of 2010. The Hungarian media regulation, as it 
is indicated by the recent decision of the Constitutional Court, and the recent motion of 
the  Commissioner  for  Fundamental  Rights  certainly  had  and  has  its  weaknesses. 
However,  these  decisions  also  indicate,  that  internal  correctional  mechanisms  are 
functional in this respect. 

As conclusions and recommendations, we can cite the analyses and recommendations of 
the international organisations. 

The Constitutional Court failed to even dredge up the most sensitive regulatory issues in 
his decision in December 2011. For instance, it failed to address the extent of sanction, 
the  independence  of  the  Media  Council,  and  the  constitutional  viability  of  the  entire 
system of public service institutions. It will be impossible to restore freedom of the press 
without solving these problems. Although the Constitutional Court refrained from forcing 
the legislature to make a move in these issues, there are places it could well turn to for 
inspiration to hammer through comprehensive amendments even more far-reaching than 
the  considerations  itemized  above.  Many  studies  and  analyses  of  the  Media  Act  have 
been  published  since  its  adoption,  both  in  Hungary  and  abroad.  These  have  been 
invariably swept aside or simply ignored by the government. The situation has changed 
somewhat  in  that  the  Council  of  Europe  is  now  looking  into  the  compatibility  of  the  Act 
with  the  European  Convention  on  Human  Rights  and  various  Council  of  Europe 
documents.  Lending  further  weight  to  the  investigation,  the  Vice-President  of  the 
European  Commission  responsible  for  the  Digital  Agenda  publicly  forced  the  Hungarian 
Minister  of  Public  Administration  and  Justice  to  promise  that  the  findings  will  be 
respected. 

The most comprehensive critics were formulatad by the Council of Europe in May 2012.87 
This expertise analysed the problems of the Hungarian media acts on 47 pages. There is 
no  point  in  the  acts  that  are  not  object  of  considerable  criticism.  Most  of  the  critic  has 
turned  up  in  former  documents  of  the  Council  of  Europe  and  other  NGOs,  but  this 
analysis  makes  it  clear  that  the  acts  cannot  be  improved  by  partial  modification  but 
rather they need to be fundamentally overviewed. The result of this overview is probably 
a new legislation. 

87 

Expertise by Council of Europe experts on Hungarian media legislation,
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CE8QFjAA&url=http%3A% 
2F%2Fwww.coe.int%2Fc%2Fdocument_library%2Fget_file%3Fuuid%3Dfbc88585-eb71-4545-bc5d­
b727e35f59ae%26groupId%3D10227&ei= 
1iTrT_-1GIbd4QTTorzmAg&usg=AFQjCNHHwEFUxRlvj6eB3UeQwjj2Stkaqg&sig2= 
iXkijJCYhDh0r-bSWdAyig. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

In March 2012, the Council of Europe formulated four objections to be taken into account 
in  order  to  promote  the  legislative  process.  These  objections  point  the  way  far  beyond 
the  Resolution  of  the  Constitutional  Court,  and  both  their  wording  and  timing  clearly 
suggest  that  their  aim  was  to  influence  the  amendment  in  meaningful  ways.  In  its  own 
civilized  European  manner  —  and  perhaps  erring  on  the  side  of  political  correctness  — 
the  CoE  voiced  its  expectations  concerning  the  political  independence  of  the  Media 
Council,  the  reformation  of  the  system  of  sanctions,  the  clarification  of  media-rights 
prohibitions  and  obligations,  and  the  protection  of  sources.  Even  if  the  government 
chooses  to  consider  the  CoE’s  position  a  legislative  “must”,  the  issue  of  the  Media 
Council’s independence is likely to be bogged down in endless debate. This is because the 
government  and  the  ruling  parties  are  convinced  that  the  Media  Council  is  independent 
as it is, and it will be very difficult to move away from this position. 

In February 2011, the Council of Europe and its Commissioner for Human Rights posted a 
comprehensive  report  on  the  Media  Act  and  made  proposals  for  its  amendment.88  The 
Council  of  Europe,  however,  is  not  the  only  body  that  has  compiled  a  detailed  list  of 
objections.  In  February  2011,  the  Organization  for  Security  and  Co-operation  in  Europe 
(OSCE)  published  a  study  on  the  Media  Act.89  In  April  that  year,  the  UN  Special 
Rapporteur  on  the  promotion  and  protection  of  the  right  to  freedom  of  opinion  and 
expression,  delivered  a  set  of  critical  observations  and  recommendations  in  a 
statement.90 The overwhelming majority of these recommendations are yet to be fulfilled 
despite  the  fact  that  the  National  Assembly  satisfied  all  expectations  of  the  European 
Commission regarding harmonization with European Union media laws last March. These 
revisions, however, left the most serious doubts about the Act unaddressed. 

The cause of abolishing the regulation of print and online media products has been most 
firmly embraced by the OSCE, which protests the hazy definitions used by legislators as 
something  that  permits  further  services  to  be  subjected  to  the  Media  Act.  The  UN 
Rapporteur  also  considers  the  scope  of  the  regulation  “problematic,”  and  recommends 
limiting  it  to  the  audiovisual  sector  in  relation  to  distribution  of  frequencies,  while 
encouraging self-regulation of the print media and the Internet. 

The  February  report  of  the  Council  of  Europe  voiced  doubts  over  the  ambiguity  of 
stipulations,  particularly  as  regards  balanced  coverage.  Although  the  requirement  of 
balanced  coverage  has  since  been  narrowed  down  to  radio  and  television  programming 
from the original version of the Media Act, this does not affect the validity of the Council 
of  Europe’s  previous  finding  that,  “whether  or  not  Article  13  is  interpreted  in  a  manner 
which  restricts  media  freedom,  the  very  fact  that  such  a  possibility  exists  is  enough  to 
have a profound chilling effect on media’s preparedness to challenge, dissent and assume 
unpopular  positions.”  It  recommended,  and  continues  to  recommend  in  its  own  gentle 
manner,  that  the  stipulation  of  balanced  coverage  be  abolished  altogether  as  is.  The 
criticism  of  vaguely  worded  provisions,  and  the  requirement  of  balanced  coverage  in 
particular, which permits a variety of subjective and unpredictable interpretations — and 
as  such  belongs  in  the  preamble  to  the  Act  in  the  opinion  of  the  OSCE  —  recurs  in  the 
reports  delivered  by  both  the  OSCE  and  the  UN.  The  UN  Rapporteur  recommends  that 
the  requirement  of  balanced  coverage  not  be  stipulated  by  law  but  regulated  by  media 
organisations  as  voluntary  codes  of  conduct.  The  OSCE  extends  these  doubts  to  the 
provisions  requiring  certain  diversity  of  programming  from  “providers  of  significant 
powers of influence”. 

88 

89 

90 

https://wcd.coe.int/ViewDoc.jsp?id=1751289.
 
http://www.osce.org/fom/75990.
 
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10915&LangID=E.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The OSCE report reserves approval of regulating the interdiction of hate speech by media 
law  exclusively  on  condition  that  the  scope  of  the  regulation  does  not  encompass  each 
type  of  media.  Unlike  the  Hungarian  Constitutional  Court,  the  OSCE  does  not  consider 
regulations  in  excess  of  existing  prohibitions  by  criminal  law  to  be  acceptable  except 
when  confined  to  television  and  radio  broadcasting  at  most.  Additionally,  the  report 
argues that the interdiction of exclusion is laid bare to abuse by permitting a broad range 
of interpretations. 

In the opinion of the Human Rights Commissioner of the Council of Europe, the system of 
sanctions set forth by the Media Act needs substantial revision to be reconciled with the 
Convention  of  Human  Rights  and  case  law  of  the  European  Court  of  Human  Rights  in 
respect  of  freedom  of  expression.  Already  in  February  2011,  the  Commissioner  argued 
that  the  system  of  sanctions  should  be  repealed  altogether  and  violations  dealt  with  on 
the basis of general sanctions available under existing provisions of civil and criminal law. 
Essentially the same recommendation to abolish these sanctions as being frustrating for 
media  providers  and  encouraging  self-censorship  —  and  therefore  detrimental  to 
diversity — can be found in the statement delivered by the UN Rapporteur. 

In  terms  of  the  requirement  to  register  print  and  online  media,  the  Commissioner  went 
much  further  than  the  Constitutional  Court  and  proposed  that  these  media  products 
should be simply excluded from the registration requirements altogether. The UN and the 
OSCE has taken the same view of this matter. 

In their reports, all the international organisations raise criticism against the composition 
and  powers  of  the  media  authority.  Regarding  the  body’s  independence,  the  Council  of 
Europe  concludes  that “[t]he  provisions  regarding  appointment,  composition  and  tenure 
demand  amendment  not  least  because  they  lack  the  appearance  of  independence  and 
impartiality,  quite  apart  from  a  de  facto  freedom  from  political  pressure  or  control.  The 
opinion  refers  to  the  Recommendation  of  the  Council  of  Europe  for  guidance,  which 
enumerates  the  following  safeguards  of  independence:  rules  should  guarantee  that  the 
members  of  these  authorities  are  appointed  in  a  democratic  and  transparent  manner; 
that  immunity  from  instructions  is  given;  that  members  refrain  from  making  any 
statement  or  undertake  any  action  which  may  prejudice  the  independence  of  their 
functions; and that precise rules exist in respect of grounds for dismissing members. The 
OSCE  objects  to  the  Media  Council’s  excessive  powers  encompassing  both  print  and 
Internet-based  media,  and  finds  the  body’s  independence  dubious.  According  to  the 
report,  it  is  imperative  to  guarantee  the  political  pluralism  of  the  media  authority, 
regardless  of  the  degree  to  which  the  ruling  parties  may  be  dominating  in  Parliament. 
The  study  also  takes  issue  with  the  excessive  concentration  of  power  that  subsumes 
control  over  the  operation  of  the  public  service  institutions,  as  well  as  with  the  overly 
long  terms  of  office  to  which  members  of  the  Media  Council  are  appointed.  The  UN 
Rapporteur  is  hardly  more  optimistic  about  the  independence  and  impartiality  of  the 
media authority, which he claims will pose a serious risk of arbitrary applications of the 
law — a jeopardy compounded by the vagueness of the stipulated requirements. In line 
with the other organisations, the Rapporteur recommends that the Government “consider 
alternative  methods  of  nominating,  reviewing,  and  appointing  members  of  the  Media 
Authority.” 

In its opinion delivered in February 2011, the Council of Europe had voiced concerns over 
the  alleged  independence  of  public  service  media  provision,  but  this  issue  did  not  come 
up among the topics dealt with in this year’s assessment. At the time, the opinion found 
that,  under  the  Media  Act,  the  procedure  of  nominating  and  appointing  senior 
management  officials  to  public  service  media  —  a  procedure  crucially  overseen  by  the 

374 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

President of the Media Council — ran counter to CoE standards because it failed to ensure 
freedom from undue political influence. For much the same reason, the opinion criticizes 
the  move  whereby  the  President  of  the  Media  Council  became,  indirectly  through  the 
Media  Support  and  Asset  Management  Fund,  the  employer  of  practically  every  single 
journalist  working  in  public  service  media.  As  for  the  regulation  of  the  public  service 
system,  the  OSCE  report  also  concludes  that  the  current  scheme  of  control  over  the 
institutions fails to guarantee political independence, nor does the regulation of financing 
ensure the independence of day-to-day operations. 

To  sum  up  the  above,  we  recommend  to  the  Hungarian  legislator  to  take  into 
consideration  the  analyses  of  national  and  international  organisations  as  well  as  NGOs 
and accomplish a comprehensive overhaul of the Hungarian media  law. We recommend 
to the European Parliament and other European institutions to give help to this work and 
control the Hungarian governance in this process. 

375 


 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

IRELAND 


2.2.13.	 

Ireland 

2.2.13.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.13.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  Freedom  of  Expression  is  enshrined  in  the  Constitution  of  the  Republic  Of  Ireland 
which states under Article 40, paragraph 6.1 as follows: 

“The  State  guarantees  liberty  for  the  exercise  of  the  following  rights,  subject  to  public 
order  and  morality:  (i)  The  right  of  the  citizens  to  express  freely  their  convictions  and 
opinions. The education of public opinion being, however, a matter of such grave import 
to the common good, the State shall endeavour to ensure that organs of public opinion, 
such  as  the  radio,  the  press,  the  cinema,  while  preserving  their  rightful  liberty  of 
expression,  including  criticism  of  Government  policy,  shall  not  be  used  to  undermine 
public  order  or  morality  or  the  authority  of  the  State.  The  publication  or  utterance  of 
blasphemous,  seditious,  or  indecent  matter  is  an  offence  which  shall  be  punishable  in 
accordance with law”.1 

The  European  Convention  on  Human  Rights  Act,  2003  incorporated  the  European 
Convention  on  Human  Rights  into  Irish  law.  The  Act  provides  in  Section  2(1)  that  “In 
interpreting and applying any statutory provision or rule of law, a court shall, in so far as 
is possible, subject to the rules of law relating to such interpretation and application, do 
so in a manner compatible with the State’s obligations under the Convention provisions.” 

- Specific safeguards and rights for the media 

Media  are  specifically  mentioned  in  the  Constitution  (“organs  of  public  opinion,  such  as 
the radio, the press, the cinema”; television was added to the list by case-law2). 

  Safeguards on regulatory authorities 

The  Constitution  of  the  Republic  Of  Ireland  contains  no  specific  provisions  regarding 
regulatory authorities. 

  Safeguards on “universal service” 

The  fundamental  Law  does  not  include  specific  safeguards  regarding  universal  service 
obligations in the media sector. 

1 

2 

The Constitution of Ireland,
http://www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20Ireland.pdf. 
State (Lynch) v. Cooney [1982] IR 337. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.13.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The  Broadcasting  Authority  of  Ireland  (BAI)  is  responsible  for  the  licensing  of 
broadcasting services3 including those provided by the public service broadcasters, as the 
Broadcasting  Act  stipulates.  All  national,  regional,  local,  special  interest  and  television 
content services are licensed for a period of 10 years. Community, community of interest 
and institutional services are licensed for 5 years or 10 years. 

Section  114  of  the  Broadcasting  Act  specifies  in  detail  the  remit  of  the  national  Public 
Service Broadcaster RTÉ: 

(a)	 

to  establish,  maintain  and  operate  a  national  television  and  sound  broadcasting 
service  which  shall  have  the  character  of  a  public  service,  be  a  free-to-air  service 
and  be  made  available,  in  so  far  as  it  is  reasonably  practicable,  to  the  whole 
community on the island of Ireland, 

(b)	 

to establish and maintain a website and teletext services  

(c) 	

to establish and maintain orchestras, choirs and other cultural performing groups 

(d)  	 to  assist  and  co-operate  with  the  relevant  public  bodies  inpreparation  for,  and 
execution of, the dissemination of relevant information to the public in the event of 
a major emergency, 

(e)	 

to establish and maintain archives and libraries containing materials relevant to the 
objects of RTÉ under this subsection, 

(f)	 

to  establish,  maintain  and  operate  a  television  broadcasting  service  and  a  sound 
broadcasting  service  which  shall  have  the  character  of  a  public  service,  which 
services shall be made available, in so far as RTÉ considers reasonably practicable, 
to Irish communities outside the island of Ireland, 

(g)  	 subject  to  the  consent  of  the  Minister,  the  Minister  having  consulted  with  the 
Authority,  to  establish,  maintain  and  operate,  in  so  far  as  it  is  reasonably 
practicable,  community,  local,  or  regional  broadcasting  services,  which  shall  have 
the character of a public service, and be available free-to-air, 

(h)	  subject  to  the  consent  of  the  Minister,  the  Minister  having  consulted  with  the 
Authority,  to  establish  and  maintain  non-broadcast  non-linear  audio-visual  media 
services, in so far as it is reasonably practicable, which shall have the character of a 
public broadcasting service. 

(i)	 

to establish, maintain, and operate one or more national multiplexes, 

3 

The  Broadcasting  Act,  2009  defines  broadcasting  service  as  “a  service  which  comprises  a  compilation  of 
programme  material  of  any  description  and  which  is  transmitted,  relayed  or  distributed  by  means  of  an 
electronic communications network, directly or indirectly for simultaneous or near simultaneous reception 
by  the  general  public,  whether  that  material  is  actually  received  or  not,  and  where  the  programmes  are 
provided  in  a  pre-scheduled  and  linear  order”.  However,  excluded  from  the  definition  of  a  broadcasting 
service are services provided in a non-linear manner where each user of the service chooses a programme 
from a catalogue of programmes (such as video on demand), and audio and audiovisual services provided 
by way of the internet. 

377 


 
  
 
 
 
 
 
 
 
 
  
  
 
 
 
 
  
  
 
 
 
 
 
 
 
  
 
 
 
 
 
  
 
 
                                                 
  
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

(j)  	

so  far  as  it  is  reasonably  practicable,  to  exploit  such  commercial  opportunities  as 
may arise in pursuit of the objects outlined in paragraphs (a) to (i). 

Article 114 further requires that in pursuit of the stated objects, RTÉ shall, 

(a) 	 be responsive to the interests and concerns of the whole community, be mindful of 
the  need  for  understanding  and  peace  within  the  whole  island  of  Ireland,  ensure 
that the programmes reflect the varied elements which make up the culture of the 
people  of  the  whole  island  of  Ireland,  and  have  special  regard  for  the  elements 
which distinguish that culture and in particular for the Irish language, 

(b)  	 uphold  the  democratic  values  enshrined  in  the  Constitution,  especially  those 

relating to rightful liberty of expression, and 

(c) 	 have regard to the need for the formation of public awareness and understanding of 
the  values  and  traditions  of  countries  other  than  the  State,  including  in  particular 
those of other Member States. 

Section  39  of  the  Broadcasting  Act  2009  regulates  specific  statutory  obligations  in 
relation to the manner and content of coverage. It provides that every broadcaster shall 
ensure that 

(a)  all news broadcast by the broadcaster is reported and presented in an objective and 

impartial manner and without any expression of the broadcaster’s own views, 

(b)  the  broadcast  treatment  of  current  affairs,  including  matters  which  are  either  of 
public  controversy  or  the  subject  of  current  public  debate,  is  fair  to  all  interests 
concerned and  that  the  broadcast  matter  is presented  in  an  objective  and  impartial 
manner  and  without  any  expression  of  his  or  her  own  views,  except  that  should  it 
prove impracticable in relation to a single broadcast to apply this paragraph, two or 
more  related  broadcasts  may  be  considered  as  a  whole,  if  the  broadcasts  are 
transmitted within a reasonable period of each other. 

For print publications there are no notification required. 

- Media pluralism/ownership; competition law aspects 

Section  25  of  the  Broadcasting  Act  requires  that  BAI  shall  ensure  the  provision  of  open 
and pluralistic broadcasting services. The Act specifies that in fulfilling the above general 
duties  BAI  shall  “promote  diversity  in  control  of  the  more  influential  commercial  and 
community  broadcasting  services”.  In  addition,  the  Act  requires  BAI  when  awarding  a 
licence to have regard to the desirability of allowing any person, or group of persons, to 
have  control  of,  or  substantial  interests  in,  an  undue  amount  of  the  communications 
media  in  the  area  and  the  desirability  of  having  a  diversity  of  services  in  the  area 
catering  for  a  wide  range  of  tastes  including  those  of  minority  interests.4  In  the  2012 
document  “Ownership  and  Control  Policy”,5  BAI  specified  that  one  investor  should  not 
hold more than 25% of the licences. Up to 15% of the total number of licences is deemed 
“acceptable”  with  up  to  a  further  10%  ownership  of  the  total  number  requiring  “more 
careful  consideration  by  the  Authority”.  There  are  no  set-percentages  for  permissible 
cross-media  ownership  restrictions  in  Ireland,  although  BAI  must  have  regard  to  “the  
desirability  of  allowing  any  person  (…)  to  have  control  of  (…)  an  undue  amount  of  the 

4 

5 

Broadcasting Act 2009, s 66(2)(f). 
http://www.bai.ie/wordpress/wp-content/uploads/2012-OC-policy-Apr-2012.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

communications media in the area specified”. The lack of set-percentages for permissible 
cross-media  ownership  has  allowed  the  development  of  some  major  players,  such  as 
O’Brien’s  Communicorp,  which  has  interests  in  the  radio  and  publishing  sectors  in 
Ireland.  Subsequent  moves  by  Communicorp  to  grow  even  further  have  been 
consistently accepted by the BAI. 

The  unique  features  of  the  media  sector  and  the  concentration  thereof  have  also  been 
recognised  by  the  Irish  Competition  Act,  2002,6  which  provides  for  a  specific  procedure 
for  the  review  of  media  mergers.  Generally,  mergers  have  to  be  notified  to  the 
Competition  Authority  only  after  certain  turnover  thresholds  are  exceeded.  However, 
media mergers must be notified to the Competition Authority irrespective of the turnover 
of the merging companies. Media  merger is defined as a merger or  acquisition in which 
two  or  more  of  the  undertakings  involved  carry  on  a  media  business  in  Ireland.  Media 
mergers  are  assessed  by  the  Competition  Authority  (on  competition  grounds)  and  the 
Minister  of  Enterprise,  Trade  and  Employment  (on  pluralism  grounds).  The  Minister  has 
quite wide ranging powers in this respect. He may order the Authority to open a second 
phase investigation, or decide that the merger may not be approved.  

Where a media merger involves the assignment of a broadcasting licence, or the change 
in ownership or control of a broadcaster licensed by the BAI, the prior written consent of 
the BAI is required for the media merger to proceed. 

In  March  2008  the  Minister  for  Enterprise,  Trade  and  Employment  established  the 
Advisory Group on Media Mergers. In January 2009 the Minister published the Report of 
the Group.7 The main recommendation is that the Competition Act should be amended to 
incorporate  a  statutory  test  to  be  applied  by  the  Minister  in  the  discharge  of  his  or  her 
function  in  relation  to  media  mergers  and  there  should  also  be  a  statutory  definition  of 
media  plurality.  The  statutory  test  suggested  by  the  Advisory  Group  is  “whether  the 
result  of  the  media  merger  is  likely  to  be  contrary  to  the  public  interest  in  protecting 
plurality  in  media  business  in  the  State.”  In  addition,  the  Report  recommends  that  the 
definition  of  “media  business”  should  be  amended  to  include  publication  of  newspapers 
and periodicals over the Internet and broadcast of certain audiovisual material  over the 
Internet.  In  September  2011  the  Minister  for  Communications  announced  that  the 
government  is  working  on  a  legislation  to  put  the  Group’s  recommendations  into 
practice.8 The rules on media mergers will form part of the new and complex consumer 
and competition Bill which is due to be published in the end of 2012. In May 2012, the 
Minister attempted to fast-track the media merger  legislation by extracting the sections 
dealing  with  media  mergers  from  the  larger  Bil  and  having  a  separate  Bill  on  media 
mergers  adopted  before  the  summer  recess  of  the  Irish  Parliament.  Unfortunately,  this 
effort proved unsuccessful.9 

As  factual  situation  with  regard  to  media  concentration  it  is  worth  mentioning  that  the 
two  top-selling  daily  newspapers  and  the  two  top-selling  Sunday  papers  are  owned  by 
one  company,  Independent  News  and  Media  (Ireland)  Ltd.  The  company  also  publishes 
13 local newspapers.  

There  is  also  a  problem  with  the  cross-ownership  of  newspapers  and  radio  stations.  In 
July 2007, Denis O’Brien’s company Communicorp, which owns two Dublin radio stations 

6 

7 

8 

9 

Competition Act 2002, (No. 14 of 2002). 
“Tánaiste publishes Report of the Advisory Group on Media Mergers”, Department of Enterprise, Trade and 
Employment, Press Release, 2 January 2009, http://www.entemp.ie/press/2009/20090102.htm, accessed 
14 October 2009. 
http://www.irishtimes.com/newspaper/ireland/2011/0919/1224304354681.html. 
http://www.irishtimes.com/newspaper/ireland/2012/0517/1224316239749.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

(98FM  and  Spin  FM),  one  national  radio  station  (Newstalk)  and  a  26%  stake  in 
Independent  News  and  Media,  acquired  national  radio  station  Today  FM  and  Dublin 
station FM104 from Emap. This acquisition would give Communicorp control over almost 
25% of all commercial radio licences in Ireland and over 53% audience share in Dublin. 
The  Competition  Authority  ordered  Communicorp  to  divest  itself  of  FM10410  and  at  the 
end  of  2007,  Communicorp  sold  FM104  to  UTV.11  However,  the  cross-ownership  issue 
with  Independent  News  and  Media  was  dismissed  by  the  Competition  Authority  which 
stated  that  radio  and  press  advertising  are  two  separate  markets.  In  July  2008  the 
Broadcasting  Commission  of  Ireland  (BCI)  investigated  the  cross-ownership  concern 
between  Communicorp  and  Independent  News  and  Media,  but  concluded  that  the 
interests  of  Communicorp  in  Independent  News  and  Media  were  not  substantial.  This 
seemed  to  have  changed  in  March  2009  when  three  of  O’Brien’s  long-term  associates 
were appointed to the board of Independent News and Media. However, in July 2009 the 
BCI  concluded  again  that  Communicorp  does  not  control  an  "undue"  share  of  the 
country's media market. In April 2012, Gavin O’Reilly, stepped down as chief executive of 
Independent  News  and  Media,  the  move  which  ended  39  years  of  direct  control  by  his 
family of Ireland’s largest media group. His decision followed weeks of speculation in the 
Irish  press  that  O’Brien  would  seek  to  have  O’Reilly  removed  at  the  annual  meeting  in 
June.  Reacting  to  the  event,  the  Irish  Prime  Minister  Enda  Kenny  commented  that  ‘the 
Government  would  consider  ‘cross-ownership’  of  the  media  after  an  escalation  in  the 
battle for control of INM’.12 

-	 Legal framework for psm; ability to fulfill their tasks 

Public  service  broadcasting  is  regulated  by  Part  7  of  the  Broadcasting  Act,  2009.  There 
are  two  public  service  broadcasters  in  Ireland  –  RTÉ  and  TG4.  They  are  financed  by 
licence fee and advertising and operate under the oversight of their governing boards. 

RTÉ  submitted 
Communications, Energy and Natural Resources on 12 January 2010. 

its  Statement  of  Strategy 

for  2010-2014  to  the  Minister  of 

In  addition,  both  RTÉ  and  TG4  are  required  to  prepare  an  Annual  Statement  of 
Performance  Commitments  and  to  make  this  document  publicly  available,  having 
consulted  with  the  Authority  and  the  Minister.  The  Statement  is  required  to  take  into 
account  the  organisation’s  objects  under  the Broadcasting  Act,  their  strategy  statement 
and  their  public  service  statement.  It  must  also  detail  any  activities  which  the 
broadcaster intends to commit to in that year and to include any associated performance 
indicators.13 

RTÉ’s 2011 high-level strategic objectives were: 

	  Excellence  in  Public  Service:  Fulfil  all  our  Public  Service  Objects  and  strive  for  the 

highest standards in ethics and accountability, on and off-air; 

	  High  quality,  distinctively  Irish  content:  Be  the  leading  creator  of  the  best  quality, 
distinctively  Irish  content  and  the  premier  and  most  trusted  source  of  Irish  news 
and current affairs; 

10 

11 

12 

13 

The  Competition  Authority,  Determination  of  Merger  Notification  M/07/040,  Communicorp/SRH,  7 
December 2007. 
The Competition Authority, Determination of Merger Notification M/07/069, UTV/FM104, 17 January 2008. 
‘O'Reilly resigns as IN&M head’, The Irish Times, 19 April 2012. 
See BAI http://www.bai.ie/?page_id=2146. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  Technology  - Delivery  of  our  content:  Harness  technologies  to  ensure  delivery  of 
and access to our content across the widest range of platforms and devices to meet 
the needs of the audience; 

	  Finances:  Effectively  manage  RTÉ’s  finances  into  the  future  through  optimising 

funding sources and controlling costs; 

	  Organisation,  structures  and  staff:  Ensure  that  RTÉ  has  a  high  quality  workforce 
and is optimally organised to deliver the best value for money service to the Irish 
public; 

	  Partnerships:  Establish  and  maintain  collaborative  partnerships  and  take  a 

leadership role in the creative and digital economies in Ireland. 

According  to  the  Annual  Statement  of  Performance  Commitments  2011  the  objectives 
were for the large part fulfilled. 

- The role and functioning of regulatory authorities in these respects 

The  responsibility  for  regulating  the  broadcasting  sector  in  Ireland  lies  with  several 
different authorities. BAI14 is a content regulator. It issues licences and deals with media 
pluralism and diversity aspects. The Department of Communications, Energy, and Natural 
Resources develops a policy and legislative framework for broadcasting in Ireland and the 
Department  of  Enterprise,  Trade  and  Employment  takes  part  in  the  approval  of  media 
mergers  from  a  media  pluralism  perspective.  The  Commission  for  Communications 
Regulation (ComReg)15 is responsible for the regulation of broadcasting transmission and 
the Competition Authority deals with competition issues.  

Broadcasting  regulation  in  Ireland  has  recently  undergone  a  significant  change.  As 
mentioned in the previous Report,16 in December 2002 the Minister for Communications 
announced  that  he  intended  to  create  a  new  structure  for  regulation  in  this  area.  The 
new Broadcasting Act, 2009 transposes the Audiovisual Media Services Directive (AVMS) 
into Irish law and repeals most of the previous legislation in the area.17 The key features 
of  the  reform  are,  first  and  foremost,  the  establishment  of  BAI  as  a  single  content 
regulator  for  all  commercial,  community  and  public  service  broadcasters  in  Ireland.  The 
BAI  encompasses  the  existing  regulatory  functions  of  the  Broadcasting  Commission  of 
Ireland,  the  Broadcasting  Complaints  Commission  and  the  RTÉ  Authority.  BAI  is  not, 
however, a fully-integrated broadcasting and communications regulator similar to OFCOM 
because  the  communications  regulator  (ComReg)  and  the  Competition  Authority  remain 
separate. The BAI was established on 1 October 2009 and comprises nine members. 

BAI  exercises  the  following  attributions:  licensing  broadcasting  and  multiplex  services; 
developing  of  a  Statement  of  Strategy  for  the  regulation  of  broadcasting  services  in 
Ireland;18  examining  ownership  issues;  operating  a  complaints  procedure;  developing  a 

14 

15 

16	 

17 

18 

Before the Broadcasting Act, 2009, BAI was known as the Broadcasting Commission of Ireland (BCI). 
See  Communications  Regulation  Act,  2002  (No.  20  of  2002),  which  established  the  Commission  for 
Communications Regulation (ComReg), Sections 6-38. 
Final  report  of  the  study  on  “The  information  of  the  citizen  in  the  EU:  obligations  for  the  media  and  the 
Institutions  concerning  the  citizen’s  right  to  be  fully  and  objectively  informed”  Prepared  on  behalf  of  the 
European 
107, 
http://www.epra.org/content/english/press/papers/European%20Citizen%20Information%20Project%20Fi 
nal%20REPORT.pdf. 
In  particular,  Radio  and  Television  Act,  1988  (No.  20  of  1988)  and  Broadcasting  Act,  2001  (No.  4  of 
2001). 
BAI Broadcasting Services Strategy,  
http://www.bai.ie/wordpress/wp-content/uploads/BAI-BSS-2012-BF.pdf. 

the  Media, 

Parliament 

European 

Institute 

2004, 

the 

for 

by 

p. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

right  of  reply  scheme;  developing  broadcasting  codes  and  rules;  consulting  with  the 
Commission  for  Communications  Regulation  (ComReg)  on  frequency  planning  and 
allocation for radio and television services. 

BAI  consults  with  the  Minister  for  Communications  on  a  range  of  public  service 
broadcasting matters including assessing the extent to which RTÉ and the Irish language 
station,  TG4,  has  fulfilled  its  public  service  commitments  in  respect  of  its  public  service 
objectives. It also reviews the funding levels to ensure there is the funding necessary to 
carry the public service role. 

for  the  regulation  of  the  electronic  communications  sector  (tele­

The  Commission  for  Communications  Regulation  (ComReg)  is  the  statutory  body 
responsible 
communications,  radio  communications  and  broadcasting  transmission)  and  the  postal 
sector.  With  regard  to  the  broadcasting  sector,  the  main  roles  of  ComReg  are  as 
follows:19  to  plan  and  co-ordinate 
in  co-operation  with  other 
stakeholders,  broadcast  transmission  networks  for  Ireland;  to  input  into  national 
broadcasting  policy  development;  to  develop  and  issue  licences  to  BAI  and  RTÉ 
containing  rights  of  use  to  spectrum  for  terrestrial  TV  and  radio  broadcasts;  to  devise 
new  licensing  regimes  as  required  and  draft  appropriate  secondary  legislation,  and  to 
monitor and enforce compliance with licence terms and conditions. 

internationally, 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Another  new  development  since  the  situation  described  in  the  previous  report  in  2004, 
was  the  adoption  of  the  Defamation  Act,  2009.  The  Act  removed  the  distinction  which 
existed at common law between torts of libel and slander and replaced it by a single tort 
of  defamation.  Before  the  adoption  of  the  2009  Act,  there  had  been  a  trend  towards 
awarding very high damages in defamation cases.20 One of the reasons was the fact that 
judges  were  prohibited  from  providing  any  directions  to  juries  as  far  as  damages  were 
concerned. This had been subject to criticism and calls for reform. Thus, the Defamation 
Act,  2009  provides  that  parties  may  make  submissions  to  the  court  on  the  matter  of 
damages  and  High  Court  judges  shall  give  directions  to  the  jury  on  the  matter  of 
damages. In addition, the Act introduced new fast-track measures allowing matters to be 
disposed  of  pre-trial  (e.g.  summary  disposal  procedure,  lodgement  of  money)  and  it 
provided for alternative remedies to damages (declaratory order or correction order). It 
also updated the list of available defences (the most noteworthy is the introduction of the 
defence of fair and reasonable publication and the offer to make amends). 

There is no express reference to a right to privacy in the Irish Constitution. The Supreme 
Court ruled that the right derives from the unspecified personal rights in Article 40.3.1 of 
the  Constitution.  There  is  no  overarching  statute.  A  Privacy  Bill  was  proposed  in  2006 
and envisaged the creation of a specific tort of the invasion of privacy. The Bill was much 
criticised and as a result it has never been signed into law and is currently shelved. 

Article  40.6.1(i)  of  the  Constitution  provides  that  “the  publication  or  utterance  of 
blasphemous,  seditious,  or  indecent  matter  is  an  offence  which  shall  be  punishable  in 
accordance  with  law”.  The  previous  Defamation  Act,  1961,  provided  for  penalties  for 
printing  or  publishing  blasphemous  libel,  but  no  definition  of  “blasphemy”.  Thus,  in  the 
only case involving allegations of blasphemy, the Supreme Court refused prosecution due 

19 

20 

See http://www.comreg.ie/radio_spectrum/broadcasting.542.html. 
€10 million awarded to Donal Kinsella in 2010. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

to lack of any definition of blasphemy in either the Constitution or statute.21 A definition 
has  controversially  been  introduced  in  Section  36  of  the  Defamation  Act,  2009.  The 
ingredients  of  the  offence  of  blasphemy  are  as  follows:  (i)  uttering  material  grossly 
abusive or insulting in relation to matters held sacred by any religion, (ii) when the intent 
and result is outrage among a substantial number of the adherents of that religion. The 
offence is punishable by a maximum fine of € 25,000. A defence is permitted for work of 
genuine  literary,  artistic,  political,  scientific,  or  academic  value.  The  definition  of 
“religion"  excludes  profit-driven  organizations  or  those  using  "oppressive  psychological 
manipulation". 

The  Broadcasting  Act,  2009  provides  for  a  wider  right  of  reply  mechanism  than 
previously.  Section  49  specifies  that  the  right  applies  to  any  person  whose  honour  or 
reputation  has  been  impugned  by  an  assertion  of  incorrect  facts  or  information  in  a 
broadcast.  The  reply  must  state  to  what  extent  the  information  was  incorrect  or 
misleading  and  must  be  limited  to  factual  assertions  necessary  to  rectify  what  would 
otherwise be an incomplete or distorting assertion. 

Furthermore, the Defamation Act, 2009 stipulated that the courts can have regard to the 
decisions of the Ombudsman and the Press Council in defamation cases. 

Up  until  recently  the  protection  of  journalists’  sources  and  the  existence  of  journalistic 
privilege  has  been  uncertain.  Refusal  to  answer  questions  in  court  during  cross-
examination may amount to obstruction of justice and be classified as criminal contempt 
of  court.  Privilege  to  refuse  to  answer  questions  in  court  is  enjoyed  in  certain 
circumstances by solicitors, clergy and members of the parliament. However, already in 
the  case  Re  Kevin  O’Kelly (1974), the  Court  of  Criminal  Appeal  ruled  that  there was  no 
protection of journalistic sources in Ireland and the fact that a communication was made 
under  terms  of  express  confidence  or  implied  confidence  did  not  create  a  privilege 
against  disclosure.  A  recent  Supreme  Court  judgment  in  a  seminal  case  in  Mahon  v 
Keena and Kennedy (2009) marked a departure from the approach in Re Kevin O’Kelly. 
Referring  to  a  number  of  decisions22  of  the  European  Court  of  Human  Rights,23  the 
Supreme  Court  ruled  that  journalistic  privilege  exists  in  Ireland  and  there  must  be  an 
overriding requirement in the public interest to justify the interference with the privilege. 

- Specific positive content obligations 

No provision regarding specific positive content obligations are here to mention. 

- Funding schemes for specifically desired content 

The  creation  of  the  Broadcasting  Fund  was  one  of  the  innovations  of  the  2009 
Broadcasting  Act.  It  is  funded  by up  to  7%  of  the  net  receipts  from  the  payment  of  TV 
licences. Its purpose is to offer an independent source of funding for high-quality original 
or  public  service  programming.  There  are  detailed  rules  specifying  which  programmes 
qualify for funding. 

In  addition,  the  Broadcasting  Act  2009  directs  the  BAI  to  develop  a  scheme  for  the 
archiving  of  programme  material.  The  aim  of  the  Broadcast  Archiving  Scheme  is  to 

21 

22 

23 

Corway v Independent Newspapers (1999). 

I.a. Fressoz and Roire v France (1999) 31 EHRR 28; Goodwin v United Kingdom (1996) EHRR 123.
 
The  European  Convention  on  Human  Rights  Act,  2003  incorporated  the  European  Convention  on  Human  

Rights  into  Irish  law.  The  Act  provides  in  Section  2(1)  that  “In  interpreting  and  applying  any  statutory 
provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such 

383 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
 
 
  
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

encourage and support the development of an archiving culture in the Irish broadcasting 
sector  as  a  whole.  Early  in  2012,  the  scheme  was  approved  by  the  Minister  for 
Communications, Energy and Natural Resources. The Scheme will be financed through a 
percentage of the annual Broadcasting Fund derived from the TV licence fee. 

- Political advertising and/or broadcasting time 

Section  41(3)  of  the  Broadcasting  Act,  2009  contains  a  total  prohibition  of  political 
advertising,  i.e.  advertising  which  is  “directed  towards  a  political  end  or  which  has  any 
relation to an industrial dispute”. There is no definition of “political end” in the legislation, 
but  it  is  understood  to  include  all  advertising  that  might  contain  political  content  (e.g. 
promoting  or  opposing  changes  in  legislation,  government  policies  or  policies  of 
government  authorities;  influencing  a  political  decision  making-process).  The  ban  is 
directed  at  broadcasting  only.  The  Irish  courts  have  refused  to  hold  the  ban 
unconstitutional  on  freedom  of  expression  grounds  –  a  position  which  seems  to  be  at 
odds with the case-law of the European Court of Human Rights.24 It is important to note 
here  that  party  political  broadcasts  during  elections  are  not  affected  by  the  prohibition. 
According to the Broadcasting Act, the above requirements do not prevent a broadcaster 
from transmitting party political broadcasts provided that a broadcaster does not, in the 
allocation  of  time  for  such  broadcasts,  give  an  unfair  preference  to  any  political  party. 
The  BAI  Code  of  Referenda  and  Election  Coverage25  sets  out  the  rules  that  Irish 
broadcasters  must  comply  with  when  covering  any  election,  including  presidential 
elections, or referendum held in the Republic of Ireland. The key aim of the Code is that 
a broadcaster’s coverage of all elections and referenda is fair, objective and impartial to 
all  interests.  Coverage  should  be  undertaken  without  any  expression  of  a  broadcaster’s 
own  views  on  an  election  or  referendum  or  on  election  parties  or  candidates.  The  Code 
contains  specific  provisions  that  relate  to  party  political  broadcasts  and  moratoria  on 
coverage of referenda and/or elections.26 

- Codes of conduct and their organisational framing 

The model of press regulation in Ireland is a hybrid one – it combines elements of both 
self-regulation  (funded  by  the  press  industry,  here  operates  a  Code  of  Practice)  and 
statutory  requirements  (formally  recognised  by  the  Defamation  Act  2009,  as  was 
mentioned above). 

The 2004 report mentioned that there was no system for dealing with press complaints in 
Ireland  at  the  time  and  the  debate  was  ongoing  over  the  establishment  of  the  Press 
Council. Currently, in addition to the general laws on defamation and privacy, the press 
in Ireland is also regulated by the Press Council and Press Ombudsman, both operating 
since 1 January 2008. The Press Council consists of 13 members – 7 members, including 
the  Chairman,  are  drawn  from  “suitably  qualified  persons  representative  of  a  broad 
spectrum of Irish society”, and 6 members are appointed from within the industry. 

A complaint to the Ombudsman can be made against any newspaper which is covered by 
the  Code  of  Practice  by  the  individual  who  is  personally  affected  by  the  impugned 
publication, or by a third party acting with the written consent of the person affected. In 
the  first  instance  the  complainant  is  directed  to  contact  the  editor  before  making  a 

interpretation  and  application,  do  so  in  a  manner  compatible  with  the  State’s  obligations  under  the 
Convention provisions.” 
See VgT Verein Gegen Tierfabriken v Switzerland (Tierfabriken I), (2002). 
BAI Code of Referenda and Election Coverage:  
http://www.bai.ie/wordpress/wp-content/uploads/20110913_RefElecCode_Eng.pdf. 
See http://www.bai.ie/?page_id=1955. 

24 

25 

26 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

complaint  to  the  Ombudsman.  Decisions  of  the  Ombudsman  may  be  appealed  to  the 
Press Council. 

- The role and functioning of regulatory authorities in these respects 

BAI  is  the  regulatory  authority  which  publishes  and  oversees  the  compliance  with  the 
Codes it has issued. 

  Distribution Aspects 

- Access to frequencies 

Under  Section  35  of  the  Communications  Regulation  Act,  2002,  the  Commission  for 
Communications  Regulation  (ComReg) 
formulating,  revising, 
implementing  and  publishing  the  national  Radio  Frequency  Plan  detailing  the  frequency 
allocations  of  Ireland.  ComReg  publishes  a  table  of  frequency  allocations  for  Ireland 
every two to three years, describing current and planned use of the radio spectrum.27 

is  responsible 

for 

- Access to distribution networks and control of actual conditions 

There are no specific provisions with respect to these aspects. 

- Must-carry/must-offer rules for electronic media 

Section 77 of the Broadcasting Act, 2009 provides that holders of broadcast licences are 
required  to  carry  programme  content  regarded  as  serving  a  particular  policy  interest 
(mainly  the  PSB  channels  –  RTÉ  1  and  2,  TG4;  digital  providers  must  in  addition  carry 
the  the  Oireachtas  channel  and  the  Irish  Film  Channel).  This  obligation  applies  to 
“appropriate network providers”28 (most providers of broadcast services in Ireland). 

- Role of platform operators 

The  structure  of  the  2009  Act  sees  the  platform  as  being  ‘divided’  between  various 
multiplex  operators  –  public  service  broadcaster  RTÉ  on the  one  hand  and  one  or  more 
BAI-licensed contractors on the other. 

ComReg  issued  two DTT  multiplex  licences  to  RTÉ,  one  in  December  2007, the  other  in 
May 2011, which conveys the rights of use to spectrum in the ultra high frequency (UHF) 
band to provide DTT. 

In  May  2011,  the  Irish  public  service  DTT  multiplex  service  called  SAORVIEW29  was 
officially  launched.  It currently  offers  9  channels.  It  is  anticipated  that  by  October  2012 
SAORVIEW will be accessible to 98% of Irish people, replicating the population coverage 
of  the  old  analogue  service.  The  service  requires  a  set-top-box  and  some  viewers  will 
also  have  to  purchase new  aerials.  As  of  February  2012, it has  been  reported  that  only 
45,000 people have subscribed to Saorview.30 

27 

28 

29 

30 

ComReg, Radio Frequency Plan for Ireland,
http://www.comreg.ie/_fileupload/publications/ComReg0890R3.pdf. 
“Appropriate  network”  is  defined  as  an  electronic  communications  network  which  is  used  for  the 
distribution or transmission of broadcasting services to the public. 
http://www.saorview.ie/. 
http://www.herald.ie/news/hd-tv-costs-1400-a-viewer-3009443.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Commercial  DTT  multiplex  licence  has  not  yet  been  awarded.  In  August  2010,  the  BAI 
gave  further  detailed  consideration  to  the  prospects  for  commercial  DTT  in  Ireland.31  It 
reiterated  its  disappointment  that,  having  discharged  its  responsibilities  under  the  2009 
Act, the outcome was that none of the three applicants had been able to bring matters to 
a satisfactory conclusion. It also decided that it would not be practicable to re-activate a 
commercial  DTT  multiplex  licensing  process  in  the  immediate  future.  It  further  stated 
that a competition could potentially be held again during 2012 with a view to commercial 
DTT being operational in 2013. Nothing happened on that front yet. 

Digital Radio using T-DAB technology is also available in Ireland today, provided by RTÉ. 
ComReg issued one digital radio multiplex licence to RTÉ in April 2009.  

- The role and functioning of regulatory authorities in these respects 

ComReg issues multiplex licenses affording the rights of use to spectrum in the ultra high 
frequency (UHF) band to provide DTT and BAI. 

The  Broadcasting  Act,  2009  gives  the  BAI  responsibility  for  licensing  DTT  multiplex 
operators.  The  aim  is  to  ensure  the  continued  availability  of  a  diversity  of  services  and 
programming  content  in  a  digital  era.  BAI  also  has  responsibility  for  the  licensing  of 
multiplex services and entering into contracts in respect of electronic programme guides 
(EPGs). 

  Access to Information 

- Transparency of media ownership situations 

All  commercial  broadcasters  licensed  by  BAI  are  listed  on  the  Authority’s  website  with 
links to their individual websites.32 

- Accountability of public service media 

In  order  to  demonstrate  how  they  fulfilled  their  tasks  and  to  show  their  actual 
performance  in  the  preceding  year,  both  PSBs  are  required  to  submit  a  report  to  the 
Authority and the Minister detailing how it has performed against the commitments set in 
the previous year and to provide an explanation of any differences arising. 

- Freedom of information laws 

The  Freedom  of  Information  Act  199733  was  introduced  to  ensure  more  openness  of  
governmental  and  state  bodies  regarding  access  to  information.  However,  the  Freedom 
of Information (Amendment) Act in July 2003 introduced financial charges for access to 
information/documents  etc.  It  also  excluded  certain  records  from  the  application  of  Act 
which  were  previously  available.  The  change  has  been  criticised  by  many  (including 
national  journalists,  the  European  Federation  of  Journalists,  civil  liberties  groups  and 
many politicians) as undermining openness and transparency. 

- Accessibility of products/services and distribution networks 

The  Act  2009  requires  the  BAI  to  administer  and  report  on  the  Access  Rules,  requiring 
broadcasters  to  meet  specific  quotas  for  subtitling,  audio  description  and  Irish  Sign 

31 

32 

33 

BAI Statement on Conclusion of Commercial DTT Multiplex Licensing Process, http://www.bai.ie/?p=1469. 

http://www.bai.ie/?page_id=895.
 
Freedom of Information Act, 1997, http://www.irishstatutebook.ie/pdf/1997/en.act.1997.0013.pdf.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Language,  expressed  as  percentages  of  total  broadcast  time.  Accordingly,  the  BAI 
published the Access Rules34 which determine the levels of subtitling, sign language and 
audio  description  that  broadcasters  in  Ireland  will  be  required  to  provide  in  accordance 
with their statutory obligations. 

In  addition,  the  Disability  Act  2005  requires  all  public  bodies  (e.g.  RTÉ)  to  ensure  that 
their services are accessible for people with disabilities by providing integrated access to 
mainstream services where practicable and appropriate. 

With regard to Saorview (DTT), the issues of dish install or digital set-top-box subsidies 
have not been decided yet. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Section 48 provides for a broader complaint system whereby complaints may be made by 
parties who were not directly referred to or implicated by the broadcast in question. The 
system puts initial responsibility on broadcasters – complaint must first be made directly 
to  the  broadcaster.  Only  in  the  second  instance,  the  complaints  are  dealt  with  by  the 
BAI’s Compliance Committee. 

- Participation in media operators/(self-)regulatory bodies 

There is no such participation to be mentioned. 

2.2.13.2.  Main Players in the Media Landscape 

Ireland’s  media  landscape  remains  influenced  by  historical  and  geographical  relations 
with  the  United  Kingdom.  British  terrestrial  television  channels  are  available  to  majority 
of  the  population,  mainly  through  cable  services.  There  are  also  a  wide  range  of  UK 
based newspapers available in Ireland. 

2.2.13.2.1. 

Radio 

Radio is a more popular medium in Ireland than in most European countries with 85% of 
the  population  claiming  to  listen  on  a  daily  basis.35  As  of  2012  there  are  57  licensed 
commercial  radio  stations,  1  national,  1  quasi-national  and  the  rest  local,  regional  or 
multi-city.  The  national  Public  Service  Broadcaster  RTÉ  runs  four  analogue  channels  - 
RTÉ  Radio  1,  RTÉ  2fm,  RTÉ  lyric  fm and  RTÉ  Raidió  na  Gaeltachta (the Irish 
language station)  and  five  digital  channels  (RTÉ  2XM,  RTÉ  Chill, RTÉ  Choice, RTÉ  Gold, 
RTÉjr and RTÉ Pulse) 

Since 2007, the one national commercial radio station, Today FM, is 100% owned by the 
company Communicorp belonging to businessman Denis O’Brien, which also owns 3 local 
radio  stations36  and  is  the  second  largest  shareholder  in  the  publishing  company 
Independent  News  and  Media.  Following  the  Competition  Authority’s  order  for 
Communicorp  to  divest  itself  of  Dublin  station  FM104  (see  above  at  1.4.3),  there  have 
been  no  further  developments  with  regard  to  concentration  of,  or  major  cross-regional 
ownership in, the local/regional radio sectors. Ulster Television (UTV) owns five Irish local 
radio  stations.  The  majority  of  local  radio  licenses  are  owned  by  local  consortia  usually 

34 

35 

36 

BAI Access Rules, 
European Journalism Centre, “Media landscape: Ireland”, November 2010.
 
Newstalk (quasi-national), 98FM (Dublin), Spin (Dublin), Spin South-West. 


http://www.bai.ie/wordpress/wp-content/uploads/access_rules_june_07.pdf.
 

387 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
  
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

consisting  of  a  mixture  of  individuals,  companies,  community  groups,  local  Government 
and religious groups. 

Table 74 IE: Main Radio Companies* 

Companies 

Main radio 
stations 

National market 
share 

Regional market 
share 

RTÉ (PSB) 

Communicorp 

UTV 

Analogue:  Radio  1,  2 
FM,  Lyric  FM,  RTÉ 
Raidió na Gaeltachta 
Digital:  RTÉ  2XM,  RTÉ 
Chill, RTÉ  Choice, RTÉ 
Gold,  RTÉjr  and  RTÉ 
Pulse  
Today FM 
Newstalk 
98FM 
Spin 
Spin South-West 
Q102 (Dublin) 
FM104 (Dublin) 
96FM (Cork) 
Live 95FM (Limerick) 

39% 

21% 

(Today FM – 13% 
Newstalk – 8%) 

__ 

__ 

Dublin: 27%  
(98FM:  13%,  Spin: 
14%) 

Spin South-West: 19% 
Dublin: 33%  
(Q102:  13%,  FM104: 
20%) 
Cork: 48% 
Limerick: 48% 
Louth-Meath: 24% 

Others 
(local consortia) 
*  Figures  by  JNLR/Ipsos  MRBI  2011-3  (October  2010  - September  2011), 
http://www.medialive2.com/radio/radio-listenership/market-share/radio­
listenership/market-share.html  

40% 

2.2.13.2.2. 

Television 

The  Public  Service  Broadcaster  RTÉ  provides  two  channels  (and  co-operates  with  the 
Irish language PSB, TG4). Ireland has one commercial broadcaster TV3 which is operated 
by  the  TV3  group  owned  by  Tullamore  Beta  Limited, a  subsidiary  of  a  British  private 
equity fund Doughty Hanson & Co. 

Bearing in mind the European Commission’s digital switchover deadline of 2012, in 2007 
the public service broadcaster RTÉ was awarded the automatic DTT multiplex licence. As 
already  explained,  in  May  2011,  the  Irish  DTT  service  called  SAORVIEW37  was  officially 
launched.  It  currently  offers  9  channels.  It  is  anticipated  that  by  October  2012 
SAORVIEW will be accessible to 98% of Irish people, replicating the population coverage 
of  the  old  analogue  service.  The  service  requires  a  set-top-box  and  some  viewers  will 
also  have  to  purchase  new  aerials.  The  issue  of  subsidies  is  not  decided  yet,  the 
Government  is  to  commission  a  study.  As  of  February  2012,  it  has  been  reported  that 
only 45,000 people have subscribed to Saorview.38 Commercial DTT multiplex licence has 
not yet been awarded. 

37 

38 

http://www.saorview.ie/. 
http://www.herald.ie/news/hd-tv-costs-1400-a-viewer-3009443.html. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 75 IE: Main Television Companies 

Companies 

Ownership 
Structure 

Main TV stations 

Total market 
share* 

RTÉ 
TG4 

TV3 

PSB 
PSB 

RTÉ 1, RTÉ 2 
TG4 

Tullamore 
Limited 

Beta 

TV3 
3e 

33.5% 
2.2% 

12.9% 
1.3% 

BBC (UK) 

PSB (UK) 

BBC1, BBC2 

7% 

Others 
(UK  commercial  and 
other) 

UTV,  Channel4,  E4, 
Sky1,  Sky  News, 
Sky Sports, other 

*  2011  figures  by  AC  Nielsen,  http://www.medialive2.com/television/channel-share-of­
viewing/channel-share-of-viewing.html 

2.2.13.2.3. 

Press and publishing 

The  Irish  press  market  is  divided  into  two  segments:  national  (daily  and  Sunday 
newspapers)  and  regional  (weekly  newspapers).  There  are  four  national  dailies,  one 
national  evening  newspaper,  four  national  Sunday  newspapers,  as  well  as  over  fifty 
regional  and  local  newspapers.  Total  circulation  of  daily  national  newspapers  is  over 
550,000 (Jan-Jun 2011). 

One of the major daily papers, the Irish Times, is owned by the Irish Times Trust, a non­
profit fund. 

Three daily newspapers (Irish Independent, Evening Herald and Irish Daily Star), as well 
as  two  Sunday  newspapers  (Sunday  Independent  and  Sunday  World)  and  13  weekly 
regional  papers  are  owned  by  Independent  News  and  Media  (INM),  the  leading 
newspaper publisher in Ireland.  The INM’s papers are market leaders in their sectors.  

Thomas  Crosbie  Holdings  Ltd  owns  the  national  daily  Irish  Examiner  and  the  national 
Sunday  newspaper  Sunday  Business  Post.  It  also  has  eleven  regional  newspapers  and 
five regional radio stations. 

The  strength  of  the  British  press  in  Ireland  is  a  unique  feature  of  the  Irish  print  media 
scene. 

389 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 76 IE: Main Newspaper Publishing Companies 

Publishing 
companies 

Main 
titles 
national  Daily 
and Evening 

Market 
share* 

Main 
national Sunday 

titles 

Market 
share* 

Regional 

Irish 
Independent 
Irish Daily Star 
Evening Herald 
Irish Times 

The 
Examiner 

Irish 

Independent 
News 
and 
Media 

Irish  Times 
Trust 
Thomas 
Crosbie 
Holdings 

based 

UK 
titles 

47% 

16% 

7% 

30% 

Sunday 
Independent 
Sunday World 

57% 

13 titles 

Sunday Times 

13% 

Sunday 
Post 

Business 

6% 

11 titles 

20% + 

Jan-Jun  2011 

* 
press/circulation-review-july---december-2006.html 

figures  by  ABC,  http://www.medialive2.com/press/national­

2.2.13.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The two most popular online services: www.rte.ie and www.irishtimes.com are provided 
by the traditional media providers RTÉ (PSB) and the Irish Times (newspaper publisher). 
Daft.ie website is dominant in property classified ads and CarZone.ie dominates motoring 
classified. There  are  also  some  niche  competitors  present  (Politics.ie;  Beaut.ie; 
Askaboutmoney.com).  There  are  two  interesting  news  websites:  TheJournal.ie  and 
Storyful.com.  TheJournal.ie  is  an  Irish  news  website  that  invites  its  users  to  shape  the 
news agenda, and Storyful.com is a project founded and run by RTÉ journalist Mark Little 
and a team of other web journalists. 

2.2.13.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

BSkyB,  through  Sky  Digital,  remains  the  sole  provider  of  digital  satellite  television 
services in Ireland. In comparison to the situation described in the 2004 Report, it noted 
a dramatic increase in the number of subscribers (from 245, 000 to 675,000). 

The Irish cable market has been fundamentally restructured since 2004. Ireland used to 
have  two  main  cable  operators:  NTL  (Éire),  and  Chorus  Communications  (owned  by 
Liberty  Global).  In  2005  NTL  was  fully  taken  over  by  Liberty  Global.  The  sole  cable 
provider in Ireland has been renamed UPC Ireland and is owned by Liberty Global Europe 
operating through UPC broadband. As of 2011, it had 473,000 subscribers to its cable tv 
service in Ireland. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 77 IE: Cable and Satellite Companies 

Companies 

Ownership Structure 

Subscription 2011 

UPC Ireland 
(formerly Chorus + NTL) 
(Cable and MMDS) 

Liberty Global Europe 
operating through 
UPC broadband 
(100%) 

473,000* 
(328,000 digital subscribers) 

BSkyB 
(Satellite) 

News Corporation 
(39.1%) 

675,000** 

* http://www.lgi.com/europe-ireland.html. 

** http://www.irishtimes.com/newspaper/finance/2012/0204/1224311249262.html. 

2.2.13.2.6.	 

Audience/Readership/Usage/Subscription;  
Advertising market shares (all media) 

The most important fact to note here is that the share of advertising revenue is shifting 
from traditional to online media.39  Online advertising is now the third-largest advertising 
medium in Ireland, after press and television, but before radio.40 

The table below outlines the share of advertising revenue in the Irish media sector. 

Table 78 IE: Share of advertising revenue within the media sector 2010-2011 

Media 

Market share in approx. % 

Press 

Television 

Online 

Radio 

57% * 

23% * 

13% ** 

7% * 

* Source: Ad Dynamix Nielsen Media Research 2010 (www.medialive.ie) 

**  Source: 
content/uploads/2010/11/H1-2010-IAB-PWC-PDF.pdf) 

IAB/PwC  Online  Adspend  Study,  2010 

(http://iabireland.ie/wp-

39 

40 

RTE background document, “Digital advertising and its impact on traditional publishers”, November 2010. 
IAB/PwC  Online  Adspend  Study,  2010  (http://iabireland.ie/wp-content/uploads/2010/11/H1-2010-IAB­
PWC-PDF.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.13.3.  Conclusion and Recommendations 

Main changes in comparison to the 2004 Report: 

	  Adoption of the Broadcasting Act, 2009 

	  Adoption of the Defamation Act, 2009 

	  Introduction of the new offence of blasphemy by the Defamation Act 2009 

	  Recognition  by  the  Supreme  Court  of  the  existence  of  the  journalistic  privilege 

(2009) 

	  Launch of DTT in May 2011 

	  Ongoing reform of the media mergers review system 

	  Number of cable providers falling  from two to one (as a  result of merger between 

Chorus and NTL) 

	  Share of advertising revenue shifting from traditional to online media 

The introduction of the offence of blasphemy by Section 36 of the Defamation Act, 2009 
has been highly controversial and met with widespread protest. Already in 1991 the Law 
Reform Commission, opined that there is no place for the offence of blasphemous libel in 
a  society  which  respects  freedom  of  speech,  and  that  the  prohibition  of  Incitement  to 
Hatred  Act  1989  provides  an  adequate  protection  for  outrage  against  religious  belief.41 
However,  since  the  ban  on  blasphemy  is  mandated  by  the  Constitution,  abolishing  the 
offence  would  require  a  referendum  (the  Irish  Constitution  may  only  be  changed 
following  a  referendum).  In  the  Commission’s  opinion  a  referendum  solely  for  that 
purpose would be a time wasting and expensive exercise. In the 2008 Report on Article 
40.6.1(i)  the  parliamentary  Joint  Committee  on  the  Constitution  reiterated  that  “…(t)he 
specific  reference  to  blasphemy  should  be  deleted  from  the  Constitution.  The  reference 
itself has effectively been rendered a “dead letter” and that [In] a modern Constitution, 
blasphemy is not a phenomenon against which there should be an express constitutional 
prohibition.”  There  have  been  several  referenda  held  in  Ireland  in  recent  years,  and 
despite  declarations  by  the  government,  none of  them  included  the  proposal  to  remove 
the reference to blasphemy from the Constitution. 

Recommendation: The government should consider removing the reference to blasphemy 
from  the  Constitution  and  the  offence  of  blasphemy  from  the  Defamation  Act,  2009.  A 
referendum to this end should be held at the nearest possible occasion. 

Independent  News  and  Media  is  dominant  in  both  the  daily  and  Sunday  newspaper 
market  segments  in  Ireland,  where  it  has  a  47%  and  57%  market  share  respectively. 
Nevertheless, the Competition Authority concluded that the Irish newspaper industry has 
sufficient editorial diversity and, thus, media pluralism is not threatened. However, while 
it may be true that there is a large degree of editorial diversity, such dominance in any 
media  market  is  always  a  threat  to  media  pluralism.  There  is  also  a  problem  with  the 
cross-ownership of newspapers and radio stations involving the company Communicorp. 
On 7 February 2012, an Irish MEP Nessa Childers hosted a conference in Dublin entitled 
“Media Diversity: Why does it matter?”. In preparation for the conference, Nessa Childers 

41 

Consultation Paper and Report on Criminal Libel (1991). 

392 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

commissioned a survey of Irish journalists on media ownership and diversity. The survey, 
carried  out  in  conjunction  with  the  National  Union  of  Journalists,  revealed  that  77%  of 
Irish  journalists  believe  that  media  diversity  is  at  risk  in  Ireland  due to  trends  in  media 
ownership.42 

Recommendation: The situation with regard to media ownership and diversity should be 
continuosly monitored. In particular, the issue of ‘cross-ownership’ between Coomunicorp 
and INM should again be carefully considered after the recent escalation in the battle for 
control of INM. 

The  Minister  for  Communications,  Pat  Rabbitte,  spoke  at  the  conference  and  confirmed 
that  the  government  is  working  on  the  drafting  of  a  new  legislation  on  media  mergers 
based  on  the  recommendations  of  the  Advisory  Group  on  Media  Mergers.  The 
government expects to publish the draft in the coming months. 

Recommendation:  The  works  on  the  new  legislation  on  media  mergers  should  not  be 
delayed. The failure to fast-track the legislation so that the rules on media mergers were 
adopted  before  the  summer  2012  was  disappointing.  The  new  legislation  should  be 
introduced before the end of the year without any delay. 

42 

2012 Survey of Irish journalists on media ownership and diversity,
http://www.nessachilders.ie/download/nessachilders/pdf/2012_survey_of_irish_journalists_on_media_ow 
nership_and_diversity_nessa_childers_mep.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

ITALY 


2.2.14.	 

Italy 

2.2.14.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.14.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The freedom of expression is expressly enshrined in Article 21 of the Italian Constitution. 
Article 21 of the Constitution consists of seven paragraphs. The first paragraph contains a 
broad statement that everyone has the right to express his or her thoughts through any 
media. 

In addition, in accordance with Article 117, para. 1, of the Constitution, Italian legislation 
must comply with EU Law and international agreements to which Italy is a party: in this 
context,  particular  significance  is  given  to  Article  10  of  the  European  Convention  on 
Human  Rights  and  Fundamental  Freedoms  (ECHR),  which  also  protects  the  freedom  of 
expression,  and  to  the  interpretation  given  to  this  provision  by  the  European  Court  of 
Human Rights (ECtHR)1. 

- Specific safeguards and rights for the media 

The  paragraphs  2  to  6  of  Art.  21  of  the  Constitution  unravel  a  set  of  guarantees 
protecting  the  means  of  communication  that,  at  the  time  the  Constitution  was  drafted, 
appeared  as  the  most  relevant  one:  the  press.  In  particular,  the  Constitution  provides 
that  press  may  not  be  subjected  to  authorization  or  censorship;  seizure  of  press  is 
permitted only for offences expressly set out by the law and on the basis of a reasoned 
court  order,2  except  in  cases  of  urgency  where  the  timely  intervention  of  the  judicial 
authority  is  not  possible;  the  law  may  establish  that  the  financial  sources  of  the 
periodical  publications  be  disclosed.  Paragraph  7  of  Article  21  sets  out  the  only  express 
derogation  from  the  freedom  of  expression  affirmed  in  paragraph  1:  public  morals. 
Printed publications and shows contrary to public morals are prohibited and punished in 
accordance with the law. 

  Freedom to receive and to access information 

The  freedom  of  information  is  generally  understood  as  having  a  threefold  dimension: 
active (the right to inform others), passive (the right to be informed), and reflexive (the 
right to gain access to undisclosed information). 

Article 21 of the Constitution expressly protects only the active form, i.e. the freedom to 
inform others.3 Nevertheless, the Constitutional Court,4 following the pattern of Article 10 
of the ECHR, has extended the constitutional protection also to the passive and reflexive 
dimensions of the freedom of information. Indeed, both the reception of information and 

1 

2 

3 

4 

R. Mastroianni, Riforma del sistema radiotelevisivo italiano e diritto europeo (Turin: Giappichelli, 2004). 

Law no. 47 of 8 February 1948, OJIR no. 43 of 20 February 1948, Serie generale.
 
See  G. Gardini,  Le  Regole  dell’Informazione.  Principi  giuridici,  strumenti,  casi,  (Milan:  Bruno  Mondadori,
 
2009) 34. 
Constitutional  Court,  Judgment  no.  25  of  1965;  no.  18  of  1966;  no.  122  of  1970;  no.  175  of  1971;  no. 
105 of 1972; no. 113 of. 1974; no. 16 of 1981; no. 18 of 1981; no. 225 of 1975; no. 231 of. 1975; no. 
826 of 1988; No 420 of 1994; no. 112 of 1993; no. 466 of 2002. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

access to information are essential for the proper functioning of a democratic society and 
for the development of an open political debate. 

The  Constitutional  Court  has  consistently  held  that  freedom  of  expression  seeks  to 
protect  the  free  flow  of  information  and  the  pluralism  of  opinions  because  they  are 
essential  elements  for  the  proper  functioning  of  a  democratic  polity.5  With  specific 
reference  to  the  press,  the  Court  of  Cassation  has  ruled  that  it  constitutes  a  privileged 
forum for the involvement of the public opinion in the political debate taking place within 
elected  bodies.6  Recalling  the  ECtHR  jurisprudence,7  the  Court  of  Cassation  added  that 
newspapers must be regarded as the ‘watchdogs’ of democratic institutions, including the 
judiciary8. The Court of Cassation also held that the exercise of the right to report and to 
comment  by  journalists  is  to  be  welcomed  insofar  as  it  contributes  to  monitor  the 
administration of justice and to ensure that members of the judiciary do not overstep the 
bounds of their profession.9 

- Specific rights for the citizens 

The protection of freedom of expression as laid down in Article 21(1) of the Constitution 
directly  concerns  citizens,  as  do  most  of  the  other  articles  comprised  in  Part  I  of  the 
Italian Constitution (e.g. relating to freedom of assembly, of religion, of movement etc.), 
whose  heading  is,  emblematically,  “Rights  and  duties  of  citizens”.  In  this  connection, 
regard  must  be  had  also  to  Article  15  of  the  Constitution,  which  directly  protects  the 
freedom  and  confidentiality  of  private  correspondence.  Indeed,  according  to  the  second 
paragraph  of  Article  15,  freedom  of  correspondence  can  be  constrained  only  in 
accordance with the law and on the basis of a reasoned decision of a judicial body. 

  Safeguards on regulatory authorities 

The  Italian  media  regulatory  authority  (AGCOM)  was  established  in  1997,  forty  years 
after  the  promulgation  of  the  Italian  constitution.  It  is  thus  no  wonder  that  the  latter 
does  not  envisage  such  an  authority.  Generally  speaking,  independent  authorities  were 
not  part  of  the  original  design  of  the  Drafters  of  the  Italian  Constitution.  Most  of  those 
authorities  were  established  in  the  1990s,  in  the  context  of  the  EU-driven  liberalization 
and re-regulation of public utilities. 

The Constitution, however, does take into account the role of public powers vis-à-vis the 
freedom  of  expression  by  stating  that:  i)  the  executive  must  not  interfere  with  the 
freedom  of  expression  (e.g.  prior  authorization  schemes  are  banned);  ii)  the  legislature 
must  lay  down  a  general  legal  framework  to  strike  a  balance  between  freedom  of 
expression  and  conflicting  constitutional  concerns  (e.g.  public  security,  public  morals 
etc.);  and  iii)  only  the  judiciary  may  impinge  upon  the  freedom  of  expression  in 
individual  cases,  provided  that  it  does  so  in  accordance  with  the  law  and  by  way  of 
reasoned decisions that can be challenged before a higher court. 

5	 

6	 

7	 

8	 

9	 

Italian Constitutional Court (‘ICC’), judgement no. 1030 of 1988; Constitutional Court, judgement no. 81 
of 1993. 
See Court of Cassation, Judgment of 2 July 2007, no. 25138. 
See ECtHR, Kobenter and Standard Verlags Gmbh v. Austria, application no. 60899/00, paras 29 and 30. 
See Court of Cassation, Judgment of 9 February 2011, no. 15447. 
See  Court  of  Cassation,  Judgment  of  23  January  1984  no.  3743  and  Judgment  of  21  February  2007  no. 
25138. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

  Safeguards on “universal service” 

The  notion  of  “Universal  Service”  is  alien  to  the  Italian  public  service  tradition  and  was 
only  introduced  as  a  consequence  of  Italy’s  membership  in  the  EU.  However,  it  is 
inherent  in  the  Italian  notion  of  “servizio  pubblico”  that  operators  entrusted  with  the 
provision thereof may be required to carry out specific task in the general interest which 
they  would  not  perform,  or  would  perform  under  different  conditions,  were  they 
motivated exclusively by market considerations. Moreover, as per Article 117, paragraph 
2, letter m) of the Constitution, the central Government enjoys an exclusive competence 
to set the essential content of civil and social  rights whose enjoyment must be ensured 
throughout the national territory. 

As  far  as  media  is  concerned,  the  concept  of  universal  service  can  be  regarded  as  a 
subset  of  that  of  public  service  media  (or  public  service  broadcasting),  which  is  not 
expressly  set  out  in  the  Constitution,  but  has  been  introduced  and  developed  through 
legislation. 

2.2.14.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

As  far  as  entry  to  the  analogue  broadcasting  market  is  concerned,  in  view  of  the  trend 
towards  the  switch-over  to  the  digital  standard,  analogue  broadcasting  can  only  be 
exercised  on  the  basis  of  concessions  issued  under  the  past  regulatory  framework.  The 
validity of those concessions is extended until the completion of the switch-over process 
(end  of  2012).10  Moreover,  operators  engaging  in  analogue  broadcasting  without  a 
broadcasting concession but in line with certain legal requirements may continue to do so 
until the completion of the transition to the digital standard.11 

In this connection, it must be noted that the de facto exercise of broadcasting activities 
and  the  occupation  of  broadcasting  frequencies  by  unlicensed  operators  has  been 
tolerated  by  Italian  broadcasting  legislation  in  the  past.12  Notably,  in  2008  the  ECJ 
established  that  failure  by  the  Italian  government  to  free  up  broadcasting  frequencies 
and to allocate them to the legitimate right holder, the company Centro Europa 7, on the 
basis  of  objective,  transparent,  non-discriminatory,  and  proportionate  criteria  was  at 
odds  with  the  freedom  to  provide  services  and  the  EU  electronic  communications 
directives.13 Most recently, also the European Court of Human rights held that failure by 
the  Italian  government  to  allocate  broadcasting  frequencies  to  the  holder  of  a 
broadcasting  licence  obtained  following  a  public  tender  constituted  a  breach  of  that 
company’s freedom of expression and information (Article 10 ECHR) and right of property 

10 

11 

12 

13 

Article 23, para 1, CLARMS. 
Article 23, para 2, CLARMS. 
For instance, the Maccanico Law enabled the ‘de facto users’ of radio frequencies, authorised to carry on 
their  activity  under  the  earlier  system,  to  continue  broadcasting  on  a  transitional  basis;  Decree  Law  24 
December 2003, no. 352 (OJIR 29 December 2003, no. 29, p. 4) authorised the channels in breach of the 
concentration  thresholds  to  continue  their  broadcasts  pending  the  completion  of  an  inquiry  into  the 
development  of  digital  television  channels;  the  Gasparri  Law  extended,  by  a  general  authorisation 
mechanism,  the  possibility  for  the  channels  in  breach  of  the  threshold  to  continue  to  broadcast  on  the 
terrestrial radio frequencies until the national allocation plan for radio frequencies for digital television was 
implemented. 
ECJ, Judgment of 31 January 2008, Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le 
garanzie  nelle  comunicazioni  and  Direzione  generale  per  le  concessioni  e  le  autorizzazioni  del  Ministero 
delle Comunicazioni, Case C-380/05, ECR 2008 Page I-00349. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

(Article 1 of Protocol n. 1 to the ECHR).14 In particular, the Strasbourg Court found that 
the  relevant  Italian  broadcasting  legislation  lacked  clarity  and  precision,  in  that  it 
frustrated Centro Europa 7’s legitimate expectations, and that the Italian authorities had 
failed  to  put  in  place  an  appropriate  legislative  and  administrative  framework 
guaranteeing  effective  media  pluralism  and  protecting  Centro  Europa  7  against 
arbirariness. 

Turning to access to the digital broadcasting market, the CLARMS15 provides for different 
authorization  schemes.  The  activity  of  linear  audiovisual  content  provider  on  terrestrial 
frequencies is conditional upon a prior authorization issued by the Ministry for Economic 
Development,16  on  the  basis  of  the  rules  set  out  in  AGCom’s  Digital  Broadcasting 
Regulation.17 

To be eligible, applicants must: i) be undertakings established in the European Economic 
Area  or  in  a  state  ensuring  full  reciprocity;18  ii)  have  as  their  object  the  exercise  of 
television broadcasting, information, or related activities; iii) have a share capital and a 
number  employees  greater  than  the  minimum  requirements  set  out  in  the  Digital 
Broadcasting Regulation;19 iv) ensure the broadcasting of programmes bearing the same 
trademark for at least 24 hours every week. Public entities, state-controlled companies, 
and  credit  institutions  cannot  either  directly  or  indirectly  hold  the  authorization 
concerned.20 

The  provision  of  linear  audiovisual  media  or  radio  services  through  other  electronic 
communication  networks  (e.g.  live  streaming,  IPTV,  web-tv  etc.)  is  subject  to  an 
authorization granted by AGCom in accordance with the rules set out in its Decision no. 
606/10/CONS.21  To  be  eligible,  applicants  must:  i)  be  companies,  foundations,  or 
associations  established  in  the  European  Economic  Area  or  in  a  state  ensuring  full 
reciprocity;22  ii)  have  as  their  objects  the  exercise  of  broadcasting,  information,  or 
related  activities;23  iii)  not  be  represented  or  administered  by  persons  convicted  for 
crimes  punishable  by  imprisonment  of  more  than  six  months.24  Public  entities,  state-
controlled  companies,  and  credit  institutions  cannot  directly  or  indirectly  hold  the 
authorization  concerned.25  Applicants  must  pay  a  fee  for  the  processing  of  their 
application.26 

On-demand service providers are also subject to the general authorization scheme27. The 
undertakings concerned must notify AGCom of the start of their activities, unless AGCom 
resolves, within 30 days, to enjoin them to stop28. To be eligible, applicants must: i) be 
companies, foundations, and associations established in the European Economic Area or 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

ECtHR, case Centro Europa 7 S.r.l. and Di Stefano v. Italy (application no. 38433/09).
 
Consolidated Law on Audiovisual and Radio Media Services (Legislative Decree no. 2005/177 as amended
 
by Legislative Decree no. 44/2010). 
Article 16, para 1, CLARMS. 
See AGCom Decision 353/11/CONS, OJIR 6 July 2011, no.155 (AGCom Digital Broadcasting Regulation). 
Ibid, Article 3, para 2. 
Ibid., Article 3, paras. 4 and 5 (requiring a share capital of 6.2 million euros and at least 20 employees for 
nation-wide  broadcasting  and  a  share  capital  of  155.000  euros  and  at  least  four  employees  for  local 
broadcasting). 
Ibid., Article 3, para 3. 
See Attachment A to AGCom Decision no. 606/10/CONS. 
Ibid., Article 3, para 2. 
Ibid., Article 3, para 4. 
Ibid., Article 3, para 3. 
Ibid, Article 3, para 4. 
Ibid., Article 6. 
Article 22-bis, para 1 CLARMS. 
Article 3, para 2, of Attachment A to AGCom Decision no. 607/10/CONS, OJIR 3 January 2011, no. 1. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

in  a  state  ensuring  full  reciprocity;29  ii)  have  as  their  objects  the  exercise  of 
broadcasting, information, or related activities;30 iii) not be represented or administered 
by persons convicted for intentional crimes punishable by imprisonment of more than six 
months.31 Applicants must pay a fee for the processing of their application.32 

Article 49, paragraph 1, CLARMS33 entrusts the operation of PSM to RAI-Radiotelevisione 
Italiana S.p.A. (hereafter: RAI) until 6 May 2016. The entrustment of PSM to RAI was not 
carried out, as generally required by the EU regulations on public procurement, through a 
public  tender34,  but  rather  through  a  direct  conferral  of  the  PSM  tasks  to  Italy’s  former 
broadcasting monopolist, RAI. 

As requirements for the PSM remit, CLARMS includes: the transmission of programmes of 
general  interest  on  the  whole  national  territory;  an  appropriate  number  of  hours,  also 
during  prime  time,  devoted  to  education,  information,  cultural  promotion  through 
cinema,  theatre  and  musical  works;  access  to  programming  to  political  parties,  trade 
unions, religious groups and other associations of social interest; programming destined 
to  be  broadcast  abroad  to  promote  the  knowledge  of  Italian  language  and  culture; 
protection  of  historical  archives  of  radio  and  television  programs;  broadcasting  in 
minority  languages;  measures  to  protect  disabled  people;  long-distance  teaching; 
interactive digital services. 

As  far  as  press  is  concerned,  Article  5  of  Law  no.  47/1948  requires  all  newspapers  and 
periodicals  to  register  with  the  Court  Registry  of  the  place  where  the  newspaper  or 
periodical is going to be published. 

The application for registration must include the following documents:  

1) 	 a statement, authenticated by the signatures of the owner and the director or deputy 
managing  director,  stating  the  name  and  domicile  of  he  person  who  exercises  the 
journalistic  enterprise,  if  that  person  is  different  from  the  owner,  and  the  title  and 
the nature of the publication; 

2)	  proof  of  enrollment  in  the  Journalists'  Roll,  in  cases  where  this  is  required  by  the 

Journalist Profession Law; 

3)  	 copy  of  the  articles  of  association  and  of  the  company’s  statute,  if  the  owner  is  a 

company. 

The  president  of the Court  or  a  judge  delegated  by  him or  her,  checks  compliance  with 
the above requirements and orders, within fifteen days, the registration of the newspaper 
or magazine in a public Register. 

29 

30 

31 

32 

33 

34	 

Ibid., Article 3, para 3.  

Ibid., Article 3, para 4. 

Ibid., Article 3, para 5. 

Ibid., Article 6. 

Consolidated Law on Audiovisual and Radio Media Services (Legislative Decree no. 2005/177 as amended
 
by Legislative Decree no. 44/2010). 
But  see  Judgment  of  the  Court  of  First  Instance  of  26  June  2008,  SIC  –  Sociedade  Independente  de 
Comunicação,  SA  v  Commission  of  the  European  Communities  Case  T-442/03  [2008]  ECR  II-01161 
(holding  that  Portuguese  Republic  was  ‘in  no  way’  required  to  organise  a  competitive  tendering  prior  to 
entrusting  PSM  tasks  to  RTP).  On  the  necessity  of  awarding  PSM  obligations  on  the  basis  of  competitive 
tendering,  See  R.  Mastroianni,  Public  Service  Media  and  Market  Integration:  A  Differential  Application  of 
Free  Movement  and  State  Aid  Rules?  in  M.  Cremona  (ed),  Market  Integration  and  Public  Services  within 
the EU (Oxford: Oxford University Press, 2011) 167-169. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Media pluralism/ownership; competition law aspects 

The concentration of media ownership in Italy has traditionally been a sensitive issue, as 
summarised  by  the  Council  of  Europe  Parliamentary  Assembly  in  its  Resolution  1387 
(2004)  on monopolisation of the electronic media and possible abuse of power in Italy: 

“Through Mediaset, Italy’s main commercial communications and broadcasting group, 
and  one  of  the  largest  in  the  world,  Mr  Berlusconi  owns  approximately  half  of  the 
nationwide broadcasting in the country. His role as head of government also puts him 
in a position to influence indirectly the public broadcasting organisation, RAI, which is 
Mediaset’s  main  competitor.  As  Mediaset  and  RAI  command  together  about  90%  of 
the  television  audience  and  over  three  quarters  of  the  resources  in  this  sector,  Mr 
Berlusconi exercises unprecedented control over the most powerful media in Italy. 

This  duopoly  in  the  television  market  is  in  itself  an  anomaly  from  an  antitrust 
perspective.  The  status  quo  has  been  preserved  even  though  legal  provisions 
affecting  media  pluralism  have  twice  been  declared  anti-constitutional  and  the 
competent  authorities  have  established  the  dominant  positions  of  RAI  and  the  three 
television channels of Mediaset. An illustration of this situation was a recent decree of 
the  Prime  Minister,  approved  by  parliament,  which  allowed  the  third  channel  of  RAI 
and  Mediaset’s  Retequattro  to  continue  their  operations  in  violation  of  the  existing 
antitrust limits until the adoption of new legislation. Competition in the media sector 
is  further  distorted  by  the  fact  that  the  advertising  company  of  Mediaset, 
Publitalia ’80, has a dominant position in television advertising.” 

At  the  moment,  the  CLARMS  lays  down  both  “technical”  and  “economic”  anti-
concentration  limits  for  the  media  sector.  The  former  limit  applies  to  the  number  of 
channels  broadcast  by the  same  subject.  In  particular,  the  CLARMS  provides  that,  once 
the  digital  switchover  process  is  complete,  no  content  provider  will  be  allowed  to 
broadcast  more  than  20  percent  of  the  total  television  channels  and  more  than  20 
percent  of  the  total  radio  channels.35  Pending  the  completion  of  that  process,  content 
providers  cannot  broadcast  more  than  20  percent  of  television  broadcasts  conveyed  on 
analogue  or  digital  networks,  excluding  simulcasts  of  analogue  programmes  and  digital 
broadcasts accessible to less than 50 percent of Italian viewers.36 

Both institutional actors and academic commentators have expressed concerns about the 
technical  limit  applicable  prior  to  the  completion  of  the  digital  switchover,  in  that  it 
replaced  an  earlier  limit  of  20  percent  applicable  to  analogue  broadcasting  only.  By 
taking into account both analogue and digital broadcasting, the technical limit set out in 
the  CLARMS,  in  fact,  allows  existing  dominant  operators  in  the  analogue  sector  to 
consolidate  their  dominance  also  in  the  digital  sector.37  The  Venice  Commission,  in 
particular,  considered  that  the  threshold  of  20%  of  the  channels  was  “not  a  clear 

35 

36 

37 

Article 43, para 7, CLARMS. 
Article 43, para 8, CLARMS. 
See  Council  of  Europe,  Parliamentary  Assembly  Resolution  1387  (2004)  on  monopolisation  of  the 
electronic  media  and  possible  abuse  of  power  in  Italy,  para  6:  ”The  Assembly  believes  that  the  newly-
adopted  ‘Gasparri  Law’  on  the  reform  of  the  broadcasting  sector  may  not  effectively  guarantee  greater 
pluralism  simply  through  the  multiplication  of  television  channels  in  the  course  of  digitalisation.  At  the 
same  time,  it  manifestly  allows  Mediaset  to  expand  even  further,  as  it  gives  the  market  players  the 
possibility  to  have  a  monopoly  in  a  given  sector  without  ever  reaching  the  antitrust  limit  in  the  overall 
integrated system of communications (SIC).” R. Zaccaria and A. Valastro, Diritto dell’informazionae e della 
comunicazione (Padua: Cedam, 2010) 558-559. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

indicator  of  market  share”  and  argued  that  it  should  be  combined  “with  an  audience 
share indicator”.38 

Turning to “economic” media anti-concentration, regard must be had, first and foremost, 
to the notion of Integrated Communications System (hereafter: ICS) laid down in Article 
43  CLARMS.  The  ICS  is  a  statute-defined  relevant  market  encompassing  the  following 
activities:  newspapers  and  magazines,  yearly  and  electronic  publishing;  radio  and 
audiovisual  media  services,  cinema,  outdoor  advertising,  communication  initiatives  for 
products and services, and sponsorships.39 

The  CLARMS  prohibits  holding  a  dominant  position  in  the  ICS  and  in  its  constituent 
submarkets.40  Moreover,  the  CLARMS  stipulates  that  no  communication  operator  may, 
either directly or through controlled or connected companies, achieve revenues in excess 
of 20 percent of the total ICS revenues.41 Such revenues include inter alia those derived 
from  the  sale  of  daily  newspapers  and  periodicals,  from  online  publishing,  from 
advertising,  teleshopping,  sponsorships  etc.42  The  20  percent  limit  is  reduced  to  10 
percent  for  companies  achieving  more  than  40  percent  of  the  overall  revenues  of  the 
electronic communications sector.43 

As far as the press sector is concerned, Law no. 416/81, as amended by Law no. 67/87, 
sets  out  a  ban  on  the  holding  of  a  dominant  position  in  the  daily  newspaper  publishing 
market.44  For  the  purpose  of  that  ban,  the  notion  of  dominant  position  is  defined  by 
reference  to  the  share  of  the  total  circulation of  daily  newspapers  in  Italy  or  one  of  the 
four  inter-regional  areas  defined  by  the  law.45  Transactions  leading  to  the  creation  of  a 
dominant position are null and void46 and can result in the compulsory sale of shares or 
newspapers so as to eliminate the dominant position.47 

Moreover,  the  CLARMS  also  precludes  companies  engaging  in  nation-wide  broadcasting 
or electronic communications exceeding certain revenue thresholds from acquiring stakes 
or  participating  in  the  establishment  of  publishers  of  daily  newspapers  (with  the 
exception  of  daily  newspapers  issued  only  in  electronic  form)  before  31  December 
2012.48 The relevant revenue thresholds are 8 percent of the overall ICS for broadcasting 
companies  and  40  percent  of  the  revenues  in  the  electronic  communications  sector  for 
electronic communications companies.49 

Also  advertising  in  the  daily  newspaper  publishing  sector  is  subject  to  specific 
restrictions.  Law  no.  416/1981  stipulates  that  no  advertising  agency  can  enter  into 
exclusive  dealing  arrangements  with  a  number  of  daily  newspapers  whose  combined 

38	 

39	 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

Opinion  of  the  Venice  Commission,  adopted  at  its  63rd  Plenary  Session  (10-11  June  2005),  on  the 
compatibility of the “Gasparri” and “Frattini” laws of Italy with the Council of Europe standards in the field 
of freedom of expression and pluralism of the media. 
Art. 2 para. 1, lett. l) of Legislative Decree no. 177 of  31 July 2005, in GURI n. 208 of 7 September 2005, 
Supplemento ordinario n. 150. 
Article 43, paras. 2 and 9 CLARMS. 
Article 43, para 9, CLARMS. 
Art.  43,  para  11  of  Legislative  Decree  no.  177  of  31  July  2005,  in  GURI  n.  208  of  7  September  2005, 
Supplemento ordinario n. 150. 
Article 43, para 11, CLARMS. 
Law 5 August 1981, no. 416, OJIR 6 August 1981, no. 215; Law 25 February 1987, no. 67, OJIR 9 March 
1987, no. 56. 
Ibid., Article 3(1). 
Ibid., Article 3(4). 
Ibid., Article 3(5)-(6). 
Article 43, para 12, CLARMS. 
Ibid. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

circulation  exceeds  30%  of  the  total  nation-wide  circulation.50  The  applicable  threshold 
drops to 20% for advertising agencies having corporate connections with publishers.51 

- Legal framework for psm; ability to fulfill their tasks 

The  PSM  remit  is  outlined  in  Articles  45  and  46  CLARMS  as  a  number  of  minimum 
objectives the PSM operator has to meet.  

The PSM remit  is specified  in greater detail  in a ‘service  contract’ (contratto di servizio) 
renewed  every  three  years  between  the  PSM  operator  and  the  Ministry  of  Economic 
Development.52  Prior  to  each  renewal,  the  Ministry  and  AGCom  jointly  issue  guidelines 
setting  out  the  contents  of  further  PSM  obligations  to  take  into  account  changes  in  the 
market  and  technological  context,  as  well  as  in  the  cultural  needs  of  the  national  and 
local audience. The latest guidelines were adopted on 12 November 200953. The service 
contract for the years 2010-2012 was signed on 7 April 2011. 

The company entrusted with PSM is also allowed to carry out commercial activities other 
than its public service remit, provided that these additional activities do not interfere with 
its PSM duties and contribute to ensuring a balanced management of the company.54 To 
this  end,  the  CLARMS  lays  down  specific  restrictions  on  advertising  on  PSM  channels. 
Indeed,  while  the  PSM  operator  can  schedule  advertising  for  no  more  than  4%  of  its 
weekly airtime and up to 12% of its hourly airtime,55 free-to-air commercial broadcasters 
are  subject  to  a  18%  hourly  advertising  limit  and  to  a  15%  daily  advertising  limit  that 
can be extended to 20% if broadcasters schedule advertising types other than spots (e.g. 
telepromotion).56 

The PSM operator is financed through a dual-funding system, in that its revenues include 
both  remuneration  for  commercial  activities  (notably  the  sale  of  advertising  space)  and 
compulsory  licence  fees  (‘canone  di  abbonamento’)  levied  on  all  owners  of  television 
sets.57 The amount of the latter is set every year in accordance with a decree issued by 
the Minister, as per Article 47, paragraph 3, CLARMS. The licence fee dates back to the 
1930s and is still regulated by Royal Legislative Decree no. 246 of 21 February 1938 and 
by Legislative Decree no. 458 of 21 December 1944.  

The basic rules for the PSM funding are set forth in Article 47 of the CLARMS and include 
the principle whereby the licence fee can be employed exclusively to fulfil PSM functions, 
not  commercial  activities.  To  this  end,  the  CLARMS  lays  down  a  separate  accounting 
requirement:  in  particular,  RAI  is  required  to  draw  up  its  balance  sheet  in  accordance 
with a prospectus approved by AGCom in its Resolution no. 186/05/CONS.58 

The  constitutional  justification  of  the  licence  fee  has  been  the  subject  of  several  recent 
rulings by the Constitutional Court.59 While in the past the licence fee constituted a form 
of commercial consideration for the services provided by RAI, nowadays it is regarded as 
a  purpose  tax  («imposta  di  scopo»),  whose  aim  is  to  allow  the  PSM  public  service 

50 

51 

52 

53 

54 

55 

56 

57 

58 

59 

Law no. 416/81, Article 12(3).
 
Ibid, Article 12(4).
 
Article 45, para 1, CLARMS. 

AGCom Decision no. 614/09/CONS, OJIR 26 November 2011, no. 276.
 
Article 45, para 5, CLARMS. 

Article 38, para 1 CLARMS. 

Article 38, paras. 2 and 3 CLARMS.
 
See generally C. Schepisi, ‘Televisioni e aiuti di Stato: il finanziamento del servizio radiotelevisivo pubblico
 
e gli aiuti per il passaggio al digitale terrestre’, AIDA (2010), 48 et seq. 
Resolution  no.  186/05/CONS,  published  in  the  Official Journal  of  the  Italian  Republic  no.  150  of  30  June 
2005. 
See Constitutional Court, Judgment no. 248 of 2002 and 155 of 2002. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

broadcaster to carry out its remit. Indeed, as the Constitutional Court put it, ‘a system of 
funding  based  exclusively  on  advertising  revenues  would  force  the  public  service 
broadcaster to take account of audience shares and to adapt the quality and breadth of 
its programming to that of its competitors.’60 

Doubts  have  been  expressed  in  academic  circles  as  to  the  effectiveness  of  the  current 
PSM funding system to fully ensure the independence of the PSM operator from political 
and  governmental  influence.61  As  explained  above,  the  amount  of  RAI’s  mandatory 
licence fee is set, every year, by a member of the Government, the Minister of Economic 
Development,  which  must  ‘take  account  of  such  expenses  that  the  public  service 
broadcaster  is  expected  to  incur  in  fulfilling  the  specific  general  public  broadcasting 
service obligations for the year in question as can be inferred from the previous budget, 
the perspective inflation rate, and the needs of technological development.’62 

Also relevant to RAI’s ability to fulfil its public service and information tasks are the rules 
governing the appointment of its Board of Directors. RAI’s Board of Directors consists of 
nine  members,  seven  of  which  are  appointed  by  the  Parliamentary  Supervision 
Committee,  whose  membership  reflects,  in  proportion,  the  political  composition  of  the 
Parliament. The other two members of the Board of Directors – one of which is the Chair 
of  the  Board  –  are  appointed  directly  by  the  majority  shareholder,  i.e.  the  Ministry  of 
Economy  and  Finance.  The  appointment  of  the  Chair,  however,  becomes  effective  only 
upon  approval  by  the  Parliamentary  Supervision  Committee  by  a  two-thirds  majority 
vote. 

Concerns  have  been  voiced  both  by  scholarly  and  institutional  commentators  as  to  the 
ability  of  RAI’s  current  governance  system  to  ensure  its  de  facto  independence  from 
political  and  governmental  influence.  In  particular,  the  European  Parliament,  in  its 
Resolution  no.  2003/2237(INI),  regretted  the  “repeated  and  documented  instances  of 
governmental interference, pressure and censorship in respect of the corporate structure 
and  schedules  (even  as  regards  satirical  programmes)  of  the  RAI  public  television 
service,  starting  with  the  dismissal  of  three  well-known  professionals  at  the  sensational 
public  request  of  the  President  of  the  Italian  Council  of  Ministers  in  April  2002  –  in  a 
context in which an absolute majority of the members of the RAI board of governors and 
the respective parliamentary control body are members of the governing parties.”63. The 
following  year,  the  Parliamentary  Assembly  of  the  Council  of  Europe,  in  its  Resolution 
1387  (2004),  underscored  that  RAI  ‘has  always been  a mirror  of  the  political  system  of 
the  country’  and  that  it  ‘has  moved  from  the  proportionate  representation  of  the 
dominant  political  ideologies  in  the  past  to  the-winner-takes-all  attitude  reflecting  the 
present political system.’64 

60 

61 

62 

63 

64	 

Constitutional Court, Judgement no. 284/02.
 
See R. Mastroianni, Riforma del sistema radiotelevisivo italiano e diritto europeo (Turin: Giappichelli 2004)
 
83. 
See Article 47, para 3, CLARMS. 
European Parliament, resolution on the risks of violation, in the EU and especially in Italy, of freedom of 
expression and information (Article 11(2) of the Charter of Fundamental Rights), 2003/2237(INI), OJEU C 
104E , 30 April 2004, p. 1026–1040, para 60. 
See,  Council  of  Europe,  Parliamentary  Assembly  Resolution  1387  (2004)  on  monopolisation  of  the 
electronic  media  and  possible  abuse  of  power  in  Italy,  para  7  (noting  that  RAI’s  situation  is  “contrary  to 
the  principles  of  independence  laid  down  in  Assembly  Recommendation  1641  (2004)  on  public  service 
broadcasting”.). See also Council of Europe, Commissioner for Human Rights, Issue Discussion Paper of 6 
December 2011 on “Media pluralism and human rights”, para 3.2, (noting that “Italy also has an ongoing 
record of control over public service television by political parties and governments.”). 

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- The role and functioning of regulatory authorities in these respects 

The  enforcement  of  anti-concentration  rules  is  entrusted  to  AGCom65.  To  facilitate 
AGCom’s  enforcement  tasks,  all  companies  active  in  the  ICS  are  required  to  notify 
agreements and mergers to AGCom.66 All contracts, mergers and agreements at variance 
with the prohibitions set out in Article 43 CLARMS are null and void.67 

AGCom  adopts  every  year  a  decision  setting  out  an  estimate  of  the  overall  ICS 
revenues.68  If  AGCom  establishes  a  breach  of  the  prohibitions  set  out  in  Article  43 
CLARMS, it must take appropriate measures to ensure that those breaches are remedied 
in a timely fashion.69 

Oversight  of  the  Italian  PSM  operator  is  shared  between  AGCom  and  the  Parliamentary 
Supervision Committee (PSC). 

The PSC may issue directives to the PSM as to its investment and expenditure plans, its 
programme schedule, and its advertising policy,70 so as to ensure that the PSM operator 
conforms  to  the  fundamental  principles  governing  the  broadcasting  sector,  i.e. 
independence,  objectivity  and  a  pluralistic  attitude  towards  diverse  cultural,  social  and 
political views.71 The PSC also monitors compliance with its own guidelines and directives 
by the PSM operator.  

AGCom is entrusted with the task of monitoring compliance by the PSM operator with its 
public  service  remit.72  AGCom  may  seek  information  and  require  disclosure  of 
documents, consult with experts and carry out searches of business premises. If AGCom 
establishes  a  breach  by  the  PSM  operator  of  its  remit,  it  may  enjoin  the  company  to 
rectify  its  conduct  and  may  also  impose,  if  need  be,  a  fine  up  to  3  percent  of  the  PSM 
operator’s  turnover.  If  the  PSM  operator  fails  to  comply  with  the  above  injunction, 
AGCom may impose an additional fine and, in the most egregious cases, may order the 
suspension of all broadcasting activities up to ninety days. 

The  PSC  consists  of  twenty  Members  of  the  House  of  Representatives  and  twenty 
Senators  appointed  by  the  Chairs  of  both  the  Houses  on  the  basis  of  the  parliamentary 
groups’ designations.73 Accordingly, the PSC tends to reflect, in proportion, the balances 
between political parties represented in the Parliament. 

AGCom consists of four different bodies: the President, the Council, the Commission for 
Services  and  Products  (hereafter:  CSP)  and  the  Commission  for  Infrastructures  and 
Networks  (hereafter:  CIN).  The  Council  is  composed  of  the  President  and  eight 
Commissioners  (also  known  as  AGCom  ‘Members’);  the  CSP  and  the  CIN  are  each 
composed by the President and four Commissioners. The President is designated by the 
Italian Prime Minister, upon agreement with the Minister for Economic Development. The 
appointment  of  AGCom’s  President  takes  the  form  of  a  decree  of  the  President  of  the 
Republic, which requires approval by a two-thirds majority by the relevant parliamentary 
committees.  The  President’s  term  of  office  is  seven  years.  He  or  she  cannot  be  re­

65 

66 

67 

68 

69 

70 

71 

72 

73 

Art. 43, para  5 of Legislative Decree no. 177 of 2005.
 
Article 43, para 1 CLARMS. 

Art. 43, para  4 of Legislative Decree no. 177 of 2005.
 
See  AGCom  Decision  no.  126/11/CONS  (stating  that  the  overall  value  of  ICS  revenues  in  2009  was  23
 
billion euros). 
Article 43, para 5, CLARMS. 
Article 4 of Law 103 of 1975. 
See Articles from 3 to 7 CLARMS. 
See Article 48 CLARMS. 
Article 1 of Law no. 103 of 1975. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

elected. The remaining eight AGCom Members are appointed by the Parliament, four by 
the  House  of  Representatives  and  four  by  the  Senate.  Each  Member  of  Parliament  can 
vote for two candidates, one for the CSP and one for the Commission for the CIN. 

AGCom’s  status  as  an  ‘independent  authority’  implies  that  it  is  not  accountable  to  the 
Government  and  that  it  should  not  be  subject  to  any  sort  of  political  influence.  Law  14 
November  1995,  no.  481  sets  out  the  eligibility  requirements,  cases  of  incompatibility, 
confidentiality obligations and remuneration of AGCom Members. To be eligible, AGCom 
Members must be endowed with an undisputed expertise and competence in the relevant 
sector.  AGCom  Members  cannot  exercise,  directly  or  indirectly,  consultancy  or 
professional  activities,  be  managers  or  employees  of  public  and  private  entities,  hold 
public offices of any nature, including positions in political parties, or have any interest, 
direct or indirect, in any undertakings active in the sector within the purview of AGCom. 

Although  those  institutional  arrangements  formally  safeguard  AGCom’s  independence,  a 
recent  study  has  expressed  concerns  over  the  “vague  nomination  and  appointment 
procedure”  of  AGCom  Members.74  In  particular,  the  independent  experts  interviewed  in 
the context of that study suggested that the current procedure might provide suboptimal 
outcomes  in  terms  of  i)  expertise  and  qualification  of  AGCom  Members  (as  no  specific 
requirements  are  set  out  in  that  respect);  ii)  AGCom  Members’  independence  from 
political  parties,  whose  balances  in  the  Italian  Parliament  tend  to  be  reflected  in 
administrative  and  governmental  bodies  (lottizzazione).  As  to  the  latter  aspect,  the 
above  study  reported  that,  in  June  2010,  one  of  AGCOM’s  commissioners  resigned 
following a judicial inquiry into alleged pressures applied by the then Prime Minister Mr. 
Silvio  Berlusconi  in  order  to  stop  certain  broadcasts  on  RAI  that  were  highly  critical 
towards the government.75 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

In order to safeguard the independence of journalistic activity from the government, the 
seizure of press is permitted only in connection with criminal offences for which the Press 
Law  expressly  requires  seizure,  only  for  printed  materials  that  have  already  been 
published,  and  only  in  the  presence  of  a  Court  order.76  In  cases  of  urgency,  when 
obtaining a court order is unfeasible, law enforcement agencies can autonomously seize 
printed  publications,  but  must  notify  the  court  having  jurisdiction  of  the  seizure.77  That 
court  must  uphold  the  seizure  within  24  hours,  otherwise  the  seizure  becomes 
ineffective.78 

Journalists’  independence  from  the  political  leanings  of  the  newspaper  they  work  for  is 
ensured  by  the  so-called  Conscience  Clause  (clausola  di  coscienza),  included  in  the 
collective  agreement  entered  into  between  the  National  Federation  of  Italian  Journalists 
(Federazione  Nazionale  della  Stampa  Italiana)  and  the  Italian  Federation  of  Newspaper 
Publishers  (Federazione  Italiana  Editori  Giornali).79  Under  the  conscience  clause,  a 

74 

75 

76 

77 

78 

79 

See Hans Bredow Institute for Media Research et al., INDIREG, Preliminary final report, 285-287, available 
at: 
http://ec.europa.eu/avpolicy/docs/library/studies/regulators/final_report.pdf , pp. 286-287. 
Ibid., p. 130 and p. 285. 
See Article 21, para 3 of the Constitution. 
See Article 21, para 4 of the Constitution. 
See Article 21, para 5 of the Constitution. 
Contratto Nazionale di Lavoro Giornalistico 2009-2013, available at:
http://www.fnsi.it/Download/CNLG_FNSI_FIEG_2009_2013.pdf. 

404 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
  
 
  
 
  
 
  
  
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

journalist is entitled to unilaterally terminate his or her employment relationship, with full 
economic benefits, in case of a significant shift in the newspaper’s political alignment.80 

Turning  to  journalists’  protection  against  “silencing”  libel  and  defamation  claims,  some 
judgements  of  the  Court  of  Cassation81  suggest  that  the  right  to  report  exercised  by 
journalists  enjoys  stronger  protection  relative  to  other  forms  of  expression,  insofar  as 
journalists  facing  defamation  charges  may  rely  on  specific  affirmative  defences.  In  fact, 
the  preferential  status  accorded  to  the  right  to  report  does  not  stem  from  Article  21  of 
the  Constitution  (which  protects  all  forms  of  expression  alike)  but  from  the  Criminal 
Code, according to which one cannot be punished for exercising his or her rights.82 The 
Constitutional Court endorsed this view.83  The Court of Cassation, moreover, delivered a 
landmark ruling (known as the ‘Decalogue Ruling’) summarizing the three requirements 
that must be met for the exercise of freedom of the press not to give rise to liability: i) 
the diffusion of the news must be socially useful; ii) the reported facts must be true, and 
iii)  the  representation  and  assessment  of  fact  must  be  sober  and  fair.84  The  Court  of 
Cassation  subsequently  added  a  fourth  requirement,  i.e.  the  timeliness  of  the  news,85 
which rests on the recognition of the so-called ‘right to be forgotten’.86 

The  Journalist  Profession  Law  expressly  requires  journalists  and  publishers  to  maintain 
professional  secrecy  about  the  source  of  the  news  when  it  is  necessary  due  to 
confidentiality  of  the  news.87  That  provision,  however,  does  not  expressly  state  that 
journalists  and  editors  can  lawfully  refuse  to  disclose  the  identity  of  their  source  if  so 
requested by a court.88 

The  Code  of  Penal  Procedure,  enacted  in  1988,  provides  that  registered  professional 
journalists  cannot  be  required  to  divulge  the  names  of  the  people  from  which  they 
obtained confidential information in the exercise of their profession.89 That privilege only 
applies to registered professional journalists (not to publicists and trainees)90 and covers 
the  name  of  the  informant  as  well  as  any  information  (e.g.  telephone  numbers)91  that 
could lead to his or her identification.92 

The  protection  of  journalistic  sources  envisaged  by  the  Code  of  Penal  Procedure, 
however, is qualified by the power vested in courts to enjoin journalists to disclose their 
sources  if  the  relevant  information  are  indispensable  to  prove  the  crime  being 
investigated  and  if  the  truthfulness  thereof  can  only  be  established  by  identifying  the 
source.93  It  is  apparent  from  the  wording  of  the  Code  of  Penal  Procedure  that  the  said 

80 

81 

82 

83 

84 

85 

86	 

87 

88 

89 

90 

91 

92 

93 

Ibid., Article 32. 
See, e.g., Court of Cassation, Judgment of 31 May 1966, no. 1446; Judgment of 21 December 1967, no. 
3003. 
See  G. Gardini,  Le  Regole  dell’Informazione.  Principi  giuridici,  strumenti,  casi,  (Milan:  Bruno  Mondadori, 
2009) 34. 
Constitutional Court, Judgment no. 175 of 1971. 
See Court of Cassation, Judgment no. 5259/1984. 
See Court of Cassation, Judgment no. 3679 of 1998. See also Tribunale di Bari, Judgment of 27 settembre 
2008  (holding  that  making  an  article  published  at  an  earlier  time  available  through  an  online  database 
does not infringe the right of privacy or the right to be forgotten). 
But see A. Pace and M. Manetti, ‘Art. 21: la libertà di manifestazione del proprio pensiero’, ed. G. Branca 
and A. Pizzorusso, Commentario della Costituzione (Bologna: Zanichelli, 2006) 133-134 (arguing that the 
demand not to write about a particolar subject has an ‘inherently censorial content’ and that a full-fledged 
right to be forgotten has no clear legal basis in Italian law). 
Article 2, paragraph 3 of the Journalist Profession Law. 

See A. Pace and M. Manetti, ‘Art. 21: la libertà di manifestazione del proprio pensiero’, ed. G. Branca and
 
A. Pizzorusso, Commentario della Costituzione (Bologna: Zanichelli, 2006) 341-342. 
See the first sentence of Article 200, para 3, of the Code of Penal Procedure (1988). 
But  See  P.  Caretti,  Diritto  pubblico  dell’informazione  (Bologna,  Il  Mulino,  1994)  64  (criticizing  that 
limitation).  
See Court of Cassation, Judgment of 21 January 2004, no. 22397. 
See Court of Cassation, Judgment of 16 February 2007, no. 25755. 
See the last sentence of Article 200, para 3, of the Code of Penal Procedure (1988). 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

power can be exercised by courts only in exceptional circumstances (e.g. if the informant 
is the only witness who can prove the innocence of the defendant).94 

As  to  the  liability  of  journalists,  the  case  law  has  set  some  legal  limits  to  their  right  to 
report  and  comment  (diritto  di  cronaca  e  di  critica).95  In  particular,  the  Court  of 
Cassation, in the aforementioned ‘Decalogue Ruling’, is of relevance here.96 

The  social  utility  criterion,  the  first  criterion  established  by  the  Court,  implies  that  the 
right  to  report  and  comment  can  only  lawfully  encroach  upon  other  rights,  such  as  the 
right  to  privacy,  if  it  can  contribute  to  the  formation  of  public  opinion  about  facts  of 
objective relevance for the society as a whole.97 

The  (second)  truthfulness  criterion  is  expressly  recognised  as  one of  the  basic  duties  of 
the journalistic profession by Law no. 69/63.98  The notion of ‘truthfulness’ postulates an 
exact  match  between  events  as  they  are  reported  by  the  journalist  and  events  as  they 
actually  occurred.99  Mere  verisimilitude  does  not  meet  the  truthfulness  requirement.100 
Accordingly,  journalists  are  under  an  obligation  to  carefully  and  diligently  check  their 
sources.101  Reported  news,  moreover,  must  also  be  comprehensive,  as  an  incomplete 
account of a fact could substantially distort or misrepresent its significance.102 

The  fair  representation  and  comment  criterion  implies  that,  thirdly,  the  exercise  of  the 
freedom of the press must neither go beyond the goal to inform the audience nor cause 
harm  to  the  reputation  of  the  persons  concerned.  The  Court  of  Cassation,  in  particular, 
took the view that this criterion is not met when journalists employ subterfuges such as 
skilful innuendos, evocative juxtapositions and a disproportionately outraged tone.103 

The fourth requirement, i.e. the timeliness of the news rests on the recognition of the so-
called  ‘right  to  be  forgotten’:104  even  if  the  facts  reported  are  true  and  accurate,  every 
person  has  the  right  not  to  be  indefinitely  exposed  to  further  discomfort  or 
embarrassment as it may result from the repeated publication of facts lawfully disclosed 
at  an  earlier  time.  In  those  cases,  it  is  necessary  to  determine  whether  there  is  a 
renewed or ongoing public interest in learning about facts reported at an earlier time. 

The right to publish documents issued by public entities is an important indicator of the 
true  democratic  character  of  a  given  legal  system.  In  this  connection,  regard  must  be 
had  to  documents  covered  by  the  so-called  “secret  of  state”.  The  Constitutional  Court 
ruled  that  the  secret  of  state  is  not  incompatible  with  the  Constitution,  insofar  as  it  is 
designed to protect national security as per Article 126 of the Constitution.105 

94 

96 

97 

95 

98 

99 

See A. Pace and M. Manetti, ‘Art. 21: la libertà di manifestazione del proprio pensiero’, ed. G. Branca and 
A. Pizzorusso, Commentario della Costituzione (Bologna: Zanichelli, 2006) 344. 
See, e.g., Court of Cassation, Judgment no. 5941 of 2000; no. 747 of 2000; no. 8035 of 1998; no. 2113 
of 1997; no. 40415 of 2004. 
See Court of Cassation, Judgment no. 5259/1984. 
See Court of Cassation, Judgment no. 1473 of 1998. 
See Article 2 of Law no. 69 of 1963. 
See Court of Cassation, Judgment no. 5491 of 2000. 
100  See Court of Cassation, Judgment no. 8848 of 1997. 
101  See, e.g., Court of Cassation, Judgment no. 2173 of 1993; no. 5259 of 1984; no. 7747 of 1997. 
102  See, e.g., Court of Cassation, Judgment no. 5259 of 1984; no. 1904 of 2003. 
103  See Court of Cassation, Judgment no. 5259 of 1984. 
104  But see A. Pace and M. Manetti, ‘Art. 21: la libertà di manifestazione del proprio pensiero’, ed. G. Branca 
and A. Pizzorusso, Commentario della Costituzione (Bologna: Zanichelli, 2006) 133-134 (arguing that the 
demand not to write about a particolar subject has an ‘inherently censorial content’ and that a full-fledged 
right to be forgotten has no clear legal basis in Italian law). 

105  See Constitutional Court, Order no. 49/1977 and Judgment nos. 82/1977 and 86/1977. 

406 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
                                                 
  
 
 
 
 
  
 
 
  
 
  
 
  
 
  
 
  
 
  
 
 
 
  
  
 
 
 
 
  
 
 
  
 
 
 
 
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  scope  of  the  secret  of  state  has  been  recently  clarified  by  Law  No. 124  of  2007.106 
According to Article 39 thereof, the secret of state covers all acts, documents, facts, and 
activities  whose  disclosure  may  undermine  the  integrity,  independence  and  defence  of 
the  state,  its  relations  with  other  states,  or  the  functioning  of  state  institutions  and 
bodies  of  constitutional  relevance.  Some  scholars  have  argued  that  this  definition 
oversteps  the  boundaries  set  by  the  Constitutional  Court  as  to  the  permissible  scope  of 
the secret of state.107 

Article 261 of the Penal Code provides that the disclosure of information covered by the 
secret  of  state  is  punishable  by  imprisonment  of  at  least  five  years.  Article 262  of  the 
Penal  Code  criminalizes  the  disclosure  of  news  which  the  competent  authority  required 
not  to  be  made  public.  Disclosing  and  obtaining  such  news  are  punishable  by  at  least 
three years of imprisonment. The Constitutional Court clarified that the news covered by 
Article 262 of the Penal Code are akin to those covered by the secret of state, in that i) 
they must concern a state interest of compelling importance, and ii) their disclosure must 
be such as to appreciably undermine that interest. The characterization of a given piece 
of  information  as  ‘classified’  by  a  public  authority  does  not  automatically  trigger  Article 
262 of the Penal Code: it is for courts to determine on a case-by-case basis whether the 
two requirements above are met.108 

The  publication  of  court  documents,  especially  those  concerning  pre-trial  investigations, 
involves  a  balancing  exercise  between,  on  the  one  hand,  citizens’  right  to  be  informed 
about  court  cases  and  journalists’  role  as  watchdogs  of  society  and,  on  the  other  one, 
that the course of justice is not perverted by undue information leaks. In this connection, 
the  Constitutional  Court  has  ruled  that  some  court  documents  can  be  subject  to 
investigative  secrecy  (segreto  istruttorio)  and  that  it  is  up  to  the  legislature  to  strike  a 
balance between the freedom of expression and the administration of justice.109 

Investigative  secrecy  is  governed  by  Article  329  of  the  Code  of  Penal  Procedure. 
Documents  and  reports  by  the  Public  Prosecutor  or  by  law  enforcement  agencies  are 
subject to investigative secrecy until the defendant is entitled to access those documents 
and,  in  any  case,  until  the  completion  of  pre-trial  investigations.110  For  investigative 
purposes,  the  Public  Prosecutor  may  consent  to  the  publication  of  specific  documents 
covered  by  investigative  secrecy111  and  may  forbid  the  publication  of  documents  not 
subject to investigative secrecy.112 

The rules concerning the publication of court documents are set out in Article 114 of the 
Code of Penal Procedure. Paragraph 1 thereof proscribes the publication, also in part or 
in summary form, of investigation documents covered by investigative secrecy as well as 
of  their  contents.  Investigation  documents  not  subject  to  investigative  secrecy  can  be 
published only after the completion of pre-trial investigation. Their contents, instead, can 
be published at all times. If the trial reaches the hearing stage, court documents can only 
be published, in whole or in part, after the judgment is delivered. In the case of closed­

106 

107 

Law 3 August 2007, no. 124, OJIR 13 August 2007, no. 187.
 
P. Pisa, Le premesse ‘sostanziali’ della normativa sul segreto di Stato, 37.
 
108  See Constitutional Court, Judgment nos. 282/1990, 333/1991 and 295/2002.
 
109  See Constitutional Court, Judgment no. 25/1965. For commentaries, See V. Crisafulli, In tema di limiti alla
 
cronaca  giudiziaria,  Giurisprudenza  costituzionale,  1965,  245;  V.  Barosio,  Il  divieto  di  pubblicare  atti  o 
documenti relativi ad una istruzione penale e la sua compatibilità con gli artt. 3 e 21 Cost., Giurisprudenza 
costituzionale, 1966, 176. 

110  Article 329, para 1, of the Code of Penal Procedure. 
111  Article 329, para 2, of the Code of Penal Procedure. 
112  Article 329, para 3, of the Code of Penal Procedure. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

door hearings,113 instead, court documents can only be published ten years after the final 
judgment is rendered and upon authorization by the Minister of Justice. 

The identity and image of minors involved in criminal proceedings as witnesses or victims 
cannot  be  disclosed  until  they  reach  the  age  of  eighteen.  It  is  also  forbidden  to  publish 
images  depicting  the  defendant  in  handcuffs  or  other  restraints,  unless  the  defendant 
consents to the publication. 

The publication of wiretap transcripts has recently given rise to a lively political and legal 
debate. The Constitutional Court has cautioned against the reckless publication of wiretap 
transcripts involving elected officials as undue means of political pressure.114 The Italian 
Data  Protection  Authority,  in  turn,  has  repeatedly  urged  journalists  to  adopt  a  more 
cautious  approach  in  publishing  wiretap  transcripts  of  famous  people  or  elected  officials 
as doing so could significantly undermine their right to privacy.115 

The  Government  in  2008  proposed  an  outright  ban  on  the  publication  of  wiretap 
transcripts  (the  so-called  ‘Alfano  Bill’),116  but  the  bill  was  eventually  dropped  in  view  of 
the strong opposition of the public opinion and of the concerns raised by some academic 
commentators  as  to  the  consistency  of  the  bill  with  the  Constitution  and  with  the 
ECHR.117 

Absent specific rules on the publication of wiretap transcripts, regard must be had to the 
guiding principles set out in Article 6 of the Code of Practice Concerning the Processing of 
Personal  Data  in  the  Exercise  of  Journalistic  Activities  (PDCP).118  Compliance  with  those  
provisions  is  a  precondition  for  the  lawful  processing  of  personal  data  for  journalistic 
purposes as per Article 137, para. 3 PDPC. 

Article  6  PDCP  provides  that  disclosure  of  information  of  substantial  public  or  social 
interest  is  consistent  with  the  right  to  privacy  so  long  as  such  piece  of  information  is 
indispensable  in  view  of  the  originality  of  the  relevant  event  or  of  the  status  of  the 
persons  involved.  Accordingly,  the  right  to  privacy  of  famous  persons  and  persons 
holding  public  offices  must  be  respected  if  the  disclosed  information  is  not  relevant  to 
their public role. 

Law 281 of 2006 grants a remedy to people harmed by the publication of the contents of 
illegal wiretapping (i.e. carried out in the absence of a court order): the publisher and the 
responsible  editor  are  jointly  and  severally  liable  up  to  fifty  euro  cents  for  each  printed 

113  See Article 472, paras. 1 and 2, of the Code of Penal Procedure.
 
114 

Judgment no. 390/2007.
 

115  See  Personal  Data  Protection  Autority,  Decision  of  21  June  2006,  ‘Publishing  Transcripts  of  Tapping
 

Records’, OJIR 21 June 2006, no. 147, available in English at:

http://www.garanteprivacy.it/garante/doc.jsp?ID=1301195.
 

116	  Chamber  of  Deputies,  Legislative  Proposal  no.  1415,  submitted  by  the  Minister  of  Justice  Mr.  Angelino 

Alfano on 30 June 2008, available at:
http://www.camera.it/_dati/leg16/lavori/stampati/pdf/16PDL0005770.pdf. 

117	  See  D.  Gallo,  La  riforma  delle  intercettazioni  nel  d.d.l.  Alfano,  Costituzionalismo.it,  2009,  25  et  seq., 
available  at:  http://www.costituzionalismo.it/articolo.asp?id=325;  F.  Ruggieri,  Il  disegno  di  legge 
governativo sulle intercettazioni: poche note positive e molte perplessità, Cassazione penale, 2008, 2239 
et seq.; L. Della Corte, R. Paudice and I. Vozzo, La disciplina delle intercettazioni (DDL Alfano) alla luce del 
principio della  libertà di espressione garantita dalla Carta Costituzionale e dalla Convenzione Europea dei 
Diritti dell’Uomo, Report of the research group directed by Professor R. Mastroianni presented on 15 July 
2009, available at: http://www.odg.it/files/Rapporto%20contro%20Alfano.pdf. 

118	  See  R.  Zaccaria  and  A.  Valastro,  Diritto  dell’informazione  e  della  comunicazione  (Padua:  Cedam,  2010) 
157;  D.  Piccione,  Diritto  di  cronaca  giornalistica  dei  parlamentari  e  pubblicazioni  delle  intercettazioni 
telefoniche a loro carico, Giurisprudenza costituzionale, 2008 1573 et seq. 

408 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
  
 
 
 
 
 
 
  
 
  
  
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

copy  of  the  offending article  or  up  to  one  million  Euros  if  the  transcripts  were  disclosed 
through radio, television, or the internet.119 

- Specific positive content obligations 

In addition to the specific positive content obligation that are comprised in the PSM remit 
(see  above  “legal  framework  for  public  service  media  operations”)  and  to  the  ones 
imposed  on  all  broadcasters  in  the  field  of  political  communication  (see  below  “political 
advertising  and/or  broadcasting  time”),  Article  7,  paragraph  1,  CLARMS  stipulates  that 
‘the  provision  of  information  through  audiovisual  media  services  by  any  broadcaster  or 
content provider constitutes a service of general interest’ and is accordingly subject to a 
number  of  horizontal  obligations  (the  truthful  presentation  of  facts  and  events,  the 
obligation  to  broadcast  news  programmes  every  day,  the  duty  to  grant  access  to  all 
political subjects etc.). 

- Funding schemes for specifically desired content 

The  press  is  the  beneficiary  of  various  forms  of  financial  support  from  the  State.  The 
beneficiaries of direct aid are listed in Article 9 of Law no. 67 of 1987. They include inter 
alia:  i)  cooperatives  publishing  newspapers;  ii)  publishing  companies  that  pledge  not  to 
distribute dividends and profits to shareholders; iii) companies publishing newspapers or 
periodicals that are organs of a political party. 

The  affiliation  to  a  political  party  of  a  given  newspaper  or  periodical  must  be  apparent 
from  its  masthead.  The  law,  however,  does  not  impose  any  substantive  content 
requirements in this connection. 

Newspapers and periodicals that are organs of a political party are entitled to both a flat 
subsidy  equal  to  30%  of  the  average  costs  incurred  during  the  last  two  financial  years 
and a variable subsidy to be determined according to their circulation. 

Such  a  financing  scheme  has  given  rise  to  heated  criticism  which  ultimately  led  the 
government to announce the phasing out of the current scheme and a new subsidization 
scheme that will enter into force 2014. The new scheme will impose stricter requirements 
as  to  the  costs  that  can  be  taken  into  account  for  the  purpose  of  calculation  of  the  flat 
subsidy  and  will  only  have  regard  to  the  number  of  sold  copies  for  the  purpose  of 
calculation  of  the  variable  subsidy  (thus  excluding  copies  distributed  through 
newsboys).120 

- Political advertising and/or broadcasting time 

The  Constitutional  Court  has  expressly  recognised  the  right  to  fair  representation  in 
election  periods.121  According  to  academic  commentators,  that  right  stems  from  the 
Constitutional  principles  of  freedom  of  expression  (Article  21),  freedom  of  association 
(Article 49), equal access to public offices (Article 51), and popular sovereignty (Article 1, 
paragraph 2).122 

119  Article 4 of Law 20 November 2006, no. 281, OJIR 21 November 2006, no. 271. 
120  See 

http://www.corriere.it/economia/12_maggio_11/riforma-editoria_d64bb80c-9b63-11e1-81bc­

34fceaba092f.shtml. 

121  See e.g. Constitutional Court Judgment nos. 48/1964, 161/1995, 155/2002. 
122  See  R.  Zaccaria  and  A.  Valastro,  Diritto  dell’informazione  e  della  comunicazione  (Padua:  Cedam,  2010) 

362. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Law no. 28 of 2000, as amended by Law no. 313 of 2003, seeks to ensure a level playing 
field  for  all  political  actors  both  during  the  electoral  period  and  outside  that  period.123 
That 
law  applies  to  three  categories  of  programmes:  political  communication 
programmes, information programmes, and self-managed slots (messaggi autogestiti). 

Political communication programmes include all broadcasts entailing a political opinion or 
assessment,  but  not  the  diffusion  of  news  in  information  programmes.  Information 
programmes,  which  account  for  the  most  significant  part  of  the  political  debate  on 
television,  also  include  the  presentation  of  news  in  a  narrative  or  argumentative 
context.124 Self-managed slots are airtime portions of a predetermined duration allotted 
to a plurality of political actors where the latter can inform the public about their platform 
or programme. 

Those three categories of programmes are subject to a number of general requirements, 
plus some specific rules during electoral periods. If broadcasters fall short of those rules, 
AGCom  can  impose  sanctions  either  by  its  own  motion  or  following  a  request  by  the 
political  actor  concerned.  Those  sanctions  may  seek  to  restore  the  balance  by  granting 
the harmed party additional time in the course of political communication programmes or 
additional  self-managed  slots.  In  case  of  serious  violations,  AGCom  may  enjoin  the 
broadcaster concerned to give notice of the infringement decision and, if necessary, to air 
a reply by the harmed party, which must be given the same visibility (in terms of time-
slot,  presentation  etc.)  as  the  offending  broadcast.  Broadcasters  may  challenge  the 
above decisions before administrative courts.125 

Political  communication  in  electoral  periods  can  only  take  place  in  the  form  of  political 
forums,  debates,  round  tables,  adversarial  presentation  of  candidates  and  political 
programs,  interviews  and  any  other  form  that  allows  the  comparison  between  the 
political  positions  and  candidates.126  Self-managed  slots  during  electoral  periods  are 
subject  to  stringent  rules  as  to  their  remuneration  and  allotment  to  political  actors.127 
Turning  to  information  programmes,  for  each  electoral  campaign  the  Parliamentary 
Supervision Committee and AGCom adopt ad hoc regulations laying down detailed rules 
for  those  programmes  during  the  electoral  period.128  AGCom  also  establishes  a  ‘par 
condicio’ task force to monitor compliance with those rules. 

On the days of the elections it is forbidden for all television broadcasts to provide, either 
directly or indirectly, voting suggestions or to express voting preferences.129 Programme 
presenters and anchorpersons are required to behave in a fair and impartial so as not to 
exert a disguised influence on the audience’s freedom of vote.130 Moreover, in the fifteen 
days  preceding  the  elections  it  is  forbidden  to  publish  or  otherwise  disseminate  the 

123  Article 1 of Law 28 of 2000.
 
124  Constitutional Court, Judgment no. 155/2002.
 
125  Article 10 of Law no. 28 of 2000.
 
126  Article 4, para 1, of Law no. 28 of 2000.
 
127  Article 4 of Law no. 28 of 2000.
 
128  See,  e.g,  AGCom  Decision  no.  153/11/CSP,  Disposizioni  di  attuazione  della  disciplina  in  materia  di
 
comunicazione  politica  e  di  parità  di  accesso  ai  mezzi  di  informazione  relative  alla  campagna  per  i 
referendum  consultivi  indetti  dal  Comune  di  Milano  per  i  giorni  12  e  13  giugno  2011;  no.  151/11/CSP, 
Ordine conformativo alla Rai Radiotelevisione Italiana Spa per l’effettivo rispetto della deliberazione della 
Commissione  parlamentare  per  l’indirizzo  generale  e  la  vigilanza  sui  servizi  radiotelevisivi  recante 
‘Disposizioni in materia di comunicazione politica, messaggi autogestiti e informazione della concessionaria 
pubblica  nonché  tribune  relative  alla  campagna  per  i  referendum  popolari  indetti  per  i  giorni  12  e  13 
giugno 2011; no. 152/11/CSP, Invito alle emittenti televisive nazionali private ad assicurare l’informazione 
sui referendum popolari indetti per i giorni del 12 e 13 giugno 2011. 

129  Article 5, para 2, of Law no. 28 of 2000. 
130  Article 5, para 3, of Law no. 28 of 2000. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

results  of  opinion  polls  on  the  outcome  of  elections  and  the  political  orientations  of 
voters, even if such surveys were prepared at an earlier date.131 

- Codes of conduct and their organisational framing 

The bulwark of journalists’ independence vis-à-vis the bargaining power of publishers  is 
the  Press  Council  (Ordine  dei  Giornalisti).132  The  Journalist  Profession  Law  grants  the 
Press  Council  a  broad  discretion  in  the  establishment  and  enforcement  of  rules  of 
professional ethics. 

Article 2 thereof sets out a broad statement that journalists are entitled to report and to 
comment  within  the  limits  set  by  the  law  and  by  the  need  to  protect  personal  identity. 
Journalists,  moreover,  are  under  an  unconditional  obligation  to  uphold  the  truth  and  to 
act in a dutiful and fair manner. 

The Constitutional Court has expressly recognised the Council’s role in safeguarding the 
independence  of  its  affiliates.133  Some  scholarly  commentators,  however,  have  voiced 
doubts  about  the  ability  of  a  body  constraining  journalists’  freedom  to  effectively 
safeguard their independence.134 

The Press Council was established in 1925,135 but it was only in 1963 that, at the request 
of journalists, the Parliament passed the Journalist Profession Law which remodelled the 
Press Council’s and restored its exclusive competence to keep the Journalists’ Roll. 

The Press Council consists of twenty Regional Boards (one for each Italian Region) and a 
National  Board.  Regional  Boards  are  composed  of  six  Professional  Journalists  and  three 
publicists  elected  by  the  professional  journalists  and  publicits  registered  in  the 
Journalists’ Roll kept by that Board.136 Regional Board Members remain in office for three 
years and can be re-elected.137 

In  2009  the  Press  Council,  the  National  Federation  of  Italian  Journalists,  and  the 
foremost  national  and  local  broadcasters  signed  a  Self-Regulation  Code  concerning  the 
representation of court proceedings in television broadcasting.138 The enforcement of that 
Code has been entrusted to an ad hoc Committee and to the Press Council. 

The National Board of the Press Council is established within the Ministry of Justice and 
consists  of  a  variable  number  of  professional  journalists  and  publicists  from  each 
Regional  Board  according  to  the  size  of  the  membership  of  that  Board.  Members  of  the 
National  Board  hold  office  for  three  years  and  can  be  re-elected.139  No  one  can  be  a  
Member of the National Board and of a Regional Board at the same time.140 

Article  48  of  the  Journalist  Profession  Law  empowers  Regional  Boards  to  institute 
disciplinary  proceedings  against  journalists  who  engage  in  conduct  unfit  for  the  dignity 

131  Article 8, para 1, of Law no. 28 of 2000. 
132 

This  clearly  emerges  from  the  travaux  préparatoires  of  the  Journalist  Profession  Law.  See  M.  Rossano, 
Configurazione  sistematica  dell’esercizio  della  professione  giornalistica,  Giurisprudenza  Costituzionale, 
1967, IV, 165. 

133  Constitutional Court, Judgment no. 11/1968. 
134  See S. Fois, Giornalisti (ordine dei), in Enciclopedia del diritto (Giuffrè, Milan, 1969) vol. XVIII, 713. 
135 
Law 31 December 1925, no. 2307, Disposizioni sulla stampa periodica, OJIR 5 January 1926, no. 3. 

136  Article 3 of the Journalist Profession Law. 
137  Article 7 of the Journalist Profession Law. 
138  Available at: http://www.odg.it/files/codice%20di%20autoregolamentazione.pdf 
139  Article 17, para 1, of the Journalist Profession Law. 
140  Article 18, para 1, of the Journalist Profession Law. 

411 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
 
  
 
 
 
  
 
 
  
 
  
 
  
 
  
  
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

and  repute  of  the  profession  or  harmful  to  their  own  reputation  or  that  of  the  Press 
Council. 

In view of the vague wording of the said provisions of the Journalist Profession Law, the 
Press  Council  has  endeavoured  to  flesh  out  those  provisions  by  adopting  a  number  of 
self-regulatory and co-regulatory instruments.141 

The  Treviso  Charter142  first  adopted  in  1991  by  the  Press  Council  and  the  National 
Federation of Italian Press and updated in 1995 and 2006 lays down guidelines to ensure 
that  journalists  act  in  a  manner  consistent  with  the  proper  development  of  minors.  The 
Treviso  Charter  is  expressly  referred  to  in  Article  7  of  the  Ethics  Code  concerning  data 
processing in the journalist’s profession. 

The  Charter  of  Journalists’  Duties143  was  proclaimed  by  the  Press  Council  and  the 
National  Federation  of  Italian  Press  in  1993  and  is  designed  to  lay  down  a  number  of 
rules of professional ethics whose violation may lead to disciplinary action. Even though 
the  National  Committee  envisaged  by  the  Charter  never  became  fully  operational,  the 
rules set out in the Charter constitutes a key self-regulatory instrument in the context of 
disciplinary actions. 

Regional Boards of the Press Council are responsible for keeping the Journalists’ Roll and 
for the enforcement of the Press Law and of rules of professional ethics and for instituting 
disciplinary actions against offending members.144 Regional Board, moreover, may bring 
legal proceedings against people  exercising the journalists’ profession or using that title 
without being registered in the Roll.145 

The  National  Board,  instead,  is  responsible  for  coordinating  Regional  Boards,  providing 
non-binding  opinions  on  legislative  proposals  concerning  the  journalist’s  profession,  and 
hearing  appeals  against  decisions  by  Regional  Boards  concerning  registration  and 
disciplinary matters.146 

The  Code  of  Practice  Concerning  the  Processing  of  Personal  Data  in  the  Exercise  of  
Journalistic  Activities  is  a  co-regulation  instrument.147  It  was  drafted  by  the  National 
Board of the Press Council and attached to the PDPC as Annex A. The Court of Cassation 
confirmed  that  the  Ethics  Code  is  an  ordinary  law.148  As  per  Article  12,  para.  3,  of  the 
PDPC,  compliance  with  the  rules  of  such  co-regulation  instruments  is  a  prerequisite  for 
the lawful processing of data. The infringement of the rules of the Ethics Code, therefore, 
may result in the imposition of the sanctions set out in the PDPC. 

- The role and functioning of regulatory authorities in these respects 

Except  for  the  powers  attributed  to  AGCom  and  to  the  relevant  Ministry,  the  bulk  of 
regulatory powers in the field of press are exercised by the Press Council.  

141  A  brief  description  of  the  major  self-regulatory  and  co-regulatory  instruments  is  available  at: 

http://www.odg.it/content/le-carte. 

142  Available at: http://www.odg.it/content/minori. 
143  Available at: http://www.odg.it/content/carta-dei-doveri-del-giornalista. 
144  Article 11, para 1, letters a) and d) of the Journalist Profession Law. 
145  Article 11, para 1, letter b) of the Journalist Profession Law. 
146  Article 20, para 1. Letters a), b), and d) of the Journalist Profession Law. 
147  Data Protection Authority, decision of 29 July 1998, OJIR 3 August 1998, no. 179, available in English at: 

http://www.garanteprivacy.it/garante/doc.jsp?ID=1565746. 

148  Court of Cassation, Judgment of 5 March 2008, no. 16145. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  Distribution Aspects 

- Access to frequencies 

The exercise of the activity of network operator on terrestrial frequencies, as well as on 
cable and satellite networks, is subject to the general authorization scheme as per Article 
25  of  the  Electronic  Communications  Code.149  That  authorization  is  valid  for  a  period 
ranging between twelve and twenty years and renewable for a period of equal duration.150 
The general authorization scheme is based on a system of ex post control. Undertakings 
wishing  to  carry  out  the  activity  of  network  operators  must  notify  the  Ministry  of 
Economic  Development  a  notice  stating  their  intention  to  do  so.151  Those  undertakings 
can start carrying out their activities immediately. 

- Access to distribution networks and control of actual conditions 

As  mentioned  under  licensing  regulation,  providers  of  interactive  and  conditional  access 
services  are  also  subject  to  the  general  authorization  scheme  laid  down  in  Article  25  of 
the  Electronic  Communications  Code.152  Those  providers  must  comply  with  the  technical 
standards set by AGCom and in particular those designed to prevent minors from viewing 
inappropriate contents153 (e.g. filtering systems and personal identification numbers).154 

- Must-carry/must-offer rules for electronic media 

Decree  Law  n.  34  of  2011,  converted  into  Law  no.  75  of  2001,  required  holders  of  the 
right to use broadcasting frequencies to reserve part of their transmission capacity, and 
in  any  case  no  less  than  two  programmes,  to  local  broadcasters  who  were  not  granted 
those rights of use.155 Article 27 of AGCom Digital Broadcasting Regulation implemented 
that  provision,  specifying  that  the  minimum  amount  of  transmission  capacity  to  be 
provided  is  6  megabits  and  that  the  leasing  price  must  be  in  the  range  of  10-16 
eurocents per megabit.    

- Role of platform operators 

AGCom  Decision  no.  15/08/CONS  requires  RAI  and  RTI  to  grant  national  analogue 
broadcasters  access  to  their  broadcasting  transmission  infrastructures  on  a  transparent 
and  non-discriminatory  basis.  RAI  and  RTI  must  provide  a  disaggregated  offer  of  the 
economic  and  technical  conditions  for  access  to  their  infrastructures.  RAI  and  RTI  are 
also  required  to  adopt  a  system  of  separate  accounting  for  their  analogue  television 
broadcasting transmission services. 

- The role and functioning of regulatory authorities in these respects 

AGCom is generally responsible for the monitoring and enforcement of media legislation 
as  far  as  distributions  aspects  are  concerned.  AGCom’s  decisions  imposing  sanctions 

149  Article 15, paras. 1 and 7 CLARMS.
 
150  Article 15, para 5 CLARMS. 

151  Article 25, para 4, of the Electronic Communications Code. 

152  Article 31 CLARMS. 

153  Article 15, para 2, letter a) of AGCom Digital Broadcasting Regulation. 

154  Article 34, para 5, CLARMS. 

155  See  Article  4  of  Decree  Law  31  March  2011,  no.  34,  OJIR  31  March  2011,  no.  74,  converted  with
 
amendments  into  Law  26  May  2011,  no.  75,  OJIR  27  May  2011,  no.  122.  That  provision  was  further 
amended by Article 25, para 2, of Decree Law 6 July 2011 No. 98, OJIR 6 July 2011, no. 155, which at the 
time of writing has not yet been converted into law. 

413 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
  
  
  
  
  
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

must  be  reasoned  and  can  be  challenged  before  the  Regional  Administrative  Court  for 
Latium. 

  Access to Information 

- Transparency of media ownership situations 

Media ownership in Italy is a vexed matter, because, as the European Parliament put it, 
Italy is characterized by ‘a unique combination of economic, political an media power in 
the  hands  of  one  man  –  the  former  President  of  the  Italian  Council  of  Ministers’,  Mr. 
Silvio  Berlusconi.156  Mr.  Berlusconi  has  been  the  largest  shareholder  of  the  Mediaset 
network  group  since  its  establishment  in  1978  as  well  as  the  Prime  Minister  of  Italy  in 
office from 1994 to 1995, from 2001 to 2006 and from 2008 to 2011.  

According to the European Parliament157 and the Parliamentary Assembly of the Council 
of  Europe,158  this  situation  of  conflict  of  interest  may  impinge  upon  the  principle  of 
freedom  of  expression  enshrined  in  Article  10  ECHR  and  in  Article  11  of  the  Charter  of 
Fundamental  Rights  of  the  European  Union.  Moreover,  according  to  scholarly 
commentators, this situation may upset the balance of electoral competition, contrary to 
the  Constitutional  principles  of  internal  and  external  pluralism  (Article  21),  equality 
(Article  3),  impartiality  of  public  administration  (Article  97),  and  equal  access  to  public 
offices (Article 51).159 

The debate on the conflict of interest sparked off in 1994, following Mr. Berlusconi’s first 
election  and  appointment  as  Prime  Minister.  Some  Members  of  the  Parliament  claimed 
that Mr. Berlusconi’s election to the Chamber of Deputies was at variance with Article 10 
of  the  Decree  of  the  President  of  the  Republic  no.  361  of  1957,  according  to  which 
holders of public concessions of a significant value cannot be elected to the Chamber of 
Deputies.160  The  Chamber’s  Committee  of  Elections,  however,  took  the  view  that  that 
provision  only  concerned  persons holding  broadcasting  concessions ‘in  their  own  name’, 
not indirectly through shareholdings (as in the case of Mr. Berlusconi).161 

It was not before 2004 that the Parliament passed a bill aimed at regulating the conflict 
of interest between public officials and professional and entrepreneurial activities, the so-
called  Frattini  Law.162  The  Frattini  Law  provides  that  holding  a  government  office  (e.g. 
the Prime Minister, ministers, etc.) is incompatible with the occupation of specific kind of 
posts,  such  as  those  involving  the  management  of  business  undertakings.163  Individual 

156	 

European  Parliament  resolution  on  the  risks  of  violation,  in  the  EU  and  especially  in  Italy,  of  freedom  of 
expression and information (Article 11(2) of the Charter of Fundamental Rights), 2003/2237(INI), OJEU C 
104E , 30 April 2004, p. 1026–1040, para 60. 

157	  See.  e.g.,  European  Parliament  resolution  on  the  risks  of  violation,  in  the  EU  and  especially  in  Italy,  of  
freedom  of  expression  and  information  (Article  11(2)  of  the  Charter  of  Fundamental  Rights), 
2003/2237(INI),  OJEU  C  104E  ,  30  April  2004,  p.  1026–1040,  para  60;  resolution  on  the  situation  as 
regards fundamental rights in the European Union (2002), 2002/2013(INI), OJEC C 076 E , 25/03/2004 P. 
0412 – 0429, para 37 (deploring ‘the fact that in Italy in particular a situation is continuing in which media 
power is concentrated in the hands of the Prime Minister, without any rules on conflict of interest having 
been adopted’). 

158	  See  Parliamentary  Assembly  of  the  Council  of  Europe,  Resolution  1387  (2004),  Monopolisation  of  the 
electronic media and possible abuse of power in Italy, para 1 (expressing concern about ‘concerned by the 
concentration of political, commercial and media power  in the hands of one person, Prime Minister  Silvio 
Berlusconi’). 

159  See R. Zaccaria and A. Valastro, Diritto dell’informazione e della comunicazione (Padua: Cedam, 2010) 72. 
160  Decree of the President of the Republic 30 March 1957, no. 361, OJIR 3 giugno 1957, no. 139. 
161  Chamber of Deputies, Comittee for Elections, decisions of 20 July 1994 and of 17 October 1996. 
162 

Law 20 July 2004, no. 215, ‘Norme in materia di risoluzione dei conflitti di interessi’, OJIR 18 August 2004, 
no. 193. The  Frattini Law was named  after  its sponsor Minister  Franco  Frattini, at that time  in  charge of 
the Public Functions Department of the Berlusconi II Cabinet.  

163  Article 2, paragraph 1, of the Frattini Law. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

entrepreneurs must entrust their undertakings to one or more trustees (including family 
members).164 

The  Frattini  Law  requires  persons  holding  a  government  office  to  devote  themselves 
exclusively to the public interest and to abstain from taking measures and participating in 
joint  decisions  in  situations  where  there  is  a  conflict  of  interest.165  Conflicts  of  interests 
are defined as an act of commission or omission by persons holding a government office: 
i) when they are also holding an incompatible post as defined above; or ii) when that act 
has a specific, preferential effect on the assets of the office-holder or of his or her spouse 
or relatives up to the second degree, or of companies or other undertakings controlled by 
them, to the detriment of the public interest.166 

The Council of Europe Commission for Democracy through Law167 as well as a number of 
academic  commentators  and  institutional  actors  have  expressed  concerns  as  to  the 
ability  of  the  Frattini  Law  to  effectively  address  the  situation  of  conflict  of  interest 
currently characterizing the Italian media sector.168 

- Accountability of public service media 

The CLARMS lays down both an internal and external supervision system to monitor the 
PSM operator’s compliance with its remit. 

As to internal supervision, pursuant to Article 49, paragraph 3, CLARMS, RAI’s Board of 
Directors,  apart  from  being  the  body  of  the  company  responsible  for  all  its  strategic 
decisions, ‘is also responsible for ensuring and guaranteeing correct fulfilment of the aims 
and  obligations  of  the  general  public  broadcasting  service’.  The  Board  of  Directors 
recently  adopted  an  Ethics  Code,  which  expressly  mentions  the  principles  of  pluralism 
and impartiality among RAI’s ‘General Ethical Principles’. Pursuant to Article 1, paragraph 
1,  of  the  Ethics  Code,  the  task  of  monitoring  compliance  with  the  provisions  thereof  is 
entrusted  to  RAI’s  Board  of  Directors  and  RAI’s  Director-General,  who  reports  to  the 
former. 

The external supervision tasks are, instead, assigned to two different institutions: AGCom 
and the Parliamentary Supervision Committee (PSC). 

- Freedom of information laws 

Access  to  unpublished  information  is  of  paramount  importance  in  the  relationship 
between  individuals  and  public  authorities.  Scholarly  commentators  have  argued  that 
Article  21  of  the  Constitution  grants  individuals  a  right  of  access  to  documents  held  by 
public administrations, within the limits set by the law.169 

164  Article 2, paragraph 2, of the Frattini Law.
 
165  Article 1 of the Frattini Law.
 
166  Article 3 of the Frattini Law.
 
167  European  Commission  for  Democracy  Through  Law  (Venice  Commission),  Opinion  no.  309/2004  on  the
 
compatibility of the Laws ‘Gasparri’ and ‘Frattini’ of Italy with the Council of Europe standards in the field 
of freedom of expression and pluralism of the media, available at:  
http://www.venice.coe.int/docs/2005/CDL-AD%282005%29017-e.asp#_ftn83. 

168  See,  e.g.,  B.  Valensise,  Il  conflitto  di  interessi  nella  legge  n.  215  del  2004  tra  luci  (poche)  ed  ombre 
(molte),  Studium  iuris,  2005,  834  et  seq.  and  1034  et  seq..;  F.  Scintola,  La  disciplina  del  conflitto  di 
interessi dei  membri del Governo, Nuova rassegna di legislazione, dottrina e giurisprudenza, 2005, 2131 
et seq.; R. Zaccaria and A. Valastro, Diritto dell’informazione e della comunicazione (Padua: Cedam, 2010) 
72-77. 

169  A. Valastro, ‘Articolo 21’, in Commentario alla Costituzione, (Milan: Utet, 2006), 457. 

415 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
  
                                                 
  
 
  
 
  
 
  
 
 
 
 
  
 
 
 
 
 
 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The matter of transparency of administrative action has been firstly and comprehensively 
regulated  by  Law  no.  241/1990.  As  per  Article  1(1)  thereof,  “publicity”  and 
“transparency”  are  two  of  the  principles  that  shall  govern  administrative  action.  Those 
principles  are  operationalized  by  the  so-called  “right  of  access”  (diritto  di  accesso),  set 
out  in  Section  V  of  Law  241/1990,  which  implies  an  enforceable  right  for  citizens  to 
consult  and  obtain  a  copy  of  all  administrative  documents  (subject  to  a  number  of 
restrictions and exceptions). Article 27 of Law 241/1990 set up the Committee on Access 
to  Administrative  Acts.  That  Committee  is  established  within  the  Presidency  of  the 
Council of Ministers. 

- Accessibility of products/services and distribution networks 

The right to freely install aerial and antennas for the reception of broadcasting was first 
recognised  by  Law  no.  554/1940.  Courts  have  clarified  that  such  right  is  personal  in 
nature  and  is  not  contingent  upon  the  status  of  landlord.  Tenants,  therefore,  enjoy  the 
same right to install antennas and satellite dishes as their landlords. Insofar as antennas 
and satellite dishes are necessary to ensure access to information as enshrined in Article 
21 of the Constitution, courts have taken the view that the installation of that equipment 
is, generally speaking, not subject to restrictions or authorizations of any sort, except for 
those flowing from the limits to the use of shared parts of a building (article 1102 of the 
Civil Code) and those set out in sector-specific legislation. As far as antennas shared by 
several users are concerned, moreover, regard must be had to the technical regulations 
issued by the Ministry of Communications on 11 November 2005.   

The  most  relevant  example  of  public  subsidy  in  the  field  of  broadcasting  is  the  one 
granted  by  the  Italian  government  in  2004  to  facilitate  the  completion  of  the  digital 
switchover  process.  In  particular,  Article  4(1)  of  Law  n. 350/2003  granted  a  subsidy  of 
EUR  150  to  every  user  who  purchased  or  rented  equipment  for  the  reception  of  DTT 
television signals and the associated interactive services. Following a complaint filed with 
the European Commission by the broadcaster Centro Europa 7, the Commission adopted 
Decision  2007/374/EC.  That  decision  established  that  the  Italian  measure  constituted  a 
State  aid  within  the  meaning  of  Article  107(1)  TFEU  and  that  it  could  not  be  justified, 
inter  alia  because  it  was  not  technologically  neutral  in  that  it  did  not  apply  to  digital 
satellite  decoders,  thus  placing  satellite  broadcasters  at  a  competitive  disadvantage. 
Consequently, the Commission ordered the recovery of the State aid paid pursuant to the 
measure  at  issue.  Mediaset  SpA,  a  DTT  broadcaster  brought  an  action  against  the 
contested decision, which however was dismissed by the General Court of the European 
Union  on  15  June  2010  (Case  T-177/07).  The  appeal  against  that  judgment  was  also 
dismissed, this time by the Court of Justice, on 28 July 2011 (Case C-403/10 P).  

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Law no. 112/2011 established a National Ombudsman for the protection of children and 
adolescents.  Although  it  is  still  to  early  to  carry  out  an  assessment  of  the  work  of  that 
institution,  it  must  be  noted  that  the  UN  Committee  on  the  Rights  of  the  Child,  in  its 
Fifty-eighth  session  (19  September–7  October  2011)  expressly  endorsed 
the 
establishment  of  the  Children’s  Ombudsman  and  called  on  the  Italian  government  to 
endow that institution with the necessary funding and personnel to effectively carry out 
its tasks. 

416 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Participation in media operators/(self-)regulatory bodies 

As to the participation of users in media supervisory bodies, regard must be had to the 
National  Council  of  Users.  The  ‘National  Council  of  Users’  (Consiglio  nazionale  degli 
utenti,  hereafter:  NCU)  was  established  by  the  Maccanico  Law  as  an  auxiliary  body  of 
AGCom’s,  the  Italian  independent  media  regulation  authority.170  The  NCU  replaced  the 
Consultative Council of Users established by the Mammì Law as an auxiliary body of the 
Broadcasting  and  Publishing  Supervisory  Board  (Garante  per  la  radiodiffusione  e 
l’editoria).171 

The  NCU  may  issue  various  types  of  acts,  including  proposals  and  recommendations. 
Those  acts may  be  addressed  both  to  communication  regulation  and  supervision  bodies 
(e.g. the Parliament, AGCom, the Ministry) and to communication operators.172 The NCU 
is  composed  of  experts,  designated  by  associations  representing  various  categories  of 
users,  who  distinguished  themselves  for  their  role  in  the  defence  of  human  dignity  and 
the protection of minors.173 

In spite of NCU’s activism, it is fair to say that, by and large, users’ participation in the 
Italian  media  regulation  systems  remains  marginal,  insofar  as  powers  conferred  upon 
users’ representative bodies, such as the NCU, are essentially of a consultative nature. 

2.2.14.2.  Main Players in the Media Landscape 

2.2.14.2.1. 

Radio 

As  far  as  radio  is  concerned,  it  must  be  noted  that  Audiradio  no  longer  publishes  the 
audience  data  for  nation-wide  radio  broadcasters.  Therefore,  regard  will  be  had  only  to 
the  revenue  market  shares  of  the  company  groups  controlling  the  major  radio 
broadcasters. 

Recent  surveys  have  shown  that  radio  and  television  are,  to  a  certain  degree, 
complementary products, in that users tend to listen to radio in places and at times when 
they cannot watch television (e.g. at the office or on the go). 

2.2.14.2.2. 

Television 

The  audiovisual  media  services  (AVMS)  sector  in  Italy  consists  of  two  major  segments: 
free-to-air TV, which generates about two thirds of the total revenues of the sector, and 
pay-TV, which accounts for the remainder. 

Table 79 IT: AVMS – Total revenues for free-to-air and pay-TV (million euros) 

Free-to-air TV 

Pay-tv 

Total 

2009 

5,419.90 

3,169.83 

8,589.73 

2010 

5,663.25 

3,313.21 

8,976.46 

% (2010) 

63.1 

36.9 

100 

Source: AGCom Annual report 2011 

170  See Article 1, para 28 of the Maccanico Law. 
171  See Article 28 of the Mammì Law. 
172  See Article 1, para 28 of the Maccanico Law. 
173 

Id. 

417 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
  
 
 
 
 
 
                                                 
  
 
 
  
  
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.14.2.3. 

Press and publishing 

The  press  market  in  Italy  can  still  be  regarded  as  traditional  in  that  printed  press  (i.e. 
daily  newspapers  and  periodicals)  accounts  for  about  88.7%  of  the  revenues  of  the 
sector, while electronic publishing only generates 11.2% of the income. 

The  comparison  of  revenues  in  2009  and  2010,  however  shows  a  non-negligible 
contraction of the revenues from printed press (-4.8% for daily newspapers and –7.7% 
for  periodicals)  and  a  significant  increase  of  the  revenues  from  electronic  publishing 
(+12.7%). This is largely attributable to the substantial investments made by traditional 
publishers into the electronic press segment and in particular in the provision of editorial 
contents to portable devices such as tablets and smartphones. 

Table 80 IT: Press – Sources of income (million euros) 

Daily newspapers 

Periodicals 

Electronic pub. 

Total 

2009 

3,121.13 

3,422.46 

686.91 

7,230.50 

2010 

2,971.13 

3,158.72 

774.16 

6,904.01 

% (2010) 

43 

45.7 

11.2 

100 

Source: AGCom Annual report 2011 

2.2.14.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Online  media  is  an  extremely  dynamic  market  in  Italy.  Recently,  several  pay-TV 
operators  have  started  bundling  online  access  to  part  of  their  audio-visual  catalogue 
along with traditional subscription fees. The sale of online advertising space is a relatively 
concentrated market where traditional media operators have the lion’s share.  

Table 81 IT: Online Advertising Market in Italy in 2010 

Revenues 

Market share 

Traditional media operators 

Electronic Publishers 

Audio-visual Media Services 
Operators 

Yearly publications operators 

Internet operators 

Source: AGCom Annual report 2011 

390,29 

144,39 

14,38 

231,52 

605,31 

39,2 

14,5 

1,4 

23,3 

60,8 

2.2.14.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

IPTV  has  still  a  very  marginal  role,  while  DTT  has  recently  surpassed  analogue  TV  in 
terms of audience. Satellite TV accounts for almost 15% of the total audience. 

418 


 
  
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 82 IT: AVMS – Audience share for each platform (%) 

March 2010 

March 2011 

Analogue TV 

DTT 

Satellite TV  

IPTV 

Total 

48 

35,7 

15,1 

0,3 

100 

21,3 

62,5 

15,7 

0,3 

100 

Source: AGCom Annual report 2011 

Audio-visual  Media  Services  provided  by  Internet  Access  Providers  are  not  taken  into 
account  specifically  in  AGCom’s  last  annual  report.  As  shown  in  the  next  section, 
however,  the  largest  Internet  Access  Provider  in  Italy  (i.e.  Telecom  Italia)  currently 
accounts  only  for  1,8%  of  the  overall  revenues  for  the  audio-visual  media  services 
sector. 

2.2.14.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The  press  market  has  a  low  concentration  factor  (with  an  HHI  of  less  than  500).  More  
than half of the overall revenues are generated by undertakings having a market share 
lower than 1%. The three largest competitors are RCS Mediagroup (with a market share 
of  13,3%),  Gruppo  L’Espresso  (with  a  market  share  of  10,9%)  and  Arnoldo  Mondadori 
(with a market share of 6,9%). 

Table 83 IT: Press – Market shares (revenues) 

RCS Mediagroup 

Gruppo L’Espresso 

Arnoldo Mondadori 

Il Sole 24 Ore 

Caltagirone 

Monrif 

Condè Nast 

De Agostini 

Other companies 

Total 

2009 

13,5 

11 

6,8 

5,1 

3,5 

2,8 

2,3 

1,7 

53,4 

100 

2010 

13,3 

10,9 

6,9 

5 

3,5 

2,9 

2,5 

1,2 

54,8 

100 

Source: AGCom Annual report 2011 

The  AVMS  sector  in  Italy  is  a  highly  concentrated  oligopoly  (with  an  HHI  of  2,715.26) 
characterized by the presence of three large corporate groups having nearly symmetrical 
market  shares:  Mediaset  (the  current  market  leader,  with  a  market  share  of  30.9%), 
which draws most of its revenues from the sale of advertising; Sky Italia (with a market 
share of 29.3%), whose main source of income is the provision of pay-TV contents, and 
RAI (with a market share of 28.4%), the Italian PSM operator, mainly financed through 
the Canone. The remaining part of the market is shared between Telecom Italia (with a 
market  share  of  1.8%)  and  other  marginal  operators  including  all  local  operators  (with 
market shares totalling 9.6%). 

419 


 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 84 IT: AVMS – Revenues and market shares for each operator (2010) 

Source 

Revenues (2010) 

% (2010) 

Advertising 

2413,50 

Mediaset 

Pay-tv contents 

357,10 

30,9

Total 

2770,60 

Advertising 

190,59 

Sky Italia 

Pay-tv contents 

2440,17 

29,3

RAI 

Total 

2630,76 

Canone RAI 

2553,84 

Advertising 

946,58 

Other 

Total 

48,82 

2553,84 

Advertising 

154,15 

Telecom Italia 

Pay-tv contents 

6,02 

Other operators 

Total 

Advertising 

Pay-tv contents 

Other 

Total 

160,17 

619,26 

123,83 

118,00 

861,09 

Source: AGCom Annual report 2011 

28,4 

1,8

9,6

The  radio  sector  is  significantly  fragmented  (with  an  HHI  lower  than  1,000)  and  is 
characterised by one market leader (RAI) with a market share above 20% and four other 
firms having a market share around 10% each.  

Table 85 IT: Radio – Market Shares (revenues) in 2009 and in 2010 

Editoriale 

RAI 

Finelco 

Gruppo 
L’Espresso 

RTL 

RDS 

Mondadori 

Il Sole 24 Ore 

Altri operatori 

HHI index 
Source: AGCom Annual report 2011 

2009 

22,9 

10,3 

10,1 

7,7 

7,1 

3,6 

2,1 

36,3 

895 

420 


2010 

21,9 

10,3 

10,1 

8,2 

7,1 

3,9 

2,2 

33,5 

924 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.14.3.  Conclusion and Recommendations 

Freedom of information in Italy is a matter of on-going concern both at the domestic and 
at  the  international  level.  The  ONG  “Freedom  House”,  in  its  recent  2012  report  on 
Freedom of the Press in the world, classified Italy as a “partly-free” country and ranked it 
70th  along  with  Guyana  and  Hong  Kong  in  the  freedom  of  press  world  ranking  and 
penultimate (followed only by Turkey) in the Western Europe ranking.174 

This report has highlighted four of what are generally regarded as the main criticalities in 
the existing legal framework: i) the lack of effective remedies for conflict of interest and 
“two-hat”  situations  involving  overlaps  between  political  and  media  power;  ii)  the 
inability  of  the  current  framework  to  prevent  excessive  media  concentration  and  its 
adverse  effects  on  media  pluralism;  iii)  the  “vague  nomination  and  appointment 
procedure”  of  the  members  of  the  Italian  Media  Regulator  (AGCom);  iv)  the  risks  of 
governmental  and  political  influence  over  Public  Service  Media  (PSM)  inherent  in  the 
current appointment procedure of the Board members of Italy’s PSM operator (RAI) and 
its financing mechanism. 

First,  the  situation  of  conflict  of  interest  that  has  characterized  Italy  for  nearly  two 
decades,  and  namely  the  overlap  between  media  influence  and  political  (and,  at  times, 
even governmental) power, is an ongoing concern. Other types of media, notably press 
and  the  internet,  as  well  as  the  countries’  constitutional  safeguards  for  freedom  of 
expression  so  far  have  limited,  at  least  to  some  degree,  the  impact  of  such  conflict  of 
interest  upon  the  freedom  of  expression.175Nonetheless,  as  the  Council  of  Europe 
Parliamentary Assembly put it, the ongoing failure to resolve “Italian anomaly” not only 
poses a threat to freedom of expression in Italy, but also sets a negative example at the 
international level, thus undermining the promotion of independent and unbiased media 
in new democracies.176 

The  enactment  of  a  comprehensive  legal  framework  to  address  the  conflict  of  interest 
arising  from  the  current  media  ownership  situation  should  thus  be  regarded  as  a  top 
priority. The optimal solution, possibly, was that envisaged in Article 10 of the Decree of 
the  President  of  the  Republic  no.  361  of  1957,  i.e.  to  prevent  overlaps  between  media 
and  political  power  by  precluding  individuals  involved  in  the  media  industry  from  being 
elected to the Italian Parliament in the first place, thus ensuring fairness throughout the 
electoral competition. While Article 10 was construed narrowly in the past, so as to rule 
out the election only of individuals holding broadcasting concessions „in their own name“, 
the  new  rules  should  be  carefully  drafted  in  order  to  cover  all  situations  granting 
individuals  direct  or  indirect  control  over  media  companies,  i.e.  rights,  contracts  or  any 
other  means  which,  either  separately  or  in  combination  and  having  regard  to  the 
considerations  of  fact  or  law  involved,  confer  the  possibility  of  exercising  decisive 
influence on companies active in the media sector.  

Second,  turning  to  the  concentration  of  market  power  in  the  media  sector,  both 
institutional  actors  and  academic  commentators  agree  that  the  current  „technical“  and 
„economic“  limits  laid  down  in  the  CLARMS  are  unable  to  prevent  dominant  positions, 
whose very existence poses a threat to media pluralism and freedom of information. The 

174  http://www.freedomhouse.org/sites/default/files/Booklet%20for%20Website.pdf. 
175 

For  instance,  the  “Alfano  Bill”,  setting  out  an  outright  ban  on  the  publication  of  wiretap  transcripts,  was 
eventually  withdrawn  following  a  heated  reaction,  sparked  in  journalistic  and  academic  circles  and 
conveyed to the public through the press and the internet. 

176  Council  of  Europe,  Parliamentary  Assembly  Resolution  1387  (2004)  on  monopolisation  of  the  electronic 
media  and  possible  abuse  of  power  in  Italy,  para  9  (the  Assembly  added  that  “Italy,  as  one  of  the 
strongest  contributors  to  the  functioning  of  the  Organisation,  has  a  particular  responsibility”  in  the 
promotion of freedom of expression in new democracies). 

421 


 
 
 
  
 
 
 
 
 
 
  
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Venice  Commission,  in  particular,  suggested  that  i)  the  current  statute-defined 
Integrated  Communications  System  (ICS)  should  be  replaced  by  the  previously  used 
‘relevant  market’  criterion,  as  is  the  case  in  the  other  European  countries;  ii)  the  20% 
revenue  limit  set  out  in  the  CLARMS  should  be  combined  with  an  audience  share 
indicator. It should be added that in the current context of technological convergence and 
multi-platform  competition,  the  audience  share  constitutes  possibly  the  most  reliable 
indicator of a media operator’s influence and should thus be chosen as a benchmark for 
alternative anti-concentration limits. 

Third, doubts have been cast over the ability of the “vague nomination and appointment 
procedure” of the members of the Italian Media Regulation Authority (AGCom) to ensure 
that AGCom members are: i) sufficiently competent and qualified; and ii) not influenced 
by or connected to political parties. 

Those  concerns  can  be  addressed  by  amending  the  appointment  procedure  so  as  to 
achieve  a  more  transparent  and  merits-based  selection  process.  The  qualification, 
expertise and competence standards for AGCom members should be specified in greater 
detail  by  amending  the  statute  establishing  AGCom  (Law  no.  249  of  1997).  Candidates 
should be required to disclose their CVs in advance, so as to promote public awareness. 
Individuals  who  have  been  associated  with  political  parties  in  the  recent  past  should  be 
non-eligible.  The  appointment  of  AGCom  members  should  be  subject  to  a  two-thirds 
majority  vote  in  Parliament,  so  as  to  ensure  greater  independence  from  political 
parties.177 

Fourth, both institutional actors and academic commentators have expressed concerns as 
to  the  exposure  of  the  Italian  PSM  Operator  (RAI)  to  governmental  and  political 
interferences. RAI’s financing mechanism and the appointment procedure of its Board of 
Directors have been regarded as particularly problematic, because of the pivotal role the 
government and the majority party (or coalition) play in both respects. 

The amount of RAI’s financing should be set: i) by an independent Committee, appointed 
by  the  Parliament  by  a  two-thirds  majority  vote,  ii)  on  the  basis  of  pre-determined 
criteria  and  iii)  taking  into  account  the  PSM  operator’s  past  compliance  record  with  its 
remit.  That  committee  should  also  supervise  the  appointment  of  the  members  of  RAI’s 
Board  of  Directors,  who  should  be  chosen  via  a  transparent  and  merits-based  public 
selection process. 

177	  See Council of Europe, Parliamentary Assembly, Recommendation 1855 (2009) on the regulation of audio­

visual  media  services,  para  13.2  (highlighting  the  need  to  ensure  “through  appropriate  regulation  and 
practice, the independence of their national regulators for the audio-visual media sector from undue party 
political, governmental or commercial influences”). 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

LATVIA
 

2.2.15.	 

Latvia 

2.2.15.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.15.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  freedom  of  expression,  the  freedom  to  obtain  and  to  impart  information  is 
safeguarded by Article 100 of Satversme, the Constitution of the Republic of Latvia.  

More  detailed  safeguards  to  protect  the  media  and  journalists  are  further  regulated  by 
specific laws. 

- Specific safeguards and rights for the media 

The  Constitutional  Court  (Satversmes  tiesa)  has  acknowledged  that  the  freedom  of 
expression enshrined in Article 100 includes also media freedom.1 

  Freedom to receive and to access information 

- Specific rights for the citizens 

Article 104 of Satversme stipulates an additional right to request information from state 
and municipal institutions and a correlative obligation of those institutions to answer on 
the substance of the issue.  

  Safeguards on regulatory authorities 

The  Constitution  of  the  Republic  of  Latvia  contains  no  provision  regarding  Regulatory 
Authorities. 

  Safeguards on “universal service” 

There  are  in  the  Constitution  of  the  Republic  of  Latvia  no  specific  universal  service 
obligations for electronic media. 

2.2.15.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Commercial radio and television broadcasters are subject to an ex-ante licensing scheme 
provided by the Electronic Media Law (EML). The current applicable Law was adopted in 
2010, replacing the previous 1995 Radio and Television Law (cf. Report on Latvia 2004, 
point 1.4.). The broadcasting licenses are issued by the National Electronic Media Council 
(NEPLP2)  –  an  independent  regulatory  authority  (cf.  Report  on  Latvia  2004,  point  1.4: 

1 

2 

Judgment of the Constitutional Court of Latvia as of 05.06.2003 in case No. 2003-02-0106. 
The abbreviation of the name in Latvian: Nacionālā elektronisko plašsaziņas līdzekļu padome. 

423 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
                                                 
  
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

according  to  the  1995  law  the  name  of  this  institution  was  the  National  Broadcasting 
Council).  The  licenses  are  issued  on  the  basis  of  an  application,  or,  if  a  radio  frequency 
spectrum  is  necessary,  on  the  basis  of  a  tender  result.3  The  Latvian  Supreme  Court 
Senate  has  ruled  that  decisions  on  granting  broadcasting  licenses  and  respectively  on 
tender results must be sufficiently reasoned.4 

For  retransmission  of  radio  or  television  programmes  a  retransmission  license  is 
necessary, issued by the NEPLP on the basis of a relevant application.5 

Providers  of  online  services  are  subject  to  a  universal  permit  regime  according  to  the 
Electronic Communications Law: they must send a registration notification as providers of 
electronic  communication  services  to  the  Public  Utilities  Commission  –  an  independent 
regulatory authority.6 

The  legal  regulation  of  the  public  service  media  is  provided  by  the  EML.  The  public 
service  media  are  state-owned  capital  companies.  Their  main  duty  is  to  create  and 
distribute  programmes  in  accordance  with  the  public  remit.  The  public  service  media 
must  operate  in  the  general  interest  and  they  must  ensure  provision  of  information, 
which enables free opinion-making in the public. Their programmes must be diverse and 
take  into  account  the  various  requirements  of  audience.  The  programmes  of  public 
service  media  must  be  accessible  in  all  the  territory  of  Latvia.  Specific  positive  content 
obligations  include  provisions  on  the  broadcasting  of  certain  events  important  for  the 
public, as defined by the EML7 and a secondary legal act8, as well as a duty to broadcast 
a  certain  proportion  of  European  audiovisual  works  and  works  made  by  independent 
producers9. 

Currently, there are two public service media  operators: a radio broadcasting company, 
and  a  television  broadcasting  company.  There  is  no  separate  legal  framework  for  their 
online operations. 

- Media pluralism/ownership; competition law aspects 

There  are  no  particular  media-specific  anti-concentration  rules  provided  in  the  current 
EML,  in  contrast  to  the  previous  1995  Radio  and  Television  Law  (cf.  Report  on  Latvia 
2004, point 1.4.1).  

However, the general merger-control provisions stipulated by the Competition Law apply. 
According  to  the  Competition  Law,  a  merger  is  subject  to  a  previous  clearance  by  the 
Competition Council (the national competition authority), if the combined turnover of the 
merger  participants  exceeds  LVL  25 million  (ca.  EUR  35.57  million),  or  if  the  combined 
market  share  of  the  merger  participants  in  any  relevant  market  exceeds  40  %.10  The 
Competition Council has reviewed several applications for merger clearance submitted by 
media  companies.  One  of  the  first  decisions  with  detailed  reasoning  was  the  2010 
decision  allowing  a  merger  of  two  major  cable  operators,  subject  to  several  binding 
commitments to safeguard free competition between media companies and to protect the 

3 

4 

5 

6 

7 

8 

9 

10 

Article 15, section 4 of the EML (Elektronisko plašsaziņas līdzekļu likums), adopted on 12.07.2010, in force 
as of 11.08.2010. 
Judgement  of  the  Administrative  Department  of  the  Supreme  Court  Senate  of  the  Republic  of  Latvia,  14 
June 2007. See also IRIS 2007-9:16/23. 
Article 19, section 1 of the EML. 
Articles  32-33  of  the  Electronic  Communications  Law  (Elektronisko  sakaru  likums),  adopted  on 
28.10.2004, in force as of 01.12.2004. 
Article 27 of the EML. 
Regulation No. 91 of the Cabinet of Ministers as of 01 February 2011. 
Articles 32-33 of the EML. 
Article 15, section 2 of the Competition Law, adopted on 04.10.2001, in force as of 01.01.2002. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

interests of the consumers.11 The most recent decision providing a scrupulous analysis of 
the  television  market  in  Latvia  and  of  the  competitive  conditions  within  this  market,  is 
the 2012 decision allowing the merger of the largest Latvian commercial broadcasters.12 

The Competition Council may prohibit or allow a merger only under certain commitments. 
Such  merger  shall  not  create  a  dominant  position  or  significantly  impede  the  efficient 
competition.  In  this  regard  it  must  be  noted  that  the  current  EML  provides  that  an  
electronic  medium  has  a  dominant  position  if  its  market  share  in  the  relevant  market 
exceeds 35%.13 This provision has never been applied in practice yet.14 

The  Competition  Council  has  established  that  currently  one  large  company  has  a 
dominant position in the wholesale market of press distribution, but also several smaller 
operators exist.15 

- Legal framework for psm; ability to fulfill their tasks 

The  public  service  media  are  financed  from the  state  budget,  as well  as  from  their  own 
economic activity (e.g., advertising). 

Generally,  the  legal  framework  enables  the  public  service  media  to  fulfil  their  tasks, 
however, there is a constant debate on the lack of sufficient financing and thus inability 
to provide a high quality content. 

- On 17 April 2012 the NEPLP approved a Concept paper for a development 
of  a  new  public  service  medium  in  Latvia,  providing  that  a  new  unified 
public  service  medium  body  must  be  formed,  by  merging  the  activities  of 
the  current  public  service  radio  and  television  broadcasters16.  On  30  May 
2012 the NEPLP approved a supplemented version, and it is expected that 
the  Ministry  of  Culture  should  submit  it  for  review  to  the  Cabinet  of 
Ministers.the  role  and  functioning  of  regulatory  authorities  in  these 
respects 

The  Electronic  Media  Law  (EML)17  provides  that  the  National  Electronic  Media  Council 
(NEPLP)  is  an  independent  regulatory  authority  whose  main  duty  is  to  represent  the 
public interest in the area of electronic media and to supervise that the electronic media 
comply  to  the  Satversme  and  the  relevant  laws.  The  Constitutional  Court  has  approved 
that the NEPLP is outside the hierarchy of state institutions subordinated to the Cabinet 
of Ministers, as the NEPLP due to its functions has to be independent from the executive 
power.18  The  Constitutional  Court  has  also  pointed  out  that  NEPLP  has  to  promote 
competitiveness in the electronic media market.19 

11	 

12 

13 

14 

15	 

16	 

17 

18 

19 

Decision of the Competition Council No. 83 of 13 November 2010, in case No. 1492/10/03.01.-01./13. See 
also IRIS 2011-2:1/32. Note: this merger did not take place in practice. 
Decision of the Competition Council No. 42 of 11 May 2012, in case No. Nr.90/12/03.01./2. 
Article 14 of the EML. 
In May 2012 a highly anticipated decision of the Competition Council is expected on the merger application 
between the two largest Latvian commercial broadcasters. It might address this market share criterion. 
Decision  of  the  Competition  Council  No.  69  as  of    28  October  2011,  case  No.  885/11/03.01.-01./6. 
Available at:  
http://www.kp.gov.lv/uploaded_files/2011/D069_2810.pdf (in Latvian). 
Koncepcija 
http://www.nrtp.lv/lv/padome/page/2/aktualitates/1709-koncepcija--. See also: IRIS 2012-6/26. 
EML (Elektronisko plašsaziņas līdzekļu likums), adopted on 12.07.2010, in force as of 11.08.2010. 
Judgment of the Constitutional Court of Latvia as of 16.10.2006 in case No. 2006-05-01; paras. 17 and 18 
(the  judgment  was  adopted  in  respect  of  the  interpretation  of  the  previous  Radio  and  Television  Law 
(1995), however, the relevant provisions of the EML are essentially the same). 
Judgment of the Constitutional Court of Latvia as of 16.10.2006 in case No. 2006-05-01; para. 18. 

sabiedriskā  medija 

elektroniskā 

available 

Latvijas 

izveidi, 

jaunā 

par 

at: 

425 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
  
  
  
 
  
 
 
 
 
 
  
   
  
 
  
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The NEPLP is constituted by five members, elected directly by Saeima (the Parliament). 
The  NEPLP is  financed from  the  state  budget,  but  as  a  derived  state  institution  it  is  not 
included  in  the  hierarchy  of  public  institutions  subordinated  to  the  Cabinet  of  Ministers. 
The main functions of the NEPLP include the issuing of broadcasting and retransmission 
permits,  monitoring  and  controlling  the  activities  of  electronic  media,  approving  the 
strategy  for  the  development  of  electronic  media,  as  well  as  acting  as  a  shareholder  of 
public  broadcasters  (approving  their  articles  of  association,  electing  the  management 
board).20 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The Law on the Press and other Mass Media provides specifically for the freedom of the 
media  and  their  right  to  obtain  information  from  state  and  non-governmental 
institutions21,  the  safeguards  for  journalistic  activity,  the  prohibition  of  censorship,  and 
interference  with  the  activities  of  the  media  (cf.  Report  on  Latvia  2004,  point  1.3.).  In 
2011 this law was supplemented by an explicit statement of the editorial independence:22 
the  editor  and  the  editor-in-chief  is  liable  for  the  contents  of  the  published  information, 
but  is  editorially  independent.  Hence,  the  editors  themselves  must  decide  what 
information should be published and what not. 

The freedom and independence of editorial activity is stipulated also by the EML, stating 
that  this  freedom  applies  to  the  producing  and  distributing  of  programmes  and  may  be 
limited only as provided by the law.23 

The EML provides the following complaint procedures: the rights to request a revoking of 
false  information,  and  the  rights  to  reply24.  If  any  electronic  medium  refuses  to  revoke 
the  information  or  to  provide  the  rights  to  reply,  the  complainant  may  request  this 
through  the  court.  Similar  provisions  are  included  in  the  Law  on  Press  and  Other  Mass 
Media, which applies also to printed media. The general Civil Law provides for a right to 
request a compensation for defamation, and, if the defamatory and false information was 
published in press, it also has to be revoked in the press.25 

- Specific positive content obligations 

Media subject to Latvian jurisdiction must provide a Latvian translation of all broadcasts, 
including films, if they are not originally in Latvian.26 This does not apply to retransmitted 
programmes. 

- Funding schemes for specifically desired content 

A  funding  for  specifically  desired  content  (production  of  news  and  current  affairs 
programmes  and  providing  information  to  general  public)  is  granted  within  the  public 
remit  scheme.  According  to  the  EML,  the  public  remit  is  mainly  provided  by  the  public 

20 

21 

22 

23 

24 

25 

26 

Articles 60-62 of the EML. 
Article 5. 
Amendments  to  the  Law  on  Press  and  Other  Mass  Media,  adopted  on  22.09.2011,  in  force  as  of 
20.10.2011. See also IRIS 2011-10:1/32. 
Article 24, part 1 of the EML. 
Articles 50-52 of the EML. 
Article 2352.1 of the Civil Law. 
Article 28, parts 3 and 4 of the EML. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

service  media,  however,  the  NEPLP  may  entrust  also  commercial  media  with  a  certain 
part of the public remit.27 This option, however, has not been used in practice yet.  

- Political advertising and/or broadcasting time 

The  political  advertising  and  related  issues,  such  as  broadcasting  time  to  be  offered  to 
parties  and  candidates,  is  regulated  by  the  laws  “On  pre-election  campaign  before  the 
Saeima elections and elections to the European Parliament”28 and “On campaign in radio 
and  television  before  the  municipal  elections”29.  The  respective  laws  have  faced  many 
amendments to ensure a smooth and transparent regulation of pre-election campaigns.30 
A  certain  amount  of  free  broadcasting  time  in  the  programmes  of  the  public  service 
media, Latvian Radio and Latvian Television, is granted to the registered candidates.31 In 
addition,  the  candidates  may  use  paid  political  advertising,  but  the  payer  for  such 
advertising  must  be  clearly  indicated.  The  broadcasting  organisation  has  a  duty  to 
publish its tariffs for broadcast political advertising, and these tariffs must be applied in a 
transparent  and  non-discriminatory  manner.32  Also,  the  political  advertising  in  printed 
media  must  take  place  according  to  a  transparent  and  non-discriminatory  tariff,  and  it 
must be clearly indicated that a certain publication is a political advertisement, and who 
has  paid  for  it.33  The  observation  of  the  relevant  rules  is  monitored  by  the  NEPLP 
(regarding electronic media only), as well as by the Corruption Prevention and Combating 
Bureau  (regarding  all  media,  but  this  control  is  limited  to  the  monitoring  of  compliance 
with the political advertising rules). 

- Codes of conduct and their organisational framing 

In  addition  to  the  regulatory  enactments  (The  Law  on  the  Press  and  other  Mass  Media 
and the EML), the Latvian journalists should adhere to the Code of Ethics of the Latvian 
Union  of  Journalists,  adopted  in  1992  (cf.  Report  on  Latvia  2004,  point  1.3).  Alleged 
violations of the Code are reviewed by the association’s Ethics Committee. However, this 
code  is  not  formally  binding,  and  there  is  no  efficient  mechanism  for  the  monitoring  of 
compliance. The most severe sanction for a violation is exclusion from the Union. 

- The role and functioning of regulatory authorities in these respects 

The functions of the NEPLP include a duty to review complaints received from the public 
on  the  activities  of  electronic  media,  including  the  contents  of  their  programmes.  The 
NEPLP  may  request  explanations  from  the  respective  electronic  medium,  as  well  as 
records  of  the  programme  in  order  to  control  whether  the  applicable  laws  have  been 
observed.34 In case of the breach of the EML or the Advertising Law the NEPLP may apply 
a warning or an administrative penalty in the amount of up to LVL 10,000 (approx. EUR 
14,124).35 

27 

28 

29 

30 

31 

32 

33 

34 

35 

Articles 64-71 of the Electronic Communications Law.
 
Par  priekšvēlēšanu  aģitāciju  pirms  Saeimas  vēlēšanām  un  Eiropas  Parlamenta  vēlēšanām,  adopted  on
 
09.08.1995, in force as of 12.08.1995. 
Par  aģitāciju  radio  un  televīzijā  pirms  pašvaldību  vēlēšanām,  adopted  on  31.03.1994,  in  force  as  of 
20.04.1994. 
See also IRIS 2009-3:15/24. 
Article 2 of the law On pre-election campaign before the Saeima elections and elections to the European 
Parliament, Article 2 of the law On campaign in radio and television before the municipal elections. 
Article 7 of the law On pre-election campaign before the Saeima elections and elections to the European 
Parliament. 
Article  25  of  the  of  the  law  On  pre-election  campaign  before  the  Saeima  elections  and  elections  to  the 
European Parliament. 
Articles 60 and 61 of the EPL. 
Article 21 of the EPL; Article 201.5 and 215.9 of the Code of Administrative Violations. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

  Distribution Aspects 

- Access to frequencies 

Where  the  frequencies  are  limited,  the  broadcasting  licences  are  issued  on  basis  of  the 
tender  results.  The  radio  frequencies  are  controlled  by  the  state  institution  Electronic 
Communications  Office,  which  shall  inform  the  NEPLP  on  the  available  frequency 
allotments.36 

As  of  1  December  2011  a  full  transfer  to  digital  terrestrial  television  transmission  has 
been  completed.  The  digital  terrestrial  transmission  is  organised  by  a  company,  which 
has been selected by the Cabinet of Ministers on the basis of a tender. The company has 
its exclusive rights until 31 December 2013. Until this date the Cabinet of Ministers must 
develop  and  submit  to  the  Saeima  (Parliament)  a  legislative  proposal  providing 
conditions  on  which  as  of  1  January  2014  electronic  media  will  be  able  to  choose  the 
entity,  which  will  ensure  the  distribution  of  their  programmes,  or  to  ensure  the  digital 
broadcasting of their programmes by their own means.37 

- Access to distribution networks and control of actual conditions 

The distribution and circulation instruments of the printed press are not regulated by the 
law,  and  are  organised  on  basis  of  private  agreements  between  the  publishing  houses 
and distribution companies. 

- Must-carry/must-offer rules for electronic media 

The  EML  provides  for  a  must-carry  obligation  to  the  cable  operators  retransmitting 
television  programmes  of  other  broadcasters.  The  cable  operators  must  include  in  their 
retransmission  the  programmes  of  Latvian  public  service  media,  as  well  as  the 
programmes of those national broadcasters whose programmes are available free-to-air 
within terrestrial transmission.38 

There  is  a  legislative  proposal  to  partially  abolish  the  must-carry  principle,  applying  it 
only to programmes of public broadcasters, but the outcome is still unclear. The proposal 
is advocated by the two national commercial broadcasters TV3 and LNT who would prefer 
charging  a  fee  for  the  inclusion  of  their  programmes  in  the  cable  retransmission 
packages. On 7 June 2012 the Saeima (the Parliament) approved these amendments in 
the first reading.39 

- Role of platform operators 

The  infrastructure  for  the  digital  terrestrial  transmission,  as  well  as  for  the  remaining 
analogue  transmission  of  radio  broadcasters,  is  ensured  by  the  state  company  Latvian 
State Radio and Television Centre.40 

A company selected by the Cabinet of Ministers has the sole right to organise the digital 
terrestrial  transmission  until  31  December  2013.41  The  company  has  rights  to  charge  a 

36 

37 

38 

39 

40 

Article 15, part 7 of the EML. 

Transition provisions of the EML, paragraph 12. 

Article 19, section 6 of the EML. 

Proposal  on  the  amendments  to  the  EML,  submitted  to  the  Saeima,  approved  in  the  first  reading  on  

07.06.2012. 
Article 13 of the EML. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

fee for the digital transmission from the broadcasting companies whose programmes it is 
transmitting,  calculated  according  to  the  order  set  by  the  Cabinet  of  Ministers42  (so  far 
the Cabinet of Ministers has not set this order, as according to the Transition Provisions 
of the EPL this rule will be applicable only as of 1 January 2014). Currently, the selected 
company  is  SIA  Lattelecom,  however,  its  operation  has  caused  several  complaints  by 
private  broadcasters  and  has  resulted  in  an  investigation  by  the  Competition  Council, 
which  did  not  find  any  abuse  due  to  the  lack  of  facts,  but  indicated  deficiencies  of  the 
selection procedure.43 

- The role and functioning of regulatory authorities in these respects 

The  Cabinet  of  Ministers  has  to  decide  how  to  organize  further  the  digital  terrestrial 
transmission  of  television  programmes,  as  the  existing  regulations  cover  the  situation 
only until 31 December 2013. On 8 December 2011 the Ministry of Transport approved a 
Concept  Paper  on  the  Distribution  of  Digital  Terrestrial  Television  after  Year  2014  and 
submitted it to the Cabinet of Ministers, which has to decide, which of the four proposed 
options  to  select.44  The  EML  currently  in  force  provides  that  the  transmission  of  digital 
terrestrial television is organized by only one company, selected in the tender, however, 
the  draft  concept  papers  proposes  also  an  option  where  this  could  be  done  by  several 
companies. 

On 10 May 2012 the Cabinet of Ministers issued an order on this issue45, approving the 
option  2  of  the  Concept  Paper.  The  approved  option  provides  that  the  state  owned 
company  VAS  “Latvijas  Valsts  radio  un  televīzijas  centrs”  will  ensure  the  distribution  of 
the  free-to-air  national  and  regional  television  programmes,  as  well  as  will  provide  a 
conditional access service to pay television operators according to the tender regulations 
approved  by  the  Cabinet  of  Ministers.  The  Ministry  of  Transport  must  draft  the  relevant 
amendments to the EML in cooperation with the NEPLP and the Competition Council. 

	  On  12  June  2012  the  Cabinet  of  Ministers  approved  the  draft  amendments  to  the 
EML.  The  draft  amendments  provide  that  the  NEPLP  will  set  criteria  for  the  pay 
television programmes, which may be distributed by the means of the VAS “Latvijas 
Valsts radio un televīzijas centrs” and based on these criteria will approve a list of 
such  programmes.  The  draft  amendments  leave  open  the  issue  how  many 
operators  will  be  entitled  to  distribute  the  pay  television  programmes  via  digital 
terrestrial  television,  as  this  is  left  to  be  determined  by  the  tender  regulations 
approved  by  the  Cabinet  of  Ministers.46  The  draft  law  now  is  being  prepared  for 
submission for the review by Saeima (the Parliament).Access to Information 

-	 Transparency of media ownership situations 

An  important  safeguard  for  the  preservation  and  promotion  of  diversity  is  the 
amendment to the Law on Press and Other Mass Media, adopted on 22 September 2011, 

41	 

42	 

43	 

44	 

45	 

46	 

Regulations of the Cabinet of Ministers No. 714 as of 02.09.2008. "The Order how the Digital Broadcasting 
of the programs of electronic mass media is introduced”, in force as of 27.09.2008.; will loose its force on 
31.12.2013. See also IRIS 2008-10:15/24. 
Article 72, part 5 of the EML. 
See IRIS 2010-4:1/33; IRIS 2011-10:1/33. 
Draft Concept Paper "On the distribution of digital terrestrial television after year 2014", approved by the 
Committee of the Cabinet of Ministers on 26 March 2012 and decided to review the paper in the Cabinet of 
Ministers. 
Order  No.216  as  of  10.05.2012.  of  the  Cabinet  of  Ministers  "On  the  Concept  "On  distribution  of  digital 
terrestrial television programms as of year 2014, in force as of 10.05.2012. 
Draft law „Amendments to the Law on Electronic Media“, approved by the Cabinet of Ministers on 12 June 
2012, minutes number 42. 

429 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
 
 
 
 
 
 
  
  
 
  
 
 
 
  
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

which  requires  these  owners  of  mass  media  who  are  capital  companies  to  reveal  their 
beneficial owners.47 

The Latvian Commercial Law requests that legal entities registered in Latvia must inform 
the Commercial Register about their true beneficial owners. The duty applies to persons 
holding  at  least  25  %  of  shares  in  the  company  for  the  benefit  of  another  person.48 
However,  this  new  rule  does  not  provide  a  real  transparency  of  media  ownership 
situations,  as  it  is  not  media  specific  and  does  not  request  the  revealing  of  final 
beneficiaries if there are several levels of shareholders. 

- Accountability of public service media 

Due  to  the  fact  that  the  public  service  media  are  mainly  financed  by  the  state  budget 
subsidy for the purposes of providing a public remit,49 therefore they are accountable for 
the appropriate use of this subsidy to the NEPLP.50 

- Freedom of information laws 

The  freedom  of  access  to  information  is  covered  by  the  above  mentioned  Art.  104  of 
Satversme  and  by  the  EML51.  In  addition,  there  is  a  Freedom  of  Information  Law 
applicable  to  state  and  municipal  institutions,  listing,  which  information  is  generally 
accessible and to which there is a restricted access, as well as stipulating the institutions’ 
duty  to  provide  information  and  the  order  in  which  it  has  to  be  provided.52  The  Law  on 
Submissions  regulates  the  procedure  of  how  the  public  bodies  must  respond  to 
submissions produced by private persons. 

- Accessibility of products/services and distribution networks 

The  Latvian  law  does  not  contain  specific  provisions  on  the  access  to  products/services 
and  distribution  networks  (such  as  right  to  install  or  aid schemes  to  purchase  reception 
devices).  The  law  provides  that  the  company,  which  is  providing  the  digital  terrestrial 
broadcasting must ensure a free-to-air access to certain programmes, the list of which is 
approved by the NEPLP53 (currently: the programmes of Latvian public service media and 
the  programmes  of  two  national  commercial  broadcasters).  The  relevant  broadcasters 
may not request a fee from the cable operator for the retransmission rights.54 

The only exemption from the broadcasting license fee is applicable to public service and 
non-commercial media.55 

A universal service obligation for electronic communications providers is stipulated by the 
Electronic  Communications  Law56.  The  universal  service  obligations  are  imposed  by  the 
Public Utilities Commission,57 which also has adopted relevant regulations.58 

47 

48 

49 

50 

51 

52	 

53	 

54	 

55	 

Amendments  to  the  Law  on  Press  and  Other  Mass  Media,  adopted  on  22.09.2011,  in  force  as  of 
20.10.2011. See also IRIS 2011-10:1/32. 
Article 17.1 of the Commercial Law. 
Article 70, section 1, part 1 of the EML. 
Article 62, section 6 of the EML. 
Article 24, section 1. 
Freedom  of  Information  Law  (Informācijas  atklātības  likums),  adopted  on  29.10.1998,  in  force  as  of 
20.11.1998. 
Regulations of the Cabinet of Ministers No. 714 as of 02.09.2008. "The Order how the Digital Broadcasting 
of the programs of electronic mass media is introduced”, para. 7. 
Article 19, section 6 of the EML. 
Regulations No. 1238 of the Cabinet of Ministers as of 28.12.2010. "Regulations on the state fee for the 
issuing  of  the  broadcasting  permit,  retransmission  permit  and  registration  of  service  providers  providing 
on-demand electronic media services" adopted on 30.12.2010, in force as of 01.01.2011. 

430 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
                                                 
  
 
 
 
 
  
  
 
  
  
 
  
 
 
  
 
 
 
 
  
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Print media may offer commercially reduced rates for subscription on their own initiative. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

There is no “Ombudsmen”.  

- Participation in media operators/(self-)regulatory bodies 

There are no viewers’ or listeners’ councils. 

The  EML  only  provides  an  establishment  of  a  Public  Advisory  Council  -  an  advisory 
institution  established  by  the  NEPLP  with  the  task  of  ensuring  the  participation  of  the 
public in the process of elaboration of the public service remit and the national strategy 
for the development of the electronic mass media sector. Decisions of the Public Advisory 
Council are of a recommendatory nature. The Council is composed of representatives of 
associations,  foundations,  professional  institutions  and  other  organisations  active  in  the 
field of the mass media, education, culture, science and human rights.59 

2.2.15.2.  Main Players in the Media Landscape 

In  general,  the  Latvian  media  landscape  may  still  be  characterised  by  two  linguistically 
and  culturally  separate  markets:  Latvian  and  Russian  language  media.  Although  the 
percentage of ethnically Russian population has decreased60, the Russian language media 
are  still  a  separate  market  of  their  own,  influenced  by  widely  available  retransmitted 
programmes from Russia (cf. Report on Latvia 2004, point 2). 

2.2.15.2.1. 

Radio 

The public service broadcaster Latvijas Radio has five stations, four of them broadcast on 
national  level,  one  (LR5)  in  Riga  region  (LR  1  –  general;  LR2  –  Latvian  music;  LR3  – 
classical music; LR4 – linguistic minorities; LR5 – youth/ student).  

There  are  five  commercial  national  radio  programmes  (cf.  only  two  according  to  Report 
on  Latvia  2004,  point 2.1),  listed in  the  table  below.  The  largest  are  Radio  SWH  owned 
by  Communicorp  Group  Ltd.,  an  Irish  media  holding,  and  Star  FM  owned  by  the  MTG 
Broadcasting AB, a Swedish media holding.  

56	 

57	 

58	 

59	 

60	 

Electronic  Communications  Law  (Elektronisko  sakaru  likums),  adopted  on  28.10.2004,  in  force  as  of 
01.12.2004. 
Sabiedrisko pakalpojumu regulēšanas komisija, webpage: www.sprk.gov.lv. 
Decision of the Public Utilities Commission No.152 as of 30.05.2007 "On the Regulations on the Universal 
Service in the Electronic Communications”. 
Article 63 of the EML. 
Data  of  the  2010  census,  available  at  www.csp.lv.  The  number  of  ethnical  Russians  has  decreased  from 
29.6% in year 2000 to 26.9% in year 2011. 

431 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
 
 
  
  
 
 
 
  
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 86 LV: Main Radio companies (national coverage)61 

Broadcaster 

Ownership62 

Programmes 

VSIA 
Radio 

Latvijas 

Public 
broadcaster; 
state 
company 

service 

owned 

AS Radio SWH 

Communicorp 
Group 
(Ireland) 

Ltd. 

AQH Share 
2011 Summer, 
%63 
LR 2: 22.8  
LR 1: 11.3  
LR 4: 5.2  
LR 3: 0.9  
LR 5: 0.2  

Audience Reach 
2011 Summer, 
% 
LR 2: 25.9  
LR 1: 15.4  
LR 4: 8.6  
LR 3: 3.3  
LR 5: 1.1  

Radio SWH: 5.3  
Radio SWH Plus:  
2.8  

 Radio SWH: 12.2 
Radio SWH Plus:  
6.8  

5.0  

11.4  

Latvijas Radio 1 
Latvijas Radio 2 
Latvijas  Radio  3 
(Klasika) 
Latvijas  Radio  4 
(Doma laukums) 
Latvijas  Radio  5 
(Studentu 
radio 
–  Riga 
Naba) 
region  coverage 
only 
Radio SWH, 
Radio  SWH  Plus, 
Radio SWH Rock, 
Radio  SWH  Plus 
Rēzekne 
(Rēzekne 
coverage) 
Radio  SWH  Plus 
Liepāja 
(Liepāja 
region coverage) 
Eiropas 
Radio 

region 

Hitu 

Super  FM  group, 
two 
owned  by 
local 
physical 
persons 
MTG Broadcasting 
AB (Sweden) 
Super FM group 

AS Super FM 

SIA Star FM 

SIA 
Radio 

Latviešu 

SIA Vārds & Co 

Star FM 

Super FM  

3.0  

1.8  

Christian 
owned  by 
Christian groups 

radio, 
local 

Latvijas  Kristīgais 
radio 

1.4  

8.7  

4.6  

3.8  

2.2.15.2.2. 

Television 

The  structure  of  the  television  media  is  very  similar  to  that  described  in  the  Report  on 
Latvia 2004, point 2.2: the public service broadcaster Latvijas Televīzija with two national 
programmes (LTV1 and LTV2) and two national commercial programmes: LNT owned by 
AS  Latvijas  Neatkarīgā  Televīzija  (owned  by  a  local  natural  person)  and  TV3  owned  by 
MTG  Broadcasting  AB.  MTG  Broadcasting  AB  has  proposed  to  acquire  the  LNT 
programme,  and  the  Competition  Council  has  cleared  the  merger  subject  to  several 
binding  commitments.64  The  commitments  include  the  duty  to  remain  in  free-to-air 

61	 

62 

63 

64 

Information  from  the  webpage  of  the  Eletronic  Media  Council,  as  of  13  April  2012.  The  table  does  not 
include radio programmes with a high AQH and reach, which may be received only in Riga region. All the 
nationally  receivable  radio  programmes  are  listed,  in  descending  order  based  on  their  audience  reach 
figures. 
Data  on  ownership  in  this  and  further  tables  is  taken  from  public  sources,  such  as  webpages  of  radio 
companies; it does not have a legal reliability. 
Information on AQH and Reach from www.eradio.lv, data of TNS Latvia National Media Survey; summer: 
16.05-17.08.2011). 
Decision of the Competition Council No.42 as of 11 May 2012, in case No. Nr.90/12/03.01./2. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

broadcasting for both programmes at least until until the end of year 2013, the duty to 
maintain in force the existing advertising contracts, price increases must be reported to 
the  Competition  Council,  based  on  independently  audited  accounts;  no  bundled 
advertising  conditions.  Also,  LNT  and  TV3  must  maintain  independent  current  affairs 
editorial  boards,  and  the  amount  of  current  affairs  broadcasts  must  not  be  decreased; 
editorial independence from the MTG group must be ensured; original contents produced 
in Latvia must be no less than 21%. The binding commitments are in force until the end 
of  year  2017.  Moreover,  the  Competition  Council  retains  a  right  to  apply  structural 
commitments (alienation of certain assets) until the end of year 2017. In applying these 
commitments,  the  Competition  Council  has  taken  into  account  the  NEPLP’s  unbinding 
opinion.65 

According to the publicly available information the merger participants have accepted the 
commitments and the merger has been completed on 1 June 2012.66 

There are 25 local television channels (cf. Report on Latvia 2004, point 2.2).67 

Table 87 LV: Main Television Companies (national coverage)68 

Broadcaster 

Ownership 

Programmes 

Audience 2012 
March, %69 

VSIA 
Televīzija 

Latvijas 

Latvijas 

AS 
Neatkarīgā 
Televīzija 

SIA TV3 Latvia 

service 

Public 
broadcaster; 
state owned 

MTG Broadcasting 
AB 

MTG Broadcasting 
AB 

LTV1 

LTV7 

LNT 

8.6 

4.4 

12.1 

TV3 

13.0 

Programmes  accessible  only  through  satellite  or  cable  are  gaining  an  increasing 
popularity,  as  many  of  Latvian  households  are  using  one  of  these  paid  retransmission 
networks instead or besides the terrestrial television. For example, the Latvia-registered 
satellite  television  channel  PBK  (Russian  language)  had  a  9.8  %  audience  in  March 
2012.70 It is estimated that PBK is the most popular television channel within the Russian 
speaking audience in all Baltic countries, as it is partially retransmitting Russian channels 
(70% of contents, especially Russian programmes REN TV, TV1), and partially producing 
or  ordering  its  own  contents.  PBK  is  owned  by  a  media  holding  Baltic  Media  Alliance, 
which in turn is owned by two natural persons, Oļegs Solodovs and Aleksey Plasunov.71 

The  cable  and  satellite  television  programmes  are  assessed  as  having  a  competitive 
advantage  over  the  terrestrial  commercial  channels,  as  the  latter  have  to  pay  for  the 

65 

66 

67 

68 

69 

70 

71 

The full document of suggestions is available at www.nrtp.lv, published on 11.04.2012.
 
Public statement by MTG group, as displayed in www.Ir.lv on 1 June 2012.
 
Information from the webpage of the Eletronic Media Council, as of 13 April 2012.
 
All terrestrial televisions holding a national broadcasting permit are listed: the public service broadcaster
 
and the only two commercial programmes broadcasted on national basis. Listed in no particular order. 
Data of TNS Latvia National Media Survey, March 2012, available on www.emulators.lv. 
Data of TNS Latvia National Media Survey, March 2012, available on www.emulators.lv. 
Information  on  PBK  channel  from  the  research  of  Re:Baltica  Russian  Money  in  Baltics,  available  at 
www.rebaltica.lv, published also in weekly magazine IR, No.15 (105), 12.-18.04, 2012. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

digital  terrestrial  transmission,  which  is  substantially  more  expensive  than  the  use  of 
cable and satellite platforms.72 

2.2.15.2.3. 

Press and publishing 

The general structure of the press industry is similar as described in the Report on Latvia 
2004,  point  2.3,  however,  the  ownership  of  main  players  has  changed.  The  publishing 
house  AS  Diena  is  not  owned  by  the  Swedish  Bonnier  Group  anymore,  the  current 
owners  are  not  completely  clear,  but  according  to  publicly  available  information  the 
control is hold by one local natural person.73 

The publishing house Preses Nams is not existing anymore, but the papers published by 
it are now issued by SIA Mediju nams, recently repurchased by its management from the 
previous owner, an associated company of the AS Latvijas kuģniecība (the largest Latvian 
shipping company).74 

Latvijas Avīze, published by AS Lauku Avize, is still the daily newspaper with the largest 
subscribers’ base.75 (cf. Report on Latvia 2004, point 2.3). 

A  national  publishing  house  AS  Santa  has  gained  the  largest  popularity  in  the  sector  of 
weekly and monthly life-style magazines.  

The Petits Izdevniecības nams is still the largest Russian language publishing house (but 
with different owners), and the other company Fenster is also active (cf. Report on Latvia 
2004, point 2.3). Baltic Media Alliance is operating also in the printed media market. 

72 

73 

74 

75 

Precise  numbers  are  not  available,  but  according  to  the  research  of  Re:Baltic,  the  national  commercial 
channels TV3 and LNT are paying for the digital terrestrial broadcasting ca. EUR 700 000 annually. 
Information on the company web page www.dienasmediji.lv. 
Information from public sources, www.apollo.lv, on 14 January 2010. 
Information on the company web page www.la.lv. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 88 LV: Main Publishing Companies76 

Publishing 
company 

Ownership 
structure 

Main  titles: 
daily 

Main 
weekly 

titles: 

Subscribers77 

Circulation 

Latvian language titles 

AS 
Avīze 

Lauku 

Local  physical 
persons 

Latvijas 
Avīze 

Praktiskais 
Latvietis 

AS Diena 

„Rīgas 

SIA 
tirdzniecības 
osta” 
Trading Port)78 

(Riga 

SIA  Mediju 
nams 

Local 
management, 
physical 
persons 

Diena, 

SestDiena, 

Dienas 
Bizness 

Biznesa 

LD 
žurnāls 

Neatkarīgā 

Māja, 

Vakara Ziņas 

22,178 (Latvijas 
Avīze, 
year 
2012) 

110,000 
(Latvijas 
Avīze) 

12,329 
(Praktiskais 
Latvietis, 
2012) 

year 

50,000 
(Praktiskais 
Latvietis) 

21,625  (Diena, 
year 2012) 

31,000 
(Diena) 

14,600 
(Neatkarīgā, 
year 2010) 

25,000 
(Neatkarīgā) 

30,000 
(Māja) 

44,000 
(Vakara 
Ziņas) 

Russian language titles 

SIA 
Izdevniecība 
s 
Fenster IN 

nams 

2  local  physical 
persons 

Vesti 
Segodna 

Vesti 

(Vesti 
14,000 
Segodna,  year 
2008) 

25,500 
(Vesti 
Segodna) 

"Lanchrome 
SIA 
Limited" 
Izdevniecība 
s nams Petits  (Cyprus) 

2,865 (Vesti) 

Chas 

Subbota 

6,100 (Chas) 

34,500 
(Vesti) 

10,000 
(Mon-Thur) 

4950 (Subbota)  –  21  000 

(Fri) (Chas) 

29,000 

(Subbota) 

Baltic  Media 
Alliance 

2 
persons 

physical 

-

MK-Latvia 

5,746 

46,000 

2.2.15.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The  main  online  media  are  internet  news  portals:  www.delfi.lv  (owned  by  Ekspress 
Grupp,  an  Estonian  media  holding);  www.apollo.lv  (owned  by  Sanoma  News,  a  Finnish 
media  holding);  www.tvnet.lv  (owned  by  Schibsted,  a  Norwegian  media  holding).  Also, 
popular  internet  news  portals  are  run  by  the  main  daily  newspaper  publishing  houses 

76 

77 

78 

Listed in the descending order, based on the circulation figures for main daily titles, separately within each 
language group. 
Data obtained from various public sources, mainly the webpages of the publishing houses, as there is no 
unified list available.  
Acquisition transaction authorised by the Latvian Competition Council on 23 March 2012. 

435 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                 
  
  
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

(www.diena.lv;  www.db.lv).  Some  of  these  portals  offer  also  non-linear  audiovisual 
media services. 

In  addition,  the  public  service  broadcasting  companies  Latvijas  Radio  and  Latvijas 
Televīzija,  as  well  as  two  main  commercial  television  broadcasters  have  their  own 
webpages. The  contents  of  these  webpages  varies  from  just  general  information  on  the 
programmes  of  the  media  up  to  an  option  to  view  selected  programmes  on-line  in  real 
time.  For  example,  the  public  service  television  broadcaster  Latvijas  Televīzija  offers  an 
opportunity  to  watch  most  of  its  new  programmes  on-line  on  the  site  www.ltvzinas.lv. 
The  site  offers  also  archives  of  most  of  the  broadcasts.    Also,  www.latvijasradio.lv 
enables to listen to the programmes of the public service radio broadcaster Latvijas Radio 
on-line. 

Also,  the  commercial  broadcaster  LNT  offers  to  watch  selected  programmes  on-line  or 
selected fragments from previous broadcasts on the webpage www.lnt.lv, similarly as the 
broadcaster TV3 at the webpage www.tv3.lv. 

2.2.15.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Similarly as described in Report on Latvia 2004, point 2.4, there are 59 cable operators 
in Latvia79, however, only 3 main players, which also offer a broadband internet access. 

Table 89 LV: Main cable TV operators 

Company 

Ownership structure 

Market Share in Riga, % 80 

Baltcom TV SIA 

SIA Lattelecom 

SIA IZZI 

RPAX  One  S.A.,  owned  by 
investment holding companies 

51%  by  Latvian  state;  49% 
Telia  Sonera,  Swedish  media 
holding. 

Contaq  Latvia  Cable  Holding 
S.a.r.l,  owned  by  investment 
holding companies 

<40 

<40 

<20 

The remaining many smaller cable operators are active mainly in specific locations within 
Riga City or outside Riga, and do not have significant market shares. 

SIA Lattelecom is also offering IPTV service. 

2.2.15.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

According to the data of the survey agency TNS Latvia regarding 2011, 97 % of Latvian 
households  have  at  least  one  TV  set.  62  %  of  households  are  subscribers  to  cable 
television  (IPTV  is  included  in  this  number).  25%  are  using  only  terrestrial  digital 
television, and 16% satellite television.81 

79	 

80	 

81	 

Information from the webpage of the Eletronic Media Council, as of 13 April 2012. 
Data of subscription are confidential and not publicly available. Below are displayed the market shares of 
the  respective  cable  operators,  as  described  in  the  decision  of  the  Competition  Council  No.  18  of 
13.11.2010. 
Data of TNS Latvia for October 2011, available on www.diena.lv. 

436 


 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
                                                 
  
 
 
  
 
 
 
 
 
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  audiences  for  the  most  popular  TV  programmes  are  around  10  to  14  %  of  all 
inhabitants  over  4  years  of  age.  The  average  TV  viewer  spends  5.5  hours  for  TV 
watching.82 

As regards radio, on average of 83% of Latvian inhabitants aged 12 to 74 are listening to 
a  radio  at  least  once  a  week,  but  62%  at  least  once  a  day.  The  average  radio  listener 
spends 4.5 hours for radio listening.83 

According to the survey made in summer 2011, 92% of inhabits aged 15 to 74 have read 
at  least  one  printed  publication  (a  newspaper  or  a  magazine)  within  the  survey  period. 
The  readership  of  daily  newspapers  is  around  25%;  of  weekly  magazines  17%;  of  
monthly magazines 42%.84 

66.2 % of Latvian inhabits are using internet on regular basis (at least once a week).85 

There are no publicly available data of the number of subscribers to services offered by 
internet  service  providers.  It  has  to  be  noted  that  many  internet  service  providers  are 
simultaneously  cable  television  operators,  thus  the  high  number  of  cable  television 
subscriptions  as  mentioned  above  signifies  also  a  considerable  number  of  internet 
connections  for  households.  In  addition,  mobile  internet  is  gaining  increasing  popularity 
in recent years. 

The  below  outlines  the  share  of  advertising  revenue  within  the  media  sector  in  year 
2011. In general, the media advertising market has grown for 5 % in comparison to year 
2010, and the largest growth took place in the internet sector (by 17%). 

Table 90 LV: Advertising revenue and shares in the media sector in year 201186 
Advertising revenue, LVL87 

Market share % 

Medium 

Newspapers 

Magazines 

Television 

Radio 

Outdoors 

Internet 

Cinema 

Total: 

5,129,000 

4,677,000 

21,823,000 

5,121,000 

4,518,000 

6,890,000 

232,000 

48,390,000 

11 

10 

45 

11 

9 

14 

<1 

82 

83 

84 

85 

86 

87 

Data of TNS Latvia for January – March 2012, available on the webpage www.emulators.lv.
 
Data of TNS Latvia for Summer 2011, available on the webpage www.emulators.lv.
 
Data of TNS Latvia, available on the webpage of the Latvian Press Publishers’ Association, at www.lpia.lv.
 
Data of the Central Statistics Office, available at www.csb.lv.  

Data of the Latvian Advertising Association, available on www.lra.lv.  

1 EUR = 0.702804 LVL.
 

437 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
                                                 
  
 
  
 
 
  
  
  
  
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.15.3.  Conclusion and Recommendations 

Generally,  Latvian  media  landscape  secures  the  media  freedom  and  provides  the  main 
legislative and regulatory framework for free operation.  

However,  there  are  some  deficiencies,  which  might  be  partially  improved  by  more 
efficient  and  targeted  legal  regulation.  The  existing  legal  rules  on  revealing  media 
ownership are  not  efficient,  as  they  do  not  request  the  revealing  of  final  beneficiaries  if 
there are several levels of shareholders. Thus, in practice it is still not clear who are the 
beneficiary owners of several major printed media of Latvia. 

The  unrestricted  cable  retransmission  of  television  and  radio  broadcasting  programmes 
not  only  within  the  European  Union,  but  also  from  third  countries,  notably  Russia,  has 
caused  a  situation  in  which  there  are  two  linguistically  diverse  media  markets.  As  a 
result,  the  national  commercial  media  must  compete  on  the  advertising  revenue  with 
media  from  third  countries,  whose  programmes  may  be  freely  accessible  in  Latvia,  but 
who  are not  subject  to  such  positive  contents  obligation  as  a  certain  share  of  European 
works and translation of their broadcasts into Latvian language. 

The transfer to the digital terrestrial television has been completed, but has proved to be 
too  late  and  too  expensive,  as  a  result  most  of  Latvian  households  are  subscribing  to 
either  cable  or  satellite  platforms.  The  national  free-to-air  commercial  broadcasters  are 
complaining  of  the  high  prices  requested  for  the  digital  broadcasting  and  have  publicly 
considered leaving the free-to-air market. 

The  printed  media  are  struggling  for  audience  within  the  framework  of  increasing 
competition from online media, signified by a large growth of advertising revenue within 
the  online  sector  within  the  last  years.  The  blossoming  of  life-style  journals  and  weekly 
magazines  signifies  the  readiness  of  the  public  to  purchase  high  quality  contents  or 
design products. 

This year and the next one may prove very important for the future development of the 
Latvian electronic media. The legal monopoly of the company currently providing digital 
terrestrial broadcasting is expiring at the end of year 2013, and the Cabinet of Ministers 
has  approved  a  political  concept  paper  how  to  approach  this  issue  afterwards,  which 
however leaves some issues open. The final solution should be adopted within this year. 

Another pending issue is the development of must-carry principle, as the cable operators 
would  prefer  having  the  status  quo,  but  national  commercial  broadcasters  are  lobbying 
its  abolishment,  as  this  would  allow  them  to  charge  a  fee  from  the  cable  operators  for 
inclusion of their programmes in the packages. 

Taking into account the above situation, the recommendations to the Latvian authorities 
would be as follows: (clear, detailed and practical) 

	  Media specific rules for revealing ownership structure must be developed. 

	  The  further  development  of  digital  terrestrial  television  must  be  carefully 
implemented: the NEPLP must decide on criteria, which programmes will have to be 
distributed  in  the  terrestrial  package.  The  Cabinet  of  Ministers  must  develop  the 
tender  regulations,  on  basis  of  which  pay  television  operators  will  have  the 
conditional  access  to  the  digital  terrestrial  television  service.  It  is  still  unclear 
whether it would be one operator or several, but for ensuring the best competition 
it may be argued that there should be several. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

	  The fee for the distribution of the programmes in digital terrestrial media should be 
fair and accessible, thus ensuring that terrestrial television is a viable alternative to 
cable and satellite broadcasting. 

	  It  should  be  explored  what  can  be  done  to  unify  the  media  landscape  so  that  to  
diminsh its clear divide by linguistic criteria. Although it is clear that the restriction 
of  retransmission  from  third  countries  (outside  the  EU)  would  not  be  the  best 
option, options must be thought how to make the Latvian media more attractive to 
linguistic minorities. 

	  The  new  merged  public  broadcasting  entity  should  be  developed  in  order  to 
strengthen the public service media and ensure that the public financing is used in 
the best way possible.  

	  The  must-carry  rules  must  be  revised  to  ensure  a  non-discriminating  approach  to 

all commercial media.  

439 


 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

LITHUANIA 


2.2.16.	 

Lithuania 

2.2.16.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.16.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  provision  on  freedom  of  expression  is  enshrined  in  Article  25  of  the  Republic  of 
Lithuania Constitution1  (hereinafter, the Constitution), adopted by citizens of the Republic 
of Lithuania in the Referendum of 25 October 1992, which states:  

“1)  The  human  being  shall  have  the  right  to  have  his  own  convictions  and  freely 

express them.  

2) 

3)	 

4)	 

The  human  being  must  not  be  hindered  from  seeking,  receiving  and  imparting 
information and ideas. 

Freedom  to  express  convictions,  to  receive  and  impart  information  may  not  be 
limited otherwise than by law, if this is necessary to protect the health, honour and 
dignity,  private  life,  and  morals  of  a  human  being,  or  to  defend  the  constitutional 
order. 

Freedom  to  express  convictions  and  to  impart  information  shall  be  incompatible 
with  criminal  actions  -  incitement  of  national,  racial,  religious,  or  social  hatred, 
violence and discrimination, with slander and disinformation.” 

In  addition,  Article  4  of  the  Law  on  Provision  of  Information  to  the  Public,  as  last 
amended  on  20  December  2011,  (hereinafter,  the  Law  on  Information)2  reads:  “Every 
person  shall  have  the  right  to  freely  express  his  ideas  and  convictions  and  to  collect, 
obtain  and  disseminate  information  and  ideas.  The  right  to  collect,  obtain  and 
disseminate  information  may  not be  restricted  otherwise  than under the  law  where  it  is 
necessary to protect the constitutional system, a person’s health, honour, dignity, private 
life and morality.” 

The  Constitutional  Court  of  the  Republic  of  Lithuania  (hereinafter,  the  Constitutional 
Court)  construes  the  notion  of  the  freedom  of  information,  which  is  entrenched  in  the 
Constitution. 

The  Constitutional  Court  has  held  that  freedom  of  information  is  an  important  pre­
condition for the implementation of various rights and freedoms of the person, which are 
entrenched in  the  Constitution,  since  a  person  can  implement  most of  his  constitutional 
rights  and  freedoms  in  an  all-sufficient  manner  only  if  he/she  has  the  right  to  seek, 

1	 

2	 

Valstybės žinios (Official Gazette), 1992, No.33-1014, available in English at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=275302. 
Valstybės žinios (Official Gazette), available in English at:  
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=417769. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

obtain  and  impart  information  unhindered.  The  Constitution  guarantees  and  safeguards 
the interest of the public to be informed.3 

Article 44 of the Constitution prohibits censorship of the public media and states that the 
State,  political  parties,  political  and  public  organisations,  other  institutions  and  persons 
may not monopolise the mass media. 

Additionally,  article  10  of  the  Law  on  Information  prohibits  any  actions  whereby  an 
attempt is made to control the content of information to be published in the media before 
its publication, with the exception of cases provided for by laws. 

It  should  be  noted  that  not  a  single  law  provides  for  the  definition  of  censorship  in 
Lithuania.  Therefore  in  order  to  avoid  any  interpretations  the  Constitutional  Court  in  its 
Resolution4  of  20  April  1995  provided  for  the  definition  of  censorship  as  the  following: 
censorship  is  the  inspection  of  the  content  of  the  press,  cinema  films,  broadcasts  and 
telecasts,  theatre  performances  and  other  public  entertainment  performances,  for  the 
purpose that certain knowledge and ideas would not be disseminated.  

It  is  important  from  the  standpoint  of  democracy  that  public  opinion  would  freely 
develop. That means first of all that the establishment of the means of the mass media, 
as  well  as  their  functioning  possibility  must  not  depend  upon  the  content  of  future 
publications  or  programmes.  Prohibition  of  censorship  however  does  not  mean  legally 
unrestricted  freedom  of  mass  information.  Pursuant  to  paragraph  3  of  Article  25  of  the 
Constitution, freedom to obtain and disseminate information may be restricted by law in 
case it is necessary to safeguard the rights and freedoms mentioned in this norm of the 
Constitution, as well as for the protection of the Constitutional system. Dissemination of 
information  is  incompatible  with  criminal  actions  (paragraph  4  of  Article  25  of  the 
Constitution). 

Article  6  of  the  Law  on  Information  establishes  what  kind  of  information  is  not  to  be 
published or has to be restricted. Certain restrictions of dissemination of information are 
established in other laws as well. Everyone who disseminates information has to observe 
the  restrictions  established  by  laws,  and  not  to  abuse  freedom  of  information.  It  is  the 
publisher  who  is  responsible  for  the  disseminated  information,  therefore  his/her  or  the 
editor's  requirements  and  directions  regarding  the  content  of  information  as  well  as  its 
dissemination, etc. are not considered to be censorship. 

Under  the  jurisprudence  of  the  Constitutional  Court  the  legislator  has  a  duty  to 
legislatively  regulate  the  relations  linked  with  seeking,  obtaining  and  dissemination  of 
information so that, on the one hand, one of innate human rights, freedom of information 
(implying inter alia freedom of electronic media) would be ensured and that, on the other 
hand,  in  the  course  of  implementation  of  freedom  of  information  one  would  not  violate 
constitutional values, that they would be protected and defended. 

- Specific safeguards and rights for the media 

The  Constitutional  Court  by  its  Ruling5  of  23  October  2002  noted  that  upon  the 
consolidation  of  the  right  of  the  journalist  to  preserve  the  secret  of  the  source  of 

3 

4 

5 

Ruling  of  the  Constitutional  Court  of  19  September  2005,  Case  No.  19/04,  available  at: 
http://www.lrkt.lt/dokumentai/2005/r050919.htm. 
Ruling of the Constitutional Court of 20 April 1995, available at:
http://www.lrkt.lt/dokumentai/1995/n5a0420a.htm. 
Ruling of the Constitutional Court of 23 October 2002, available at:
http://www.lrkt.lt/dokumentai/2002/r021023.htm. 

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information  and  not  to  disclose  it6,  in  case  the  question  arises  whether  the  source  of 
information should be disclosed, one must assess in every particular case whether by the 
non-disclosure  of  the  source  of  information  the  values  safeguarded  by  the  Constitution 
would not violated. 

It  also  needs  to  be  noted  that  the  legislator,  while  establishing  by  law  the  powers  of 
courts  to  decide  the  issue  of  disclosure  of  the  source  of  information,  has  a  duty  to 
establish  such  legal  regulation  whereby  the  court  has  to  decide  whether  the  journalist 
must  disclose  the  source  of  information  only  in  the  case  that  all  other  means  of  the 
disclosure of the source of information have been used. 

The right of the journalist to preserve the secret of the source of information and not to 
disclose it is one of the conditions of the freedom of the media. 

  Freedom to receive and to access information 

Article  25  of  the  Constitution  states  that  a  citizen  shall  have  the  right  to  receive  any 
information concerning him that is held by State institutions, according to the procedure 
established by law. 

In addition, Article 5 of the Law on Information provides for the provision on these rights 
as well. 

Article  6  of  the  Law  on  Information  as  well  as  a  special  Law  on  the  Right  to  Obtain 
Information from State and Municipal Institutions and Agencies7, adopted on 11 January 
2000,  last  amended  on  13  May  2010,  set  the  implementation  rules  of  the  freedom  to 
access information.  

  Safeguards on regulatory authorities 

The  Lithuanian  Constitution  does  not  hold  stipulations  in  respect  of  the  status,  remit 
and/or  powers  of  the  regulatory  authorities  in  the  media  or  electronic  communications 
markets. 

  Safeguards on “universal service” 

Aspects  of  “universal  service”  in  terms  of  either  content  to  be  offered  by  the/specific 
media  or  with  regard  to  technical  coverage  and  reachability  of  networks  and  services 
necessary  for  accessing  information  (via  the  media)  are  not  dealt  with  by  the 
Constitution.  

While  the  Constitution  does  not  directly  speak  about  the  aspects  of  universal  service  in 
terms of either content or reachability, the Constitutional Court though, commenting on 
the  importance  of  safeguarding  the  constitutional  (art.  25  of  the  Constitution)  rights  of 
freedom  of  expression  and  information  in  its  jurisprudence  repeatedly  stressed  the 
obligation  that  those  rights  must  be  safeguarded  and  their  implementation  ensured 
disregarding the means and technologies of the provided information.  

6 

7 

See for more on the ordinary-law fundaments of these rights infra at 2.2.16.1.2. 
Valstybės žinios (Official Gazette), 2000, No.10-236, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=373811. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The Constitutional Court’s ruling of 19 September 20058  stated that due to the especially 
rapid  development  of  the  electronic  communications  and  telecommunications  sector  the 
opportunities and means to seek, obtain and disseminate information expand by making 
use of electronic information technologies, naturally internet too. It has to be noted that 
therefore a need arises to establish such a legal regulation, which would not lack behind 
the  progress  of  the  informational  technologies  and  which  would  take  into  consideration 
the specificities of the dissemination of information space, e.g. internet. 

The  Constitutional  Court  in  the  above  mentioned  ruling  as  well  as  in  its  whole 
jurisprudence  points  out  continually  that  the  legal  regulation  established  in  laws  is  of  a 
general  character,  and  this  can  create  preconditions  for  appearance  of  such  legal 
situations  in  the  future,  where  due  to  insufficient  legislative  legal  regulation  freedom  of 
information will not be ensured on the one hand, and, on the other hand, society and/or 
its  individual  members  will  not  be  protected  from  influence  of  the  information  whose 
dissemination  or  whose  dissemination  limitations  are  provided  for  by  the  Constitution, 
and  due  to  uncontrolled  (not  disabled  immediately)  dissemination  of  such  information 
various values entrenched in the Constitution, inter alia human rights and freedoms, will 
not be protected and defended. 

Therefore  in  accordance  with  the  jurisprudence  of  the  Constitutional  Court,  the 
guaranteed by the Constitution rights of information and its dissemination are applied to 
the universal services as well to the degree they are related. 

2.2.16.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

In accordance with para. 2 of article 22 of the Law on Information all persons, except for 
the  cases  specified  in  this  Law  and  other  laws,  may  produce  and/or  disseminate 
information in the Republic of Lithuania. 

Restrictions  to  engage  in  this  activity  are  foreseen  only  for  the  state  and  municipal 
institutions  and  agencies  (except  for  research  and  educational  establishments),  banks 
and political parties. 

Even  though  the  law  prohibits  the  banks  to  be  producers  and  disseminators  of  public 
information, it does not foresee restrictions for the enterprises established by the banks 
to engage themselves in the media market. The advantage was taken of this drawback in 
real life when a broadcaster UAB Sporto komunikacijos9 was established, the controlling 
interest of which until 6 October 2010 belonged to UAB Ūkio banko investicinė grupė (a 
Lithuanian  bank);  or  when  34  per  cent  of  the  shares  of  the  company  Lietuvos  Rytas10, 
which  publishes  one  of  the  most  popular  daily  papers  in  Lithuania  Lietuvos  Rytas  was 
controlled  by  a  secondary  company  of  the  bank  Snoras  (which  went  bankrupt  in 
December 2011), UAB Snoras Media. 

8 

9 

10 

Ruling  of  the  Constitutional  Court  of  19  September  2005,  Case  No.  19/04,  available  at: 
http://www.lrkt.lt/dokumentai/2005/r050919.htm. 
RTCL decision No. KS-88 of 6 October 2010, available at:
http://www.rtk.lt/lt/lrtk_sprendimai/sprendimai/del_sutikimo_perleisti_uab_sporto_komunikacijos_akcijas 
Lithuanian Ministry of Culture, Ownership data on media organizations 2011 (Duomenys apie žiniasklaidos 
priemonių savininkus), available at:  
http://www.rtk.lt/lt/lrtk_sprendimai/sprendimai/del_sutikimo_perleisti_uab_sporto_komunikacijos_akcijas 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

In accordance with para. 2 of article 22 of the Law on Information only legal persons or 
legal persons established in the states of the European Economic Area and organisations 
which  have  no  legal  personality  as  well  as  branches  of  such  legal  persons  and 
organisations which have no legal personality established in the Republic of Lithuania and 
in other states of the European Economic Area may be engaged in licensed radio and/or 
television  programme  broadcasting  and/or  re-broadcasting  activities  in  the  Republic  of 
Lithuania. 

Persons  who  wish  to  engage  in  radio  and/or  television  programme  broadcasting  and/or 
re-broadcasting  activities  (except  for  broadcasting  of  radio  programmes  by  electronic 
communications  networks  the  main  purpose  of  which  is  not  broadcasting  and/or  re­
broadcasting  of  radio  and/or  television  programmes  as  well  as  broadcasting  carried  out 
by  natural  persons  for  non-commercial  purposes  by  such  networks)  must  obtain 
broadcasting and/or re-broadcasting licences.  

According to article 47 of the Law on Information, the Radio and Television Commission 
of Lithuania (hereinafter, RTCL) regulates and controls the activities of broadcasters and 
re-broadcasters  of  radio  and/or  television  programmes  and  providers  of  on-demand 
audiovisual media services falling under the jurisdiction of the Republic of Lithuania. 

RTCL issues the broadcasting and re-broadcasting licences in accordance with the Law on 
Information and the Rules for Licensing of Broadcasting and Re-broadcasting Activities11. 
These Rules are approved by Ministry of Culture on 1 April 2011 on the recommendation 
of the RTCL. Licences are issued by way of tender. 

It should be noted that according to para. 6 of article 31 of the Law on Information radio 
and  television  programme  broadcasting  activities  carried  out  by  the  LRT  (Public  Service 
Broadcaster) are not licensed. In order to ensure the broadcasting of the LRT radio and 
television  programmes,  the  RTCL  shall,  without  tender  in  order  of  priority  issue 
authorisations granting the rights equivalent to those granted by the licences. 

Article  402  of  the  Law  on  Information  foresees  that  providers  of  on-demand  audiovisual 
media  services  falling  under  the  jurisdiction  of  the  Republic  of  Lithuania  must  register 
with  the  RTCL  in  accordance  with  the  procedure  established  by  it  prior  to  commencing 
the provision of on-demand audiovisual media services. 

The Law on Information does not foresee any specific requirements for other kind of the 
media therefore general rules are applied for the press or internet web sites. 

- Media pluralism/ownership; competition law aspects 

The Law on Information does not include specific provisions on media concentration, but 
requires that when the owner of a controlling share package of a broadcaster changes or 
10 per cent of a broadcaster’s shares change hands, the broadcaster must get a written 
consent from the regulatory authority – the RTCL – article 22, Law on Information. 

Article  29  of  the  Law  on  Information  ensures  fair  competition  and  points  out  that  the 
State  shall  create  equal  legal  and  economic  conditions  for  fair  competition  among 
producers  and  disseminators  of  public  information,  except  for  producers  and/or 
disseminators  of  productions  of  violent  and  erotic  nature.  The  same  provision  of  the 
mentioned  Law  on  Information  stipulates  that  “a  dominant  position  in  the  field  of 

11 

Valstybės žinios (Official Gazette), 2011, No.44-2096, available at:

http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=396362.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

provision of information to the public shall be determined in conformity with the Law on 
Information and the Law on Competition”. 

According  to  Article  3  section  11  of  the  Law  on  Competition12,  as  last  amended  on  29 
September 2011, a dominant position means “the position of one or more undertakings 
in  the  relevant  market  directly  facing  no  competition  or  enabling  to  make  a  unilateral 
decisive  influence  in  such  relevant  market  by  effectively  restricting  competition”.  No 
investigations of the media market have been conducted to date. 

It  should  be  noted  that  the  Law  on  Competition  is  applicable  for  all  individuals 
independent  of  their  activities.  It  does  not  provide  for  any specific requirements  for  the 
media  in  the  field  of  competition,  therefore  general  provisions  of  the  law  are  applied  to 
concentration in the media market just as in any other sector. 

The Constitutional Court in its 21 December 2006 ruling13 stated that the legislator has a 
constitutional duty to establish such legal regulation and such restrictions that they would 
limit  the  possibilities  of  monopoly  or  too  obvious  domination  in  the  media  market.  In 
doing  this  the  legislator  operates  a  wide  range  of  various  limitation  means,  e.g.  to 
prohibit for one natural or legal person, who acts alone or with partners, to own a certain 
share  of  capital  of  public  information  means  or  a  certain  part  of  a  territory  or  audience 
share; to limit the number of licences for broadcasting radio and television programmes 
and the market size of the electronic communications channels (this applies to a person 
separately or together with other persons), etc. 

However,  such  ruling  of  the  Constitutional  Court  did  not  initiate  a  revision  of  either  the 
Law on Competition or the Law on Information regarding the limitation of concentration 
in the media. 

-	 Legal framework for psm; ability to fulfill their tasks 

The  activity  of  the  public  service  broadcaster  Lithuanian  National  Radio  and  Television 
(hereinafter, LRT) is regulated by the Law on Lithuanian National Radio and Television14 
(hereinafter,  Law  on  LRT),  which  the  first  time  was  adopted  on  8  October  1996.  It 
determines  the  rules  of  foundation,  control,  activity,  reorganization  and  liquidation  as 
well as duties, rights and liability of the LRT. 

The remit of the Lithuanian public broadcaster is defined in the Law on LRT. The LRT is 
obliged to: 

	  collect and publish information on the world and Lithuania; 

	  acquaint  the  public  with  the  diversity  of  the  world’s  and  Europe’s  culture  and  the 

foundations of the modern civilization; 

	  strengthen the independence and democracy of the Republic of Lithuania, 

	  create, cherish and protect the values of the national culture; 

12 

13 

14 

Valstybės žinios (Official Gazette), 2011, No.123-5815, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=407674&p_query=&p_tr2=2. 
Ruling of the Constitutional Court of 21 December 2006, Case No. 30/03, available at:
http://www.lrkt.lt/dokumentai/2006/n061221.htm. 
Valstybės žinios (Official Gazette), new wording 2005, No.153-5639, available at: 
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=404173. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

	  develop  tolerance  and  humanism,  nurture  culture  of  cooperation,  thinking  and 

language; 

	  strengthen the morality and public spirit of the society; 

	  develop the ecological culture of the country. 

It  has  to  be  noted  that  the  State  has  created  more  favourable  conditions  for  the  public 
broadcaster for its activity in comparison with the commercial ones. 

In  accordance  with  article  31.6  of  the  Law  on  Information  the  activity  of  LRT  is  not 
licensed. For safeguarding the broadcasting of LRT radio and television programmes, the 
RTCL  issues  authorizations  without  tender  on  the  priority  basis  to  broadcast  radio  and 
television programmes. Similar provision is laid down in the Law on LRT. 

It  is  necessary  to  note  that  exceptional  rights  were  secured  for  the  LRT  to  get  on  the 
digital  platform.  In  accordance  with  the  Model  of  Implementation  of  the  Digital 
Television15, adopted by the LR Government Resolution No. 1492 on 25 November 2004, 
all  commercial  broadcasters  were  to  participate  in  the  tender  for  the  right  to  broadcast 
their  programmes  on  the  digital  platform,  while  the  LRT  got  the  place  there  without 
tender on the priority basis for its two programmes. 

In addition, the amendment of article 5 of the Law on LRT16 adopted by the LR Seimas 
(Parliament)  on  30  June  2011  ensured  for  the  LRT  the  allocation  of  radio  frequencies, 
necessary to form one national digital terrestrial network. 

The  mentioned  amendment  provides  that  the  LRT  itself  has  to  announce  a  tender  in 
order to choose the transmission provider for the digital transmission service to transmit 
the  LRT  programmes  broadcast  on  the  digital  network.  The  tender  has  not  yet  been 
announced. 

In  accordance  with  the  mentioned  amendment  the  LRT  shall  have  to  refuse  the  two 
channels  (frequencies)  that  had  been  allocated  to  it  before  on  the  common  digital 
television platform. 

Besides that, the State guarantees financing of the LRT remit from the State budget as 
well as grants the right for the LRT to earn some funds from advertising. 

LRT being a part of a common media market, an issue has been raised not once by other 
participants  of  the  market  whether  the  exceptional  rights  the  LRT  enjoys  does  not 
infringe  the  principle  of  fair  competition  as  it  is  embedded  in  the  Constitution.  In  2006 
the  Constitutional  Court  in  its  ruling17  confirmed  no  conflict  in  providing  of  exceptional 
conditions for the implementation of the LRT remit with the Constitution. 

In 2006, a group of members of the LR Seimas (Parliament) applied to the Constitutional 
Court  with  the  question  on  constitutionality  of  LRT  having  a  priority  right  to  newly 
coordinated  electronic  communication  channels  (radio  frequencies)  for  its  programmes 
being broadcast without tender.  

15 

16 

17 

Valstybės žinios (Official Gazette), new wording 2011, No.155-7362, available at: 
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=415129. 
Valstybės žinios (Official Gazette), 2011, No. 91-4336, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=403303&p_query=&p_tr2=2. 
Ruling of the Constitutional Court of 21 December 2006, Case No. 30/03, available at:
http://www.lrkt.lt/dokumentai/2006/n061221.htm. 

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The Constitutional Court ruled that the legal regulation which provides a priority right for 
newly  co-ordinated  radio  frequencies  (channels)  on  a  non-tender  basis  for  the  LRT’s 
programmes  is  not  in  conflict  with  the  Constitution,  because  the  state  was  obligated  to 
create  favourable  conditions  for  the  LRT  activity  as  well  as  to  safeguard  the  public 
interest. According to this reasoning, the Constitutional Court concluded that the named 
provisions are not in conflict with the Constitution. 

The  members  of  the  Parliament  also  claimed  that  LRT’s  financing  model  (financed  from 
the  state  budget  and  at  the  same  time  granted  the  right  to  engage  in  commercial 
activity) contradicts the principal of fair competition (Article 46 of the Constitution), and 
furthermore, that such legal regulation violates the principle of equality (Article 29 of the 
Constitution).  They  argued  that  state  support  is  ensured  only  for  one  entity,  whereas 
other entities (private broadcasters) that carry out the same activity, do not receive any 
support from the State. 

The Constitutional Court pointed out that the State is under the constitutional obligation 
to  ensure  the  activity  of  the  LRT  and  to  assign  sufficient  funding  for  it.  Further,  the 
Constitutional  Court  noted  that  the  Constitution  allows  the  legislator  to  choose  the 
financing model of the LRT at its own discretion. The choice of the financing model was 
an issue of social, political as well as economical expediency depending exclusively on the 
competence of the legislator. 

The  Constitutional  Court  stated,  in  the  ruling,  that  the  legislator  had  the  right  to 
determine  by  law  the  authorisation  of,  as  well  as  the  restrictions  on,  advertising  in  the 
programmes of the LRT. The restrictions on advertising were a matter of legislation, and 
not  subject  to  constitutional  control.  The  Constitutional  Court  noted  that  the  legislator 
had  the  right  to  forbid  advertising  on  the  public  service  broadcaster  only  in  the  case 
where  both  public  resources  and  financial  potential  made  this  possible,  and  if  it  did  not 
affect the constitutional mission of the LRT. 

This ruling of the Constitutional Court, dated of 21 December 2006, is important for the 
Lithuanian audiovisual sector now too, because all the disputed legal norms still exist in 
the current Law on LRT. 

  “Pursuit of Core Activity” 

Article 9 of the Law on Information ensures the right to public criticism of the activities of 
the  state  and  municipal  institutions  and  officials.  Under  this  provision  every  person  has 
the  right  to  publicly  criticise  the  activities  of  the  state  and  municipal  institutions  and 
agencies as well as officials. Persecution for criticism shall be prohibited in the Republic of 
Lithuania.  

No  one  shall  be  forced  to  disseminate  information  relating  to  state  or  municipal 
institutions  and  agencies  as  well  as  other  budgetary  institutions,  except  for  the  cases 
specified by laws, as it is declared in para 2 of Article 5 of the Law on Information. 

In  accordance  with  article  7  of  the  Law  on  Information  in  order  to  ensure  freedom  of 
information,  it  shall  be  prohibited  to  exert  pressure  on  a  producer  or  a  disseminator  of 
public  information,  their  participant  or  a  journalist,  compelling  them  to  present 
information in the media in an incorrect and biased manner. 

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- Ordinary law safeguards for journalistic activity 

Additionally, Article 11 of the Law on Information prohibits to persecute a producer or a 
disseminator  of  public  information,  their  participant  or  a  journalist  for  the  published 
information  if  there  has  been  no  violation  of  the  law  in  the  course  of  production  and 
dissemination thereof. 

Article  8  of  the  Law  on  Information  foresees the  right  of confidentiality of the source of 
information.  According  to  this  provision  a  producer  or  a  disseminator  of  the  public 
information, their participant or a journalist have the right to keep the confidentiality of 
the  source of  information  and not to  disclose  it,  except  for the  cases  where,  by a  court 
decision,  it  is  necessary  to  disclose  the  source  of  information  for  vitally  important  or 
otherwise  significant  public  interests,  also  in  order  to  ensure  the  protection  of  persons’ 
constitutional rights and freedoms and the administration of justice. 

Paragraph 5 of article 80 of the Code of Criminal Procedure of the Republic of Lithuania18, 
as  amended  on  28  June  2007,  states  that  producers  and  disseminators  of  the  public 
information  and/or  the  owners  of  the  disseminators  as  well  as  journalists  may  not  be 
interrogated  as  witnesses  due  to  the  circumstances,  which  according  to  the  Law  on 
Information constitute the secret of the source of information, with the exception of the 
cases when those persons agree to witness themselves or by a court decision when it is 
necessary  to  disclose  the  source  of  information  for  vitally  important  or  otherwise 
significant  public  interests,  also  in  order  to  ensure  the  protection  of  persons’ 
constitutional rights and freedoms and the administration of justice. 

Article  801  of  the  mentioned  Code  (adopted  on  28  June  2007)19  foresees  that  only  the  
court may adopt the decision on disclosing the source of information. 

Only  one  case  is  known  (the  rulings  of  the  court  are  not  publicly  available)  when  the 
court obliged the journalist L. V. to disclose the source of information. This happened at 
the end of 2011 when the journalist published her article in one of the biggest Lithuanian 
daily  papers  on  the  corruption  in  courts,  breach  of  legal  norms,  subservience  of  the 
lawyers to prosecutors and authority members. 

The Law on Information ensures the accreditation of journalists. According to Article 12 a 
producer  and/or  disseminator  of  public  information  has  the  right  to  accredit  their 
journalists with state institutions, political parties, political organisations and associations 
as well as with other institutions by agreement between the parties. 

A  journalist  may  take  part  in  the  meetings  and  other  events  of  the  institution  or 
organisation  he  has  been  accredited  with;  he  shall  be  provided  with  verbatim  reports, 
minutes  and  other  documents  or  copies  thereof  subject  to  conditions  established  by 
mutual agreement.  

Foreign  journalists  accredited  with  the  Ministry  of  Foreign  Affairs  of  the  Republic  of 
Lithuania  shall  have  the  same  rights  to  collect  and  publish  information  as  Lithuanian 
journalists.  

In  Lithuania  an  administrative  liability  for  refusing  to  provide  information  to  the 
representative of the mass media or for hindering to perform the journalist‘s professional 

18 

19 

Valstybės žinios (Official Gazette), 2007, No.81-3312, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=301998. 
In the same place. 

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duty is foreseen. Article 2143 of the Code of Administrative Offences20, as last amended 
on 15 June 2006, foresees that a fine up to 1000 Lt (290 Euro) is applied to the heads of 
the state and municipality institutions and establishments in case they refuse to provide 
information,  except  the  cases  when  the  information  is  not  meant  to  be  published  in 
accordance with the LR laws.  

In  accordance  with  para.  3  of  article  42  of  the  Law  on  Information  producers  and 
disseminators  of  public  information  are  obligated  to  provide  persons  with  information 
(including the tapes of broadcast programmes) the publication of which, in the opinion of 
the  aforementioned  persons,  degrades  their  honour  and  dignity  or  damage  their 
professional reputation or other legitimate interests.  

- Specific positive content obligations 

The  positive  content  obligations  are  intended  for  broadcasters  only.  Positive  content 
obligations  include  minimum  quotas  of  European  and  independent  works  in  the 
programme’s  content,  limitations  on  the  exclusive  rights  for  sports  and  other  major 
events (article 38 of the Law on Information), and the right of reply in case of personal 
harmful or offensive reports (article 15 of the Law on Information).  

Without  the  mentioned  ones,  the  Law  on  Information  foresees  that  when  RTCL  issues 
broadcasting  and  re-broadcasting  licences,  priority  shall  be  given  to  persons  who 
undertake  to  produce  original  cultural,  informational  and  educational  programmes, 
ensure accurate and impartial presentation of information, respect a person’s dignity and 
right to privacy and etc. 

- Funding schemes for specifically desired content 

There are no obligations regarding this issue. 

- Political advertising and/or broadcasting time 

Dissemination of political advertising in the media is regulated by the Law on Funding of 
and  Control  over  Funding  of  Political  Parties  and  political  campaigns  (the  new  wording 
adopted on 15 September 2010).21 

In  accordance  with  the  Law  on  National  Radio  and  Television  (Article  5)  LRT  provides 
time  during  election  campaigns  for  the  candidates  to  the  post  of  the  President  of  the 
Republic  of  Lithuania,  political  parties  and  candidates  to  the  Seimas  (Parliament)  or 
Municipal  councils  in  accordance  with  the  conditions  and  procedure  established  by  the 
Laws on the Elections to the Seimas (Parliament) and Municipal Councils. 

It  has  to  be  noted  here  that  the  rules  on  publishing  political  advertising  in  the  media 
were changed not once during the last years. 

In  accordance  with  the  amendments  of  the  Law  on  Funding  of  Political  Parties  and 
Political  Campaigns,  and  Control  of,  which  were  adopted  on  10  June  2008,  the 
broadcasters  under  the  Lithuanian  jurisdiction  could  not  broadcast  video  and  audio 
advertising clips and films about political parties in their radio and television programmes 
at  all,  until  on  18  May  2010  the  LR  Seimas  (Parliament)  adopted  a  new  wording  of  the 

20 

21 

Valstybės žinios (Official Gazette), 2006, No.73-2759, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=279167. 
Valstybės žinios (Official Gazette), 2010, No.63-3091, available in English at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=416346. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Law on Funding of Political Parties and Political Campaigns, and Control of Funding, and 
under  this  amended  law  the  broadcasters  could  broadcast  video  and  audio  advertising 
clips  about  political  parties  in  radio  and  television  programmes  again.  Video  and  audio 
advertising  clips,  where  the  political  campaign  participants  introduce  their  political 
programmes or comments on topical questions to the society shall not be shorter than 90 
minutes of duration. 

The  amended  provisions  state  that  political  advertising  shall  be  marked  in  accordance 
with  the  procedure  laid  down  by  the  law  by  indicating  the  source  of  funding  and  shall 
visibly  be  separated  from  other  disseminated  information  during  the  period  of  the 
political campaign only, whereas the previous Law required the political advertising to be 
marked any time it was broadcast not relating it to the period of political campaign. 

It  should  be  noted  that  in  comparison  to  the  former  law  (of  2008)  the  amended  law 
liberalizes  the  requirements  for  the  dissemination  of  the  free  of  charge  political 
advertising.  In  accordance  with  the  provisions  of  the  amended  law  it  is  allowed  to 
disseminate  political  advertising  free  of  charge  any  time,  except  during  the  political 
campaign  period.  However,  one  exception  is  allowed,  according  to  which  political 
advertising  could  be  disseminated  for  free  in  the  debates  programmes.  Whereas  the 
former  law  stated  total  prohibition  of  the  dissemination  of  the  political  advertising  for 
free. 

- Codes of conduct and their organisational framing 

The  norms  of  professional  ethics,  which  have  to  be  adhered  to  by  producers  and 
disseminators  of  public  information  and  journalists  are  defined  in  the  Code  of  Ethics  of 
Lithuanian Journalists and Publishers (hereinafter – the Code)22, adopted by the meeting 
of the representatives of journalists and publishers’ organizations in April 2005.  

The  Code  is  comprised  of  7  chapters:  General  provisions;  Independence  of  Journalists 
and  publishers.  Transparency  of  their  activities;  Protection  of  personal  honour,  dignity 
and privacy; Professional solidarity and fair competition; Mutual Obligations of Journalists 
and  managers  of  editorial  boards  (Public  information  organizers);  Responsibility  for 
Violations  of  the  Code  of  Ethics  of  Journalists  and  Publishers;  Relations  of  this  Code  to 
other Codes of Professional Practice in the Field of Public Information. 

The Code states:  

“Respecting  the  human  right  to  obtain  truthful  information,  the  journalists  and  public 
information  organizers  shall  propagate  true  and  correct  news  as  well  as  a  full  range  of 
opinions. News and opinions shall be clearly identified as such. The journalists and public 
information  organizers  have  to  ensure  that  an  opinion  is  presented  fairly  and  ethically, 
without any distortion of facts or data (Articles 3, 4).” 

The journalists and public information organizers shall assess their information sources in 
a critical way, scrutinize facts with due diligence on the basis of several sources. When it 
is impossible to verify the truthfulness of information in a proper manner, the journalist 
and public information organizer may publish such information exclusively in cases when 
delayed  publication  thereof  would  cause  damage  to  the  public,  provided  that  the 
unverified nature of the published information is indicated (Articles 6,7). 

22 

The Code is available at: http://www.lzs.lt/lt/teises_aktai/etikos_kodeksas.html.  

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The  journalist  and  public  information  organizer  should  identify  the  source  of  his 
information. For this reason he has to obtain permission to refer to the informant's name. 
If  the  source  of  information  requests  a  journalist  not  to  disclose  his/her  name,  the 
journalist  and  public  information  organizer  has  no  right  to  disclose  it.  In  this  case  the 
journalist and public information organizer shall assume legal and moral responsibility for 
the published information (Article 15). 

When  inserting  information,  the  journalist  and  public  information  organizer  select  the 
information,  the  publishing  of  which  is  indeed  justified  by  the  public  interest  and 
information which satisfies human curiosity only (Article 16). 

The  journalists  and  public  information  organizers  shall  rectify  the  mistakes  and 
inaccuracies they have made that might insult particular persons without waiting for the 
insulted individuals to so request (Article 20). 

Every journalist and public information organizer shall be free and independent.  

The  journalist  shall  refuse  to  carry  out  assignments  of  a  public  information  organizer 
and/or his superior if such assignments contradict the national law, journalism ethics and 
journalist's  beliefs.  While  carrying  out  their  activities,  the  journalists  have  no  right  to 
assume  any  other  liabilities  but  professional  obligations  to  the  public  information 
organizer (Articles 24, 25). 

The  journalist  shall  not  have  the  right  to  publish  facts  about  an  individual's  private  life 
without his/her consent, except when they are related to a public person and these facts 
are  important  to  society  or  criminal  actions  are  envisaged.  The  journalist  and  public 
information  organizer  shall  uphold  the  presumption  of  innocence.  An  individual  may  be 
accused exclusively on the basis of an effective judgment or ruling of a court (Articles 36, 
37). 

The journalist and public information organizer must respect human rights and freedoms 
even in cases when an individual does not know or is unable to understand his/her rights. 
The  journalist  and  public  information  organizer  shall  not  abuse  the  weaknesses  and 
immaturity  of  an  individual,  non-understanding  of  his/her  rights  and  freedoms,  provoke 
individuals  to  commit  humiliating  acts  or  behaviours,  or  portray  them  in  situations 
humiliating to human dignity (Article 57). 

Article 71 of the Code foresees that the producer or disseminator of public information for 
the  violation  of  the  provisions  of  this  Code  could  be  assigned  to  category  of  public 
information  organizers  who  do  not  adhere  to  their  professional  ethics  by  the  Ethics 
Commission of Journalists and Publishers (hereinafter, the Commission of Ethics) . 

The  decisions  of  the  Commission  of  Ethics  are  public23.  It  is  a  collegial  self-regulatory 
body of producers and disseminators of public information. The Commission of Ethics as 
a  self-regulatory  body  performs  the  following  functions:  it  ensures  the  cultivation  of 
professional  ethics  of  journalists  and  examines  violations  of  professional  ethics 
committed  in  the  course  of  provision  of  information  to  the  public  by  journalists, 
producers of public information or responsible persons appointed by their participants as 
well  as  examines  disputes  between  journalists  and  producers  or  publishers  of  public 
information  regarding  violations  of  the  Code.  All  persons  may  apply  this  Commission  of 
Ethics with complaints (46 Article of Law on Information). 

23 

Decisions of the Commission of Ethics are available at its website,

http://www.lzlek.lt/index.php?lang=1&sid=371. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The Commission  of Ethics  in  its  decision  of  16  May,  2011  acknowledged  the  UAB  “Tele­
3”,  a  commercial  television  broadcaster,  as  a  producer  of  public  information  not 
observing professional ethics.   

The  broadcaster  appealed  to  the  Court  against  the  Commission’s  of  Ethics  decision. 
Vilnius  Regional  Administrative  Court  refuted  the  appeal  with  the  note  that  the 
Commission  of  Ethics  had  the  right  to  assign  the  broadcaster  to  the  category  of 
producers  of  public  information,  who  are  not  observing  professional  ethics.  The  Court 
justified  this  right  of  the  Commission  of  Ethics  because  the  Commission  of  Ethics  is  a 
self-regulatory  institution,  which  safeguards  self-regulation  in  the  community  of 
producers and publishers of public information. The provision of article 71.1 of the Code 
is  a  means of  moral  effect  for  the media  and  a signal  of  an  activity,  which  is  in  conflict 
with professional ethics. 

The  described  case  was  not  the  only  one.  In  2010  the  Commission  of  Ethics  had 
acknowledged  two  daily  newspapers  “Lietuvos  žinios”  and  “Šiaulių  naujienos”  as 
producers of public information, who are not observing professional ethics. 

The  means  of  public  information  is  acknowledged  as  the  one,  which  is  not  observing 
professional ethics, when it violates the Code not less than twice in one year’s period. 

The  provided  examples  show  that  the  mechanism  of  self-regulation  works  in  Lithuania 
and  that  self-regulatory  institution  is  active  in  supervising  the  compliance  with  the 
provisions of the Code. 

  Distribution Aspects 

- Access to frequencies 

The Communications Regulatory Authority shall submit to the RTCL information about the 
coordinated  radio  frequencies  (channels)  which,  in  accordance  with  the  plan  for  the 
assignment of radio frequencies for broadcasting and transmission of radio and television 
programmes,  are  assigned  to  broadcasters  and/or  re-broadcasters  of  radio  and/or 
television  programmes  in  possession  of  licences  issued  by  the  RTCL  granting  them  the 
right  to  set  up  and  operate  own  electronic  communications  networks  together  with 
information  about  the  basic  conditions  of  operating  electronic  communications  networks 
required  to  issue  broadcasting  and/or  re-broadcasting  licences.  Upon  receiving  the 
aforementioned  information,  the  RTCL  by  the  way  of  tender  or  without  it  shall  issue 
broadcasting and/or re-broadcasting licences in accordance with the procedure and terms 
established  by  the  Law  on  Information  and  the  Rules  for  Licensing  of  Broadcasting  and 
Re-broadcasting Activities. 

Access to frequencies for terrestrial transmission of broadcasting services is foreseen by 
the Law on Information and the Law on Electronic Communications, adopted on 15 April 
2004.24 

- Access to distribution networks and control of actual conditions 

The Postal Law establishes that the provider of the universal postal services shall ensure 
that  the  universal  postal  services  (including  the  distribution  of  the  press)  shall  be 

24 

Valstybės žinios (Official Gazette), 2004, No.69-2382, available at:

http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=415040.
 

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provided  continually  for  all  the  users  of  the  universal  postal  services  under  the  same 
conditions every working day and not less than five days a week. 

Article  8.5  of  the  Postal  Law25,  as  amended  on  20  December  2011,  provides  that  the 
tariffs  of  the  universal  postal  services  and  the  delivery  tariffs  of  the  periodical  press  to 
the  inhabitants  of  the  rural  areas  must  be  based  on  the  expenditure  of  the  provided 
service, transparent, non-discriminatory and available to all users of the postal services. 
In case the Government establishes the amount of those tariffs less than the expenditure 
of the provided services, the difference between the amount of the tariff and the service 
cost shall be covered by the Government in accordance with the set rules from the State 
budget  once  in  every  six  months.  The  provider  of  the  universal  postal  services  must 
submit  a  report  on  delivery  costs  and  expenditures  of  the  periodical  press  to  the 
subscribers of the rural areas to the Ministry of Communications and the Communications 
Regulatory Authority covering the six months and artificial year period. 

- Must-carry/must-offer rules for electronic media 

In  September  2010,  the  LR  Parliament  adopted  the  amendment  to  the  Law  on 
Information,  which  established  that  from  1  July  2011  only  all  the  encoded  national 
television programmes of the LRT remained on “must-carry” status. 

The RTCL may take a decision to exempt from the obligation to re-broadcast the encoded 
national television programmes of the LRT specified in para. 1 of article 33 of the Law on 
Information,  where  such  a  decision  does  not  limit  the  possibilities  of  the  user  to  view 
these programmes by the available technical means. 

At the request of the broadcaster and upon establishing the cultural or public value of a 
special  television  programme  broadcast,  the  RTCL  may  grant  it  the  must-carry 
programme status and provide that re-broadcasters of programmes must re-broadcast it 
free  of  charge.  Only  special  cultural,  educational,  scientific,  news,  sports  or  regional 
television  programmes  shall  be  recognised  as  must-carry  television  programmes.  When 
taking such a decision, the RTCL shall define the scope of re-broadcasting. 

- Role of platform operators 

Preparation  for  digital  switchover  began  in  2003  when  the  Lithuanian  Government 
adopted the Strategy for Distribution of Radio Frequencies and the Strategy of Allocation 
of  Radio  Frequencies 
for  Broadcasting  and  Transmitting  Radio  and  Television 
Programmes  (hereinafter  -  the  Strategy  on  Spectrum  Allocation)26,  which  foresaw  a 
tender  to  allocate  digital  frequencies.  Thus,  by  the  way  of  tender  four  national 
multiplexes  were  formed.  Analogue  switch-off  is  scheduled  for  29  October  2012.  So,  at 
present there are four multiplexes: two owned by a private telecommunications company 
Teo  LT,  and  two  owned  by  Lietuvos  radijo  ir  televizijos  centras,  the  state-owned 
transmission network operator. Each multiplex has ten channels. 

The competition for spectrum environment changed recently, when on 30 June 2011, the 
LR  Parliament  amended  the  Law  on  LRT.27  Specifically,  section  5  of  paragraph  5  was 
changed,  stating  that  LRT  should  be  granted  radio  frequencies  (channels)  sufficient  for 

25 

26 

27 

Valstybės žinios (Official Gazette), 2011, No.161-7618, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=415501. 
Valstybės žinios (Official Gazette), 2003, No. 32- 1333, available at:
http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=207608. 
Valstybės žinios (Official Gazette), 2011, No. 91-4336, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=403303&p_query=&p_tr2=2. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

one  terrestrial  digital  television  network  of  national  coverage.  Such  a  network  can  be 
used  only  for  broadcast  of  radio  and  television  programmes  produced  by  LRT,  and  it  is 
forbidden  to  use  it  for  other  commercial  activity,  or  retransmission  of  alternative  radio 
and television programmes. 

The number of programmes is fixed by the RTCL according to the request presented by 
the Board of the LRT. No other channel besides LRT will have its own digital broadcasting 
network. 

  Access to Information 

- Transparency of media ownership situations 

It  should  be  noted  that  there  are  certain  provisions  requiring  transparency  of  the 
ownership  of  the  media,  i.e.  media  organisations  must  report  about  their  owners  and 
governing  bodies.  Article  24  of  the  Law  on  Information  requires  that  producers  and 
disseminators  of  public  information  (not  including  those  licensed  by  the  RTCL)  shall 
submit  to  the  governmental  institution  (Ministry  of  Culture)  annual  data28  regarding 
shareholders  or  co-owners  of  the  enterprise  who  have  the  right  of  ownership  or 
administer at least 10 per cent of all the shares or assets.  

Similar provision of the Law on Information requires that the President of the Republic of 
Lithuania,  members  of  the  Seimas  (Parliament)  and  the  Government,  members  of  the 
municipal councils, civil servants of political (personal) confidence as well as heads of the 
state and municipal institutions and agencies must submit to the institution authorised by 
the Government according to its established procedure the data about the legal persons 
who  are  publishers  of  local,  regional  and  national  newspapers  and  magazines  or 
managers of the information society media of which they are participants. The institution 
authorised by the Government (Ministry of Culture) shall publish the received data on its 
website.  

Producers and/or disseminators of public information and their participants must publish 
in their media information about any sponsorship received if it exceeds the amount of ten 
base social benefits (in total 1300 Litas/377 euro), specifying the amount and provider of 
the sponsorship. 

- Accountability of public service media 

The Law on LRT states that the LRT Council annually accounts of its activity to the public 
in  the  press,  while  the  Council  chairman  annually  presents  a  report  of  LRT  activity  at  a 
Plenary sitting of the Seimas (Parliament). 

- Freedom of information laws 

The  Law  on  the  Right  to  Obtain  Information  from  State  and  Municipal  Institutions  and 
Agencies  guarantees  access  of  information  to  the  citizens  of  the  Republic  of  Lithuania, 
citizens of the states of the European Economic area, foreigners having the permission of 
residence in the Republic of Lithuania, Lithuanian republic legal persons or organisations 
registered  in  the  states  of  the  European  Economic  area  or  their  agencies  and  affiliates 
established in Lithuania. 

28 

Available at: http://www.lrkm.lt/go.php/lit/Visuomenes_informavimo_politika/206/6/179. 

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- Accessibility of products/services and distribution networks 

Analogue broadcasting in Lithuania will be switched-off on 29 October 2012. The owners 
of  digital  networks  (multiplexes)  are  technically  ready  for  digital  switch-over  and  are 
already broadcasting some of the programmes digitally. However, not all households are 
equipped with television sets able to receive digital programmes.  

The  Programme  for  the  Analogue  Terrestrial  Television  Switch-off  and  the  Development 
of Digital Television (hereinafter - the Programme, adopted by the LR Government on 24 
September 2008)29, requires that 95 per cent of the households with access to television 
are  able  to  see  programmes  delivered  by  cable  or  digital  terrestrial  television.  Another 
task  was  to  ensure  that  the  public‘s  expenses  related  to  the  switch-over  are  effectively 
reimbursed and that 95 per cent of the households are technically ready to access digital 
television. 

On  20  January  2010  the  Government  of  the  Republic  of  Lithuania  adopted  a  Resolution 
on the order of remuneration – not bigger than 100 Litas (29 Euro)30 for purchasing the 
equipment necessary for receiving digital television. 

In  accordance  with  the  mentioned  Resolution  of  20  January  2010,  only  families  and 
persons  of  low  income will  acquire  the  right  to  get  the  remuneration  for  purchasing  the 
equipment (set top boxes) for receiving digital television. 

The  right  for  such  remuneration  will  acquire  only  those  families  and  persons,  whose 
monthly income is less than 525 Litas (125 Euros) per capita. 

The means for remuneration will be allocated from the State budget and the people will 
get them from the local Municipality administration. 

A person, who applies for the remuneration has to provide the Municipality administration 
with  the  income  certificate,  the  request  for  the  remuneration  and  the  documents  of 
purchasing the digital television reception equipment. 

The remuneration process will start 6 months prior to the analogue television switch-off 
date (i.e. 29 April 2012) and will end after 3 months of the analogue television switch-off 
date (i.e. by 29 January 2013). 

The Law on Electronic Communications31 (chapter 5), as last amended on 28 June 2011, 
foresees the regulation of the universal services. According to the provisions of the Law 
the  following  universal  services  shall  be  provided  in  the  territory  of  the  Republic  of 
Lithuania:  publicly  available  telephone  services  at  a  fixed  location;  publicly  available 
telephone  services  provided  over  pay  telephones;  publicly  available  directory  enquiry 
services; accessibility of electronic communications services for disabled users. 

The  Communications  Regulatory  Authority  of  the  Republic  of  Lithuania  (RRT)  sets  the 
rules  for  the  provision  of  universal  services  regulating  their  scope,  quality  of  service 
requirements,  the  procedure  and  conditions  for  providing  such  services,  the  procedure, 
conditions  and  cases  for  imposition  of  universal  service  obligations  on  providers  of 

29 

30 

31 

Valstybės žinios (Official Gazette), 2008, No. 116-4416, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=386199. 
The  Resolution  of  the  Government  of  the  Republic  of  Lithuania  of  11  January  2012,  Valstybės  žinios 
(Official Gazette), 2012, No. 8-263, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=416690&p_query=&p_tr2=2. 
Valstybės žinios (Official Gazette), 2004, No. 69-2382, available at:
http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=415040. 

455 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
  
  
 
 
 
 
  
  
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

electronic  communications  services  as  well  as  the  procedure,  conditions  and  cases  for 
compensation of losses incurred in connection with the provision of services. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Article 49 of the Law on Information, as last amended on 30 September 2010, indicates 
that  the  Inspector  of  Journalist  Ethics  (hereinafter,  the  Inspector  of  Ethics)  acts  as 
Ombudsman.  The  Inspector  of  Ethics  is  appointed  for  a  five-year  term  of  office  by  the 
Seimas  (Parliament)  on  the  recommendation  of  the  Commission  of  Ethics.  The  main 
functions  of  the  Inspector  of  Ethics  are  following:  1)  investigate  the  complaints 
(applications) of the persons concerned whose honour and dignity have been degraded in 
the media; 2) examine the complaints (applications) of the persons concerned in relation 
to violation of their right to protection of privacy in the media; 3) examine the complaints 
(applications)  of  the  persons  concerned  in  relation  to  violation  of  processing  of  their 
personal data in the media; 4) exercise, within the scope of his competence, supervision 
over implementation of the provisions of the Law on the Protection of Minors against the 
Detrimental  Effect  of  Public  Information;  5)  assess  compliance  with  the  principles  of 
provision of information to the public set forth in this Law and other laws and legal acts 
regulating  the  provision  of  information  to  the  public  in  providing  information  to  the 
public;  6)  on  the  basis  of  the  conclusions  of  experts  (groups  of  experts),  assign  press 
publications,  audiovisual  works,  radio  and  television  programmes  or  parts  of 
programmes,  the  information  society  media  or  other  media  and/or  their  content  to  the 
categories  of  information  of  erotic,  pornographic  and/or  violent  nature  and  inform  the 
State  Tax  Inspectorate  under  the  Ministry  of  Finance  about  press  publications  of  erotic 
and/or violent nature; 7) on the basis of the conclusions of experts (groups of experts), 
establish whether public information published in the media incites discord on grounds of 
sex,  sexual  orientation,  race,  nationality,  language,  origin,  social  status,  belief, 
convictions or views. 

The  problem  is  that  the  Inspector  of  Ethics  acts  only  on  the  grounds  of  received 
complaints,  because  the  law  does  not  obligate  the  Inspector  of  Ethics  to  start  an 
investigation regarding the allegedly violated rights of a person on his/her own initiative. 

- Participation in media operators/(self-)regulatory bodies 

According to Article 47 of the Law on Information, the RTCL (who is the regulatory body 
for  the  activities  of  broadcasters  and  re-broadcasters  of  radio  and/or  television 
programmes  and  providers  of  on-demand  audiovisual  media  services)  consists  of  13 
members: one member is appointed by the President of the Republic, three members are 
appointed  by  the  Seimas  (Parliament)  on  the  recommendation  of  the  Committee  on 
Education,  Science  and  Culture  and  the  Committee  on  the  Development  of  Information 
Society  and  one  member  is  appointed  by  each  of  the  following:  the  Lithuanian  Artists’ 
Association,  the  Lithuanian  Filmmakers’  Union,  the  Lithuanian  Composers’  Union,  the 
Lithuanian  Writers’  Union,  the  Lithuanian  Theatres’  Union,  the  Lithuanian  Journalists’ 
Union,  the  Lithuanian  Journalists’  Society,  the  Lithuanian  Bishops’  Conference  and  the 
Lithuanian  Periodical  Press  Publishers’  Association.  Only  a  citizen  of  the  Republic  of 
Lithuania of good repute may be appointed as member of the RTCL. 

Under Article 46 of the Law on Information the Commission of Ethics (who is a collegial 
self-regulatory body of producers and disseminators of public information) consists of 15 
members:  with  one  member  delegated  by  each  of  the  following:  the  Lithuanian  Centre 
for  Human  Rights,  the  Lithuanian  Psychiatric  Association,  the  Lithuanian  Bishops’ 

456 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Conference, the Lithuanian Periodical Press Publishers’ Association, the Lithuanian Radio 
and  Television  Association,  the  Lithuanian  Cable  Television  Association,  the  Regional 
Televisions’  Association,  the  Lithuanian  Journalists’  Union,  the  Lithuanian  Journalists’ 
Society, the Lithuanian Journalism Centre, the National Radio and Television of Lithuania, 
the National Association of Creative Journalists, the National Association of Publishers of 
Regional  and  City  Newspapers,  the  Association  of  Communication  and  Advertising 
Agencies  and  the  Association  of  Internet  Media.  The  members  of  the  Commission  of 
Ethics are appointed for a term of three years. 

Under  the  Law  on  LRT  the  Lithuanian  public  service  broadcaster  has  its  own 
administrative  and  regulatory  body,  the  Council,  representing  the  public  interests.  It  is 
comprised of twelve members who are prominent individuals in the social, scientific and 
cultural  spheres:  four council  members  are  appointed  by the  LR  President  for  a term  of 
six years; four members are appointed by the Seimas (Parliament) (two members shall 
be appointed from the candidates of the opposition parliamentary groups); the following 
organisations appoint four members as their own representatives (one each) for a term 
of  two  years:  Lithuanian  Science  Council,  Lithuanian  Education  Council,  Lithuanian 
Creative Artists Association  and the Lithuanian Bishops’ Conference.  

Thus, from the composition of the self-regulatory institutions it is obvious that all of them 
are  comprised  of  various  public  organizations  and  in  this  way  the  participation  of  the 
public in the activity of those institutions is ensured. 

2.2.16.2.  Main Players in the Media Landscape 

The  Lithuanian  media  market  consists  of  over  160  radio  and  television  companies 
engaged in broadcasting and re-broadcasting activities. 

2.2.16.2.1. 

Radio 

The picture in the radio sector has been quite stable during a few years’ period with the 
VsI Lietuvos Nacionalinis Radijas ir Televizija (LRT), the public service broadcaster (PSB) 
with its 3 radio programmes being a clear leader among almost 50 private radio stations 
in Lithuania. 

radio  channels:  LR1,  Klasika 
The  public  service  broadcaster  operates 
(cultural/educational)  and  Opus  3  (since  2006).  All  radio  channels  are  broadcast  by  the 
Internet and are available at www.lrt.lt. 

three 

Besides  the  public  service  broadcaster,  there  are  47  commercial  radio  broadcasters, 
which  operate  51  radio  channels.  For  several  years  in  succession  the  most  popular 
commercial  radio  channels  were  the  following:  M-1,  Lietus,  Radiocentras  and  Russkoje 
Radio Baltija. It should be noted that all the top ones (M-1, Lietus, M-1 plius – national 
scope) are broadcast by the broadcasters, which are owned by the same owners (natural 
persons).  These  persons  also  own  two  local  radio  broadcasters,  which  broadcast  radio 
channels Laluna and Raduga. 

UAB Radiocentras controls the third popular national radio channel Radiocentras and local 
radio  channel  Clasic  Rock  FM.  This  company  also  is  the  owner  of  the  following 
broadcasters:  UAB  Muzikos  topai,  which  broadcasts  radio  channel  ZIP  FM, VsI  Kvartole, 
which  broadcasts  radio  channel  Relax  FM,  and  UAB  Rimtas  radijas,  which  broadcasts 

457 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

radio  channel  Russkoje  Radio  Baltija.  Radio  channel  Russkoje  Radio  Baltija  is  the  most 
popular channel within the citizens of the capital Vilnius with a 15,6% audience share.32 

Table 91 LT: Main radio companies 

Company 

Ownership Structure* 

Programme(s) 

VsI Lietuvos 
nacionalinis 
radijas ir 
televizija 

State – 100 % 

UAB M-1 

Ramunė Grušnytė – 100 % 

LR1 
Klasika 
Opus 3 

M-1 
M-1 Plius 

Market 
Share 2010 
autumn ** 

Market Share 
2011 
autumn *** 

18,5 % 

23 % 

12,9 % 

14,8 % 

Lietus 

14.2 % 

13,3 % 

UAB Radijo stotis 
Ultra Vires 

UAB 
Radiocentras 

R.Grušnienė 90,5 % 
G.Grušnytė  9,5 % 
UAB Trust Achemos grupė – 
90,3 % 
Mindaugas Pleskevičius – 7,6 
% 
UAB Radiocentras - 100 % 

Radiocentras 
Classic Rock FM 
(local) 

UAB Rimtas 
radijas 
* RTCL, http://www.rtk.lt/lt/radijas_ir_televizija/radijo_programos  

Russkoje Radio 
Baltija 

5,3 % 

7,9 % 

9,2 % 

7 % 

**Data  of  the  Research  Company  TNS  LT,  available  at  http://www.tns.lt/lt/naujienos­
radijo-auditorijos-tyrimas-2010m-ruduo  

***Data  of  the  Research  Company  TNS  LT,  available  at  http://www.tns.lt/lt/naujienos­
radijo-auditorijos-tyrimas-radijo-auditorijos-tyrimas-2011-m-ruduo 

2.2.16.2.2. 

Television 

In the television sector there are  28 commercial television broadcasters, who broadcast 
38 television channels. It should be noted that the Lithuanian public service broadcaster 
LRT has three national channels (LTV and LTV2) and LTV World (available via satellite). 
According  to  the  data  of  the  Research  Company  TNS  LT  in  December  2011  the  PSB 
market  share  was  about  10,8%.  The  Public  Service  Broadcaster  LRT  receives  70%  of 
financing from the state and the rest from commercial revenues. 

The  two  biggest  commercial  channels  TV3  and  LNK  have  been  competing  for  the  top 
position in recent years, while the public service broadcaster LRT and another commercial 
channel, BTV, compete for the third and fourth position in the rankings.  

Lietuvos rytas.TV, which entered the market in 2008 and broadcasts both via digital and 
analogue  platforms,  is  also  picking  up  and  in  December  2011  its  market  share  was  2,9 
%.33.  The  Lietuvos  rytas.TV  owner  is  UAB  Lietuvos  Rytas,  which  also  owns  one  of  the 
biggest and most popular daily papers in Lithuania, Lietuvos rytas. 

The  most  popular  channel  TV3  is  owned  by  the  Modern  Times  Group  Broadcasting  AB 
(Sweden)  and  has  an  audience  share  of  21  %  (December  2011).  The  same  group  also 
owns TV6 (available in Vilnius and via cable) with the audience share 2,9 %. 

32	 

33	 

Lt, 

http://www.tns.lt/lt/naujienos-radijo-auditorijos-tyrimas-radijo-auditorijos-tyrimas-2011-m­

TNS 
ruduo. 
Source:  TNS  LT,  http://www.tns.lt/lt/naujienos-tv-auditorijos-tyrimas-tv-auditorijos-tyrimo-rezultatai­
2011-m-gruodis. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

LNK  was  previously  owned  by  the  Swedish  Group  Bonnier,  but  since  2003  the  owners 
have changed to MG Baltic Media (80 % shares) and 20 % belongs to Amber trust S.C.A. 
(Luxembourg). LNK had over 17,2 % of the audience share (December 2011).  

Table 92 LT: Main Television Companies 

Company 

Ownership 
Structure* 

UAB Tele-3 

MTG  Broadcasting 
AB 

Programme(s)  Total Market 
Share 2010 
December** 
24,6 % 
2,7 % 

TV3 
TV 6 

Total Market 
Share 2011 
December*** 
21 % 
2,9 % 

UAB  Laisvas 
nepriklausomas 
kanalas 

ir  UAB  MG  Baltic 
Media - 80 % 
Amber 
S.C.A. – 20 % 
Lietuvos  State – 100 % 

Trust 

LNK 
TV1 
Info TV 
LIUKS! 
LTV 
LTV2 

18,9 % 
1,9 % 
0,2 % 
0,3 % 
10,4 % 
0,3% 

VsI 
nacionalinis 
radijas 
televizija 
UAB 
televizija 
* RTCL, http://www.rtk.lt/lt/radijas_ir_televizija/tv_programos 

Achemos grupė 

Baltijos  UAB 

Trust 

BTV 

ir 

5,3 % 

17,2 % 
2,3 % 
0,4 % 
0,5 % 
10,8 % 
0,6 % 

5 % 

**  TNS  LT,  http://www.tns.lt/lt/naujienos-tv-auditorijos-tyrimas-tv-auditorijos-tyrimo­
rezultatai-2010m-gruodis 

***  TNS  LT,  http://www.tns.lt/lt/naujienos-tv-auditorijos-tyrimas-tv-auditorijos-tyrimo­
rezultatai-2011-m-gruodis  

2.2.16.2.3. 

Press and publishing 

The  situation  in  the  press  media  market  is  similar  to  the  television  market:  two  front­
runners – Lietuvos rytas and Vakaro Žinios – and other dailies competing for their place 
among the top five.  

It  is  obvious  that  the  rapid  growth  of  internet  penetration  and  the  development  of  the 
digital  television  platform  have  had  an  impact  on  the  media  business  models.  The  last 
five years indicate the migration of print media to the internet. It is only natural that the 
competition between the Internet and the traditional print media will continue to increase 
in the future, thus the print media has to search for new ways to retain its audience.  

459 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 93 LT: Main publishers of newspapers 

Publishing 
companies 

Ownership 
Structure* 

Title(s) 

UAB 
rytas 

Lietuvos 

UAB Snoras Media - 34 
% 
G.Vainauskas  –  25,47 
% 
V.Strimaitis – 13,07 % 

Lietuvos Rytas 
Laikinoji 
sostinė 
(weekly) 

Naujasis  UAB Ateities dizainas –  Vakaro žinios 

Circulation 
2011 II 
half-year** 
55696 

Readership 
2010 
autumn *** 
33, 2 % 

Readership 
2011 
autumn **** 
30,4 % 

21541 

53231 

31,4 % 

25,6 % 

UAB 
aitvaras 

UAB 
Respublikos 
leidiniai 

75 % 
J.Tomkus - 15 % 
R.Tomkus – 10 % 
Vitas Tomkus – 75 % 
Justinas  Tomkus  -  15 
% 
Rytis Tomkus – 10 % 

UAB 
Media News 

Diena 

Baltijos  įmonių 

UAB 
finansai - 50,15 % 
UAB Stomas – 49,85 

UAB 
kraštas 

Šiaulių  UAB Ateities dizainas 

UAB 
investicija 

Respublikos 

Respublika 
Respublika 
(Russian 
version) 

Kauno diena 
Klaipėda 
Klaipėda 
(Russian 
version) 
Vilniaus diena 
Šiaulių kraštas 

9 % 

11 % 

7,9 % 

6,7 % 

21962 
6584 

21324 
5659 
5987 

4131 

12428 

5,2 % 

5,4 % 

* Data on the owners of the media means is published on the web site of the LR Ministry 
of Culture, 

http://www.lrkm.lt/go.php/lit/Visuomenes_informavimo_politika/206/6/179  

**  Data  on  the  newspaper  circulation  is  published  on  the  web  site  of  the  LR  Ministry  of 
Culture, http://www.lrkm.lt/go.php/lit/Visuomenes_informavimo_politika/206/6/179  

***  TNS  LT,  http://www.tns.lt/lt/naujienos-nacionalinis-skaitytoju-tyrimas-populiariausiu­
2010-rudens-periodo-leidiniu-penketukai  

**** 

TNS 

LT, 

http://www.tns.lt/lt/naujienos-nacionalinis-skaitytoju-tyrimas-tns-lt­

populiariausiu-2011-m-rudens-periodo-leidiniu-penketukai  

2.2.16.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The past five years saw rapid development of the Internet. Between 2005 and 2010, the 
number  of  internet  subscribers  in  Lithuania  almost  doubled,  from  34,3  per  cent  to  63,6 
per  cent  of  the  population  (2,065,000  people).  In  2011  over  51,6  per  cent  of  all 
householders has access to broadband Internet.34 

It  is  obvious  that  the  penetration  of  the  Internet  has  an  impact  on  the  development  of 
the online media. The online media market indicates different growth trends compared to 
the  traditional  media.  Media  sites  have  steadily  increased  their  audience.  They  also 
gradually  introduced  interactivity  and  new  forms  of  news  delivery,  such  as  video  and 
audio  reports  and  video  conferences.  As  a  result  of  these  developments,  by  February 
2012 five news portals were on the top among other most popular websites in Lithuania. 

34 

Data of the Lithuanian Department of Statistics, available at: 
http://www.stat.gov.lt/lt/catalog/list/?cat_y=2&cat_id=1 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 94 LT: Most popular websites in Lithuania* 

Website 

Average of visitors per week 

Average of visitors per day (workday) 

(during the period from 1 January to 5 
February 2011/2012) 

(during the period from 1 January to 5 
February 2011/2012 

delfi.lt 

lrytas.lt 

15min.lt 

balsas.lt 

alfa.lt 

1,006,727/1,287,133 

695,534/845,703 

502,917/749,169 

420,876/626,664 

466,6813/594,345 

382,567/471,976 

240,396/286,634 

156,687/235,638 

96,249/167,661 

134,235/146,595 

*  Data  of  the  Research  Company  TNS  LT,  of  6  February  2012  available  at 
http://www.tns.lt/lt/ziniasklaidos-tyrimai-interneto-tyrimas-tns-metrix-duomenys­
lietuvos-tinklalapiu-savaites-unikaliu-lankytoju-skaicius 

There are not many VOD service providers in Lithuania. According to the RTCL data of 9 
February  2012  there  are  only  four  registered  VOD  service  providers:  UAB  Mikrovistatos 
TV,  UAB  Penkių  kontinentų  komunikacijų  centras,  Teo  Lt,  AB  and  UAB  Kavamedia.  The 
list of the VOD service providers is available on the RTCL website www.rtk.lt. 

2.2.16.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

In  2011  there  were  46  cable  operators,  3  MMDS  operators  (multipoint  microwave 
distribution system), and 19 broadband operators (IPTV) in Lithuania.35 

With  the  rapid  development  of  the  broadband  networks  more  companies  expressed  the 
will  to  re-broadcast  programmes  via  such  networks.  15  IPTV  operators  were  already 
providing this service in 2010 and 19 in 2011. 

The  analysis  of  the  distribution  of  the  cable  TV  subscribers,  who  amount  to  372,249  in 
Lithuania36, makes it evident that the leading service providers in this field are UAB Vinita 
with 17 % of the market, UAB Balticum TV with 15 % and UAB Mikrovisatos TV – 10 %.  

It has to be noted that a tense competition can be remarked in this field which forces the 
operators  to  expand  their  services,  therefore  a  number  of  them  provide  universal 
services to the users as well. 

35 

36 

Source: RTCL, http://www.rtk.lt/lt/transliuotojai.  

RTCL annual Report 2010, http://www.rtk.lt/lt/komisija/ataskaitos_seimui.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 95 LT: Cable/Satellite network operators, IPTV&Internet Access Providers 

Cable/Satellite 
network 
operators, IPTV 
&Internet Access 
Providers 

UAB Vinita 

UAB Balticum 

UAB Mikrovisatos TV 

Services 

Ownership 
Structure* 

Market Share 
2010** 

P.Živatkauskas – 50 % 
UAB „Init“ – 50 % 

17 % 

5 local shareholders 

15 % 

2 local shareholders 

10 % 

Cable 
Internet 
Fixed telephone services 
Cable 
Internet 
Fixed telephone services 
Cable , 
MMDS 
IPTV 
Internet 
Fixed telephone services 

* RTCL, http://www.rtk.lt/lt/komisija/ataskaitos_seimui 

** RTCL, http://www.rtk.lt/lt/komisija/ataskaitos_seimui 

2.2.16.2.6.	 

Audience/Readership/Usage/Subscription;Advertising market shares (all 
media) 

The advertising market in media changes permanently. Data of the Annual Review Media 
Surveys  201037,  which  was  prepared  by  the  Research  Company  TNS  LT,  indicate  that 
there is a great competition among the advertising media players. 

Similarly to the previous year advertising in TV and press accounted for the major asset 
share  of  the  market  –  47  %  TV  and  29  %  printed  press  (18,5  %  newspapers,  10,5 
magazines). Advertising in radio amounted to 8 % in 2010.  

The  volume  of  the  television  advertising  has  increased  by  19,9  %  when  comparing  the 
results  of  the  year  2010  to  2009,  as  well  as  radio  advertising  by  10,9  %.  In  2010  the 
advertising income of the Internet increased by 29,9 % compared to 2009.  

The  situation  in  the  print  media  was  different.  There  was  a  decrease  in  the  volume  of 
advertising  in  the  print  media.  In  2010  advertising  space  shrank  by  10,7  %  in  both 
newspapers and magazines.  

37 

TNS LT, http://www.tns.lt/lt/ziniasklaidos-tyrimai-metine-ziniasklaidos-tyrimu-apzvalga 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 96 LT: Real Income of Media channels advertising in LTL million/ Factual 
advertising revenues of the media players38 

Channel 

2009 

2010 

Change 
2009 vs 
2010 

Share 
2010 

TV 

145 

153 

5.5% 

47.1% 

Newspapers 

Magazines 

Radio 

Outdoor 
Advertising* 

Internet 

Cinema 

Indoor TV 
Advertising** 

72 

36 

28 

23 

20 

1,1 

4.5 

60 

34 

26 

22 

25 

0.9 

3.7 

- 16.7% 

18.5% 

-5.6% 

10.5% 

- 7.1% 

8.0% 

- 4.3% 

6.8% 

25 % 

7.7% 

- 18.2% 

0.3% 

- 17.8% 

1.1% 

Total: 
* including outdoor video and billboard advertising  

- 1.5% 

324,6 

329,6 

100% 

** indoor TV advertising – screens at shopping centres and filling stations 

2.2.16.3.  Conclusion and Recommendations 

Considering  the  legal  environment  and  the  possible  influence  of  political  powers  on  the 
Lithuanian media, the conclusion can be drawn that the Lithuanian media is free. This is 
also confirmed by the index of the international freedom of the press published in 2012 
by the NGO “Freedom House”, according to which Lithuania is in the 40th to 42nd position. 

Having this conclusion of the „Freedom House“ in mind, it should nevertheless be noted 
that concrete actions have still to be taken in order to ensure and enhance the freedom 
of media. 

The  general  legal  environment  is  favorable  for  the  freedom  of  expression  in  Lithuania. 
Legislation and regulation ensures fair competition for all types of media. Licensing policy 
is fair and transparent; decisions taken by the regulators may be disputed in courts. The 
existing legislation has been applied to new types of media and in general it guarantees 
the conditions for the independent information and dissemination. 

However,  despite  that,  there  still  are  certain  fields,  where  legal  regulation  should  be 
revised and amended accordingly in order to ensure the freedom of media even better. 

One  of  the  issues  that  has  not  been  solved  yet  and  which  decreases  the  freedom  of 
media  ratings  is  the  lack  of  restrictions  on  ownership  and  concentration  of  the  media, 
which threatens the diversity of information content and pluralism of opinions. It should 
be  noted,  in  this  context,  that  there  are  no  specific  legal  provisions  that  would  limit 
media ownership or cross-ownership in Lithuania. Because of the lack of legal provisions 
regarding  media  ownership  there  is  significant  concentration  in  Lithuanian  media,  e.g., 
the  Achema  business  group  owns  the  television  channel  BTV  (broadcaster  UAB  Baltijos 

38 

Source: TNS LT, UAB. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

TV),  the  daily  Lietuvos  žinios  and  the  radio  station  Radiocentras  (broadcaster  UAB 
Radocentras);  the  Lietuvos  rytas  media  group  owns  the  daily  Lietuvos  rytas,  the 
television  channel  Lietuvos  rytas.  TV  (broadcaster  UAB  Lietuvos  rytas  televizija),  the 
website l.rytas.lt and the printing-house. 

So,  the  tendency  towards  horizontal,  vertical  and  diagonal  concentration  in  the  media 
markets creates a threat for the media outlets being used as tools in promoting business 
interests  instead  of  providing  independent  information  and  informational  analysis.  It 
should  be  noted  that  the  Law  on  Information  had  not  been  revised  in  relation  to  the 
regulation of media ownership in the last five years.  

Another  aspect  that  might  have  a  negative  impact  on  the  freedom  of  media  is  that  the 
provisions  regarding  the  restrictions  to  enter  the  media  market  are  not  working 
effectively enough. According to the existing legal regulation there are no restrictions to 
enter  the  media  market  for  the  banks’  subsidiary  companies.  The  fact  that  the  bank 
Snoras obtained 34 per cent of the shares in the UAB Lietuvos rytas, which owns a daily 
and  a  television  station,  reflects  the  mentioned  legal  imperfection.  This  could  be 
considered as a threat to diversity, as it is very likely that the news related to Snoras in 
all of the group’s media will be covered less objectively, in a more favourable light than 
before the acquisition of the shares.  

However  the  situation  in  the  nearest  future  may  change.  The  draft  amendments  of  the 
Law  on  Information39  concerning  the  restriction  to  enter  the  media  market  are  already 
prepared.  According  to  the  draft  provisions,  a  prohibition  to  enter  the  media  market  is 
applied  to  banks  as  well  as  to  their  owned  or  newly  established  companies.  If  this 
amendment  is  adopted  by  the  Parliament,  the  provision  shall  be  applicable,  however, 
only for the companies, which are established after the amendment comes into force.  

Still  another  issue  is  the  lack  of  guarantees  of  the  LRT’s  independence  against  the 
political  powers.  The  funding  of  the  LRT  from  the  state  budget  should  be  linked  with  a 
certain economic index in order for this funding not depending on the political climate in 
the Parliament each time, and such attitude should be enshrined in the Law on LRT. 

It should be noticed that the mechanisms of self-regulation in the Lithuanian traditional 
media work quite well; however, they are not sufficient in the field of Internet media. A 
closer co-operation is needed between the representatives of all kinds of media and self-
regulatory institutions due to the fact that there is a growing tendency for the traditional 
media to move to the Internet space. 

In  the  context  of  the  given  report,  it  needs  to  be  noted  that  the  legal  regulation 
established in laws on the discussed issues is general and it can create preconditions for 
appearance  of  such  legal  situations  in  the  future,  where  due  to  insufficient  legal 
regulation freedom of information will not be ensured and human rights and freedoms, as 
entrenched in the Constitution, will not be protected and defended to a sufficient degree. 

The media environment is changing very rapidly and it is obvious that changes in 
the  media  market  are  closely  linked  with  the  technological  developments.  So, 
from  time  to  time  it  is  necessary  to  revise  the  regulation  of  the  media  in  order 
for the legislation not lacking behind the progress of informational technologies. 

39 

The draft of the amendments of the Law on information is available at: 

http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=411889&p_query=&p_tr2=2.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

LUXEMBOURG
 

2.2.17.	 

Luxemburg 

2.2.17.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.17.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The Grand-Duchy of Luxembourg guarantees the freedom of expression to its citizens by 
virtue of Art. 24 of the Constitution, stating that1: 

“Freedom of speech in all matters and freedom of the press is guaranteed, subject to the 
repression of offenses committed in the exercise of these freedoms. No censorship may 
ever be introduced.” 

  Freedom to receive and to access information 

No specific constitutional provision is mentioned in the Fundamental Law. 

  Safeguards on regulatory authorities 

The independence of regulatory authorities is not guaranteed by the Constitution as such, 
but the Regulations (Règlements Grand-Ducal) concerning the organisation of the bodies 
created by the Loi 19912 «Loi modifiée du 27 juillet 1991 sur les medias électroniques» 
(Law of 27 July 1991 on Electronic Media)3 and based on this law as well as the Loi 1991 
itself foresee the independence.  

  Safeguards on “universal service” 

There  are  no  general  safeguards  on  universal  service  for  the  media,  but  again  only  a 
specific  provision  concerning  electronic  communications  in  the  law  on  electronic 
communication services of 2011 (see below).  

2.2.17.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The  Loi  1991  sets  up  different  categories  of  broadcasters  or  –  as  it  is  formulated 
nowadays according to the revision of 2010 – audiovisual media service providers (Art. 9 
to  23quater).  The  categories  range  from  broadcast  services  with  an  international 
impact/reach,  broadcast  services  aimed  at  a resident  audience  including  different  forms 

1 

2 

3 

Luxembourgish constitution, available from:  
http://www.legilux.public.lu/leg/. 
textescoordonnes/recueils/constitution_droits_de_lhomme/PAGE_GARDE.pdf (in French). 
This  law  was  amended  by Loi  du  08  avril  2011  (Mém.  A  –  69  du  12  avril  2011,  p.  1120)  and  Loi  du  17 
décembre 2010 (Mém. A - 241 du 24 décembre 2010, p. 4024) and Loi du 08 juin 2004 (Mém. A – 85 du 
08 juin 2004, p. 1202) and Loi du 02 avril 2001 (Mém. A – 42 du 17 avril 2001, p. 924). 
Link to all versions of the law under: 
http://www.legilux.public.lu/leg/a/archives/1991/0047/1991A09721.html?highlight=medias. 

465 


 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

of  radio  providers  depending  on  which  technology  they  use  for  dissemination,  satellite 
and cable systems and services as well as on-demand services. 

Most of these providers (e.g. international broadcast services according to Art. 9) need a 
licence  issued  by  the  government  after  an  obligatory  consultation  (however  with  the 
outcome  being  of  a  non-binding  nature)  of  the  Commission  indépendante  de  la 
radiodiffusion  (Independent  Commission  for  Broadcasting  (or,  as  in  the  report  of  2004, 
Independent  Broadcasting  Commission)).  The  concession  awarded  is  combined  with  a 
cahier  des  charges  (book  of  obligations)  which  can  define  further  obligations  especially 
concerning reporting of ownership changes or specific programme requirements. 

Some  electronic  media  services  are  only  under  a  notification  duty,  such  as  e.g.  purely 
internet-based  television  services  which  are  not  disseminated  by  other  means  (cf.  Art. 
23bis)  or  on-demand  services  (Art.  23ter).  Such  a  notification  scheme  also  exists  for 
audiovisual  media  services  from  third  countries  (i.e.  outside  the  European  Economic 
Area)  that  use  a  satellite  uplink  in  Luxembourg  or  (under  certain  conditions)  a 
Luxembourgish satellite capacity (Art. 23quater). 

Concerning the question of public service media which only exist to a very limited extent 
this  report  refers  to  the  answers  concerning  the  concrete  players  below  as  there  is  no 
general framework foreseen for public service media in all fields in the constitution or the 
relevant media legislation. 

There  is  one  public  service  media  provider  installed,  which  is  “Radio  100,7”,  the  socio­
cultural radio station in the sense of Art. 14 Loi 1991 with mission defined in a contract 
reaching over several years. 

For  television,  unlike  the  radio  sector,  there  is  no  public  service  entity,  but  the 
commercial  broadcaster  RTL  (via  the  entity  CLT-UFA)  has  contractually  agreed  with  the 
state  of  Luxembourg  in  its  licence  to  provide  public  service  content  for  the  citizens  and 
population of Luxembourg (more details below). 

Print publications can be produced and disseminated without notification to a public body.  

- Media pluralism/ownership; competition law aspects 

The original observation of the 2004 report (1.4) is still valid in that there are no media-
specific competition law provisions dealing with concentration on the media sector. There 
used  to  be  a  provision  in  the  old  Loi  1991  (Law  on  the  Electronic  Media)  before  it  was 
reformed  in  2010,  limiting  ownership  of  more  than  25%  in  any  radio  service 
disseminated  via  networks  to  one  per  concession  holder  (Art.  18  para.  2).  With  the 
amendment the provision was abrogated as this safeguard was no longer regarded to be 
necessary  for  enabling  a  competitive  framework  for  local  radio  programmes  (cf.  p.  26 
(concerning Art. 20 of the amending law) of the comments on the Projet de Loi 61454). 
Also, the regular legislation on competition5 does not contain any provisions with specific 
effect for the media sector. Evidently, the market surveillance rules (ex post control) for 
the  electronic  communications  networks  and  services  sector  in  transposition  of  the  EU 
law rules apply, as the Loi 2011 provides.  

For  all  licence  holders  the  above-mentioned  books  of  obligations  that  accompany  the 
concessions  can  contain  provisions  on  how  certain  information  should  be  presented 

4 

5 

http://www.chd.lu/wps/portal/public/RoleEtendu?action=doDocpaDetails&id=6145#.
 
Loi  du  23  octobre  2011  relative  à  la  concurrence,  Mém.  A  –  218  du  28.10.2011,  p.  3756,
 
http://www.legilux.public.lu/leg/a/archives/2011/0218/a218.pdf#page=2. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

respecting  “pluralism  of  ideas  and  freedom  of  information”  (cf.  Art.  10  para.  1  lit  c)  Loi 
1991).  In more  general  terms  the  Loi  1991  mentions  as  one  goal  to  be  reached  by  the 
law – by setting an adequate framework (cf. Art. 1 para. 2) – to highlight the culture of 
the country in the programmes.  

- Legal framework for psm; ability to fulfill their tasks 

There is only one specific public service media operator and that is the above-mentioned 
socio-cultural  radio  (Radio  100,7).  Its  remit  and  financing  is  –  as  requested  by  law  – 
based  on  a  multiannual  contract  between  state  and  organisation  (not  published).  The 
mission has been accomplished to date so the financing structure seems to function.  

In addition, for the sector of television and radio, CLT-UFA, the original monopoly licence 
holder for television and radio in Luxembourg and now subsidiary of the RTL group S.A., 
has taken responsibility to disseminate certain content which equates to a public service 
offer. In concrete terms the company has accepted in a framework agreement6 with the 
government  (last  prolonged  in  2007  until  2020)  to  screen  at  least  a  daily  radio  and 
television  programme,  the  latter  with  a  special  focus  on  information.  The  television 
service is not specifically produced for the whole length of 24 hours, but certain elements 
are  included  in  order  to  fulfil  the  minimum  programme  requirements,  such  as  e.g.  a 
special news programme per day, a list of events with exceptional importance for society 
that have to be covered etc. There are further details laid down concerning what kind of 
information shall be delivered, that fundamental principles such as pluralism of opinions 
are to be respected, that the relevant issues for Luxembourgish life are to be portrayed 
etc.7  The  company  does  not  receive  specific  funding  (such  as  e.g.  in  form  of  a  licence 
fee)  to  perform  these  duties,  but  it  is  a  service  offered  in  return  to  an  advantageous 
framework set by the government that allows a sufficient income to be reached with the 
channels  and  for  the  company  in  total.  As  in  reality  granting  the  concession  for  the 
television programme results in a monopoly, because the market is not large enough for 
a  competitor  of  noteworthy  size  (and  consequently  no  other  programme  of  a  similar 
scope  has  been  established  with  success)  the  advertising  revenue  possible  for  the 
television sector is directed to the RTL programme.  

Also, as a form of public service broadcaster one can mention Chamber TV, a television 
programme  in  the  responsibility  of  the  parliament  that  is  limited  to  disseminating  the 
parliamentary debates and some additional political background information, so is of very 
limited scope. 

- The role and functioning of regulatory authorities in these respects 

The Luxembourgish Loi 1991 (Law on Electronic Media) creates in its institutional chapter 
(art.  29  et  seq)  five  bodies,  of  which  the  following  three  are  worth  mentioning  in  this 
context8: 

1.  Service  des  médias  et  de  l’audiovisuel  (renamed  later  to  Service  des  médias  et  des 
communications, SMC) 

6 

7 

8 

http://www.mediacom.public.lu/medias/television/ 
concessions_programmes/concession_2007/ReglesdebaseSP.pdf. 
http://www.mediacom.public.lu/medias/television/ 
concessions_programmes/concession_2007/Engagements_Services_Publics.pdf. 
Further details can be found both in the Final Report as well as the Country Report for Luxembourg of the 
INDIREG-Study (based on contributions by the same expert as for this questionnaire; published under:
http://ec.europa.eu/avpolicy/docs/library/studies/regulators/final_report.pdf and  
http://www.indireg.eu/wp-content/uploads/Annex_II-_CountryTables_Luxembourg.pdf) as well as under  
http://www.mediacom.public.lu/institutions/Institutions_nationales/index.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

This “service unit” is a part of the governmental administration working for the minister 
responsible for the media (currently the Minister for Communications and the Media). As 
such, it is staffed with state employees that provide assistance to the minister, but also 
for  the  other  institutions  created  by  the  law  in  the  field  of  the  media.  In  addition,  the 
SMC  is  in  charge  of  maintaining  international  cooperation  including  the  working  groups 
on EU level. Although it is integrated into the regular administration, the SMC is regarded 
as having a special position by building bridges between the different parties involved in 
the media landscape. According to the Loi 1991 for certain concession holders there are 
government  commissioners  installed  (Art.  29  para.  2  lit  d),  monitoring  the  activities  of 
the companies. The SMC has “to assist the government commissioners charged with the 
monitoring  of  the  holders  of  concessions  or  permits,  the  Independent  Commission  for 
Broadcasting  created  by  Article  30  (…)”.  Although  the  law  does  not  define  what  extent 
this  assistance  amounts  to  and  whether  an  effective  control  of  the  obligations  can  be 
reached, in practice it is the SMC that is the government branch fulfilling the monitoring 
assistance competencies in addition to the commissioners themselves. 

2. Commission indépendante de la radiodiffusion (CIR) 

This independent commission (Art. 30) has inter alia responsibilities in the field of certain 
radio  programmes  as  well  as  advising  the  government  previous  to  any  granting  of 
licences  to  broadcasting  programmes.  It  is  fully  competent  to  supervise  the  respect  of 
the  book  of  obligations  under  articles  15  to  18  so  for  radio  service  providers  using  low 
power  transmitters,  local  radio  stations  and  networks  (cf.  art.  30  (2)),  however  not  for 
radio service providers using high power transmitters. For the first it is also the CIR that 
grants the licences or permits, other than in the majority of cases of electronic media in 
which it is the government. For all other licences issued, the CIR has to be consulted by 
the government before the competent minister issues in the name of the government a 
concession or permit to a media service provider. The CIR is composed of five members, 
one of whom is proposed by the Press Council. The nomination of the members comes in 
form of a so-called “arrêté grand-ducal” (which is a person-related form of a Règlement 
grand-ducal)  and  is  valid  for  five  years.  The  members  receive  an  allowance  covered  by 
the state budget and fixed by the government.  

3. Conseil national des programmes (CNP) 

The  organisation  of  the  National  Programme  Council  “Conseil  national  des  programmes 
(CNP)”, a body created by the Loi 1991 which is in charge of advising and assisting the 
government  in  the  monitoring  of  the  different  categories  of  audiovisual  media 
programmes as created by the law, is determined by Règlement 1992.9 The autonomy of 
the  CNP  is  already  safeguarded  by  Loi  1991,  which  in  Art.  31  para.  5  clarifies  that  the 
appointment of the president and two vice-presidents of the council remains in the hands 
of the members that choose them from within their circle; also, these may not be part of 
the governmental administration.10 

CNP which is of special relevance here, has several functions in connection with television 
and  radio  programmes  which  will  be  detailed  below.  The  CNP  has  a  maximum  of  25 
members who are sent as delegates from organisations representing groups active in the 

9 

10 

Règlement grand-ducal du 27 février 1992 fixant les dispositions sur le fonctionnement interne du Conseil 
National  des  Programmes,  créé  par  l’article  31  de  la  loi  du  27  juillet  1991  sur  les  médias  électroniques, 
Mém. A - 13 du 19.03.1992, p. 657: 
http://www.legilux.public.lu/leg/a/archives/1992/0013/a013.pdf#page=3. 
For more in-depth analysis cf. INDIREG-Study, published under:  
http://ec.europa.eu/avpolicy/docs/library/studies/regulators/final_report.pdf and  
http://www.indireg.eu/wp-content/uploads/Annex_II-_CountryTables_Luxembourg.pdf). 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

social  and cultural life.  The list of organisations entitled to send members to the CNP is 
fixed in a respective “arrêté grand-ducal”, the actual nominated persons are confirmed in 
a  “arrêté  ministériel  portant  nomination  des  members  du  Conseil  National  des 
Programmes”,  the  last  one  dating  from  17  September  2007.  Some  basic  procedural 
rules, such as the question of valid majorities in decision-making are to be found in the 
Règlement  which  additionally  grants  the  CNP  the  right  to  complement  the  Règlement 
with a set of internal rules that give more details on the way work is conducted.  

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The Loi 2004 («Loi sur la liberté d’expression dans les medias du 8 juin 2004» (Law on 
the freedom of expression in the media of 8 July 2004)11 in its current version provides in 
Art. 1 and 6: 

Article 1: “This law is intended to ensure the freedom of expression in the media.” 

Article 6: “(1) The freedom of expression referred to in Article 1 above includes the right 
to receive and seek Information, to decide how to communicate it to the public using a 
freely selected form and method and to comment and criticise it. (2) The public must be 
able to distinguish between the fact itself and the comment made on it.” The Loi 200412 
is  mainly  a  law  to  safeguard  the  work  of  professional,  i.e.  registered  journalists.  One 
should  point  out  that  the  registration  as  a  journalist  is  not  a  prerequisite  to  work  as  a 
journalist,  but  it  comes  with  a  number  of  privileges  that  are  only  accorded  to  such 
registered  professionals.  Also,  the  registration  process  only 
foresees  minimum 
requirements such as the applicant having to be of age, not been stripped of civil rights 
in  Luxembourg  according  to  the  relevant  laws  and  not  be  at  the  same  time  involved  in 
companies  or  activities  concerning  publicity/advertising.  In  effect,  the  registration  for 
being categorized as professional journalist constitutes no hurdle but in actual fact grants 
a strong status, both in view of the rights assigned as well as the public opinion as one 
can  rely  on  a  “checked”  list  of  journalists  that  is  also  transparent.13  The  procedure  for 
application of a journalist card, its handing out and withdrawal as well as other elements 
such  as  the  drawing  up  of  a  code  of  conduct  (see  below)  is  transferred  by  the  law  to a 
self-regulatory body, the Conseil de Presse (Press Council, cf. further Art. 23 et seq. Loi 
2004), which has civil personality.  

The  Loi  2004  provides  various  rights  for  the  media  and  its  professional  journalists. 
Professional journalists can refuse to allow information to be published under their names 
if changes have been made without their consent. This refusal cannot constitute a reason 
for being dismissed (Art. 4). Art. 6 provides for the right to receive and seek information, 
to  decide  freely  how  to  communicate  it  to  the  public  in  whatever  form  and  method,  as 
well as to comment and criticize  it. Sources are protected widely under Art. 7, whereas 
Art.  9  specifically  mentions  that  works  of  journalism  are  protected  as  intellectual 
property. In addition, the law creates a strong position vis-à-vis the publisher (Art. 4 and 
5). There are some general rules on journalistic work contained in Loi 2004, such as the 
obligation  to  separate  fact  and  comment  (Art.  6  para.  2).  The  law  further  includes 

11 

12 

13 

Published in a consolidated version in Mémorial 69 du 30.04.2010 page 1325/
http://www.legilux.public.lu/leg/a/archives/2010/0069/a069.pdf#page=3. 
This law was amended by: Loi du 27 juillet 2007 (Mém. A – 131 du 8 août 2007, p. 2330) and Loi du 11 
avril  2010  (Mém.  A  –  69  du  30  avril  2010,  p.  1324);  Link  to  all  versions  of  the  law  under 
http://www.legilux.public.lu/leg/a/archives/2004/0085/index.html. 
The  list  is  available  at  http://www.press.lu/journalistes/,  in  addition  an  overview  of  the  editors-in-chief 
http://www.press.lu/redacteurs_chef/.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

obligations  for  journalists  and  in  Art.  21  Loi  2004  a  provision  creating  liability  if  these 
provisions  are  violated.  The  provisions  aim  at  safeguarding  presumption  of  innocence, 
private  life,  protection  of  honour,  protection  of  minors  and  due  diligence  in  research. 
However,  for  each  of  them  there  are  exceptions  that  clarify  that  a  person  is  not  in 
breach,  e.g.  concerning  information  about  private  life,  if  inter  alia  it  is  a  quotation  by 
another person and the publication of this quotation is in the public interest. Also, there 
is no “culture” of claiming severe damages for reputation damages that would lead to a 
silencing  of  journalistic  work.  Finally,  in  recent  years  the  data  protection  law  has  been 
amended  to  include  a  privilege  for  the  press  in  Art.  9  Data  Protection  Law.14  This 
provision  safeguards  the  journalistic  processing  of  data  which  is  exempt  from  the  strict 
limitations under the General Data Protection Law. 

The  provisions  of  the  Loi  2004  formulate  the  obligations  in  a  way  that  the  published 
media  has  to  contain  certain  information.  The  definitions  of  Art.  3  no.  8-11  and  no.  3 
clarify  that  all  media  that  are  published  periodically  or  non-periodically  are  under 
responsibility  of  a  publisher/editor  as  defined  by  no.  3.  The  liability  provision  of  Art.  21 
clarifies this responsibility of the editor so the requirement to publish information applies 
to  all  media  that  are  made  available  to  the  public  by  a  publisher,  both  on  physical  and 
non-physical media, both periodical and non-periodical (although for the latter limited to 
the  obligation  of  Art.  62).  Only  media  published  by  a  concession  or  permit  holder 
according  to  Loi  1991  are  exempt  from  the  information  obligations  (Art.  69),  although 
they  are  also  required  to  have  the  information  mentioned  in  the  previous  articles 
available  at  any  time  for  disposal  to  the  public.  What  exactly  this  means  is  somewhat 
unclear,  especially  as  there  is  no  jurisprudence  available;  a  clarification  on  whether 
keeping  available  is  the  flipside  of  making  available  on  request  would  be  helpful.  In  a 
similar vein, the exact impact of the provision of Art. 6 Loi 2004 remains unclear. As was 
argued in the report 2004 (under 1.2) the introduction of this provision and the emphasis 
on the importance of access to information for the work of journalists makes it potentially 
applicable in disputes concerning a arbitrary decision to keeping information on hold. As 
far as information on its application is available, this remains unclear until today as it has 
not been argued in this sense before courts. 

- Specific positive content obligations 

The  Loi  1991  foresees  the  possibility  for  the  government  to  include  in  the  book  of 
obligations that accompanies licences certain minimum content obligations, such as e.g. 
foreseen  by  Art.  10  para.  1  lit.  c),  d)  and  e).  It  therefore  depends  on  each  individual 
concession  agreement  whether  or  not  content  obligations  of  more  general  or  specific 
nature  are  included.  As  mentioned,  this  is  the  case  concerning  the  RTL  radio  and 
television  programmes  that  have  a  minimum  content  requirement  concerning 
Luxembourgish issues, thereby fulfilling a public service remit. In addition, for the radio 
sector Art. 14 para. 3bis authorizes the state to conclude a multi-annual agreement with 
the  socio-cultural  radio  institution  (Radio  100,7)  defining  exactly  its  public  service 
mission. 

An example for a specific content obligation can be seen further in the book of obligations 
of DOK T.V., which is a television station open to all the public to use it for dissemination 

14 

Loi du 2 août 2002 relative à la protection des personnes à l’égard du traitement des données à caractère 
personnel  (General  Data  Protection  Act  of  Luxembourg),  Mém.  A  –91  du  18  Aout  2002,  p.  1836,  last 
amended by Loi du 28 juillet 2011, Mém. A – 172 du 10.08.2011, p.2938 ; after the previous amendment 
of 2007 a consolidated version was published/
http://www.legilux.public.lu/leg/a/archives/2007/0131/a131.pdf#page=11 

470 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

of their own documentaries, and which is obliged to screen programmes of quality, with a 
cultural,  information  and  diversity  orientation  and  respecting  the  specifics  of  the 
Luxembourg public e.g. in moral terms (cf. Art. 3 cahier des charges DOK T.V.). 

- Funding schemes for specifically desired content 

Concerning the print sector there is a specific law on aid granted to the printed press if 
certain conditions are fulfilled (Law of 3rd August 1998).15 The aim of the law is to reach 
the  whole  population  (language  aspect)  and  to  promote  specific  content  (information) 
that  covers  national  and  international  politics  as  well  as  economic,  social  and  cultural 
issues, under a certain limitation in the amount of advertising revenue generated by the 
publication. Also, the radio and television content requirements agreed with RTL for the 
specific  programmes  with  a  public  service  content  cover  these  topics.  However,  for  the 
latter there is no specific funding scheme. In addition, the government can request from 
RTL  to  transmit  certain  additional  content  on  television,  such  as  specific  events,  which 
then has to happen on the cost of the government.  

- Political advertising and/or broadcasting time 

Both  for  the  radio  and  television  programmes  offered  by  RTL  on  behalf  of  the  public 
service  agreement  between  the  government and  CLT-UFA  such  provisions  are  foreseen. 
In  the  radio  and  television  programmes  time  is  reserved  to  be  filled  by  the  political 
parties and in their responsibility especially in pre-election times.  

- Codes of conduct and their organisational framing 

The  Loi  2004  introduces  a  framework  for  self-regulation  according  to  which  a  press 
council  is  established  that  –  inter  alia  –  sets  up  a  “Code  de  déontologie”  (Code  of 
conduct)  with  indications  of  rights  and  obligations  of  journalists16.  The  underlying 
organisational framework is the creation of a Press Council according to Art. 23 et seq. of 
Loi 2004. One of the obligations of this Press Council is to create a code of conduct and 
ensure  its  publication,  as  well  as  introducing  a  complaints  procedure  in  which 
complainants can also refer to issues covered by the code and not only the law.  

- The role and functioning of regulatory authorities in these respects 

Concerning the fulfillment of the public service obligations both of CLT-UFA and the socio­
cultural radio the Loi 1991 empowers the above-mentioned National Programme Council 
(CNP)  to  monitor  the  content  of  these  programmes  also  in  view  of  their  special 
commitments.  The  provision  in  Art.  31  Loi  1991  does  not  only  assign  the  task  of 
monitoring programme content but in the case of the socio-cultural radio also to propose 
how a balanced content in the programme of that radio can be reached. The monitoring 
function  of  the  CNP  concerns  all  content  of  the  programmes,  however  not  the  other 
issues  of  the  broadcasts  such  as  advertisements,  as  follows  from  the  procedure  for 
sanctions  in  Art.  35,  namely  para.  2  and  2bis.  For  the  latter  as  well  as  generally  for 
assisting the CNP as well as the government Commissioners in their work, the Loi 1991 

15	 

16	 

or 
http://www.cnpd.public.lu/fr/legislation/droit-lux/doc_loi02082002mod_fr.pdf#pagemode=none) 
which  is  also  available  as  unofficial  English  translation  at  http://www.cnpd.public.lu/fr/legislation/droit­
lux/doc_loi02082002_en.pdf. 
Texte coordonné du 30 avril 2010 de la loi du 3 août 1998 sur la promotion de la presse écrite (Mém. A - 
81  du  23  septembre  1998,  p.  1592),  Mém.  A  –  69  du  30  avril  2010,  p.  1337, 
http://www.legilux.public.lu/leg/a/archives/2010/0069/a069.pdf#page=15. 
Attached 
law: 
an 
Loi 
http://www.legilux.public.lu/leg/a/archives/2010/0069/a069.pdf#page=2  on  p.  1339  et  seq.  or  to  be 
found at 

http://www.press.lu/upload/manager/files/codedeontologie1.pdf. 

reform 

annex 

2004 

since 

this 

the 

the 

as 

to 

of 

471 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
 
 
 
  
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

assigns  in  Art.  29  the  task  to  the  above-mentioned  SMC,  the  responsible  minister’s 
specially created service. According to Art. 30 and 35 para. 1bis Loi 1991 the CIR has full 
responsibility  of  monitoring  specific  categories  of  radio  programmes  that  fall  under  its 
scope. 

  Distribution Aspects 

- Access to frequencies 

The access to frequencies is regulated by Loi 1991 and a Grand-Ducal Regulation based 
on  the  law  defining  the  list  of  available  frequencies.  Assignment  of  the  frequencies 
happens  with  the  granting  of  a  licence  so  the  permit  holder  receives  the  allowance  to 
broadcast  and  also  the  technical  means  to  do  so.  Therefore,  the  responsibility  for 
granting  access  is  with  the  government  in  the  decision  for  a  licence.  Only  for  the 
allocation  of  frequencies  for  low-power  transmitters  the  responsibility  is  assigned  to  the  
CIR. 

- Access to distribution networks and control of actual conditions 

Access  to  different  forms  of  networks  for  dissemination  of  content,  e.g.  via  cable 
networks,  is  regulated  by  the  Loi  2011  in  Art. 22  et  seq.  As  this  law  transposes  the EU 
framework for electronic communications networks and services in the version of 2009 it 
follows  the  usual  regulation  in  this  field,  e.g.  concerning  the  possibility  for  the 
Luxembourgish  Institute  for  Regulation  (Institut  Luxembourgeois  de  Régulation  (ILR)  to 
react  to  a  lack  of  competition  in  the  market.  There  is  no  specific  safeguard  of 
dissemination means for printed press.  

- Must-carry/must-offer rules for electronic media 

There  are  no  must-carry  rules  established  for  specific  electronic  media  in  Luxembourg. 
However,  the  government  may  in  the  book  of  obligations  include  the  requirement  of 
concession  holders  e.g.  in  the  case  of  Luxembourgish  international  broadcast  services 
according to Art. 9 Loi 1991 to broadcast programmes of the socio-cultural radio (cf. Art. 
10  para.  1  lit.  e))  or  other  programmes  under  conditions  laid  down  in  the  book  of 
obligations.  Also,  for  the  different  categories  of  media  services  there  is  an  obligation  to 
place  the  facilities  free  of  charge  if  the  state  requires  so  for  the  transmission  of 
information  e.g.  relating  to  the  security  of  human  life.  For  the  specific  institutions 
concerned with public service content the above-mentioned must-offer obligations exist, 
which  are  partly  not  only  formulated  in  general  terms  in  the  agreement  between  state 
and  entity,  but  partly  also  in  an  explicit  list  such  as  the  list  of  exceptional  events  to  be 
covered in the Luxembourgish RTL programme.17 

- Role of platform operators 

The operation of platforms distributing electronic media content is also regulated by the 
Loi 1991 and based on a concession system. The law differentiates depending on the kind 
of  platform  concerned,  e.g.  whether  it  is  a  satellite  operator  or  cable  network  provider. 
As part of this concession the concessionaire can choose to whom he assigns capacities, 
but  there  is  an  obligation  to  inform  the  government  about  the  capacity  holders  and  – 
illustrated  for  the  example  of  a  Luxembourgish  satellite  system  –  the  government  may 

17 

Included is e.g. the live transmission of the Te Deum, cf.  
http://www.mediacom.public.lu/medias/television/concessions_programmes/concession_2007/ListeEvene 
ments_Excpetionnels.pdf.  

472 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

oppose specific contracts in view of the identity of the capacity holder (Art. 20 para. 5). 
Also,  the  government  has  the  right  to  include  in  the  book  of  obligations  of  the  satellite 
concessionaire  an  obligation  that  capacity  is  given  to  the  government  at  request  if 
needed  for  specific  purposes  (Art.  20  para.  7).  For  cable  networks  that  have  to  comply 
with  the  requirements  of  Loi  2011  in  general,  there  are  specific  provisions  in  Loi  1991 
further  detailing  their  obligations.  According  to  Art.  22  para.  4  and  5  only  television  or 
radio  services  that  either  have  a  concession  from  Luxembourg  or  in  the  case  of  foreign 
services have not been explicitly prohibited may be carried by the network. In addition, a 
regulation can be passed requesting that certain Luxembourgish services are transmitted 
as priority. There is currently no such Règlement, but there is an executing regulation for 
cable services that lays down the elements that can be covered in the book of obligations 
accompanying  the  concession  agreement.  Articles  23bis  and  23ter  concern  television 
broadcasts  disseminated  by  other  networks  than  satellite,  cable  or  terrestrial  as  well  as 
on-demand services. For these, only notification obligations exist. 

- The role and functioning of regulatory authorities in these respects 

For  the  field  of  electronic  communications  networks  and  services,  regulated  by  the  Loi 
201118,  the  independence  of  the  regulator  –  ILR  –  is  safeguarded  following  EU  law 
requirements by the law establishing it19, namely in  its Articles 1 and 2. This institution 
that  is  independent  of  the  government  and  equipped  with  certain  regulatory  powers  in 
the  management  of  electronic  communications  networks  and  frequency  management, 
plays  a  role  concerning  the  use  of  content  transportation  means.  However,  it  is  not 
directly involved in the regulation or supervision of any audiovisual media services. 

Concerning  the  dissemination  of  media  services  via  these  networks  the  supervision  is 
assigned  in  parallel  to  the  monitoring  of  the  content  services  with  a  Luxembourgish 
concession,  which  means  to  the  CNP  and  SMC.  The  role  of  the  supervising  CNP  can  be 
laid down in more detail in the book of obligations. 

  Access to Information 

- Transparency of media ownership situations 

The  Loi  2004  creates  specific  obligations  of  transparency  concerning  media  ownership 
information which can be regarded as one form of access to relevant information. 

The provisions of the law formulate the obligations in a way that the published media has 
to contain certain information. The definitions of Art. 3 no. 8-11 and no. 3 clarify that all 
media  that  are  published  periodically  or  non-periodically  are  under  responsibility  of  a 
publisher/editor  as  defined  by  no.  3.  The  liability  provision  of  Art.  21  clarifies  this 
responsibility of the editor so the requirement to publish information applies to all media 
that  are  made  available  to  the  public  by  a  publisher,  both on  physical  and non-physical 
media, both periodical and non-periodical (although for the latter limited to the obligation 
of Art. 62). Only media published by a concession or permit holder according to Loi 1991 
are exempt from the information obligations (Art. 69), although they are also required to 

18 

19 

Loi du 27 février 2011 sur les réseaux et les services de communications électroniques, Mém. A – 43 du 
08.03.2011, p 610:
http://www.legilux.public.lu/leg/a/archives/2011/0043/a043.pdf#page=2. 
Loi du 30 mai 2005 portant: 1) organisation de l'Institut Luxembourgeois de Régulation; 2) Mém. A – 73 
du 07.06.2005, p. 1162, modified several times, complete overview at
http://www.legilux.public.lu/leg/a/archives/2005/0073/2005A11621.html?highlight=institut%22luxembou 
rgeois%22regulation; An inofficial consolidated version to be found at: 
http://www.ilr.public.lu/ilr/legislation/Loi_du_30_mai_2005­
organisation_ilr_texte_coordonne_version_interne.pdf (last amendments of 2011 not included yet). 

473 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

have the information mentioned in the previous articles available at any time for disposal 
to  the  public.  What  exactly  this  means  is  somewhat  unclear,  especially  as  there  is  no 
jurisprudence  available;  a  clarification  on  whether  keeping  available  is  the  flipside  of 
making available on request would be helpful. In a similar vein, the exact impact of the 
provision  of  Art.  6  Loi  2004  remains  unclear.  As  was  argued  in  the  report  2004  (under 
1.2) the introduction of this provision and the emphasis on the importance of access to 
information  for  the  work  of  journalists  makes  it  potentially  applicable  in  disputes 
concerning a arbitrary decision to keeping information on hold. As far as information on 
its application is available, this remains unclear until today as it has not been argued in 
this sense before courts.  

Concerning  the  actual  ownership  information  that  has  to  be  disclosed  the  Loi  2004 
establishes the following conditions: the requested information has to be contained in the 
non-periodical  publication  itself,  though  the  place  is  not  predefined  (Art.  62).  For 
periodical  publications  the  rule  is  the  same,  i.e.  it  has  to  be  available  in  every  edition, 
with  some  additional  information  required  (Art.  63).  Art.  65  gives  further  precision  that 
publications  containing  an  index  also  have  to  include  the  place  where  to  find  the 
requested  information  in  the  index,  too.  The  shareholder  information  in  publications 
published by a legal entity has to be included in the first edition of every given year. No 
further  details  are  given  concerning  the  exact  meaning  of  the  requirement  for  the 
electronic media to have the same information available for the public, but obviously this 
requirement  does  not  contain  a  specific  disclosure  on  own  initiative  but  on  the  contrary 
only on request by the public. 

- Accountability of public service media 

As mentioned above, the monitoring of the public service content is regulated by the Loi 
1991 and the book of obligations or the agreements concluded between the state and the 
socio-cultural radio or CLT-UFA respectively. The CNP is charged with not only doing the 
usual  programme  monitoring  but  to  specifically  identify  whether  the  special  role  of  the 
socio-cultural  radio  is  fulfilled  and  do  proposals  if  a  better  way  of  fulfilment  is  possible. 
Disputes about these issues are to be arbitrated by the CIR (Art. 14 para. 5 phrase 3 Loi 
1991). The agreement with CLT-UFA foresees that there are regular exchanges between 
the responsible persons of the entity with the government Commissioner concerning how 
the expectations are met. Also, regular studies can be commissioned by the government 
on this question and possible outcomes are to be respected by the company.  

- Freedom of information laws 

Art. 1 of Loi 1991 provides in its first paragraph that it “is intended to guarantee that the 
people of the Grand Duchy have unrestricted access, in the field of electronic media, to a 
multitude  of  sources  of  information  and  entertainment,  guaranteeing  freedom  of 
expression and information, as well as the right to receive and transmit in the territory of 
the  Grand  Duchy  any  audiovisual  media  or  sound  services  that  conform  to  the  legal 
requirements.”  

Luxembourg has not yet created a legal basis for general public access to documents of 
government and state institutions. 

- Accessibility of products/services and distribution networks 

Article 48 of the law on networks and electronic communication services of 2011 provides 
that  every  final  user  has  the  right to  universal  service  in  electronic  communications,  i.e 

474 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  access  to  telephone  services  and  related  aspects,  but  –  as  foreseen  in  the  EU 
framework – not covering mobile telephony or internet access. 

In Luxembourg there is no legal basis for aid schemes to purchase reception devices, nor 
are  there  any  public  subsidies  or  commercially-offered  reduced  rates  for  subscription  to 
print  publications.  A  broadcasting  license  fee,  like  in  Germany,  does  not  exist  in 
Luxembourg. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

There is a specific complaints procedures laid down in Loi 1991 in case an individual is of 
the  opinion  that  a  media  service  is  in  non-compliance  with  the  law  or  executing 
regulations or the book of obligation. There is a notification procedure to the SMC, but in 
practice also the CNP provides on its website a complaint form and follows up on issues 
brought to its attention by the audience.  

- Participation in media operators/(self-)regulatory bodies 

There  is  no  specific  form  of  public  representation  on  bodies  of  media  service  providers 
foreseen  in  general.  However,  for  the  case  of  the  public  service  radio  station  (Radio 
100,7)  the  Conseil  d’Administration  is  partly  made  up  of  representatives  of  the  socials 
and cultural life of Luxembourg. Also, for different categories of electronic media service 
providers the Loi 1991 and the books of obligations that are agreed upon on granting the 
licence include provisions about government Commissioners that are appointed to assist 
the monitoring of the media service provider. Theses Commissioners typically participate 
with  an  advisory  participation  right  in  the  relevant  bodies  of  the  companies.  Although 
they  are  government-appointed,  indirectly  they  can  be  seen  as  representatives  of  the 
society. 

2.2.17.2.  Main Players in the Media Landscape 

The following market shares are based on the TNS ILRES Plurimedia study Luxembourg 
2010/2011, which was conducted by telephone among a random sample of 3,037 people, 
representative  of  the  population  residing  in  the  Grand  Duchy  of  Luxembourg,  aged  12 
years and more (15 years and more for the Press).20 

20 

Press 
at 
including 
http://www.tnsilres.com/cms/_tnsNewsAttachments/Communique_de_presse_etudeplurimedia_2011.pdf. 

its  main 

available 

findings, 

release 

about 

study 

the 

475 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.17.2.1. 

Radio 

Table 97 LU: Main radio companies 

Companies 

Ownership structure 

Main radio stations 

Total 
market 
share 
2010 

RTL 

RTL-Editpress 

Private undertaking, part of RTL 
group 

Private undertaking between RTL 
and Editpress (see below) 

RTL Radio Lëtzebuerg 

43% 

Eldoradio 

19.8% 

Groupe Saint-Paul 

Archbishopric of Luxembourg 

DNR, Radio Latina 

14% 

PSB  

Public undertaking 

RSC 100,7 

  4.8% 

Source:  TNS  ILRES  Plurimedia  study  Luxembourg  2010/2011,  http://www.tns­
ilres.com/cms/_tnsNewsAttachments/Communique_de_presse_etudeplurimedia_2011.pd 
f 

2.2.17.2.2. 

Television 

Table 98 LU: Main television companies 

Companies 

Ownership structure 

Main TV stations 

Total 
Market 
share 
2010 

RTL Group/ CLT-Ufa 

Private undertaking; details to be 
found via German media 
concentration Commission KEK-
website (http://www.kek­
online.de/db/) 

RTL Télé Lëtzebuerg, RTL 

43.4% 

ProSieben Sat1 Media 
AG 

Private undertaking, programmes 
from Germany; further details at 
KEK, see above 

ProSieben, Sat 1 

20.2% 

TF1 

ARD 

ZDF 

Source: Ibid. 

Private undertaking, programme 
from France 

TF1 

Public undertaking in Germany 

ARD 

Public undertaking in Germany 

ZDF 

16% 

15% 

12.5% 

476 


 
  
 
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.17.2.3. 

Press and publishing 

In  autumn  of  2007,  the  company  Editpress,  together  with  the  Swiss  Media  company 
Tamedia  (amongst  others  publisher  of  the  free  Swiss  newspaper  20  Minuten)  published 
Luxembourg’s  first  free  newspaper  called  L’Essentiel.  It  is  distributed  in  public 
transportation (train and bus stops). Groupe Saint Paul did the same a few months later 
with the newspaper Point 24. Both newspapers enjoy a strong market position, with 30% 
and 17.1% of market shares on the market for daily newspaper respectively. 

Table 99 LU: Main publishing houses 

Companies 

Ownership structure 

Main Titles 

Groupe Saint Paul 

Archbishopric of Luxembourg 

Luxemburger Wort, La Voix 
du Luxembourg, Point 24 

Total 
Market 
share 
2010 

66.5% 

(of which 
17.1% 
for Point 
24) 

Editpress, Tamedia 

private undertaking 

L’Essentiel 

30% 

Editpress 

OGB-L and FNCTT-FEL (trade 
unions)  

Tageblatt, Le Quotidien 

19.5% 

Editions Lëtzebuerger 
Journal 

Luxembourg 
Communist Party 

Source: Ibid. 

Liberal Democratic Party 

Lëtzebuerger Journal 

2.4% 

Luxembourg Communist Party 

Zeitung vum Lëtzebuerger 
Vollek 

0.7% 

477 


 
  
 
 
 
 
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.17.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Table 100 LU: Companies and their websites, market shares 

Companies 

Ownership structure 

Main online media 

RTL Group 

private undertaking 

www.rtl.lu 

Groupe Saint Paul 

Archbishopric of Luxembourg 

www.wort.lu 

Public administration 
sites 

www.etat.lu 

Total 
Market 
share 
2010 

13.9% 

8.2% 

7.9% 

Editpress, Tamedia 

private undertaking 

www.lessentiel.lu 

5.3% 

RTL Group 

private undertaking 

RTL Télé Lëtzebuerg via  
Internet 

1.7% 

Source: Ibid. 

2.2.17.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Market shares are not available. A list of all Internet services providers that are registered 
with  the  IRL  in  accordance  with  the  notification  requirement  is  regularly  updated  and 
publicly available.21 

Table 101 LU: Providers of non-linear audiovisual media services 

Companies 

Ownership structure 

Main service 

Entreprise des Postes 
et 
Télécommunications 

Private undertaking, but with 
Luxembourg State as sole 
shareholder 

IPTV - Télé vun der Post 
Internet access provider 

Eltrona Interdiffusion 
SA 

Private undertaking 

Numericâble 

Private undertaking 

iTunes S. à r.l. 

Private undertaking 

VOD 

VOD 

VOD 

Source: 
2012, 
http://www.mediacom.public.lu/medias/television/concessions_programmes/liste_conces 
sions.pdf 

concessions 

février 

SMC, 

liste 

21 

http://www.ilr.public.lu/communications_electroniques/registrepublic/ 
operateurs130412.pdf. 

478 


 
  
 
 
 
  
 
 
 
 
  
 
 
 
 
 
 
 
                                                 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.17.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

With  introduction  of  the  Loi  1991  a  Commission  was  set  up  that  has  the  function  of 
overseeing  the  impact  the  electronic  media  have  on  the  “traditional”  media  markets  by 
monitoring  changes  in  the  advertising  revenues  (Art.  34  para.  4).  In  order  to  fulfil  this 
function the available advertising revenues and the division between the different media 
sectors are regularly established on behalf of the SMC.22 

Table 102 LU: Advertising market shares 

Advertising (in billion 
EUR) 

Total 2010 in EUR 

Total Market share 2010 

Newspapers 

Radios 

Television 

Weekly newspapers 

€81,999 

€27,992 

€14,764 

€16,180 

48.8% 

16.6% 

8.8% 

9.6% 

Source: SMC, http://www.mediacom.public.lu/medias/marche_publicitaire/index.html 

2.2.17.3.  Conclusion and Recommendations 

The Luxembourgish media landscape is characterized by a “natural” diversity that results 
in  a  remarkably  wide  offer  of  different  media  content  to  the  population.  This  holds  not 
only true for internationally accessible content via the internet like elsewhere but also for 
the traditional broadcasting market in which a significant share of audience both for radio 
and television directs itself at least in part to “incoming” signals especially from the offers 
in the neighbouring countries. For the press sector, the fact that there is more than one 
nationally  significant  publishing  house  involved  –  taking  into  consideration  their  political 
affiliation this is likely to remain so for the future – leads also to a selection of daily and 
weekly newspapers and journals with news content (in different languages) that one may 
not  necessarily  expect  in  view  of  the  market  size.  Certainly,  the  subsidies  for  the  press 
sector as well as the formal protection of “professional journalists” also play an important 
role  for  safeguarding  this  width  irrespective  of  possible  limitations  in  depth  and 
broadness  of  topics  covered  due  to  limitations  such  as  the  size  of  the  market  including 
the closeness of relevant players on the political arena or the scale limitations for having 
international  correspondent  networks.  Not  taking  into  consideration  the  very  limited 
scope of content in the daily free newspapers available, the establishment of two players 
in  this  area  has  further  broadened  the  selection  of  sources  used  by  the  readers  in 
Luxembourg. The presence of a large number of expats mainly in the capital contributes 
to an easy access to international press titles.  

Evidently,  and  again  accountable  to  the  limited  size  of  the  national  market,  specifically 
produced  content,  e.g.  in  the  national  language  Lëtzebuergesch,  is  limited  and  mainly 
available due to incentives created by the state, such as the multi-annual agreement with 
CLT-UFA  to  provide  a  public  service  content  on  its  radio  and  television  channels  or  by 
creating  the  public  service  radio  programme.  As  a  result  of  the  assignment  of  a  public 
service function to a commercial operator and in combination with the amount of licences 
for  internationally  broadcast  programmes  of  the  RTL  group  issued  by  Luxembourg,  this 

22 

Cf. the complete current tables at:  

http://www.mediacom.public.lu/medias/marche_publicitaire/index.html. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

operator  continues  to  have  a  dominant  position  in  the  internal  market  of  Luxembourg, 
but has to live up to the above-mentioned situation of a high competition of “incoming” 
broadcasts. 

Whether  the  situation  on  the  media  market  in  general  would  be  very  much  different  if 
there  had been  specific  competition  law  instruments  previously,  can be  doubted,  as  the 
economic  constraints  of  the  market  allow  little  space  for  additional  activities,  as  can  be 
seen by the failed attempt of setting up a national competitor in the broadcasting sector. 
Obviously, the limitations are not comparable in the online sector and here both specific 
on-demand services as well as numerous Luxembourgish information websites have been 
created. 

In  view  of  the  legal  framework,  the  past  decade  has  seen  significant  changes,  partly 
initiated  by  new  or  amended  EU  legislation,  partly  because  of  the  enactment  of  a 
modernized press law in 2004 and its subsequent amendment in 2010. The latter change 
re-introduced  the  protection  of  the  title  “professional  journalist”  and  the  connected 
rights.  Also,  the  work  of  the  Press  Council  in  the  past  years,  though  quite  limited  in 
numbers  with  roughly  three  dozen  reported  cases  so  far,  has  contributed  to  enhancing 
the  Code  of  Conduct  concerning  the  work  of  journalists.  The  Loi  1991  concerning 
electronic  media  (in  view  of  the  EU  Audiovisual  Media  Services  Directive)  and  Loi  2011 
(in  view  of  the  original  and  reformed  EU  Framework  for  electronic  communications 
networks  and  services)  have  set  a  completely  overhauled  regulatory  approach  for 
broadcasting  and  new  media  services  including  the  networks.  This  will  be  further 
amended  in  the  near  future  when  a  planned  law  on  the  reform  of  the  supervisory 
structure will probably merge some of the bodies involved in the monitoring of electronic 
media. 

The focus of the Luxembourgish government on creating competitive and advantageous 
surroundings for ICT companies will presumably continue to attract a diversity of players 
to the Luxembourgish market which in turn can also contribute to the diversity of content 
available.  Certainly,  the  legislative  framework  and  its  application  in  practice  takes  into 
consideration  the  specifics  of  the  Luxembourgish  market  and  tries  successfully  to 
guarantee that existing content providers, which play an important role in the provision 
of information to Luxembourgish citizens and the population, can continue to do so in the 
future. 

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2.2.18.	  Malta 

MALTA 


2.2.18.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.18.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

As already the study in 2004 indicated and extended, the Constitution of Malta contains a 
provision  guaranteeing  freedom  of  expression,  including  freedom  to  receive  and  to 
communicate ideas and information without interference, in Article 41.  

The  entire  text  of  Article  10  of  the  ECHR  has  been  incorporated  into  Maltese  Law, 
respectively  in  Article  10  of  the  First  Schedule  to  the  European  Convention  Act,  and  is 
directly enforceable by Maltese Courts.  

  Freedom to receive and to access information 

Freedom to access information is not explicitly endorsed by the Constitution.  

  Safeguards on regulatory authorities 

In Article 118, the Constitution establishes the Broadcasting Authority and in Article 119 
it sets out its functions.  

  Safeguards on “universal service” 

Neither  the  Constitution  of  Malta,  nor  the  Maltese  case-law  contains  any  provision  on 
universal service. 

2.2.18.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

In  so  far  as  the  broadcasting  media  are  concerned,  Articles  10(1),  11(1)(a),  16I  of  the 
Broadcasting Act are relevant. Article 10(1) provides that ‘Except as provided in this Act 
and  in  any  other  law,  freedom  to  broadcast  and  to  receive  broadcasts  is  guaranteed’; 
article 11(1)(a) states that ‘the principles of freedom of expression and pluralism shall be 
the  basic  principles  that  regulate  the  provision  of  broadcasting  services  in  Malta’  and 
Article 16I provides that ‘Except as provided in this Act and in any other law, freedom to 
broadcast and to receive broadcasts is guaranteed.’  

- Licensing schemes; remit psm; notification for print publications 

The  Broadcasting  Act  regulates  the  licensing/registration  for  commercial  broadcasting 
stations, public service broadcasting stations, general interest broadcasting stations, and 
the  providers  of  online  services.  The  public  service  broadcaster’s  radio  and  television 
broadcasting  stations  are  licensed  by  the  Minister  responsible  for  broadcasting.1 

1 

Article 10(4C) of the Broadcasting Act. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Commercial  broadcasters  are  licensed  by  the  Broadcasting  Authority,2  general  interest 
objective  broadcasting  stations  are  licensed  by  the  Broadcasting  Authority  (except  with 
regard to stations owned by the public service broadcaster which continue to be licensed 
by  the Minister  responsible  for  broadcasting)3  and  the  notification of  providers  of  online 
services is made to the Broadcasting Authority.4 In addition, the Broadcasting Authority 
also licences satellite radio5 and satellite television6 and community radio services.7 

The Constitution of Malta, in Article 41 dealing with freedom of expression, provides that 
any  person  who  is  resident  in  Malta  may  edit  or  print  a  newspaper.  However,  the 
Constitution allows Parliament to enacts laws: 

“(a)  prohibiting or restricting the editing or printing of any such newspaper or journal by 

persons under twenty-one years of age; and 

(b)	 

requiring any person who is the editor or printer of any such newspaper or journal 
to  inform  the  prescribed  authority  to  that  effect  and  of  his  age  and  to  keep  the 
prescribed authority informed of his place of residence.”8 

The  Press  Act  further  supplements  the  Constitution’s  provision  by  allowing  any  person 
resident  in  Malta  above  the  age  of  18  years  to  edit  a  newspaper;9  to  register  with  the 
Press  Registrar  in  the  case  of  newspapers;10  and  obliges  such  person  to  deliver  a  free 
copy  of  a  newspaper  to  the  Press  Registrar,  Attorney  General  and  Commissioner  of 
Police.11 

- Media pluralism/ownership; competition law aspects 

There  are  no  anti-concentration  rules  in  Maltese  Media  Law  which  apply  to  the  print 
medium  or  to  the  new  media.  In  the  latter  two  cases,  the  matter  is  regulated  by 
competition law. Anti-concentration rules are found only in the Broadcasting Act, Article 
10,  with  regard  to  the  broadcasting  media.  This  provision  allows  a  company  to 
concurrently own, control or be editorially responsible for more than one nationwide radio 
service and one nationwide television service, except in the following cases: 

(a)  only one nationwide radio service may be licensed on the FM frequency to the same 

organization, person or company;12 

(b)  not  more  than  two  generalist  nationwide  television  services  may  be  licensed  to  the 

same organization, person or company;13 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11	 

12 

13 

Article 10(4A)(b) of the Broadcasting Act. 

Article 10(4A)(a) of the Broadcasting Act. 

Article 16O of the Broadcasting Act.
 
Article 10(4)(d) of the Broadcasting Act.
 
Article 10(4)(e) of the Broadcasting Act.
 
Article 10(4)(c) of the Broadcasting Act.
 
Article 41(3) of the Constitution of Malta.
 
Article 34 of the Press Act. 

Article  35  of  the  Press  Act.  This  requirement  applies  also  to  editors  of  broadcasting  media  even  though
 
these  media  might,  in  addition,  need  a  licence  from  (or  in  the  case  of  on-demand  audiovisual  media 
services to notify) the Broadcasting Authority. 
Article  37  of  the  Press  Act.  No  such  requirement  is  made  for  the  broadcasting  media  or  for  on  demand 
audiovisual media services as Article 43 of the Press Act does not extend the provisions of Article 37 of the 
same enactment to the broadcasting media/on-demand audiovisual media services. 
Article 10(6)(a) of the Broadcasting Act. 
Article 10(6)(b) of the Broadcasting Act. 

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(c)  the  same  organisation,  person  or  company  may  not  own,  control  or  be  editorially 
responsible  for  more  than  one  nationwide  radio  or  television  service  predominantly 
transmitting news and current affairs;14 

(d)  the  same  organisation,  person  or  company  may  not  own,  control  or  be  editorially 

responsible for more than one community radio service;15 

(e)  any  organisation  which  owns,  controls  or  is  editorially  responsible  for  a  nationwide 
radio  service  or  a  nationwide  television  service  or  a  satellite  radio  service  may  not 
own, control or be editorially responsible for a community radio service.16 

On  the  other  hand  local  councils  may  not  own,  control  or  be  editorially  responsible  for 
any broadcasting service (including a community radio service).17 

The  ordinary  competition  law  applies  in  so  far  as  media  ownership  is  concerned.  There 
have been no cases of relevance to this study which can be reported upon. 

- Legal framework for psm; ability to fulfill their tasks 

There  is  no  provision  in  the  Broadcasting  Act  which  establishes  a  legal  framework  for 
public  service  media  operations,  whether  broadcasting  or  online.  The  Broadcasting  Act 
does  state  that  all  government  broadcasting  should  be  carried  out  through  a  company 
owned  by  Government  but  stops  short  from  setting  out  the  terms  of  reference  of  such 
company.18  It  is  the  National  Broadcasting  Policy19  which  attempts  to  fill  in  these  legal 
gaps  by  setting  out  Public  Broadcasting  Services  Limited’s  remit  as  a  public  service 
broadcaster. This is done through an agreement, a public service obligation, entered into 
between the Minister responsible for broadcasting and the said company. 

As  to  the  ability  to  fulfil  their  tasks  and  their  actual  performance,  one  of  the  difficulties 
encountered  by  the  public  service  broadcaster has been  that  it  did not  benefit from  the 
fees  received  by  way  of  television  licence  fees.  Up  till  31  December  2011,  when  such 
television licence fees were still levied by the Government, the proceeds of such fee used 
to  be  absorbed  by  the  Government  for  non-broadcasting  use:  the  Government  used  to 
retain  these  fees  as  part  of  its  income  without  passing  it  on  to  the  public  service 
broadcaster. Since 1 January 2012, broadcasting licences fees have been abolished and 
therefore are no longer collected. As the finances given by the Government to the public 
service  broadcaster  are  relatively  small,  the  public  service  broadcaster  has  had  to 
compete  with  private  broadcasters  for  advertising  revenue.  On  the  other  hand,  private 
broadcasting stations have been critical of this move as the public service broadcaster is 
competing  with  them  for  advertising  revenue.  The  public  service  broadcaster  practically 
farms  out  all  its  programmes  except  its  news  bulletin  and  some  current  affairs 
programmes. 

14 

15 

16 

17 

18 

19 

Article 10(6)(c) of the Broadcasting Act. 
Article 10(6A) of the Broadcasting Act. 
Article 10(6A) of the Broadcasting Act. 
Article 10(6D) of the Broadcasting Act. 
Article 10(4D) of the Broadcasting Act. 
Available at www.ba-malta.org/file.aspx?f=682. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- The role and functioning of regulatory authorities in these respects 

The  Broadcasting  Authority  has  been  designated  by  law  as  the  competent  authority  to 
license  satellite  radio  and  television  broadcasting20  and  has  been  designated  by  law  as 
the competent authority to licence digital radio broadcasting.21 

The regulatory authority does not as a rule have a say on what information  is  provided 
by  broadcasting  media  except  in  the  case  of  the  public  service  broadcaster  where  the 
Authority  has  to  approve  the  programme  schedule  of  the  public  service  broadcaster’s 
television  station  (Television  Malta  –  TVM)  and  during  the  electoral  campaign  for  EU 
Parliamentary  elections,  general  elections  and  referenda  where  the  Broadcasting 
Authority  approves  programme  schedules  of  all  broadcasting  stations  (radio  and 
television) to ensure that during that four to five week campaign all stations respect the 
constitutional provision concerning due impartiality and balance in political broadcasting. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Journalistic activity is primarily carried out under the provisions of the Press Act. In Malta 
journalists are not a warranted profession. There is no register of journalists. Journalists 
are given a Press Card from the Department of Information. This Card simply gives them 
access  to  Government-held  activities  but  can  in  no  way  be  compared  to  a  licence  to 
exercise the profession of a journalist. 

Journalistic activity is also carried out under the provisions of the Criminal Code and, in 
the  case  of  broadcasting,  also  under  the  Broadcasting  Act.  There  are  certain  privileges 
which these laws grant to journalists. For instance, the Criminal Code does not allow the 
Police  to  arrest  a  journalist  without  warrant22  or  to  arrest  a  journalist  for  allegedly 
committing a contravention or a crime not subject to the punishment of imprisonment.23 

The general provision regulating the protection of journalistic sources is found in Article 
46 of the Press Act. It reads in the relevant part as follows: 

“No  court  shall  require  any  person  mentioned  in  Article  23  to  disclose,  nor  shall  such 
person be guilty of contempt of court for refusing to disclose, the source of information 
contained in a newspaper or broadcast for which he is responsible unless it is established 
to  the  satisfaction  of  the  court  that  such  disclosure  is  necessary  in  the  interests  of 
national security, territorial integrity or public safety, or for the prevention of disorder or 
crime or for the protection of the interests of justice: 

Provided  that  the  court  shall  not  order  such  disclosure  unless  it  is  also  satisfied  that  in 
the particular circumstances of the case the need for investigation by the court outweighs 
the need of the media to protect its sources, due regard being taken of the importance of 
the role of the media in a democratic society.” 

Exceptions to this provision are found in the Criminal Code24 and in special laws.25 

20 

21 

22 

23 

24 

Article 16C(1) of the Broadcasting Act. 
Consumer  Protection  Laws  (Amendment)  Act,  2006,  Act  No.  XV  of  2006,  now  Article  16B  of  the 
Broadcasting Act. 
See Article 355X(5) of the Criminal Code. 
See Article 355Y of the Criminal Code. 
Chapter 9 of the Laws of Malta. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Journalists are not afforded an absolute right to refuse to testify. On the contrary, there 
are laws which oblige any person, including a journalist, to testify.26 

Searches  are  regulated  by  Article  355E  of  the  Criminal  Code  which,  in  relevant  part, 
reads as follows: 

“355E.  (1)  Saving  the  cases  where  the  law  provides  otherwise,  no  police  officer  shall, 
without a warrant from a Magistrate, enter any premises, house, building or enclosure for 
the purpose of effecting any search therein or arresting any person who has committed 
or is reasonably suspected of having committed or of being about to commit any offence 
unless: 

(a) the offence is a crime other than a crime punishable under the Press Act and there is 
imminent  danger  that  the  said  person  may  escape  or  that  the  corpus  delicti  or  the 
means of proving the offence will be suppressed; or 

(b)  the  person  is  detected  in  the  very  act  of  committing  a  crime  other  than  a  crime 

punishable under the Press Act; or 

(c)  the  intervention  of  the  Police  is  necessary  in  order  to  prevent  the  commission  of  a 

crime other than a crime punishable under the Press Act; ...” 

There  are  no  provisions  on  the  Statute  book  which  allow  a  person  to  shut  up  the  press 
through  libel  suits.  This  is  because  the  consequences  for  libel  are  not  of  such  a  nature 
which bring about the closure of the medium concerned. Nor are the damages involved of 
an  exorbitant  and  prohibitive  nature  as  the  maximum  amount  to  be  inflicted  cannot 
exceed five thousand Euro. 

Defamation is a criminal offence in terms of Article 252 of the Criminal Code: 

“252.  (1)  Whosoever,  with  the  object  of  destroying  or  damaging  the  reputation  of  any 
person,  shall  offend  such  person  by  words,  gestures,  or  by  any  writing  or 
drawing,  or  in  any  other  manner,  shall,  on  conviction,  be  liable  to 
imprisonment for a term not exceeding three months, or to a fine (multa). 

(2)  Where  the  defamation  consists  in  vague  expressions  or  	indeterminate 
reproaches, or in words or acts which are merely indecent, the offender shall 
be liable to the punishments established for contraventions. 

(3) Where the defamation is committed by means of writings, effigies or drawings, 
divulged  or  exhibited  to  the  public,  the  offender  shall  be  liable  to 
imprisonment for a term not exceeding one year. 

(4)  Where  the  defamation  is  directed  against  an  ascendant,  and  the  offence  is 
punishable  with  imprisonment,  the  offender  shall  also  be  liable  to  a  fine 
(multa).” 

25	 

26	 

For a list of such laws see Kevin Aquilina, ‘Protection of Journalistic Sources in Maltese Law: An Appraisal 
from the Viewpoint of the European Convention of Human Rights’, International Journal of Public Law and 
Policy, Volume I, No. 3, pp. 245-263. 
Ibid. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Specific positive content obligations 

The Broadcasting Authority has produced several codes of conduct for broadcasters and 
advertisers  known  as  Requirements  as  to  Standards  and  Practice27  in  so  far  as 
broadcasters are concerned. 

In so far as regulation of journalists and broadcasters is concerned, there are a number 
of  standards  and  guidelines,  very  much  similar  to  codes  of  ethics  and  codes  of 
conduct/practice  made  by  the  Broadcasting  Authority  which  apply  however  only  to  the 
broadcasting media. These comprise the following: 

(a) Requirements as to Standards and Practice applicable to News Bulletins and Current 

Affairs Programmes, Subsidiary Legislation 350.14;28 

(b)  Requirements	  as  to  Standards  and  Practice  applicable  to  Participation  in  Media 

Programmes of Vulnerable Persons, Subsidiary Legislation 350.15;29 

(c) Requirements as to Standards and Practice applicable to the Coverage of Tragedies in 

Broadcasting, Subsidiary Legislation 350.16;30 

(d) Requirements as to Standards and Practice applicable to Disability and its Portrayal in 

the Broadcasting Media, Subsidiary Legislation 350.17.31 

- Funding schemes for specifically desired content 

No such schemes exist. 

- Political advertising and/or broadcasting time 

Each  time  a  general  election,  a  referendum,  a  European  Union  Parliament  election  or  a 
local  council  election  are  held,  the  Broadcasting  Authority  organises  a  scheme  under  its 
patronage  of  election/referendum  broadcasts.  In  so  far  as  general  elections,  referenda 
and  European  Union  Parliament  elections  are  concerned,  the  Authority  organises  an  ad 
hoc  scheme  of  political  broadcasts  for  those elections/referenda.  Normally  the  Authority 
does not organise an ad hoc scheme of political broadcasts for local council elections as 
these broadcasts normally form part of the Authority’s Scheme of Political Broadcasts. All 
these  political  broadcasts  are  transmitted  on  the  public  service  radio  and  television 
channels. 

27	 

28 

29 

30 

31 

Requirements  as  to  Standards  and  Practice  exist  on  the  following  subjects:  News  Bulletins  and  Current 
Affairs  Programmes  (SL  350.14);  Participation  in  Media  Programmes  of  Vulnerable  Persons  (SL  350.15); 
Coverage of Tragedies in Broadcasting (SL 350.16); Disability and its Portrayal in the Broadcasting Media 
(SL 350.17);  Family Viewing  and Listening  (SL350.18); Phone-in Programmes Aired on the  Broadcasting 
Media  (SL350.19);  Crawls  and  Captions  in  Television  Programmes  (SL350.20);  Various  Types  of  Polls 
Broadcast on Radio and Television Services (SL 350.21); Conduct of Competitions and the Award of Prizes 
(SL  350.22);  Promotion  of  Racial  Equality  (SL  350.26);  Price  of  Telephone  Calls  and  SMSs  in  the 
Broadcasting  Media  (SL  350.27);  Programmes  Involving  the  Participation  of  Certain  Health  Care 
Professionals  in  the  Broadcasting  Media  (SL  350.30).  These  requirements  are  also  supplemented  by  the 
Broadcasting Code for the Protection of Minors (SL 350.05); Broadcasting Code on the Correct Use of the 
Maltese Language on the Broadcasting Media (SL 350.10). 
Text available at  
http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=10169&l=1. 
Text available at 
http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=10170&l=1. 
Text available at 
http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=10171&l=1. 
Text available at  
http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=10172&l=1. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The Broadcasting Authority is responsible for organising schemes for political broadcasts. 
These comprise a general party political scheme and specialise schemes such as those for 
general  elections,  EU  Parliament  elections,  local  councils  elections  and  referenda.  Such 
scheme  includes  political  spots  which  are  allotted  to  all  political  parties  participating 
therein.  The  Broadcasting  Authority  has  not  allowed,  outside  of  its  scheme  of  political 
broadcasts,  the  airing  of  political  spots  by  civil  society  organisations.  The  Authority  has 
been taken to court and has lost the case.32  This notwithstanding, the Broadcasting Act 
has not been amended to be brought in line with the court’s decision. The Broadcasting 
Act regulates such political broadcasting schemes in Article 13(4) and in paragraph 1 of 
the Third Schedule to the Broadcasting Act. 

- Codes of conduct and their organisational framing 

In  so  far  as  self-regulation  is  concerned,  the  Press  Ethics  Commission  which  is  a  self-
regulatory structure, has its own Code of Journalistic Ethics which applies to journalists, 
irrespective of the medium upon which they publish their writings.33 

This  Code  of  Journalistic  Ethics  essentially  deals  with  unethical  behaviour,  reporting  of 
crime and court proceedings, character assassination, conscientious objection, respect for 
minors  under  the  age  of  eighteen  years  as  well  as  the  sanctions  which  the  Press  Ethics 
Commission may impose on journalists for breach of the Code of Journalistic Ethics. 

In so far as all media are concerned, complaints can be made by members of the public 
to  the  self-regulatory  structure  known  as  the  Press  Ethics  Commission  but  this  mainly 
deals with complaints against journalists.  

There  is  also  a  complaints  mechanism  in  place  in  so  far  as  broadcasting  is  concerned 
where any person may complain directly to the Broadcasting Authority in so far as unjust 
and  unfair  treatment  and  infringement  of  privacy  by  a  broadcasting  station  is 
concerned.34  In  terms  of  Article  21A  of  the  Broadcasting  Act  affected  third  parties  may 
also  complain  with  the  Authority  seeking  effective  compliance  by  broadcasters  with  the 
provisions of the Broadcasting Act and any subsidiary legislation made thereunder. 

- The role and functioning of regulatory authorities in these respects 

In  so  far  as  the  print  and  new  media  are  concerned,  there  are  no  specific  regulatory 
authorities  which  are  established  to  regulate  the  media  although  in  certain  respects, 
mainly  advertising,  they  can  be  regulated  by  a  sectoral  regulator.  The  Broadcasting 
Authority  has  lost  a  case  before  the  Civil  Court,  First  Hall,  which  has  ruled  that  the 
Authority  has  not  respected  the  principle  of  nemo  judex  in  causa  propria  when 
considering  an  administrative  offence.  It  was  decided  on  7  February  2012  and  may  be 
appealed by the Authority.35 

  Distribution Aspects 

- Access to frequencies 

Broadcasting frequencies are assigned by the Minister responsible for communications to 
the Broadcasting Authority in terms of Article 18 of the Broadcasting Act. The Authority 
then assigns these frequencies to broadcasters. The Minister is obliged by law to grant to 

32 

33 

34 

35 

Tony Zarb et.noe vs. Broadcasting Authority, Constitutional Court, 3 November 2006.
 
The Code of Journalistic Ethics is available at http://www.maltapressclub.org.mt/ethics-new.htm. 

Article 34 of the Broadcasting Act.
 
Smash Communications Limited vs. Broadcasting Authority et. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

the Authority such technical assistance it might require to carry out its duties in terms of 
the said provision. 

- Access to distribution networks and control of actual conditions 

The  Broadcasting  Authority  does  not  licence  distribution  networks.  Nor  does  it  control 
actual conditions. The distribution networks for programme content come in the form of 
networks  (platforms).  In  so  far  as  distribution  of  television  channels  is  concerned, 
networks  enter  into  agreements  with  the  television  channels  in  question  so  that  these 
television  stations  are  carried  on  the  platform’s  network.  Such  agreements  are  not 
regulated  by  the  Broadcasting  Authority  but  by  competition  law.  The  actual  conditions 
imposed in these agreements are for the parties (the network operator and the television 
station  in  question)  to  decide  and  should  there  be  a  dispute  between  these  parties  the 
matter will have to be resolved through mediation, arbitration or court settlement. 

However,  in  2010  the  Broadcasting  Law  was  amended  to  make  certain  provisions 
concerning  disputes  with  regard  to  one  specific  network  operator:  the  general  interest 
objective (GIO) station (and not the other network operators such as the cable television 
operator;  the  digital  radio  operator  and  the  digital  terrestrial  television  operator  which 
continue  to  be  regulated  by  competition  law).  Article  40  of  the  Broadcasting  Act,  in 
relevant parts, reads as follows: 

“40. (1) The Authority shall appoint and license a network operator (hereinafter referred 
to  as  "the  network  operator")  to  run  the  general  interest  objective  network 
licensed  by  the  Malta  Communications  Authority  in  terms  of  the  Electronic 
Communications (Regulation) Act. 

(6)  The  Authority  may  make  regulations  to  give  better  effect  to  the  provisions  of  this 
article  and  may,  without  prejudice  to  the  generality  of  the  foregoing,  make 
regulations in respect of the determination of disputes between the network operator 
and  the  general  interest  objective  service,  the  regulation  of  the  general  interest 
objective  network  in  order  to  ensure  that  the  network  operator  abides  by  the 
provisions  of  this  article  and  any  regulations  made  thereunder  and,  generally  to 
ensure that an uninterrupted service is provided by the network operator. 

Provided  that  in  the  case  of  a  dispute  between  the  network  operator  and  a  general 
interest  objective  service  licensee,  such  disputes  shall  be  referred  to  a  standing  arbitral 
tribunal to be composed of one person appointed by the Broadcasting Authority who shall 
preside,  one  person  appointed  by  the  Malta  Communications  Authority  and  one  person 
appointed 
the  Malta 
Communications Authority. The said tribunal  shall decide the complaint as expeditiously 
as possible and its decision shall be final.” 

the  Broadcasting  Authority  and 

in  agreement  between 

So far no regulations have been made under Article 40(6) of the Broadcasting Act. 

There are no distribution networks with regard to non-broadcasting media. 

- Must-carry/must-offer rules for electronic media 

General  interest  objective  television  services  have  to  be  carried  by  the  GIO  television 
network  operator.  It  is  the  Broadcasting  Authority  which  licences  the  GIO  television 
services  to  be  carried  by  the  network  operator  on  the  latter’s  multiplex.  These  stations 
have  to  cater  for  a  wide  variety  of  programming  which  include  news,  current  affairs, 

488 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

education and cultural programmes amongst others.36 Moreover, GIO television services 
have to offer, free to air and free of charge, their broadcasting content to such electronic 
communications networks as the Authority may direct.37 The must-offer provision is thus 
limited  only  to  GIO  television  services  and  does  not  extend  to  commercial  television 
services such as teleshopping services or commercial televisions which are not of a GIO 
nature. 

- Role of platform operators 

The  GIO  is  appointed  and  licensed  by  the  Broadcasting  Authority.38  The  conditions  and 
fees imposed by the network operator upon the GIO television services have to meet the 
approval  of  the  Authority.39  Other  platform  operators  exist  for  cable  television  and  for 
digital terrestrial television40 as well as for digital radio.41 

  Access to Information 

- Transparency of media ownership situations 

Transparency  of  media  ownership  situations  may  be  learnt  through  the  shareholding  of 
the companies owning the media. Such information can be obtained from the Registrar of 
Companies. 

- Accountability of public service media 

Public  Services  Broadcasting  Limited  (PBS  Ltd.)  is  accountable  to  its  sole  shareholder  – 
the Government of Malta – and is also accountable to the broadcasting regulator in terms 
of  law.  This  is  because  the  provisions  of  Article  119(1)  of  the  Constitution  of  Malta  and 
the Broadcasting Act (and the subsidiary legislation made thereunder) equally apply and 
bind  the  public  service  broadcaster.  The  public  service  obligation  is  a  contract  entered 
into between the Minister and PBS Ltd. Hence there are contractual obligations which the 
PBS Ltd. must respect vis-a-vis Government. The Minister responsible for broadcasting is 
individually  accountable  to  Cabinet  for  the  workings  of  the  public  service  broadcaster42 
and, in turn, Cabinet is collectively accountable to Parliament in so far as the workings of 
the public service broadcaster are concerned.43 

The  public  service  broadcaster,  although  licenced  by  Government  and  not  by  the 
Broadcasting Authority, still has to comply will all the laws in force which apply to private 
broadcasting  stations  and,  in  addition,  as  a  general  interest  objective  station,  has  to 
comply  with  the  criteria  approved  by  the  Broadcasting  Authority  for  a  GIO  station.44  It 
also  has  to comply  with  the  National  Broadcasting  Policy45  and  certain  provisions  of  the 

36 

37 

38 

39 

40 

41 

42	 

43 

44 

45 

Article 40(2) of the Broadcasting Act.
 
Article 40(5) of the Broadcasting Act.
 
Article 40(1) of the Broadcasting Act.
 
Article 40(7) of the Broadcasting Act.
 
Licensed under article 3(3) of the Broadcasting Act.
 
Programme content on the digital radio is licensed by the Broadcasting Authority in terms of Article 16B of
 
the Broadcasting Act. 
Article  82(1)  of  the  Constitution  reads  as  follows:  ‘Subject  to  the  provisions  of  this  Constitution,  the 
President, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign 
to  the  Prime  Minister  or  any  other  Minister  responsibility  for  any  business  of  the  Government  of  Malta 
including the administration of any department of government. 
Article 79(2) of the Constitution reads as follows: ‘The Cabinet shall have the general direction and control 
of the Government of Malta and shall be collectively responsible therefor to Parliament. 
For  the  text  of  these  criteria,  see  General  Interest  Objectives  (Television  Services)  (Selection  Criteria) 
Regulations, SL 350.32. 
See footnote 24 above for the text of the National Broadcasting Policy. The National Broadcasting Policy is 
referred to in Article 10(4E) of the Broadcasting Act. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Broadcasting  Act  which  apply  only  to  public  service  stations.46  Whilst  the  Freedom  of 
Information  Act  applies  to  records  kept  by  the  public  service  broadcaster,  the  same 
cannot be said for privately owned broadcasting stations.47 

- Freedom of information laws 

Freedom  to  access  information  is  spread  over  a  number  of  laws.  The  general  law  is 
contained in the Freedom of Information Act. This law is supplemented by the Press Act, 
the National Archives Act48 and by special laws. The latter comprise Local Government,49 
environmental  regulation50  and  regulation  of  registries  and  archives  (Public  Registry;51 
Land Registry;52 Company Registry;53 and Court Archives).54 

Article 47 of the Press Act reads as follows: 

“47. (1) The Government shall establish procedures to give representatives of the press 
the information which helps them fulfil their public tasks. 

(2) Subarticle (1) shall not apply in the following cases: 

(a)	  where  such  information  could  foil,  impede,  delay  or  jeopardise  the  appropriate 
process  of  pending  legal  proceedings  or  where  Government  or  another  public 
authority  would  be  legally  entitled  to  refuse  to  grant  such  information  in  a  court  or 
other tribunal established by law; 

(b)  where  the  granting  of  such  information  would  entail  the  disclosure  of  information 

received by Government in confidence; 

(c)	  where  such  information  would  violate  an  overriding  public  interest  or  a  private 

interest warranting protection; 

(d) where the information concerns matters related to national security or public safety; 

46	 

47	 

48 

49 

50 

51 

52 

53 

54 

Such  is  the  case  with  Article  13(2)(f)  proviso  which  does  not  allow  the  public  service  broadcaster  to  be 
partial in its programmes by bearing in mind what has been broadcast on private stations. This balancing 
out  provision  applies  only  to  private  stations  and  the  public  service  broadcaster  must  always  ensure 
impartiality  in  terms  of  Article  119  of  the  Constitution.  The  public  service  broadcaster’s  programme 
schedule  requires  in  terms  of  Article  23(1)  of  the  Broadcasting  Act  prior  approval  by  the  Broadcasting 
Authority.  Hence,  the  provisions  relating  to  the  public  service  broadcaster  are  more  onerous  than  in  the 
case of other General Interest Objective services and commercial broadcasters. 
Article 2 of the Freedom of Information Act defines a ‘public authority’ as ‘(a) the Government, including 
any  ministry  or  department  thereof;  (b)  a  Government  agency  established  in  terms  of  the  Public 
Administration  Act  or  any  other  law;  and  (c)  any  body  established  under  any  law,  or  any  partnership  or 
other body in which the Government of Malta, a Government agency or any such body as aforesaid has a 
controlling  interest  or  over  which  it  has  effective  control’.  Public  Broadcasting  Services  Limited,  a 
Government wholly owned and controlled by Government, falls under the definition of a ‘public authority’. 
Chapter 477 of the Laws of Malta. 
Information as to meetings of local government authorities is regulated by Article 45 of the Local Councils 
Act, Chapter 363 of the Laws of Malta. 
See  the  Environment  and  Development  Planning  Act,  Chapter  504  of  the  Laws  of  Malta,  in  particular 
Article 64, and Freedom of Access to Information to Environment Regulations, 2005, Subsidiary Legislation 
504.65. 
Chapter 56 of the Laws of Malta. 
Chapter 296 of the Laws of Malta. 
Article 401(1)(g) of the Companies Act, Chapter 386 of the Laws of Malta. 
See, for instance, regulation 11 of the Civil Procedure (Regulation of Registries, Archives and Functions of 
Director  General  (Courts)  and  Other  Court  Executive  Officers)  Regulations,  2004,  Subsidiary  Legislation 
12.21  and  regulation  6  of  the  Criminal  Procedure  (Regulation  of  Registries,  Archives  and  Functions  of 
Director  General  (Courts)  and  Other  Court  Executive  Officers)  Regulations,  2004,  Subsidiary  Legislation 
9.09. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

(e)  when  the  gathering  of  the  information  requested  would  place  a  disproportionate 

burden on the public administration.” 

The Press Act, in Article 47(3), contains a provision which ensures that the Government 
does not discriminate amongst certain sectors of the media when releasing information. 
It provides for a general obligation of considering all media on the same footing: 

“(3) It shall not be lawful for Government to issue general instructions that prohibit the 
giving  of  information  to  any  newspaper  or  licensed  broadcasting  service  holding  a 
particular view or to any specified newspaper or licensed broadcasting service.” 

Although  Malta  has  enacted  in  2008  a  Freedom  of  Information  Act,  the  most  important 
provisions  which  empower  journalists  to  obtain  access  to  Government  held  information 
will come in force on 1 September 2012. 

The regulatory authority is exempt from having its records accessible to the public in so 
far as its constitutional functions of ensuring balance and impartiality in broadcasting are 
concerned.55  No  such  blanket  prohibition  exists,  however,  in  so  far  as  the  Authority’s 
functions under ordinary law is concerned.56 Hence, in so far as ordinary law is concerned 
(as opposed to the supreme law of the land, the Constitution of Malta), the Broadcasting 
Authority  may  refuse  to  grant  access  to  its  records  only  in  those  cases  listed  in  the 
Freedom of Information Act.57 

- Accessibility of products/services and distribution networks 

There  are  no  aid  schemes  in  place  to  purchase  reception  devices.  A  viewer  can  have 
access free of charge to the general interest platform (there are currently 6 stations on 
offer) provided that viewers purchase at their own expense a set top box. Otherwise they 
can  have  access  to  these  GIO  stations  through  the  cable  television  platform  and  the 
digital  terrestrial  television  platform  (which  both  carry  the  GIO  stations  in  their  lowest 
tier  of  subscription  package,  which  is  the  case  with  the  vast  population  of  television 
viewers in Malta).58 

The broadcasting licence fee used to be paid by any person in Malta who owned one or 
more television sets. Such annual fee was paid to the Government. However, with effect 
from  1  January  2012  this  fee  has  been  abolished  except  for  the  collection  of  arrears  of 
revenue due to Government prior to 1 January 2012.59 

Access to broadcasting services is affordable either because it is offered at a reasonable 
subscription  price  or  even  for  free.  In  the  case  of  analogue  radio  and  digital  radio  the 
service is available free of charge. Digital terrestrial television and cable television is by 
subscription though at very affordable rates. Newspaper are sold at a cheap price. Hence 
information services are readily accessible and are reasonably priced. 

55 

56 

57 

58 

59 

The  Broadcasting  Authority’s  constitutional  functions  are  set  out  in  Article  119(1)  of  the  Constitution  of 
Malta.  The  latter  provision  reads  as  follows:  ‘It  shall  be  the  function  of  the  Broadcasting  Authority  to 
ensure that, so far as possible, in such sound and television broadcasting services as may be provided in 
Malta, due impartiality is preserved in respect of matters of political or industrial controversy or relating to 
current  public  policy  and  that  broadcasting  facilities  and  time  are  fairly  apportioned  between  persons 
belonging to different political parties.’ 
Article 6(4)(g) of the Freedom of Information Act provides that the Freedom of Information Act does not 
apply  to  the  Broadcasting  Authority  ‘in  so  far  as  such  documents  relate  to  its  functions  under  Article 
119(1) of the Constitution’. 
Parts V and VI of the Freedom of Information Act, Chapter 496 of the Laws of Malta, which list those cases 
where the law does not allow access to public records. 
http://www.dso.org.mt/assets/files/DSO%20May%202011%20Survey%20Results.pdf. 
http://finance.gov.mt/image.aspx?site=MFIN&ref=2012_Budget Speech English, p. 74. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

I  am  not  aware  of  any  public  subsidisation  or  commercially-offered  reduced  rates  for 
subscription to print publications. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The Ombudsman cannot investigate complaints with regard to the Broadcasting Authority 
as  the  Ombudsman  Act  specifically  states  so,  the  reason  being  that  the  Authority  is 
established as an independent body by the Constitution of Malta.60 The Ombudsman does 
not  even  have  jurisdiction  over  private  broadcasting  stations  or  other  media  except  for 
the public service broadcaster. 

Naturally,  it  remains  always  possible  to  take  one’s  case  against  the  Authority  or  the 
media before the courts. 

- Participation in media operators/(self-)regulatory bodies 

There  are  no  viewers’  and  listeners’  councils  in  Malta  but  there  is  a  Consumers’ 
Association which sometimes expresses itself on broadcasting matters, normally in so far 
as  advertising  rules  on  the  broadcasting  media  are  concerned.  The  Consumers’ 
Association is a non-governmental voluntary organisation. 

As to co-regulatory bodies there are none and as to self-regulatory bodies there is mainly 
the  Institute  of  Journalists.  But  there  is  no  real  affinity  between  the  self-regulatory 
structure  (the  Institute  of  Journalists)  and  the  regulatory  structure  (the  Broadcasting 
Authority)  except  that  for  the  last  couple  of  years  the  Broadcasting  Authority  has  been 
sponsoring  on  an  annual  basis  the  Malta  Journalism  Award  relating  to  broadcasting 
organised by the Institute of Journalists.61 

2.2.18.2.  Main Players in the Media Landscape 

General  figures  on  the  main  players  and  their  shares  in  audience  reach,  subscription, 
etc., is provided below. 

2.2.18.2.1. 

Radio 

In  Malta,  there  are  thirteen  nationwide  analogue  FM  radio  stations  and  four  nationwide 
digital  radio  stations.  Three  radio  stations  are  owned  by  the  public  service  broadcaster 
(Radju  Malta;  Radju  Parlament  106.6;  Magic  Radio);  two  radios  are  owned  by  the 
political parties (Radio 101 by the Nationalist Party and One Radio by the Labour Party); 
one  radio  is  officially  owned  by  the  Catholic  Church  (RTK)  and  there  is  also  a  second 
Catholic  radio  operating  in  Malta  (Radju  Maria);  one  radio  station  is  owned  by  the 
University  of  Malta  (Campus  FM);  the  remaining  five  radio  stations  are  of  a  commercial 
nature (Bay Radio, Calypso Radio; Vibe FM; XFM; Smash Radio).62 

2.2.18.2.2. 

Television 

There are seven nationwide television stations in Malta. Two television stations are public 
service  stations  (TVM  and  Education  22);  two  television  stations  are  owned  by  the 
political parties (NET TV by the Nationalist Party and One TV by the Labour Party); two 

60 

61 

62 

Ombudsman Act, Chapter 385 of the Laws of Malta, Article 12 and First Schedule, Part A. 
http://www.ba-malta.org/prdetails?id=190. 
http://www.ba-malta.org/prdetails?id=222. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

television stations are of a commercial nature (Smash TV; Favourite TV); one is a music 
television  station  (Calypso  Music  TV).  There  is  also  one  fully  dedicated  teleshopping 
television station (ITV).63 

There  are  16  satellite  television  broadcasting  stations  licensed  by  the  Broadcasting 
Authority.64 

2.2.18.2.3. 

Press and Publishing 

There are four daily newspapers published Monday to Saturday: The Times of Malta, In-
Nazzjon  Taghna  (Our  Nation)  owned  by  the  Nationalist  Party,  L-Orizzont  (The  Horizon) 
owned  by  the  General  Workers’  Union,  the  largest  trade  union  in  Malta)  and  The  Malta 
Independent. The Times and The Independent are owned by commercial interests. 

There are four weekly newspapers published on a Sunday. These are: The Sunday Times 
of Malta, The Malta Independent on Sunday, Il-Mument (The Moment) published by the 
Nationalist  Party,  Kulhadd  (Everybody)  published  by  the  Labour  Party,  It-Torca  (The 
Torch)  published  by  the  General  Workers’  Union  and  Malta  Today  published  by 
commercial interests. 

Business Today and the Malta Business Weekly are published also on a weekly basis. 

Lehen  is-Sewwa  and  Illum  are  not  mentioned  in  the  2004  report.  Lehen  is-Sewwa  is 
owned by a Catholic Church organisation, Catholic Action, and has been in print since 1 
September 1928. It is a weekly newspaper. Illum is also a weekly newpaper which goes 
back to 2006. 

As  to  publishing,  there  are  various  books,  magazines  and  leaflets  published.  A  list  of 
publishers is found at http://www.ktieb.org.mt/. 

2.2.18.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

There  are  two  subscription  based  on-demand  audiovisual  media  services  in  Malta,  one 
provided  by  the  cable  operator,  Melita  p.l.c.,65  and  another  operated  by  the  digital 
terrestrial  television  operator,  Go  p.l.c.66  There  is  also  one  free  on-demand  service 
provided by di-ve.com.67 

Although no document could be traced which lists all Maltese owned websites or provides 
general information about them, all printed newspapers have their own electronic version 
of  the  newspaper  on  the  web.  All  radio  and  television  stations  also  have  their  own 
websites and some of them webcast the programmes on the world wide web. There is at 
least  one  portal  which  provides  news  information.  Moreover,  the  Labour  Party  and  the 
Nationalist Party have their own websites containing news items. 

2.2.18.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

There  are  four  platform  operators:  the  public  service  broadcaster  PBS  Ltd.  in  so  far  as 
the  6  general  interest  obligation  television  stations  are  concerned;  one  cable  radio  and 

63 

64 

65 

66 

67 

http://www.ba-malta.org/prdetails?id=222. 
Broadcasting  Authority  Annual  Report  2010,  Broadcasting  Authority,  2011,  p.  13,  available  at 
http://www.ba-malta.org/annual-report_2010. 
http://www.melita.com/personal/bundles/entertainment-pack/video-on-demand/. 
http://www.gointeractivetv.com.mt/features.aspx?id=26. 
http://public.di­
ve.com/streaming/on_demand_event_library.aspx?backUrl=streaming/live_radio_streams.aspx. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

cable television operator; one digital terrestrial television operator; and one digital radio 
operator.  Whilst  the  GIO  network  and  the  digital  radio  network  are  accessible  free  of 
charge,  the  cable  network  and  the  digital  terrestrial  television  are  accessible  via  a 
subscription.  The  GIO  network  is  also  accessible  via  the  cable  network  and  the  digital 
terrestrial television network at the cheapest tier of subscription.68 

There is only one cable operator in Malta, Melita Cable p.l.c. It provides subscriptions to 
155 digital and HD television channels and 61 digital radio stations. There is a vast array 
of  programming  covering  news,  documentaries,  movies,  sports,  education,  children’s 
programmes, entertainment, fashion, travel, etc. 

Go  p.l.c.  is  the  sole  digital  terrestrial  television  broadcaster  in  Malta.  It  provides 
subscription to 112 digital television channels.69 

There is only one digital radio operator in Malta, Digi B Networks Ltd. The Broadcasting 
Authority has licensed 4 digital radio stations of local origin on the digital radio platform70 
in  addition  to  36  foreign  digital  radio  stations  and  11  simulcasted  nationwide  analogue 
radio stations.71 

Although there is no registration system of internet service providers, it seems that there 
are around twelve internet service providers in Malta.72 

2.2.18.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

As  to  audience  ratings,  the  radio  total  daily  average  audience  for  the  period 
October/December 2011 was as follows: One Radio 18.86%; Calypso Radio 14.99%; Bay 
Radio  14.03%;  Radio  Malta  12.52%;  RTK  8.43%;  Radio  101  5.54%;  Radju  Marija 
4.79%; Magic Radio 4.49%; Vibe FM 4.35%; Smash Radio 4.15%; all community radio 
stations 2.58%; all foreign radio stations 2.49%; XFM 1.70%; Campus FM 1.08%. 

the 

television  market, 

the  period 
In 
October/December 2011 was as follows: TVM 36.96%; One TV 20.82%; Net TV 6.39%; 
Favourite Channel 0.94%; iTV 0.15%. The other stations – Smash TV, Education TV and 
Calypso Music TV all scored less than 0.1%. 

total  daily  average  audience 

the 

for 

Melita  Cable  had  100,000  subscribers  on  27  October  2011.73  Go  p.l.c.  had  40,000 
subscribers  on  6  August  2009.74  As  at  end  of  September  2011,  there  were  137,561  in 
total  for  digital  cable  and  terrestrial  television  subscriptions  with  Melita  Cable  p.l.c.  and 
Go p.l.c. and 11,107 analogue television subscriptions with Melita Cable p.l.c.75 

As to advertising market shares it is known that the public service broadcaster captures a 
significant  part  of  the  market.  The  Broadcasting  Authority  had  commissioned  Grant 
Thorton to report on the advertising markert share of the broadcasting media. However 
this  report  is  today  dated  and  no  reference  continues  to  be  made  to  it  on  the 
Broadcasting Authority’s website. 

68 

69 

70 

71 

72 
73 

74 

75 

€7.76c per month subscription with Melita Cable p.l.c. and €5.00c per month subscription with Go p.l.c.
 
http://www.gointeractivetv.com.mt/packages.aspx.
 
http://www.ba-malta.org/prdetails?id=199. 

http://www.ba-malta.org/prdetails?id=130. 

http://aboutmalta.com/internet/Providers.htm (Waldonet has recently ceased operations).
 
http://www.melita.com/100000-views-for-melita%e2%80%99s-video-on-demand-service.
 
http://www.digitaltvnews.net/content/?p=9594.
 
http://www.nso.gov.mt/statdoc/document_file.aspx?id=3195. 


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2.2.18.3.  Conclusion and Recommendations 

When  one  compares  the  situation  of  the  media  in  Malta  in  2012  with  that  of  2004  as 
detailed  at  pp.  141  to  145  of  the  Final  report  of  the  study  on  “the  information  of  the 
citizen  in  the  EU:  obligations  for  the  media  and  the  Institutions  concerning  the  citizen’s 
right  to  be  fully  and  objectively  informed”,  drawn  up  by  the  European  Institute  for  the 
Media  on  31  August  2004,  the  following  noteworthy  developments  should  be  chronicled 
with regard to the media sector: 

	  satellite broadcasting is now regulated by the Broadcasting Act;76 

	  the enactment of a Freedom of Information Act, 2008; 

	  the transposition of the EU Audiovisual Media Services Directive;77 

	  the  further  liberalisation  (though  not  complete  removal)  of  the  concentration 

provisions in so far as the broadcasting media are concerned;78 

	  the Press Ethics Commission is in the process of completing its revision of the self-

regulatory Code of Ethics mentioned in paragraph 1.3 of the 2004 Report; 

	  changes  have  been  made  to  the  Broadcasting  Act  to  remove  the  must-carry 
requirement  in  the  said  enactment  and  to  restrict  it  only  to  general  interest 
objective  stations  apart  from  obliging  these  stations  to  offer  free  of  charge  their 
programme content to the general interest objective platform operator;79 

	  the  Broadcasting  Authority  has  been  very  much  prolific 

in  establishing 
Requirements  as  to  Standards  and  Practice  and  Requirements  as  to  Advertising, 
Methods of Advertising and Directions which did not exist in 2004;80 

	  the  Broadcasting  Authority  has  lost  another case  before  the  Civil  Court,  First  Hall, 
which has ruled that the Authority has not respected the principle of nemo judex in 
causa propria when considering an administrative offence;81 

	  Alternattiva Demokratika (the Green Party) has, since 2004, sold its radio station. 
So  the  situation  today  is  that  only  the  two  main  political  parties  represented  in 
Parliament  (the  Nationalist  Party  in  Government  and  the  Labour  Party  in 
Opposition) own a radio and television station (in addition to a newspaper, internet 
website and printing house). The Catholic Church continues not to own a television 
station; 

	  six television stations have been granted the status of a general interest objective 
television  station  by  the  Broadcasting  Authority  in  terms  of  amendments  made  to 
article  40  of  the  Broadcasting  Act  in  2011.82  These  are  TVM  and  Education  22  as 
the de facto GIO stations83 because of their public service remit and One TV (owned 
by  the  Labour  Party),  Net  TV  (owned  by  the  Nationalist  Party),  Smash  TV  (owned 

76 

This has been regulated by Act No. VIII of 2009, the Broadcasting (Amendment) Act, 2009. 

77  Mainly through the Broadcasting (Amendment) Act, 2010, Act No. IV of 2010. 
78 

Broadcasting (Amendment) Act, 2011, Act No. VIII of 2011. 
Ibid. 
See footnotes 44 and 45 above. 
See footnote 47 above.  
Act No. VIII of 2011 available at
http://www.doi.gov.mt/EN/parliamentacts/2011/ACT%20VIII%20XANDIR.pdf. 
Article 40(2) proviso of the Broadcasting Act. 

79 

80 

81 

82 

83 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

by a commercial non-political company) and Favourite TV (owned by a commercial 
non-political party); 

  the television licence fee has been removed as of 1 January 2012. 

Although the Maltese citizen is well served as to the quantity of information available in 
the  public  domain,  the  difficulty  concerns  more  the  quality  of  the  information.  First, 
political parties own too much media and unfortunately they have brought an element of 
divisiveness  amongst  the  population  especially  during  tense  periods  such  as  during  an 
election campaign. Contrary to other states in the European Union, political parties own 
their  own  broadcasting  media.  It  is  therefore  being  proposed  that  the  Broadcasting  Act 
should be amended not to allow political parties to own their own broadcasting stations. 
Instead a general interest objective television station should be run by the Broadcasting 
Authority where political parties are provided airtime to express their views in terms of a 
programme  schedule  approved  by  the  Authority  to  ensure  that  all  political  parties  are 
given an opportunity to air their views. 

Second,  there  are  difficulties  within  the  media  sector  to  establish  media-wide  self-
regulatory  mechanisms.  The  current  self-regulatory  structures  are  limited  and  do  not 
garner a wide support of all the media industry. In this respect Government, through the 
Ministry responsible for broadcasting, should be tasked with bringing together all media 
industries  so  that  the  latter  may  develop  its  own  self-regulatory  structures.  The 
Government should also identify which functions performed by it or by the Broadcasting 
Authority should be devolved upon self-regulatory structrures. It is highly recommended 
that  Government  should  assist  the  media  industry  in  developing  such  self-regulatory 
structures through providing financial assistance and expert advice. 

Third,  although  Malta  has  enacted  a  Freedom  of  Information  Act  the  provisions  which 
give access to government held information will come into force as late as 1 September 
2012.  So  no  reference  to  case  law  can  be  made  in  this  respect.  Journalists  should  be 
trained  as  to  the  provisions  of  the  Freedom  of  Information  Act.  This  should  be  done  by 
the  Malta  Institute  of  Journalists  in  collaboration  with  Government  entities  such  as  the 
Faculty  of  Laws  within  the  University  of  Malta  or  the  Staff  Development  Organisation 
within the Office of the Prime Minister or both. 

Fourth, Malta does not have a whistle blowing act on the statute book even though there 
is a bill which has been pending in the House of Representatives for more than a year.84 
Parliament should therefore give precedence to the whistle blowing bill to have it enacted 
as  law  whilst  the  institutions  mentioned  in  the  previous  point  should  afford  training  to 
public administration employees. 

Fifth,  politicians  tend  to  be  very  sensitive  to  criticism  aimed  at  them  and  institute  a 
number  of  libel  suits,  normally  during  election  campaigns.  However,  these  cases  are 
usually  decided  after  the  relevant  elections  are  over  and  the  libel  suits,  when  decided, 
would thus become irrelevant. It is thus important to revist the law on libel so that new 
provisions  are  written  down  into  the  law  to  ensure  a  more  liberal  interpretation  of  the 
libel provisions in Maltese Laws with regard to public figures. Whilst libel laws should be 
strict  with  regard  to  private  persons,  they  should  be  more  liberal  with  regard  to  public 
figures allowing more criticism of the latter category of persons. 

84 

Published in The Malta Government Gazette on 8 October 2010. For the text of the Bill, see:

http://www.doi.gov.mt/EN/bills/2010/Bill%2058.pdf.
 

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Sixth, there is no media court which can afford an expeditious hearing and determination 
of media related cases. It is thus recommended that a Media Court is established and all 
cases  involving  the  media  –  whether  of  a  criminal,  administrative,  disciplinary  or  civil 
nature  –  should  be  heard  and  determined  by  such  court.  This  would  bring  about  more 
specialisation,  expeditiousness  in  the  proceedings,  decrease  in  courts,  uniformity  in 
sentencing and the development of a coherent and consistent body of case law. 

Seventh,  the  law  regulating  political  advertising  needs  to  be  amended  to  allow  political 
advertising  as  the  Maltese  courts  have  held  (basing  themselves  on  ECHR  case  law).  In 
this  way,  through  amendments  to  the  Broadcasting  Act,  the  law  regulating  political 
advertising will be brought in line with Article 10 of the European Convention of Human 
Rights and the case law of the European Court of Human Rights. 

Finally,  administrative  sanctions  need  to  be  revisited  to  be  brought  in  line  with  the 
Council  of  Europe’s  Recommendation  No  R  (91)1E  of  the  Committee  of  Ministers  to 
Member States on Administrative Sanctions adopted on 13 February 1991.85 Appropriate 
legislation  needs  to  be  enacted  to  ensure  that  all  sanctions  of  an  administrative  nature 
which  may  be  imposed  by  the  Broadcasting  Authority  (and  eventually  by  the  proposed 
Media Court) are in line with the said Recommendation. 

All  these  measures  would  ensure  that  the  information  provided  to  the  citizen  is  more 
accurate,  less  biased  and,  overall,  more  impartial,  truthful  and  factually  correct.  This 
would  be  coupled  with  a  more  expeditious  and  human  rights  correct  procedure  which 
would implement the right to freedom of expression in a truly democratic society. Finally, 
it  would  ensure  –  through  the  establishment  of  a  specialised  Media  Court  –  that  the 
media sector is treated in a wholisitic and consistent manner. 

85 

For the text of the Council of Europe’s Recommendation, see: 
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=3 
4769&SecMode=1&Admin=0&DocId=392990 

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THE NETHERLANDS 


2.2.19.	  The Netherlands 

2.2.19.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.19.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  freedom  of  expression  is  enshrined  in  article  7  of  the  Dutch  Constitution1,  as 
indicated in the 2004 Country Report. 

  Freedom to receive and to access information 

The  transparency  of  information  has  been  an  issue  of  concern  in  the  Netherlands  since 
the 1795 Declaration of Rights of Man, which stated: “everyone has the right to concur in 
requiring, from each functionary of public administration, an account and justification on 
his conduct.” Article 110 of the Dutch Constitution states: “In the exercise of their duties 
government bodies shall observe the right of public access to information in accordance 
with rules to be prescribed by Act of Parliament.” 

No safeguards on Regulatory Authorities are stipulated by the Dutch Constitution. 

  Safeguards on “universal service” 

The Dutch Constitution contains no provisions with regard to “universal service”. 

2.2.19.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Broadcasters that provide radio  or  television programmes need to obtain a licence from 
the Dutch Media Authority, Commissariaat voor de Media (CvdM), to broadcast television 
and/or radio programmes. Only the national public broadcasters’ licences are granted by 
the  Minister.  Whereas  radio  broadcasters  can  sometimes  also  obtain  terrestrial  radio 
frequencies,  television  broadcasters  have  to  assign  cable,  satellite  or  IPTV  network 
operators or buy airtime on an existing channel to transmit their programmes. Since the 
implementation of the Audiovisual Media Services Directive (AVMS Directive) in the Media 
Act  2008,  providers  of  commercial  on-demand  media  services  are  required  to  register 
with CvdM. 

The  remit  of  public  service  media  is  enshrined  in  section  2.1  of  the  Dutch  Media  Act 
2008.  On  1  January  2009  most  elements  of  the  so-called  Multimedia  Act2  entered  into 

1 

2 

Constitution of the Netherlands, see:
http://www.rijksoverheid.nl/bestanden/ 
documenten-en-publicaties/brochures/2008/10/20/the-constitution-of-the-kingdom-of-the-netherlands­
2008/07br2008g109.pdf. 
Wet  van  29  december  2008  tot  vaststelling  van  een  nieuwe  Mediawet  (Mediawet  2008)  (Act  of  29 
December 2008 to establish a new Media Act), Staatsblad (State Journal) 2008, 583. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

force,  which  led  to  important  changes  for  both  public  service  and  commercial  media 
services.  Many  long-existing  legal  definitions  were  revoked  or  adapted  in  a  substantial 
way. Since then, the Media Act 2008 no longer refers to the term broadcaster but uses 
the  term  media  service  provider.  Also  the  long-standing  distinction  between  a 
programme  offer  for  general  purposes  and  a  programme  offer  for  particular  purposes 
(subscription programme) was abolished.3 

One  of  the  major  changes  was  the  abolishment  of  the  principal  distinction  between,  on 
the  one  hand,  TV  and  radio  programmes  and,  on  the  other  hand,  audiovisual  content 
offered  via  platforms  like  digital  thematic  channels  and  websites.  This  was  achieved  by 
wording  the  definition  of  the  public  media  remit  in  technically-neutral  and  platform-
neutral terms, as laid down in section 2.1 Media Act. This section underpins the principle 
that public  media service providers can serve their public remit through different media 
services  and  outlets,  independently  of  platform  or  technique.  Nevertheless,  the  media 
offer  has  to  meet  certain  qualitative  and  quantitative  requirements,  which  should 
guarantee  the  public  nature  of  these  services.  Especially,  it  must  be  ensured  that  the 
public media services serve the democratic, social and cultural needs of society. 

- Media pluralism/ownership; competition law aspects 

For  several  years,  the  Netherlands  had  different  rules  limiting  ownership  in  the 
broadcasting  and  the  daily  newspaper  market  and  restrictions  in  granting  broadcasting 
licences  initially  laid  down  in  the  Media  Act.  A  single  party  with  a  market  share  of  25 
percent  in  the  national  daily  newspaper  market  or  50  percent  in  the  local  and  regional 
market could not gain a licence for radio or television broadcasting. The government set 
up  a  Media  Concentration  Committee  in  order  to  investigate  the  necessity  of 
implementing  additional  legislation  to  guarantee  a  minimal  number  of  players  in  the 
media markets. In April 1999 the Media Concentration Committee examined the need for 
additional  regulations  with  respect  to  concentration  in  the  Dutch  media  sector  and 
concluded  that  the  existing  regulations  were  sufficient  to  combat  the  adverse  effects 
resulting from concentrations in the media sector. However, it recommended monitoring 
of  media  developments  by  an  independent  body.  The  Dutch  Government  commissioned 
this  task,  which  became  permanent  in  April  2003,  to  CvdM.  Hence,  the  Commissariaat 
set up the monitoring system in May 2001 and produced since then every year an annual 
report.4 The main objectives of the Dutch monitoring system are to  provide insight into 
the  public  information  supply,  concentration  developments,  ongoing  trends,  as  well  as 
analysis of particular issues related to media pluralism on an incidental basis. In the early 
years  the  focus  was  primarily  on  the  more  or  less  traditional  media  markets  of 
newspapers, radio and television. However, with the increased importance of the internet 
in opinion formation, the Mediamonitor now also includes all the media markets that are 
relevant  to  news  provision  and  consequently  opinion  power  in  society.  Moreover,  the 
Mediamonitor  also  addresses  free  newspapers,  news  usage,  press  agencies,  search 
engines, local newspaper editions and online news.  

There  is  no  limitation  on  the  number  of  licences  somebody  may  hold  for  commercial 
broadcasting, though the number of available terrestrial radio frequencies are limited, as 
long as a company complies with general Competition Law. In contrast, somebody cannot 
hold  more  than  one  public  broadcasting  licence.  Publishers,  supported  by  the  Media 
Authority,  called  for  relaxation  of  the  25  percent  threshold  in  order  to  stimulate 

3 

4 

Elementary  for  a  “programme  for  particular  purposes”  was  that  the  consumer  had  made  a  direct 
agreement with the programme service provider, but this did not reflect the situation in practice anymore. 
All reports are available on the website of the Mediamonitor, see:  
http://www.mediamonitor.nl/content.jsp?objectid=309 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

innovation  in  electronic  means  of  distribution.  With  the  Temporary  Act  on  Media 
Concentration,  Tijdelijke  wet  mediaconcentraties,  entering  into  force  in  2007  (this  Act 
existed  alongside  the  Media  Act  and  the  general  Competition  Act),  a  new  cross-media 
ownership  limitation  was  introduced  with  a  specific  threshold  for  the  daily  newspaper 
market. 

First, the Act prohibited mergers that would lead to a market share of over 90 percent of 
at  least  two  of  the  following  markets  collectively:  daily  newspaper,  television  and  radio 
markets  (where  the  three  markets  together  count  for  300  per  cent)  (note  that  only 
interests  in  one  single  company  of  50  per  cent  or  greater  are  counted).  Market  shares 
were  calculated  on  the  basis  of  circulation  for  daily  newspapers  and  viewer  or  listener 
ratings for television or radio, respectively. If a media company’s market share exceeded 
the stated thresholds due to autonomous growth, no measures would be taken. Second, 
the Act prohibited mergers that would lead to a market share greater than 35 per cent of 
the  daily  newspaper  market.  With  this  special  rule  for  the  daily  newspaper  market,  the 
Act  supported  newspapers  in  providing  a  counterweight  against  the  strong  position  of 
public broadcasting in the coverage of news and public affairs. 

Given the ongoing increase of media concentration and the government’s concern for the 
distribution  of  power  in  public  opinion  formation,  the  Temporary  Act  on  Media 
Concentration was extended in December 2009 to January 2012, but then repealed with 
effect  as  of  1  January  2011.  Since  that  date  specific  legislation  on  media  concentration 
no longer exists in the Netherlands. Publishers had called for relaxation of the ownership 
rules.  The  35  per  cent  threshold  was  argued  to  impede  their  cross-media  development 
and  it  was  supposed  that  daily  newspaper  titles  would  disappear  if  the  thresholds 
remained  in  existence.  Moreover,  the  ongoing  increase  of  alternative  news  sources  was 
argued  to  provide  sufficient  counterweight  against  the  larger  media  companies.  As  for 
the prevention of dominant positions of suppliers, general competition law also applies to 
the media markets. This is not to say that the assessment for mergers and acquisitions 
has  been  relaxed;  there  have  been  cases  where  competition  law  has  been  stricter  than 
the Temporary Act on Media Concentration. For example, the publisher De Persgroep was 
forced to sell its daily newspaper NRC after it took over its parent company PCM in 2009. 
Although this takeover was in accordance with the rules as set out in the Temporary Act, 
it could not be approved based on general competition law. 

Proposed  mergers  or  acquisitions  should  be  notified 
the  Nederlandse 
Mededingingsauthoriteit (NMa), which takes a decision, essentially within four weeks, as 
to  whether  the  merger/acquisition  in  question  should  be  licensed.  Concentration 
supervision applies only to ownership changes in which the combined turnover achieved 
for  the  previous  calendar  year  by  the  undertakings  involved  exceeded  113.5  million 
Euros, with at least two of the parties involved having realised at least 30 million Euros in 
the Netherlands (Article 29 of the Competition Act). 

to 

There are no legal limits on the market share. The NMa will have to investigate if there is 
an  abuse  of  a  dominant  position  on  the  relevant  market  and  this  depends  on  the 
behaviour of the parties. 

In  March  2000,  the  NMa  has  set  conditions  for  the  approval  of  the  acquisition  of  the 
VNU’s  regional  dailies  by  Wegener.5  In  order  to  prevent  Wegener  holding  a  dominant 
position in Gelderland and to guarantee competition in the region, Wegener was required 

5 

Besluit  van  de  directeur-generaal  van  de  Nederlandse  mededingingsautoriteit  als  bedoeld  in  artikel  41, 
vierde  lid,  van  de  Mededingingswet,  zaaknummer  1528/Wegener  Arcade-VNU  Dagbladen.  See: 
http://www.nma.nl/images/bcv1528-000322-155158.pdf. 

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to  sell  the  daily  papers  De  Limburger  and  Arnhemse  Courant.  Wegener  filed  an  appeal 
against the decision and the Court of Rotterdam granted the appeal in part. The outcome 
was that Wegener sold De Limburger to De Telegraaf group. In December 2001, after an 
appeal  to  the  Trade  and  Industry  Appeals  Tribunal,  the  ruling  was  overturned  implying 
that Wegener had still to fulfil the conditions set by NMa in the first place. In 2002, the 
NMa  stipulated  new  requirements,  namely  that  the  regional  editions  of  De  Gelderlander 
must be maintained and Wegener must support new entrants.6 

In  2010,  the  NMa  imposed  heavy  fines  on  Dutch  media  company  Koninklijke  Wegener 
and  on  five  of  its  executives.7  The  NMa  imposed  the  fines  for  non-compliance  with  an 
instruction that the NMa in 2000 imposed on Wegener in connection with its acquisition 
of publishing company VNU Dagbladen in 2000. The instruction was actually put forward 
by  Wegener  itself  in  order  for  the  NMa  to  grant  approval  to  the  acquisition  of  media 
company BN/De Stem. In the instruction, the NMa required that the independence of two 
regional  newspapers  would  continue  to  be  guaranteed;  thereby  not  just  ensuring  that 
readers  would  continue  to  enjoy  their  freedom  of  choice,  but  also  that  price  increases 
and reader selection reductions would be avoided. The NMa drew the conclusion that its 
trust  had  been  violated.  Its  investigation  revealed  that  there  was  a  single  news 
organization, where both the editorial and commercial policies were harmonized between 
BN/De  Stem  and  PZC.  Both  regional  newspapers  appeared  not  to  compete  with  one 
another. That is why the NMa decided to impose fines of more than 20 million Euros, on 
Wegener,  plus  personal  fines  on  five  Wegener  executives  for  the  role  that  these  had 
played in the violation. 

- Legal framework for psm; ability to fulfill their tasks 

The  Dutch  approach  to  public  service  media  is  unique  in  the  world,  especially  when  it 
comes  to  the  specific  role  of  public  service  broadcasting  associations,  the  so-called 
omroepverenigingen.  These  have  the  legal  status  of  association  or  foundation,  private 
organizations, though without the purpose of making profits. Each of them has hundred 
thousands of members and they are considered to represent certain groups and interests 
and thus together present a full-balanced picture of Dutch society. 

At  the  moment  there  are  eleven  autonomous  broadcasting  associations  active.  As  a 
consequence  of  the  government  agreement  further  elaborated  in  letters  to  Parliament8 
these associations have to merger in order to bring back the total number to six in 2016.  

In  addition  there  is  the  NTR9  responsible  for  information,  education  and  culture  (like 
children and arts programming).  

Furthermore there is the Dutch Broadcasting Foundation, Nederlandse Omroep Stichting 
(NOS),  who  provides  mainly  news  and  sports  programming.  Also  there  is  variety  of 
religious  and  spiritual  media  service  providers  who  reflect  a  spiritual  viewpoint  or 
religious  background.  In  future  these  organisations  are  expected  to  join  one  of  the 
existing associations or the NTR and thus will lose their autonomous status as well. 

6 

7 

8 

9 

See: www.nma.nl/documenten_en_publicaties/archiefpagina_nieuwsberichten/ 
nieuwsberichten/archief/2002/02_60.aspx. 
Besluit van de Raad van Bestuur van de Nederlandse Mededingingsautoriteit als bedoeld in artikel 79 van 
de  Mededingingswet,  zaaknummer  1528/894/Wegener.  See:    http://www.nma.nl/images/1528BLD22­
150949.pdf. 
Ministerie van OCW, 3 December 2010, Kamerbrief Uitwerking regeerakkoord onderdeel media (Ministry of 
Education,  Culture  and  Science,  3  December  2010,  Letter  to  Parliament  regarding  the  elaboration  of  the 
government agreement, media chapter). 
The  abbreviation  NTR  follows  from  the  names  of  the  three  public  service  broadcasters  which  in  2010 
merged into NTR: NPS, Teleac and RVU. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

All together they offer their programming on three main national TV channels and seven 
national  radio  channels.  In  addition  there  are  several  thematic  TV  channels  and  a  large 
offer of websites. The scheduling of the whole programming is carried out by the Dutch 
Public  Media  Service,  Nederlandse  Publieke  Omroep  (NPO),  who  –  as  an  ‘umbrella 
organization’  –  is  responsible  for  the  coordination  of  all  services  and  activities  or  the 
public service media. 

As  a  consequence  of  the  economic  and  financial  crisis,  also  public  service  media  are 
confronted  with  budget  cuts  of  at  least  200  million  Euros.  The  need  to  reduce  costs  of 
public  service  media  raised  also  discussions  about  the  role  of  public  service  media  and 
whether a small or broad programming should be provided. Some like the director of the 
NPO management board have warned that ongoing (political) discussions about the role 
and  programming  of  public  service  media  might  even  affect  its  independence  and 
autonomy in the long run. 

- The role and functioning of regulatory authorities in these respects 

When  it  comes  to  assessment  of  public  service  content  delivery,  both  the  Minister  of 
Education,  Culture  and  Science  and  the  Dutch  Media  Authority;  Commissariaat  voor  de 
Media (CvdM), play a role here.  

The  CvdM  performs  an  ex-ante  role  when  it  gives  its  comments  to  the  4  year  annual 
budget  plan  (Meerjarenbegroting)  of national  public  media.  Together  with  these 
comments the annual budget plan will be sent to the responsible Minister. This procedure 
is  taking  place  each  year  before  1  November.  The  Minister  will  decide  on  the  budget  in 
the end but takes into account the advises/comments by the CvdM and also the Council 
for Culture. In addition to that, each five years the national public media service releases 
its policy plan (Concessiebeleidsplan). By that occasion the NPO submits a new plan for 
its programme policy regarding TV, radio, digital thematic channels and services offered 
via  Internet-based  platforms.  The  CvdM  will  send  its  comments  regarding  these  NPO 
plans to the Minister. 

The  CvdM  has  also  an  ex-post  role  when  it  comes  to  monitoring  the  performance 
agreement  which  has  been  concluded  between  NPO  and  the  Minister.  The  current 
performance agreement covers the period 2010-2015. Here, the CvdM is involved in two 
ways. 

	  Firstly, by validating the way in which NPO will report. It is questioned whether the 
way of reporting is valid and reliable. In advance CvdM and NPO have to agree on 
what is a valid and reliable way of reporting, this is done once at the beginning of 
the period. Validity refers to the degree in which the test or other measuring device 
is  truly  measuring  what  NPO  intended  to  measure.  Reliability  is  synonymous  with 
the consistency of a test, survey, observation, or other measuring device. 

	  Secondly, by verifying the achievement of the content provisions. This refers to the 
examination  whether  NPO  met  the  requirements  and  achieved  the  aims  and  goals 
described. This is done every year before 1 June after having received the reports 
of the NPO. A base-line measurement will serve as a point of reference for verifying 
future developments. 

If  the  NPO  fails  to  comply  it  will  be  the  Minister  who  can  impose  sanctions,  except  for  
specific  aspects  of  the  agreement  dealing  with  audience  reach  targets  (since  the  NPO 
cannot really influence this).  

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Since  1998,  the Dutch Competition  Authority  (NMa)  is  responsible  for  implementing  the 
Competition  Act.  As  a  consequence  of  the  Temporary  Act  on  Media  Concentration  the 
CvdM had to advice (NMa)10, on whether the market share limits were not exceeded in a 
certain  case  or  a  concentration  in  which  one  or  more  media  companies  were  involved. 
The CvdM gave its opinion in six cases11: 

	  RTL Nederland and Radio 538 (6 July 2007); 

	  Koninklijke Wegener and Mecom Group (3 July 2007);  

	  Sky Radio Nederland and Telegraaf Media Groep (14 June 2007);  

	  PCM Uitgevers and De Persgroep (23 April 2009);  

	  HAL Investments and FD Mediagroep (23 December 2009);  

	  Egeria  Private  Equity  Fund,  Het  Gesprek  Media  Holding  and  NRC  Handelsblad  (12 

January 2010). 

In  all  these  cases  the  market  thresholds  as  stated  in  the  Temporary  Act  on  Media 
Concentration have not been exceeded.  

	  “Pursuit of Core Activity” 

-	 Ordinary law safeguards for journalistic activity 

During the last years some issues have been raised about the right of non-disclosure of 
journalists  in  the  Netherlands.  Unlike  many  other  countries  the  Netherlands  have  never 
opted  for  a  legal  foundation  of  this  right.  In  absence  of  such  a  legal  enshrinement,  the 
Dutch courts granted this right to journalists, depending on specific circumstances of an 
individual  case.  After  many  critical  comments  and  verdicts  of  the  European  Court  of 
Human  Rights  (ECHR),  government  decided  in  2009  to  submit  a  draft  amendment 
containing a legal right of non-disclosure but until now this proposal has not been passed 
by parliament. 

Draft-legislation  published  by  the  Dutch  Minister  of  Justice  in  2008  has  not  been 
submitted  to  Parliament  until  now.12  In  the  draft-proposal  the  Minister  decided  not  to 
impose  a  strict  definition  of  “journalist”  and  he  stressed  that  there  could  be  occasions 
when the public interest may outweigh the right to protect confidential sources and that 
a judge will have to make a ruling in these cases. This does not immediately answer the 
question  what  kind  of  public  interest  is  important  enough  to  outweigh  the  protection  of 
sources and it will have to be examined on a case-by-case approach. 

On 22 November 200713 the ECtHR ruled in the case Voskuil. The journalist Koen Voskuil 
working for the free daily sheet Sp!ts refused to reveal the identity of his source in 2000 
when  he  wrote  an  article  about  the  Amsterdam  criminal  scene.  Because  he  insisted  on 
not  giving  the  name  of  the  anonymous  police  officer,  who  was  quoted  in  the  press 
publications, he was put in detention for 18 days. The ECtHR ruled 7 years later that the 

10 

11 

12 

13 

See: http://www.nmanet.nl/en/Over_de_NMa/default.asp. 

See: http://mediamonitor.nl/content.jsp?objectid=417.
 
See: http://www.nvj.nl/docs/wetsvoorstel_bronbescherming.pdf. 

European  Court  of  Human  Rights  judgement,  Voskuil  v  The  Netherlands,  application  no.  64752/01,  22
 
November 2007. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

journalist’s  rights  under  article  10  of  the  European  Convention  of  Human  Rights14  had 
been  interfered.  The  Court  was  of  the  opinion  that  the  Dutch  authorities’  interest  in 
knowing  the  identity  of  the  source  in  order  to  safeguard  a  fair  trial  of  the  accused  was 
not sufficient to overrule Voskuil’s right of non-disclosure. According to the Court the far-
reaching measures of the Dutch authorities to learn the source’s identity will discourage 
persons who have information in the general interest in future from coming forward and 
sharing their knowledge with the press. Furthermore the Court ruled that the Netherlands 
had  infringed  article  5  of  the  Convention;  the  right  to  liberty  and  security,  because  the 
legal requirements of the detention procedure had not been met. 

In  its  ruling  of  14  September  201015  the  ECtHR  again  criticized  the  Netherlands 
authorities for a breach of article 10 of the Convention. Magazine Autoweek and publisher 
Sanoma were put in their right when they refused to hand over to police photographs of 
an illegal street car race. Sanoma held the view that the demand of the public prosecutor 
to surrender the photographs constituted an unlawful violation of the reporter’s privilege 
of  non-disclosure.  The  public  prosecutor  stated  that  the  interests  of  its  investigation 
outweighed  this  privilege.  Moreover,  since  the  race  was  held  in  public,  the  people  who 
were  in  the  photographs  could  not  count  on  these  photographs  not  being  disclosed.  In 
the  eyes  of  the  public  prosecutor,  Sanoma’s  reliance  on  the  reporter’s  right  of  non­
disclosure  could  therefore  not  hold.  Again,  the  ECtHR  disagreed  with  the  Netherlands 
authorities. The Court once again confirmed that the right of journalists to protect their 
sources is a cornerstone of freedom of the press. 

By  arresting  the  chief  editor  of  Autoweek  for  some  time  and  threatening  to  seal  and 
search  all  Sanoma  editorial  offices  in  case  of  not  surrendering  the  photographic 
materials,  the  Netherlands  has  clearly  breached  article  10  of  the  Convention. 
Furthermore,  this  restriction  of  the  freedom  of  expression  lacked  the  statutory  basis 
required by article 10, paragraph 2 of the Convention. The Court completely agrees with 
the  publisher  that  there  should  always  be  prior  judicial  control  with  legal  procedural 
safeguards  before  a  public  prosecutor  can  seize  journalistic  source  material.  The  ECtHR 
ordered the Netherlands to pay Sanoma an expense reimbursement of 35,000 Euros.  

Since  the  profession  of  journalist  is  not  defined  in  law,  the  question  who  can  be 
considered to be a journalist and gain a certain protection when it comes to disclosure of 
information has been addressed in several cases. 

The Dutch Supreme Court, Hoge Raad, ruled on 25 November 200516 in the Lycos-case 
that the role of an internet service provider (ISP), although he facilitates the access to, 
and  dissemination  of,  information  is  not  completely  similar  to  the  role  of  the  press  in  a 
free society. Therefore an ISP cannot claim the same degree of protection when it comes 
to disclosure of information. 

From a recent verdict of the Supreme Court of 18 January 200817 in the case Van 
Gasteren/Hemelrijk  it  can  be  concluded  that  almost  every  publication  on  the 
internet can be considered to be comparable with a press publication and should 
deserve the same level of protection. The case was about an open letter written 
by  a  private  person  on  a  personal  website  aimed  at  a  wide  audience  and 
therefore serving a general interest according to the Court. 

14 

15 

The Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the 
European Convention on Human Rights (ECHR)). 
European  Court  of  Human  Rights  judgement,  Sanoma  v.  the  Netherlands,  application  no.  38224/03,  14 
September 2010. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Specific positive content obligations 

Another  important  change  for  public  media  services  was  achieved  by  revoking  the 
programme-content  obligations.  Before,  national  public  media  service  providers  had  to 
broadcast  certain  minimum  percentages  of  information,  education  and  culture.  Also  a 
maximum  percentage  (25  per  cent)  for  entertainment  was  laid  down  in  the  Media  Act. 
Because  there  were  often  classification  issues  the  content  programme  obligations  have 
been replaced by more concrete goals regarding programme categories, audience reach 
and special target groups, which are laid down in performance agreements between the 
NPO, and the Minister of Education, Culture and Science. 

For  regional  and  local  public  media  service  providers  the  Dutch  Media  Act  2008  still 
contains  such  obligations  and  requires  that  at  least  50  per  cent  of  the  programme  of  a 
local (or regional) public service broadcasting organization should consist of information, 
culture or education which has a particular relevance to the municipality (or province) for 
which the programme is intended. 

- Funding schemes for specifically desired content 

The Press Fund, Stimuleringsfonds voor de Pers18, has the aim to  encourage innovation 
of the media landscape by funding. The Press Fund provides funding for print and digital 
media  (like  dailies,  non-dailies,  news  magazines  and  news  websites)  which  are 
journalistic in nature as well as for research into the press industry. 

For  newspapers  there  is  no  specific  fund  but  a  programme  was  recently  launched  to 
compensate newspapers for employing young journalists. 

- Political advertising and/or broadcasting time 

In the Netherlands political advertising on radio and TV is not prohibited. Nevertheless, in 
practice  the  possibility  to  buy  advertising  time  is  hardly  used  by  political  parties  in  our 
country because political parties already have the legal right to obtain broadcasting time 
on  the  national  radio  and  TV  channels  of  the  public  media.  Following  section  6.1  of  the 
Dutch  Media  Act,  broadcasting  time  is  allocated  to  political  parties  which  gained  one  or 
more  seats  in  the  House  of  Representatives  or  the  Senate  of  the  States  General  at  the 
last  elections  and  those  political  parties  who  are  standing  in  all  constituencies  in  an 
election  for  the  Senate  of  the  States  General  or  in  an  election  for  the  European 
Parliament. 

- Codes of conduct and their organisational framing 

As already mentioned in the 2004 report journalists in the Netherlands are committed to 
the Declaration of Principles on the conduct of Journalists as adopted by the International 
Federation  of  Journalists  1954.19  In  addition  to  that  publishers,  newspapers  editors  and 
the union of journalists respect individual editorial statutes which have the principal aim 
to  guarantee  editorial  independence.  The  Press  Council  does  not  have  real  sanction 
powers  like  issuing  fines  or  blames.  The  opinion  will  be  published  in  the  professional 
magazine  for  journalists  and  also  be  send  to  the  national  news  agency,  Algemeen 
Nederlands  Persbureau  (ANP),  and  to  the  media.  The  origin  of  the  Press  Council  in  the 
Netherlands  leads  back  to  1948  when  the  Netherlands  Union  of  Journalists  founded  the 

16 

17 

18 

19 

LJN: AU4019, Hoge Raad, C04/234HR.
 
LJN: BB3210, Hoge Raad, C06/161HR.
 
See: http://www.stimuleringsfondspers.nl/Internet/English/page.aspx/999. 

See: http://www.ifj.org/en/articles/ifj-declaration-of-principles-on-the-conduct-of-journalists.
 

505 


 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
  
 
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

'Raad van Tucht’, a disciplinary council, which functioned as a kind of Press Council until 
1960. In that year the Press Council in its current form was founded. In addition to the 
Press  Council,  Raad  voor  de  Journalistiek20,  which  can  be  considered  as  pure  self-
regulation, two types of co-regulation in can be distinguished. 

A general code of conduct for journalists does not exist in the Netherlands, but in 2007 
the  Press  Council  published  the  so-called  Leidraad  van  de  Raad  van  de  Journalistiek:  a 
systematic and thematic overview of the standards as applied by the Council.21 

Broadcasters  are  obliged  by  the  Dutch  Media  Act  2008  to  establish  editorial  statutes 
safeguarding  editorial  independence  of  their  editorial  employees.  In  the  specific  case  of 
sponsored programmes a statute should also protect editorial staff from being influenced 
by commercial motives. Especially newsrooms also tend to have their own written codes 
of ethics, for instance to provide guidance on issues like  how  to deal with social media. 
Although not legally required, almost every Dutch newspaper also has an editorial statute 
as a consequence of an agreement between publishers and journalist unions. 

- The role and functioning of regulatory authorities in these respects 

Citizens and companies versus RA’s: legal an natural persons have the right to lodge an 
internal appeal, and after appeal and higher appeal at the administrative court when they 
disagree with a decision of a RA. Further procedural rules are laid down in de General Act 
on Public Administration (Algemene wet bestuursrecht).  

RA’s  versus  central  government:  Decisions  of  RA’s  can  only  be  annulled  by  minister  in 
specific incidental cases of violation of law or the general interest. Further rules regarding 
independent  functioning  of  autonomous  administrative  bodies  are  laid  down  in 
zelfstandige 
Framework  Act 
bestuursorganen). 

administrative 

autonomous 

(Kaderwet 

bodies 

  Distribution Aspects 

- Access to frequencies 

Article  6.24,  paragraph  1,  of  the  Media  Act  2008  states  only  one  FM  frequency  or 
combination of FM frequencies shall be used to transmit the radio programme services of 
one  and  the  same  organisation.  Exemptions  from  these  requirements  are  only  possible 
by, or pursuant to, an Order in Council if this is deemed desirable in connection with an 
efficient use of frequency space (article 6.24, paragraph 3, of the Media Act 2008). 

To safeguard diversity, specific requirements for some of the frequencies determine what 
music  style  may  be  broadcast  (article  6.23  Media  Act  2008).  Regional  and  local  public 
radio  are  prioritized  in  granting  frequencies  following  article  3.3  paragraph  2  and  3,  of 
the  Telecommunications  Act  but  they  have  to  comply  with  programming  requirements 
that  aim  at  securing  a  minimum  amount  of  (regional  or  local)  information,  culture  and 
education (article 2.70 Media Act 2008). 

- Access to distribution networks and control of actual conditions 

The purpose of communications markets regulation is to ensure that competitive markets 
develop.  Consumers  and  customers  will  ultimately  benefit  from  this.  After  all,  to  a 

20 

21 

See: http://www.rvdj.nl/?katern=15. 
See: http://www.rvdj.nl/rvdj-archive//docs/Leidraad%20RvdJ%20-%20september%202010.pdf. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

significant  extent  competition  is  capable  of  ensuring  that  qualitatively  superior  services 
are  provided  for  an  appropriate  price.  Analysis  represents  the  first  step  of  regulation; 
whether  certain  providers  have  significant  market  power.  Such  a  party  may  pose  an 
obstacle to the evolution of competition. The Independent Post and Telecommunications 
Authority  (OPTA)  then  decides  what  remedies  should  apply  in  relation  to  such  a  party. 
This regulation occurs on the basis of market analyses which OPTA is required to conduct 
every  three  years.  It  is  referred  to  as  ex  ante  regulation  because  the  rules  to  which 
market parties have to comply with are drawn up beforehand. In addition, OPTA monitors 
market  parties’  compliance  with  their  obligations.  It  is  through  regulation  that  OPTA 
enforces European telecommunications legislation and its implementation at the national 
level in the Dutch Telecommunications Act. Under this Act, which came into effect on 15 
December  1998,  tasks  were  assigned  to  OPTA  with  respect  to  the  supervision  of 
broadcasting  networks,  particularly  with  regard  to  the  settlement  of  disputes  between 
cable  network  operators  and  programme  providers.  OPTA  has  also  been  given  a 
supervisory role with respect to conditional access systems (decoder boxes). 

In  March  2009  OPTA  published  some  rulings  based  on  market  analysis22.  These  rulings 
implied  that  the  biggest  Dutch  cable  operators  (Ziggo,  UPC,  Delta  and  Caiway)  had  to 
open  their  networks  and  enable  third  parties  to  resell  the  analogue  cable  products  (TV 
subscription packages). The ratio of the ruling of OPTA was to foster competition on the 
Dutch cable networks, a motivation which was supported by the European Commission as 
well. The cable network operators appealed the OPTA-decision and rather surprisingly the 
court,  the  Dutch  Trade  and  Industry  Appeals  Tribunal,  College  van  Beroep  voor  het 
bedrijfsleven (CBb), overturned the OPTA-decision23. The CBb’s verdict has far-reaching 
implications  for  the  Open  Cable  ruling  in  the  Netherlands.  Main  reason  for  overturning 
OPTA’s decision was that OPTA’s analysis of the markets for distribution of TV signals, the 
basis  of  its  decision,  was  not  correct.  The  Tribunal  agreed  with  the  cable  network 
operators’  opinion  that  there  is  already  enough  competition  between  the  various 
distribution  platforms  (cable,  satellite,  IPTV  and  DTT)  in  the  Netherlands  and that  there 
was no need to force cable operators to open their networks for competitors. There are 
no further appeals possible following a ruling by the Tribunal. OPTA made a new decision 
which is in line with the motivation of the Tribunal’s verdict. 

- Must-carry/must-offer rules for electronic media 

Public media service providers enjoy a must-carry privilege, and are therefore ensured of 
cable transmission (Article. 6.13 Media Act 2008; see section 2.2.1.2.5). Cable operators 
are  legally  bound  to  carry  seven  television  and  nine  radio  channels.  These  must  carry 
channels - the Dutch and Belgian/Flanders public broadcasting channels – are part of the 
so-called  “basic  package”  of  15  television  and  25  radio  programmes  that  should  be 
transmitted in analogue subscription packages.  

- Role of platform operators 

In  future  there  will  be  a  new  regime  for  access  to  cable  networks  and  also  other 
distribution  platforms.  This  regime  will  have  to  be  followed  by  all  platform  operators 
offering TV and radio channels, so not only cable network operators but also operators of 
DTT, satellite and IPTV.  By that occasion the mandatory role of programme councils will 

22 

23 

See: http://www.opta.nl/nl/wat-doet-opta/markten/omroep/.
 
LJN: BN4243, College van Beroep voor het bedrijfsleven, AWB 09/536 tot en met 09/539 en 09/541 tot en
 
met 09/548. 

507 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

be terminated.24 Main rule will be that a minimum of 30 channels should be included in a 
digital package, this including the must-carry channels. 

DTT multiplexes have been allocated following a beauty contest (comparative test based 
on  business  plans  of  applicants).  In  addition  there  is  also  the  instrument  of  benefit  
sharing.  From  7  years  after  the  license  has  been  granted.  KPN,  the  current  incumbent 
owning  the  commercial  multiplexes,  pays  a  certain  percentage  of  its  turnover,  above  a 
certain  level.  The  license  has  been  granted  in  2002  for  a  total  period  of  15  years,  so  it 
will  expire  in  2017.  National  public  service  media  have  are  legally  entitled  to  have  a 
multiplex  as  well  and  its  channels  are  included  in  the  DTT  package  (brand  name: 
Digitenne)  offered  by  KPN.  In  each  province  the  channels  of  the  regional  public  service 
media, active in that specific province, are also included the Digitenne package. 

- The role and functioning of regulatory authorities in these respects 

The Radio Communications Agency, Agentschap Telecom (AT)25, grants frequency space 
to commercial parties on the basis of application order, auctions or a comparative testing 
(Article  3.3,  paragraph  4,  of  the  Telecommunications  Act).  Worth  noting  that  the 
frequencies held by licence holders may change due to mergers or acquisitions. 

The  Independent  Post  and  Telecommunications  Authority,  Onafhankelijke  Post  en 
Telecommunicatie  Autoriteit  (OPTA)26,  regulates  the  communications  markets  in  the 
Netherlands. 

There is a close operation between the three authorities in overlapping cases/situations. 
Discussions have taken place between NMa, the CvdM and OPTA on problems regarding 
access  to  the  cable  network.  Meetings  were  also  held  in  1998  between  NMa  and  OPTA 
regarding conditional access. Finally, OPTA consulted with the NMa on the application of 
general rules of competition in drawing up OPTA’s first consultation document ‘Significant 
Market Power’. 

NMa  and  OPTA  work  together  according  to  the  so-called  Cooperation  Protocol27,  which 
was drawn up in 2004 and has been amended due to changes in the Dutch Media Act in 
2005.  Behaviour  that  is  in  violation  of  both  the  Dutch  Telecommunications  Act  and  the 
Dutch Competition Act is investigated by the OPTA first. 

It  is  planned  that  from  January  1,  2013  OPTA,  NMa  and  the  Dutch  Consumer  Authority 
will  be  merged  in  a  brand  new  regulator  called  the  Dutch  Authority  for  Consumers  and 
Markets (ACM).28 

  Access to Information 

- Transparency of media ownership situations 

Since  2001  the  Mediamonitor  section  of  the  CvdM  publishes  an  annual  report  about 
trends  and  developments  in  the  media  market  (written  press,  TV,  radio  and  new 

24  Ministerie van Onderwijs, Cultuur en Wetenschap (5 december 2011). Brief aan de Tweede Kamer inzake 
Wijziging  Mediawet  i.v.m.  distributie  wettelijke  minimumpakket  radio  en  televisie,  p.14.  (Ministry  of 
Education, Culture and Science, 5 December 2010, Letter to Parliament regarding the composition of the 
minimum packages in which digital radio and television broadcasting services are transmitted). 
See: http://www.agentschaptelecom.nl/english. 
See: http://www.opta.nl/en/. 
See: http://www.opta.nl/en/news/all-publications/publication/?id=1366. 
See: http://www.opta.nl/en/news/all-publications/publication/?id=3487. 

28 

25 

26 

27 

508 


 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
  
 
  
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

media).29 The report covers aspects like media ownership, market shares, ongoing trends 
and  specific  issues  related  to  media  pluralism.  1  There  is  no  legal  obligation  for  media 
companies  to  submit  information  to  the  CvdM  which  collects  its  information  mainly  by 
using  public  sources  of  information  like  annual  reports,  press  releases,  information 
provided  through  the  websites  of  media  companies,  the  information  filed  in  the  Trade 
Register  of  the  Chamber  of  Commerce  and  press  publications.  The  CvdM  also  asks  the 
media  companies  covered  in  the  reports  to  verify  and  check  the  information  which  it 
intends to publish. 

The  report  is  sent  to  the  Minister  of  Media  Affairs  as  well  as  the  Parliament.  It  is  also 
available  for  all  interested  parties  (press,  industry  and  public)  and  published  on  the 
website.  The  observations  of  the  CvdM  could  give  the  legislature  grounds  for  adapting 
new  media  (ownership)  legislation.  The  publication  of  the  yearly  reports  by  the 
Mediamonitor section of the CvdM will obtain a legal basis in the Media Act. 

- Accountability of public service media 

In  the  Netherlands  there  are  several  moments  when  the  national  public  service  media 
have to account for their content and activities and their performance is assessed by the 
regulatory authorities. 

First  of  all  it  exists  an  ex  ante  regulation:  each  year  it  announced  its  policy  for  the 
upcoming 4 years in its annual budget plan (Meerjarenbegroting) of PSB. The CvdM gives 
also its comments on this plan and together with these remarks of the CvdM the 4 year 
budget  plan  will  be  sent  to  Minister.  This  procedure  is  taking  place  each  year  before  1  
November. The minister will decide on the budget in the end but takes into account the 
advises/comments by the CvdM and also the Council for Culture.  

Secondly  each  5  years  when  the  PSB  gives  its  comments  to  the  policy  plan 
(Concessiebeleidsplan) which are released every 5 years. 

The  CvdM  has  also  an  ex  post  role  when  it  comes  to  monitoring  the  performance 
agreement  which  has  been  concluded  between  PSB  and  the  Minister  The  latest 
performance agreement covers the period 2010-2015. The CvdM is involved in 2 ways.  

Firstly, by validating the way in which PSB will report. Is the way of reporting valid and 
reliable? In advance CvdM and PSB have to agree on what is a valid and reliable way of 
reporting, this is done once at the beginning of the period. Validity refers to the degree in 
which  our  test  or  other  measuring  device  is  truly  measuring  what  we  intended  it  to 
measure. 

Reliability  is  synonymous  with  the  consistency  of  a  test,  survey,  observation,  or  other 
measuring device. 

Secondly,  by  verifying  the  achievement  of  the  content  provisions.  Did  PSB  meet  the 
requirements and achieve the aims and goals described? This is done every year before 
summer after having received the reports of PSB. A baseline measurement will serve as a 
point of reference for verifying future developments. 

If PSB fails to comply it will be the Minister who can impose sanctions.  

29 

This resulted from the Ministry of Education, Culture and Science asking the CvdM to monitor closely the 
impact of media concentration on media diversity and independence.  

509 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Freedom of information laws 

The  Freedom  of  information  legislation  was  first  adopted  in  1978  and  replaced  by  the 
Government  Information  (Public  Access)  Act,  Wet  Openbaarheid  van  Bestuur  (WOB)  in 
1991.30  The  act  regulates  how  individuals  can  demand  information  on  administrative 
matters  contained  in  documents  held  by  public  authorities  or  companies  carrying  out 
work for a public authority. The authority in question has two weeks to respond. 

In  two  verdicts  of  19  January  201131  the  Council  of  State,  Division  of  administrative 
disputes,  the  highest  administrative  court  in  the  Netherlands,  confirmed  that  the 
application of the WOB has to be evaluated in the light of article 10 of the ECHR. It was 
for  the  first  time  a  Dutch  court  took  article  10  of  the  Convention  explicitly  into 
consideration when issuing a ruling about the application of the WOB in practice. 

Several legal disputes have been raised about the question whether public authorities are 
entitled  to  charge  citizens  or  journalists  for  providing  information  following  a  WOB 
information  request.  At  the  end  of  2011  RTL  News  who  refused  to  pay  a  fee  for 
documents  provided  by  the  local  government  of  Maastricht  was  put  in  the  right  by  the 
administrative court. Public authorities may only request for compensation of copy costs, 
but nothing more.32 

- Accessibility of products/services and distribution networks 

The measures mentioned above are not applicable in the Netherlands. Access of hearing 
impaired  people  to  TV  programmes  of  both  private  and  public  service  media  is  ensured 
by minimum percentages of subtitling. 

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on 
universal  service  and  users'  rights  relating  to  electronic  communications  networks  and 
services is implemented in the Telecommunications Act. Especially chapter 7 and 9 of the 
Telecommunications  Act  contain  rules  regarding  access  to  universal  services.  The 
Netherlands  has  designated  universal  services  to  the  incumbent  KPN:  connection, 
telephone  service,  telephone  directory  and  subscriber 
information  service.  The 
designation  for  telephone  boxes  was  terminated  in  2009.  Universal  services  must  be 
offered at reasonable cost, without other tariff regulations. Further tariff regulations have 
been  established  for  one  component  of  telephone  service,  which  is  the  so-called 
‘accessibility subscription’ (relatively low subscription cost). 

No  universal  service  fund  has  been  established  to  compensate  for  losses  in  offering 
universal services. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Although very often discussed in the past, until now a national ombudsman for the press 
has  never  been  appointed.  But  some  newspapers  have  decided  to  install  their  own 
ombudsman for dealing with complaints and questions. 

30 

31 

32 

Act of 31 October 1991, see: http://legislationline.org/documents/action/popup/id/6395. 
LJN: BP1315, AB RvS 19/01/2011 & LJN: BP1316, AB RvS 19/01/2011. 
LJN: BU8432, Gerechtshof 's-Hertogenbosch, 11/00113. 

510 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Participation in media operators/(self-)regulatory bodies 

There  are  no  such  participation  in  bodies  of  media  operators  or  in  (self-)  regulatory 
authorities/bodies. 

2.2.19.2.  Main Players in the Media Landscape 

2.2.19.2.1. 

Radio 

The  national  public  media  service  NPO,  operates  seven  main  radio  stations.  FunX  has 
been introduced in 2002 and Radio 6 in 2006 (formerly 747 AM). The composition of the 
channels is the responsibility of channel managers. Aside from the NPO, there are also 14 
private  radio  stations  owned  by  nine  different  suppliers.  National  public  service  radio 
channels  account  for  33.3  percent  of  the  market  share while  the  regional  public  service 
has  11.9  percent,  a  combined  share  of  almost  half  the  audience  (44.9  percent).  The 
other  half  is  divided  between  the  national  and  regional  commercial  channels.  Regional 
commercial  channels  united  in  E-Power  have  a  4.8  percent  share  of  the  market.  Sky 
Radio Group, owned by media company Telegraaf Media Groep, is with three commercial 
radio  channels  the  largest  player  in  the  market  after  NPO.  All  radio  channels  of  RTL 
Nederland (including the shortly owned Slam!FM) have been exchanged and party sold to 
Talpa Media in 2011 as an consequence of Talpa’s participation in television broadcaster 
SBS  Nederland.  Talpa  Media  has  again  become  owner  of  Radio  538  and  Radio  10  Gold 
with this transaction. 

Table 103 NL: Main radio companies 

Companies 

Ownership 
Structure* 

Main Radio 
Stations 

Nederlandse 
Omroep 

Publieke 

Public 
(foundation) 

service 

Telegraaf Media Groep 
NV 87.4% 

Group 

RTL 
Bertelsmann 
73.7% 

/ 
AG 

Sky Radio Group BV 

RTL Nederland BV 

De Persgroep NV 
RadioCorp BV 
Slam!FM BV 
Arrow Media Groep BV 

FD Mediagroep BV 

Radio 1 
Radio 2 
Radio 3FM 
Radio 4 
Radio 5 
Radio 6 
FunX 

Sky Radio 
Radio Veronica 
Classic FM 
Radio 538 

Radio 10 Gold 
Q-Music 
100%NL 
SlamFM! 
Arrow 
Rock 
Arrow Jazz FM 
BNR 
Nieuwsradio 

Classic 

Total 
Market 
Share  2010 
(%)** 
33.0 

16.1 

12.8 

8.3 
9.9 
9.5 
2.1 
2.9 
0.3 
n.a 
. 
8.5 
5.6 
2.0 
10. 
2 
2.6 
6.7  6.7 
4.0  4.0 
2.0  2.0 
1.5 
1.1 

0.4 
1.0  1.0 

Note:  Selection  of  'main'  radio  companies:  market  share  of  1  percent  or  larger  per 
station. 

* Source: annual reports / Chamber of Commerce (www.kvk.nl).  

511 


 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
  
  
  
  
  
 
 
  
  
 
 
  
 
 
 
  
 
  
 
  
 
  
 
 
  
 
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

**  Source:  Dutch  Media  Authority  (2011).  Mediamonitor:  Mediabedrijven  en 
mediamarkten 2001-2010, pp. 88-89.  

During  the  last  years,  radio  broadcasters  have  been  launching  an  increasing  amount  of 
digital  radio  stations,  mostly  online  accessible.  An  experiment  started  with  the  main 
public radio stations via digital terrestrial radio Terrestrial Digital Audio Broadcasting (T­
DAB) in 2011. Although already planned long time ago, no concrete date for an auction 
of  frequencies  for  commercial  service  providers  has  been  set.  Because  an  increasing 
number  of  people  listen  digital  radio  via  open  internet  some  question  whether  there  is 
need for a further rollout of T-DAB frequencies. 

2.2.19.2.2. 

Television 

The  television  sector  is  dominated  by  the  activities  of  three  strong  suppliers:  The  NPO 
together with the biggest commercial operators RTL Nederland and SBS Nederland jointly 
control 76 percent of the market.  

All  broadcasting  associations  within  the  NPO  share  three  nationwide  television  channels 
and  six  radio  channels.  At  the  regional  level  operates  in  each  province  at  least  one 
independent public service broadcaster. These broadcasters are independently organised 
and have joint market share of 1.7 percent in 2010. 

The  national  commercial  broadcasters  in  the  Netherlands  are  part  of  large  international 
corporations. RTL Nederland holds six commercial broadcasting licenses, which are used 
for  providing  the  channels  RTL4,  RTL5,  RTL7,  RTL8  and  the  digital  (thematic)  channels 
RTL Lounge and RTL Crime. The media group Bertelsmann has 73.3 of the share capital 
of the Luxembourg-based RTL Group. The company was also involved in radio until 2011 
(Radio 538, Radio 10 Gold and shortly Slam!FM before it was sold as described earlier in 
section  2.1).  RTL  Group  is  a  leading  television  content  producer  and  the  largest 
independent distribution company outside the US (Fermantle).  

SBS Nederland operates the channels SBS6, NET5 and Veronica. Moreover, the company 
owns  the  company  that  publishes  the  weekly  television  and  radio  guide  Veronica 
Magazine, which is the largest weekly publication in the Netherlands, with a circulation of 
approximately 0.9 million. As of 2011, former mother company ProSiebenSat.1 sold SBS 
Nederland as well as the Belgium branch to Sanoma Group (67 percent share) and Talpa 
Media (33 percent share). The Finnish Sanoma Group is having a leading position in the 
Dutch magazine market for years and Talpa Media, owned by media tycoon John de Mol, 
is strong in the (international) television content production industry.  

512 


 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 104 NL: Main Television Companies 

Companies 

Ownership 
Structure* 

Main Television Stations 

Nederlandse 
Omroep 

Publieke 

Public 
(foundation) 

service 

Group 

RTL 
Bertelsmann 
73.7% 

/ 
AG 

ProSiebenSat.1 
Media AG 100% 

Nederland 1 
Nederland 2 
Nederland 3 
RTL4 
RTL5 
RTL7 
RTL8 
SBS6 
Net5 
Veronica 

RTL Nederland BV 

SBS Nederland BV 

MTV Networks BV 

Viacom Inq 100%  MTV 
TMF 
Nickelodeon 
Comedy Central 
Discovery 
Channel 
Animal Planet 
DisneyXD 

Discovery 
Communications  Benelux 
BV 
Jetix Europe Channels BV  The  Walt  Disney 

Discovery 
Communications 
Inq 100% 

Total Market  
Share 
(%)** 
34.8 

2010 

24.7 

16.6 

4.1 

2.5 

1.6 

21.5 
6.8 
6.5 
14.4 
4.0 
4.6 
1.7 
10.0 
3.5 
3.1 
0.8 
0.5 
1.8 
1.0 
1.5 

1.0 
1.6 

NGC Network Ltd 

Company 

National 
Geographic 
Channel 

1.1 

1.1 

Note:  Selection  of  'main'  television  companies:  market  share  of  1  percent  or  larger  per 
station. 

*  Source:  annual  reports  /  Chamber  of  Commerce  (www.kvk.nl)  /  Mavise  database 
(http://mavise.obs.coe.int). 

**  Source:  Dutch  Media  Authority  (2011).  Mediamonitor:  Mediabedrijven  en 
mediamarkten 2001-2010, p. 81.  

2.2.19.2.3. 

Press and publishing 

As  is  the  case  with  television,  the  daily  paper  sector  is  dominated  by  the  activities  of 
three  strong  suppliers.  The  principle  of  ‘three  is  the  rule’  which  refers  to  a  situation 
where the three major publishers jointly control 90 percent of the market does however 
not  apply  to  the  newspaper  market  anymore:  Telegraaf  Media  Group  (TMG),  de 
Persgroep  and  Koninklijke  Wegener  together  control  70.3  percent  of  the  market.  It 
should  be  noted  the  daily  newspaper  sales  in  the  Netherlands  are  for  a  large  majority 
subscription-based (see section 2.6). 

Telegraaf  Media  Group  is  a  stock  exchange  listed  (Euronext),  independent  Dutch  media 
group  that  is  primarily  active  in  the  market  for  daily  newspapers,  (mainly  puzzle) 
magazines  and  door-to-door  papers.  The  name  Telegraaf  Media  Groep  originates  from 
the  Dutch  national  daily  De  Telegraaf,  which,  introduced  in  1893,  grew  to  become  the 
Netherlands’ largest newspaper. TMG also publishes the free newspaper Sp!ts (launched 
in  1999)  and  several  regional  daily  newspapers.  Alongside  the  publishing  activities,  the 
group has also interests in broadcasting companies. The group is having 6 percent of the 
shares  in  ProSiebenSat.1,  parental  company  of  SBS  Nederland  until  2011.  In  addition, 
TMG is major shareholder of Sky Radio Group which is licence holder of the national radio 
stations Sky Radio, Radio Veronica and Classic FM. As for online activities, TMG has been 

513 


 
 
 
 
  
 
  
  
  
 
 
  
  
 
 
  
  
  
 
  
 
 
 
  
 
 
  
 
 
  
 
  
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

expanding  its  activities  in  this  field  for  over  the  last  years.  The  media  group  acquired, 
amongst  others,  weblog  GeenStijl  and  social  network  site  Hyves  which  is  the  Dutch 
version of international equivalent Facebook. TMG daughters De Telegraaf and GeenStijl 
were  both  involved  in  2010  in  the  application  for  a  public  broadcasting  licence.  The 
licences were however granted under the condition that TMG would break its commercial 
connections with the two public broadcasting associations WNL and PowNed.  

PCM  Publishers  was  a  large  publisher  of  national  daily  newspapers  between  1995  and 
2009. Its five national titles were: de Volkskrant, Trouw, NRC Handelsblad, nrc.next and 
Algemeen Dagblad. In 2005, the latter was integrated into a joint venture with Wegener, 
creating  the  AD  Nieuwsmedia  company.  From  2004  to  2009  the  British  investment 
company  APAX  Partners  was  the  majority  shareholder  of  PCM  Uitgevers.  Under  APAX’s 
ownership  the  publishers’  capital  shrank  considerably  and  the  depts  grew  significantly. 
Since  2009,  PCM  Publishers  has  been  called  de  Persgroep  Nederland  BV  (Persgroep 
Nederland),  a  subsidiary  of  the  Belgian  Persgroep  NV  that  acquired  the  majority  of  the 
share.  The  titles  NRC  Handelsblad  and  nrc.next  were  sold  to  Lux  Media  by  order  of  the 
Dutch Competition Authority, so that as of that date the newspaper portfolio of Persgroep 
Nederland  consisted  of  AD,  de  Volkskrant  and  Trouw.  Het  Parool  was  added  to  the 
portfolio  in  January  2010.  AD  is  a  national  and  regional  daily  in  one;  the  newspaper’s 
editions come in with different regional sections. 

At  the  regional  level,  one  single  publisher  determines  the  offer  in  many  parts  of  the 
country. Mecom holds with 51 percent of all regional dailies the strongest position on the 
regional  market.  In  many  provinces  there  is  only  one  publisher  dominating  the  market 
(from  60  to  99  percent  of  the  market).  Even  in  the  province  of  Utrecht  where  four 
publishers supply regional titles, the market is highly concentrated due to de Persgroep’s 
dominant  position.  In  four  towns  there  is  no  competition  on  the  regional  market. 
However,  the  provinces  of  North  Holland,  South  Holland  and  Flevoland  have  several 
publishers operating their regional markets. 

Since  2007,  the  exchange-listed  Mecom  Group  plc  (Mecom)  owns  86.4  percent  of  the 
shares  of  the  largest  regional  publisher  in  the  country,  Koninklijke  Wegener  NV 
(Wegener).  Media  Groep  Limburg  BV,  publisher  of  the  two  Limburg  newspapers,  has 
been fully owned by Mecom since 2006. Mecom recently disposed of many international 
holdings  and  activities  (amongst  others  in  Poland)  and  is  at  this  moment  active  in 
Denmark  and  Norway,  in  addition  to  the  Netherlands.  In  total,  the  company  operates 
more  than  300  independent  (daily)  titles  and  200  websites.  Mecom  has  set  itself  the 
express objective of becoming a cross-media content company, primarily in regional and 
local  markets.  In  spite  of  this,  Wegener  sold  its  share  in  AD  Nieuwsmedia  to  PCM 
Uitgevers in 2009. 

514 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 105 NL: Main Publishing Companies 

Main companies 

Ownership 
Structure* 

Main Titles/ Market Share 2010 
(%) 

Telegraaf 
Groep NV 

Media 

Koninklijke  Wegener 
BV/  Media  Group 
Limburg BV 

Mecom  Group  Plc 
86.4% 

de 
Nederland BV 

Persgroep 

De  Persgroep  NV 
58.5% 

Metro Holland BV 

Lux Media BV 

NDC Mediagroep BV 

Mountain Media BV 
FD Mediagroep BV 

Metro 
International  SA 
100% 

HAL  Holding  BV 
98,3% 

/ 

de 

Limburger 

14.4 
7.3 
5.5 
4.0 

De Telegraaf  
Sp!ts 
HDC-dagbladen  
Dagblad 
Limburgs Dagblad 
3.4 
de Gelderlander  
3.0 
de Stentor  
Brabants Dagblad  
3.0 
De Twentsche Courant Tubantia   2.6 
2.6 
BN/DeStem  
2.5 
Eindhovens Dagblad  
1.3 
PZC 
10.2 
AD-dagbladen 
6.0 
de Volkskrant  
2.5 
Trouw 
2.0 
Het Parool 
9.3 
Metro 

NRC Handelsblad 
nrc.next 
Dagblad van het Noorden 
Leeuwarder Courant 
Dagblad De Pers 
Het Financieel Dagblad 

4.6 
1.6 
3.2 
2.1 
4.7 
1.4 

Total 
Market 
Share 
2010 
(%)** 
27.2 

22.4 

20.7 

9.3 

6.2 

5.3 

4.7 
1.4 

Erdee Media Groep BV 
Note: Selection of 'main' publishing companies: market share of 1 percent or larger per 
title. 

Reformatorisch Dagblad 

1.2 

1.2 

* Source: annual reports / Chamber of Commerce (www.kvk.nl).  

**  Source:  Dutch  Media  Authority  (2011).  Mediamonitor:  Mediabedrijven  en 
mediamarkten 2001-2010, pp. 63-64.  

515 


 
 
  
 
  
  
  
  
  
  
  
  
 
 
  
  
  
  
 
 
 
 
  
 
  
  
 
  
  
 
  
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 106 NL: Concentration of regional dailies in geographical areas (market 
share 2010 (%) 
p
u
o
r
G

a
d
e
M

V
B

V
B

i

l

m
o
c
e
M
0.0 

c
l
p

Groningen 

p
e
o
r
g
s
r
e
P

d
n
a
l
r
e
d
e
N

e
d
0.3 

V
N
p
e
o
r
G

f
a
a
r
g
e
e
T
0.0 

l

p
e
o
r
g
a
C
d
D
e
M
N
99.1 

i

d
a
b
g
a
D
h
c
s
e
i
r
F

i

i

g
n
g
n
e
r
e
V
0.6 

s
r
e
v
e
g
t
i
U

e
k
j
i
l

i

k
n
n
o
K
0.0 

U
D
B

V
B

Friesland 

0.0 

0.2 

0.0 

86.1 

13.6 

0.0 

Drenthe 

0.6 

0.2 

0.0 

99.1 

0.1 

0.0 

Overijssel 

99.6 

0.2 

0.0 

0.2 

0.0 

0.0 

Gelderland 

94.8 

0.3 

0.0 

0.0 

0.0 

4.8 

Utrecht 

2.4 

92.2 

5.1 

0.0 

0.0 

0.4 

Noord-Holland  28.2 

0.0 

71.8 

0.0 

0.0 

0.0 

Zuid-Holland 

0.0 

88.9 

11.1 

0.0 

0.0 

0.0 

Zeeland 

99.9 

0.1 

0.0 

0.0 

0.0 

0.0 

Noord-Brabant  99.9 

0.2 

0.0 

0.0 

0.0 

0.0 

Limburg 

99.9 

0.1 

0.0 

0.0 

0.0 

0.0 

Flevoland 

59.9 

26.7 

6.2 

5.2 

1.9 

0.0 

*  Source:  Dutch  Media  Authority 
mediamarkten 2001-2010, p. 70.  

(2011).  Mediamonitor:  Mediabedrijven  en 

Table 107 NL: Concentration of the market of regional dailies 

Publishing Companies 

Market Share 2010 
(%)* 

Mecom Group plc 

De Persgroep Nederland BV 

Telegraaf Media Groep NV 

NDC Mediagroep BV 

Vereniging Friesch Dagblad 

Koninklijke BDU Uitgevers BV 

51.0 

23.0 

12.5 

12.1 

0.8 

0.6 

*  Source:  Dutch  Media  Authority 
mediamarkten 2001-2010, p. 70.  

(2011).  Mediamonitor:  Mediabedrijven  en 

516 


 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.19.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The  existing  news  suppliers,  mainly  those  of  national  dailies,  gained  a  solid  position  in 
the online news market during the early days of the internet. Yet in 2010, the majority of 
the  news  sites  is  still  in  the  hands  of  the  main  publishing  houses.  Nevertheless,  the 
website with currently the highest monthly reach is the internet-only news service nu.nl. 
The number two and three are the websites of national daily newspaper De Telegraaf and 
the public service broadcaster NPO. 

Table 108 NL: Online news media 

News site 

Company 

Nu.nl 

Telegraaf.nl 

Telegraaf  Media  Groep 
NV 
Telegraaf  Media  Groep 
NV 
NPO 
De Persgroep BV 
De Persgroep BV 

Nos.nl 
Ad.nl 
Volkskrant.nl 
Nieuws.nl.msn.com  Microsoft BV ** 
Trouw.nl 
Elsevier.nl 
Nrc.nl 
Teletekst.nos.nl 
Nieuws.nl 
Depers.nl 
Kranten.com 
Deweekkrant.nl 
Hetparool.nl 
Spitsnieuws.nl 

De Persgroep BV 
Reed Business BV 
Lux Media BV 
NPO 
Nort Groep BV** 
Mountain Media BV 
Netdirect BV 
Mecom Plc 
De Persgroep BV 
Telegraaf  Media  Groep 
NV 
Mecom Group plc 
Mecom Group plc 

Reach 2010 
(%)* 
38.2 

32.6 

28.7 
23.6 
16.6 
13.6 
11.2 
10.7 
10.4 
10.3 
10.1 
9.6 
7.9 
7.4 
6.9 
6.5 

Destentor.nl 
Gelderlander.nl 
Note: Only news sites with a monthly reach of more than 5 percent are displayed. 

5.9 
5.5 

*  Source:  Dutch  Media  Authority 
mediamarkten 2001-2010, p. 97.  

(2011).  Mediamonitor:  Mediabedrijven  en 

** Data source: Web domain registration (www.sidn.nl) 

2.2.19.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

The Netherlands have the highest penetration of cable TV services in Europe and one of 
the  highest  in  the  world.  The  distribution  of  analogue  radio  and  television  is  mostly 
transmitted via cable whereas digital broadcasting services make use of cable, terrestrial 
(DVB-T), satellite, glassfiber and telephone networks (DSL). 

Although cable  is still the most dominant infrastructure for carrying television and radio 
programmes  competition  has  substantially  increased  over  the  last  years:  the  market 
shares  of  the  four  cable  network  operators  Ziggo,  UPC,  Delta  and  Caiway  started 
declining  after  2002.33  With  the  analogue  switch  off,  Caiway  already  stopped  offering 
analogue television to new subscribers in 2010 and Ziggo announced to stop transmitting 

33 

TNO.  (2011,  December).  Marktrapportage  Elektronische  Communicatie.  Delft:  TNO,  p.  23.  (Netherlands 
Organisation for Applied Scientific Research (2010, September). Market report Electronic Communication, 
p. 23). 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

analogue  broadcasting  services  in  2013.  However,  Ziggo  already  started  reducing  the 
number  of  transmitted  analogue  channels  despite  the  complaints  of  consumers  and 
negative advices of the programme councils.34 These Programme councils advise on the 
composition  of  the  transmitted  radio  and  television  broadcasting  services  in  so-called 
‘packages’,  which  must  represent  the  viewers  and  their  preferences  in  the  geographical 
market  of  a  network  operator.  The  CvdM  can  be  requested  by  a  programme  council  or 
programme provider to intervene in conflicts and evaluate serious reasons for which the 
cable  operator  wants  to  deviate  from  the  advice  on  the  basis  package.  Furthermore  a 
programme  provider  whose  programme  is  not  included  in  the  advice  is  able  to  ask  the  
CvdM to evaluate the advice of the programme council. 

The most dominant player of the cable network operators, Ziggo, resulted from a merger 
of  @Home,  Casema  and  Multikabel  in  2007  (see  table  109).  As  the  technological 
developments  have  evolved,  the  main  cable  and  telecommunication  network  operators 
have  entered  into  each  other’s  markets  by  offering  ‘double’  or  ‘triple  play  packages’ 
including broadband internet, telephony and broadcasting services. KPN, a former state-
owned company with a (traditionally) strong position in the telecommunications market, 
transmits  broadcasting  services  (mostly)  via  its  DSL  network.  Reversely,  both  cable 
network operators Ziggo and United Global Com (UGC) entered the market of broadband 
internet  (table  110).  UGC  is  part  of  the  American  media  group  Liberty  Media  which 
operates in many European countries as well as Australia. This leading international cable 
operator  is  in  the  Netherlands  also  represented  by  its  daughter  company  Chellomedia 
which owns the premium TV-channels Film1 and Sport. 

In the field of pay-TV satellite services, the one and only provider in the Netherlands is 
CanalDigitaal.  Together  with  TV  Vlaanderen  in  Flanders,  TéléSAT  in  French  speaking 
Belgium and AustriaSat in Austria is CanalDigitaal part of the Luxembourg M7 Group. 

The  category  ‘other  non-cable’  of  table  109  includes,  among  others,  Reggefiber  Group 
which  started  in  2005  with  building  a  fibreglass  network  in  the  Netherlands.  Reggefiber 
Group  agreed  on  a  joint  venture  with  KPN  which  gained  a  41  percent  share  in  the 
company  in  2008.  Due  to  heavy  investments  during  the  last  years,  ten  percent  of  the 
Dutch households is currently able to access the fibre network.  

Table 109 NL: Cable, satellite and IPTV operators of digital radio and television 

Company 

Ownership 

Distribution 
technique 

Cable 

Total 
Market 
Share 
2010 (%)* 
33.2 

Terrestrial , DSL, 
fiberglass 
Cable 

22.4 

16.7 

Ziggo  Bond  Company 
BV/ Zesko Holding BV 
Koninklijke KPN NV 

UPC Holding BV  

Liberty  Global 
100% 
M7 Group SA 100% 

Inc. 

CanalDigitaal 
Other non-cable 
Other cable 
Source:  Dutch  Media  Authority  (forthcoming  2012).  Mediamonitor:  Mediabedrijven  en 
mediamarkten 2011. 

14.6 
7.5 
5.6 

Satellite 

34 

See: 
zwaarwegend-advies-programmaraad-ziggo-friesland/. 

http://www.kabelraden.nl/nieuws/ni/16024/aanpassing-analoge-tv-pakket--ziggo-negeert­

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 110 NL: Broadband internet access providers 

Company 

Ownership 

Koninklijke KPN NV 
Ziggo  Bond  Company 
BV/ Zesko Holding BV  
UPC Holding BV 

Liberty  Global
100% 

Inc.  13 

Total  Market 
Share 
2010 
(%)* 
41 
24 

Other 
Source:  Dutch  Media  Authority  (forthcoming  2012).  Mediamonitor:  Mediabedrijven  en 
mediamarkten 2011. 

22 

2.2.19.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The annual circulation of national and regional dailies in the Netherlands decreased over 
the last ten years with 11.5 percent to 1,330 million in 2010. Publishers saw the number 
of  subscriptions  going  down:  the  share  of  subscriptions  relative  to  the  total  annual 
circulation dropped from 76 percent in 2001 to 69 percent in 2010. Simultaneously, the 
free  newspapers  consolidated  their  position  in  the  newspaper  market  and  became  a 
serious competitor for publishers’ newsstand sales which have gradually been going down 
as well. 

As opposed to readership (expressed in terms of circulation), the average time spent on 
television viewing and radio listening is still growing in the Netherlands. The Dutch watch 
24 minutes per day more television than they used to do ten years ago. Radio listening 
increased  with  11  minutes  per  day  on  average.  Large  sports  events  tend  to  cause 
fluctuations  in  viewing  behaviour.  It  should  also  be  noted  that  the  measurement 
techniques  have  been  improved  over  the  years  as  well:  television  viewing  of  visitors 
became included (2005), as well as time shifted viewing (2008). 

Table 111 NL: Audience statistics 

Annual  circulation  national  and  regional  dailies  (x 
million) 

1,502 

1,330 

2001 

2010 

Television viewing (average minutes per day) 

Radio listening (average minutes per day) 

*  Source:  Dutch  Media  Authority 
mediamarkten 2001-2010, p. 97.  

167 

189 

191 

200 

(2011).  Mediamonitor:  Mediabedrijven  en 

With  an  increase  of  612  thousand  internet  connections  in  2001  and  6,194  thousand  in 
2010,  almost  87  percent  of  the  Dutch  with  the  age  of  13  years  or  older  access  the 
internet from their homes.35 Of those who go online regularly: 74 percent used the web 
in 2010 to gain information about news and public affairs.36 

Advertising expenditures can be seen as an indicator of the ability to reach and influence 
a  population  in  a  particular  country  using  a  specific  media  type,  and  gives  thus  an 
indication of the importance of media types. As for 2010, 4,004 million Euros was spend 

35 

36 

TNO  (2010,	  September).  Marktrapportage  Elektronische  Communicatie.  Delft:  TNO.  (Netherlands 
Organisation for Applied Scientific Research (2010, September). Market report Electronic Communication). 
Centraal Bureau voor de Statistiek (Statistics Netherlands), see: http://statline.cbs.nl/statweb/. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

on advertising expenditures in the Netherlands, with newspapers and magazines together 
accounting for almost half of it (43 percent). The Netherlands is a print country where a 
relative small proportion of money is spent on radio and television. Note that advertising, 
as opposed to some other European countries, is not prohibited on public broadcasting in 
the Netherlands. Since the rise of online advertising, 2009 was the first year in which a 
larger  proportion  of  advertising  expenditures  derived  from  the  Internet  than  from 
television.  This  development  continues  with  21.9  percent  and  25.2  percent  from 
respectively  television  and  internet  advertising  expenditures  in  2010.  The  growing 
importance  of  online  ads  in  the  Dutch  advertising  industry  cannot  be  ignored  and  is 
supposed to become a serious threat to newspapers. 

Table 112 NL: Share of advertising expenditures within the media sector 

Medium 

Newspapers 

Internet 

Television 

Magazines 

Radio 

Other 

Total 

In  million 
Euros 

Total  market 
share 
2010 
(%)* 

1.172 

1.009 

877 

548 

246 

152 

29,3 

25,2 

21,9 

13,7 

6,1 

3,8 

4.004 

100,0 

*  Data  source:  European  Audiovisual  Observatory  (2012).  Yearbook  2011:  Trends  in 
European television, p. 54, 61. 

2.2.19.3.  Conclusion and Recommendations 

The  Dutch  authorities  have  recently  been  condemned  twice  by  the  European  Court  of 
Human  Rights  for  violations  of  the  European  Convention  (article  5  and  10).  Despite  the 
previous government’s intention, the right of non-disclosure has not been incorporated in 
law  so  far.  Although  in  specific  cases  Dutch  courts  will  –  depending  on  the  specific 
circumstances  –  back  the  right  of  journalists  to  protect  their  sources,  many  would 
welcome a legal statement providing more legal certainty and outlining the main principle 
that journalists have a legitimate right in disclosure of their sources. 

The  chairman  of  the  NPO  management  board  said  at  several  occasions  there  is  an 
increasing  reflex  of  politicians  to  interfere  with  public  service  media  on  a  too  detailed 
level. This is for instance illustrated by critical comments of individual MP’s regarding the 
quality of programming of public service media. He warned this trend – stimulated by the 
wish  to  reduce  public  expenditures  and  impose  budget  cuts  –  can  imply  a  threat  to  the 
editorial independence and autonomy of public service media. 

Freedom  House,  a  foundation  supporting  democratic  developments  and  monitoring 
freedom  of  speech  as  well  as  the  press,  reports  about  the  Netherlands:  “Despite  high 
ownership  concentration,  there  are  a  variety  of  opinions  expressed  in  the  media.  The 
state  allocates  public  radio  and  television  programming  to  political,  religious,  and  social 
groups  according  to  their  membership.”37  The  most  serious  threat  to  media  diversity  in 
the Netherlands is at the regional level: the gradual destruction of regional newspapers is 
threatening  local  democracies.  The  news  market  consists  in  some  communities  of  only 

37 

See: http://www.freedomhouse.org/report/freedom-press/2011/netherlands. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

one local public broadcaster and a free sheet but no (paid) regional daily. The two largest 
publishers  of  regional  dailies,  TMG  and  Wegener,  are  forced  to  cut  costs  due  to  the 
current economic climate despite their efforts to combine their forces. A joint distribution 
process seemed to have paid off: both could reduce their distribution costs in 2011. The 
next step the publishers are making is a collaboration in selling advertisement space. On 
the  digital  side,  the  need  to  invest  in  the  development  of  new  ways  to  sell  content  to 
news  consumers  has  become  more  and  more  urgent  with  the  (faster  than  expected) 
adoption of tablets and smart phones last year on the one hand and the ongoing decline 
of both advertising and subscription revenues on the other hand. The income fostered by 
online activities is still a minor percentage in relation to the incomes generated by print 
divisions.  Despite  the  great  challenge  publishers  are  facing,  those  operating  in  the 
smaller geographical areas in particular, have launched during the last two years several 
so-called ‘hyper local’ websites. These sites provide local news based on an aggregation38 
or  combined  model  of  professional  and  citizen  journalism39.  With  the  repeal  of  the 
Temporary Act Media Concentration as of the first of January 2011 in the Netherlands, no 
longer specific rules exist to restrict ownership, or opinion power, in the different media 
markets.  Also  the  CvdM’s  role  of  advising  the  competition  authority  (NMa)  in  case  of 
intended  mergers  or  acquisitions  of  media  companies  has  come  to  an  end  as  a 
consequence.  Hence,  general  competition  law  applies  to  mergers  and  acquisitions  as 
described earlier in this chapter. 

Media concentration policies are traditionally a national concern. At European level there 
is no regulation specifically aiming to ensure media diversity. The media environment is 
rapidly changing, national or even European boundaries are disappearing. Internet serves 
as  a  global  platform  and  dominant  global  players  as  Apple,  Google,  Facebook  and 
Amazon  cannot  be  regulated  by  national  rules  on  media  ownership.  In  many  countries 
ownership restrictions exist for particular media types, newspapers, magazine, radio and 
television.  For  newspapers  circulation  criteria  are  in  use,  for  television  audience 
measures,  or  the  maximum  number  of  licenses  is  limited.  Within  the  internet  such 
restrictions, e.g. number of websites, hardly can be applied. Nevertheless, Italy, and to a 
certain  extent  Germany,  seem  to  be  ahead  with  their  platform-independent  approaches 
of  an  ‘integrated  media  system’  and  a  ‘media-relevant  related  market’,  respectively, 
which  also  consider  advertising  and  all  kinds  of  online  activities,  for  example.  We 
consider  that  an  exclusive  platform  approach  is  not  sufficient  and  that  alternatives  are 
lacking because the national boundaries are disappearing.   

In relation to the supply chains of the media production process, various types of media 
concentration  that  may  occur  in  media  markets  can  be  identified,  namely:  a)  supplier 
concentration,  b)  editorial  or  programming  concentration,  c)  concentration  of  media 
content,  and  d)  audience  concentration.  Restrictions  of  media  ownership  can  only 
regulate  supplier  and  editorial  concentration,  but  it  is  assumed  that  low  supplier 
concentration  leads  to  low  editorial  concentration  and  that  both  imply  a  diverse  media 
offer.  Nevertheless  we  doubt  whether  regulation  on  media  concentration  in  Europe  will 
always  safeguard  media  diversity.  Whereas  concerns  about  media  pluralism  have  been 
strongly focused on diversity of suppliers, there seem to be more reasons for establishing 
a  demand-oriented  approach.  Such  an  approach  considers  the  diversity  of  sources  to 
which one is exposed; in other words, the variety of sources an individual consumer uses 
in gaining news and information, also referred to as ‘exposure diversity’. 

From  this  point  of  view,  the  internet’s  easy  accessibility  plays  an  important  role  as  a 
platform for the dissemination of information. Anyone, either a company or an individual, 

38 

39 

See for an example of TMG’s local news sites: http://tilburg.dichtbij.nl/. 
See for an example of Wegener’s local news sites: http://dichtbijbreda.nl/. 

521 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

is  able  to  establish  a  media  service;  the  Internet  is  presumed  to  always  ensure  a  
minimum number of suppliers. This, however, does not necessarily imply the absence of 
concerns about the centralization of power in opinion formation. The internet has already 
shown  how  large  players  can  exercise  considerable  influence,  even  though  there  is  an 
abundance  of  choice.  Consider,  for  example, how  Google  has  consolidated  an  incredibly 
strong  position  in  the  search  engine  market.  Consumers  themselves  have  a  certain 
responsibility in finding their way among all the available content and consulting different 
‘voices’ rather than using a few popular sources. If consumers predominantly choose one 
or  two  main  sources,  a  powerful  position  might  be  created  for  those  content  suppliers. 
Additionally,  it  could  be  questioned  whether  users  are  actively  seeking  information  and 
whether  they  are  able  to  find  specialized  information.  Hence  we  need  to  address  the 
issue of media pluralism from a different angle; the stimulation of media pluralism could, 
for example, also focus on the individual media users. 

Because ownership of the new dominant global players is hardly to restrict on national or 
even  European  level  and  assuming  that  media  will  also  in  the  future  tend  to  expand  to 
new  media  markets  and,  by  doing  so,  create  a  growing  diverse  supply  we  suggest  to 
monitor  supplier  concentration,  editorial  concentration  and  comparing  the  supply  and 
demand on media markets, the match between media offered and users’ preferences.  

A few years ago the Dutch Media Monitor invited colleagues from monitoring departments 
of different European regulators to work on a pilot of a European monitoring programme. 
As  the  European  Commission  started  with  the  initiative  to  define  ”Indicators  for  Media 
Pluralism  in  the  Member  States”,  we  cancelled  our  programme.  The  problems  with  the 
indicators,  already  developed,  is  that  they  are  hardly  feasible  and  that  a  comparable 
European  monitoring  is  still  missing.  Based  on  our  experience  we  suggest  to  start  a 
discussion  with  different  regulators  about  the  use  of  a  selection  of  easy  to  access 
indicators to guarantee reliability between countries.  

Media  outlets  no  longer  solely  offer  general  content  as  newspapers,  general  television 
channels  and  radio  channels  do.  Nowadays  we  find,  especially  on  the  internet,  an 
increasing amount of content serving particular functions. Already in 2005, the Scientific 
Council  for  Government  Policy  of  the  Netherlands  suggested  a  future-proof  functional 
approach in its report “Media policy for the digital age”. Instead of a media type-driven 
policy which is continuously challenged and finally outdated by reality – and therefore of 
limited use – the Council has taken a different approach by asking the question: what is 
the  role  or  function  that  media  play  now  and are  expected  to  play  in  our  society  in  the 
coming  decade?  The  Council  suggests  a  new  policy  paradigm  that  takes  functions  as  a 
strategic starting point, and has defined the different functions: 

	  News and opinion (including current affairs and debate); 

	  Special information; 

	  Culture, arts, education; 

	  Entertainment; 

	  Advertisements,  persuasive 

information  and  other 

forms  of  commercial 

communication. 

The  Council  reached  the  conclusion  that  diversity  and  independence  of  news  is  most 
important  for  the  society.  Research  shows  that  news  media  have  a  strong  impact  on 
public  opinion;  what  is  not  in  the  news,  is  not  part  of  the  public  opinion.  For  these 

522 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

reasons,  we  suggest  focusing  the  monitoring  on  offer  and  use  of  professional  news 
content in particular. 

To conclude:  

We think that specifc media ownership rules will lose their significance. What we need is 
a  centrally  organized  European-wide  monitoring  with  national  data  collection.  For 
theoretical reasons we suggest to focus on news media to monitor on opinion power and 
for  practical  reasons  we  suggest  to  use  fewer  indicators  which  are  easier  to  assess  and 
measure. A less extensive monitoring design might improve the willingness to participate 
and  enhances  the  reliability  and  comparability  of  the  national  results  and  will  enable  a 
longitudinal monitoring.  

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POLAND 


2.2.20.	 

Poland 

2.2.20.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.20.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

- Specific safeguards and rights for the media 

Since  2004  the  main  constitutional  provisions  on  the  freedom  of  expression  and  the 
freedom  of  the  media  have  remained  unchanged.  Both  freedoms  are  protected  in  the 
Constitution  of  1997  in  Article  14  which  declares  the  freedom  of  the  press  and  other 
means of social communication and in Article 54 which ensures to everyone the freedom 
to  express  opinions,  to  acquire  and  to  disseminate  information,  forbids  preventive 
cenzorship in the media and licensing of the press, but permits statutory requirements of 
a  licence  to  operate  radio  or  TV  station.40  The  constitutional  guarantee  of  freedom  of 
expression (in Art. 54.1 read in conjunction with Art. 14) - according to the Constitutional 
Court  -  constitutes  one  of  the  foundations  of  the  democratic  society,  a  condition  for 
development thereof and for self-actualization of individuals.41 

The limitations of the freedom of expression and the freedom of the media are subject to 
proportionality  test  provided  for  in  Art.  31  para.  3  of  the  Constitution,  which  stipulates 
that  such  limitations  may  be  imposed  only  by  statute,  and  only  when  necessary  in  a 
democratic state for the protection of its security or public order, or to protect the natural 
environment, health or public morals, or the freedoms and rights of other persons, sets 
any  limitations  which.  Such  limitations  shall  not  violate  the  essence  of  freedoms  and 
rights.  The  Constitutional  Court  has  applied  this  proportionality  test  in  evaluation  of 
constitutionality  of  different  provisions  restricting  the  freedom  of  expression  and  the 
freedom of the media, in particular penal provisions in the Press Law. 

The  Constitution  does  not  include  any  specific  provision  on  journalists’  rights  and 
freedoms, but there is no doubt that their activity is covered by Articles 14 and 54.  

  Freedom to receive and to access information 

- Specific rights for the citizens 

Art. 61 of the Constitution continues to constitute the fundamental basis for the right to 
information  on  the  activities  of  organs  of  public  authority  and  persons  holding  public 
functions  or  mandates.  The  Law  of  6  September  2001  on  Access  to  Public  Information 
implements this constitutional right. Recently the revision of this law principally aimed at 
implementation  of  the  Directive  2003/98/EC  on  the  re-use  of  public  sector  information, 
provoked  a  controversy  over  the  excessive  limitation  of  the  right  of  access  to  public 

40 

41 

Both provisions were literally quoted in the Final report of the study on “the information of the citizen in 
the  EU:  obligations  for  the  media  and  the  Institutions  concerning  the  citizen’s  right  to  be  fully  and 
objectively  informed”,  Prepared  on  behalf  of  the  European  Parliament  by  the  European  Institute  for  the 
Media,  Düsseldorf,  31  August  2004,  part  II,  Poland,  p.154  (2004  Study).  The  English  translation  of  the 
Polish Constitution is available at:  
http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm. 
Judgement of 23.03.2006, K 4/06. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

information. During the parliamentary works on the revision the Senate (upper house of 
the  Parliament)  added  the  provision  for  the  purpose  of  restricting  this  right  in  order  to 
protect public order, security and “important economic interests of the State” (so-called 
Rocki’s  amendment).  In  response  to  criticism  expressed  by  civic  society  organisations, 
journalists,  media  and  some  politicians,  the  President  referred  the  issue  to  the 
Constitutional  Court,  which  in  April  2012  decided  on  formal  grounds  that  the  Rocki’s 
amendment is inconsistent with the Constitution.42 

  Safeguards on regulatory authorities 

Polish  Constitution  of  1997  safeguards  the  role  of  the  National  Broadcasting  Council 
(KRRiT)  -  the  regulatory  authority  in  the  field  of  radio  and  television.  Under  Art.  213 
para. 1 the KRRiT shall safeguard the freedom of speech, the right to information and the 
public  interest  in  radio  and  television  broadcasting.    Further  provisions  grant  KRRiT 
competencies to issue regulations and adopt resolutions in individual cases, specify that 
its  members  shall  be  appointed  by  the  Sejm,  the  Senate  and  the  President,  and 
delegates to the statute mode of work and organisation of the KRRiT, as well as detailed 
principles  for  appointing  its  members.  According  to  the  Constitutional  Court  KRRiT  is  a 
constitutional  body  placed  beyond  the  scheme  of  the  separation  of  powers,  which  is 
related  to  its  purposes  and  its  lack  of  formal  subordination  to  any  other  State  organs, 
including  the  Government.  Consequently  the  Court  declared  as  unconstitutional  the 
amendment of 2005 to the Broadcasting Act conferring upon the President the power to 
appoint  and  dismiss  the  Chairman  of  KRRiT.  The  Court  also  found  that  the  statutory 
provision  shortening  of  the  term  of  office  of  members  of  the  Council  without  any  valid 
reason,  after  the  formation  of  the  new  majority  in  parliamentary  elections  of  2005,  did 
not conform with the Constitution. This however did not prevent nor invalidate the expiry 
of  mandates  of  members  of  KRRiT  on  the  basis  of  the  challenged  law.  In  effect,  at  the 
end of 2005 KRRiT members were effectively replaced and composition of KRRiT reduced 
to 5 members (instead of 9).43 

  Safeguards on “universal service” 

Art. 213 para. 1 of the Constitution, and in particular the reference to the public interest 
in radio and television broadcasting, was interpreted by the Constitutional Court in 2004 
as a basis for the remit of public service broadcasting and the responsibility of KRRiT for 
fulfilment  thereof,  in  particular  in  the  context  of  KRRiT  competencies  concerning  the 
licence  fee.44  The  Court  consequently  declares  that  the  safeguarding  of  adequate  and 
sustainable  public  funding  of  public  service  broadcasting  constitute  a  task  of  the  state. 
However,  in  the  judgement  of  2009  the  Court  interpreted  Art.  213  para.  1  in  rather 
narrow  way  as  a  mere  norm  of  competence  of  KRRiT  and  ruled  that  the  act  that 
significantly  broadened  the  scope  of  social  exemptions  from  the  licence  fee  is  not 
inconsistent with this provision.45 

42 

43 

44 

45 

Judgement  of  18.04.2012,  K  33/11.  The  press  release  on  the  Court’s  decision  is  available  at: 
http://www.trybunal.gov.pl/eng/index.htm.  The  decision  has  been  based,  in  accordance  with  the  motion 
of the President, on formal grounds, that the Senat went beyond its powers in parliamentary proceedings 
set by the scope of the act  adopted by  the Sejm (the lower house). Thus, regretably, the Court has not 
had a chance to check the compliance of the Rocki’s amendment with the Art. 61 of the Constitution.  
Judgement of 23.03.2006, K 4/06. English summary of the judgement is available at:
http://www.trybunal.gov.pl/eng/summaries/documents/K_4_06_GB.pdf. 
Judgement of 09.09.2004, K 2/03. English summary is available at:
http://www.trybunal.gov.pl/eng/summaries/documents/K_2_03_GB.pdf. 
Judgement of 04.11.2009, Kp 1/08. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.20.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The Broadcasting Act (BA) of 199246 continues to constitute the basis of media order in 
the  field  of  radio  and  television  and  sets  the  licensing  scheme  for  broadcasting  of 
programme  services,  except  for  statutory  programme  services  of  public  service 
broadcasters.  Licences  are  still  granted  in  the  form  of  a  administrative  decision  of  the  
Chairman  of  KRRiT  on  the  basis  of  a  KRRiT’s  resolution.  Television  programme  services 
transmitted exclusively in the information and communication systems (TV webcasting), 
as  of  May  2011,  are  subject  to  registration  in  the  register  kept  by  the  Chairman  of 
KRRiT47.  Previously  this  field  had  been  unregulated.  The  change,  intended  to  make  TV 
webcasting subject to general standards applicable to television, but within more relaxed 
regulatory  procedure,  was  introduced  by  the  act  implementing  the  AMSD.  Audio 
webcasting  (Internet  radio)  is  left  beyond  the  scope  of  the  BA.  The  registration  system 
applies  also,  as  of  May  2011  –  in  the  technologically  neutral  way,  to  retransmission  of 
programme  services  (except  those  with  must-carry  status).  Previously  only  cable 
retransmission  was  subject  to  registration,  while  satellite  retransmission  was  subject  to 
licencing. 

On-demand  services  as  such  are  not  subject  to  any  licencing  or  registration  schemes. 
The proposal to make non-linear audiovisual media services subject to registration, was 
rejected at the final stage of parliamentary works in 2011 on the draft law implementing 
the AMS Directive, upon the pressure of protests of Internet activists and industry.  

Public  service  media  are  regulated  mainly  by  the  provisions  of  the  Broadcasting  Act. 
Their remit is broadly defined in Art. 21 para. 1, added in 2004, that reads: 

Public radio and television shall carry out their public mission by providing, on terms laid 
down in this Act, the entire society and its individual groups with diversified programme 
services and other services in the area of information, journalism, culture, entertainment, 
education and sports which shall be pluralistic, impartial, well balanced, independent and 
innovative,  marked  by  high  quality  and  integrity  of  broadcast.48  Their  programme 
services listed in the law are exempted from the licensing scheme. However the thematic 
programme  services  of  public  service  media  (PSM)  are  subject  to  ex  ante  licensing  by 
KRRiT. The remit of PSM covers new services (services other than programme services) 
and they are subject to the same qualitative requirements as programme services, which 
corresponds  to  the  assumption  that  the  new  services  shall  fulfil  the  same  democratic, 
social and cultural needs of the society.  

PSM have more extended content obligations, in particular their programme services and 
other services should: provide reliable information about the vast diversity of events and 
processes  taking  place  in  Poland  and  abroad,  encourage  an  unconstrained  development 
of  citizens'  views  and  formation  of  the  public  opinion,  enable  citizens  and  their 
organisations to take part in public life by expressing diversified views and approaches as 
well as exercising the right to social supervision and criticism, assist the development of 

46 

47 

48 

with 

amendments. 

The Broadcasting Act of 29.12.1993, consolidated version: Official Journal („Dz.U.”) of 2011, No 43, item 
226, 
at: 
Unofficial 
http://www.krrit.gov.pl/Data/Files/_public/pliki/office/broadcasting-act_10-08-2011.pdf. 
Art. 41 and ff. of the BA as amended by the Act of 25.03.2011 (Dz.U. No 85, item 459), that entered into 
force on 23.05.2011. 
This definition is complemented by the list of detailed tasks and duties – Art. 21 para. 1a and 2. 

translation 

available 

English 

is 

526 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
  
 
 
 
 
  
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

culture,  science  and  education,  with  special  emphasis  on  the  Polish  intellectual  and 
artistic  achievements,  serve  to  strengthen  the  family  ties,  advance  the  propagation  of 
pro-health  attitude,  serve  to  promote  and  popularize  sport,  contribute  to  combating 
social pathologies, contribute to media education.49 

Under the Press Law of 1984 publishing of a daily or periodical requires registration in a 
District Court, mainly understood as a formality related to protection of press titles. The 
case-law extends this obligation to some Internet publications, if they fulfil the definition 
of a “daily” or a “periodical”, and of the “press”. The definition of the press is broad, and 
makes the term an equivalent of “media”, as it covers any periodic publications which do 
not form a closed, homogenous whole, appearing at least once a year, having a regular 
title or name, a current number and date, including any “media created in the course of 
technological progress, which disseminate periodical publications through printing, vision, 
audio  or  other  technique”.  The  Supreme  Court in  the  decision  of  2007  clarified  that  the 
obligation  of  registration  concerns  dailies  and  periodicals  disseminated  in  the  Internet 
both in case of electronic versions of printed press titles, as well as of such stand-alone 
electronic  publications  in  the  Internet.50  However  the  provision  of  the  Press  Law  on 
criminal  sanctions  for  dissemination  of  dailies  and  periodicals  without  registration,  was 
declared  in  2011,  with  respect  to  printed  periodicals,  as  unconstitutional  by  the 
Constitutional Court, as a disproportional limitation of the freedom of expression and the 
freedom  of  media.  The  Court  however  confirmed  that  the  mere  obligation  of  such  a 
registration,  in  practice  similar  to  notification,  is  in  conformity  with  these  constitutional 
freedoms.  The  Court  also  noted  that  the  Press  Law  of  1984  is  not  adequate  to  present 
realities of media and suggested legislative changes.51 

The attempt to introduce such changes was made even before. In 2010 the Government 
considered the broad amendments to the Press Law.52 The draft included changes in the 
basic  definitions  (“press”,  “journalist”,  “editorial  board”)  and  an  attempt  to  differentiate 
between press/media/journalistic content and non-media activities in the Internet (blogs, 
e-mails, website for UGC exchange, private website and internet forums), on the basis of 
(lack  of)  editorial  treatment  of  content.  The  registration  would  be  mandatory  only  for 
printed  dailies  and  periodicals,  and  voluntary  for  those  electronically  published.  The 
works  on  the  draft  after  criticism  from  internet  activists  and  some  media  were 
suspended. The idea of a broad revision of the Press Law, that would make the law more 
adequate  for  present  realities  and  cover  different  issues  (i.a.  also  reduction  of  penal 
provisions,  changes  with 
interview  and 
regard 
rectifications/replies) revived in 2012. 

to  an  authorization  of  a 

49	 

50	 

51	 

52	 

Art. 21 para. 2 of the BA. 
Judgement  of  the  Supreme  Court  of  26.07.2007,  IV  KK  174/07.  The  decision  concerned  the  criminal 
responsibility  of  persons  disseminating  periodicals  in  the  Internet  without  registration.  The  decision  met 
with  rather  critical  reactions  in  the  doctrine.  With  respect  to  criminalization  of  dissemination  of 
unregistered printed periodicals the decision partly (as regards printed publications) lost its meaning due 
to  the  decision  of  the  Constitutional  Court  declaring  this  criminal  sanction  as  unconstitutional  –  see  the 
footnote below. 
Judgement  of  the  Constitutional  Court  of  14.12.2011,  SK  42/09.  The  judgement  is  limited  to  the 
circumstances  of  the  case,  i.e.  printed  periodicals,  and  does  not  formally  cover  Internet  publications.  In 
the previous judgement of 20.02.2007, P 1/06, the Court found that the same provision of the Press Law 
(Art.45)  criminalizing  publication  of  a  daily  or  a  periodical  without  registration  is  in  conformity  with  the 
Constitution  (Art.31  para.3  –  proportionality  and  Art.54  –  freedom  of  expression)  and  with  Art.10  of  the 
European Convention on Human Rights and Fundamental Freedoms. 
For more detailed description of the draft and the debate around it – see: M.Pek, Poland – Amendment to 
the Press Law, IRIS 2010–6:1/37, available at:  http://merlin.obs.coe.int/iris/2010/6/article37.en.html. 

527 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
                                                 
  
  
 
 
 
 
  
 
 
 
 
 
 
 
  
 
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

- Media pluralism/ownership; competition law aspects 

The  Broadcasting  Act  includes  only  limited  anti-concentration  rules,  related  to  the 
licensing  scheme.  An  achievement,  by  the  broadcaster,  of  a  dominant  position  in  mass 
media  in  the  given  area  or  relevant  market,  constitutes  the  basis  for  a  refusal  and 
revocation  of  the  broadcasting  license,  as  well  as  for  refusal  of  KRRiT’s  consent  for 
transfer  of  rights  under  the  broadcasting  license  in  case  of  a  merger,  division  or  other 
transformations  of  commercial  companies.  Refusal  of  such  a  consent  and  revocation  of 
the license may take place if another person takes over direct or indirect control over the 
activity  of  a  broadcaster.53  The  practical  experiences  of  KRRiT  show  difficulties  in 
application  of  these  provisions,  related  to  lack  of  clear  definitions  and  practical  tools  to 
apply them.54 

The Broadcasting Act continues to uphold the foreign capital limits on the level of 49% in 
companies  to  which  the  broadcasting  license  may  be  granted,  with  the  exception  of 
persons  having  a  seat  or  permanent  residence  in  the  European  economic  area  (EEA) 
countries.  

The  Press  Law  does  not  include  any  anti-concentration  rules  nor  limitations  for  foreign 
ownership in media.  

The possible introduction of more detailed anti-concentration rules was practically frozen 
by the political scandal called “Rywin-gate” referred to in Polish report in 2004 Study.  

- Legal framework for psm; ability to fulfill their tasks 

As mentioned above public service media operate on the basis of law, in accordance with 
their remit as defined in Art. 21 para. 1 of the BA and complemented by the list of tasks 
and requirements. 

In  2005  TVP  (the  Polish  Television)  adopted  and  published  its  mission  statement  -  The 
Principles  Guiding  the  Fulfilment  of  the  TVP  Public  Mission.55  Since  2005  PSM 
organisations have had a duty to prepare and make available to the public annual reports 
on  the  use  of  proceeds  from  licence  fees  for  carrying  out  the  public  mission,  with  an 
indication of funds allocated for implementation of individual tasks.56 

The revision of 201057 introduced the scheme of yearly financial and programming plans 
that  should  be  agreed  between  a  public  service  broadcaster  and  KRRiT.58  The  same 
revision  changed  the  composition  and  the  method  of  appointment  of  boards  of 
management  and  supervisory  boards,  with  extended  competencies  of  the  KRRiT  in  the 
process.59  The  changes  included  reduction  of  the  number  of  boards’  members, 
introdution  of  competitions  for  appointments  and  special  scheme  for  nomination  of 
candidaties  to  supervisory  boards  by  universities.  According  to  the  amendments 
members  of  supervisory  boards  may  be  dismissed  by  the  authority  that  has  appointed 
them  on  the  grounds  listed  in  the  law,  that  include,  besides  a  criminal  conviction  and 

53 

54 

55 
56 

57 

58 

59 

Art. 36.2.1, art. 38.2.3-4, art. 38a.3 of the BA.
 
KRRiT,  Strategia  regulacyjna  na  lata  2011-2013  (Regulatory  strategy  for  years  2011-2013),  Warszawa  

01.03.2011, p.62. 
http://s.v3.tvp.pl/repository/attachment/3/5/a/35ac5b7ebf4e590d783cdac8fda7051e1223892790343.doc 
Art.  31c  of  the  BA  added  by  the  Licence  Fee  Act of  21.04.2005.  In  practice the  annual  reports  are  even 
broader as they cover the overall fulfilment of the PS remit. As an example – the report of TVP for 2011 
(in Polish) is available at: 
http://s.v3.tvp.pl/repository/attachment/7/c/5/7c5f35d9f03c499fb4a53560fd5d10631331818152013.pdf 
The Act of 05.10.2010 amending the Broadcasting Act and the Licence Fee Act, Dz.U. No 152, item 1023. 
Art. 21 paras 3 and 4 of the BA. 
Articles 27 and 28 of the BA. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

inability  to  serve  the  function,  vaguely  formulated  activity  “to  the  detriment  of  the 
company”.  Formerly,  the  Constitutional  Court  in  1995  decided  that,  in  the  absence  of 
explicit  provisions  in  the  BA  on  dismissal  of  the  Supervisory  Boards,  they  may  not  be 
dismissed,  because  of  the  principle  of  independence  of  public  service  broadcasting 
emanating from the constitutional freedom of expression and right to information.60 

The official purpose of the reform was to make public service broadcasting more effective 
and accountable in spending public money (financial and programming plans; possibility 
to  dismiss  the  Boards),  further  reduce  political  influence  by  more  transparent 
appointment scheme for Boards, extend the supervisory powers of KRRiT. Some changes 
met  however  with  criticism  as  reducing  institutional  autonomy  of  PSM.  In  practice,  the 
new  Boards  appointment  scheme  was  applied  in  2011.  In  its  annual  report  and 
information on key issues in broadcasting for 2011 KRRiT proposed some changes to the 
scheme.61 

The reform of 2010 may be seen as a reaction to the lack of stability in the management 
of  PSM  in  years  2006-2010,  after  the  adoption  in  2005  of  the  law62  that  shortened  the 
term of office of the KRRiT and changed its composition, which resulted also in changes 
in the management of PSM. Due to different political constellations in 5 years (between 
05.2006-05.2011)  TVP  had  9  Presidents  (either  regular  or  performing  duties)  of  the 
Board of Management, while in previous 12 years there were only 4 holders of the post.  

Earlier  discussions  on  the  PSM  resulted  in  more  radical  and  controversial  draft  law  on 
Public Tasks in Media Services, adopted by the Parliament on 24.07.2009, but effectively 
vetoed  by  the  President,  after  the  strong  criticism  by  creative  community  (authors, 
independent  producers,  journalists),  human  rights  organisations  and  international 
organisations (OSCE, EBU). If adopted the law would abolish the broadcasting licence fee 
and replace it with the funding of PSM from the state budget, introduce the “programme 
licenses” for PSM and private programmes aspiring to public funding, further complicate 
the structure of PSM by creation of separate 16 regional public television companies.63 

PSM, despite the crisis of management and public funding, have managed to keep strong 
market position and audience rates (in particular TVP). They also launched new thematic 
channels and some on-line services, although the market position of PSM in the Internet 
is  rather  weak.  As  PSM,  and  TVP  in  particular,  are  mainly  financed  by  commercial 
revenues,  the  main  channels  are  dominated  by  mass  appealing  programmes,  which  is 
often  criticised.  Recently,  TVP  has  tried  to  overcome  these  tendencies,  ex.  by  giving 
more  importance to TV Theatre and documentaries, but this has deepened the financial 
difficulties of the public broadcaster. 

Assuming  that  the  management  of  PSM  has  been  stabilized  since  2011,  the  main 
problem  of  PSM,  affecting  their  ability  to  fulfil  their  public  service  remit,  is  the  fall  of 
public funding. 

60 

61 

62 

Resolution of 13.12.1995, W 6/95. 
KRRiT, Informacja o podstawowych problemach radiofonii i telewizji w 2011 r. (Information on Key Issues 
in Broadcasting in 2011), s. 63.
http://www.krrit.gov.pl/Data/Files/_public/Portals/0/sprawozdania/spr2012/informacja_krrit_03_2012.pdf 
The Act on 29.12.2005 on Transformations and Modifications to the Division of Tasks and Powers of State 
Bodies Competent for Communications and Broadcasting, Dz.U. No 267, item 2258. The description of the 
act,  circumstances  and  consequences  of  its  adoption  may  be  found  in  the  English  summary  of  the 
judgement of Constitutional Court of 23.03.2006, K 4/06 – available at: 
http://www.trybunal.gov.pl/eng/summaries/documents/K_4_06_GB.pdf. 

63  More  details:  K.Jakubowicz,  Poland,  [in:]  EMR,  Public  Service  Media  According  to  Constitutional 
Jurisprudence  –  The  Human  Rights  and  Constitutional  Law  Dimension  of  the  Role,  Remit  and 
Independence, Saarbrücken, 02.07.2009, p.169-170.
http://www.ebu.ch/CMSimages/en/leg_EMR_PSM_study_tcm6-67510.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The  main  source  of  such  a  funding  should  be  the  licence  fee,  existing  in  Poland  since 
1924, to be paid by every household, business unit and institutions, for the use of radio 
and/or  TV  receiver.  The  legal  basis  for  these  fees  is  the  Licence  Fee  Act  adopted  in 
200564,  after  the  judgement  of  the  Constitutional  Court65  that  declared  former  rules 
mainly contained in the regulations by the KRRiT as not meeting constitutional standards 
that  required  statutory  basis  and  regulation  of  principles  for  taxes  and  other  public 
imposts.  Besides  statutory  regulation  the  licence  fee  system  remained  broadly 
unchanged.  In  2008  politically  motivated  revision  of  the  Licence  Fee  Act  significantly 
broaden social exemptions from the licence fee66. 

In comparison to 2003 when licence fee funding of PSM amounted to 905,1 million PLN in 
2011  revenues  of  PSM  from  this  source  amounted  to  470,3  million  PLN,  and  thus  were 
nominally 48,9% and actually 59,5% lower than in 2003. In effect licence fee revenues 
constituted  only  12%  of  the  budget  of  TVP  in  2011  (32,7  %  in  2003),  58%  percent  in 
case of Polish Radio.67 The low level of licence fee revenues is caused, besides low level 
of  the  fee  and  broad  social  exemptions,  by  enormous  evasion  of  collection  of  the  fees. 
This is the result of combination of causes: promises of politicians to abolish the licence 
fee,  ineffective  collection  and  lack  of  enforcement  of  the  fees  in  case  of  non-payment. 
The  situation  has  continued  to  exist  despite  the  Constitution  Court  judgements 
highlighting  the  duty  of  the  state  to  provide  public  funding  to  PSM,  confirming  legal 
feasibility  of  administrative  enforcement  of  the  fees  under  existing  law  and  criticizing 
inactivity of state institutions in this field.68 This lack of adequate, stable and sustainable 
public  funding  of  PSM  negatively  affects  performance  of  their  tasks  and  threatens  their 
independence, and – in longer perspective – may endanger their very existence.  

- The role and functioning of regulatory authorities in these respects 

The  KRRiT  as  a  constitutional  regulatory  authority  remains  to  be  regulated  by  the 
Broadcasting Act. Its competences include in particular licensing of programme services, 
holding the register of programme services disseminated exclusively in ICT systems and 
retransmitted  programmes,  control  of  broadcasters’  activities  as  regulated  by  the  BA, 
appointing/dismissing  of  boards  in  PSM  organisations,  approving  of  financial  and 
programming  plans  of  PSM,  analyzing  their  financial  reports,  deciding  on  the  level  of 
licence fees and splitting the revenues from the fees among PSM organisations. 

Composition  of  the  KRRiT  was  changed  in  2006,  when  the  term  of  office  of  their 
members  was  terminated  by  the  law,  number  of  its  members  was  reduced  from  9  to  5 
persons, and the rule that every 2 years term of office of 1/3 of members should come to 
the end was abolished. Newly elected members of KRRiT were mostly seen as related to 
the  political  parties  forming  governmental  coalition  then  in  power.  In  2010  after  the 
rejection of the annual report of KRRiT by the Sejm, the Senate and the President, term 
of  office  of  all  the  members  of  the  KRRiT  expired  and  new  members  were  appointed. 
Certain  criticism  was  expressed  that  the  candidate  of  the  main  opposition  party  did  not 

64 

65 

66 

67 

68 

The Act of 21.04.2005 on Licence Fees, Dz.U. No 85, item 728, with amendments. 
Judgement of 09.09.2004, K 2/03. English summary: 
http://www.trybunal.gov.pl/eng/summaries/documents/K_2_03_GB.pdf. 
The  Act  of  13.06.2008  amending  Licence  Fees  Act,  Dz.U.  of  2010,  No  13,  item70.  The  amendment  was 
sent  by  the  President  to  the  Constitutional  Court,  which  however  did  not  find  it  incompatible  with  the 
Constitution, given the broad competence of the law-maker to decide on scheme of public funding of PSM, 
and  on  specific  elements  thereof,  including  social  exemptions  from  licence  fees  –  judgement  of 
04.11.2009, Kp 1/08. 
KRRiT, Informacja o podstawowych problemach radiofonii i telewizji w 2011 r. (Information on Key Issues 
in Broadcasting in 2011), p. 65-66.
http://www.krrit.gov.pl/Data/Files/_public/Portals/0/sprawozdania/spr2012/informacja_krrit_03_2012.pdf 
In  June  2012  the  Ministry  of  Finance  has  publicly  declared  that  in  conformity  with  the  judgement  of  the 
Constitutional Court tax authorities shall enforce unpaid licence fees. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

get  the  post.  The  newly  appointed  Council  had  to  apply  new  scheme  for  appointing  of 
boards  in  PSM  organisations.  It  is  also  worth  noting  that  the  new  KRRiT  adopted  and 
published its regulatory strategy for 2011-2012, where it declared more action in support 
of the freedom of expression in media and media pluralism.  

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Regular access to public information, not limited to journalists, is safeguarded under the 
Act  on  Access  to  Public  Information.  Safeguards  for  journalistic  activities  are  contained 
mainly  in  the  Press  Law,  which  grants  journalists  the  right  to  claim  information  (going 
beyond  general  rules  on  access  to  public  information  as  it  covers  also  non-public 
institutions,  businesses  and  not-for-profit  entities),  forbids  obstructions  to  information 
gathering  and  press  criticism,  protects  journalistic  confidentiality.  The  protection  of 
journalistic  confidentiality  is  however  not  the  absolute  one.  The  Code  of  Criminal 
Procedure sets the conditions for releasing a journalist from a duty to keep it. This may 
not  however,  except  information  concerning  most  serious  criminal  offences,  lead  to 
identification of an author of a press material, letter to editor or similar material, or of an 
informant, who claimed anonymity.69 

Despite  strong  criticism  of  human  rights  organisations,  journalists  and  media,  Polish 
Penal  Code  still  treats  a  defamation  as  a  criminal  offence70,  which,  if  happens  in  mass 
media,  including  in  Internet71,  is  even  punishable  by  custodial  sentence  of  a  maximum 
period  of  one  year.  It  is  however  worth  noting  that  in  2010  penal  sanctions  for  a 
defamation  were  relaxed.72  In  2006  the  Constitutional  Court  decided  that  the 
criminalisation  of  defamation  is  in  conformity  with  the  constitutional  freedom  of  media 
and freedom of expression in conjunction with the proportionality principle.73 In another 
judgment the Court however broadened the exemption from this liability in case of true 
statements concerning persons holding public functions, by declaring that the additional 
requirement  of  “serving  the  defence  of  legitimate  public  interest”  in  such  cases  was 
unconstitutional.74 In consequence, the provision was amended, and now whoever raises 
or  disseminates  true  allegations  concerning  a  conduct  of  a  public  person  or  serving  the 
defence  of  public  interest  -  does  not  commit  a  defamation.75  Also  an  insult  is 
criminalized, and if it is committed through mass media - the sanctions include custodial 
sentence.76  The  Penal  Code  still  treats  as  “special”  criminal  offences  public  insult  of  the 
President of Poland77 and public insult or humiliation of a constitutional body of Poland78. 
However  criminalization  of  an  insult  of  public  functionary  (or  his  assistant)  was  limited 
only  to  insulting  actions  in  the  course  of  and  (instead  of  “or”  as  before)  in  connection 

69 

70 

71 

72 

73 

74 

75 

76 

77 

78 

Art. 180 the Code of Criminal Procedure.
 
Art. 212 of the Penal Code.
 
Decision of the Supreme Court of 07.05.2008, III KK 234/07. 

The  act  of  05.11.2009  amending  the  Penal  Code  and  other  laws,  Dz.U.  No  206,  item  1589.  The  

amendment  entered  into  force  on  08.06.2010.  In  case  of  a  basic  type  of  defamation  (non-media)  it 
abolished  punishability  by  custiodal  sentence,  thus  the  sanctions  include  now  only  fine  and  limitation  of 
liberty.  In  case  a  defamation  in  mass  media  all  3  sanctions  remained,  but  maximum  period  of  custiodal 
sentence was reduced from 2 years to 1 year. 
Judgment of 30.10.2006, P 10/06. Summary in French is available at:
http://www.trybunal.gov.pl/fr/resumes/documents/P_10_06_FR.pdf. 
Judgment of 12.05.2008, SK 43/05. 
Art. 213 § 2 of the Penal Code – as amended by the Act of 05.11.2009, in force since 08.06.2010. 
Art. 216 of the Penal Code – the sanctions are similar as in case of defamation. 
Art.  135  §  2  of  the  Penal  Code.  The  Constitutional  Court  ruled  that  this  provision  conforms  with  Art.  54 
para.1 (freedom of expression) in conjunction with Art. 31 para. 3 (proportionality) of the Constitution, as 
well as with Art. 10 of the ECHR. The judgement of 06.07.2011, P 12/09. 
Art. 226 § 3 of the Penal Code. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

with  his  performance  of  public  duties79,  after  the  Constitutional  Court  decided  that 
previous  scope  of  this  criminal  offence  was  too  broad  and  constituted  a  disproportional 
limitation of the freedom of expression. 80 

The legitimacy of criminalization of an insult of the President, normally rarely used, has 
been discussed again after actions of the Agency of Internal Security (ABW) against the 
website with contents insulting the President Komorowski. The owner of the website first 
decided to close it, but then reopened it from the server in the USA. In April 2012 he was 
charged with insulting of the President and other criminal offences.  

The  Press  Law  has  regulated  also  the  right  of  rectification  and  reply81,  with  penal 
sanctions in case of evasion to publish it82. In 2010 the Constitutional Court decided that 
these provisions, due to lack of precision, are contrary to the constitutional principles of 
rule  of  the  law  and  statutory  basis  for  penal  sanctions,  but  deferred  abolition  of 
questioned  provisions  until  June  2012.83  The  works  on  new  provisions  on  rectification 
and/or  reply,  provoked  controversies  and  protests  of  the  press,  when  draftsmen  in  the 
Senate  decided  to  remove  the  rectification  from  the  law  and  leave  only  newly  (more 
broadly)  regulated  right  of  reply.  Finally,  in  response  to  the  criticism,  another  idea 
prevailed  –  to  provide  only  for  rectification  defined  as  ad  rem  and  facts  concerning 
statement, including a negation or correction of untrue or imprecise press information. In 
case  of  evasion  to  publish  it  no  penal  sanction  is  proposed.  The  remedy  would  be  a 
motion  to  the  court  to  order  publication  of  a rectification.  In  the  moment  of  writing  the 
final outcome of legislative works is not yet known. 

Another  controversial  issue  in  the  Press  Law  is  the  right  of  authorisation  in  case  of 
literally  quoted  statements  that  has  not  been  published  yet,  if  a  person  providing 
information wishes so. The Constitutional Court decided that provisions on authorization 
and  related  criminal  sanctions  are  in  conformity  with  the  constitutional  freedom  of 
expression  in  conjunction  with  the  proportionality  principle.84  However,  the  European 
Court of Human Rights found that these provisions constitute disproportional limitation of 
the freedom of expression (Art. 10 ECHR), as they allow, on pain of penal sanctions, to 
refuse or defer authorisation of statements required for lawful publication of an interview, 
and  thus  have  a  chilling  effect.85  Both  cases  concerned  the  interview  for  a  local 
newspaper with Member of Parliament, who having obtained the shortened version of the 
interview for authorisation, refused the consent for publication. The newspaper published 
fragments of the interview and editor-in-chief was (rather symbolically) punished by the 
criminal court. 

After the judgment of the ECrtHR the General Public Prosecutor called for changes in the 
Press  Law. Government  officials  declared  that  the  criminal  sanctions  for  infringement  of 
duties related to an authorization will be removed from the Press Law. 

79 

80 

81 

82 

83 

84 

85 

Art. 226 § 1 of the Penal Code as amended by the Act of 09.05.2008. 
Judgement  of  11.10.2006,  P  3/06.  The  Court  declared  that  the  criminalization  of  an  insult  of  public 
functionary with regard to actions outside the course of his/her performance of public duties is contrary to 
Art. 54 para. 1 (freedom of expression) and Art. 31 para. 3 (proportionality) of the Constitution.  
Art. 31 of the Press Law. 
Art. 46 of the Press Law. 
Judgement of 01.12.2010, K 41/07. 
Judgement  of  29.09.2008,  SK  52/05.  The  Court  confirmed  also  the  constitutionality  of  provisions  in  the 
Press  Law  obligating  journalists  to  obtain  a  consent  of  informant  to  disseminate  audio  and/or  visual 
fixations his information, and providing for penal sanctions in case of infringement of this obligation. 
Judgement of ECtHR of 05.07.2011, 18990/05, Wizerkaniuk v. Poland. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Specific positive content obligations 

The  Press  Law  provides  for  limited  content  obligations.  It  requires  free  of  charge 
publications  of  official  announcements  by  certain  state  or  local  self-government  bodies 
sent for compulsory publication by the spokesperson of the relevant body, as well as – in 
case of dailies – paid publications of final courts’ decisions and announcements of courts 
or other public bodies.86 

Specific positive content obligations are provided for mainly in the Broadcasting Act. They 
include  quotas  for  TV  programmes  produced  originally  in  Polish  language  (33%),  songs 
performed  in  Polish  in  radio  programme  services  (33%),  European  works  (50%), 
European works produced by independent producers (10%)87. 

More specifically PSM are obliged to facilitate  direct presentation and explanation of the 
State  policy  by  supreme  State  authorities,  enable  political  parties,  trade  unions  and 
employers’  organisations  to  present  their  position  with  regard  to  major  public  issues, 
enable public service organisations to inform about their services, transmit electoral and 
referendum  programmes  -  in  accordance  with  the  law  and  procedures  determined  by 
KRRiT  in  regulations.88  Other  specific  content  obligations  of  PSM  concern  programme 
services for abroad and educational programmes.89 

The Act on Introduction of Digital Terrestrial Television provides for obligations of (public 
and  private)  television  broadcasters  of  analogue  terrestrial  programme  services  to 
broadcast at their own costs information with regard to digital switchover.90 

- Funding schemes for specifically desired content 

Funding  schemes  for  specific  content  exist  with  regard  to  public  service  remit  of  PSM 
(that  include  news/current  affairs  programmes)  and  cinematographic  productions.  The 
BA  provides  also  for  the  budgetary  funding  of  PSM  programme  service  for  Poles  living 
abroad  and  educational  programmes.  There  is  no  statutory  funding  scheme  specifically 
designed for news and current affairs programmes or other information media services.  

- Political advertising and/or broadcasting time 

Rules  for  broadcasting  of  electoral  programmes  were  codified  in  the  Electoral  Code  of 
2011.91  The  Code  attempted  also  to  restrict  political  advertising  by  forbidding  in  the 
course  of  the  electoral  campaign  electoral  paid  political  advertisements/announcements 
in public and private radio and television programme services.92 The Constitutional Court 
decided  however  that  these  bans  constitute  disproportional  limitation  of  the  freedom  of 
expression93,  and  the  relevant  provisions  lost  their  force.  In  consequence  political 
advertising  is  not  specifically  regulated,  neither  in  the  course  of  election  campaigns  or 
outside these periods, neither in the written press, Internet, out-door communications or 
broadcasting  (private  or  public),  and  thus  is  deemed  to  be  generally  allowed. 
Broadcasting  time  to  be  offered  to  parties  or  candidates  is  regulated  by  the  Electoral 
Code.  Electoral  committees,  whose  candidates  have  been  registered,  have  the  right  to 

86 

87 

88 

89 

90 

91 

92 

93 

Articles 34 and 35 of the Press Law.
 
Articles 15 and 15a of the BA. 

Articles 22, 23, 23a and 24 of the BA.
 
Art. 25 of the BA. 

Articles 12-15 of the Act of 30.06.2011 on Introduction of Digital Terrestrial Television, Dz.U. No 153, item
 
903. 
The Act of 05.01.2011, Dz.U. No 21, item 112. 
Also certain outdoor political advertising was to be banned. 
Judgement of 20.07.2011, K 9/11. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

broadcast  free  of  charge  electoral  programmes  in  programme  services  of  PSM  (and  at 
their  cost)  within  15  days  before  elections.  The  detailed  rules  of  broadcasting  of  such 
programmes,  including  broadcasting  time,  are  determined  by  the  KRRiT,  by  way  of 
regulation.  In  addition  TVP  is  obliged  to  broadcast  debates  between  representatives  of 
different  electoral  committees  in  elections  to  Sejm  and  European  Parliament  in  Poland, 
and between candidates in presidential elections.  

- Codes of conduct and their organisational framing 

As mentioned in 2004 report, there are two major Codes of Journalistic Ethics/Conduct – 
adopted  by  The  Polish  Journalists  Association  and  Association  of  Journalists  of  the 
Republic  of  Poland  respectively.94  In  addition  Media  Ethics  Charter  was  adopted  by 
organisations  of  journalists,  editors  and  broadcasters.  The  Media  Ethics  Council  makes 
sure that the Charter is followed, with the power to make statements about media ethics, 
but  no  right  to  sanctions.  Some  media  have  their  own  code  of  ethics  and  internal 
structures  to  supervise  their  fulfilment,  ex.  PSB  –  TVP  –  has  its  “Rules  of  Journalistic 
Ethics  in  TVP  –  news,  current  affairs,  reporting,  documentaries,  education”,  and  the 
Committee of Ethics. 

- The role and functioning of regulatory authorities in these respects 

Journalistic codes of ethics/conduct are treated as a field for self-regulation, rather than 
for  competencies  of  regulatory  authorities.  This  was  confirmed  by  the  Constitutional 
Court, which declared that the amendment to the BA of 2005 granting the KRRiT the new 
task of protection of journalistic ethics did not conform with the principle of legality with 
regard to state authorities (as rules of professional ethics are non-legal criteria) and rule 
of law in conjunction with the freedom of expression.95 

  Distribution Aspects 

- Access to frequencies 

The  BA  safeguards  frequencies  required  to  transmit  statutory  programme  services  of 
PSM.96 Access to frequencies for terrestrial transmission of other programme services is 
on the one hand related to the granting of broadcasting licenses by the KRRiT97 and on 
the  other  to  competencies  of  the  President  of  the  Office  of  Electronic  Communication 
(UKE)  with  regard  to  frequency  management98.  The  later  organ  is  in  charge  of 
determination  of  the  frequency  management  plan,  which  in  relation  to  frequencies 
intended for broadcasting of radio and television programme services should be done in 
agreement with the Chairperson of KRRiT. The President of UKE grants general exclusive 
frequency  licenses,  in  the  case  of  frequencies  for  broadcasting  -  in  agreement  with  the 
Chairperson  of  the  KRRiT.  These  licences,  in  the  absence  of  sufficient  frequency 
resources, is granted to entities appointed  by means of  a contest, that is carried out by 
the  President  of  UKE,  but  conditions  with  regard  to  obligations  and  tasks  concerning 
programme contents, including must-carry, are specified by KRRiT on the motion of the 
President  of  UKE.  This  body  may  also  change  an  entity  holding  a  general  exclusive 
frequency licence for the broadcasting purposes in agreement with KRRiT.  

94 

95 

96 

97 

98 

See: 2004 Report, p.154-155.
 
Judgement of 24.03.2006, K 4/06, point 2. English summary:

http://www.trybunal.gov.pl/eng/summaries/documents/K_4_06_GB.pdf 
Art. 26 para. 5-6 of the BA. 
Articles 31-40b of the BA. 
Articles  111-125  of  the  Act  of  16.07.2004  the  Telecommunications  Law,  Dz.U.  No  171,  item  1800,  with 
amendments. 

534 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
 
 
  
 
  
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The system of competencies of state regulatory authorities, respectively for broadcasting 
(KRRiT) and telecommunications (UKE, formerly URTiP), was significantly changed by the 
revision  of  2005,  with  reduction  of  KRRiT  tasks  mainly  to  content  related  ones.  Further 
changes were made recently in 2011 by the Act on Introduction of the Terrestrial Digital 
Television,  which  partly  fine-tuned  competencies  of  UKE  and  KRRiT,  in  accordance  with 
transport/content dichotomy. 

- Access to distribution networks and control of actual conditions 

Access to distribution networks is regulated generally for telecommunications services in 
provisions  on  telecommunications  access99  with  the  regulatory  and  controlling 
competencies of the President of UKE, as well as more specifically for radio and television 
programme services, in the context of must-carry/must-offer rules, duties of (terrestrial) 
multiplexes  operators  and  access  to  multiplexes,  as  well  as  certain  obligations  with 
regard to radio and television digital broadcasts. 

In the context of launching DVB-T the allocation of places in multiplexes provoked some 
controversies. This year KRRiT has been criticized by right-wing politicians and media for 
refusal of granting the place in the DVB-T multiplex for TV Trwam (religious channel by 
Lux  Veritatis  Foundation  -  broadcaster  of  Radio  Maria),  which  is  called  by  the  applicant 
and its supporters “discrimination of catholic media”, but explained by KRRiT as a result 
of non-compliance with procedural and financial requirements100 

Circulation  of  the  press  is  not  specifically  regulated,  except  the  (outdated)  provision  in 
the  Press  Law  (Art.  3)  that  forbids  “employers”  of  printing  and  distribution  entities  to 
limit  and/or  make  difficult  printing  or  acquisition  of  dailies,  periodicals  and  other  press 
publications,  accepted  by  the  enterprise  for  printing  and  distribution,  because  of  their 
editorial line or contents. Such a behaviour constitutes a criminal offence (art. 49 of the 
Press). Refusal to accept the press for printing or distribution, may moreover constitute a 
practice restricting competition under (public) competition law101 and/or constitute a tort 
of unfair competition as an impediment of access to the market102. 

- Must-carry/must-offer rules for electronic media 

Must-carry rules103 were significantly revised and supplemented with must-offer element 
-  in  2011  by  the  Act  on  the  Introduction  of the  Digital  Terrestrial Television.  The  must-
carry  rules  became  technologically  neutral  and  they  now  cover  any  retransmission, 
including by cable networks (as before) and satellite bouquets. The following programme 
services have a must-carry status: TVP1, TVP2, TVP regional channel - TVPInfo (in case 
of  regional/local  retransmissions  -  relevant  for  a  given  area),  as  well  as  channels 
transmitted on 10.08.2011 on the basis of a licence for analogue terrestrial broadcasting 
by  listed  companies,  which  in  practice  concerns:  Polsat,  TVN,  TV4,  TV  Puls.  Also  the 
periodic  review  clause  was  added,  under  which  the  Chairperson  of  KRRiT  should  assess 
the  fulfilment  of  the  must-carry  rules  every  two  years  and  submit  the  results  of  the 
assessment  to  the  Minister  of  Culture,  who  then  should  take  actions  to  ensure 
proportionality  and  transparency  of  these  rules,  which  in  practice  could  mean  a 
submission  of  a  draft  revision  of  the  law  to  the  government. The  criteria  of  assessment 

99 

Articles 26-45 of the Telecommunications Law.
 

100  On 25.05.2012 the administrative court upheld KRRiT’s decision, but in the time of writing still a cassation 


101 

is possible.  
The  Act  of  16.02.2007  on  the  Protection  of  Competition  and  Consumers,  Dz.U.  No  50,  item  331,  with 
amendments. 

102  Art. 15 of Act of 16.04.1993 on Unfair Competition, consolidated text: Dz.U. of 2003, No 153, item 1503, 

with amendments. 
103  Articles 43-43a of the BA. 

535 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
  
 
 
  
 
 
 
 
  
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

include social interest with regard to provision of information, ensuring access to culture 
and  art,  facilitating  access  to  learning,  sport  and  scientific  achievements,  as  well  as 
dissemination of civil education. The must-offer component of the new system lies in the 
rule that a broadcaster of a programme service with must-carry status may not refuse a 
retransmitting operator the consent for the retransmission of this programme service and 
may not make such a consent conditional upon payment of any remuneration, including 
in particular any fee for the award of a licence for the use of the broadcast. Moreover a 
broadcaster shall make a programme service in question accessible free of charge on an 
application  of  the  retransmitting  operator.  The  Chairman  of  KRRiT  may  request  the 
broadcaster  to  do  so. The  retransmitting  operator  is  obliged  to  retransmit  and  offer  the 
relevant  programme  service  and  inform  that  it  is  available  for  universal  and  free  of 
charge reception, also by the digital terrestrial transmission.  

KRRiT  in  early  2012  made  a  first  assessment  of  the  new  rules  and  declared  that  they 
unnecessary  fixed  the  channels  with  must-carry  status  and  petrified  oligopolistic 
structure of the television market. On the other hand new rules do not specify in which 
package  of  the  operator  must-carry  channels  should  be  offered.  According  to  KRRiT  in 
every package including the basic one. KRRiT sees the need for legislative changes with 
regard to must-carry rules, which should provide for more flexibility for the regulator to 
determine the actual list of must-carry programme services. 

- Role of platform operators 

The Act of 2011 on the Introduction of the Digital Terrestrial Television regulated duties 
of DVB-T multiplexes (I and II) operators, and added to the Telecommunications Law the 
provisions  on  operators  of  multiplexes  and  access  to  a  multiplex.  Obligations  of 
multiplexes  operators  include  transmission  of  programme  services  licensed  for  a  given 
multiplex,  granting  of  access  to  broadcasters  with  relevant  licences  on  equal  and  non­
discriminatory  terms.  The  President  of  UKE  is  empowered  with  competencies  to  ensure 
fulfilment of these duties. 

- The role and functioning of regulatory authorities in these respects 

The  role  and  functioning  of  the  regulatory  authorities  were  mentioned  above  in  this 
chapter. 

  Access to Information 

- Transparency of media ownership situations 

Media ownership, including transparency, is still regulated in a rather fragmented way104. 
Under  the  BA  (Art.  14a),  in  accordance  with  the  AVMS  Directive  the  broadcaster  is 
obliged  to  ensure  an  easy,  direct  and  permanent  access  to  information  that  allows  to 
identify the programme service and its broadcaster to the recipient, including the name 
and  the  seat  of the  broadcaster.  Similarly, under  the  Press  Law  (Art.  27)  every copy  of 
periodic prints shall include name and address of the editor. These duties do not include 
however ownership structure. 

- Accountability of public service media 

PSM have a duty to make available to the public their yearly reports on the use of public 
funds  and  fulfilment  of  the  public  service  remit.  PSM  also  deliver  their  financial­

104  See 2004 report. 

536 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

programme reports to KRRiT and this information is reflected and available to the public 
in yearly reports of KRRiT. 

- Freedom of information laws 

The Act on Access to Public Information provides for making public information, including 
official  documents,  available  in  the  Bulletin  of  Public  Information  (special  internet 
service),  access  at  individual  requests,  public  announcements  and  the  entrance  to 
meetings  of  collective  public  authorities  appointed  in  general  elections,  as  well  as  by 
making available of materials, including audiovisual ones, from these meetings. 

- Accessibility of products/services and distribution networks 

The  Telecommunications  Law,  as  amended  by  the  Act  on  the  Introduction  of  Digital 
Terrestrial  Television,  stipulates  that  public  telecommunications  networks  used  for  the 
digital radio and television transmissions, as well as digital receivers and other pieces of 
equipment  used  for  reception  of  such  transmissions  should  ensure  interoperability  of 
these  transmissions,  in  particular  through  application  of  an  open  interface  of  the 
application  software.  Moreover  digital  receivers  should  make  possible  to  receive  non-
encoded digital TV transmissions and to decode by uniform algorithm of encoding digital 
TV  encoded  transmissions,  as  determined  by  the  regulation.  The  enterprises  selling 
digital receivers may sell such receivers that do not fulfil these conditions only if a buyer 
has been adequately informed about it. The law also provides for other duties of sellers 
of digital receivers, broadcasters and authorities related to the information campaign on 
digital switch-over. 

Certain  form  of  public  aid  exist  under  the  provisions  of  the  BA  exempting  social 
broadcasters from the fee for broadcasting licence (Art. 39 para. 2). 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Media,  including  PSM,  often  offer  their  public  possibilities  to  interact,  comment  or 
complain  on  contents.  Complaints  may  also  be  sent  to  KRRiT,  which  is  obliged  to  deal 
with it in accordance with the Code of Administrative Procedure. In KRRiT structure there 
is a specialized unit dealing with complaints and a contact-complaint form is available on 
the website of KRRiT. 

There  is  no  media-specific  “Ombudsman”,  but  general  Ombudsperson  deals  also  with 
complaints  with  regard  to  the 
freedom  of  expression.  For  example,  recently 
Ombudsperson intervened against too restrictive, in her view, also from the point of view 
of journalistic confidentiality, provisions on data retention in Poland. 

- Participation in media operators/(self-)regulatory bodies 

Structures of PSM include programming councils, that consist of 15 members, appointed 
by  the  KRRiT,  10  –  represent  parliamentary  parties,  5  –  are  appointed  among  persons 
with achievements and experience in culture and media. 

537 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.20.2.  Main Players in the Media Landscape 

2.2.20.2.1. 

Radio 

Public service radio stations are produced by Polskie Radio (Polish Radio) comprising 18 
broadcasting  companies  which  operate  as  separate  legal  entities  in  the  form  of  state-
owned  companies.  One  of  them,  Polskie  Radio  S.A.,  which  runs  four  domestic-oriented 
networks  and  one  external  service,  operates  at  a  national  level.  The  remaining  17 
companies  are  regional  broadcasters  producing  regional  channels.  Additionally,  seven 
regional public broadcasters produce local channels. 

Private broadcasters also operate at both national and local levels. Some of them operate 
as groups with strong capital ties. Among the largest media groups are the following: the 
RMF  Group,  EUROZET, Agora  and  TIME.  The RMF  Group and  EUROZET  operate  national 
stations: RMF FM and RADIO ZET, respectively. Besides, these two groups run a number 
of  specialized  local  stations.  The  scope  of  Agora  and  TIME  is  also  nationwide,  but 
technically they operate through a network of specialized local stations. 

The  difference  in  terms  of  the  technical  broadcasting  modus  operandi  (concentrated, 
national  broadcasting  vs.  dispersed  broadcasting  i.e.  local  stations  grouped  into  a 
network)  is  significant,  because  it  may  create  a  number  of  advantages  in  terms  of 
advertising revenues. Nationwide broadcasters which operate through a network of local 
stations  across  the  nation  have  an  additional  business  advantage  compared  to  those 
operating  in  a  concentrated  manner.  Alongside  advertising  revenues  generated  across 
the entire domestic market they enjoy surplus advertising revenues stemming from local 
markets. 

Polskie  Radio  S.A.,  as  a  countrywide  broadcaster  which  technically  operates  in  a 
concentrated manner, is not allowed to exploit such a window of opportunity.  

Many  broadcasters,  also  considered  commercial  from  the  formal  point  of  view,  form 
another  grouping.  One  hundred  and  sixteen  dispersed,  independent  small  and  local 
broadcasters, confronted with the effects of the consolidation processes which take place 
among dominant commercial groups: RMF, EUROZET, TIME and Agora, maintain financial 
stability105.  Nevertheless,  consolidation  processes  which  lead  to  capital  concentration 
may  occur  thanks  to  the  present  high  cost  of  entering  the  radio  market.  This  fact 
regarding  Poland’s  media  ownership  structure  has  been  officially  recognized  by  the 
President  of  the  Office  of  Competition  and  Consumer  Protection:  In  previous  years,  a 
clear  segmentation  of  the  radio  broadcasting  market  occurred.  The  market  was  divided 
into local, supra-regional and national markets. At present national broadcasters tend to 
build networks of local stations based on tried and tested formats to fully and rationally 
tap  the  potential  of  their  networks.  Due  to  the  lack  of  available  frequencies,  capital 
groups  acquire  stations  on  local  markets  through  a  takeover  of  companies  that  already 
have a broadcasting licence.106 

Last but not least, it is worth mentioning social media which operate in the radio market. 
Compared  to  the  diverse  295  radio  stations  that  exist  in  Poland107,  they  form  quite  a 
homogenous  group.  All  of  these  social  media  (or,  as  they  are  often  defined,  citizens’ 
media) which function as non-profit companies produce religious channels. Radio Maryja 

105 

106 

107 

Information  on  Key  Issues  in  Broadcasting  –  supplement  to  the  Annual  Report  of  the  National 
Broadcasting, Council, Warsaw March 2012.  
The 
(http://orka2.sejm.gov.pl/IZ6.nsf/main/51363E5A). 
Information on Key Issues in Broadcasting, op.cit. 

the  UOKiK  on  Poland’s  media  ownership 

the  President  of 

stance  of 

structure 

538 


 
  
  
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
  
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

is  a nationwide broadcaster, while the other seven, owned by individual dioceses of the 
Roman Catholic Church, operate on the local level.108 

The  resulting  radio  market  diversification  is  a  visible  sign  of  media  fragmentation.  One 
might say that this description provides evidence of the “long tail” theory109. On the other 
hand,  it  seems  necessary  to  confront  changes  which  are  occurring  in  the  radio  market 
with  changes  in  other  media  markets  and  their  consequent  economic  impact  on  the 
condition of all media players. In previous years a clear segmentation of the radio market 
was evident in local markets, the supra-regional market and the national market. At the 
moment, national broadcasters are aiming at building networks of local stations based on 
successful formats to fully and rationally tap their potential. Due to the lack of available 
frequencies,  capital  groups  acquire  local  stations  through  takeovers  of  companies  that 
are  already  licensed  to  broadcast.  Most  entrepreneurs  involved  in  radio  broadcasting  in 
local  markets  currently  operate  within  ownership,  programming  and  advertising 
structures controlled by powerful media groups110 

The  strongest  national  stations  are  both  commercial  stations:  RMF  FM  and  Radio  ZET. 
Over the last ten years, RMF FM has increased its share (by almost 6.8 percentage points 
compared to 2001), while Radio ZET has decreased its share (by 1.4 percentage point). 
Next  in  line  are  two  national  public  stations:  Polish  Radio  One  and  Polish  Radio  Three. 
Polish  Radio  One  which  enjoyed  an  18.8-percent  market  share  in  2000,  on  a  par  with 
that of Radio ZET, has lost 6.9 percentage points. The results of overall radio competition 
in terms of market share are outlined in table 113.  

108	 

Ibidem. 

109	  A phrase originally used by Chris Anderson in an article published in Wired magazine (October 2004). 
110	  A  reply  to  parliamentary  question  No.  3717  concerning  the  media  ownership  structure  in  Poland  by  the 
President of UOKiK on the authority of the Polish Prime Minister based on KRRiT report of 28 April 2009, 
http://orka2.sejm.gov.pl/IZ6.nsf/main/51363E5A. 

539 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 113 PL: Main Radio companies – ownership structure, main stations and 
market share (15+age group) in year 2011 

Company 

Ownership 
Structure* 

Main Radio 
Stations/Channels 

Funding 
** 

Market 
Share 
*** 

26% 

16.2% 

11.9% 
0.6% 
8.2% 
0.4% 
5.6% 

7.6% 
1.4% 

1.3% 
2.9% 

RMF 

EUROZET 

Invest 

Bauer  Media 
GmbH 
Eurozet  sp.  z  o.o. 
controlled 
by 
Lagardere Active Radio 
International 
and 
Holding B.V. 

RMF FM 

Radio ZET 

Polskie  Radio 
S.A.(PSB) 

Joint  stock  company 
owned by the Treasury 

  Polish Radio One (PR 1) 
Polish Radio Two (PR 2) 
  Polish Radio Three (PR 3) 
Polish Radio Four (PR 4) 

Joint  stock  companies 
owned by the Treasury  17 

separate 

regional 

stations 

A 

A 

P/L/A 
P/L/A 
P/L/A 
P/L/A 
P/L/A 

Radio Eska  
(network of 38 stations) 
Radio Eska Rock 
Radio TOK FM 
Golden  Hits  /Złote  Przeboje 
(network of 19 stations) 

A 
A 

A 

Polskie  Radio 
Regional 
Broadcasters 
(PSB) 
TIME 

Agora 

Radio Maryja 

ZPR S.A. 

Agora Holding, 
BZ  WBK  AIB  Asset 
Management,  
AIB 
WBK 
BZ 
Towarzystwo Funduszy 
Inwestycyjnych S.A., 
Arka BZ WBK FIO  
The 
Redemptorist 
Fathers  of  the  Warsaw 
Province 

Radio Maryja  

D 

2.1% 

* Sources: company websites and Annual Reports for the Year 2011 

**  Funding:  P=Public  funds;  D=Private  donations;  L=License  fee;  A=Advertising; 
S=Subscription  

*** Source: Radio Track SMG/KRC, March 2012  

The  results  of  market  competition,  in  terms  of  listeners  in  the  so-called  commercial 
group,  are  slightly  different  (see  Table  114).  Needless  to  say,  they  have  clear 
implications for the levels of advertising revenues. 

540 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 114 PL: Main Radio Stations – market share (16-49 age group) in year 
2011 

Main Radio Stations/Channels 

Market Share * 

RMF FM 

Radio ZET 

Polish Radio One   (PR 1) 

Polish Radio Two   (PR 2) 

Polish Radio Three (PR 3) 

Polish Radio Four   (PR 4) 

17 separate regional stations (PSB) 

Radio Eska  

(network of 38 stations) 

Radio Eska Rock 

Radio TOK FM 

Golden Oldies /Złote Przeboje/ 

(network of 19 stations)  

Radio Maryja  

30.6% 

17.9% 

4.4% 

0.3% 

7.9% 

0.6% 

3.3% 

10.5% 

2.1% 

0.8% 

2.6% 

0.9% 

* Source: Radio Track SMG/KRC, March 2012 

2.2.20.2.2. 

Television 

Public  service  television  channels  are  solely  produced  by  Polish  Television  (Telewizja 
Polska  S.A.,  TVP  S.A.).  The  public  broadcaster  has  two  nationwide  terrestrial  channels 
(TVP 1 and TVP 2), six specialized channels distributed via satellite and one information 
channel  (TVP  INFO)  produced  in  cooperation  with  16  local  branches.  The  six  channels 
include  TVP  Polonia  dedicated  to  Poles  living  abroad,  TVP  Kultura,  TVP  Sport,  TVP 
Historia,  TVP  Seriale  offering  mainly  domestic  TV  series  and  Belsat  TV  (produced  in  the 
Belarusian language) aimed at audiences in neighbouring Belarus. 

The  two  major  competitors  of  public  television  stations  operating  in  the  commercial 
sector are Polsat Group and TVN. The Polsat Group, via the Telewizja Polsat SA company, 
produces three terrestrial channels (Polsat, TV4, TV6) and 14 satellite channels: Polsat 2, 
Polsat Play, Polsat Café, Polsat News, Polsat Sport, Polsat Sport News, Polsat Sport Extra, 
Polsat Futbol, Polsat Film, Polsat Jim Jam, TV Biznes and Polsat Crime & Investigation. 

A  sign  of  ongoing  concentration  is  the  recent  takeover  of  ITI  (TVN)  by  Canal+,  and  of 
cable operator ASTER by UPC. The TVN Group broadcasts two terrestrial channels and 13 
channels  also  distributed  via  satellite:  (TVN  24  –  a  round-the-clock  news  channel,  TVN 
Style,  TVN  Turbo,  TVN  CNBC,  TVN  Meteo,  iTVN  directed  to  Polish  communities  abroad, 
nSport, Mango 24 – teleshopping, nFilm HD,  nFilm HD2 and Show 3D. 

When  it  comes  to  minor  players,  one  channel  is  produced  by  TV  PULS  and  eight  local 
channels are available only for two hours a day. They are produced by Telewizja ODRA, 
TVT, Studio Lubań – Bolesławiec and Niezależna Telewizja Lokalna Radomsko (Radomsko 
Independent Local Television). 

Apart  from  channels  produced  by  television  stations  and  distributed  terrestrially,  Polish 
viewers have access to 85 specialized theme channels distributed via cable networks and 
digital satellite platforms.  

541 


 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 115 PL: Main Television Companies - ownership structure, main stations 
and market share in the year 2011 

Company 

Telewizja  Polska 
S.A. 

Cyfrowy 
S.A. 
Group 

Polsat 
Capital 

TVN 
Group 

Capital 

Lux Veritatis 

Others 

Ownership 
Structure* 
Polish treasury 

Television 

Investments 
by 

Pola 
Ltd.(controlled 
Solorz-Żak) 
and others 
Polish 
Holding, 
Cadizin 
Trading&Investmen 
t  (both  controlled 
by ITI Holding S.A.) 
N-Vision B.V. 
Lidia  Kochanowicz 
Jan  Król, 
Mańk, 
Tadeusz Rydzyk 

Main 
Television 
Stations/Channels 
TVP 1 
TVP 2 
TVP INFO 
TV Polsat 
TV 4 

Funding 
** 
P/L/A 
P/L/A 
L/A 
A 
A 

Market Share 
*** 
17.4% 
13.3% 
4.2% 
14.5% 

TVN 
TVN 7 

A 
A 

15.0% 
1.8% 

TV Trwam 

D 

0.1% 

. 

29.4% 

* Sources: companies Annual Reports for the Year 2011 

**  Funding:  P=Public  funds;  D=Private  donations;  L=License  fee;  A=Advertising; 
S=Subscription 

*** Source: data published by Nielsen Audience Measurement quoted in: Information on 
Key Issues in Broadcasting, in the Year 2011 – supplement to the Annual Report of the 
National Broadcasting Council, Warsaw March 2012 

The top two stations in terms of audience within the commercial group of viewers (aged 
16-49), TVN and TV Polsat, are both commercial stations. 

Table 116 PL: Main Television Stations – market share (age group 16-49) in the 
year 2011 

Main Television Stations/Channels 

Market Share * 

TV Polsat 

TVN 

TVP 1 

TVP 2 

TV 4 

TVN 7 

16.5% 

16.1% 

13.6% 

11.9 

2.8% 

2.2% 

* source: TVN Capital Group Annual Report for the Year 2011 

TV  channels  are  broadcast  terrestrially  in  analogue  and  in  digital  format.  In  September 
2009,  following  a  dozen  rounds  of  consultations  between  KRRiT  and  UKE,  the  main  TV 
market players on others, Multiplex 1 (MUX 1) was launched, followed by Multiplex 2 in 
September 2010 and Multiplex 3 in October of that year. The following channels are to be 
included  in  MUX  1:  TVP1,  TVP2,  TVP  INFO  (regions),  Eska  TV,  TTV,  Polo  TV  and 

542 


 
  
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Rozrywka.  The  launch  of  the  MUX  3  multiplex  will  take  place  in  three  stages.  By  end­
2012 (stage 3) at least 95% of Poland’s population is to be able to receive its digital TV 
signal. Digital terrestrial MUX 2 will encompass 8 channels: Polsat, TVN, TVN7, TV4, TV 
Plus,  TV6  and  Polsat  Sport  News.  MUX  3  will  include  Polish  Television  channels:  TVP1, 
TVP2, TVP INFO (regions), TVP Kultura, TVP Polonia and TVP Historia.  

This  list  highlights  the  fact  that  the  multiplexes  will  be  dominated  by  the  existing  chief 
market players. 

For the time being, digital terrestrial television is essentially only available in major cities. 
It  is  expected  that  all  of  Poland  is  to  be  covered  before  the  end  of  2013.  Analogue 
terrestrial TV is to be switched off by end-2013.  

Last but not least, it is worth highlighting the links between major television companies 
and VOD services. Polsat owns Ipla, TVN - TVN Player, TVP SA - VP VOD. 

2.2.20.2.3. 

Press and publishing 

As  it  was  pointed  out  in  section  2.2.1.1.1,  the  Press  Law  does  not  include  any  anti-
concentration  rules  or  limitations  concerning  foreign  media  ownership.  So  it  is  worth 
noting  that  it  was  mentioned  in  an  earlier  version  (2004)  of  the  respective  report, 
namely: Hence, there was a major influx of foreign capital and foreign interest into this 
market  from  the  beginning  of  the  market  liberalisation,  notably  also  in  the  magazine 
sector (…).111 

Nowadays,  almost  every  case  of  merger  or  acquisition  which  will  bring  capital 
concentration, has to be approved by the President of the UOKiK112. 

Agora,  the  owner  of  two  radio  stations:  TOK  FM  and  Złote  Przeboje  (Golden  Oldies) 
publishes Poland’s second largest national daily newspaper Gazeta Wyborcza.  

ZPR S.A., which is among the most dynamic investors in the radio and television market, 
owns  the  Murator  publishing  company  with  many  popular  press  titles,  especially  the 
Super Express tabloid focused on the needs of the man in the street. However, the most 
popular  daily  newspaper  is  Fakt  Gazeta  Codzienna  published  by  Ringier  Axel  Springer 
Polska.  Fakt  Gazeta  Codzienna  has  outpaced  all  other  newspapers  in  terms  of  daily 
circulation. According to many opinions (the same opinion was expressed in the previous 
edition of this report) Fakt is a twin paper of the top selling German tabloid Bild. 

Rzeczpospolita  owned  by  Presspublica  is  an  opinion-forming  daily  newspaper  very 
popular and respected in business circles. Next in rank after Rzeczpospolita are Dziennik 
Gazeta Prawna and Puls Biznesu, which specialise mainly in covering legal and economic 
issues. 

111	 

Final  report  of  the  study  on  “the  information  of  the  citizen  in  the  EU:  obligations  for  the  media  and  the 
Institutions concerning the citizen’s right to be fully and objectively informed” Düsseldorf, 31 August 2004, 
p.159. 

112	  According  to  regulations  of  the  Competition  and  Consumer  Protection  Act,  the  intention  of  concentration 
requires  approval  of  the  President  of  the  Office  in  the  case  when  the  combined  worldwide  turnover  of 
entities involved exceeds EUR 1,000,000,000 or EUR 50,000,000 in case of combined turnover of entities 
operating in Poland. 

543 


 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 117 PL: Chief publishers of selected newspapers* in the year 2011 

Publisher 

Shareholders**  Dailies 

Daily 
Circulation 
(printed 
and 
e-edition) 
*** 
400,074 

Share  of 
Daily 
Market** 
* 

Seasonal 
Cycle 
Readership 
**** 

0.88% 

12.39% 

278,280 

0.61% 

13.03% 

Fakt 
Codzienna 

Gazeta 

Gazeta 
Wyborcza 

Super Express 
Rzeczpospolita 

181,928 
90,025 

0.41% 
0.19% 

5.58% 
3.72% 

Dziennik  Gazeta 
Prawna 

67,908 

0.14% 

2.40% 

Ringier  Axel 
Springer 
Polska  
Agora SA 

Murator SA 
Presspublica 

Infor Biznes 

Ringier 
Axel 
Springer  Media 
AG 
Agora Holding, 
BZWBK AIB Asset 
Management S.A. 
ING  OFE  Open 
Pension Fund  
ZPR S.A. 
Gremi Media, 
Polish Treasury 
Infor PL, 
Ringier 
Springer Polska 
Bonnier 

Axel 

Bonnier 
Business 
Polska 
* Selected titles devoted to political/economic/cultural issues  

Puls Biznesu 

13,031 

0.02% 

0.35% 

** Publisher websites and/or informal information 

*** “Daily Market” category encompasses all daily newspapers excluding those that are 
distributed  free  of  charge.  Source:  Press  Circulation  Audit  Association  (ZKiDP) 
https://www.teleskop.org.pl 

****  Source:  Polish  Readership  Study  (Polskie  Badania  Czytelnictwa  –PBC  General)  – 
report  drafted  by  Millward  Brown  SMG/KRC  (Figures:  research  period  October  2011– 
March 2012; N= 24 224) http://www.pbc.pl 

Among  political  and  social  weeklies,  Polityka,  which  is  owned  by  a  co-operative 
established  by  well-known  journalists  (who worked  for  the  magazine  before  1989),  and 
Wprost  have  been  the  most  popular  for  a  long  time.  The  publisher  of  the  Polityka 
magazine,  Polityka  cooperative  is  also  a  minor  shareholder  in  Radio  TOK  FM,  which  is 
regarded  as  a  very  influential  broadcaster.  The  highest  growth  dynamics  in  terms  of 
market  share  (weekly  circulation)  and  popularity  (average  issue  readership)  has  been 
achieved  by  the  Uważam  rze  magazine,  a  real  market  newcomer.  In  terms  of  topics  
covered  and  profile,  this  weekly  magazine  is  very  close  to  the  Rzeczpospolita  daily 
newspaper. Both are owned by Presspublica.  

To many observers, the fact that the Gość Niedzielny (Sunday Vistior) weekly published 
by  the  Metropolitan  Diocese  of  Poland’s  Roman  Catholic  Church  enjoys  the  highest 
circulation  among  periodicals  might  seem  quite  incomprehensible.  Due  to  expressive 
opinions  on  many  social  issues  and  a  clear-cut  profile  this  magazine  is  often 
characterized as a confessional one.  

The  coloured  and  specialized  magazine  sector  is  dominated  by  foreign  companies: 
German publishers Wydawnictwo Bauer, Gruner+Jahr Polska, Polskapresse, Ringier Axel 
Springer,  Edipresse,  Hachette  Fillipacchi  Polska,  and  Marquard  Media  Polska,  and  also 
Burda Media Polska. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 118 PL: Main Publishers of selected weekly magazines* in the year 2011 

Publisher 

Shareholders 

Title 

Gość  Niedzielny  Metropolitan 
Diocese  of  the  Niedzielny 
Publishers 
(Wydawnictwo 
Roman  Catholic 
Gość Niedzielny)  Church in Poland 
Polityka 

Polityka 

Gość 

Polityka 
Cooperative 

Weekly 
Circulation  Weekly 
** 
152,270 

Market** 
0.35% 

Share  of  Average Issue 
Readership*** 

3.76% 

144,171 

0.33% 

6.16% 

Springer  Newsweek 

109,128 

0.25% 

8.50% 

Ringier 
Axel  Axel 
Springer Polska   AG,  

Presspublica 

Ringier AG 
Gremi Media, 
Polish Treasury 

Polska 

Uważam 
rze 

Publishing  and  Point  Group  SA  Wprost 
(80%) 
Advertising 
Agency Wprost 
Presspublica 

Przekrój 

Gremi Media, 
State Treasury 

129,246 

0.29% 

2.91% 

92,754 

0.21% 

6.51% 

31,171 

0.07% 

2.95% 

* Selected titles devoted to political/economic/cultural issues  

** Publisher websites and/or informal information 

***  “Daily  Market”  category  encompasses  all  weekly  magazines;  source:  Press 
Circulation Audit Association (ZKiDP) https://www.teleskop.org.pl 

****  Source:  Polish  Readership  Study  (Polskie  Badania  Czytelnictwa  –PBC  General)  – 
report  by  Millward  Brown  SMG/KRC  (Figures:  research  period:  October  2011  –  March 
2012; N= 24,224) http://www.pbc.pl 

2.2.20.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Among  market  analysts  in  Poland,  the  view  prevails  that  in  the  audiovisual  services 
market a fragmentation of the hybrid television market is noticeable. This is ascribed to 
the lack of TV set interoperability and the use of different standards.113 

Meanwhile, in the non-linear services market, content delivered by Polish suppliers is the 
most popular. According to fragmentary data chiefly based on estimates, as of end-2011 
ipla.tv  interactive  television  ranked  the  highest,  followed  by  iplex  and  tvn  player  video­
on-demand  services.  Next  comes  public  television’s  video-on  demand  service,  followed 
by the only audio service in the ranking: Tuba.fm offered by Agora.  

In  terms  of  the  popularity  of  web  services  grouped  according  to  category  (culture  and 
entertainment,  news  and  current  affairs,  new  technologies  and  business,  finance  and 
law), the number of real users and reach were the following: 

113 

Information on Key Issues in Broadcasting, op.cit., p.22. 

545 


 
 
 
 
 
 
 
 
  
 
 
 
 
  
  
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 119 PL: Popularity of web services (selected categories) in Poland 

Selected service categories 

Real users 

Culture and entertainment 

19,209,883 

Reach 

99.56% 

News and current affairs 

18,279,905 

94.74% 

New technologies 

15,598,058 

80.84% 

Business, finance, law 

13,726,887 

71.14% 

Source: Megapanel PBI/Gemius survey – report drafted by PBI/Gemius – report drafted 
by  Millward  Brown  SMG/KRC  (Figures:  research  period  February  2,  2012;  target  group: 
all we users; N=13,639)  

Table 120 PL: The popularity ranking of portals (websites) in descending order 
includes 

Wirtualna Polska - Orange  

Onet.pl 

Wirtualna Polska  

Interia.pl 

Wirtualna Polska  

Grupa Gazeta.pl 

Murator 

TVN  

TVN-tvn24.pl 

Polskapresse 

Gazeta.pl-wyborcza.pl 

TVP  

Polskie Radio 

Source: Megapanel PBI/Gemius survey – report drafted by PBI/Gemius – report drafted 
by Millward Brown SMG/KRC 

2.2.20.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

According  to  detailed  data  concerning  the  pay  TV  market  contained  in  a  report  by  the 
President  of  the  UOKiK,  services  in  this  area  are  provided  by  digital  satellite  platforms, 
cable TV and IPTV operators114. 

Digital satellite platform operators have won the highest number of users (6 million, i.e. 
over  60%  of  pay  TV  audiences).  In  2011  5  digital  satellite  platforms  operated  in  the 
Polish  market:  Canal+  Cyfrowy,  Cyfrowy  Polsat,  Telewizja  „n”,  Telewizja  na  Kartę  and 
Neostrada’s Livevbox using satellite delivery.115 

Canal+  Cyfrowy  is  licensed  to  carry  out  wireless  delivery  of  TV  channels  and  radio 
stations.  It  also  holds  10  licences  for  channels  distributed  via  satellite.  The  company’s 
shareholders are: Groupe Canal+ SA (France) and LGI Ventures B.V. (Holland). Cyfrowy 
Polsat  SA  holds  a  licence  for  wireless  distribution  via  satellite  of  TV  channels  and  radio 
stations.  The  shareholders  of  the  company  are  Polaris  Finance  B.V.  (Holland),  Zygmunt 

114  Report on a survey of the pay TV services market, UOKiK, Warsaw, August 2011. 
115  Op.cit., p.12. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Solorz-Zak and remaining shareholders. The majority stakeholder of Polaris Finance B.V. 
is Zygmunt Solorz-Zak. ITI Neovision holds a licence for wireless satellite delivery of TV 
channels,  3  licences  for  TV  channels  distributed  by  satellite  and  2  licences  for  radio 
stations distributed by satellite. The sole shareholder is Neovision Holding B.V. (Holland). 

Telekomunikacja  Polska  SA  holds  a  licence  for  wireless  satellite  distribution  of  TV 
channels  and  radio  stations  and  a  licence  for  a  TV  channel  distributed  via  satellite.  Its 
shareholders  are  France  Telecom  SA  (France),  Capital  Research  and  Management 
Company (US fund), Polish Treasury and remaining shareholders. 

Between  them,  more  than  660  cable  TV  operators,  who  provide  analogue  and  digital 
services,  have  4,6  million  users,  mainly  in  urban  areas.  The  Polish  CATV  market  is 
Europe’s third largest in terms of size. Owing to the high cost of building cable networks, 
the growth of the cable subscribers base in the rural countryside is far slower. The urban 
market  is  all  but  saturated,  thus  considering  the  high  cost  of  cable  infrastructure 
development,  the  countryside  is  witnessing  an  expansion  of  satellite  platforms.  As  a 
result, in many local markets satellite platforms do not compete with cable. 

In  addition  to  the  above,  the  Office  of  Electronic  Communications  (UKE)  report  reveals 
that  the  number  of  households  being  hooked  up  to  broadband  with  the  use  of  the  DSL 
technology keeps growing, but the growth dynamics is lower and lower. Evidence of this 
is  a  stable  share  of  individual  fixed-line  technologies,  while  the  share  of  mobile  access 
keeps growing by leaps and bounds, partly as a result of aggressive marketing policies. 
This  growth  is  believed  to  stem  from  the  possibility  to  avoid  existing  fixed-line 
bottlenecks,  the  rising  sales  of  laptops  and  other  devices  that  allow  mobility  and  fads, 
especially among the younger generation116. 

The  least  widespread  means  of  pay  TV  delivery  is  IPTV,  i.e.  Web  services  using  IP 
protocol.  In  Central  and  Eastern  European  countries,  the  share  of  IPTV  is  still  low117. 
Although the number of IPTV subscribers in Poland grows steadily year by year, supply of 
this  kind  of  services  can  still  be  regarded as  marginal.  In  2009  just  four  supra-regional 
cable  operators  offered  IPTV.  The  providers’  inability  to  offer  adequate  broadband 
capacity  appears  to  be  the  main  stumbling  block.  Besides,  the  overall  high  TV  market 
saturation  resulting  from  the  popularity  of  other  successful  modes  of  television  delivery 
puts the prospects of IPTV in Poland in doubt. 

It is also  interesting to note the growing share of telecoms in the media, and the other 
way round. Polkomtel  mobile operator was recently taken over by Polsat, while telecom 
operators are branching out into the audio and video markets. 

2.2.20.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

An analysis of changes in advertising markets worldwide reveals that between 2006 and 
2009  the  share  of  web  advertising  grew,  the  share  of  TV  advertising  remained 
unchanged, while radio and press advertising budgets went down. In the Polish market in 
2010-2011,  only  press  advertising  experienced  a  downward  trend,  while  a  modest 
increase was registered in the remaining markets. 

116 

Telecommunication  market  in  Poland  in  the  year  2010,  report  drafted  by  UKE  in  June  2011 
http://www.uke.gov.pl/. 

117  Op.cit. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 121 PL: Changes in advertising revenues within the media sector in 
Poland - 2008-2011 

Years 

2008 

(mln 
zlotys) 

2009 

(mln 
zlotys) 

2010 

(mln 
zlotys) 

2011 

2011/2010 

(mln zlotys) 

(%) 

Television 

3,827.8 

3,3371.5 

3,859.4 

3,880.9 

Press 

Internet 

Radio 

1,695.7 

1,418.3 

1,334.9 

1,246.7 

802.4 

623.5 

874.9 

522.1 

1,021.7 

1,214.1 

528.9 

561.3 

Source: Information on Key Issues in Broadcasting( (2010; 2012) 

100.5 

93.3 

118.8 

106.1 

Nationwide  television  stations  have  experienced  a  decline  in  advertising  revenue,  while 
theme channels keep increasing their share of the TV advertising market. Year on year, 
in  2011  a  3.2  percentage  point  growth  was  registered.  Just  like  in  the  previous  year, 
advertising revenue of magazines, daily newspapers and outdoor advertising went down, 
while the Internet and radio managed to secure a larger share of the cake.118 

The need for the publishers of print media in Poland to take on the Internet following the 
arrival  of  the  first  tablet  produced  a  seeming  paradox.  The  sales  of  most  dailies  and 
weeklies declined (with the notable exception of the „Gość Niedzielny” whose circulation 
actually  went  up).  Press  advertising  revenue went  down,  clearly  as  a  result  of  pressure 
being exerted on publishers to offer discount rates in the face of the economic downturn. 
However, although the readership of individual press titles went down, in the opinion of 
experts  from  the Polish  Chamber of  Press Publishers  a  newspaper  which  maintains  high 
standards  is  still  regarded  by  the  majority  of  Polish  readers  as  the  best  source  of 
information and opinion.119 

Each  day  Polish  readers  devote  some  20  minutes  to  newspapers,  while  magazines  can 
count on 24 minutes of their time. For the sake of comparison, an average Pole spends 
some 230 minutes a day in front of the TV. The internet takes up about 117 minutes a 
day, while radio listening accounts for 80 minutes.120 

Year  by  year,  the  share  of  radio  listening  in  all  age  groups  is  on  the  decline.  Over  the 
past  decade,  the  average  time  devoted  to  the  traditional  consumption  of  this  medium 
declined  by  30%. To  the  largest  extent  this holds  true about  listeners  in  the  15-24  age 
group  who  increasingly  opt  for  web  streaming  or  pick  niche  stations  which  are  only 
available  online.  It  is  also  interesting  to  note  that  some  10%  of  online  listeners  follow 
their favourite stations with the use of mobile devices.   

In terms of Polish television audiences, women prevail. Those living in major cities prefer 
public TV stations, while those living in smaller towns favour commercial stations.  

Another  trend  evident  in  the  context  of  changes  in  media  consumption  highlighted  by 
analysts  of Poland’s  National  Broadcasting  Council  on  the  basis  of  data  gathered  by  the 
European  Audiovisual  Observatory  is  the  fragmentation  of  information  sources.  As  new 
technologies offer more and more reception options, and by the same token as access to 
individual  media  improves,  in  Poland,  just  like  in  Lithuania  and  Hungary,  the 

118 

119 

120 

Ibidem. 

Ibidem pp.11, 23.
 
Information  on  Key  Issues  in  Broadcasting,  quoting  TGI  Report,  2011  (Figures:  research  period  January  

2010–December 2010; N=17844 (newspapers readers), 29061 (magazines readers), PBI/Gemius Report, 
Radio Track SMG/KRC, and AGB Nielsen Media Research, 2010. 

548 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
  
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

fragmentation of information finds expression in a growing preference for foreign media 
among local users.121 

2.2.20.2.  Conclusion and Recommendations 

The freedom of expression and freedom of media have the growing importance in public 
debate  in  Poland,  in  particular  in  the  context  of  the  Internet,  where  fundamental  rights 
and  freedoms  are  often  treated  as  points  of  reference  in  discussions,  as  could  be  seen 
most manifestly during recent debates and protest in Poland on ACTA.  

The  scope  of  the  freedom  of  expression  and  freedom  of  media  has  been  progressively 
broaden  since  2004  by  the  jurisprudence  of  the  Constitutional  Court,  which  eliminated 
some  disproportional  statutory  limitations  of  these  freedoms,  in  particular  certain  penal 
provisions with regard to journalists and media activities. However the criminalization of 
a defamation and insult, although recently slightly relaxed, still exists in Poland and even 
its  constitutionality  has  been  confirmed  by  the  Court.  The  right  of  every  individual  to 
access  public  information  is  strongly  constitutionally  protected  and  implemented  with 
concrete safeguards in the statute. 

Recommendation:  Penal  provisions  applicable  to  journalists  and  media,  as  well  as 
individuals  performing  their  freedom  of  expression,  should  be  further  reduced,  in 
particular  penal  provisions  of  Articles  45-49a  of  the  Press  Law,  should  be  reviewed  and 
partly  abolished  and/or  replaced  with  non-penal  sanctions.  The  same  applies  to 
provisions of the Penal Code criminalizing a defamation and insult, in particular regarding 
an insult of the President and state organs.  

The legislation concerning media, in particular the Press Law (of 1984, amended in 1990) 
and  Broadcasting  Act  (of  1992)  is  characterized  by  relative  stability.  Proposals  for  their 
revisions often provoke controversies, which block reforms. Recently attempts to update 
both  acts  by  extending  their  scope  to  certain  new  on-line  media  activities  failed  to  be 
adopted,  as  allegedly  limiting  freedom  in  the  Internet.  There  is  however  pressing  need 
for the reform of both laws: in case of the Press Law due to its partial inadequacy to new 
media environment, and in case of the Broadcasting Act related to necessity to regulate 
non-linear audiovisual media services, in line with the AMS Directive. 

Recommendation:  The  Press  Law  should  be  adapted  to  the  new  media  environment.  In 
particular  clarification  is  needed  as  to  which  on-line  activities  constitute  media  and  to 
what extent registration applies. A new, more precise, regulation of rectifications and/or 
replies  is  needed.  Also  the  provision  on  authorizations  of  interviews  should  be reviewed 
and  relaxed.  In  both  cases,  criminal  sanctions  should  be  replaced  with  the  civil  law 
responsibility. 

Recommendation:  Non-linear  audiovisual  media  services  shall  be  urgently  regulated  in 
accordance with the AMS Directive, preferably by the revision of the Broadcasting Act.  

The lack of adequate public funding of public service media threatens their independence 
and abilities to fulfil public service remit. This may seem paradoxial, given the relatively 
stable  legal  framework  for  PSM,  their  important  position  on  the  market,  as  well  as 
constitutional case law confirming a duty of the state to secure adequate funding for PSM 
and enforceability of the present public funding scheme. 

121 

Information on Key Issues in Broadcasting, op.cit., p.12. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Recommendation: A more effective collection and enforcement of the licence fee by state 
authorities  in  accordance  with  the  law  in  force  is  essential.  The  public  funding  from  the 
licence  fees  should  be  complemented,  as  already  provided  for  under  the  Broadcasting 
Act, by the funding from the state budget. In the longer term, a new scheme for public 
funding  is  be  needed.  However,  the  complete  replacement  of  the  licence  fee  with  the 
funding  from  the  state  budget  is  not  recommended,  as  it  may  endanger  the 
independence  of  PSM.  Rather,  a  new  type  of  a  household  audiovisual  fee  should  be 
introduced, but without the outdated connection of a fee with the use or possesion of a 
radio and/or TV receiver. 

Although the safeguards for transparency and accountability of PSM in the law (including 
the  definition  of  the  public  service  remit,  reporting  duties,  making  available  of  yearly 
reports,  financial-programming  plans),  have  been  improved  since  2004,  there  is  still  a 
need to modernize this regulation according to the role of PSM in the information society. 

Recommendation:  The  provisions  on  the  remit  and  obligations  of  PSM  should  be  up­
dated,  in  particular  more  detailed  provisions  on  new  media  services  of  PSM  in  the 
Broadcasing  Act  are  needed.  More  involvement  of  civil  society  in  PSM  is  also 
recommended,  which  could  be  achieved  by  changing  the  compoistion  of  programming 
councils of PSM; the latter should consist more of civil society instead of representatives 
of parliamentary parties. 

Different kinds of media concentration processes take place on the Polish media market: 
horizontal  (networking  of  local  radio  stations  by  big  radio  groups,  practical  oligopoly  in 
traditional TV market, consolidations in cable TV and satellite platforms market), vertical 
and  cross-media  (ownership  of  press    and  broadcasting  services),  cross-sector  (ex. 
media  and  telecommunications)  and  international.122  These  processes  are  dealt  with 
mainly  by  measures  of  competition  law.  Media  law  means  are  rather  insufficient  and 
relate only to broadcasting. 

Recommendation:  Coherent  and  evidence-based  public  policy  on  media  pluralism  is 
recommended. The provisions on the media ownership transparency should be added to 
the  Press  Law  and  the  Broadcasting  Act.  Media  law  provisions  preventing  excessive 
media  concentration  of  different kinds  should be  developed  and  more  effective practical 
application  thereof  should  be  achieved  in  particular  through  better  cooperation  of 
authorities  competent  for  media  (KRRiT),  competition  (UOKiK)  and  telecommunications 
(UKE).  Recently  changed  must-carry/must-offer  rules  should  be  revised  again,  so  as  to 
play  their  role  of  flexible  safeguards  of  media  pluralism  and  cultural  diversisty,  rather 
than fixing an oligopolistic structure of the TV market. The list of must-carry programme 
services, other than statutory public service channels, should preferably be determined, 
within  the  limits  of  statutory  provisions,  by  way  of  a  regulation  by  KRRiT.  Initiatives  to 
promote  media  pluralism  at  the  EU  level  could  also  be  of  importance  from  Polish 
perspective. 

122  KRRiT Strategia regulacyjna na lata 2011-2013 (Regulatory Strategy for years 2011-2013), s.14-15. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

PORTUGAL 


2.2.21.	 

Portugal 

2.2.21.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.21.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

In Portugal, the general concept of freedom of expression and information is enshrined in 
the Constitution of the Portuguese Republic (hereinafter “Constitution”), under article 37. 

Additionally, the Constitution establishes as well other freedoms less generic such as the 
freedom of the press and the media1 and the rights to broadcasting time, of reply and of 
political response2. 

- Specific safeguards and rights for the media 

The  freedom  of  media  involves  three  specific  characteristics:  plurality  of  addressees, 
principle of maximum dissemination and use of adequate means (press, radio, television, 
Internet, etc.). 

  Freedom to receive and to access information 

- Specific rights for the citizens 

Provisions establishing the right to access information are included in the Constitution in 
its article 2683 since the date of its approval. 

  Safeguards on regulatory authorities 

The fundament for the design and remit of a regulatory authority – today: the Entidade 
Reguladora  para  a  Comunicação  Social  (media  regulatory  authority,  ERC)  is  foreseen  in 
article 39, 1 of the Constitution. Its jurisdiction extends to all media organizations, both 
public  and  private.  Its  duties  express  the  democratic  constitutional  order  of  the  media 
present in the fundamental principles and rights set out in Articles 37, 38 and 41 of the 
Constitution. 

1 

2 

3 

Article 38 of the Constitution. 
Article 40 of the Constitution. 
“1.  Citizens  have  the  right  to  be  informed  by  the  Administration,  whenever  they  so  request,  as  to  the 
progress of the procedures and cases in which they are  directly interested, together  with the right to be 
made aware of the definitive decisions that are taken in relation to them. 2. Without prejudice to the law 
governing  matters  concerning  internal  and  external  security,  criminal  investigation  and  personal  privacy, 
citizens also have the right of access to administrative files and records. 3. Administrative acts are subject 
to  notification  of  the  interested  parties  in  the  form  laid  down  by  law,  and  when  they  affect  rights  or  
interests  that  are  protected  by  law,  must  be  based  on  express  and  accessible  grounds.  4.  Citizens  are 
guaranteed  effective  jurisdictional  oversight  of  those  of  their  rights  and  interests  that  are  protected  by 
law,  particularly  including  the  recognition  of  the  said  rights  and  interests,  the  impugnation  of  any 
administrative  act  that  harms  their  rights  and  interests,  regardless  of  its  form,  the  issue  of  positive 
decisions  requiring  the  practice  of  administrative  acts  that  are  required  by  law,  and  the  adoption  of 
adequate  provisional  remedies.  5.  Citizens  also  have  the  right  to  challenge  administrative  norms  which 
have  external  force  and  harm  those  of  their  rights  or  interests  that  are  protected  by  law.  6.  For  the 
purposes  of  paragraphs  (1)  and  (2)  the  law  shall  lay  down  a  maximum  time  limit  for  responses  by  the 
Administration.” 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

  Safeguards on “universal service” 

The existence and operation of a public service of radio and television4 is an institutional 
guarantee of media’s own freedom and pluralism itself, in other words, the constitutional 
goal  that  radio  and  television  activities  are  not  subjected  to  economic  or  political 
interests. In addition to the institutional guarantee, the Constitution also defines a special 
status for the public sector of the media, i. e. to assume defining and performing public 
service  obligations 
information,  education,  culture, 
entertainment, promotion and defense of the Portuguese language). 

(specifically 

terms  of 

in 

2.2.21.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Directives  No.  97/36/EC  and  No.  2007/65/EC  orients  this  sector,  such  as  the  Laws 
No. 5/2004, No. 27/2007 and No. 8/2011. Also applicable to the audiovisual services on 
demand  are  the  rules  on  the  information  society  services  and  electronic  commerce 
contained in the Decree-Law No. 7/2004. 

Laws  No.  27/2007  and  No.  8/2011  contain  the  steps  to  be  followed  for  the  granting  of 
the license and authorization for the television activity and its exercise as well as offering 
to the public audiovisual services on demand. 

The  television  activity  is  subjected  to  licensing  by  public  tender  opened  by  Government 
decision. 

It  is  incumbent  upon  the  media  regulatory  authority  to  grant,  renew,  amend  or  revoke 
the licenses and authorizations for television broadcasting. As a condition of licensing for 
television activity which consists in the provision of generalist national scope programme 
the  coverage  of  the  whole  national  territory,  including  the  Autonomous  Regions,  is 
foreseen. 

With regard to the activity of the press the principle of freedom of the foundation prevails 
contrary to what happens to the radio and television broadcasters.  Newspapers and any 
other publications can be founded without any prior administrative authorisation. 

Law No. 54/2010 of 24 December is the Radio Law and contain the steps to be followed 
for the granting of the license and authorization for the radio activity.  

- Media pluralism/ownership; competition law aspects 

The  Television  Law  of  2007,  which  replaces  the  previous  Television  Law  of  2003  and 
implements  the  Directive  No.  89/552/EEC  of  the  Council,  dated  of  3  October  1989,  as 
amended  and  codified5,  refers  to  competition  and  concentration  in  this  sector.  This  law 
states  that  the  general  regime  of  promoting  competition  is  applicable  also  to  the 
television. Any case of an alleged concentration situation between television operators is 
subject  to  the  intervention  of  the Competition  Authority  and,  dealing  with  the situation, 
the ERC must necessarily issue an opinion, which shall be binding in case of violation of 

4 

5 

Article 38, 5 and 6 of the Constitution. 
Amended by Directive No. º97/36/EC, of the Parliament and of the Council, dated of 30 June 1997 and by 
Directive  2007/65/EC  of  the  Parliament  and  of  the  Council,  dated    of  11  December  2007;  codified  by 
Directive 2010/13/EU. 

552 


 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

freedom  of  expression.  This  law  also  determines  that  no  person,  legal  or  natural,  may  
held, directly or indirectly, namely through a domain relationship, more than 50% of the 
service  licences  for  national  free-to-air  television  programmes  existent  for  similar 
programmes in the same operating domain6. 

Law  No.  18/2003,  as  amended  by  Decree-Law  No.  219/2006  of  2  November  refers  to 
concentration  and  merger  in  the  media  sector.  Article  57  establishes  the  necessary 
cooperation  between  the  Competition  Authority  and  ERC.  This  article,  as  well  as  article 
4ºB of the Television Law, in the version brought about by Law No. 8/2011 of April 11, 
states that in the matter concerning concentrations and mergers in the media sector, the 
Competition Authority’s decisions are subject to a binding prior opinion of ERC, who shall 
evaluate if such operation has a negative impact on freedom of expression and diversity 
of opinion. Yet, looking at the Portuguese media sector we can notice that it has evolved 
through  a  growth  of  four  major  companies,  carrying  their  activities  across  a  range  of 
media  sectors  (telecommunications,  broadcasting,  press  and  publishing,  production, 
distribution, advertising and new media) – as already mentioned in the 2004 report, and 
not so much through the merging of companies. In fact, this was driven by the fact that 
in  Portugal  there  are  no  restrictions  on  cross-media  ownership.  Presently,  the  media 
landscape  in  Portugal  is  no  longer  dominated  by  those  four  initial  actors  but  instead  by 
several and powerful company groups7, which maintain the trend of operating in a wide 
branch of media areas. We cannot find restrictions on foreign ownership of the media, as 
well. 

According  to  the  Press  Law8,  there  are  no  limitations  to  the  ownership  of  periodical 
publications, which can be held by any publishing companies or individual. 

- Legal framework for psm; ability to fulfill their tasks 

The public television service is ruled by the Television Law9 where it is stipulated that it 
must  safeguard  its  independence  from  the  Government,  the  Public  Administration  and 
other  public  authorities,  and  as  well  as  ensuring  the  possibility  of  expression  and 
confrontation of different points of view.  

The  public  service  of  radio  is  regulated  by  the  Law  No.  54/2010,  that  states  that  the 
State  ensures  the  existence  and  operation  of  a  public  radio  service,  on  a  concession 
basis; the remaining radio operators shall cooperate among themselves in the pursuit for 
the  values  of  human  dignity,  the  Rule  of  Law,  the  democratic  society,  the  national 
cohesion and the promotion of language and Portuguese culture10. 

- The role and functioning of regulatory authorities in these respects 

The  ERC  was  created,  as  an  independent  body,  by  Law  No.  53/2005  of  8 November, 
which  extinguished  the  former  regulatory  authority,  the  Alta  Autoridade  para  a 
Comunicação  Social.  In  order  to  achieve  its  main  purpose  –  the  regulation  and 
supervision  of  all  media  entities  operating  in  Portugal  –  the  ERC  was  incorporated  as  a 
legal  entity  under  public  law,  endowed  with  administrative  and  financial  autonomy  and 
given its own assets, and as an independent administrative body. 

6 

7  
8 

9 

10 

Article 4B of Television Law. 

http://www.erc.pt/pt/transprencia/grupos
 
Law No. 19/2012, dated of May, 8, in Diário da República No. 20, Série I.
 
Article 5 and Chapter V of Television Law.  

Articles 5 and 6 of Law No. 54/2012.
 

553 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
  
 
 
 
  
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The  ERC  comprises  a  Regulatory  Board,  responsible  for  defining  and  implementing 
regulatory action, an Executive Board, responsible for managing the services and for the 
administrative and financial management, an Advisory Council, advisory and participation 
body in defining the general lines of action of the ERC, and an Auditor, who controls the 
legality and efficiency of the financial and property management. 

The Portuguese Competition Authority was created in January 200311 as an independent 
and financially autonomous institution12. Derived from its genesis, its aim is to strive for, 
and  promote,  modernization  and  competitiveness  of  the  Portuguese  economic  life.  It 
shall ensure the respect for competition rules, with a view to the efficient functioning of 
the  markets,  the  efficient  allocation  of  resources  and  the  interests  of  consumers.  The 
general competition regime applies also to the media sector. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

In the Journalists Statute, No. 1/99, amended by No. 114/2007 of December 20, we note 
that  the  following  are  the  journalists’  fundamental  rights:  freedom  of  expression  and 
creation;  freedom  of  access  to  sources  of  information;  the  guarantee  of  professional 
secrecy,  the  guarantee  of  independence  and  participation  in  the  orientation  of  the 
respective body of information13. 

The  Press  Law14  guarantees  the  fundamental  right  of  Freedom  of  the  Press  in  a  similar 
way to article 38 of the Constitution. The “right to information, the freedom of the press, 
the  independence  of  the  mass  media  from  political  and  economic  powers,  opportunities 
for expression of, and challenges to, different line of opinion and exercise of the right to 
broadcasting  time,  the  right  of  reply  and  the  right  of  political  argument”  shall  be 
guaranteed by an independent regulatory authority, pursuant to the terms of article 39 of 
the Constitution. 

To  all  those  who  exercise,  as  primary  occupation,  permanent  and  paid,  the  editorial 
capacity roles of research, collection, selection and treatment of facts, news and opinions 
through text or sound, by radio or television or any other electronic means of diffusion, 
the Journalists Code of Ethics is applicable, that states as follows: 

-	

-	

-	

-	

The  journalists  have  the  duty  to  report  the  facts  with  accuracy  and  in  an  exact 
manner,  and  to  interpret  them  honestly.  Facts  must  be  checked  by  interviewing  all 
parts involved in the case; 

The  journalist  must  fight  censorship  and  sensationalism  and  consider  accusations 
without proof and plagiarism as serious professional errors; 

Journalists must fight all restrictions to the access to sources of information and all 
attempts  of  limitation  of  freedom  of  expression  and  of  the  right  to  inform.  It  is  the 
duty of the journalist to report those offenses; 

Journalists must use honest means to obtain information, pictures or documents, and 
shall  never  abuse  one’s  good  faith.  The  identification  as  a  journalist  is  mandatory 
except for those situations of unquestionable public interest; 

11 

12  
13 

14 

Decree-Law No. 10/2003, dated of 18 January, in Diário da República No. 15, Série I-A.
 
http://www.concorrencia.pt. 
Article 6, of the Journalists Statute No. 1/99, amended by No. 14/2007, of 20 December.
 
Law No. 2/99 dated of 13 January, in Diário da República No. 10, Série I-A.  


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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

-	

-	

-	

-

-

-	

The  journalist  must  take  responsibility  for  all  of  their  works  and  professional  acts, 
and  correct  any  information  proved  to  be  false  or  inaccurate.  The  journalist  must 
oppose to all actions and behaviour that violates his/hers conscience; 

The  identification  of  sources  is  a  fundamental  criteria  that  a  journalist  must  comply 
with.  The  journalist  must  not  reveal,  not  even  in  court,  their  confidential  sources, 
except  when  the  information  provided  proves  to  be  false.  Opinions  must  always  
mention its author;  

Journalists  must  respect  the  presumption  of  innocence  until  the  court  case  is 
finished. The journalists must not identify, directly or indirectly, the victims of sexual 
crimes and juvenile criminals, nor humiliate people or disturb their pain; 

The journalist must always avoid discrimination, based on colour, race, nationality or 
sex; 

Journalists must respect citizens’ private life except for unquestionable public interest 
situations  or  when  the  behaviour  of  the  person  concerned  goes  clearly  against  the 
values  and  principles  that  publicly  promotes.  The  journalist  shall  always  respect 
serenity,  responsibility  and  freedom  of  the  subjects  involved  in  its  gather  of 
information; 

The  journalist  must  reject  demands,  assignments  and  benefits  that  may  question 
their  independent  status  and  professional  integrity.  The  journalist  must  not  use  his 
professional status to obtain personal benefits. 

- Specific positive content obligations 

The free-to-air channels must provide: eight hours per week of programmes, fictional or 
documentary,  with  subtitles  between  the  hours  of  8am  and  2am;  three  hours  of 
informational,  educational,  cultural,  recreational  or  religious  interpretation  programmes 
using sign language, on a weekly basis; the interpretation (signing or subtitling) of a full-
service  news  of  the  night  and  thirty  minutes  per  week  of  fictional  or  documentary 
programmes with audio description. 

Pay-TV  channels  must  provide  two  hours  a  week  of  information  programmes  with 
interpretation (signing or subtitling), including, also on a weekly basis, full interpretation 
of one of the news services. 

Free-to-air  channels  implemented  this  in  two  stages  between  July  2009  and  December 
2011. 

For  the  public  service  broadcasters,  the  obligations  are  included  in  the  public  service 
contract  in  2010  for  national  services,  and  they  were  equal  to  those  of  the  private 
channels. 

- Funding schemes for specifically desired content 

There are no legally fixed funding schemes. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Political advertising and/or broadcasting time 

It is forbidden that television operators grant broadcasting time to political propaganda, 
except  in  the  following  cases15:  the  Article  40  of  the  Constitution  foresees  the  right  to 
broadcast, response and political reply. In the same vein, the Television Law provides for 
the right to broadcast16 and the right to political reply17. 

- Codes of conduct and their organisational framing 

In  Portugal,  as  in  many  other  countries,  there  is  no  comprehensive  codified  source  of 
Media Law. The main relevant Portuguese legislation of the media is composed by several 
separate  laws,  such  as:  the  Press  Law18,  the  Television  Law19,  the  Radio  Law20,  the 
Journalists  Statute21,  and  the  Journalists´  Code  of  Ethics  of  the  Portuguese  Union  of 
Journalists. 

- The role and functioning of regulatory authorities in these respects 

The  media  regulatory  authority  is  presently  the  ERC,  having  further  the  following 
purposes:  to  ensure  the  right  to  free  information22;  the  non-concentration  of  the 
ownership  of  the  media23  the  independence  from  political  power  and  economic  power 
(both  political  and  economic  power)24;  the  respect  for  the  rights,  freedoms  and 
guarantees25 and also freedom of expression26 and the exercise of the rights to broadcast 
and response27. 

  Distribution Aspects 

- Access to frequencies 

Decree-Law No. 237/98, of August 5, which establishes the regulation for the granting of 
licences  and  authorisations  for  exercising  television  activity,  provides,  in  number  1  of 
article  17,  the  setting,  by  Administrative  rule,  from  the  member  of  government 
responsible for the communications sector, of the technical standards to which terrestrial, 
cable and satellite television broadcasts must comply. 

The  applicable  technical  standards  must  therefore  be  made  known,  in  accordance  with 
the provisions of Directive nr. 95/47/ of the European Parliament and of the Council of 24 
October, on the use of norms for the transmission of television signals. Thus: 

The  Government  decrees,  via  the  Minister  for  Equipment,  Planning  and  Territorial 
Administration, in the terms of and for the purposes set down in the provisions of point 1 
of article 17 of Decree-Law no. 237/98, of August 5, that: 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

Article 31, Law No. 2/99 dated of 13 January, in Diário da República No. 10, Série I-A. 
Article 59 of Television Law, Law No. º27/2007, dated of 30 July, modified by Law No. 8/2011, dated of 11 
April, in Diário da República No. 71, Série I. 
Article 64 of Television Law, Law No. º27/2007, dated of 30 July, modified by Law No. 8/2011, dated of 11 
April, in Diário da República No. 71, Série I. 
Law No. 2/99 dated of 13 January. 
Law No. 27/2007, dated of 30 July, modified by Law No. 8/2011, dated of 11 April. 
Law No. 54/2010 dated of 24 December. 
Law No. 1/99, dated of 13 December, modified by Law No. 64/2007, dated of 6 November. 
Article 39, 1, a) of the Constitution. 
Article 39, 1, b) of the Constitution. 
Article 39, 1, c) of the Constitution. 
Article 39, 1, d) of the Constitution. 
Article 39, 1, f) of the Constitution. 
Article 39. 1, g) and Article 40 of the Constitution. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

1. Terrestrial (Hertzian), cable and satellite television broadcasting must comply with the 

following technical standards: 

a.  PAL (Phase Alternation Line) standards B and G, approved by Administrative rule 
n.º 936/91 of October 28, format 4:3, for wholly analogue television signals; 

b.  D2-MAC (Multiplexed Analogue Component) standard, approved by Administrative 
Rule No. 1155/91 of November 7, format 16:9 or 16:9, totally compatible with the 
PAL  system,  for  wide  screen  and  625-line  formats  where  the  television  signal  is 
not wholly digital; 

c.  HD-MAC  (High  Definition  Multiplexed  Analogue  Component)  standard,  for  high-

definition, but not wholly digital, television signals; 

d.  Standards developed by a recognised European standards organisation, for wholly 

digital television signals, viz. standards DVB-MPEG2. 

- Access to distribution networks and control of actual conditions 

Regarding  cable  networks,  there  are  some  specificities,  the  basic  principle  being  full 
accessibility,  i. e.  the  exploration  is  opened  to  all  entities  that  meet  the  technical 
requirements  to  operate  their  network  contained  in  the  document  elaborated  by  the 
Government.  The  requirements  regarding  the  coverage  area  and  the  typology  of  the 
programme  services  to  be  offered  must  obtain  express  foundation  in  the  text  of  the 
regulation,  taking  into  account  the  principles  of  optimal  management  of  radio  spectrum 
and of the public interest they aim to safeguard. 

Concerning  to  the  press  distribution’s  control,  in  Portugalit  is  one  area  having  a  self-
regulation as framework.  The Associação  Portuguesa  para  o  Controlo  de  Triagem  e 
Circulação –  APCT  -  is  the  name  of  the  Portuguese  Association  for the  Control 
of Circulation  and  Distribution,  that  was  incorporated  in May 1986  with the  objective  of 
verifying and  certifying the  number  of copies  distributed,  geographic  presence  and 
stability in the market. The data collected by APCT are available and published every two 
months. 

- Must-carry/must-offer rules for electronic media 

“While the Universal Service Directive sets out clear requirements for must-carry policies 
-  transparency,  review  procedures  and  need  for  consultation  --  these  are  not  well 
reflected  in  Member  States  policies  and  very  few  reviews  have  been  carried  out.  The 
report therefore calls for a clear identification of the general interest objectives relevant 
to the selection of must-carry programming, and publication of the criteria for must-carry 
selection.  It  explains  the  rationale  behind  must-carry  provisions  and  the  problems  that 
can  arise  when  there  are  too  many  broadcasters  with  must-carry  status  or  when 
programming of narrow appeal uses up valuable capacity”28 . 

In  May  2009,  ERC  introduced  rules  on  access  services  for  the  first  time.  They  will  be 
implemented over two time periods between July 2009 and December 2012.   

28 

Study on the regulation of broadcasting issues under the new regulatory framework, December 22, 2006. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

The governing body of the ERC also recommended that broadcasters continue efforts to 
adopt new technologies particularly with regard to digital platforms29. 

- Role of platform operators 

The  digital  terrestrial  television  platform  –  DTT  –  offers  four  television  programme 
services in standard-definition (SD) from a single multiplex as well as some services such 
as  an  electronic  programme  guide.  The  first  multiplex  was  licensed  by  ANACOM  to 
Portugal Telecom. Several conflicts among these entities have provoked the intervention 
of  the  Portuguese  Parliament  having  this  one  remembered  PT  about  its  obligations  by 
Resolution No. 11/2012, February 6th. 

Meanwhile, by Decision of 24 June 2010 following  Resolution of Council of Ministers No. 
26/2009,  published  on  March  17th, ANACOM has  aproved  the  detailed  plan  for  the 
cessation  of  terrestrial  analogue  transmissions  (switch-off  plan),  associated  with  the 
introduction of digital terrestrial television (DTT) in Portugal. 

The  DTT  currently  offers  viewers  access  to  free-to-air  television  programme  services 
from  one  multiplex.  The  current  process  of  switching  off  analogue  television  signals  in 
Portugal is proceeding according to the approved national switch-off plan.  

- The role and functioning of regulatory authorities in these respects 

ANACOM30  (Communications  Regulatory  Authority)  is  the  regulatory  agency  that 
supervises  the  electronic  and  postal  communications  sector  in  Portugal.  In  the 
telecommunications sector, access of operators to networks and interconnection between 
networks and services are ANACOM's privileged areas of intervention, in its component of 
market regulation. Decree-Law No. 309/2001 establishes a wide number of assignments 
for  this  regulatory  entity,  namely:  promote  measures  in  order  to  accomplish  technical 
standardization and to guarantee the respect of constitutional principles in this ground31. 
Among  other  duties:  ensuring 
the  existence  and  availability  of  a  universal 
communications  service;  ensuring  effective  competition  in  the  communications  market; 
promoting  consumers  awareness;  granting  titles  of  the  exercise  of  the  postal  and 
telecommunications  activities  and  manage  and  supervise  the  market  and  sanction  the 
market players32. 

ANACOM  promotes  competition  and  protects  the  interests  of  citizens,  ensuring 
transparency  and  information  providing  concerning  matters  such  as  tariffs  and  service 
use conditions. 

  Access to Information 

- Transparency of media ownership situations 

Article 16 number 2 of the Press Law establishes transparency requirements that must be 
complied  with  such  as  the  obligation  of  report  and  disclose  the  information  concerning 
owners  and  shares  held  in  publishing  companies  to  the  competent  regulatory  authority 
(meaning:  ERC).  Additionally,  publishing  companies  must  publish  annually  in  their  best 

29 

30 

31 

32 

Jurisdictional  Review  and  Regulatory  Development  regarding  Access  to  Audiovisual  Media  Services  for 
People with Disabilities, September 2009. 
Autoridade Nacional de Comunicações. 
Article 6 e Article 7 of Decree-Law No.º309/2001. 
Articles 7, 9 and 10 of Decree-Law No.º309/2001. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

selling  newspaper  the  details  of  annual  accounts  and  shareholder  interests  (Article  16 
number 3). 

In Television Law is set out, in Article 4, the transparency of ownership of broadcasters 
and their management, being mandatory the indication of all the information, in a clear 
manner,  on  the  owners  and  shareholders  of  the  broadcasters.  In  radio,  this  same 
requirement is in the Article 3 of the Radio’s Law, Law No. 54/2010 of December 24. 

In Article 38, 3 of the Constitution we find the prediction of the mandatory disclosure of 
the ownership and financing of media social communication. 

- Accountability of public service media 

In Television Law is expected that operators jointly liable with those responsible for the 
transmission  of  previously  recorded  material,  with  the  exception  of  the  reported  under 
the right to broadcast, the political reply, response and rectification or during interviews 
or debates staged by people that are not contractually bound to the operator33 . 

- Freedom of information laws 

Concerning  transparency  and  access  of  information  issues,  the  new  Law  of  Access  to 
Administrative  Documents  (LADA)  was  passed  in  200734  and  establishes  as  basic 
principles  to  access  and  reutilization  of  administrative  documents  the  principles  of 
publicity, transparency, equality, justice and impartiality. This law, as its ancestor, allows 
citizens  to  make  written  requests  for  access  to  administrative  documents  (of  any  type) 
held  by  state  authorities,  public  institutions,  associations  and  foundations,  state  owned 
enterprises,  local  and  regional  authorities  and,  in  general,  all  entities  that  develop 
administrative functions or have public powers35. The authorities must respond within 10 
days of receiving a request36. 

- Accessibility of products/services and distribution networks 

The installation of various satellite dishes on common areas without permission is illegal 
if  certain  issues  are  not  respected,  as  stated  in  Decree-Law  No.  59/2000  of  April  19, 
which  establishes  the  legal  framework  for  the  installation  of  telecommunications 
infrastructure  on  buildings  and  their  connection  to  public  telecommunications  networks. 
We should also pay attention to Articles 1422 and 1425 of the Portuguese Civil Code in 
what to the limitations imposed upon tenants matters. 

In  Portugal,  there  are  private  institutions  of  social  solidarity  working  throughout  the 
country,  in  cooperation  with  Social  Security  and  together  with  local  authorities,  helping 
communities through this process. 

Meanwhile,  the  subsidy  and  reimbursement  programmes  had  been  extended  by 
ANACOM, so that those who were unable to complete the migration earlier would not lost 
out  and  would  still  be  eligible  to  benefit  from  the  assistance  available,  even  when 
concluding the migration after the final switch off date. 

33 

34 

35 

36 

Article 70 Television Law. 
Law No.º46/2007, dated as of August 24th that revoked the previous “LADA”, Law No. º 65/93, dated as of 
August  26th,  modified  by  Law  No.º8/95,  dated  as  of  March  29th  and  by  Law  No.º94/99,  dated  as  of  16 
July. 
Article 4 of LADA. 
Article 14 of LADA. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

There is a subsidy available equivalent to 50% of the price of the set-top box (terrestrial 
or  satellite),  limited  at  22  Euro.  This  subsidy  can  be  claimed  by  low  level  of  income 
citizens,  with  a  monthly  income  not  exceeding  500 Euro  and  by  people  with  a  level  of 
disability equal to or greater than 60%. 

ANACOM also set up a subsidy for the installation of aerials, including parabolic aerials, of 
61  Euro.  This  subsidy  is  available  to  people  aged  65  and  over  who  live  in  situations  of 
social preclusion and who have been referred by Social Security. 

	  “Have a Say on ...” 

-	 Complaint procedures, “Ombudsmen” 

The public service of television and radio  is governed by a law which defines the status 
and attributions of a figure called “Listener and Viewer Ombudsman- Provedor ”37. 

The Status of the Provedor as well as their assignments and responsibilities are contained 
in Chapter V of Law No. 8/2007 of February 14, which restructured the concessionaire’s 
public service of radio and television. 

The Provedor of the Listener and Viewer has the following attributions: 

	  To represent and to defend, in contact with the public service Companies of Radio 
and Television, the perspectives of viewers and listeners on the radio and television 
offer. 

	  To assume the reliability of the public service provided by the Radio and Television 
Stations of RTP, SA, as well as to promote the credibility and good image of all its 
professionals. 

	  To  encourage  the  fulfillment  of  professional  ethics  and  deontological  codes  by  all 

the professionals of RTP, SA. 

	  To  foster  the  indexes  of  receptiveness  of  the  various  agents,  of  the  structures, 
involved  in  the  production  of  content,  given  the  comments  from  listeners  and 
viewers. 

	  To  contribute  to  a  culture  of  self-criticism  and  prevention  of  eventual  corporatist 

attitudes inside the companies, but also by the citizens whom they represent. 

-	 Participation in media operators/(self-)regulatory bodies 

There is a Viewers Association, named Associação de Telespectadores (ATV) and a Media 
Consumers Association, named Associação de Consumidores dos Media (ACMedia). 

2.2.21.2. 

Main Players in the Media Landscape 

In  what  concerns  the  Portuguese  media  landscape,  it  must  be  mentioned  the  evolution 
from a state-owned media to an independent media after the end of dictatorship in 1974. 
Until  the  early  years  of  2000,  the  media  industry  was  controlled  by  four  main  players 
(PT/Lusomundo, Impresa, Grupo Media Capital and Impala). 

37 

Law No. 2/2006, dated of 17 April, in Diário da República No. 75, Série I-A. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Presently,  at  a  national  level,  besides  the  State,  we  can  identify  7  major  media  groups 
operation in Portugal: Cofina SGPS S.A., Controlinvest, SGPS, S.A., Impresa – Sociedade 
Gestora de Participações Sociais, S.A., Portugal Telecom, SGPS, S.A., Radio Renascença, 
Lda.,  Sonaecom,  SGPS,  S.A.  and  ZON  Multimédia  –  Serviços  de  Telecomunicações  e 
Multimédia SGPS, S.A.38 

Media Capital is the only major holding owned by a non-Portuguese shareholder, Spanish 
Prisa,  but  all  the  others  include  foreign-held  capital.  In  2009  some  important  changes 
occurred  within  this  group  due  to  Prisa's  economical  difficulties  and  Ongoing’s  offer  to 
purchase  roughly  30  percent  of  the  shares  of  Media  Capital.  Ongoing  already  owns  23 
percent of Impresa, which runs SIC.  

Besides  these  groups,  there  are  two  other  important  media  owners,  the  State  and  the 
Catholic Church. Concerning the press sector, the State holds Lusa news agency. 

Almost  all  of  the  great  expansion  media  are  part  of  large  economic  groups  (large  at  a 
Portuguese level, but small in comparison with the rest of Europe), a trend which started 
in the middle 1980s, as the result of the introduction of liberal policies influenced by the 
European  Union  and  the  changes  in  property  of  the  main  newspapers  from  traditional 
families  to  those  groups.  This  was  due  to  two  key  reasons:  (i)  Internal  media  reasons, 
like  the  rise  in  production  costs,  the  considerable  investments  needed,  the  open 
possibilities of offer enlargement and the advantages of large scale operations and group 
synergies;  (ii)  General  reasons,  like  the  integration  of  Portugal  into  the  European 
Common Market, the re-privatization of companies which had been nationalized after the 
April  Revolution  of  1974,  and  the  Governmental  policies  favouring  concentration  of  the 
share capital. 

Besides  from  the  State  and  the  Catholic  Church,  four  other  major  groups  rule  almost 
everything related to press in Portugal. They are: 

COFINA. Great influence on the press sector, owns the daily Correio da Manhã, Jornal de 
Negócios  and  Record,  the  complimentary  newspapers  Destak  and  Meia-Hora  and  the 
magazines Sábado (news magazine), TV Guia and several other specialized magazines. 

CONTROLINVESTE. The only of the four main groups with presence in all media sectors: 
Jornal de Notícias, Diário de Notícias, 24 Horas, O Jogo, National Geographic and several 
other  specialized  magazines  and  newspapers;  TSF  (informational  radio)  and  Sport  TV 
(cable). 

IMPRESA. In the press, it holds: Expresso, Visão, Jornal de Letras, Exame, Telenovelas, 
Caras and half a dozen of specialized magazines. 

SONAECOM.  This  branch  of  the  holding  Sonae,  run  by  Belmiro  de  Azevedo,  one  of 
Portugal’s  most  notorious  entrepreneurs,  owns  the  daily  newspaper  Público  and  holds 
assets in telecommunications and Internet. 

2.2.21.2.1. 

Radio 

Traditionally, the main player in the radio sector has been the Catholic Church39, owner 
of  Rádio  Renascença,  Lda.  (also  mentioned  as  “Grupo  Renascença”  or  “Grupo  R/com”), 
which  has  three  national  channels.  It  also  owns,  directly  or  indirectly,  dozens  of  radio 

38 

39 

http://www.erc.pt/pt/transprencia/grupos. 

60% held by Patriarcado de Lisboa and 40% held by Conferência Episcopal Portuguesa. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

stations and local and regional newspapers, including, in the North of the country, Diário 
do Minho. 

Table 122 PT: Main Radio Companies 

Companies/Channels 

Grupo r/com 

Ownership 
Structure* 
Catholic Church 

Grupo  Media 
Rádios 

Capital 

Grupo 
Capital 

Media 

TSF 

Grupo RTP 

Controlinvest, 
SGPS, S.A. 
Public Service 

Main Radio Audience 
Share* 

Total Audience 
Share 

RFM: 19.9% 
Renascença: 10.3% 
Mega Hits: 4.0% 
R. Sim: 1.5% 
R. Comercial 15.6% 
Cidade FM: 5.0% 
M80: 7.8% 
TSF: 4.8% 

Antena 1:6.9% 
Antena 2:3.7% 
Antena 3: 0.8 
17.3% 

35.7% 

29.1 

4.8% 

11.5 

17.3% 

Others 
* Source: http://www.erc.pt/pt/transprencia/grupos 

** Fourth Trimester 2011; Source: Marktest Portugal   

According to these results, Group r/com (or Group Renascença) has the highest audience 
shares, RFM being the radio station with most listeners, followed by Radio Comercial, of 
Grupo Media Capital. 

Grupo  Media  Capital  is  presently  the  largest  group  operating  in  the  media  sector  in 
Portugal.  In  what  concerns  television,  Grupo  Media  Capital  held  TVI,  the  channel  with 
highest audiences share40 and is the second largest group in the radio sector, as stated 
above. It has interests in all media sectors, including internet, being the owner of “IOL” 
the second largest internet search engine in Portugal. The company has its own television 
production  company,  a  music  records  company,  a  company  for  the  organization  of 
cultural  and  music  events  (Farol)  and  one  for  distribution  of  cinematographic  rights 
(Castello Lopes Multimédia). Medial Capital shares were firstly sold in the stock market in 
March 2004. Presently, all Media Capital shares are traded at Euronext Lisbon. The major 
shareholder is Vértix, SGPS, S.A., owner of 84.69% of the share capital, the rest of the 
capital  being  held  by  PortQuay  West  B.V.  (10.0%)  and  other  scattered  investors 
(5.31%). 

The Public Service Broadcaster, Radio e Televisão de Portugal S.A., of which are part the 
public  television  operators  RTP,  and  RDP  has  three  national  radio  channels  (see  table  1 
above)  and  three  regional  channels  (RDP  Madeira  –  Antena  1,  RDP  Açores  –  Antena  3 
and  RDP  Madeira  –  Antena  1)  as  well  as  international  channels  (RDP  Internacional  and 
RDP Africa). 

2.2.21.2.2. 

Television 

The  free-to-air  television  market  consists  of  two  important  commercial  channels,  SIC, 
owned by Impresa (with 23.6% of audience share in the first semester of 2011) and TVI 
(with  26.4%),  competing  with  the  main  Public  Service  Broadcaster  channel,  RTP1  (with 
22.6%)41.  The  Public  Service  Broadcaster  has  another  national  channel,  RTP  2,  with  its 

40 

41 

Source: https://www.erc.pt. 
Source: https://www.erc.pt 

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focus  in  culture,  art  and  nature,  and  no  advertisement  (except  for  institutional 
advertisement).   

SIC  television  channel,  which  used  to  have  the  highest  audience  shares,  is  part  of  the 
Impresa  Group,  a  multimedia  company  group  that  evolved  from  a  company  set  up  in 
1972  by  a  Portuguese  business  man,  Francisco  Balsemão.  It  was  the  first  private 
television  in  Portugal  and  its  first  broadcasting  took  place  on  6  October  1992.  Impresa 
Group also has a very important position in the media sector in Portugal, being the owner 
of several main newspapers (such as the iconic “Expresso”), magazines (such as “Visão”) 
and cable channels (such as “SIC Notícias”, the cable television channel with the highest 
audience shares – 4.4%)42. 

During the first decade of the 2000’s the cable channels became more important in the 
market,  and  the  major  sector  companies  launched  specialized  channels.  Presently,  both 
TVI  and  SIC  have  a  24-hour  television  news  channel.  There  are  channels  specifically 
aimed at women, children and young people and also a substantial number of so-called 
thematic  channels  which  mostly  broadcast  TV  series  or  sports  events,  etc.  These  cable 
channels audience grow shares each month. 

Table 123 PT: Main Television Companies  

Broadcasters 

Ownership Structure* 

Main TV Stations 

SIC  –  Sociedade 
Independente  de 
Comunicação, 
S.A.  

SOINCOM  –  SGPS,  S.A  – 
51,0% 

SIC 

DIGITAL 

– 
IMPRESA 
Produção 
Multimédia 
(Media  Zoom),  Lda.  – 
30,65% 

SOLO  –  Investimentos  de 
Comunicação,  SGPS,  S.A.  ­
18,35% 

Total Audience 
Share** 

23.6% 

RTP  –  Rádio  e 
Televisão 
de 
Portugal S.A. 

TVI  –  Televisão 
Indepentente 

Public Service 

RTP1: 22.6% 

27.1% 

RTP2:4.5%  

Grupo Media Capital 

TVI 

26.4% 

* Source: http://www.erc.pt/pt/transprencia/grupos 

** First Trimester 2011; Source: Marktest Portugal   

When compared to other countries in Europe, digital television was launched rather late 
in  result  of  continuous  postponements.  Although  planned  to  be  introduced  in  2002, 
digital television was only implemented in 2008. Currently, in Portugal, digital television 
is provided through the following means: cable, satellite, fixed wireless access, xDSL/IP 
(digital subscriber line) or UMTS (third generation mobile service system). 

The  public  tenders  for  the  introduction  in  Portugal  of  Digital  Terrestrial  Television  (DTT) 
were  launched  in  February  2008.  DTT  is  an  alternative  platform  for  access  to  digital 
television, which differs technologically from analogue terrestrial TV and is presently run 
by the Public Service Broadcaster RTP and the commercial channel SIC, in co-operation. 

42 

Ibid. 

563 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.21.2.3. 

Press and publishing 

The  written  press  has  endured  a  deep  crisis  throughout  the  last  years,  with  loss  of 
readers  and  advertising.  Notwithstanding,  new  editorial  projects  still  come  about 
occasionally. 

In  a  country  historically  associated  with  weak  newspaper  reading  habits  and  persistent 
illiteracy, the crisis affecting the written press has been especially harsh also due to the 
downsizing  of  paid  circulation,  the  increasing  preference  for  online  media,  especially 
among  younger  people,  the  fierce  competition  of  complementary  newspapers,  and  the 
decrease of ad revenues due to the economic recession.  

The national newspapers list has been recently enlarged with new publications, both daily 
and non-daily. A remarkable point as far as the written press’ evolution in the last years 
is concerned, is the acquisition by Ongoing, a media group. 

According  to  Associação  Portuguesa  para  o  Controlo  de  Tiragem  e  Circulação  (APCT), 
Correio  da  Manhã  has  the  leadership  among  the  dailies  and  Expresso  among  the  non-
dailies. Visão is the main news magazine. Regarding the specialised editorial segments, it 
must  be  noticed:  the  increasing  circulation  within  the  economic,  business  and 
management  publications  (justified  by  the  economic  crisis  context)  and  the  decreases 
within  sports  newspapers,  free  periodicals  and  women  and  fashion,  male  and  social 
magazines.  Thematic  press,  such  as  women,  society  and  TV  magazines  are  still 
publications of great circulation, despite this decrease in the average circulation.  

Table 124 PT: Daily Newspapers  

News Papers 

Correio da Manhã 

Jornal de Notícias 

Público 

Diário de Notícias 

24 Horas 

Readership (number of copies)*  

122,207 

103,165 

43,642 

41,333 

38,476 

*  Source:  Associação  Portuguesa  para  o  Controlo  de  Tiragem  e  Circulação  (APCT) 
Average circulation in 2008 

Jornal  de  Notícias,  Correio  da  Manhã  and  24  Horas  are  newspapers  with  “popular” 
features the last being the closest to a tabloid editorial format in the Portuguese national 
daily press. The other two listed above are known as “quality” newspapers.  

In Portugal, the free-of-charge press first was born in 1996, with Jornal da Região, which 
lost some of its importance with the conversion of Destak into a daily newspaper and the 
launching  of  the  Portuguese  edition  of  Metro  and  other  free  papers.  In  2008  the  four 
daily  free  papers  Destak,  Global  Notícias,  Meia-Hora  and  Metro  reached  an  average 
circulation of 590,000 copies per edition. 

Portugal counts approximately 650 local and regional newspapers, mainly with a weekly 
periodicity. The Catholic Church is, directly or indirectly, the main owner of regional and 
local  press.  Advertising  revenues  come  predominantly  from  local  institutions  and 
enterprises and from public institutions. 

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2.2.21.2.4.	 

Online media (non-linear audiovisual (media) services; websites) 

The  most  of  the  newspapers  have  online  version.  On  the  other  hand,  there  are  some 
available  only  in  digital  edition  like  the  “Diário  Digital”,  “Jornal  Digital”  and  the  website 
“Notícias Lusófonas”. 

There  are  also  several  websites  that  bring  together  regional  television  and  alternative 
publications from several areas (economical; cultural and others). 

2.2.21.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Cable television services were launched in Portugal in 1994. Combined with the licensing 
of  commercial  channels,  this  new  distribution  platform  had  a  major  impact  in  the 
Portuguese  audiovisual  landscape.  TV  Cabo  (now  integrated  in  the  holding  Zon 
Multimédia) and Meo (Portugal Telecom) are the two major players in subscription cable 
television.  According  to  ANACOM,  the  Portuguese  communications  authority,  in  2008 
cable  television  services  were  subscribed  by  around  1.5  million  customers,  which 
represent  a  penetration  rate  of  26.4  percent  of  Portuguese  households.  Lisbon  region 
concentrates  47.7  percent  of  the  total  number  of  subscribers,  followed  by  North  (25.7 
percent),  Centre  (11.9  percent),  Algarve  (3.7  percent)  and  Alentejo  (3.1  percent). 
Madeira gathered 4.8 percent of subscribers and Azores 3.1 percent. 

In short, the penetration rate of subscription television services reached 40.9 percent at 
the  end  of  2008,  with  a  total  number  of  subscribers  of  2.29  million,  concentrated  in 
Lisbon and North regions. The growth was leveraged by the appearance of a new cable 
service provider, Meo, which started a massive distribution in 2008, and the subscription 
of alternative subscription television platforms. 

Table 125 PT: IPTV  

There is also a new triple play service offered by AR TELECOM since 2006, based on its 
own Tmax technology, a digital wireless technology with very high transmission capacity, 
based on standard DVB-T and standard IP43. 

2.2.21.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

In 1997 the government removed advertising on the Public Service Broadcaster channel, 
RTP2,  and  restricted  advertising  on  RTP1.  The  commercial  channels  were  strongly 
involved in this change. 

43 

Working  Party  on  Communication  Infrastructures  and  Services  Policy  IPTV:  Market  developments  and 
regulatory treatment, OECD, 2007. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 126 PT: Sale of advertising space by type of media (2004-2005; 2008­
2009) (unit: € 1,000) 

2004 

(%) 

2005* 

(%) 

2008 

(%) 

2009* 

(%) 

Total 

Press 

2,792,741 

10.0 

2928480 

100 

1525092 

100 

1492907 

100 

762,921 

2.7 

507919 

17.3 

261691 

17.2 

216122 

14.5 

Television 

1,332,722 

4.8 

1700189 

58.1 

768448 

50.4 

748379 

50.1 

Terrestrial 

Cable 

Radio 

-

-

202,737 

Internet 

17,323 

-

-

0.7 

0.1 

1192270 

40.7 

599529 

39.3 

578323 

38.7 

507919 

17.3 

168919 

11.1 

170056 

11.4 

185092 

6.3 

92243 

6.0 

92400 

15412 

0.5 

43176 

2.8 

56168 

6.2 

3.8 

Outdoor 

440,207 

1.6 

468140 

16 

289068 

19 

229866 

15.4 

Other 

36,831 

0.1 

51728 

1.8 

70466 

4.6 

149972 

10 

* Data from INE and OberCom on the totals of the advertising investment 

** Most recent available data from INE on the distribution of sale of advertising time or 
space on behalf of third parties, by type of advertising support 

2.2.21.3.  Conclusion and Recommendations 

In the Portuguese legal system, the freedom of expression is enshrined and protected in 
several  documents,  and  by the Constitution. The  legal  framework  concerning  the  media 
is composed by several, scattered laws and states the importance of creating a “Code of 
the Media”; however, some point to the difficulty of this task considering the instability, 
heterogeneity and the lack of a legal doctrine that would be necessary to systematically 
organize the precepts. 

The  media  sector  is,  as  it  has  always  been,  dominated  by  a  few  main  players. 
Nevertheless,  in  the  last  decade,  new  players  appeared  in  the  Portuguese  media 
landscape and the trend seems to be the gathering of companies in great media groups 
with interests in various media sectors (cross-media ownership). Cofina, Controlinveste, 
Impresa and Sonaecom control the media and more often than acceptable the connection 
between  political  parties  or  groups  and  media  groups  jeopardizes  the  legal  principles, 
namely in terms of control and independence. 

A  new  regulatory  authority  has  been  incorporated,  ERC  (replacing  the  former  Alta 
Autoridade  para  Comunicação  Social),  which,  side  by  side  with  ANACOM,  is  responsible 
for  controlling  the  compliance  of  legal  provisions.  Although  the  idea  would  be  a  non­
partisan  control,  ERC’s  recent  behaviour  and decisions,  or  lack  of  them,  show  a  serious 
disrespect  and  lack  of  concern  of  the  transposed  directives  and,  subsequently,  for  the 
citizens. The media groups, in particular those owning the TV channels, perform frequent 
violations  of  legally  binding  obligations,  namely  in  marketing  and  advertising  matters 
(time  devoted  to  the  broadcasting  of  commercials),  without  any  intervention  from  ERC 
despite frequent complaints presented by viewers’ associations.   

In  the  press  sector,  as  presented  above,  the  economical  crisis  has  visible  effects.  It 
should be highlighted the evolution in the market of complementary newspapers, though 
being  somewhat  ambiguous,  as  some  of  the  editorial  projects  failed  to  survive  and  the 
average circulation tends to decrease.. 

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The most important changes are taking place in the television sector. In the beginning of 
this  year,  the  DTT  has  started  replacing  the  analogue  signal,  the  latter  being 
progressively  switched-off.  Some  major  changes  are  yet  about  to  happen.  In  its 
Programme,  the  Portuguese  Government  which  took  office  in  July  2011,  has  forecasted 
that one of the two State-owned TV channels would be privatized. The Working Group for 
the  privatization  of  RTP  suggested  the  sale  by  an  international  tender  of  one  of  the 
presently  existing  channels,  while  keeping  under  the  State’s  control  a  broadcasting 
channel without commercial activity. Private broadcasting media groups are against this 
change. In April 2012 a serious scandal envolving at least one of the major media groups 
that  are  eventually  bidding  and  with  a  not  yet  explained  intervention  of  political  forces 
and intelligence services recommends a close control by the EU authorities of this tender. 
The  privatization  framework  to  be  adopted  as  well  as  the  outcome  at  the  remaining 
state-owned televisions are yet to be defined when the present country report has been 
drafted. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

ROMANIA 


2.2.22.	  Romania 

Romania joined the European Union on 1 January 2007, the country was not included in 
the  2004  study.  Therefore,  in  the  present  report  no  comparisons  will  be  made  between 
the actual and previous situation of media.  

2.2.22.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.22.1.1. Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  freedom  of  expression  is  enshrined  in  the  Chapter  II,  Fundamental  rights  and 
freedoms,  of  the  Constitution  of  Romania  (Constituţia  României),  Article  301,  according 
to which the freedom of expression of thoughts, opinions, beliefs, and the freedom of any 
creation  are  inviolable.  Censorship  is  prohibited.  Freedom  of  media  involves  also  free 
setting  up  of  publications.  An  organic  law  may  require  the  media  companies  to  reveal 
their  sources  of  funding.  At the  same  time,  the  freedom  of expression  should  not  harm 
the  dignity,  honour,  person’s  privacy,  the  right  to  one's  own  image.  All  national,  racial 
class,  religious  hatred,  discrimination,  territorial  separatism,  public  violence,  obscenity 
are prohibited. The liability for the information incurs to the authors, producers, medium 
owners. The regulation on offences by the media (“press crimes”) shall be reserved to an 
act of ordinary law. 

There are no constitutional provisions with regard to rights of journalists not to disclose 
their sources, to refuse to testify or to have a larger access to information than the rest 
of the population. 

  Freedom to receive and to access information 

The freedom of information is stated in the Chapter II, Fundamental rights and freedoms, 
of the Constitution of Romania, Article 312, according to which the right of access to any 
information  of  public  interest  cannot  be  restricted.  The  public  authorities  are  obliged  to 
provide correct information to citizens in public affairs, and matters of personal interest; 
the right to information has to do no harm to the protection of young people or national 
security.  The  public  and  private  mass  media  have  to  provide  correct  information  to  the 
public. 

  Safeguards on regulatory authorities 

The Constitution of Romania does not hold specific regulations regarding the remit of any 
regulatory authorities in the media sector. 

1	 

2	 

Constitution  of  Romania,  Chapter  II,  Fundamental  rights  and  freedoms,  Article  30,  English  version, 
http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=2#t2c2s0a30. 
Constitution  of  Romania,  Chapter  II,  Fundamental  rights  and  freedoms,  Article  31,  English  version, 
http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=2#t2c2s0a31. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  Safeguards on “universal service” 

In  respect  of  “Universal  Service”  the  Constitution  of  Romania  does  not  contain  any 
specific  safeguards,  besides  the  provision  that  the  public  broadcasters,  which  are 
autonomous,  under  parliamentary  control,  have  to  give  broadcasting  time  to  any 
important social and political group.  

2.2.22.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The Chapter 5 of the Audiovisual Law holds provisions for granting broadcasting licenses, 
analogue and digital (multiplexes), by the National Audiovisual Council (Consiliul Naţional 
al  Audiovizualului  - CNA),  or  by  the  National  Communications  Regulatory  Authority 
(Autoritatea  Naţională  pentru  Administrare  şi  Reglementare  în  Comunicaţii  –  ANCOM), 
respectively  (a  contest  is  required  for  commercial  stations  in  case  of  terrestrial 
broadcasting,  but not  for  public  service  broadcasters).  Furthermore  the  term  of  9  years 
license  validity  are  regulated,  as  well  as  the  conditions  to  start,  to  delay  or  to  stop 
broadcasting,  the  infringements  of  the  law  and  the  conditions  for  the  revocation  of  the 
license (Articles 50-69). 

There  are  no  specific  provisions  for  registering  a  newpaper/periodical  publication  or  an 
online  journal.  Natural  and  legal  persons  can  both  register  a  print  or  online  publication, 
observing the legislation for setting up firms and for trade mark. For the print media it is 
necessary  an  ISSN  (International  Standard  Serial  Number)  from  the  National  Library  of 
Romania. 

- Media pluralism/ownership; competition law aspects 

There  are  no  legal  provisions  with  regard  to  print  and  online  media  ownership.  As  for 
audiovisual media, Chapter 4 of the Audiovisual Law regulates the media ownership and 
the  competition  policy  (ownership  concentration,  dominant  position, 
rules  of 
transparency,  audiences  measurement,  etc.)  The  ownership  rights  can  be  transferred 
without  harming  the  rights/obligations  stipulated  in  the  license(s).  If  a  person  should 
hold  more  than  10%  of  the  shares  it  must  send  a  notification  to  the  CNA  within  one 
month. The shares can be only nominal. The CNA monitors all the holders of more than 
20%  of  shares  (direct  or  indirect)  and  all  broadcasters  which  have  average  market 
shares above 30% of the relevant market to determine the dominant position in shaping 
public opinion. If a dominant position occurs or anti-competition practices are found, the 
CNA  can  take  any  legal  action  to  correct  it,  including  to  diminish  the  participation 
quotas/number  of  licenses  held  or  to  issue  sanctions.  The  Chapter  5  of  the  Audiovisual 
Law  also  has  provisions  with  regard  to  ownership,  free  competition,  anti-concentration 
measures, infringements of the competition rules, situations of license revocation. 

Furthermore,  according  to  the  Law  No.  41/1994,  republished,  concerning  the 
organisation  and  operation  of  the  public  broadcasters  Societatea  Română  de 
Radiodifuziune  (Romanian  Radio  Broadcasting  Corporation  -  SRR)  and  Societatea 
Română de Televiziune (Romanian Television Corporation - SRTV),3 Article 43, SRR and 

3 

Legea  nr.  41/1994  de  organizare  şi  funcţionare  a  Societăţii  Române  de  radiodifuziune  şi  a  Societăţii 
Române de Televiziune, republicată  (Law No. 41/1994 on the organisation and operation of the Romanian 
Radio  Broadcasting  Corporation  and  of  the  Romanian  Radio  Broadcasting  Corporation,  republished), 
Romanian version, http://www.cna.ro/LEGE-Nr-41-din-17-iunie-1994,2196.html. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

SRTV  are  allowed  to  make  associations  with  third  parties  without  modifying  the  legal 
statute of the public services. 

There  are  no  specific  legal  provisions  on  cross  media  ownership  and  foreign  ownership, 
nor  specific  provisions  with  regard  to  mergers,  but  the  texts  can  be  applied  for  this 
purpose,  due  to  the  fact  that  they  have  clear  links  to  ownership  concentration  and 
dominant position. 

The  Competition  Law4  republished  has  no  provisions  for  mass  media,  but  the  free 
competition  principles  are  stated  for  all  economic  activities.  According  to  the  above 
mentioned  Law,  the  economic  concentrations  where  the  aggregate  turnover  of  the 
undertakings concerned exceeds 10 million Euro and there are at least two undertakings 
involved in the operation to achieve, each in part, on the Romanian territory, a turnover 
exceeding 4 million Euro are subject to control and must be notified to the Competition 
Council,  the  watchdog  and  the  regulation  authority  in  the  field.  The  economic 
concentration shall not be put into effect until the Competition Council makes a decision. 
The  economic  concentrations  realized  through  the  merger  of  two/several  undertakings 
must be notified by each of the involved parties; in the other cases, the notification must 
be made by the individual, the undertaking or undertaking who gain control over one or 
several  undertakings  or  over  part  of  them.  When  an  individual  participates  with 
fraudulent  intent  and  in  a  decisive  way  to  the  conceiving,  organization  or  realization  of 
any  of  the  practices  prohibited  under  the  Law,  this  participation  shall  be  considered  a 
criminal offence and shall be convicted to jail from 6 months to 4 years or shall be fined. 
The smaller breaches of the law deeds constitute offences and may be sanctioned with a 
fine of up to 1% of the aggregate turnover of the financial year prior to the sanctioning 
or up to 10% for more severe deeds. 

- Legal framework for psm; ability to fulfill their tasks 

The freedom of expression and the freedom of information are enshrined in the Article 8 
(1),  (2)  of  the  Law  No.  41/1994,  republished.  According  to  Articles  1  and  2,  SRR  and 
SRTV  are  public  services  of  national 
interest,  editorially  autonomous,  under 
parliamentary  control.  They  are  protected  by  law  against  any  interference  from  public 
authorities, political parties, unions, economic groups or pressure groups. 

The articles 4-5 of the Law 41/1994 republished state that the general objectives of the 
public services are linked to information, education and entertainment. They are obliged 
to  present  objectively  and  impartially  the  facts,  to  ensure  the  correct  information  of 
citizens  on  public  affairs.  The  public  radio  and  TV  have  to  promote  competently  and 
exactingly the values of: the Romanian language, the national minorities, the democratic, 
civic,  moral,  sports  values.  They  are  bound  to  militate  for  Romania’s  national  unity  and 
independence, for human dignity, truth and justice. The programmes are not allowed to 
make any defamation of the country/nation, nor to serve to religious hatred, incitation to 
discrimination, 
territorial  separatism,  public  violence,  propagation  of  obscene 
manifestations. The programmes shall not prejudice to the dignity, honour or private life 
of  persons,  or  the  right  to  their  own  image.  The  programmes  which  could  threaten  the 
psychical or moral development of children and youth, can be only broadcast from 24.00 
to  05.00  a.m.  The  minors  with  adverse  behaviour  or  the  persons  presumed  to  have 
infringed the law shall be presented in such a way that the images should not allow their 
identification.  At  the  same  time,  the  public  broadcasters  have  to  offer  airtime  to  the 
parliamentary political forces, including national minorities, up to 1% of their total weekly 

4 

Competition Law, English version,  

http://www.consiliulconcurentei.ro/uploads/docs/concurenta/l21_1996_mod_en.pdf.
 

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transmission time, according to the number of MP seats. On the other hand, the PBS are 
obliged  to  air  with  priority  and  free  of  charge  official  statements  or  messages  of  public 
interest received from Parliament, Romania’s President, the Supreme Council of National 
Defence  and  the  Government.  According  to  Art.  34  (4)  of  the  Audiovisual  Law, 
sponsorship of programme services as a whole, as well as that of news programmes and 
programmes  on  analysis  and  debates  on  political  and/or  current  economical  topics  is 
forbidden for all the market (PBS and commercial broadcasters). 

The Board of Administration/Management of SRR/SRTV supervises the observance of the 
way  in  which  the  corporation  fulfills  its  obligations  assumed  under  the  programme 
schedule and the broadcasting licences issued by the National Audiovisual Council, takes 
measurs  for  the  extension  or  the  restiction  of  the  activity  of  the  corporation,  for  the 
setting up or the suppression of certain autonomous operating activities and presents the 
annual  report  to  the  Parliament,  along  with  any  other  reports  reqested  by  the  standing 
competent committees of the Parliament (Art. 27). 

- The role and functioning of regulatory authorities in these respects 

According to Art. 10 the National Audiovisual Council is entitled to act for the pluralism of 
information  sources  of  the  public,  favoring  free  competition,  a  fair  balance  between 
national  coverage  radio  broadcasting  services  and  local,  regional  or  thematic  services, 
the  transparency  of  organising,  operating  and  financing  audiovisual  mass  media,  the 
encouragement of co-regulation and self-regulation in the audiovisual field. 

Art.  16  stipulates  that  the  Council  establishes  the  conditions,  procedure  and  criteria  for 
the granting of analogue and digital audio-visual licenses,  the procedure for the granting 
of  the  retransmission  authorization,  issues  audiovisual  licenses  and  retransmission 
authorizations  for  radio  and  TV  program  services,  along  with  audiovisual  authorization 
decisions. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The  access  to  public  information  is  guaranteed  through  the  Law  No.  504/2001  with 
regard to the access to information of public interest (Legea nr. 544/2001 privind liberul 
acces  la  informaţiile  de  interes  public)5,  whose  Chapter  II  Section  2  provisions  with 
regard  to  the  access  of  mass  media  to  public  interest  information.  Art.  15  is  to  be  the 
vault key:  

(1)  The  access  of  mass  media  to  public  interest  information  is  guaranteed;  (2)  The 
activity of collecting and broadcasting public interest information, done by the mass 
media,  represents  the  put  in  practice  of  the  citizens’  right  to  have  access  to  any 
public interest information. 

Articles 7-9 of the Audiovisual Law provision with regard to disclosure of sources and the 
protection of the journalists by local authorities: confidentiality is guaranteed, disclosure 
of  sources  can  be  only  decided  by  court,  with  clear  motivation.  Journalists  have  to  use 
only 
journalists  and 
headquarters/offices of broadcasters is granted by local authorities, upon request, in case 
they  are  subject  to  pressures  or  threats  that  could  effectively  impede,  restrict  or  affect 

information.  A  protection  of 

legal/moral  ways 

to  get 

571 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

the  exertion  and  the  development  of  their  profession  or  activity.  This  protection  cannot 
anyway  become  a  pretext  to  prevent  or  restrict  the  exertion  of  profession  or  activity. 
Searches  at  broadcasters’  head  offices  or  precincts  shall  neither  prejudice  the  free 
expression of journalists nor be a means to suspend programme broadcasting. The Law 
No. 41/1994 republished provides similar provisions on this matter, in Art. 14. 

On  the  other  hand,  Romania  has  not  a  legal  regulatory  frame  for  print  media,  so  our 
references are taken mainly from the audiovisual field. 

The Criminal Code6 decriminalized in 2006 (Law no. 276/2006) the libel and defamation, 
an  major  modification  of  the  law  for  the  journalistic  activity,  which  became  better 
protected against “silencing” libel and defamation. 

The Romanian Constitution clearly states individual freedom and security of a person are 
inviolable  and  that  search,  detainment,  or  arrest  of  a  person  are  permitted  only  in  the 
cases and under the procedure provided by law (Art. 237). At the same time, the Art. 27 
provisions about the inviolability of domicile and that searches shall only be ordered by a 
judge  and  carried  out  under  strict  legal  terms.  Searches  during  the  night  shall  be 
forbidden, except for crimes in flagrante delicto. The Criminal Procedure Code8 provisions 
in the articles 100-111 the conditions and the limits for domiciliary or corporal searches 
(domiciliary  search  during  criminal  investigation  or  trail,  time  for  making  the  search, 
search  procedure,  performing  domiciliary  and  corporal  search,  identifying  and  keeping 
objects,  official  report  for  search  and  confiscation  of  objects  and  writings,  measures 
regarding  confiscated  objects,  conservation  or  use  of  confiscated  objects).All  these 
provisions can be in favour of the journalistic activities. 

- Specific positive content obligations 

The  public  broadcasters  have  to  promote  and  encourage  the  Romanian  audiovisual 
creations (Art. 7 of the Law 41/1994 republished). In 4 years after the entering into force 
of the Law, they were bound to reserve to the European creations a majority percentage 
of their airtime, excepting informative and sports transmissions, games, advertising, and 
teletext service. Out of the European creation, at least 30% has to be Romanian creation, 
including creations specific to national minorities. Out of the Romanian creation, at least 
35% has to be cultural creation and the PBS are also obliged to reserve at least 10% of 
their airtime to the creations of independent producers, from Romania or from abroad.  

It  is  worth  mentioning  that  the  President  of  Romania  sent  back  to  the  Parliament 
beginning of February 2012 a law for the modification and completion of the Audiovisual 
Law  which  intended  to  oblige  the  broadcasters  to  air  a  certain  amount  of  minutes  of 
cultural  news  weekly,  saying  this  is  a  limitation  of  press  freedom  and  that  the 
educational/cultural role is intrinsic to the broadcaster’s existence. 

5	 

6	 

7	 

8	 

Legea nr. 544/2001 privind liberul acces la informaţiile de interes public (Law No. 504/2001 with regard to 
the  access  to  information  of  public  interest),  Romanian  version,  http://legislatie.resurse-pentru­
democratie.org/544_2001.php. 
The Criminal code, Romanian version http://legeaz.net/cod-penal-actualizat-2011/. 
Constitution  of  Romania,  Chapter  II,  Fundamental  rights  and 
version,http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=2#t2c2s0a23. 
Criminal 
https://www.google.ro/url?sa=t&rct=j&q= 
&esrc=s&source=web&cd=1&ved=0CCQQFjAA&url=http%3A%2F%2F81.12.220.82%2Fdoc%2FCriminal_P 
rocedure_Code2.doc&ei=MbSRT-2IAsnetAaz8dXcBA&usg= 
AFQjCNEA-Es2p-25apFi0IZD6A__JBUe_g&sig2=mnHIPXToeB9HUFzM2sCC2A. 

freedoms,  Article  23,  English 

Procedure 

version, 

English 

Code, 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Funding schemes for specifically desired content 

There  are  no  subventions  or  other  funding  schemes  for  news/current  affairs  and 
information/service. 

- Political advertising and/or broadcasting time 

In Romania, the electoral campaigns last 30 days for all types of votes. 24 hours before 
elections  (which  take  place  on  Sundays)  all  media  are  forbidden  to  broadcast  or 
distribute  electoral  campaign  contents.  According  to  the  Audiovisual  Law,  Art.  261  the 
broadcasters  are  obliged  to  cover  the  election  campaigns  in  a  fair,  balanced,  unbiased 
way, according to CNA compulsory norms. 

The  electoral  laws  (for  local,  parliamentary,  presidential,  European  elections)  provision 
for  the  electoral  campaign  coverage  in  mass-media.  The  Audiovisual  Code  provisions 
(Articles  139-140)  that  political  advertisement,  which  is  allowed  only  during  election 
campaigns,  can  be  inserted  only  in  separate,  adequately  marked  blocks,  and  the 
responsibility for the contents has to be explicitly assumed by candidates. 

According  to  Articles  37-38  the  Law  No.  35/20089  for  the  election  to  the  Chamber  of 
Deputies and the Senate and for the amendment and completion of Law No. 67/2004 for 
the election of local public administration authorities, during the electoral campaigns the 
competitors  and  the  citizens  can  express  their  opinions  freely  and  without  any 
discrimination, by protests/gatherings, and through making use of the mass media. The 
competitors  have  free-of-charge  access  to  the  public  audiovisual  services  proportionally 
to  the  number  of  final  candidatures,  according  to  the  geographical  coverage  of  the  
medium.  The  commercial  audiovisual  media  have  to  practice  the  same  tariff  per 
show/time unit for all electoral competitors and the airtimes offered to competitors must 
be proportional to those offered by the public stations. 

The  access  to  public  media  is  equal  and  free  of  charge  for  all  candidates  standing  for 
President.  The  electoral  campaign  through  audiovisual  media,  public  and  private,  must 
serve the general interests: of the electorate (to receive accurate information, to exercise 
their right to vote with full knowledge of the fact), of the candidates and their supporting 
political  forces  (to  present  their  platforms,  political  programmes  or  electoral  offers),  of 
broadcasters  (to  exercise  their  profession’s  rights  and  duties).  The  broadcasters  are 
obliged  to  ensure  an  equitable,  balanced  and  fair  electoral  campaign  for  all  candidates. 
Candidates  benefit  from  free  access  to  public  and  private  radio  and  television  services. 
The private radio and television stations shall offer the candidates airtime proportional to 
that offered by the public stations. 

The legislation for local elections has similar provisions as above. Though there are some 
differences and much more stipulations to ensure a correct electoral competition through 
media  (Articles  64-69):10  during  the  electoral  campaign,  the  information  concerning: 
election  system,  voting  procedure,  electoral  campaign  calendar,  political  programmes, 
opinions  and  messages  with  electoral  content  shall  be  presented  only  in  news  bulletins, 
electoral  shows  (where  candidates  may  present  their  political  programmes/electoral 

9 

10 

Lege nr. 35/2008 pentru alegerea Camerei Deputaţilor şi a Senatului şi pentru modificarea şi completarea 
Legii  nr.  67/2004  pentru  alegerea  autorităţilor  administraţiei  publice  locale,  a  Legii  administraţiei  publice 
locale  nr.  215/2001  şi  a  Legii  nr.  393/2004  privind  Statutul  aleşilor  locali,  cu  modificările  şi  completările 
ulterioare, English version, http://www.roaep.ro/ro/getdocument.php?id=4682. 
Lege  67/2004  actualizată  2012  pentru  alegerea  autorităţilor  administraţiei  publice  locale.  Emitent: 
Parlamentul  României.  Publicata 
în  monitorul  Oficial  333/17.05.2007,  Romanian  version, 
http://www.model-de.ro/Legea+alegerilor+locale+2012+actualizata-p18-510.htm. 

573 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
 
 
  
  
 
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

campaign activities) and electoral debates. The private radio/television stations, including 
cable television, may include in their programme schedule shows of the above mentioned 
type,  but  they  shall  not  be  deemed  electoral  publicity.  20-30  seconds’  publicity  videos 
(spots)  that  urge  voters  to  vote  for  a  candidate/list  may  be  broadcast  only  within  the 
shows  stipulated  above.  Buying  broadcast  time  with  a  view  to  broadcasting  electoral 
videos/shows is forbidden. The access to public media is free.  

Non-parliamentary  competitors  to  local  elections  have  free  access  to  territorial 
radio/television only if they submit candidates’ lists in at least 50% of the constituencies 
in a county that is covered by territorial studios. If they submit full lists of candidates in 
at least 50% of the constituencies in 15 counties they shall have access to national public 
media  services.  The  competitors  belonging  to  national  minorities  have  access  to 
territorial/national  public  media  if  they  participate  with  candidates’  lists  in  the 
constituencies in the counties and in proportion to their coverage in the total population 
of that county, and that of Romania, respectively. The access of political competitors to 
private  radio/television,  including  cable  television,  is  free  only  during  electoral  shows. 
Buying  airtime  for  publicity  purposes  or  the  transfer  of  airtime  to  candidates  is 
prohibited. The airtime is granted Monday to Friday and each independent candidate has 
5 minutes of airtime for the entire electoral campaign. During an electoral campaign, the 
candidates/representatives of competitors may not be producers, directors or anchors of 
audiovisual  shows.  The  broadcasters  are  obliged  to  cover  the  electoral  campaign  in  an 
equitable,  well  balanced,  unbiased  manner.  Candidates  who  are  already  in  public 
positions may appear in news bulletins strictly in matters related to the exercise of their 
position. If the news bulletins present special facts/events of public interest, besides the 
authorities’ point of view, an opposite point of view must also be presented. The electoral 
shows/debates must ensure equal conditions to all candidates as regards the freedom of 
expression,  pluralism  of  opinions,  equal  distance;  the  directors/anchors  of  electoral 
shows/debates have to be impartial, to ensure the balance during the show, to formulate 
questions clearly, without bias/partiality, to intervene whenever guests behave wrong or 
breach the electoral law.  

As  for  the  European  elections,  the  differentiating  provisions  are  included  in  the  article 
18:11 the access of political competitors to public radio and television is free. The private 
audiovisual media will practice the same charge per show/unit of time for all competitors, 
and  the  offered  airtime  should  be  proportional  to  that  of  the  public  stations.  The  public 
media  establish  the  timetable  for  the  electoral  campaign  coverage  and  the  allocation  of 
air time for access of political competitors, taking into consideration the following rate of 
allocated  air  time:  4/5  of  the  airtime  are  distributed  equally  to  competitors  which  have 
members  in  the  European  Parliament  and  which  take  part  in  elections,  and  as  well  as 
political/electoral  alliances  between  them.  1/5  of  the  airtime  are  divided  equally  to  the 
competitors which do not have members within the EP which participate in elections and 
to the independent candidates. 

There are no provisions for print/online only media in electoral matters. 

- Codes of conduct and their organisational framing 

There  is  not  a  law  with  regard  to  the  press  in  Romania,  even  though  there  were  many 
initiatives,  discussions  and  attempts  to  submit  to  the  Parliament  a  draft  law.  The  civil 
society  and  most  of  the  politicians  considered  such  a  law  is  not  necessary  and  that  the 

11 

Law  no.  33/2007  regarding  the  organisation  and  the  development  of  the  elections  for  the  European  

Parliament, English version, 

http://www.roaep.ro/en/getdocument.php?id=409. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

best  for  journalists  is  to  regulate  their  activity  themselves.  Codes  of  conduct  were 
adopted by different professional organisations/associations.  

The  Convenţia  Organizaţiilor  de  Media  (Convention  of  Media  Organisation  -  COM), 
composed of more than 40 media associations and houses, adopted on 24 October 2009 
a  for a 6-year term Single Code of Conduct (Cod Deontologic Unic) for media12 with 16 
articles, which stipulates, among others, there is a conflict of interests if the journalist is 
a special services agent under cover, member of a party or mixes the media activity with 
business  activities.  The  journalists  should  hand  annually  an  interests’  declaration  to  the 
media  institution’s  management  and  this  declaration  should  be  made  public.  The  fields 
regulated by the Code cover the following issues: who is a journalist, what means mass 
media, integrity, conflict of interests, gifts, sponsorships and other benefits, correctness, 
how  to  verify  information,  rectification  of  errors,  how  to  dissociate  facts  and  opinions, 
private life, protection of victims, protections of minors, how to deal with morbid details, 
discrimination,  assumption  of  innocence,  protection  of  sources,  special  techniques  to 
collect  information.  This  Code  replaced  a  Conduct  Code  adopted  by  the  same  umbrella 
organisation  in  July  2004.  The  COM  also  set  up  a  Group  for  Journalistic  Best  Practices, 
intended  to  improve  the  journalistic  work  quality  through  making  publicly  known  any 
deontological side-slip. The Group was meant to give media organisations a Certificat de 
Bune Practici Jurnalistice (Good Journalistic Practices Certificate)13, but these certificates 
only  remained  an  intention.  The  Uniunea  Ziariştilor  Profesionişti  din  România  (Union  of 
Professional Journalists from Romania - UZP) also has a similar 15 articles Deontological 
Code14, even if UZP is member of the COM. 

The  Clubul  Român  de  Presă  (Romanian  Press  Club  - CRP),  another  media  umbrella 
organisation  including  about  25  press  companies,  NGOs  and  about  20  individual 
journalists also adopted a Deontological Code of the Journalist15 composed of 10 articles. 
The  specific  provisions  in  comparison  to  other  Conduct  Codes  are  that  the  professional 
journalist  has  as  main  occupation  and  source  of  revenues  his/her  activity  for  the  mass 
media,  and  has  a  minimum  seniority  of  one  year  in  the  field.  Due  to  the  freedom  of 
expression,  the  journalist  has  the  right  to  criticize  both  Power  and  Opposition,  by 
considering as single facts’ judgement criteria the laws and the moral principles. 

The public radio16 and TV17 also issued Statutes of journalists/Conduct Codes. The Radio 
Statute  of  journalist  provisions  with  regard  to  the  journalist  in  the  public  broadcasting 
service,  roles  and  responsibilities,  ethics  and  editorial  standards,  ethics  and  conduct 
code, training and professional competition, the Council of Honour. The TV Conduct Code 
includes  many  of  the  provisions  of  the  Law  41/1994  republished.  On  15  May  2012 
entered  into  force  the  Council  of  Honour  of  Radio  Romania,  after  the  election  of  5 
members  by  the  journalists  and  the  nomination  of  2  member  by  the  Board  of 
Administration.  The  Council  of  Honour  has  to  analyze  and  mediate  the  conflicts  in  the 

12 

13 

14 

15 

16 

17 

Cod  Deontologic  Unic  adoptat  la  reuniunea  Conventiei  Organizaţiilor  de  Media  23–24  octombrie  2009, 
Romanian version http://www.organizatiimedia.ro/index.php?p=3. 
Certificatul de Bune Practici Jurnalistice, Romanian version,  
http://www.activewatch.ro/uploads/FreeEx%20COM%20Doc%20de%20autoreglementare/certificatul%20 
de%20bune%20practici%20jurnalistice.pdf. 
Codul deontologic al Uniunii Ziariştilor Profesionişti din România, Romanian version,
http://www.uzp.org.ro/docs/codul.deontologic.uzp.pdf. 
Codul deontologic al ziaristului adoptat de Clubul Român de Presă, Romanian version,
http://clubulromandepresa.ro/?page_id=322. 
Statutul jurnalistului de radio din cadrul Societăţii Române de Radiodifuziune, Romanian version,
http://www.srr.ro/files/CY1923/CA%20-%20CD/NOV/ 
HotarareaConsiliuluideAdministratienr.65din31octombrie2011.pdf. 
Cod de conduită pentru angajaţii şi colaboratorii TVR, Romanian version,
http://www.tvr.ro/articol_organizatie.php?id=116799. 

575 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
  
  
 
  
  
 
  
  
 
 
  
 
  
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

editorial  field  and  to  be  the  watchdog  of  the  observance  of  audiovisual  editorial  and 
ethical norms. 

The  Romanian  Association  for  Audiovisual  Communications  (Asociaţia  Română  de 
Comunicaţii  Audiovizuale  -  ARCA)  also  issued  in  September  2011  a  Conduct  Code18, 
posted  by  the  most  important  commercial  broadcasters  on  their  website.  The  Code 
gathers provisions and principles from more similar regulation/self-regulation documents, 
including  from  all  the  above  mentioned  Conduct  Codes/Journalists  Statutes.  The  Code 
provisions  with  regard  to  the  level  of  self-regulation,  journalistic  principles,  editorial 
standards,  promotion  of  good  understanding  of  the  audiovisual  legal  frame,  the  correct 
information  vs.  opinions  and  one’s  own  judgements,  the  independence  and  impartiality, 
the  editorial  responsibility,  the  public  interest  and  protection  of  person’s  rights,  how  to 
deal  with  violent  scenes.  The  ARCA  Code  also  uses  provisions  from  the  European 
Convention of Human Rights and from the jurisprudence of the European Court of Human 
Rights.  ARCA,  founded  in  1990,  is  an  NGO  and  non-for-profit  association  of  audiovisual 
broadcasters owners. 

Europe Developpment International–R, the owner of the radio station Europa FM, one of 
the  main  market  players,  issued  its  own  professional  conduct  code19,  using  numerous 
provisions from the Audiovisual Law, and the Audiovisual Code. 

- The role and functioning of regulatory authorities in these respects 

According  to  Articles  10  and  11  of  the  Audiovisual  Law,  the  CNA)  is  the  regulatory 
authority  of  the  audiovisual  market.  CNA  is  made  up  of  11  members,  assigned  by  the 
Parliament for a 6-year term, following the recommendations made by the Senate (upper 
Chamber)  for  3  members,  the  Chamber  of  Deputies  for  3  members,  the  President  of 
Romania  for  2  members,  the  Government  for  3  members).  The  Council  is  a  public 
autonomous authority under Parliament’s control and the warrantor of the public interest 
in the field of audiovisual communication. 

The Council issued in 2011 a total of 249 sanctions for audiovisual  legislation breaches. 
The  Council  issued  112  fines  worth  of  2,170,500  lei  (app.  EUR  500,100).  The  most 
frequently sanctioned were breaches with regard to: protection of human dignity and the 
right to one's own image, protection of children, insuring correct information or pluralism, 
advertising, teleshopping and sponsoring, must-carry principle, political advertisement.20 
The most severe CNA's decision was to revoke the audiovisual license of a TV station six 
months before its normal term of expiration. 

The freedom of information and its limits are also provisioned in the secondary legislation 
Codul  Audiovizual  -  Decizia  nr.  220/2011  privind  Codul  de  reglementare  a  conţinutului 
audiovizual  cu  modificările  şi  completările  ulterioare  (Audiovisual  Code  –  Decision  No. 
221/2011  with  regard  to  the  regulatory  Code  for  the  audiovisual  content,  with  further 
modifications  and  completions)21,  and  they  refer  to  private  life  and  private  image 
prevailing  over  the  need  for  information,  the minors’  protection,  the  limits  of  the  public 
interest,  the  distinction  between  facts  and  opinions,  the  parameters  of  information: 

18 

19 

20 

21 

Cod deontologic ARCA, septembrie 2011 (ARCA Conduct Code, September 2011), Romanian version,
http://www.audiovizual.ro/CODdeontologic.doc. 
Cod  de  conduită  profesională  Europa  FM  (Europa  FM  Professional  Conduct  Code),  Romanian  version, 
http://www.europafm.ro/&files/cod-de-conduita-profesionala.doc. 
Report  with  regard 
to 
http://www.cna.ro/Situa-ie-privind-sanc-iunile,4714.html. 
Decizia  nr.  220/2011  privind  Codul  de  reglementare  a  conţinutului  audiovizual  cu  modificările  şi 
completările ulterioare (Decision 220/2011 on the Code of regulation for the audiovisual content), English 
version, http://www.cna.ro/Decision-220-of-24-Februarz-2011.html. 

the  central  stations 

the  year  2011, 

the  sanctions 

imposed 

to 

in 

576 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
  
 
 
 
  
  
 
 
  
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

correct, verified, presented unbiased and in good faith, respect for human dignity and fair 
competition. 

The CNA issued in April 2011 a Decision which obliged the providers or audiovisual media 
services  to  publish  on  their  websites  their  Conduct  Codes  (if  they  had  this  documents), 
along with CNA’s identification data, and data about the ownership and management of 
the  medium.22  The  Decision  was  in  line  with  the  EC’s  and  EP’s  Audiovisual  Services 
Directive  2010/13/EU  and  took  into  account  the  possible  impact  of  mass  media  in 
forming  the  public  opinion  altogether  with  the  necessity  of  public  access  to  editorial 
values recognised and assumed by authors. 

  Distribution Aspects 

- Access to frequencies 

Articles 68-69 of the Audiovisual Law are stipulating in this matter, as follows: the CNA 
annually  revises  the  strategy  for  covering  the  national  territory  with  audiovisual 
programme services. 

ANCOM  - which  is  the  body  that  regulates  the  Romanian  electronic  communications 
sector and protects the interests of the communications users in Romania, by promoting 
competition  in  the  communications  market,  ensuring  the  management  of  scarce 
resources  and  encouraging  innovation  and  efficient  investments  in  infrastructure  ­
forwards the proposal for frequency allocation for multiplexes, in keeping with the results 
from international frequency coordination. 

- Access to distribution networks and control of actual conditions 

The  Competition  Council23  sanctioned  more  times  different  breaches  of  the  Competition 
Law with regard to distribution networks for media services and to mass media control. 
In  2004  SC  Romania  Data  Systems  SA,  actually  the  biggest  Romanian  distribution 
networks player under the name of RCS&RDS, was sanctioned twice with app. EUR 3,000 
(at  April  2012  exchange  rate  Leu/Euro)  because  the  company  did  not  notified  the 
Competition Council about 11 economic concentrations operations. A Romanian investor, 
Vasile Turcu, was sanctioned in 2004 for a similar breach, with app. EUR 690.  Another 
Romanian  investor,  Dan  Grigore  Adamescu,  was  sanctioned  in  2006  with  a  fine  of  app. 
EUR 44,200, altogether with the company OST Holding GmbH, which was fined with app. 
EUR 6,000 because their omitted to notify the Council about the economic concentration 
they  operated  at  a  big  Romanian  print  media  society,  SC  “R”  SA,  and  at  SC  Grupul  de 
Presă  Român.  The  biggest  case  related  to  mass  media  was  until  now  an  investigation 
with regard to market domination and abuse of a dominant position. The biggest players 
in  the  market  of  cable  TV  and  satellite  TV  services,  SC  RCS&RDS  SA  and  SC  UPC 
Romania  SA  were  severely  sanctioned  in  2006  for  breaching  the  Art.  5  (1)  c)  of  the 
Competition Law, through the conclusion and putting into practice of an anti competition 
agreement  for  splitting  between  them  the  cable  TV  programmes  services  in  Timisoara, 
big  Romanian  city  in  Western  Romania.  SC  UPC  Romania  SA  was  fined  with  app.  EUR 
1,657,000 and RCS&RDS with app. EUR 184,300. At the same time, SC UPC Romania SA 
and  SC  Cablevision  of  Romania  SRL  were  sanctioned  for  abuse  of  dominant  position 
through  imposing  bigger  subscriptions,  without  any  reasonable  motivation.  SC  UPC 

22 

23 

Decizie  nr.  286  din  14  aprilie  2011  privind  publicarea  codurilor  de  conduită  profesională  adoptate  de 
furnizorii  de  servicii  media  audiovizuale,  Romanian  version,  http://www.cna.ro/Decizie-nr-286-din-14­
aprilie-2011.html. 
Consiliul Concurentei. Decizii Servicii, Romanian version http://www.consiliulconcurentei.ro/ro/documente­
oficiale/concurenta/decizii/decizii-ds.html. 

577 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
  
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Romania SA was fined with app. EUR 4,020,000 and SC Cablevision of Romania SRL with 
app.  EUR  62,500.  Another  notorious  case  was  a  2009-  2011  investigation  of  the 
Competition Council with regard to possible breaches of the Art. 5 (1) of the Competition 
Law and of the Art. 812 (1) of the European Community Treaty by the Romanian Football 
Association Federation and the Romanian Professional Football League with regard to the 
common  selling  of  the  commercial  rights  for  the  football  competitions.  The  Federation 
and  the  League  issued  more  self-assumed  measures,  to  avoid  sanctions  from  the 
Competition  Council.  These  measures,  accepted  by  the  Council,  are  compulsory  and 
apply for the radio and TV broadcasting rights, including Internet, mobile telephony, the 
rights  for  advertising  for  more  domestic  football  and  Futsal  competitions  for  2012­
2014/2015.  The  measures  were  meant  to  liberalise  and  ease  the  competition  for  the 
broadcasting rights among the market players and to give to the general public a wider 
access to sports events broadcasting. 

In the area of the print media, the biggest domestic journals and periodicals distributors, 
SC Network Press Concept SA (formerly SC Rodipet SA) is practically in bankruptcy. The 
company  entered  in  insolvency  in  2009.  The  Libanese  businessmen  brothers  Awdi,  the 
owners of the former state owned print media distribution network Rodipet, privatized in 
2003, are accused of more criminal offences and a prejudice of app. EUR 35,500,000 and 
judicial  procedures  are  still  underway.  In  turn,  the  owners  sued  repeatedly  Romania  at 
the International Court for Settlement of Investment Disputes. 

- Must-carry/must-offer rules for electronic media 

According  to  Art.  82  of  the  Audiovisual  Law,  each  provider,  retransmitting  program 
services trough electronic communications networks, have to observe the principle must-
carry.  The  obligation  is    to  include  in  the  regular  offer  all  programmes  of  the  public 
service  television,  next  to  the  mandatory  channels,  as  established  through  international 
agreements  (TV5)  and  also  programmes  of  commercial  stations  (free-to-air),  all  up  to 
25%  of  the  total  number  of  distributed  programme  services.  In  areas  where  a  national 
minority represents more than 20% of the population, distributors shall also provide for 
the free reception of programs in the language of the respective minority. The selection 
criteria  for  commercial  broadcasters  is  the  order  of  decreasing  annual  index  ratings.  If 
possible, the providers have to carry the programmes of the public radio broadcaster and 
of two commercial radio channels, one with national and one with local coverage. 

- Role of platform operators 

According  to  Art.  1  (1)  pct.  35  of  the  Audiovisual  Law,  a  radio/television  multiplex 
operator is a Romanian or foreign, legal or a moral person, holding a digital broadcasting 
license  and  having  the  right  to  operate  a  network,  a  radio  or  television  broadcasting 
stations,  with  a  view  to  broadcasting  a  programme  or  a  package  of  radio  or  television 
programmes, multimedia services and associated data of identification, multiplexed. 

- The role and functioning of regulatory authorities in these respects 

The CNA and the ANCOM regulate the fields and impose sanctions/correction measures. 

The  Council  issued  in  2011  a  total  of  249  sanctions  for  breaches  of  the  audiovisual 
legislation. The distribution services providers were sanctioned with 7 fines and 27 public 
warnings  for  breaches  of  the  provisions  with  regard  to  the  modification  of  the 
rebroadcast notification and for breaches of the must-carry principle. 

578 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  CNA  cut  three  times,  by  half,  during  Spring  2012  the  remaining  validity  of  the 
audiovisual license of the populist/tabloid commercial TV station OTV, almost 10 months 
before its normal expiration, on 1 April 2013. The sanctions, the most severe ever taken 
by  the  CNA,  were  due  to  OTV’s  repeated  and  continuous  breaches  of  the  audiovisual 
legislation with regard to political advertisement. The owner of OTV, Dan Diaconescu, is 
the founder of a Romanian populist party, Partidul Poporului - Dan Diaconescu (People's 
Party - Dan Diaconescu, PP-DD), with good chances to enter the Parliament in the next 
general elections.  

  Access to Information 

- Transparency of media ownership situations 

In  line  with  Art.  48  of  the  Audiovisual  Law,  with  regard  to  transparent  access  of  the 
public to information about audiovisual media services providers, CNA issued on 14 April 
2011  the  Decision  No.  28624,  which  obliged  the  audiovisual  broadcasters  to  publish  on 
their website, at least the following data – name, legal status, social headquarter, name 
of  legal  representative,  structure  of  significant  shareholders  (more  than  20%),  editorial 
and  trade  management  responsible  of  the  social  capital  or  of  the  voting  rights  of  a 
company holding audiovisual license, contacts of media, list of publications edited by the 
legal person/list of the other programme services that it provides, regulatory/supervision 
authorities, and other categories of data regarding service operation. 

- Accountability of public service media 

The Board of Administration/Management of the Romanian Radio Broadcasting Company 
and  respectively  of  the  Romanian  Television  Broadcasting  Company  has  to  present  an 
annual  report  to  the  Parliament,  along  with  any  other  reports  requested  by  the 
competent  parliamentary  committees  (art.  27  u)  of  the  Law  No.  41/1994,  republished. 
The annual report has to be submitted until 15 April for the previous year, together with 
the  budgetary  execution  account.  Failure  to  submit  the  document  in  due  term  or  the 
rejection of the report triggers the dismissal of the Board’s Chairman and of the Board. 
The execution accounts of the audiovisual media budgets are submitted to the Parliament 
together  with  the  annual  activity  reports  [art.  39  (4)].  The  use  of  funds  by  the  public 
radio  and  TV  is  subject  to  the  control  of  the  bodies  authorized  by  law,  according  to  the 
source of the funds (art. 44). 

- Freedom of information laws 

The freedom of information of citizens, from Romanian and European services providers, 
the interdiction of censorship, of interference in the editorial independence of audiovisual 
media, in contents, form and presentation of programmes are stated also in Articles 4, 5 
and  6  of  the  Audiovisual  Law  No.  504/2002  with  further  modifications  and  completions 
(Legea  audiovizualului  nr.  504/2002  cu  modificările  şi  completările  ulterioare  )25. 
Furthermore, Articles 83-84 provision the limits of the exclusive rights (anyone is entitled 
to  receiving  information  through  audiovisual  services  on  issues/public  interest  events; 
the extension of exclusive rights is limited by other broadcaster’s right to short reports, 

24 

Decizie  nr.  286  din  14  aprilie  2011  privind  publicarea  codurilor  de  conduită  profesională  adoptate  de 
furnizorii  de  servicii  media  audiovizuale,  publicată  în  Monitorul  Oficial  nr.  297,  din  29.04.2011  (Decision 
no. 286 of 14 April 2011 with regard to the publication of the professional conduct codes adopted by the 
audiovisual media services providers, published in the Official Gazette of Romania No. 297 of 29.04.2011), 
Romanian version http://www.cna.ro/Decizie-nr-286-din-14-aprilie-2011.html. 

579 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                 
  
 
 
 
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

on a fair, reasonable and non-discriminatory basis, with source identification and without 
prejudices for the author/exploitation rights owner). 

- Accessibility of products/services and distribution networks 

The listeners/viewers have to pay a monthly license fee for the public broadcasters, or a 
monthly  subscription  to  the  cable  networks  providers.  The  alternative  to  cable  is  the 
satellite reception, with one’s own equipment. 

The  ANCOM  and  the  Ministry  of  Communications  and  Information  Society  (Ministerul 
Comunicaţiilor şi Societăţii Informaţionale - MCSI) intend to include in the future tenders 
for digital TV multiplexes, in view of the digital switchover, some conditions with regard 
to how to offer free reception devices for the households. 

The  Law  No.  41/1994  republished  contains  in  Art.  40  (2)  provisions  about  the  financial 
resources of the public broadcasters: allocations from state budget, license fee for radio 
and  television  public  services  (collected  on  the  electricity  bill),  own  revenues 
(advertising,  other sources).  Since 2003,  after  changing  the  legislation, the  public  radio 
and television services license fee should have been paid by each Romanian household or 
Romania based company owning at least a radio and/or TV set. The monthly fee for radio 
is  of  2,5  lei  (approx.  EUR  0,57)  and  for  TV  of  4  lei  (approx.  EUR  0,91)  per 
household/micro-enterprises  without  employees.  Firms  also  pay,  as  well,  a  monthly 
license fee on radio and television public services: for radio: 10 lei (approx. EUR 2,28) for 
micro-enterprises, 30 lei (approx. EUR 6,85) for the other enterprises and legal persons, 
for  every  working  point/subsidiary;  for  TV:  15 lei  (approx.  EUR  3,42)  for  micro-
enterprises, 50 lei (approx. EUR 11,41) for the other enterprises/legal persons, for every 
working point/subsidiary, 7,7 lei/room (approx. EUR 1,76) for tourism companies. 

People  who  declare  yearly  that  they  do  not  have  in  house  a  radio  or  TV  device  are 
exempted  from  payment,  as  well  as  other  categories  stipulated  by  law.  The  following 
exemptions are provisioned by law, among others: poor families, poor people living alone 
(according  to  the  Law  of  minimum  guaranteed  income),  associations  and  non-for-profit 
foundations, foreign diplomatic missions, households for elder people, military and politic 
institutions,  state  education  establishments  (including  orphans  households),  churches, 
retired  agricultors,  along  with  other  social  categories  established  through  special  laws. 
The level of the license fee, the ways to collect the fee, the exemptions, the penalties for 
delayed  payments,  the  sanctions  for  incorrect  filling  in  the  exemption  form  are 
established  through  Government  Decision,  as  well  as  the  control,  the  regime  of  legal 
breaches,  the  sanctions  for  fraudulent  non-payment  of  fee,  along  with  other  possible 
exemptions to the payment of the fee. 

There  is  no  public  subsidisation  for  subscription  to  print  publications.  The  private 
publishers  (print  or  online)  and  distribution  networks  are  free  to  use  commercially-
offered reduced rates. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Concerning  the  press  sector,  the  readers  can  complain  directly  to  the  publishers,  or  to 
the courts, if they consider they were prejudiced. As for audiovisual media, the public can 

25 

Legea  audiovizualului  nr.  504/2002  cu  modificările  şi  completările  ulterioare  (Audiovisual  Law  no. 
504/2002,  with  further  modifications  and  completions),  English  version  http://www.cna.ro/The-Audio­

580 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

complain  to  the  National  Audiovisual  Council,  which  can  impose  sanctions,  for  breaches 
of the Audiovisual Law or of the Audiovisual Code. 

The public television, SRTV, has established the Ombudsman (subordinated to the Ethics 
and  Arbitration  Committee)  through  the  Statute  of  Journalists.  The  Ombudsman 
mediates  between  public  and  journalists  and  in  in-house  litigations.  There  are  no  other 
Ombudsmen for Romanian media.  

- Participation in media operators/(self-)regulatory bodies 

There are no viewers’ and listeners’ councils or alike in Romania. The bodies of the public 
broadcasters  (Boards  of  Administration/Management)  are  mainly  politically  appointed. 
Only two members (out of 13) are elected by the specialist staff of SRR and SRTV. The 
members of the National Audiovisual Council are also politically appointed. 

2.2.22.2.  Main Players in the Media Landscape 

According  to  the  National  Council  for  Audiovisual,  more  than  5,320  audiovisual 
licences/rebroadcasting notifications were in force at 31 December 2011, of which more 
than 640 for radio (598 terrestrial, 35 satellite, 8 cable), app. 810 for TV (243 terrestrial, 
141  satellite  and  428  via  cable)  and  about  3,870  for  cable  networks,  in  a  total  of  ca. 
1,150 companies, in about 9,800 cities/villages around Romania.26 

An  important  part  of  Romanian  media  are  owned  by  foreign  companies,  such  as  SBS 
Broadcasting  Media,  Europe  Developpment  International  –  R,  CME  (Central  European 
Media  Enterprises),  Doğan  Media  International,  Turner  Broadcasting  System  Europe 
(Time  Warner),  Ringier  România,  Sanoma  Hearst  Romania,  OTE,  Liberty  Global,  Inc. 
Group,  or  Orange  and  Vodafone  (for  mobile  Internet).  At  the  same  time,  an  increasing  
number  of Romanian media  are  owned by Romanian  companies,  such  as Media  Camina 
Group,  Realitatea  Media,  Antena  TV  Group,  Adevărul  Digital  Media,  Mediafax  Group, 
Cancan  Media,  Editura  Evenimentul  Zilei  şi  Capital,  Adevărul  Holding,  Editura  Intact, 
RCS&RDS. 

2.2.22.2.1. 

Radio 

The  radio  landscape  is  rich,  hundreds  of  radio  stations  appearing  after  the  fall  of  the 
Communist  regime,  in  December  1989.  Before  1989  only  the  state  radio  was  allowed. 
The radio market is an oligopolistic one, because the concentration ratio (the cumulated 
market shares) of the main four players (Societatea Română de Radiodifuziune – public 
service,  SBS  Broadcasting  Media  SRL,  Media  Camina  Group  (G.M.C.)  SRL,  Europe 
Developpment  International–R  SA)  is  bigger  than  60%  (70.2%,  see  Table  RO  1). 
Radiolistening  decreased  constantly  in  Romania  the  last  years,  under  the  pressure  and 
diversification  from  television  and  Internet.  According  to  a  study  issued  in  November 
2011  by  the  research  institute  IRES27,  37%  of  respondents  do  not  listen  to  radio. 
According to a CURS institute 2009 research28, 60% of respondents listen daily to radio 
(31% more than 3 hours/day and 29% less than 3 hours). 

26 

27 

28 

visual-Law, 1655.html. 
Situaţie statistică, 31.12.2011, Romanian version:
http://www.cna.ro/IMG/pdf/Statistica.pdf. 
IRES,  Atitudini  şi  obiceiuri  de  consum  media.  Percepţii  privind  CNA  10.11.2011,  Romanian  version 
http://www.cna.ro/IMG/pdf/Raport_de_cercetare_-_IRES_-CNA_presa_final.pdf. 
59%  dintre 
http://www.jurnalul.ro/special/59-dintre-romani-dependenti-de-televiziune-529077.htm. 

televiziune,  2  decembrie  2009,  Romanian  version 

români,  dependenţi  de 

581 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
  
  
  
  
  
 
 
 
  
 
 
 
  
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

The  national  market  leader  (data  as  of  May  201129)  is  the  public  broadcaster.  The 
audience is measured three times a year by Asociaţia pentru Radio Audienţă (Association 
for Radio Audience - ARA30). 

29	 

30	 

Audienţe radio (Radio Audiences), version:
http://www.audienta-radio.ro/userfiles/items/Audienta%20radio%20­
%20Valul%20de%20primavara%202012.pdf. 
Asociaţia pentru Radio Audienţă, Romanian version www.audienta-radio.ro.  

582 


 
 
 
 
                                                 
  
 
 
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 127 RO: Radio main players total national market shares (05/2012): 

Broadcasters 

Ownership 
structure 

Main radio 
stations 

Daily Reach 

Market 
Shares  

Total 
Market 
Share 

100.0 

11,713,400 

Radio România 
Actualităţi 
Radio România 
Regional 
Radio Antena 
Satelor 
Radio România 
Cultural 
Radio Kiss FM 
Radio Magic FM 

1,970,700 

13.0% 

30.0% 

1,764,700 
776,600 

10.2% 
6.0% 

193,900 

0.8% 

2,861,000 
740,600 

14.2% 
4.2% 

18.4% 

Radio Pro FM 

1,737,300 

8.8% 

8.8% 

Radio ZU 

1,833,000 

8.4% 

8.4% 

Radio Europa FM 

1,535,300 

8.2% 

8.2% 

Total 
Societatea Română 
de Radiodifuziune 
(SRR) 

Public service 
broadcaster 

SC SBS 
Broadcasting Media 
SRL 

SC Pro TV SA 

SC Grupul Media 
Camina (GMC) SRL 

SC Europe 
Developpment 
International–R SA 

European Radio 
Investments 
Limited (UK)  – 
84,3786%,  SBS 
Broadcasting (UK) 
Limited – 
15,3526%, 
Romanian 
Broadcasting 
Corporation 
Limited (UK)  – 
0,2676% and P7S1 
Finance BV 
(Netherlands) – 
0,0012%. 
CME Media 
Enterprises B.V. 
(Netherlads)  – 
99,999995% and 
CME Investments 
B.V. (Netherkands)  
– 
0,000005%. 
Voiculescu Camelia 
Rodica – 40%, 
Voiculescu Corina 
Mirela – 39%, The 
Industrial Group 
Voiculescu and 
Comp (Grivco) SA 
– 10%, Oancea 
Sorin – 10%, The 
„Dan Voiculescu 
Foundation for the 
Development of 
Romania (founding 
member and 
President – Dan 
Voiculescu) – 1% 
Lagardere Active 
Radio International 
SA (France) – 
99,86% and 
Lagardere Active 
Broadcast SA 
(Monaco, 
represented by Mr. 
Alain Lemarchand) 
– 0,14% 

Source: ARA, Copyright: ARA 

The structure of the radio market for urban and Bucharest population (December 2011) 
is  quite  similar,  with  smaller  market  share  for  the  public  broadcaster  than  at  national 
level (23.9%), followed by the same competitor, SBS Broadcasting Media SRL (20.0%). 
Europe  Developpment  International–R  SA  comes  third  (9.3%),  switching  positions  with 
Media Camina Group (G.M.C.) SRL (8.6%) at urban level (Appendix RO 2). 

583 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.22.2.2. 

Television 

The  TV  market  followed  the  same  pattern  as  the  radio  market  after  1989.  TV  was  and 
remains  the  most  important  source  of  information  for  Romanians  and  the  most 
„consumed” medium, according to the above mentioned study issued in November 2011 
by  the  research  institute  IRES.  83%  of  the  respondents  watch  daily  TV  and  10%  more 
times per week. Only 0.4% of population does not watch TV at all. The most important 
reason  for  watching  TV  is  for  own  information/to  find  out  what  happens  (57%),  8%  for 
entertainment/relaxation. Most people watch TV all week long (76%). The results are in 
line  with  a  CURS  institute  2009  research31,  which  found  out  92%  of  respondents  watch 
daily TV (59% more than 3 hours/day and 33% less). Another 2011 IRES study32 shows 
that 82% of respondents consider that TV stations are ready to broadcast everything for 
the  sake  of  rating,  76%  that  the  televisions  in  Romania  exaggerate  all  the  topics,  65% 
that televisions manipulate and do not inform, 53% that it is not the stations’ fault they 
treat  poor  subjects,  because  the  public  requests  these  subjects.  60%  of  respondents 
consider the National  Audiovisual Council should issue stricter rules for TV stations. The 
market leader is the commercial station Pro TV33. The audience is measured monthly by 
Asociaţia  Română  pentru  Măsurarea  Audienţelor  (Romanian  Association  for  Audiences 
Measurement - ARMA34). 

Table 128 RO: Television main players total national market shares (April 
2012): 

Broadcasters 

Ownership 
structure 

Main TV stations 

Ratings 
(Reach) 

Market 
Shares 

Total 
Market 
Share 
21.0% 

Pro TV 
Acasă 
Sport.ro 
Pro Cinema 
MTV România 

667,000 
138,000 
39,000 
29,000 
9,000 

15.9% 
3.3% 
0.9% 
0.7% 
0.2% 

Antena 1 
Antena 2 
GSP TV 
Euforia 

486,000 
34,000 
24,000 
16,000 

11.6% 
0.8% 
0.6% 
0.4% 

13.4% 

SC Pro TV SA 

Antena TV 
Group SA 

CME Media 
Enterprises B.V. 
(Netherlads)  – 
99,999995% and 
CME Investments 
B.V. (Netherkands) 
– 
0,000005%. 
Voiculescu Camelia 
Rodica – 
41,780095%, 
Voiculescu Corina 
Mirela – 
37,457653%, 
Lazăr Mihai – 
8,644884%, 
Gheorghe Anca 
Raluca – 
4,322442%, The 
„Dan Voiculescu 
Foundation for the 
Development of 
Romania (founding 
member and 
President – Dan 

31 

32 

33 

34 

români,  dependenţi  de 

59%  dintre 
http://www.jurnalul.ro/special/59-dintre-romani-dependenti-de-televiziune-529077.htm. 
Evenimente  mondene 
http://www.ires.com.ro/uploads/articole/ires_evenimente-mondene-din-romania-perceptii-si-interes.pdf.  
Audienţele 
stations  members  of  ARMA)
www.arma.org.ro/ro/audiente. 
Asociaţia Română pentru Măsurarea Audienţelor (Romanian version) www.arma.org.ro. 

televiziune,  2  decembrie  2009,  Romanian  version 

staţiilor  TV  membre  ARMA 

(Audiences  of  TV 

Romanian 

România 

perceptii 

interes, 

version 

din 

si 

– 

584 


 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
  
 
  
 
  
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Kanal D 

256,000 

6.1% 

6.1% 

TVR 1 
TVR 2 

185,000 
56,000 

4.4% 
1.3% 

5.7% 

Antena 3 

222,000 

5.3% 

5.3% 

Prima TV 
Kiss TV 

156,000 
25,000 

3.7% 
0.6% 

4.3% 

Doğan Media 
International 
SA 

Societatea 
Română de 
Televiziune 
(SRTV/TVR) 
Antena 3 SA 

SC SBS 
Broadcasting 
Media SRL 

Voiculescu) – 
3,91666%, Grivco 
SA – 3,878266% 
Doğan Media 
International 
GMBH (Germania) 
– main 
shareholder – 
79,9181% and 
Ringier 
(Nederland) B.V. 
(Netherlands) – 
20,0819% 
Public service 
broadcaster 

Voiculescu Corina 
Mirela – 48%, 
Oancea Sorin – 
25%, Voiculescu 
Camelia Rodica  – 
21%, the „Dan 
Voiculescu 
Foundation for the 
Development of 
Romania (founding 
member and 
President – Dan 
Voiculescu) – 6% 
European Radio 
Investments 
Limited (UK)  – 
84,3786%,  SBS 
Broadcasting (UK) 
Limited – 
15,3526%, 
Romanian 
Broadcasting 
Corporation 
Limited (UK)  – 
0,2676% and P7S1 
Finance BV 
(Netherlands) – 
0,0012%. 

Source: Kantar Media Audiences, Copyright: ARMADATA SRL 

Competition is more intense in the TV market, where the four main competitors (Pro TV 
SRL,  Antena  TV  Group  SA,  Doğan  Media  International  SA  and  the  public  broadcaster 
Societatea Română de Televiziune) gather only 47.5% of the market. 

2.2.22.2.3. Press and publishing 

The  press  and  publishing  market  skyrocketed after  1989,  with  thousands  of  print  titles. 
The  economic  crisis  severely  affected  after  2009  the  print  media,  most  periodicals  and 
daily  newspapers  opting  for  the  migration  towards  online,  in  order  to  reduce 
expenditures  and  losses  due  to  the  dramatic  decrease  of  print  issues  circulation. 
Beginning  2012  only  five  quality/financial  national  coverage  daily  newspapers  had  print 

585 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

issues,  along  with  three  tabloid  national  daily  newspapers  and  two  sports  national  daily 
newspapers. 

The  audience  is  measured  through  the  Studiul  Naţional  de  Audienţă  (National  Audience 
Study – SNA), issued by Biroul Român de Audit al Tirajelor (Romanian Circulation Audit 
Bureau  -  BRAT),  founded  in  1998.  On  29  March  2012  BRAT’s  shareholders’  decided  to 
change association’s name to Biroul Român de Audit Transmedia (Romanian Transmedia 
Audit  Bureau  -  BRAT).  BRAT  (228  members:  print  and  online  media  publishers,  out-of­
home  companies,  advertisement  agencies,  advertisement  customers  as  of  end  March 
2012)  measures  and  updates  continuously  the  circulation,  based  on  “circulation  audit 
certificates”  (verified  by  auditors,  publishers  and  BRAT)  and  “spreading  declarations”  of 
the publishers. Data are consolidated twice a year in a catalogue published by BRAT. The 
universe  of  SNA  were  the  citizens  of  14-74  yo,  living  in  a  city  with  more  than  50,000 
inhabitants; the main indicator is the AIR (Average Issue Readership). SNA includes 149 
titles.35 BRAT issued mid-February 2012 the new SNA data collected through a modified 
system,  due  to  European  constraints:  modification  of  data  collection  from  PAPI  (Paper 
and Pencil) to CAPI (Computer Assisted Personal Interview), extension of universe from 
public  of  14-64  years  to  14-74  years  and  decrease  of  universe  with  16%  due  to  the 
provisional  results  of  the  October  2011  national  census  (19,6  million  people  against 
21,68 million in 2002)36. 

35	 

36	 

Biroul Român de Audit al Tirajelor, Romanian version
http://www.brat.ro/index.php?page=prezentare. 
BRAT  a  lansat  rezultatele  de  audienţă  ale  SNA  obţinute  cu  noua  metodologie  a  studiului,  14  februarie 
2012, Romanian version:
http://www.radardemedia.ro/2012/02/14/brat-a-lansat-rezultatele-de-audienta-ale-sna-obtinute-cu­
noua-metodologie-a-studiului/. 

586 


 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
  
 
  
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 129 RO: Main newspapers/periodicals (Brut Circulation, decreasing order, 
data as of 31/12/2011): 

Publisher 

Title 

Ringier 
România 

Adevărul 
Digital 
Media 
Ringier 
România 
Adevărul 
Digital 
Media 
Adevărul 
Holding 
Ring Media 
Group 
Ringier 
România 
Ringier 
România 

Convergent 
Media 

Cancan 
Media 
Cancan 
Media 
Media 
Gamma 
Publishers 
Adevărul 
Digital 
Media 
Media 
Gamma 
Publishers 
Mediafax 
Group 
Editura 
Intact 

Libertatea - 
Supliment 
Weekend 

Click 

Libertatea 

Click! de 
Duminică 

Click! pentru 
femei 

Ring 

Libertatea 
pentru femei 
Libertatea - 
Ediţia de 
duminică 

Gazeta 
Sporturilor 

Cancan 

Cancan de 
Weekend 

România 
Liberă 

Adevărul 

Academia 
Caţavencu 

PRO Sport 

Jurnalul 
Naţional 

Source: BRAT  

Periodicit 
y 
[Weekly 
(W)/Daily 
(D)] 
W 

D 

D 

W 

W 

D 

W 

W 

D 

D 

W 

D 

D 

W 

D 

D 

Coverage 
[National 
(N)/Local 
(L)] 

N 

N 

N 

N 

N 

L 

N 

N 

N 

N 

N 

N 

N 

N 

N 

N 

Type 
[Paid 
(P) 
/Free 
(F)] 
P 

P 

P 

P 

P 

F 

P 

P 

P 

P 

P 

P 

P 

P 

P 

P 

Brut 
circula­
tion 

Total 
Sales 

Total 
Spread 

208,538 

0 

150,302 

195,499 

154,593 

156,024 

136,503 

96,969 

97,561 

132,383 

104,193 

105,562 

113,692 

80,368 

81,866 

100,000 

0 

100,000 

99,183 

76,015 

76,855 

63,365 

44,477 

44,879 

57,824 

33,314 

33,891 

55,671 

32,745 

33,413 

51,218 

30,816 

31,452 

43,986 

37,118 

37,586 

43,066 

26,332 

28,660 

40,417 

14,958 

15,206 

40,252 

25,354 

25,923 

35,840 

24,200 

25,080 

587 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 130 RO: Newspapers/periodicals CpA (average number of readers/issue 
from the universe, descending CpA order, 29 February 2012): 

Publisher 

Title 

Adevărul Digital 
Media 
Ringier România 
Convergent Media  Gazeta Sporturilor 

Libertatea 

Click 

Adevărul Digital 
Media 
Ringier România 

Adevărul Holding 

de Duminică 

Click! de Duminică 

Libertatea - Ediţia 
de duminică 

Click! pentru femei 

Cancan Media 

Cancan 

Convergent Media  Gazeta Sporturilor 
Ringier România 

Libertatea - 
Supliment Weekend 
Libertatea pentru 
femei 
National 
Geographic 
PRO Sport 

Reader`s Digest 

Adevărul 

Taifasuri 

Weekend Adevărul 

Academia 
Caţavencu 
Jurnalul Naţional 

Evenimentul Zilei 

Capital 

Ringier România 

Sanoma Hearst 
România 
Mediafax Group 
Editura Reader`s 
Digest 
Adevărul Digital 
Media 
Taifasuri Media 
Adevărul Digital 
Media 
Media Gamma 
Publishers 
Editura Intact 
Editura 
Evenimentul Zilei 
şi Capital 
Editura 
Evenimentul Zilei 
şi Capital 

Periodicity 
[Weekly (W)/ 
Daily(D)/Mont 
hly (M)] 
D 

D 
W 

W 

W 

W 

D 
D 
W 

W 

M 

D 

M 

D 

W 
W 

W 

D 
D 

W 

Type of 
publication 

Average number 
of readers/issue 

Tabloid 

770,000 

Tabloid 
Sport 

592,000 
545,000 

Tabloid 

496,000 

Tabloid 

488,000 

Women 
mass-market 
Tabloid 
Sport 
Tabloid 

Women 
mass-market 
General 
culture 
Sport 
General 
culture 
Quality 

Vulture 
Quality 

461,000 

454,000 
445,000 
417,000 

377,000 

361,000 

360,000 
252,000 

230,000 

222,000 
194,000 

Satire 

186,000 

Quality 
Quality 

177,000 
159,000 

Business 

132,000 

Source: BRAT – SNA 

2.2.22.2.4. Online media (non-linear audiovisual (media) services; websites) 

The  online  media  market  bounced  up  after  2000.  The  Internet  audience/traffic  is 
measured in several ways, the most important being through the Studiul de Audienţă  şi 
Trafic Internet (Internet Audience and Traffic Study – SATI), issued by BRAT37. The only 
Internet traffic measurement tool recognized by the advertisement industry is SATI. 

37 

Studiul  de  Audienţă  şi  Trafic  Internet  (Internet  Audience  and  Traffic  Study),  Romanian  version 
http://www.sati.ro/ 

588 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
                                                 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 131 RO: Main mass media websites (April 2012, monthly decreasing 
views): 

Website 

Publisher 

Category 

Views 

Visits 

Unique 
visitors 

www.sport.ro 

Pro TV 

Sport 

www.libertatea.ro 

www.cancan.ro 

www.gsp.ro 

www.prosport.ro 

Ringier 
România 

Cancan 
Media 
Convergent 
Media 

Mediafax 
Group 

51.338.280 

39.677.723 

14.672.717 

2.096.505 

10.139.586 

2.339.258 

Tabloid 

Tabloid 

38.561.561 

11.635.837 

2.421.271 

Sport 

Sport 

35.530.556 

11.625.827 

33.221.793 

11.563.733 

1.991.073 

1.942.932 

1.621.063 

2.504.575 

www.antena3.ro 

Antena 3 

General news 

www.realitatea.net 

Q2M 

General news 

www.click.ro 

Adevărul 
Holding 

Tabloid 

24.320.045 

26.561.606 

6.144.960 

8.659.216 

24.437.407 

6.635.484 

1.766.688 

www.stirileprotv.ro 

Pro TV 

General news 

24.610.382 

10.821.566 

www.adevarul.ro 

Adevărul 
Holding 

General news 

19.863.826 

6.953.735 

www.ziare.com 

Q2M 

General news 

19.157.734 

5.161.308 

2.652.169 

2.235.156 

2.146.786 

www.gandul.info 

Mediafax 
Group 

General news 

18.411.734 

7.747.329 

2.165.523 

www.protv.ro 

Pro TV 

Entertaiment 

16.994.542 

4.881.202 

1.999.568 

www.evz.ro 

www.showbiz.ro 

Editura 
Evenimentul 
Zilei şi 
Capital 
Mediafax 
Group 

General news 

15.516.275 

5.177.777 

1.410.662 

Tabloid 

14.473.635 

1.341.892 

622.738 

www.hotnews.ro 

Hotnews.ro 

General news 

www.a1.ro 

www.jurnalul.ro 

www.acasatv.ro 

www.zf.ro 

Intact 
Interactive 
Editura 
Intact 

Pro TV 

Mediafax 
Group 

General news 

General news 

Feminine 
Lifestyle 
Economic & 
financial 

www.profm.ro 

Pro TV 

Entertaiment 

www.acasa.ro 

Acasă Media 

Lifestyle 

12.750.422 

12.877.997 

7.406.716 

8.171.376 

6.209.974 

7.071.538 

6.818.622 

4.917.549 

3.587.630 

2.629.169 

2.590.349 

2.356.825 

2.224.551 

2.787.840 

1.207.808 

1.512.268 

1.019.734 

1.036.204 

721.897 

685.964 

1.651.727 

www.romanialibera.ro 

www.mediafax.ro 

www.telegrafonline.ro 

Media 
Gamma 
Publishers 
Mediafax 
Group 
Telegraf 
Advertising 

General news 

4.971.192 

1.390.127 

624.699 

General news 

Local news 

6.288.940 

2.727.985 

986.961 

4.107.848 

6.584.509 

419.758 

2.241.808 

133.272 

906.305 

www.procinema.ro 

Pro TV 

Entertaiment 

   www.emaramures.ro  

www.kissfm.ro 

Inserv Media 
SBS 
Broadcasting 
Media 

Source: BRAT 

Local news 

4.699.722 

822.851 

336.433 

Entertaiment 

4.244.153 

1.490.041 

596.607 

589 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

According  to  the  ZeList  Index38,  the  blogosphere  activity  decreased  by  15%  in  2011 
against 2010 in terms of posts; meantime the Facebook activity raised by approx. 53%. 
The Twitter activity raised by 15%, whilst the online media grew with about 50%. More 
than  4,4  million  Romanians  had  at  end  2011  a  Facebook  account  (83%  more  than  end 
2010).39 More than one million accounts are in Bucharest. 

2.2.22.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

According  to  ANCOM,  there  were  in  Romania,  at  30  June  2011,  480  operational 
audiovisual  programmes  retransmission  services  providers  (475  for  cable  networks,  3 
through satellite – DTH, 3 through IP technology – IPTV; some of them offered combined 
services)40. 

The  main  players  on  the  market  of  cable  TV,  satellite  TV  services,  and  fixed  Internet 
connections  are  the  Romanian  company  RCS&RDS  (market  leader,  about  3,5  million 
customers), Romtelecom (part the Greek OTE Group, about 2,2 million customers), and 
UPC România (part of Liberty Global, Inc. Group, more than 1,4 million customers). 

The  total  number  of  audiovisual  programme  retransmission  subscribers  amounted  to 
5,70 million as of mid-2011, down by 0.6% as compared to end-2010, mainly because of 
the  decrease  by  7.6%  of  the  number  of  DTH  subscribers,  which  fell  to  2,2  million.  The 
number of subscribers to retransmission services provided on cable networks and to IPTV 
services  grew  in  the first  semester  of  2011 by  4%  and, respectively,  27.9%  up  to  3,46 
million, respectively 0.038 million. 

The  penetration  rate  of  audiovisual  programme  retransmission  services  per  households 
reached 77.9%. As of mid-2011, the cable networks registered increases as regards both 
total number of subscribers (+4%) and number of subscribers to audiovisual programme 
retransmission  services  received  in  digital  format,  up  by  85.1%.  The  growth  of  the 
number  of  cable  subscribers  in  urban  area  (+4.2%)  was  superior  to  that  registered  in 
rural  area  (+3.4%).  Thus,  the  rural  area  registered  0.78  million  subscribers  and  a 
penetration rate which rose to 23.1%. In urban area, there were 2,68 million subscribers 
(approx. 78% of the total number of cable subscribers), with a penetration rate of 68%. 
Within  the  total  number  of  cable  subscribers,  21%  are  subscribers  to  audiovisual 
programme retransmission services received in digital format. 

The  market  of  broadband  Internet  access  services  maintains  the  ascendant  trend  on 
several  segments,  as  the  growth  rates  registered  by  mid-2011  exceed  the  increases 
reported in the second semester of 2010, according to the ANCOM.41 

According to ANCOM, at 30 June 2011 there were in Romania 1,012 operational Internet 
services providers, of which 6 mobile points access services (through HSCSD technology, 
GPRS,  EDGE,  CDMA/EVDO,  3G)  and  1,010  for  broadband  access  at  fixed  points.  The 
Romanian market has a big concentration ratio, of 2.866 (Herfindahl – Hirschman Index, 

38 

39 

40 

41 

ZeList:  Retrospectiva  social  media  pe  2011  arata  ca  blogurile  personale  pierd  in  favoarea  Facebook, 
Capital,  24.01.2012,  Romanian  version  http://www.newz.ro/stire/13,  3446/zelist%3A-retrospectiva­
social-media-pe-2011-arata-ca-blogurile-personale-pierd-in-favoarea-facebook.html. 
Aprope  un  sfert  dintre  romani  au  cont  de  Facebook,  Romanian  version  http://www.finantistii.ro/social­
media/aprope-un-sfert-dintre-romani-au-cont-de-facebook-69623/. 
Servicii  de  retransmisie  a  programelor  media  audiovizuale  liniare  furnizate  utilizatorilor  finali  -  raport  de 
date statistice, Romanian version,
http://www.ancom.org.ro/uploads/links_files/date_statistice_raport_sem_I_2011_cablu.pdf. 
Servicii de acces la internet. Servicii de linii închiriate şi transmisiuni de date – raport de date statistice – 
Romanian version
http://www.ancom.org.ro/uploads/links_files/Raport_DS_sem_I_2011_internet13.pdf. 

590 


 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
                                                 
  
 
  
  
  
  
 
  
  
  
 
 
 
 
 
  
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

HHI)  for  broadband  access  at  fixed  points  and  of  4.536 for  broadband  access  at  mobile 
points. 

The number of fixed broadband Internet access connections reached 3,13 million, up by 
4.4%  and  double  as  compared  to  the  growth  rate  registered  in  the  second  semester  of 
2010.  The most  significant  increases  were  registered  by  the  xDSL  connections (+7%  to 
0,94  million  connections)  and  UTP/FTP  cable  connections  (+7%  to  1,70  million 
connections).  The  coaxial  cable  connections  decreased  by  5%,  to  0,4  million.  The  FTTx 
connections (2,75 million) account for 88% of the total fixed broadband Internet access 
connections.  12%  are  held  by  connections  achieved  on  coaxial  cable/twisted  metallic 
wires/UTP/FTP cable/radio supports or other means. 

The penetration rate of fixed broadband Internet access connections per 100 inhabitants 
reached  14.6%  as  of  mid-2011;  the  penetration  rate  per  100  households  increased  to 
38.7%.  Moreover,  the  number  of  fixed  connections  installed  to  business  users  declined 
slightly (-1%), and the connections installed to residential users grew by 5%. Out of the 
3,13 million fixed broadband Internet access connections reported by the middle of this 
year, 2,83 million were used by residential subscribers and 0,3 million connections were 
employed  by  business  subscribers.  2,54  million  users  are  in  urban  areas,  whereas  0,59 
million  in  rural  areas.  The  transfer  speed  of  98%  of  the  broadband  Internet  access 
connections was at least 2 Mbps, while 62% of these connections had a transfer speed of 
at least 10 Mbps. 

According  to  data  reported  by  the  6  providers  of  mobile  Internet  access  services,  the 
total number of mobile broadband Internet access connections amounted to 3,53 million, 
up by 18% as compared to end-2010. There were 2,56 million active mobile broadband 
connections  achieved  over  mobile  telephones  and  0.97  million  active  mobile  broadband 
connections achieved over modems/cards/USB. The total number of terminals/SIM cards 
allowing  mobile  Internet  access  over  3G  (including  3G+),  EV-DO,  4G  or  other  
technologies superior to 3G reached approx. 5,1 million as of 30 June 2011. 

2.2.22.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Final  data  about  advertising  revenues  in  2011,  issued  on  13  June  2012  by  Initiative 
Media42, one of the biggest advertising agencies in Romania, showed that, because of the 
economic crisis, the advertising market continued to drop down, by 2% in 2011 against 
2010, to approx. 309 million EUR (316 million in 2010). All media were affected, except 
for online, which grew by 30% and is expected to keep the ascending trend in 2012. The 
TV  took  the  “lion’s  part”,  64.7%  of  the  ad  spend  market,  with  200  million  EUR  (-4% 
against 2010). The print was the most affected medium, dropping 8% compared to 2010 
(24 million EUR, 7.8% of the total ad market), followd by OOH (-7% agaisnt 2010, at 31 
million EUR, meaning 10% of the Romanian ad market), and Radio (-5%, 20 million EUR, 
6.5%  of the  market). The  online  net  ad  spend  was  of  34 million  EUR  in  2011,  reaching 
11% of the market (8.3% in 2010). Social networks continued to attract more and more 
users,  contributing  to  the  general  growth  of  the  online  ad  spend.  For  2012  Initiative 
Media  expects  a  general  drop  of  2%  (to  303  million  EUR),  with  decreases  for  all  media 
except online, which could grow by 20%, mainly due to the so-called performance media 
(Facebook,  Yahoo,  Google).  The  TV  is  expected  to  decrease  by  5%,  the  OOH  by  3%, 
print by 6% and Radio by 5%, but at significantly lower rates than before. 

42 

Initiative Media – Media Fact Book 2012, English version:
http://mediafactbook.ro/ebook/wp-content/uploads/2012/06/MediaFactBook2012_Initiative.pdf. 

591 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
  
                                                 
  
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

At the same time, the advertisement called by public authorities almost doubled in 2011 
against 2010, to approx. 35 million EUR, as stated in the report issued in February 2012 
by the NGO Centrul pentru Jurnalism Independent (Center for Independent Journalism ­
CJI).43  The  advertisers  expect  an  increase  of  5-10%  in  2012  for  the  online 
advertisement. They bet more on non conventional advertisement vectors. 

2.2.22.3.  Conclusion and Recommendations 

Mass media in Romania is diverse and rich, in terms of players and offers44, but the Press 
Freedom Index 2011/201245 issued by „Reporters without Borders”46 places Romania on 
the  47th  place  out  of  179  states47,  next  to  the  USA  and  Argentina,  recognizing  a  little 
progress from Romania since 2010 (when ranked 52nd). Though Romania is included in 
the category of states with noticeable problems with regard to media. „Reporters without 
Borders” states Romania is struggling to provide media with a democratic environment in 
line  with  promises  made  when  it  joined  the  EU,  but  considers  though  badly  needed, 
reforms  relating  to  media  rights  were  carried  out  without  consultation  with  the  main 
players  in  this  sector,  considerably  reducing  the  scope  for  investigation  and  editorial 
freedoms. 

According to the 2011 Freedom of the mass media in Romania Freeex report, issued on 3 
May  2012  by  the  NGO  ActiveWatch-Press  Monitoring  Agency48,  the  politicization  of  the 
media  accelerated  last  year,  with  many  politicians  or  political  advisers  becoming  media 
owners  or  mass  media  managers,  one  year  before  the  2012  elections.  The  market 
remains  dominated  by  businessmen  who  are  interested  in  obtaining  economic  and 
political advantages and which are ready to invest much money for this purpose. At the 
same time, big international media corporations, such as the German WAZ, left Romania, 
accusing  the  economic  crisis  and  the  unfair  competition.  On  the  other  hand,  the 
politicians issued in 2011 other draft laws with regard to mass media freedom restriction 
and to intimidation of journalists. 

Even  if  the  freedom  of  expression  is  almost  complete  (some  analysts  consider  this 
freedom is sometimes used beyond limits and democratic/legal ways of expression), the 
right to information has some limitations due, paradoxically, to the extremely large offer, 
but of poor or unreliable quality.  

There is not a law with regard to the press in Romania, but most opinions were that the 
best  for  journalists  is  to  regulate  themselves  their  activity.  More  conduct  codes  were 
adopted by different professional organisations/association.  

The  trend  of  Romanian  media  (mainly  TV  and  print)  is  towards  sensational, 
tabloidization,  superficial  information,  talk  shows  or  reports  full  of  personal  opinions, 
assumptions, personal attacks. A big part of information is biased. The political fights are 
often  replicated  and  magnified  in  media.  The  economic  pressures  are  big,  especially 

43 

44 

45 

46 

47 

48 

without 

publică: 

version, 

http://www2.cji.ro/userfiles/file/ 

Romanian 

2011-2012 

Acceleraţi!”, 

"Publicitate 
raport2012/Raport%20-%20Piata%20de%20publicitate%20publica%20din%20Romania.pdf. 
Borders, 
Reporters 
http://en.rsf.org/IMG/CLASSEMENT_2012/CLASSEMENT_ANG.pdf. 
Reporters without Borders, Press Freedom Index 2011/2012, http://en.rsf.org/press-freedom-index-2011­
2012,1043.html. 
Reporters without Borders, Freedom of the Press Worldwide 2012 Map:
http://en.rsf.org/IMG/jpg/carte2012-2.jpg. 
Reporters without Borders, 2011-2012 Romania Country Profile:
http://en.rsf.org/report-romania,129.html. 
Raportul Freeex – Libertatea presei in Romania 2011, Romanian version, 
http://www.activewatch.ro/uploads/FreeEx%20Publicatii%20/Raport%20FreeEx%202012/2012_Raportul 
%20FreeEx%20-%20Libertatea%20presei%20in%20Romania%202011.pdf. 

Freedom 

Index, 

World 

Press 

592 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
 
 
 
 
 
  
 
 
  
 
 
  
 
 
 
 
  
 
 
  
 
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

during the crisis period, when most of print media have closed their print issues and have 
migrated  on  the  Internet,  with  more  visible  effects  on  regional  and  local  media.  The 
public TV is continuously accused to obey to the ruling parties, the public radio is rather 
correct, the commercial media act as imposed by owners and are often biased. 

We  think  a  combination  of  actions  and  measures  could  solve  more  problems,  and 
improve  the  quality  of  the  Romanian  media  offer:  more  powerful  conduct  codes,  which 
should  sanction  the  low  quality  journalism  and  any  deontological  side-slip  or  corruption 
act;  a  better  self-regulation  of  the  press  field  is  needed;  we  also  recommend  the 
improvement of media schools and faculties level; the freedom of exerting their job has 
to  be  guaranteed  for  journalists,  who,  on  the  other  hand,  should  do  their  professional 
duty  in  good  will;  the  National  Audiovisual  Council  should  issue  more  strict  rules  and 
significantly bigger sanctions for radio and TV stations for breaching the law (especially in 
connection with human rights, children righs, sensational subjects, pornography, human 
trafficking, violence and the glorification of violence or of fraudulent means of living, false 
moral models); the National Communications Regulatory Authority should liberalize more 
the  market  and  the  competition,  and  speed  up  the  transition  towards  digital;  the  print 
and online  media should issue their own conduct codes or observe existing codes (such 
as  those  adopted  by  the  Convention  of  Media  Organisations,  the  Union  of  Professional 
Journalists from Romania or the Romanian Press Club); the Law of the public radio and 
TV  broadcasters  should  ensure  an  independent  and  strong  financing  of  the  bodies,  in 
order  to  have  real  public  media  services,  free  of  political  influences  and  economic 
pressures; the depoliticization of the SRR and SRTV is still wishful thinking; the cultural 
and educational roles of mass media should be encouraged, as well as the promotion of 
positive  examples  of  persons,  behaviors  and  events,  to  boost  consumption  of  quality 
media, without interfering with the editorial line; the free competition of media has to be 
encouraged, but the public media sector has to be sustained to become a real warrant of 
the general, equal, correct and unbiased access to information for all the citizens. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

SLOVAK REPUBLIK 


2.2.23.	  Slovak Republik 

2.2.23.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.23.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The Constitutional safeguards stated in Article 26 (§§ 1–4) on freedom of expression, the 
right to receive and disseminate information and freedom of media did not change since 
the completion of the first study in 2004, all the relevant provisions of the Constitution of 
Slovak republic remained unchanged. 

In December 2009, the Constitutional Court of the Slovak republic  stated that courts of 
first  and  second  instance  violated  the  freedom  of  expression  of  the  weekly  newspaper 
(Plus 7 dní) publisher. Press media often referred to this decision1 as “groundbreaking” or 
as a decision that deserves its place in constitutional law textbooks. In its reasoning, the 
Constitutional  Court  recognized  freedom  of  expression  as  a  pillar  of  democracy  and 
reminded that journalists are public watchdogs of democracy.  

The  significance  of  the  abovementioned  ruling  is  even  increased  by  the  fact  that  the 
Constitution  of  the  Slovak  republic  does  not  contain  any  specific  safeguards  for  the 
journalistic  profession  as  such.  Therefore,  it  is  extremely  important  for  the  freedom  of 
the media in the Slovak republic to have a reference to “written” opinion of such value. 

  Freedom to receive and to access information 

The  Constitutional  Court  awarded  journalists,  in  the  above  mentioned  decision,  an 
undisputed  right  and  even  a  “social  obligation”  to  “provide  information  and  thoughts 
about  every  items  concerning  general  public  interest”  and  classified  journalists  as  a 
“privileged  society”  regarding  freedom  of  expression  which  grants  them  an  increased 
level of protection. 

  Safeguards on regulatory authorities 

There  are  no  specific  references  on  media  regulatory  authorities  in  the  Constitution. 
There is no “state” regulatory authority for the press.  

  Safeguards on “universal service” 

The Slovak Constitution does not contain stipulations on universal access.  

1 

http://www.concourt.sk/rozhod.do?urlpage=dokument&id_spisu=334889. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.23.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The Council for broadcasting and retransmission2 (hereinafter“CBR”) regulates radio and 
TV  broadcasting  and  on-demand  audiovisual  media  services  as  well  as  network  (cable, 
satellite, IP etc.) operators. According to the Act on broadcasting and retransmission CBR 
is  an  independent  body  whose  members  are  elected  by  parliament.  Members  of 
parliament, professional and citizen’s associations in the field of audiovisual works, mass 
media, culture, science and sport, registered churches and disabled citizen’s associations 
suggest  candidates  for  CBR  membership  to  the  parliament.  An  elected  member  of  the 
CBR  can  neither  serve  as  a  functionary  in  a  political  party  nor  act  in  its  name  or  in  its 
favor. 

The Council of Radio and TV of Slovak republic3 (hereinafter “PSB Council”) is an internal 
regulatory  body  whose  members  are  elected  by  parliament.  The  PSB  Council  comprises 
nine  members  wherefrom  three  are  experts  in  the  field  of  radio  broadcasting,  three 
experts  in  the  field  of  TV  broadcasting  and  two  economy  experts  as  well  as  one  legal 
expert. Expert is a person with full academic degree (not bachelor's degree) and 5 years 
experience  in  the  given  field  and  three  years  experience  in  a  management  position. 
Elected member of PSB Council can neither serve as a functionary in a political party nor 
work for a political party or act in its name or favor.  

In Slovakia, the CBR issues broadcasting licenses. The CBR may grant analogue licenses 
(as regards TV for a period of 12 years and for radio for 8 years each with one possible 
extension)  if  all  requirements  laid  down  by  law  are  fulfilled.  There  is  a  legal  claim  for  a 
digital  license  (no  time  limitation)  and  for  a  registration  of  retransmission  (no  time 
limitation). A registration for retransmission is not needed if the retransmission take only 
place  in  one  building  or  in  a  complex  of  buildings,  and  for  non-commercial  use, 
retransmission  solely  of  PSB,  or  Internet  broadcasting  exclusively  via  Internet,  or 
retransmission with less than 100 users. TV broadcasting exclusively via Internet and on-
demand  audiovisual  media  services  require  only  a  notification  to  CBR  (enforceable  by 
financial  sanctions).  Press  publishers  need  to  notify  their  activity  to  the  Ministry  of 
Culture,  accompanied  by  some  basic  information  (the  obligation  to  notify  is  also 
enforceable by financial sanctions). 

- Media pluralism/ownership; competition law aspects 

The  Act  No.  308/2000  Coll.,  last  amended  by  the  Act  No.  547/2011  Coll.,  on 
Broadcasting  and  Retransmission4  includes  rather  detailed  provisions  on  media 
concentration  that  have  to  be  applied  by  the  CBR  when  granting  or  revoking  a  license. 
These provisions did not change since the completion of the first study in 2004, and all 
data  are  still  valid.  These  provisions  are  taken  into  account  when  issuing  a  license  for 
analogue broadcasting under the Act on Broadcasting and Retransmission. 

For  issuing  a  license  for  digital  broadcasting  the  provision  on  media  concentration  as 
contained in the Act No. 220/2007 Coll., last amended by the Act No. 204/2011 Coll., on 

2 

3 

4 

http://www.rada-rtv.sk/en/. 

http://www.rtvs.eu/sk/rada_rtvs/o_rade_rtvs. 

http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1.asp?kotva=k1&skupina=1.
 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

digital  broadcasting5  must  be  applied.  A  broadcaster  applying  for  a  digital  license 
(hereinafter  “digital  broadcaster”)  cannot  establish  property  or  personal  “link”  with 
another  digital  broadcaster.  Such  “property  link”  is  established  when  a  person  holds  at 
least a 25% share of the issued capital of a second person, or a 25% share of the overall 
voting  rights  in  the  company.  A  “personal  link”  is  established  if  a  natural  person 
participates in the executive or in control mechanisms of another legal person. 

Further,  a  digital  broadcaster  cannot  establish  a  property  or  personal  link  with  the 
provider of a terrestrial multiplex. However, regional or local digital TV broadcasters, also 
regional or local digital radio broadcasters, can establish a property or personal link with 
a provider of one local terrestrial multiplex. A radio broadcaster can establish a property 
or  personal  link  with  a  provider  of  terrestrial  (only  radio  or  only  analogue)  multiplex.  A 
natural or legal person with a property or personal link to a national digital broadcaster 
cannot  establish  a  property  link  with  the  provider  of  a  multiplex  (if  linked  to  a  regional 
digital  broadcaster,  he  cannot  establish  a  property  link  with  more  than  one  multiplex 
provider).  A  natural  or  legal  person  can  establish  a  property  link  with  more  multiplex 
providers  if  their  combined  signal  coverage  does  not  exceed  50%  of  the  population. 
These  provisions  do  not  apply  to  a  multiplex  provider  who  provides  only  for  a  local 
multiplex or only radio or analogue terrestrial multiplex. 

One  natural  or  legal  person  cannot  operate  local  multiplexes  with  a  signal  coverage  of 
more  than  30%  of  the  population.  This  also  applies  to  the  creation  of  the  local 
multiplexes network. 

The  CBR  is  responsible  for  the  application  of  these  provisions.  The  law,  however,  does 
not  state  into  what  level  the  CBR  should  investigate  legal  entities.  Standard  practice  of 
the  CBR  is  to  investigate  only  into  the  first  level  (meaning  that  if  a  member  of  a  legal 
entity  is  another  legal  person  it  does  not  investigate  into  the  organizational  scheme  of 
the latter). This practice is strongly criticized by one commentator.6 

Overall,  the  legal  status  on  revealing  the  actual  owners  of  legal  entities  in  the  Slovak 
republic is certainly not satisfactory (e.g. because of a missing obligation to disclose the 
ultimate  beneficiary  in  each  case).  It  is  certainly  fair  to  question  what  needs  to  be 
changed – legislation, regulatory approach, or both.  

- Legal framework for psm; ability to fulfill their tasks 

According to the Act No. 532/2010 Coll., last amended by the Act No. 397/2011 Coll., on 
Radio  and  TV  of  Slovak  republic7  Slovak  TV  PSB  and  the  Slovak  radio  PSB  merged  in 
2011.  PSB  (Radio  and  TV  of  Slovak  republic)  operates  now  as  one  entity  with  a  single 
director-general and one council (internal regulatory body). Lowering financial costs was 
the main argument pro merger. It is true that before Slovak TV PSB was in a catastrophic 
financial condition, and this was a continuous trend (according to that time government, 
the  difficult  situation  was  caused  mainly  by  the  then  director-general).  Besides  being 
responsible for a poor financial condition of the institution, the director-general was also 

5	 

6	 

7 

http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1. 
asp?kotva=k1&skupina=1. 
According  to  Mr.  Tomas  Czwitkovics,  Editor-in-chief  of  www.medialne.sk,  the  most  popular  web  site 
specialized in media, which is part of Trend holding – the publisher of the economic weekly “trend”, “[t]he 
actual situation in anti-concentration rules for the media is unacceptable. There were obvious cases in the 
past  where  these  rules  were  clearly  circumvented  and  the  CBR  did  not  act  referring  to  “first  level  check 
only”.  But  I  do  not  see  in  legislation  any  restriction  to  investigate  deeper  levels  and  in  my  opinion 
considering seriousness of the matter CBR did not invest sufficient effort into it.” 
http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1.asp? 
kotva=k1&skupina=1. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

accused of strong “politicization” of Slovak TV PSB. Critics of the merger, however, stated 
that Slovak TV PSB had always been producing losses, and receiving “aid” from the state 
budget  was  common  practice  (regardless  of  who  was  in  charge  as  director-general). 
Critics  claimed  that  the  measure  of  reorganisation  was  a  way  to  replace  the  former 
director-general with somebody who is more in favor of the leading political force. 

It is true that losses at Slovak TV PSB had reached an exceptionally high level and also 
the  credibility  of  TV  PSB  in  terms  of  ability  to  fulfill  its  remit  was  -  in  the  view  of  the 
general  public  -  substantially  lowered.  There  were  diverse  opinions  on  the  subject 
whether  TV  PSB  favored  any  political  party  but  there  were  little  doubts  about  other 
indicators  such  as  audience  share  or  quality  of  the  programmes.  The  new  law  also 
brought  new  mechanisms  such  as  the  director-general  being  elected  by  parliament 
(contrast to the previous system where it was elected by the Council of PSB), and later 
on a new system of financing PSB whereby subscribers’ fees where replaced by an annual 
contribution  from  the  state  budget  (0.142%  of  the  GDP  with  a  guaranteed  minimum 
amount  of  EUR 90  Mio  per  year).  These  changes  gained  lot  of  criticism  (mainly  from 
political opposition) for decreasing the level of PSB independency. The new merged PSB 
is so far focusing on stabilizing its finance and trying to improve its all-time low audience 
shares. With the first one PSB seems to be on the right track, but for the latter it is too 
early to say. 

The  CBR  only  reviews  compliance  with  ordinary  obligations  (almost  the  same  as  for 
commercial  broadcasters).  The  only  competent  regulatory  authority  to  supervise  the 
fulfilment  of  the  remit  of  PSB  is  its  internal  body,  the  Council  of  PSB.  As  already 
indicated, the previous Council of TV PSB was accused of failing to fulfil its duties, which 
led to the adoption of the new law and the establishment of a new PSB (and its council). 
The new Council has just started to work; therefore it is too soon to make an assessment 
of its performance. 

- The role and functioning of regulatory authorities in these respects 

The  Telecommunications Regulatory  Authority8  (hereinafter  “telecom  office”)  of  the 
Slovak Republic is the national regulatory and pricing authority in the sector of electronic 
communications. The  Telecom  office  is  presided  by  a  chairman  who  is  a  statutory  body 
and is elected and recalled by parliament upon a proposal of the government. 

The competencies of the Antimonopoly Office did not change since the completion of the 
first  study  in  2004,  this  is  further  applying  the  general  competition  rules  on  merger 
control and the abuse of a dominant position. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The main legislation concerning mass media consists of the Act No. 167/2008 Coll., last 
amended  by  the  Act  No.  221/2011  Coll.,  on  the  press9,  the  Act  on  PSB  and  the  Act  on 
Broadcasting and Retransmission. Each Act focuses only on its separate field of interest 
(press,  audiovisual  media  etc.)  with  lack  of  general  legislation  that  would  state  basic 
principles  and  provide  for  common  definitions.  This  “categorization”  of  journalists  feels 
inappropriate  to  Ms.  Zuzana  Krutka10.  Although  technical  “output”  may  be  different  for 

8 

9 

10 

http://www.teleoff.gov.sk/index.php?ID=9. 
http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1.asp? 
kotva=k1&skupina=1. 
Head of the association on protection of journalistic ethic, vice-chairman of syndicate of Slovak journalists: 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

some journalist, the “core activity” of journalists is always the same. Anther substantial 
fail of Slovak legislation, according to Ms. Krutka, is the lack of a definition of the notion 
“journalist”  which  leads  to  an  absence  of  legally-expressed  rights  and  duties  of 
journalists.  With  this  criticism  agrees  also  Julius  Lőrincz11,  who  feels  that  it  is 
“irresponsible” to reduce the whole remit of journalism to one single issue - the “right to 
reply”  which  is,  according  to  Mr.  Lőrincz,  the  only  aspect  of  the  Act  on  the  press  which 
usually attracts interest from competent people in the executive (throughout the political 
spectrum). 

The institute of a “right to reply” was introduced by the Act on the press in 2008 despite 
massive  protests  from  basically  all  press  publishers.  Most  of  the  journalists’  objections 
were against possibility to use right to reply even for truthful factual statements that (in 
the  claimant’s  view)  damaged  his/her  honor,  dignity  or  privacy.  In  2011,  the  scope  of 
this  institute  has  changed,  and  the  right  to  reply  now  can  be  used  only  to  “correct” 
untruthful, incomplete or distorted factual statements, and it cannot be used by a public 
figure against statements about his/her “public” activities. 

According  to  Mr.  Lukas  Fila12,  the  Act  on  the  press  in  its present  shape  is  not  bad,  and 
after  modification  the  right  to  reply  does  not  cause  “any  obstacles  for  the  day-to-day 
work  of  print  media”.  “Real  and  continuing  troubles  for  journalistic  work  are  caused  by 
defamation  claims  based  on  provisions  of  civil  code”,  adds  Mr.  Fila.  However,  not  the 
legislation  itself  but  its  actual  application  by  courts  presents  a  real  threat  to  journalistic 
profession.  “Poor  condition  of  judiciary  is  clear  from  many  decisions  –  an  injunction  to 
financial 
publish  non-existent  book,  an  obligation 
compensation  for  publishing  picture  wrongly  marked  by  press  agency,  or  high  financial 
compensation awarded by judges to another judges” states Mr. Fila. 

for  news  magazine  to  pay 

The  civil  association  “Via  Iuris”  expressed  similar  concerns  towards  Slovak  courts’ 
performance  in  its  analysis13  “Freedom  of  expression  and  actions  on  protection  of 
personality”. “Based on our analysis of rulings of the Slovak domestic courts in reference 
to  the  protection  of  personality,  we  can  state  that  courts  provide  public  figures  with 
excessive  protection.  In  their  decision-making  courts  often  do  not  take  into  account 
principles  stipulated  by  the  European  Court.  (…)  As  for  awarding  compensation  for 
damage  to  one´s  reputation,  for  the  Slovak  courts  if  plaintiff  is  a  public  official  (e.g. 
politician) that fact often results in a higher financial compensation in comparison to that 
awarded to common citizens.” 

Among other competences, the CBR also monitors impartiality and objectiveness of news 
and  current  affairs  programmes  and  the  protection  of  human  dignity  in  TV  and  radio 
broadcasting. The legislation on these points is quite vague, which leaves the regulatory 
authority  with  large  room  for  discretion.  This  framework  and  especially  the  authority’s 
actual  practice  gained  lot  of  criticism.  In  Mr.  Czwitkovics  opinion,  the  “number  of 
council’s decisions about impartiality of news packages or “composition” of current affairs 
programmes  contradicts  with  basic  standards  and  principles  of  democratic  journalism”; 
and Mr. Fila points out that the council’s decisions often display signs of „arbitrariness”. 

The  other  pressing  issue  concerning  the  day-to-day  journalist  work  is  the  correlation  of 
the journalist’s objective – fully and objectivelly inform citizens and the “ultimate” goal of 
the  media  publishers/owners  –  maximization  of  the  overall  profit.  The  total  absence  of 
least  basic  professional  boundaries  of  the 
legislation  that  would  establish  at 

11 

12 

13 

Vice-chairman of press council. 

Deputy editor-in-chief of one of the major Slovak quality newspaper “sme”. 

Sloboda prejavu a žaloby na ochranu dobrej povesti, Peter Wilfling, Eva Kováčechová, Via Iuris 2011.
 

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journalist/owner  relations  is  criticized  by  Ms.  Zuzana  Krutka  who  stresses  that  there  is 
mutual  negative  attitude  towards  such  ambitions  both  from  the  legislators  (politicians) 
and  the  publishers/owners.  This  is  most  unfortunate  since  according  to  Ms.  Zuzana 
Krutka  the  “economic”  interventions  to  journalistic  work  are  nowadays  more  common 
and certainly more visible than for example open political interventions. The combination 
of the market pressure and absence of the legislative safeguards may in some cases pose 
a serious threat to the standards of professional journalism. However when analysing the 
struggle  of  raising  the  journalism  standards  in  Slovakia  it  has  to  be  taken  into  account 
also  the  relatively  low  capability  of  the  most  recognised  professional  journalism 
organization (The Slovak Syndicate of Journalists14) to achieve its goals. 

All  these  factors  then  lead  to  various  examples  of  poor  journalistic  work  that  can  be 
observed  in  Slovakia.  The  cases  in  the  press  may  vary  from  failures  of  individual 
journalist to maintain the professional standards to unprofessional editorial choices (from 
the relatively harmless such as preferring the light and attractive topics over the serious 
ones to more serious like preferring or dropping the topics about main business partners 
etc.).  In  the  electronic  media  sector  one  may  notice  e.g.  the  widespread  problem  with 
the actual independence of the municipal TVs usually owned/or largely supported by the 
given  municipalities  or  some  very  questionable  policies  of  mixing  editorial  content  with 
advertising  such  as  (major  news  TV  station)  scandal  with  black/white  lists  of  subjects 
that should/should not be displayed in programmes depending on their positive/negative 
business  approach  towards  the  broadcaster  or  case  of  the  series  of  the  programmes 
about specific subject on the grounds of a PR. 

It is however worth to mention that for instance issues from the electronic media sector 
are  very  well  known  to  competent  regulatory  body  (CBR).  Some  of  them  were  even 
officially  submitted  to  CBR  but  they  were  dismissed  due  to  the  lack  of  legislative 
competences.  Even  though  these  cases  were  publicly  known  and  CBR  had  to  dropped 
them  no  change  of  CBR’s  competences  followed.  The  situation  in  press  is  very  similar 
while all above-mentioned „ill practices“ are well known to most of the public. Still there 
is  quite  reserved  approach  of  the  journalists  themselves  towards  self-regulation  that 
certainly possesses (in its present shape or in any other) the ability to eliminate them (at 
least in to some extent). 

- Political advertising and/or broadcasting time 

There  are  no  legal  restrictions  for  political  advertising  in  print  media  and  online  media 
(on-demand  and  linear)  whatsoever.  Legal  provisions  on  political  advertising  concern 
only  “traditional”  (not  online)  TV  broadcasting  and  there  is  no  common  legislation 
(election code) for all kinds of election (national, local, European, presidential etc.). Each 
type  of  election  has  its  own  set  of  rules  for  political  advertising  on  TV.  This  naturally 
creates  a  great  deal  of  legal  uncertainty,  e.g.  during  all  election  campaigns  there  are 
certain  rules  under  which  it  is  possible  to  broadcast  political  advertising  except  regional 
election  campaign  (without  any  proper  reasoning).  For  other  types  of  elections  TV 
campaign is governed basically by the same principles: devote the same amount of time 
for each political party and set time’s price in fair and non-discriminatory manner, mark 
clearly political spots, present information in objective and impartial manner etc.  

It  is  forbidden  to  broadcast  political  advertising  other  than  during  an  election  campaign 
(defined  by  each  election  act).  The  definition  of  political  advertising  is  quite  broad: 
“political  advertising  is  a  public  announcement  devoted  to  popularize  the  name, 
trademark,  slogan  of  a  political  party  or  its  candidate”.  There  is  a  very  recent  case 

14 

http://www.mediahit.sk/. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

where, according to the CBR (and most print media or experts), a clear violation of the 
above-mentioned  ban  on  political  advertising  massively  occurred.  The  CBR  therefore 
imposed  100,000  €  fine  (not  in  effect  yet,  since  broadcasters  appealed  to  court).  Two 
major  commercial  TV  broadcasters  repeatedly  (circa  during  one  month  10-20  times  a 
day)  broadcast  “sponsorship  announcements”  where  candidates  of  a  certain  political 
party  were  presented  (with  on-screen  logo  and  name  of  party).  As  the  official  sponsor 
acted  a  civil  association  with  the  same  name  as  the  relevant  political  party.  This  case 
showed  serious  lacks  in  legislation  (no  immediate  sanctions  that  would  prevent 
broadcasting  of  such  material  at  least  until  a  court  ruling  would  have  been  issued)  and 
questioned the relevance of such legislation (the absolute ban on political advertising on 
TV and radio). 

- Codes of conduct and their organisational framing 

The  Slovak  Syndicate  of  Journalists15  passed  in  2010  (effective  since  2011)  the  Ethical 
code of journalist16, which replaced the previous Code of ethics (1990). According to one 
of  its  creators,  Mr.  Lőrincz,  the  major  advantage  of  this  code  is  “that  much  broader  a 
community  (not  only  people  from  the  syndicate)  participated  in  the  preparation  of  this 
code”. This shows also the fact that not only printed media acceded to this code but also 
other institutions (e.g. the former Slovak radio PSB, the international press institute, the 
society of local TV broadcasters, the news team of a major commercial broadcaster etc.) 
According to its creators, the new code is clearer and more detailed. 

The Press Council supervises the adherence to the Code of ethics (now: “Ethical code of 
journalists”).  Ms  Krutka  states,  “the  approach  towards  ethical  principles  has  changes 
positively  recently,  but  only  when  we  talk  about  quality  press,  quite  a  low  awareness 
about ethical principles is to be witnessed in regional or local media although it depends 
on their concrete owner”. Mr. Lőrincz adds, “The main challenge to improve effectiveness 
of  the  Press  Council’s  functioning  is  to  achieve  higher  publicity  for  Council’s  decisions. 
This  may,  however,  be  accomplished  only  by  better  participation  of  publishers.“  Ms. 
Krutka explains, “even though the Council was co-found by the association of publishers 
and  they  agreed  to  publish  the  Council’s  decisions,  sometimes  media  still  refuse  to 
publish  them.  When  we  ask  them  to  do  so,  they  say  that  due  to  the  independency  of 
their  editor-in-chief  they  cannot  order  him  to  do  anything”.  According  to  its  members, 
the  Council  has  very  limited  powers  to  change  this  situation.  Foreign  experiences  show 
that  sometimes  it  is  necessary  to  obtain  governmental  support  on  this  matter  but  such 
actions could, according to Ms. Krutka and Mr. Lőrincz, “easily jeopardize whole essence 
of Council’s (as a self-regulatory body) activities”. 

The  Interactive  Advertising  Bureau  Slovakia17  (former  Association  of  Internet  Media),  a 
partnership of the largest Slovak companies operating on the Internet and in the related 
advertising sector, passed an ethical code of electronic media (meaning internet media) 
that  focusses  on  defining  ethical  principles  in  marketing  communication  and  determines 
harmful content in electronic media. IAB Slovakia is in consultation process to cooperate 
with the Press Council and the CBR. 

New  technologies  brought  among  the  other  things  also  a  need  for  the  new  professional 
standards for the journalism in the Internet environment. Particularly interesting point is 
the very popular phenomenon of the blogging. According to the authors of the Mediadem 
Report on Slovakia 20% of Slovak journalists claim to have their own blogs but almost no 

15 

16 

17 

http://www.mediahit.sk/. 
http://www.mediahit.sk/?id=139&view_more=4136. 
http://www.aimsr.sk/. 

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journalists use their blogs for actual journalistic work (e.g. to report about topics that for 
various  reasons  were  not  included  in  their  „home“  media).  As  stated  in  the  Mediadem 
Report  on  Slovakia  this  may  be  caused  by  the  fact  that  some  media  see  blogging  as  a 
part of the image of the medium, thus binding journalists to follow internal ethical rules 
for  blogging  as  well  as  for  their  expression  on  social  networks  e.g.  Special  Code  for 
journalists  of  the  daily  newspaper  Sme  who  use  social  networks18  or  the  IX  section  of 
Ethical Code of Sme19 which deals also with blogging. 

Mr Fila confirms these reflections and states that in the beginning of the blogging there 
was  a  strong  discussion  about  what  kind  and  to  what  extent  can  journalist  reveal 
information (that were unfit to be published e.g. due to low level of credibility or failing 
other standards) on his own blog without jeopardizing the credit of his employer. There 
were some borderline cases after which it was decided to establish the code of conduct in 
this respect. Mr. Fila however considers these rules as natural since “if a Sme journalist 
published  a  text  on  its  Sme  blog  (note  -  Sme  is  also  the  site  of  one  of  the  oldest  and 
largest  blogs)  it  would  be  virtually  impossible  to  persuade  anybody  that  the  daily 
newspaper Sme had nothing to do with it”. Mr. Fila also stressed that if the existing code 
(“Sme journalist has to remember the basic values of Sme even when blogging”) was to 
perceive  as  excessively  “freedom-limiting”  than  this  would  have  to  analogically  apply  to 
any other codes of conduct dealing with journalistic work. “In the end when the blogging 
became  less  hip  and  the  facebook  overtook  the  scene  the  blogging  issue  became  much 
less  important.  The  biggest  challenge  now  is  to  draw  the  line  between  “public”  and 
“private” in the facebook enviroment.” adds Mr. Filla. 

  Distribution Aspects 

- Access to frequencies 

issues 

frequency  spectrum  and 

The  Telecom  office  administers  the 
individual 
authorizations  to  use  frequencies.  The  Telecom  office  is  preparing  a  tender  competition 
for the allocation of frequencies from the frequency bands 800 MHz, 1800 MHz and 2.6 
GHz. The authority is preparing an invitation to tender for available frequencies for new 
generation  networks  in  accordance  with  promoting  the  availability  of  broadband  access 
networks  and  high-speed  access  services,  as  approved  in  government  resolution  no. 
136/2011 – Slovak republic National Broadband Strategy. According to this governmental 
resolution, the mid-term goal is to free-up frequency spectrum in the range of 790–862 
MHz  for  the  development  of  broadband  services  which  means  ensuring  access  to 
broadband connection for all with a minimum speed at 1 Mbit/s until 2013. The long-term 
goal is to ensure access to high-speed broadband connection (30 Mbit/s and more) until 
2020.  The  Slovak  republic  is  already  in  the  final  stage  of  digitalization  and  most  of  the 
analogue frequencies were already switched off (legislative deadline for analogue switch-
off  is  31.1.2012).  Frequencies  needed  for  national  multiplexes  (commercial  and  public 
service)  were  awarded  in  tender  procedures  for  which  the  law  set  criteria,  but  the 
individual  assessment  of  the  tender  bids  was  the  responsibility  of  the  regulatory 
authority.  However,  the  tender  procedure  for  the  operator  of  the  first  and  second 
commercial  and  the  public  service  multiplex  (first  tender  procedure)  gain  massive 
criticism  in  media.  The  court  of  first  instance  issued  an  injunction  to  stop  the  tender 
procedure based on a request by a tender contestant with reasoning that there would be 
a serious threat to irreparable damage, although any unsuccessful contestant could have 
filed  appeal  (with  suspension  effect).  After  parliament  recalled  the  chairman  (most 
probably  motivated  by  his  strong  critic  of  the  court’s  order)  of  the  Telecom  office,  the 

18 

19 

http://www.sme.sk/c/5711878/pravidla-pre-pouzivanie-socialnych-sieti-redaktormi-sme.html. 
http://www.sme.sk/c/3498627/eticky-kodex-dennika-sme.html#ixzz12YEaa4sz. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

new management cancelled the respective tender procedure and announced a new one. 
The  company  which  had  won  the  first  tender  procedure  lateron  succeeded  in  follow  up 
tenders  and  now  is  the  single  terrestrial  multiplex  operator  (on  national  level)  in  the 
Slovak republic. This final outcome is described by Mr. Czwitkovics as a “massive failure 
of the Telecom office”. 

On  the  other  hand,  the  present  operator  of  the  terrestrial  multiplex  originally  (through 
numerous  commercial  deals)  developed  from  the  former  state-owned  company  for 
governing  and  operating  TV  and  radio  transmitters.  It  is,  therefore,  probable  that  it 
possessed  the  greatest  know-how  and  the  technical  resources  for  such  a  mission,  and 
that  hardly  any  other  company  would  have  been  able  to  provide  services  of  the  same 
quality at a lower price. 

The CBR still executes tender procedures two times a year for free frequencies used for 
analogue  radio  broadcasting  (which  still  play  a  major  role  in  the  Slovak  republic’s  radio 
sector). 

- Must-carry/must-offer rules for electronic media 

According  to  the  Act  on  Broadcasting  and  retransmission  [Sec.  17  letter  a)  and  b)],  a 
provider of a cable retransmission offer must include in his basic (cheapest) package the 
PSB  and  the  commercial  free-to-air  TV  and  radio  stations  which  can  be  received  with 
ordinary  receiving  equipment  in  the  area  of  his  coverage.  This  excludes  encrypted 
channels,  channels  which  can  be  received  only  by  special  (not  common  TV  or  radio) 
receivers  and  any  digital  TV  channel  besides  the  digital  public  service  channels  (but 
excluding  the  single-genre  digital  public  service  channel).  A  provider  of  a  cable 
retransmission offer also must (with the consent of the respective broadcaster) include in 
his basic package a digital local TV channel that is obligatory (transmitted free-to-air and 
not  containing  advertising,  unless  consent  from  the  multiplex  operator  is  obtained) 
transmitted in a local terrestrial multiplex. 

The  CBR  may  (upon  request)  in  a  transparent  and  proportionate  manner  decide  that 
these obligations do not apply if a given network is not the main medium to receive TV or 
radio channels for a considerable part of users. The CBR can decide about exceptions if a 
must-carry/must-offer  obligation  is  not  necessary  to  ensure  the  public’s  access  to 
information  by  particular  programmes  in  the  public  interest,  major  events  and  short 
extracts  as  well  as  public  service  broadcasting.  The  CBR  will  decide  in  the 
abovementioned manner in particular if the number of all users of the respective network 
is neglectable compared to the number of households using other means of reception in 
this  area,  or  if  executing  this  obligation  extends  retransmission  in  such  a  way  that  it  is 
disproportionate to its capacity.  

It  is  clear  that  conditions  that  enable  the  CBR  to  issue  an  exception  are  defined 
somewhat inadequately. There are no guidelines in this respect. Nevertheless, there are 
no  major  difficulties  in  the  actual  execution  of  these  obligations  (1-2  complaints  or 
requests a year). There is, however, an interesting ruling of the Supreme Court20 which 
cancelled  a  decision  whereby  the  CBR  refused  the  request  by  a  cable  operator  for 
exception  from  must-carry/must-offer  rules  for  radios  even  though  this  request  was 
backed-up  by  a  survey  showing  that  only  8.75  %  of  users  used  this  network  for  the 
reception of TV and radio channels. The Supreme Court argued that the CBR’s reasoning 
that 91.25 % of the population is not a considerable part of the population is inadequate, 

20 

http://www.supcourt.gov.sk/data/att/9575_subor.pdf. 

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and returned the case back to the CBR. In its new decision the CBR granted the operator 
the requested exception from must-carry/must-offer rules.  

- Role of platform operators 

The CBR issues digital licenses for TV broadcasting (including DVB-T), and there is a legal 
claim  for  this  license.  The  CBR,  however,  does  not  have  any  say  on  whether  a  license 
holder  will  be  transmitted  in  a  terrestrial  multiplex.  This  decision  is  solely  up  to  the 
multiplex  operator.  All  of  the  major  commercial  broadcasters  are  transmitted  via  the 
national multiplex, except for one news TV station (allegedly for business reasons). The 
operator of the terrestrial multiplex has a legal obligation to secure for broadcasters non­
discriminatory  conditions  on  distributing  the  signal,  in  particular  as  regards  costs/tariffs 
and the underlying technical conditions. 

  Access to Information 

- Transparency of media ownership situations 

The  CBR  keeps  electronic  media  owners’  records  (linear  and  non-linear)  and  publishes 
basic data on its website. All information about media owners of which the CBR disposes 
is  available  on  request.  The Ministry  of  Culture  publishes  a  list  of  press  owners and  the 
Telecom  office  stores  information  about  frequencies’  holders.  There  is  no  official  public 
register. 

- Accountability of public service media 

The  Director-general  of  PSB  bears  responsibility  for  fulfilling  its  remit.  The  PSB  Council 
monitors the director-general’s fulfilment of his responsibilities and is entitled to deliver a 
declaration  about  PSB  failing  to  fulfill  its  remit.  Two  such  declarations  issued  in  six 
months may constitute a reason for parliament to recall the director-general (if he fails to 
make proper adjustments). 

- Freedom of information laws 

The  Freedom  to  access  information,  as  expressed  in  the  Constitution,  is  further 
elaborated in the Act No. 211/2000 Coll. on the Freedom of Information. The Act sets out 
broad rules on disclosure of information held by any organization financed by or handling 
public  funds  (in  the  Act  later  referred  as  “Obligee”).  There  are  limitations  on  disclosing 
information that is classified, represents a trade secret, where the disclosure would mean 
a violation of privacy, or where the information was obtained “from a person not required 
by  law  to  provide  information,  who  -  upon  notification  of  the  Obligee  -  instructed  the 
Obligee  in  writing  not  to  disclose  information”,  or  that  “concerns  the  decision-making 
power of the courts and law enforcement bodies”. Appeals are made to higher agencies 
and can be reviewed by a court. 

Probably the most significant change of the Act on freedom of information is the recent 
amendment  (effective  since  2011)  that  lay  down  a  new  obligation  for  the  Obligee  to 
disclose  (on  the  Internet)  contracts  dealing  with  public  funds  (with  few  exceptions), 
whereas  these  contracts  do  not  come  in  effect  prior  to  their  disclosure.  After  a  few 
months,  a  thousand-euro  threshold  was  introduced  in  order  to  remove  needless  and 
excessive  bureaucracy.  This  limit  was  however  removed  by  another  amendment 
(effective since 1 January 2012) along with some other  adjustments of the system that 
arouse  from  public  consultations  during  the  first  year  of  its  existence.  Transparency 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

International Slovakia (TIS) recently published a study21, which shows high usage of the 
new  institute  (disclosure  of  contracts)  and  gives  to  this  instrument  an  overall  positive 
rating.  TIS,  however,  reminds  that  the  sole  purpose  of  this  institute  is  to  serve  people 
and  encourages  government  to  create  simple  and  effective  mechanisms  for  contract 
checks. Another important step to strengthen the freedom to access information is a new 
obligation  (effective  since  2012)  to  disclose  on  the  Internet  all  (general  and 
constitutional) court’s rulings. 

According  to  Mr.  Fila,  “The  Legislation  is  satisfactory.  The  actual  problem  is  the 
willingness of the authorities to “act”. If an authority refuses to provide information, it is 
virtually impossible to get it because to obtain a court order takes too long, and when the 
court finally delivers a decision, the information is out of date - which usually means it’s 
useless.“ 

  “Have a Say on ...” 

It is virtually impossible for citizens in Slovak republic to ex ante „have a say“ on media 
output.  There  is  no  legal  or  other  instruments  for  such  actions  neither  in  case  of  the 
commercial  nor  the  PSB  broadcaster.  Ex  post  citizen’s  influence  on  media  output  is 
limited  only  to  complaints  about  illegal  content  in  case  of  audiovisual  media  services  or 
unethical content or practices in case of print and on-line services. 

2.2.23.2.  Main Players in the Media Landscape 

2.2.23.2.1. 

Radio 

On  the  one  hand,  the  radio  sector  has  remained  quite  stable  for  many  years  now.  The 
PSB maintains high levels of audience share. Taking all its services together it is still the 
market leader. The commercial broadcaster D.Express, JSC (owned by American holding) 
stabilized  its  position  as  commercial  market  leader.  Other  private  radios  with  highest 
audience share (see table) are owned by Slovak subjects. 

Table 132 SK: Main radio companies 

License holder 

Owner 

Station(s) 

Audience share in 
2011 

PSB 

D.EXPRES, JSC 

Emmis 
International  
Holding, B.V. 

Radio Slovensko 
Radio Regina 
Radio_FM 
Radio Patria 
Radio Devin 
Radio Expres 

16.6 % 
6.7 % 
1.7 % 
0.7 % 
0.7 % 
19.4 % 

Radio, JSC 

Patriol, Ltd. 

FUN Radio 

13.2 % 

Tam Art Productions, Ltd.  Harad, JSC 
Source: MEDIAN SK, MML - TGI 

Jemne melodie 

8.4 % 

21 

http://blog.etrend.sk/transparencyblog/files/2012/02/FOCUS_Sprava-pre­
TIS_jan2012_zmluvy_infozakon.pdf. 

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2.2.23.2.2 

Television 

The  TV  sector,  on  the  other  hand,  was  subject  to  much  more  changes.  In  2007  two 
Slovak  owners  exchanged  their  TV  Stations.  J&T  now  owns  “TV  JOJ”  (No.  2  commercial 
TV  broadcaster  in  Slovakia)  and  Grafobal  owns  “TA3”  (only  national  news  TV).  In  2008 
the  commercial  broadcaster  “TV  JOJ”  introduced  its  sister  channel  “Plus”,  followed  by 
“DOMA”  in  2009  –  a  sister  channel  of  the  commercial  sector  leader  “TV  Markiza”  (from 
2005  part  of  CME  enterprises).  The  last  few  years  are  characterised  by  a  “battle”  for 
market leadership where TV JOJ - “constant” No. 2 - started to seriously threaten No. 1 
“TV Markiza”. The PSB in this sector has experienced for some years a continuous decline 
reaching  in  2011  all-time  lows.  There  is  still  a  quite  considerable  influence  of  Czech  TV 
stations which together in 2011 reached 9,3 % market share.   

Table 133 SK: Main television companies 

License holder 

Owner 

Station(s) 

Market share in 2011 

MARKIZA-SLOVAKIA, Ltd.  Media Invest Ltd.  TV Markiza 

29.3 % 

MAC TV, Ltd. 

PSB 

C.E.N., Ltd. 

Slovenska 
produkcna JSC 

GRAFOBAL 
GROUP 

Doma 

TV Joj 

Plus 

Jednotka 

Dvojka 

TA3 

4.5 % 

19.8 % 

4.5 % 

8.1 % 

2.4 % 

2.0 % 

Source: PMT / TNS. Market shares are in target group 12 + 

2.2.23.2.3. 

Press and publishing  

Two  major  changes  occurred  on  th  press  market  since  2004:  in  2006,  the  publisher  of 
the  best  selling  weekly  “Plus  7  dní”  launched  new  a  daily  “Plus  jeden  deň”  as  a  direct 
competitor  of  the  best  selling  newspaper  in  the  Slovak  republic,  the  tabloid  “Novy  cas” 
(Swiss group ringier axel springer). Also in 2006, the Slovak owner of the quality press 
title  “Pravda”  sold  this  daily  to  the  British  group  The  Northcliffe  International  Ltd.  The 
quality  daily  press  is  now  divided  between  the  British  group  and  the  German  group 
Rheinisch-Bergische  Verlagsgesellschaft  mbH  (sme).  On  the  market  for  weeklies,  and 
besides “Plus 7 dní”, important players are the economic affairs magazie “Trend” and the 
conservative magazine “.tyzden”.  Newspaper sales are since 1999 certified and audited. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 134 SK: Main publishers, their titles and sold copies 

Publisher 

Owner 

Title 

Avg. monthly sales in 
2011 

Ringier Slovakia JSC 

Spoločnosť 7 Plus, 
Ltd. 

Perex, JSC 

Petit Press, JSC 

Spoločnosť 7 Plus, 
Ltd. 

TREND Holding, Ltd. 

W Press JSC 

Source: ABC SR 

Ringier axel springer 
Media AG 

Daily 

Novy cas 

136 083 

Karol Bustin 

Plus jeden den 

53 967 

The Northcliffe 
International Ltd. 
Rheinisch-Bergische 
Verlagsgesellschaft 
mbH 

Pravda 

Sme 

Weekly 

53 332 

52 600 

Karol Bustin 

Plus 7 dní 

147 291 

Brunovsky Oliver 
Hrusovsky Lubomir 
Klimesova Elena 
Roman Kvasnica 
Rudolf Zajac 
Stefan Meszlenyi 

trend 

14 503 

.tyzden 

13 990 

2.2.23.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The  market  for  non-linear  audiovisual  media  services  is  greatly  underdeveloped  in  the 
Slovak  republic.  The  only  service  that  even  got  into  2011  charts  with  figures  is  on-
demand  portal  “huste.sk”  with  211,639  users  a  month  compared  to  the  “biggest”  web 
portal  “Azet.sk”  with  1,786,189  users/month.  The  most  popular  on-line  services  in  the 
Slovak republic are web portals such as “Azet.sk” or the second-ranking “Zoznam.sk”. In 
the top ten one can, however, find 7 news websites among which the leader is “sme.sk” 
(“sme”) with 1,534,599 users per month, and “Pravda.sk” (“Pravda”) with 885,190 users 
on a monthly basis. Both commercial broadcasters run their websites. “Markiza” is doing 
fine taking into account both of its websites “markiza.sk” (732,300 users per month) and 
the  news  website  “tvnoviny.sk”  (549,936  users).  The  website  of  „Joj”  is  doing  slightly 
less well, “joj.sk” has 451,604 users/month22. 

2.2.23.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

There has been tremendous increase in usage of satellite operators in the Slovak republic 
in recent years.23 This “revolution” completely rearranged the positions on the market(s) 
for TV network operators. The former and for a long time uncontested market leader UPC 
Broadband Slovakia was put aside as well as the whole cable segment in the distribution 
markets. It is though rather difficult to determine exactly the positions on the markets in 
the  Slovak republic  since  there  are  no  official  numbers. Even unofficial  data  is  available 
only irregularly and only for fragments of the market(s). However, it is probably safe to 
say  that  satellite  operator  “Skylink”  is  the  operator  with  most  users  (roughly  500,000 
users).  The  leading  cable  operator  UPC  had,  in  the  end  of  2010,  261,000  users.  The 
satellite  operator  –  with  an  aggressive  marketing  policy  –  took  over  the  market  mostly 
with its basic “free” packages where customers make a one-time payment for a decoding 

22 

23 

Source: AIMmonitor – AIM – Mediaresearch & Gemius. 
According  to  the  findings  of  the  Telecom  Office  in  June  2011,  52%  of  the  households  in  the  Slovak 
Republic use satellite operators. 
Htp://www.teleoff.gov.sk/index.php?ID=5501.  

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card  only.  Traditional  and  new  cable  operators  usually  try  to  sell  cable  TV  as  part  of 
“triple-play” deals along with phone and Internet. High-speed Internet access via optical 
cables is certainly the most popular Internet deal nowadays, although the availability of 
such connections is still not secured on national level and it is specifically quite limited in 
areas with less dense population. 

2.2.23.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Table 135 SK: Advertising market shares 

Media 

Gross 2010 in € 

TV 

Print 

Radio 

Outdoor 

Cinema 

Total 

464 489 898 

189 327 027 

85 049 843 

80 745 173 

3 083 535 

822 695 476 

% 

54 

23 

10 

10 

3 

100 

Source: http://www.abcreklama.sk/prieskumy_detail.php?id=133 

2.2.23.3.  Conclusion and Recommendations 

As  indicated  in  previous  sections  it  certainly  seems  that  the  most  serious  obstacles  to 
free  journalism  in  the  Slovak  republic  can  be  traced  back  to  the  practice  of  state 
authorities, more particular of the general courts. Especially with print media, the courts 
not  only  exceptionally  show  a  somewhat  “cold”  approach  to  freedom  of  the  media  and 
freedom  of  expression  in  general.  This  most  likely  might  be  to  some  greater  or  lesser 
degree  the  case  in  many  “transition”  countries.  A  tradition  of  perceiving  the  press  and 
electronic mass media as fourth estate and public watchdog is (naturally) still missing in 
these countries and even in present days we can often experience degradation of the role 
of Slovak mass media (usually from politics). Some of the courts’ rulings certainly show 
substantial  difference  between  assessment  of  generally  acknowledged  principles  by 
the 
European  standards  and  by  Slovak  standards.  Most  problematic  seems 
proportionality  in  the  balance  between  freedom  of  expression  on  the  one  hand  and  the 
right to protection of reputation on the other hand. 

For example courts’ rulings considered that an article in the weekly news magazine “Plus 
7  dní”  (which  criticized  the  tendency  in  Slovak  judiciary  to  grant  “outrageous”  sums  in 
civil actions regarding protection of reputation brought to court by judges of other courts) 
violated  a  judge’s  fundamental  right  to  maintain  good  reputation.  This  violation  was, 
according  to  the  court’s  reasoning,  caused  by  incorrect  facts  in  the  article  such  as  by 
using the term “granted by court”, even though rulings were not in effect at that time, by 
stating  that  a  judge  was  awarded  165,969  €  in  damages,  although  in  reality  he  got 
199,163 €, by stating that the judge in question was removed from his post as chairman 
of the court because he could not explain sources of his wealth, where in reality he had 
questioned  the  legality  of  this  claim  (independence  of  judiciary),  and  the  court  also 
marked  as  incorrect  “fact”  a  form  of  speculation  in  the  article  (without  mentioning  the 
respective  judge)  which  described  the  related  actions  (judges  “earning”  money  from 
other  judges’  decisions)  might  be  part  of  a  “comfortable”  corruption  “scenario”  among 
judges. The court came to this conclusion despite the fact that this article was part of a 
public discussion about a large number of cases where public officials were awarded e.g. 
ten times higher financial compensation than in cases of life loss, serious injuries etc. In 

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some cases, courts even use the fact that the claimant is a public official and therefore 
well-known  as  a  basis  to  increase  the  amount  of  financial  compensation  awarded.  The 
Constitutional Court eventually dismissed this decision by his already mentioned “ground 
breaking”  ruling  whereby  it  made  extremely  valuable  statements  such  as  –  that  one 
cannot  demand  (the  same  level  of)  legal  „exactness“  of  a  law  journal  from  a  general 
magazine, that decisions which refuse to protect speculative and to some level incorrect 
statements under freedom of expression would have “chilling-effects” on the journalistic 
society, that – when interpreting value judgment (speculation about corruption scenario) 
made  in  the  public  interest  which  may  have  different  meanings  –  one  must  choose  the 
interpretation  that  favors  freedom  of  expression,  because  any  other  approach  could  be 
easily abused. 

But  even  with  a  precedent  like  this,  the  day-to-day  work  of  journalists  is  constantly 
threatened by the inconsistency of courts decisional practice (in particular by lower ones) 
in questions of freedom of expression. Just recently two different courts of first instance 
delivered  decisions  in  a  case,  which  could  be  possibly  referred  to  as  most  important 
public case since velvet revolution. “Gorilla” is the name for a set of transcripts disclosed 
(anonymously) on the Internet from wiretap operation of the Slovak intelligence service. 
These  transcripts  describe  in  extraordinary  straightforward  manner  “connection”  among 
executive  functionaries,  minister  and  leading  partner  of  a  major  financial  group.  What 
was  initially  regarded  as  presenting  a  mere  bluff  achieved  through  various  means  a 
considerable  level  of  credibility.  A  court  of  first  instance  issued  an  injunction  (recently 
dismissed  by  court  of  second  instance)  to  prevent  the  publishing  of  a  not-yet-existing 
book (by a journalist who is the “father” of this case) because of the possible damage to 
one  of  the  leading  figures’  reputation.  Within  just  three  days  from  the  adoption  of  this 
decision  by  the  first  court,  another  court  of first  instance  refused  to grant  an  injunction 
on  the  basis  of  the  same  kind  of  request  from  another  main  figure  in  this  case  (both 
“private” figures). 

A  kind  of  “strange”  approach  to  the  protection  of  the  freedom  of  expression  sometimes 
also  transpires  from  the  actions  taken  by  public  authorities,  for  instance  when  the 
national security authority imposed a maximum financial sanction on a journalist and her 
editor-in-chief  for  having  published  classified  information  in  an  article.  However,  this 
information  was  revealed  in  the  public  interest,  more  specifically  in  order  to  draw 
attention  to  the  fact  that  there  was  a  leak  in  the  competent  authority.  Although  the 
Supreme  Court  dismissed24  these  decisions  (they  were  first  confirmed  by  regional  court 
though), its reasoning was limited to the imposition of the maximum level of the penalty 
available  without  touching  on  the  core  issue  whether  the  public  interest  in  the  given 
circumstances could have prevailed over the state interest to keep information protected.  

Such cases seem to indicate that the combination of the absence of explicit constitutional 
safeguards  for  journalists  as  a  “privileged”  group  together  with  the  socio-economical 
heritage  of  a  transition  country  may  pose  serious  threats  to  the  freedom  of  media.  The 
question  whether  journalists  are  or  are  not  to  be  regarded  as  a  “privileged”  group  was 
openly put on the table in another case of wiretap. The military intelligence service (MIS) 
upon instruction of the minister of defense tapped three journalists. All wiretappings were 
legal (based on a court order) and implemented in an effort to investigate serious crimes. 
The  respective  journalists, nevertheless,  wrote  about  the  MIS  and  alleged  that  the  very 
reason  why  they  were  tapped  was  their  journalistic  activities.  By  monitoring  these 
journalists  and  discovering  their  sources  MIS  wanted  to  reveal  criminals  inside  its  own 
structure. Revealing of this case led to massive protests of all media and eventually the 
responsible  minister  was  recalled.  The  Prime  minister  delivered  in  this  respect  a 

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controversial  quote:  “The  wiretap  of  a  journalist  in  a  democracy  is  unacceptable 
regardless of whether this is legal or not”. – Certainly a charming, but from a legal point 
of view a clearly incorrect statement. Yet, it shows again the complexity of the question - 
“special” rights for journalists as well as inconsistency and confusion of public authorities 
in this field. 

It is hard to imagine, though, that after twenty years of democracy one would succeed in 
introducing  constitutional  guarantees  like  these  that  usually  evolved  in  much  longer 
process  and  in  a  different  historical  era.  It  would  seem  that  media  are  „doomed“  to 
continuous  struggle  to  convince  general  public  to  place  constant  pressure  on  state  
authorities  to  improve  their  approach  towards  principles  such  as  freedom  of  the 
media/freedom of expression.  

On  the other hand, based on the gathered facts, it is clear that there is plenty of room 
for various actions that could ease day-to-day work of journalists in the Slovak Republic. 
First  it  is  necessary  to  define  who  needs  and  deserves  the  increased  level  of  protection 
by introducing a definition of the notion of “journalist” into the Slovak legal system.  

It  is  also  crucial  to  implement  basic  principles  founded  by  the  ECHR  and  the  adjacent 
jurisprudence  of  the  ECtHR  (e.g.  public  figures  must  tolerate  a  higher  level  of  criticism, 
value  judgments  enjoy  a  high  level  of  protection,  provocative  statements  as  well  as 
exaggeration are protected, media have a right to “excusable error”, a statement related 
to  an  issue  of  public  interest  which  is  open  to  ambiguous  interpretation  should  be 
interpreted in favour of the freedom of expression) with regard to freedom of expression 
and  freedom  of  the  media  into  the  Slovak  legal  system  in  written  form  (e.g.  through 
media  acts).  It  seems  that  decisions  of  the  ECtHR  or  of  the  Constitutional  Court  of  the 
Slovak  Republic  are  not  “binding”  enough  for  lower  courts  which  can  eventually  lead  to 
absurd and unacceptable results such as ignoring the fact that a public figure must bear 
fiercer  criticism,  and  even  using  this  function  as  a  justification  for  rewarding  “public 
figures” higher financial compensation in defamation lawsuits.  

The  introduction  of  clear,  transparent  and  obligatory  rules  for  the  courts  when 
determining  the  actual  amount  of  the  financial  compensation  (e.g.  it  should  be 
proportionate  to  the  seriousness  of  the  offence,  the  fact  whether  there  was  “actual 
malice“ involved or only negligence, the actual sum should not be disproportionate to a 
defendant´s income, thus it may not be “ruinous” for the media, compensation awarded 
to  victims  of  violence  or  for  bodily  injuries  must  be  taken  into  account)  in  cases  of  the 
protection  of  personality  would  be  most  welcomed  by  the  publishers  and  journalists  in 
the Slovak Republic. 

A system of continuous education and training through courses, lectures or publications 
for  the  public  authorities  (including  judges)  should  be  created  and  maintained  by  the 
government itself.   

Any of these changes will, however, hardly be achieved without constant attempts by the 
media  themselves  to  perfect  their  practices  (e.g.  through  a  higher  involvement  in  self-
regulatory  bodies)  and  persistent  efforts  to  increase  and  maintain  a  high  level  of 
credibility. 

24 

http://www.supcourt.gov.sk/data/att/18591_subor.pdf. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

SLOVENIA 


2.2.24.	  Slovenia 

2.2.24.1.  Human  	Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.24.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

Article  39  of  the  Constitution  of  the  Republic  of  Slovenia1  stipulates  a  basic  freedom  of 
expression of thought, freedom of speech and public appearance, of the press and other 
forms of public communication and expression shall be guaranteed. Everyone may freely 
collect, receive and disseminate information and opinions. 

  Freedom to receive and to access information 

- Specific rights for the citizens 

In Article 40 (“Right to Correction and Reply”) the Constitution provides for the right to 
correct  published  information  which  has  damaged  a  right  of  interest  of  an  individual, 
organisation or body, as shall be the right to reply to such published information. 

  Safeguards on regulatory authorities 

The fundamental law contains no provisions in regard of regulatory authorities. 

  Safeguards on “universal service” 

In the Constitution there are no regulations regarding safeguards on universal service.  

2.2.24.1.2. 

Media order (de lege lata and de facto) 

Entrance  to  media  market  is  getting  more  open,  but  there  are  still  many  obstacles  for 
such  a  small  market.  However,  there  were  some  suggestions  for  the  provisions  in  new 
(future) media law regarding the implementation of a self-regulatory process in media.  

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

A  licence  for  performing  radio  and  TV  activities  shall  be  issues  by  the  Agency  to  a 
broadcaster or for a TV programme on the basis of the procedure set by the Mass Media 
Act  (2006)2.  The  requirements  for  media  production  (programme)  are  stipulated  in  the 
law and there is no possibility to decide the quantities in relation to the market situation. 

The  public  service  of  producing  and  disseminating  radio  and  TV  programme  services  in 
the  public  and  cultural  interest  of  the  Republic  of  Slovenia  shall  be  carried  out  by  the 

1 

2 

Constitution  of  the  Republic  of  Slovenia,  available  at:  http://www.us-rs.si/en/about-the-court/legal­
basis/constitution/. 
http://www.rtvslo.si/files/razno/mass_media_act.pdf. 

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public  institution  Radiotelevizija  Slovenija.  Specific  provisions  about  the  quantity  of  own 
production and the media genres are put in the corporation act of RTV Slovenija. 

The public service remit applies only to public service media, which can lead to more free 
programme scheduling for commercial broadcasters who are offering a small amount of 
own production programming. 

According  to  the  provision  of  Radio  and  Television  Corporation  of  Slovenia  Act  (ZRTVS­
1)3,  the  universal  service  is  applied  to  the  Radio  Television  Slovenia,  the  public  service 
broadcaster  which  has  to  provide  universal  services  to  all  citizens  and  provide  the 
programme for majority and minorities. 

There are no requirements for print media what enables a big number of media actors to 
establish media companies. 

- Media pluralism/ownership; competition law aspects 

There  are  anti-concentration  rules  which  are  controlled  by  UVK  (Competition  Protection 
Office)  and  the  Ministry  of  Culture,  however  there  are  possibilities  to  overcome  these 
limitations  (with  networks  for  example).  Under  section  9  of  the  Mass  Media  Act 
restrictions of ownership are formulated, in order to ensure and promote media plurality 
and  diversity.  Furthermore,  provisions  are  foreseen  for  the  restriction  of  concentration 
and protection of competition. 

- Legal framework for psm; ability to fulfill their tasks 

The Radio and Television Corporation Act is the basic legal framework for public service 
broadcasters as it imposes the public service remit and other requirements. 

RTV  Slovenija,  with  great  part  financed  by  licence  fees,  is  second  partner  on  the 
advertising market. However, it has more limitations in the field of advertising, but is not 
dependent  only  on  advertising  revenue  which  forms  an  advantage  in  comparison  to 
commercial broadcasters. 

Public service media is accountable to citizens through its funding via licence fees which 
is mandatory for each household in Slovenia. The subscription fee is 11 euros/month per 
household and it is worth being mentioned that there have been difficulties in collecting 
the fee. 

- The role and functioning of regulatory authorities in these respects 

The  Competition  Protection  Office  and  the  Ministry  of  Culture  are  giving  the  consent  in 
the anti-monopoly procedure. 

APEK  (the  Agency  for  Post  and  Electronic  Communications)  is  the  responsible  body  for 
broadcasting  and  telecommunications.  The  Agency  has  powers  to  manage  the 
telecommunication  and  broadcasting  spectrum,  regulate  the  postal  market,  settle 
disputes among operators on prices, infrastructure etc., set the prices of some services, 
decide on concentration in certain cases, collect the fees from operators, make available 
the  accreditation  scheme  for  electronic  signatures.  It  has  to  regulate  the  electronic 
communications and postal market in order to ensure competitiveness. 

3 

http://www.arhiv.mk.gov.si/fileadmin/mk.gov.si/pageuploads/min_eng/legislation/
 
ZRTVS_1..pdf. 


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Policy Department C: Citizens' Rights and Constitutional Affairs 

The Broadcasting Council is an independent expert body that provides support to APEK in 
supervising  broadcasters'  compliance  with  obligations  contained  in  their  licenses; 
members  being  appointed  by  the National  Assembly.  It  shall  assess  the  situation  in  the 
area of radio and television stations. 

The  Inspectorate  for  Culture  and  Media  has  joined,  beginning  of  2012,  the  Ministry  of 
Education,  Science,  Culture  and  Sport.  The  Inspectorate  is  a  body  that  oversees  the 
implementation  of  legislation  and  other  regulations  and  general  acts  relating  to  culture 
and media. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

Journalists (and editorial personnel) are independent in their work within the framework 
of  the  programme  concept  and  in  accordance  with  the  publisher's/  broadcaster's  basic 
legal act. 

The  Mass  Media  Act  contains  in  section  6  detailed  provisions  on  the  right  to  correction 
and reply. This has had a negative impact on press freedom as it could be often misused. 

- Specific positive content obligations 

Under the provisions of the Mass Media Act (Art. 4) there are special provisions about the 
quantity  of  educational,  informative  and  cultural  programme  as  well  as  the  programme 
for  minorities  and  proportion  of  European  and  Slovenian  audiovisual  works  and 
proportion  of  works  by  independent  producers.  There  are  special  requirements  of  RTV 
regarding the proportion of specific programmes. 

- Funding schemes for specifically desired content 

All media, except RTV Slovenija, are entitled to apply for the funds for content which is in 
the  public  interest.  In  the  past,  there  were  some  non-commercial  regional  media  that 
received  in  total  up  to  3  percent  of  the  subscription  fee  of  RTV  Slovenija.  There  is  no 
detailed  indication  on  the  kind  of  programmes  to  be  produced  from  these  moneys,  but 
specifically  desired  content  is  described  here  as  the  kind  of  support  offered  for 
informative,  cultural  and  educational  programmes  and  the  programmes  that  support 
plurality. 

- Political advertising and/or broadcasting time 

There are no strict requirements for political advertising in commercial media, however. 
there  are  very  strict  requirements  for  equal  programme  time  for  the  public  service 
broadcaster.  Strict  requirements  meaning  the  proportion  of  the  time  (programme) 
devoted  to  the  political  parties  in  the  parliament  and  the  equal  opportunities  for  all 
political candidates. 

- Codes of conduct and their organisational framing 

In particular cases, there are in the media some codes of conduct, as parts of the ethical 
code of journalist. However, it is only the decision of the media players whether they are 
willing to adopt such codes of conduct, no legally-binding obligation being in place. There 
exist  also  professional  codes  of  conduct 
for  different  professions  (journalists, 
advertisers),  as  part  of  activity  regulation  of  those  associations,  e.g.  by  the  Slovene 

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Association  of  Journalists,  the  Ethic  Commissions  of  Journalists,  the  Association  of 
Journalists  and  Publicists,  the  Association  of  Catholic  Journalists,  the  Association  of 
Sports Journalists. 

- The role and functioning of regulatory authorities in these respects 

There  is  an  independent  body  in  the  Ministry  of  Culture  composed  of  experts  for 
evaluating the media content for the Media Fund which is financing the programmes that 
are in the public interest. 

  Distribution Aspects 

- Access to frequencies 

APEK shall conduct the public tender procedure and make the selection on the basis of a 
grounded proposal by the Broadcasting Council and in accordance with the act regulating 
electronic communications. 

- Access to distribution networks and control of actual conditions 

Also in the case of the access to distribution networks, the selection is following a tender 
procedure. 

- Must-carry/must-offer rules for electronic media 

There  are  no  legal  provision  or  special  requirements  regarding  must-carry/must  offer 
obligations for electronic media. 

- Role of platform operators 

In Slovenia, there is at the moment one multiplex operational, however in a trial phase, 
distributing  one  programme  of  the  public  service  broadcaster  and  one  programme  of  a 
commercial broadcaster. 

- The role and functioning of regulatory authorities in these respects 

APEK 
telecommunications.  

is 

regulating,  as  aforementioned, 

the 

sector  of  broadcasting  and 

  Access to Information 

- Transparency of media ownership situations 

According  to  Art.  64  of  the  Mass  Media  Act,  by  the  end  of  February  of  each  year  a 
publisher/broadcaster must publish the following information in the Official Gazette of the 
Republic  of  Slovenia:  the  full  name  and  address  of  permanent  residence  of  any  natural 
person and/or the business name and head office address of any legal entity that in the 
publisher’s/broadcaster’s assets holds a stake of five percent or more of the capital or a 
share of five percent or more of the management or voting rights, and the full names of 
the  members  of  the  publisher’s/broadcaster’s  board  of  directors  or  management  body 
and  supervisory  board.  The  publisher/broadcaster  must  report  any  changes  to  the 
information  specified  in  the  foregoing  to  the  Official  Gazette  of  the  Republic  of  Slovenia 
within thirty days of their occurrence.  

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Despite the legal provisions, media ownership situation in some cases is not transparent, 
as  it  is  difficult  to  find  all  the  connections  behind  the  owners  of  media,  different  media 
owners of one media which is also owned or (partly) owned by other media. 

- Accountability of public service media 

With  its  activities  RTV  Slovenija  is  accountable  to  the  Parliament,  based  on  an  annual 
report. According to Art. 28 of the Radio and Television Corporation of Slovenia Act, the 
annual  report  shall  be  published  in  a  manner  provided  by  the  Statute  of  the  public 
broadcaster and must also include an analysis of the costs of programme production by 
individual  programme  sectors  or  content.  The  annual  report  shall  be  published  on  the 
website of the RTV Slovenia public institution. Decisions and positions of the Supervisory 
Board  and  positions  of  the  Programme  Committees  for  the  ethnic  community  channels 
relating to ethnic community channel issues shall also be made public. 

- Freedom of information laws 

The Mass Media Act contains provision regarding the right of the citizens to be generally 
informed. 

- Accessibility of products/services and distribution networks 

There are no special provisions regarding the access to products and services. 

Some  exemptions  from  the  broadcasting  licence  fee  are  provided  in  respect  of  the 
persons  with  disabilities  and  special  social  status  or  on  the  basis  of  a  declaration  for 
those persons which do not use a radio or TV set. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The  ombudswoman  of  viewers  and  listeners  of  RTV  Slovenija  is  an  office,  part  of  RTV, 
that is collecting "feed-back" of citizens, yearly is publishing the report, and it is expected 
that the relevant complaints will be taken into account. 

- Participation in media operators/(self-)regulatory bodies 

No such participation exists. 

2.2.24.2.  Main Players in the Media Landscape 

2.2.24.2.1. 

Radio 

Radio Slovenia - Val 202, A1 and Slovenija 1 which are part of public service broadcaster 
and commercial radio stations (Radio 1, Radio Hit, Radio Center) all operate nationwide. 
Other radio operators have a regional or local reach (Radio City, Radio Robin, Murski Val, 
Štajerski Val, …). Also on a regional level, there are Radio Maribor and Radio Koper which 
are part of PSB RTV Slovenija. 

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Table 136 SI: Top radio channels 

Name 

Radio Val 202 

Radio 1 

Radio Slovenija 1 

Radio City 

Radio Veseljak 

Radio Center 

Radio Hit Domžale 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Reach 

107,000 

153,000 

144,000 

95,000 

71,000 

69,000 

58,000 

Source: Kraft & Werk, Marketing Communication Agency 

2.2.24.2.2. 

Television 

Main actor in the television market is RTV Slovenia, however, viewing shares are rapidly 
decreasing in last years particularly in favour of the viewing of POP TV (which is, just as 
the  Pro  Plus  company,  privately  owned  by  Central  Media  Enterprise  Group  –  CME).  In 
2012,  SBS  Group's  retreat  from  the  Slovenian  market  with  its  competing  channel  TV3 
had to be noticed. There are many local TV stations but these are mainly struggling for 
survival. 

Table 137 SI: Top 5 TV channels 

Broadcaster 

POP TV 

SLO1 

Kanal A 

SLO 2 

SLO 3 

1. 

2. 

3. 

4. 

5. 

Source: Kraft & Werk, Marketing Communication Agency 

2.2.24.2.3. 

Press and publishing 

National newspapers with higher circulation and reading are tabloids (Slovenske Novice), 
mainstream newspapers as Delo, Dnevnik, Večer are losing readers. Delo and Večer are 
under same ownership structure but both currently on sale. 

Delo  is  owned  by  Pivovarna  Laško  (80%),  Radenska  (19%);  Večer  is  owned  by  Delo. 
Dnevnik  is  owned  by  DZS  (35%),  Styria  Media  International  (25.6%),  Media  DZS 
(15.9%), Delo (10.3%), Večer (6.5%), and rest (6%). 

615 


 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

Table 138 SI: Top 6 daily newspapers 

Name 

Slovenske novice 

Žurnal24 

Delo 

Dnevnik 

Veèer 

Type 

Daily 

Daily 

Daily 

Daily 

Daily 

Finance (Bussines newspaper)  Daily 

Primorske novice 

Ekipa (Sports newspaper) 

Daily 

Daily 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Circulation 

Reach 

78,194 

107,738 

59,513 

45,704 

38,297 

14,933 

13,000 

311,000 

261,000 

114,000 

106,000 

100,000 

53,000 

48,000 

23,000 

Source: Kraft & Werk, Marketing Communication Agency 

Table 139 SI: Printed press, Top 5 additions 

Name 

Vikend 

Pilot 

Ona 

Delo in Dom 

Polet 

1. 

2. 

3. 

4. 

5. 

Type 

Weekly 

Weekly 

Weekly 

Weekly 

Weekly 

Circulation 

Reach 

185,212 

153,846 

142,366 

137,100 

131,655 

398,000 

325,000 

318,000 

300,000 

253,000 

Source: Kraft & Werk, Marketing Communication Agency 

Table 140 SI: Top 3 free newspapers 

Name 

Žurnal 

Žurnal24 

Goriška 

1. 

2. 

3. 

Type 

Weekly 

daily 

Circulation 

Reach 

284,538 

107,738 

413,000 

261,000 

85,000 

Source: Kraft & Werk, Marketing Communication Agency 

Table 141 SI: Top 5 Lifestyle magazines 

Name 

Lady 

Jana 

Anja 

Cosmopolitan 

Nova 

1. 

2. 

3. 

4. 

5. 

Type 

Weekly 

Weekly 

Fortnight 

Monthly 

Weekly 

Circulation 

Reach 

50,668 

14,300 

16,917 

24,893 

215,000 

123,000 

84,000 

84,000 

78,000 

Source: Kraft & Werk, Marketing Communication Agency 

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2.2.24.2.4.	 

Online media (non-linear audiovisual (media) services; websites) 

Most  important  online  platforms  are  24ur.com  (owned  by  Pro  Plus  company),  siol.net 
(owned by Telekom), rtvslo.si (owned by RTV Slovenija). 

2.2.24.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Internet  Access  provider  as  Siol  (Telekom  Slovenija)  is  increasing  its  share.  Other 
important players are Telemach, T2, AMIS. 

2.2.24.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Main part of advertising market share goes to POP TV and Kanal A as main commercial 
TV channels, who attract about two thirds of all advertisements. 

2.2.24.3.  Conclusion and Recommendations 

The  Slovenian  media  market  is  limited  according  to  the  size  and  the  possibility  of 
extension according to the limitation of language. Therefore, there are not many foreign 
investors interested in investing in Slovene media. The primary role according to viewers 
and advertisers is assumed by POP TV, the biggest private TV channel.  

In a general overview, the media freedom in Slovenia is perceived as the opportunity for 
the media to investigate and follow the critical watch-dog role in society. It is considered 
that  the  media  are  assuming  their  watch-dog  role,  however,  there  are  limitations  in  its 
capacities  to  investigate  in  the  sphere  of  politics  and  economy.  For  a  successful 
investigation  the  appropriate  staff  (journalists)  are  needed.  In  the  last  period,  media 
organizations have lack of potential for investigation as they are cutting the budgets, and 
also  media  are  dependent  on  media  owners  which  are  playing  an  important  part  in 
deciding the editorial orientation. 

The  confidentiality  of  the  source  of  information  is  enabled  for  the  journalists  and  there 
were a few cases recently where journalists investigated a story without being requested 
to disclose their sources. These are the cases which came to the court. 

Market  concentration  is  observed  and  controlled  by  the  Competition  Protection  Office, 
particularly for broadcasting media. 

New  media  regulation  should  be  adopted  as  it  has  to  include  new  provisions  for  the 
advertising market. 

The print media market is struggling in the last couple of years, the partnership, cross-
ownership  among  newspapers  disables  transparent  relations  among  them.  A  high 
number of media in Slovenia compromise a qualitative competition among them as they 
are  "one-man-band"  media  which  negatively  impact  on  the  decreasing  of  professional 
standards in journalism. 

The  information  regarding  the  activity  of  the  Parliament  and  the  administrative  organs 
are  available  for  the  media,  however  there  are  some  research  in  the  last  year  which 
showed  that  little  interest  for  these  kind  of  information  from  the  side  of  the  general 
public was present. Accordingly, for the qualitative media coverage from the Parliament 
and other administrative organs, senior media reporters are needed. 

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The  co-funding  of  media  contents  (in  the  interest  of  qualitative  content),  by  the  Media 
Fund,  which  is  in  the  public  interest  is  an  important  moment  for  many  media  which,  to 
date  and  predominantely,  follow  only  viewing  and  advertising  shares.  With  these  funds 
private media can offer qualitative content. Accordingly, non-commercial regional media 
have obtained an important status but they need clearer regulation and provisions.  

There  should  be  more  incentives  for  employing  independent  journalists;  however,  the 
status  of  journalists  needs  some  changes.  The  requirements  for  important  journalism 
positions  should  be  adopted,  also  the  provisions  for  commercial  media,  and  their  remit 
should be adopted as well. 

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SPAIN 


2.2.25.	  Spain 

2.2.25.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.25.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

The  Spanish  Constitution  recognizes  freedom  of  expression  and  freedom  of  information 
as  two  separate  rights.  Paragraph  1  of  article  20,  subparagraphs  a),  b),  c),  refers  to 
freedom  of  expression,  and  subparagraph  d)  establishes  the  right  to  freedom  of 
information.  In  order  to  correctly  understand  the  scope  of  constitutional  protection 
provided to such rights, several main ideas should be stressed. 

Both  rights  are  subjected  to  a  series  of  “external”  limits,  according  to  the  general 
parameters  established  by  article  20  of  the  Constitution.  These  limits  basically  include 
other  constitutionally-protected  rights,  principles  and  values  including  protection  of 
minors,  right  to  honor  and  privacy  as  well  as  human  dignity.  The  jurisprudence  of  the 
Constitutional Court and the Supreme Court has provided within the last 30 years a wide 
range  of  well-consolidated  criteria  in  order  to  properly  define  in  specific  cases  the  right 
balance  between  freedom  of  expression  and/or  information  and  other  rights  and 
principles. 

The  right  to  freedom  of  expression  and  the  right  to  freedom  of  information  are  directly 
protected by the constitutional text and no legal development is required in order to be 
effectively exercised and applied. Along the same line, citizens can challenge before the 
Courts  (including  the  Supreme  Court)  any  administrative  and  some  other  kind  of 
decisions and measures (basically Court decisions dealing with different legal issues and 
controversies)  that  may  violate  freedom  of  expression  and  freedom  of  information. 
Citizens have also the individual right to bring their claims before the Constitutional Court 
which has the final say regarding possible violations of fundamental rights. 

Both  freedoms  cover  all  formats  and  communication  media;  insofar  they  serve  to 
disseminate messages to the general public, so that there are no specific safeguards and 
rights for the media. 

Article  20  subparagraph  d)  of  the  Spanish  Constitution  establishes  the  freedom  of 
information. 

In the case of freedom of information, the Spanish Constitution establishes an “internal” 
limit,  which  is  mentioned  in  subparagraph  d):  it  only  protects  the  dissemination  of 
truthful  information.  This  idea  of  truthfulness  can  be  connected  in  comparative  terms 
with  the  notion  of  accuracy  from  the  UK  legal  system  or  the  idea  of  “honneteté  de 
l’information”  that  can  be  found  in  the  French  media  legislation,  as  main  examples. 
According to a very solid jurisprudence of the Constitutional Court, truthful information is 
provided when journalists comply with a minimal level of professional due diligence when 
collecting and presenting information. Moreover, truthfulness and public interest are the 
two  main  requirements  imposed  by  the  Constitutional  Court  in  order  to  establish,  in  a 
specific case, that freedom of information will prevail vis-à-vis honor and privacy rights. 

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Professional  secrecy  or  the  right  of  journalists  not  to  disclose  their  information  sources 
has not been developed by law within the Spanish legal system, so that for the moment 
the  constitutional  mandate  remains  unfulfilled.  However,  the  jurisprudence  of  the 
Constitutional Court has clearly upheld and protected such right, insofar the journalist is 
providing  truthful  and  duely  contrasted  information.  Most  relevant  journalists’  codes  of 
ethics also include and regulate such right. 

Finally,  it  has  to  be  stressed  that  in  2012  the  Constitutional  Court  has  had  the 
opportunity, for the first time, to express its opinion about the use of “hidden cameras” 
in the elaboration and dissemination of information. In a decision issued on 24 February 
the Court held that such mechanism for the accessing of information violates protection 
given by the Constitution of the rights to privacy and each individual’s image. However, it 
has  to  be  outlined  that  the  decision  was  taken  in  a  case  in  which:  a)  individuals 
concerned were private professionals with no “public” profile (even if related to a public 
interest issue), and b) the media outlet that took and disseminated those images did not 
adopt any measure in order to preserve their anonymity. 

  Freedom to receive and to access information 

Finally  it  has  to  be  stressed  that,  according  to  the  interpretation  made  by  the 
Constitutional Court, the right to freedom of information directly protects the collection, 
organization  and  dissemination  of  information,  whereas  it  only  indirectly  covers  the 
reception of such content by any citizen. In other words, unless a specific law establishes 
such  a  right  in  the  future,  citizens  do  not  have  at  this  present  time  an  effective  and 
individual right to obtain specific information at their request. Article 105 of the Spanish 
Constitution  states:  “The  law  shall  regulate  …  b)  the  access  of  citizens  to  the 
administrative files and records except where they may affect the security and defence of 
the  State,  the  investigation  of  crimes,  and  the  privacy  of  individuals.”  However,  in  this 
case  the  Constitution  has  only  established  a  general  principle  to  be  developed  by  the 
Parliament  in  the  future  in  order  to  be  legally  effective.  Moreover,  the  Constitutional 
Court  has  never  established  a  neat  connection  between  such  principle  and  the  rights 
recognized in article 20. 

  Safeguards on regulatory authorities 

The  Spanish  general  Constitutional  and  legal  framework  does  not  include  specific 
safeguards  regarding  the  existence  and  the  role  of  regulatory  authorities.  It  should  be 
kept in mind, in this area, the fact that nowadays Spain remains as the sole EU country 
that  does  not  have  such  regulatory  entity  in  the  area  of  audiovisual  media  services,  at 
the national level at least. 

  Safeguards on “universal service” 

Spanish general Constitutional and legal framework does not include specific safeguards 
regarding universal service obligations in the media sector. 

2.2.25.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Audiovisual  media  service  providers  need  to  obtain  a  license  to  deploy  their  activities  if 
they use spectrum resources. In other cases the provision of (either linear or non-linear) 

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audiovisual  media  services  only  requires  to  notify  the  audiovisual  authority  prior  to  the 
start of the activities (article 22 of the Law No.7/2010). 

The  Law  No.7/2010  provides  for  a  general  regulation  of  public  service  media,  including 
some  general  principles  in  terms  of  funding  schemes  and  general  remit.  However,  in 
order  to  properly  understand  the  different  applicable  legal  regimes,  one  should  take  a 
look  at  several  specific  laws.  In  this  sense  Law  No.17/2006  regulates  the  nation-wide 
public  service  broadcaster  Radio  Television  Española  (RTVE),  including  a  long  and 
detailed  remit  and  the  need  for  a  “contract”  between  the  Government  and  such  public 
organization in order to establish the specific conditions for the provision of the service to 
citizens. 

No specific requirements apply to the press in this area. 

- Media pluralism/ownership; competition law aspects 

As  it  was  explained  in  2004’s  report,  there  are  no  specific  restrictions/rules  targeting 
either  vertical  media  concentration,  with  minor  exceptions  in  some  cases  (e.g.  with 
regard  to  the  provision  of  conditional  access  services  for  digital  TV),  or  diagonal  media 
concentration. Therefore, as long as general competition law and the limits to horizontal 
concentration  in  the  media  sector  are  respected,  it  is  possible  for  a  company  to 
simultaneously own or control an unlimited number of national and regional newspapers, 
radio networks, satellite or regional DTT services. 

Regarding  horizontal  rules,  it  has  to  be  stressed  that  this  kind  of  provisions  has  been 
significantly reduced within the last eight years. At this present time, article 36 and 37 of 
the  Law  No.7/2010  establish  the  basic  and  only  general  rules  regarding  this  issue 
(without  prejudice  to  additional  regulations  that  some  Autonomous  Communities  may 
introduce,  e.g.  in  the  case  of  Catalonia).  In  this  sense,  no  natural  or  legal  person  may 
acquire  a  significant  stake  in  more  than  one  provider  of  state-wide  television  services, 
when  the  average  audience  of  all  the  channels  exceeds  27%  of  the  total  audience  for 
twelve  consecutive  months  prior  to  the  acquisition.  At  any  rate,  no  stakeholder  can 
concentrate significant power over a series of media outlets when this situation will bring 
about  either  a)  a  power  concentration  over  more  than  two  nation-wide  multiplex 
channels; b) a power concentration over more than one regional multiplex channel; or c) 
the  existence  of  less  than  three  nation-wide  television  competitors.  In  the  field  of  radio 
services,  a  single  individual  cannot  hold  more  than  50%  of  the  licenses  that  cover  the 
same  territory  and  no  more  than  40%  of  the  regional  licenses  in  cases  where  there  is 
only  one  license  available  for  each  territory.  In  addition  to  that,  no  one  can  hold  more 
than  one  third  of  the  radio  licenses  available  in  Spain,  irrespective  of  the  territory 
effectively covered. 

- Legal framework for psm; ability to fulfill their tasks 

The Spanish landscape regarding public service audiovisual media is a little bit complex, 
as it includes three different territorial levels: national, regional and local. 

It has to be reminded that article 20 of the Spanish Constitution contains in paragraph 3 
a  reference  to  public  service  media,  when  reference  is  made  to  the  need  that  the  law 
regulates their organization and parliamentary control. 

The last law enacted in this regard has been amended and according to Law No. 7/2010, 
the  State  public  service  broadcaster  cannot  be  funded  through  commercial  advertising 
anymore.  This  new  funding  scheme  has  created  a  serious  financial  crisis  in  RTVE. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

Moreover,  regional  Parliaments  (within  the  framework  of  the  Law  No.  47/1983,  which 
allowed such possibility) have established their own regional public service broadcasters 
to serve the interests of citizens of these territories. The most relevant examples of such 
practice are the Basque country, Catalonia, Madrid, Valencia, Andalusia, Galicia, and the 
Balearic  and  the  Canary  Islands.  Finally,  according  to  both  the  State  and  regional 
legislations,  local  entities  can  also  establish  public  service  media  outlets,  and  many  of 
them actually do exist and operate in different areas of Spain. In the case of regional and 
local  public  service  broadcasters  the  funding  scheme  established  by  different  laws 
combines commercial income with public funding. 

A  very  recent  new  element  to  be  taken  into  account  regarding  the  situation  of  national 
psm  is  the  fact  that  in  April  2012  the  Spanish  Government  urgently  modified  the 
regulation  on  the  composition  and  election  mode  of  the  board  of  RTVE,  reducing  the 
number  of  members  and  altering  the  nomination  criteria.  In  this  sense,  it  includes  the 
possibility to elect such members by absolute majority, instead of 2/3 of the Parliament. 
This puts in hands of the current ruling majority all the power regarding the nomination 
of  the  highest  body  regarding  the  definition  and  provision  of  psm  at  the  national  level. 
Moreover, it has to be stressed that the reform introduced in April 2012 makes possible, 
for  the  first  time,  that  a  privatization  process  (under  certain  conditions  and 
requirements) of such public channels can take place. 

- The role and functioning of regulatory authorities in these respects 

The  first  idea  that  must  be  stressed  is  that  finally,  Spain  has  approved  a  general, 
systematic  and  coherent  law  regulating  audiovisual  media  services.  Before  2010,  the 
Spanish  media  legal  system  was  formed  by  a  constellation  of  fragmentary  and  really 
unsystematic  laws  which  covered  (incurring  sometimes  in  serious  contradictions) 
different  portions  of  the  audiovisual  media  landscape.  Law  No.  7/2010  provides  a 
common and horizontal regulation for all audiovisual media services. It incorporates the 
most  recent  changes  in  this  area  regarding  EU  law  (in  particular  the  Directive 
2010/13/EU, known as Audiovisual Media Services Directive, AVMS), and, in particular, it 
creates for the first time the Spanish Council for Audiovisual Media (CEMA, in Spanish), 
as  the  new  independent  audiovisual  regulatory  authority.  However,  it  has  to  be  pointed 
out  that  such  authority  has  not  been  effectively  created  yet,  and  that  the  new  Spanish 
Government  has  announced  its  will  to  change  the  law  in  order  to  create  a  new  mega 
regulatory  authority  (the  National  Commission  for  Markets  and  Competition)  which  will 
be in charge of the regulation of all markets and economic sectors. For the moment, the 
authority  in  charge  of  audiovisual  media  regulation  enforcement  is  the  Secretariat  of 
State  of  Telecommunications  and  Information  Society  (SETSI),  a  non-independent 
administrative office which is part of the structure of the Ministry of Industry. The current 
telecommunications regulator, the Commission of the Telecommunications Market (CMT) 
also  holds  some  minor  competencies  in  the  field  of  audiovisual  communications,  in 
particular  regarding  the  management  of  a  Registry  of  Broadcasters  which  keeps  some 
relevant information on license holders. 

Finally  it  has  to  be  outlined  that  article  149  paragraph  1  number  27  of  the  Spanish 
Constitution  establishes  that  the  central  State  and  the  Autonomous  Communities  do 
share the competence on communication media. This means that whereas the State has 
the competence to establish the general basic rules on this matter (as well as to establish 
and  to  enforce  the  media  legal  regime  regarding  nation-wide  operators),  regional 
Parliaments  and  regional  authorities  have  the  competence  to  develop  such  rules  and  to 
enforce them. In this sense, it has to be stressed that Catalonia and Andalusia created in 

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2000  and  2005,  respectively,  their  independent  audiovisual  regulatory  authorities 
(Consell de l’Audiovisual de Catalunya and Consejo Audiovisual de Andalucía). 

The  competition  regulatory  authority  (National  Commission  for  Competition,  CNC  in 
Spanish) has the power to approve or prohibit a proposed merger.  

It has also to be outlined that according to Law No. 7/2010, the Government still keeps a 
huge amount of power regarding the provision of licenses, to the extent that it holds the 
competence  to  approve  the  tender  rules  and  to  adopt  the  final  decision  on  its  results, 
whereas  the  (future)  regulatory  authority  only  has  the  competence  to  elaborate  a  non­
binding  opinion  on  this.  However,  in  some  Communities  such  as  Catalonia,  the 
audiovisual regulatory authority holds all the competences, from the beginning until the 
end, regarding the tendering process. 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

As  it  has  already  been  shown,  article  20,  paragraph  1  of  the  Spanish  Constitution 
provides  that  a  law  will  regulate  two  main  values  closely  linked  to  the  exercise  of 
professional  journalism:  the  protection  of  the  so-called  “clause  on  conscience”  and  the 
professional secrecy. 

The  clause  of  conscience  is  protected  by  Organic  Law  No.2/1997.  This  protection  is 
established in two directions: a) the right of journalists to finish their professional relation 
with  media  outlets  that  have  radically  changed  their  editorial  orientation  (including  the 
right  to  perceive  an  economic  compensation  in  such  cases);  and  b)  the  right  of 
journalists  to  not  participate  in  the  elaboration  and  presentation  of  information  that 
clearly violates ethical journalistic principles. 

- Specific positive content obligations 

The  Spanish  legal  regime  regarding  the  provision  of  media  services  has  very  few 
provisions establishing specific positive content obligations for private outlets. Apart from 
the  negative  limits  that  basically  derive  from  the  EU  legal  framework  (and  which  have 
been generally incorporated but not strengthened by the Spanish legislator) most of the 
specific  obligations  assumed  by  private  media  outlets  will  be  linked  to  conditions  and 
requirements “voluntarily” assumed during the tendering process. 

Interesting  positive  rules  are  to  be  found  in  the  field  of  language  quotas.  According  to 
Catalan  legislation,  private  media  outlets  established  in  this  autonomous  community 
should  use  the  Catalan  language  at  least  50%  of  their  airtime  and  25%  of  the  songs 
aired should be sung in Catalan language as well. 

- Funding schemes for specifically desired content 

No funding schemes for specifically desired content are specifically set. 

- Political advertising and/or broadcasting time 

Law  No.  5/1985  on  elections  legal  regime  (and  the  interpretation  been  made  by  the 
Election  Commission  during  the  last  30  years)  is  the  specific  legislation  establishing  a 
series of obligations for audiovisual media service providers during elections’ periods and 
campaigns.  These  obligations  can  be  synthesized  as  follows:  a)  public  service 

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broadcasters should provide free advertising airtime for political parties according to the 
results obtained in previous elections; b) public service broadcasters should distribute the 
time devoted by news programmes to inform about the political campaign, according as 
well to the results obtained in the last election (so that the majority party gets more time 
in  news  programmes  than  other  parties).  This  last  obligation  basically  derives  from  the 
interpretative  case  law  of  the  Election  Commission,  though  it  raises  serious  complaints 
from  journalists.  Finally,  c)  private  media  outlets  have  also  to  inform  fairly  and  in  a 
proportionate  way  during  election  times.  Political  advertising  on  television  is  strictly 
forbidden during the rest of the year. 

- Codes of conduct and their organisational framing 

As  it  was  outlined  in  2004’s  report,  journalists  belonging  to  the  Federation  of  Press 
Associations  of  Spain  (Federación  de  Asociaciones  de  la  Prensa  de  España  -  FAPE) 
commit  themselves  to  maintain  binding  ethical  principles  when  exercising  their 
profession,  which  are  enshrined  in  the  Code  of  Ethics.  In  Catalonia  the  Consell  de  la 
Informació  de  Catalunya  also  plays  an  important  role  through  its  own  self-regulatory 
system. This being said, it has also to be stressed that these self-regulatory schemes are 
neither  widely  known  nor  often  used  by  citizens.  Along  the  same  line  and  realistically, 
these  cannot  be  considered  effective  systems  to  the  extent  that  there  is  still  no 
significant  “name  and  shame”  effect  to  be  caused  in  such  environment.  At  the  same 
time,  some  professionals  have  criticised  the  composition  of  the  bodies  in  charge  of  the 
application of the ethical codes, as they would not correctly guarantee due independence 
from interests of media outlets. 

- The role and functioning of regulatory authorities in these respects 

As it has been pointed out, the existence and role of regulatory authorities remains as a 
pending  aspect  of  Spanish  media  legislation.  However,  in  regions  in  which  they  exist 
(e.g.  Catalonia)  they  play  a  key  role  in  monitoring  the  performance  of  public  service 
broadcasters and in order to guarantee that license conditions are respected. However, in 
the  field  of  codes  of  conduct,  the  main  responsibilities  belong  only  to  self-regulatory 
bodies. 

  Distribution Aspects 

- Access to frequencies 

Access  to  frequencies  is  limited  at  this  present  time  to  broadcasters  which  are  able  to 
obtain  a  license  after  going  through  a  tender  procedure.  Community  broadcasting  does 
not  exist  in  Spain  for  the  moment,  and  despite  article  32  of  Law  No.7/2010  includes 
some provisions in this area, they have not been effectively applied yet. 

- Access to distribution networks and control of actual conditions 

No specific legislation can be found in this area. It should only be outlined that article 11 
of Law No. 7/2010 establishes that audiovisual media service providers will have access 
to  electronic  communication  networks  according  to  general  legislation  in  this  latter  area 
and within the framework of the agreements freely agreed among the interested parties.  

- Must-carry/must-offer rules for electronic media 

No specific legislation can be found in this area. 

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- Role of platform operators 

Platform  operators  are  generally  subjected  to  electronic  communication  regulations. 
Article  31  of  Law  No.7/2010  establishes  that  national  television  service  providers  will 
facilitate  the  access  to  their  free,  over  the  air  contents  through  any  electronic 
communication service within the terms freely agreed among the concerned parties.  

- The role and functioning of regulatory authorities in these respects 

According  to  current  legislative  framework,  regulatory  authorities  (both  in  the  telecom 
and audiovisual sector) basically play an arbitration role in these areas, in cases in which 
an agreement cannot be reached among the parties. 

  Access to Information 

- Transparency of media ownership situations 

Article 6 of Law No.7/2010 recognizes the right of citizens to “know the identity” of any 
audiovisual  service  provider,  the  different  companies  which  form  a  certain  media 
conglomerate,  as  well  as  their  stakeholders.  The  law  establishes  that  this  obligation 
should  be  fulfilled  through  the  website  of  the  provider  in  question,  which  should  also 
make  available  to  citizens  specific  ways  to  get  directly  in  touch,  such  as  an  e-mail  
address.  It  is  not  possible  to  find  within  the  Spanish  legal  system  any  other  provision 
that goes beyond these general requirements. 

- Caccountability of public service media 

Mechanisms  in  this  field  are  not  particularly  relevant.  According  to  article  20.3  of  the 
Constitution,  public  service  media  are  under  the  political  supervision  of  the  legislative 
power. 

- Freedom of information laws 

Until  nowadays,  Law  No.30/1992,  on  the  Legal  Regime  of  Public  Administrations  and 
Common Administrative Proceedings has partially developed article 105, paragraph b) of 
the Constitution, in a very narrow way. According to what was already stressed in 2004’s 
report,  the  law  contains  concrete  provisions  on  access  to  administrative  records  and 
documents  by  citizens,  under  very  strict  conditions:  documents  must  be  part  of  a  file 
which has been completed, documents that contain personal information can be accessed 
only  by  the  persons  named  in  the  documents  and  more  broadly,  access  can  be  denied 
according  to  a  set  of  general  and  somewhat  vague  criteria.  Of  course,  these  decisions 
can be challenged before the Administrative Courts, which will have to decide within the 
very short margins of the law. 

During  the  elaboration  of  this  report,  the  Spanish  Government  has  publicly  announced 
the  elaboration  and  future  approval  of  a  so-called  Transparency  Law,  which  will 
apparently  try  to  solve  the  “Spanish  exception”  in  terms  of  absence  of  any  kind  of 
“freedom of information law”. However, the legislative procedure is now in its first steps 
and it would be too early to try to make here any further description or evaluation. 

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- Accessibility of products/services and distribution networks 

Article  31  of  Law  No.7/2010  establishes  that  RTVE  must  cede  its  different  radio  and 
television  channels  free  of  charge  to  distributors  of  cable,  satellite  and  IPTV  audiovisual 
services. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

Spain  is  a  country  in  which  the  exercise  of  consumers’  rights,  the  right  to  complain  or 
even the figures of ombudsmen are not really part of the general culture. Apart from the 
possibility to file a complaint before the public authorities (including the still not created 
media authority), the presence of alternative schemes is almost testimonial, and in some 
cases  broadcasters  have  created  their  own  ombudsman  just  as  a  matter  of  prestige 
rather  than  an  effective  will  of  self-control  and  independent  monitoring.  At  any  rate,  it 
should be stressed the work that has been done during the last two years by the figure of 
the Defensor del Lector in the national newspaper El País (this task has been performed 
by the journalist Milagros Pérez-Oliva). 

- Participation in media operators/(self-)regulatory bodies 

Both  national  and  regional  legislation  have  required  the  existence  of  some  really  minor 
and  not  particularly  relevant  participative  advisory  committees  within  the  organizational 
structure of public service media outlets.  

2.2.25.2.  Main Players in the Media Landscape 

2.2.25.2.1. 

Radio 

As  already  explained  in  2004’s  report,  radio  consumption  in  Spain  ranks  second  after 
television,  in  particular  among  young  people.  The  public  broadcasting  company  RTVE 
operates through Radio Nacional de España (RNE) five national radio stations and more 
than 400 local stations. In addition, most regions have their own radio networks, such as 
Catalunya  Radio.  Furthermore,  there  are  hundreds  of  local  public  radio  stations  (called 
radios municipales). 

In 2010 radio companies achieved an increase by 2.7% in terms of commercial incomes. 
Radio  audiences  and  commercial  advertising  are  basically  concentred  in  three  big 
companies:  Sociedad  Española  de  Radiodifusión  (SER)  which  belongs  to  the  big  media 
group  PRISA  (owner  of  the  newspaper El  País,  and  the most  important  communications 
company in Spain, with important interests in Latin America as well) represents 49.6% of 
the  whole  market,  whereas  Onda  Cero  (UNIPREX,  controlled  by  the  Planeta/deAgostini 
Group) dominates 21.8% and Cope (RADIO POPULAR, controlled by the Spanish Bishops’ 
Conference, that is the Spanish branch of the Catholic Church) controls 20.7%. 

For  several  years,  SER  has  been  the  leading  network  in  terms  of  audience  in  all  time 
slots. 

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Table 142 ES: Main radio companies 

Companies 

Ownership 
Structure * 

General Radio 
Stations 

Market Share 
(audience figures) 
** 

Unión Radio 

Prisa Group: 80% 

Godo Group: 20% 

SER 

Antena 3 Group 

Planeta/de Agostini 

Onda Cero 

COPE 

RNE 

Spanish Catholic 
Church) 

COPE 

PSB (RTVE) 

Radio 1 

32.2 % 

18.9 % 

11.9 % 

11.1 % 

* Ownership structure based on information provided by companies’ websites. 

** Market share audiences based on the 2011 report made by AIMC - Estudio General de 
Medios. 

2.2.25.2.2. 

Television 

Television  is  the  most  popular  medium  with  over  90%  of  the  population  watching  TV 
daily.  The  public  service  broadcaster  RTVE  operates  national  terrestrial  channels.  In 
addition, there are a large number of regional public service channels that are operated 
by  the  Autonomous  Communities.  These  channels  were  introduced  subsequently  after 
1983  when  the  adoption  of  the  so-called  Third  TV  Channel  Act  (Act  No.43/1983)  took 
place. 

As above mentioned, since April 2010 Spanish television has become fully digitalised. The 
process of switch-over was accompanied by different public administrations and the final 
outcome can be described as satisfactory, at least according to technical criteria. General 
criticisms,  however,  have  been  raised  in  terms  of  economic  viability  as  well  as  content 
quality  and  diversity.  After  many  discussions,  in  2010  the  Parliament  allowed  the 
possibility  to  launch  paid  DTT  channels,  which  clearly  facilitated  the  apparition  and 
deployment of Gol TV, based on the exploitation of sports’ broadcast exclusive rights. 

The  second  important  element  of  change  that  has  to  be  pointed  out  again  is  the 
transformation  of  the  national  public  service  broadcaster  RTVE  since  2006.  Apart  from 
the  reform  of  its  organizational  structure  in  order  to  guarantee  a  higher  degree  of 
autonomy  vis-à-vis  the  ruling  political  majority,  nowadays  RTVE  cannot  get  funds  from 
the  advertising  market.  It  has  also  to  be  stressed  that  some  of  the  alternative  funding 
resources  established  by  law  (e.g.  a  tax  on  telecom  companies  that  allow  access  to 
audiovisual  contents)  have  been  challenged  before  the  European  Commission  to  the 
extent that they might contradict EU State aid regulations. 

In 2010 as  well, the two most  important national private  television stations Gestevision 
Telecinco  (controlled  by  Berlusconi’s  Mediaset)  and  Sogecable  (PRISA)  merged.  This 
group represents two multiplexes (eight multiplexed channels). The stakeholders of this 
big group are PRISA (17.34%) and Mediaset Investimenti, Spa (41.22%) together with a 
free-float  of  39.87%.  Along  the  same  lines,  at  the  beginning  of  2012  the  other  two 
national  stations  La  Sexta  (controlled  by  a  group  of  production  companies  and  the 
Mexican  group  Televisa)  and  Antena  3  (Planeta/de  Agostini)  publicly  announced  their 
agreement  to  merge  as  well.  This  agreement  has  still  to  be  approved  by  competition 
authorities. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

As for the audiences, it has to be remarked that in general terms (and probably due to 
the  economic  crisis)  the  consumption  of  television  has  been  increasing  during  the  last 
three years, nowadays almost reaching an average of four hours per day. However, and 
at  the  same  time,  new  thematic  channels  are  reaching  more  viewers,  taken  from  more 
“traditional  channels”.  At  this  moment  Telecinco  and  Antena  3  continue  to  be  the  most 
viewed  private  channels,  competing  for  the  leadership  with  RTVE  which  had  been 
increasing  its  audience  until  2010.  However,  the  increasing  financial  difficulties  of  this 
public  entity  have  also  been  causing  a  negative  impact  in  terms  of  audience.  Regional 
public  service  channels  keep  a  relatively  important  audience,  in  direct  competition  with 
main  national  players.  Apart  from  the  players  that  have  already  been  mentioned,  two 
other  media  companies  have  at  this  moment  four  multiplexed  channels  each:  Veo 
Television  and  Net  TV.  These  two  outlets  directly  got  a  digital  license  as  they  were  not 
previously  present  in  the  analogue  market.  A  major  trend  is  that  they  basically  offer 
channels provided by third parties: e.g. Disney Channel, MTV, AXN. 

Table 143 ES: Main television companies 

Broadcasters 

Ownership 
Structure * 

RTVE 

PSB 

Telecinco-
Sogecable 

Antena 3 Group 

La Sexta Group 

Spa 

Prisa 17.34 % 
Mediaset 
Investimenti, 
41.22 % 
Free-float 39.87 % 
Planeta/de  Agostini 
44.58 % 
UFA Film 20.49 % 
Others 34.03 % 
Grupo Audiovisual de 
Medios 
de 
Producción 51.65 % 
Televisa 40.51 % 
Others 7.82 % 

Main TV Stations 
and Their 
Audience 
TVE 1   20.2 % 
La 2          1.8 % 

Telecinco 16.8 % 

Cuatro 5.8 %   

Total Market Share 
(audience figures) 
** 

22 % 

22.6 % 

Antena 3 

14.0 % 

La Sexta 

6.1 % 

* Ownership structure based on information provided by companies’ websites. 

** Market share audiences based on the 2011 report made by AIMC - Estudio General de 
Medios. 

Finally there’s also an emerging regional and local television market. Its figures are not 
still  representative  and  economic  crisis  seems  to  have  especially  hit  this  layer  of  the 
market. 

2.2.25.2.3. 

Press and publishing 

Newspaper readership in Spain is quite low compared to other European countries and is 
declining every year, in particular among young people.  

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Table 144 ES: Main publishing companies, first trimester 2012 

Publishing companies 

Grupo Prisa 

Recolétos 

Vocento 

Ownership 
Structure * 

Polanco  Family 
and 
other 
stakeholders 

Pearson 
78.93% 
President: 
Enrique 
de 
Ybarra y Ybarra 

Grupo Zeta 

Founding: 
Antonio 
Asensio Pizarro 

Grupo Godó 

Family Godó 

2,888 

Main titles & Market 
Audience (readers in 
thousands) ** 
   1,924 
El País    
68 
Cinco Días    
As
 1,395  
El dia de Valladolid  204 
Marca 
Expansión  182 
ABC   756 
El Correo 475 
El Diario Vasco 265 
El Diario Montañés 174 
La Rioja  90 
Ideal  171 
La Verdad 235 
Hoy 153 
Sur  164 
El Norte de Castilla 208 
El Comercio  141 
Las Provincias  157 
El  Periódico  de  Catalunya 
778 
Sport 737 
Córdoba 
Mediterráneo  93 
La Vanguardia   757 
Mundo Deportivo  658 

91 

Unidad Editorial 

RCS (Italy) 89&  El Mundo   1,282 

Total 
Audience 

3,591,000 

3,070,000 

2,989,000 

1,699,000 

1,415,000 

1,282,000 

* Ownership structure based on information provided by companies’ websites. 

** Market share audiences based on the 2011 report made by Asociación de Editores de 
Diarios Españoles (AEDE). 

The main national daily newspapers are El País (Grupo Prisa), El Mundo (Unidad Editorial) 
and  ABC  (Vocento).  Regional  dailies  are  the  main  players  in  most  autonomous 
communities,  e.g.  La  Vanguardia  and  El  Periódico  in  Catalonia,  El  Correo  in  the  Basque 
Country and La Voz de Galicia in Galicia. 

The Grupo Prisa publishes the best selling national daily El País, the financial daily Cinco 
Días  and  the  sports  daily  As.  It  is  active  in  specialized,  regional  and  periodical 
publications (GMI - Grupo de Medios Impresos), magazines, radio (Unión Radio), national 
television  (Canal  Plus, Digital+,  Sogecable),  advertising  (GDM),  and Internet  (Prisacom, 
portal  plus.es).  Subsidiary  companies  of  PRISA  International  are  currently  present  in 
eight  countries:  Chile,  Colombia,  Costa  Rica,  Mexico,  Panama,  France,  the  U.S.,  and 
Bolivia, and operate in the radio, print media, and television sectors. 

Vocento  is  the  new  name  of  the  Grupo  Correo  Prensa  Española  (since  May  2003) 
resulting  from  the  merger  between  the  two  groups  that  started  at  the  end  of  2001.  It 
publishes  the  national  daily  ABC  and  several  regional  papers,  and  has  a  significant 
presence in other areas of communication, including television, radio, digital media, new 
technologies, distribution, film and TV production companies and Internet.  

Unidad Editorial (UNEDISA), majority owned by RCS, is a multimedia group made up of 
42  holding  companies  (in  the  press,  radio,  television,  Internet  and  telecommunications 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

fields). It publishes the second best selling national daily newspaper, El Mundo and has 
interests in cultural magazines, radio, television, production and online services. 

Grupo  Recoletos  is  a  multimedia  company  active  in  certain  areas  (sports,  finance,  etc.) 
across  all  media  platforms  (press,  broadcasting,  Internet).  It  publishes  the  sports  daily 
paper Marca and the financial daily Expansión and specialised magazines. It is  active in 
radio  (Radio  Marca  Digital,  Radio  Marca  Madrid),  and  television  (25%  in  Veo  Televisión 
which holds a DTT licence). 

Grupo  Zeta  publishes  eleven  general  daily  newspapers  (e.g.  El  Periódico  de  Catalunya), 
two sports newspapers (e.g. Sport), more than 80 local and specialised free papers, and 
15  magazines  (Interviú  and  Tiempo).  It  is  also  active  in  books,  multimedia  and 
advertising (Zeta Gestión de Medios).  

Grupo  Godó  is  an  independent  corporation  with  a  family  structure  that  is  active  in  the 
fields  of  daily  press  (La  Vanguardia,  Mundo  Deportivo),  magazines,  digital  publications, 
radio,  television,  advertising  (Publipress),  audiovisual  production,  multimedia  services, 
Internet  portals,  distribution  and  subscriber  home-delivery  services.  It  holds  shares  in 
audiovisual  companies  (93% 
in  Catalunya  Comunicació,  100%  Radiocat  XXI). 
Additionally, the Group holds a digital radio license and 20% stake in Unión Radio. 

2.2.25.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

The most visited Internet sites basically include the electronic version of already existing 
traditional media both in the press and the audiovisual sector: 

Table 145 ES: Main Spanish websites 

Site 

Number of visitors (last trimester 2011) *  

Marca (sports newspaper) 

El Pais (daily newspaper) 

As (sports newspaper) 

Antena3.tv (TV channel) 

Rtve.es (public service media) 

Los40.com (musical radio station) 

Paginas amarillas (yellow pages) 

Cuatro.es (TV channel) 

Telecinco.es (TV channel) 

LaSexta.com (TV channel) 

4,127,000 

3,155.000 

2,140.000 

1,731.000 

1,700.000 

1,586.000 

1,453.000 

1,334.000 

1,287.000 

1,216.000 

* Source: 2011 report of AIMC – Estudio General de Medios 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.25.2.5.	 

Cable/Satellite network operators, IPTV & Internet Access Providers 

Most of the distribution market in Spain is dominated by satellite technology, followed by 
cable  and  IPTV.  The  consumption  of  audiovisual  content  through  ISPs  (Internet  Service 
Provider)  is  still  not  particularly  relevant  in  Spain.  It  has  to  be  reminded,  at  any  rate, 
that  free-over-the-air  DTT  is  still  by  far  the  most  important  system  of  television 
consumption (at this present time, it represents around 60% of the business market). 

In terms of subscriptions, the market is lead by Digital + (satellite, 38.9%), followed by 
ONO  (cable,  22.8%),  Imagenio  (IPTV,  17.2%),  Telecable  (cable,  3.0%)  and  Euskaltel 
(cable, 2.8%). 

2.2.25.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

Information on audiences/readership/usage/subscription has already been provided. 

Regarding  advertising  market,  in  2010  (and  according  to  the  report  elaborated  in  2011 
by INFOADEX) 12.883 million € were invested: 5.849 million in conventional formats and 
7.034  in  non-conventional  formats  (Phone  marketing,  catalogues,  merchandising, 
personalized e-mailing, etc.). 

As for conventional media, figures are as follows: 

Table 146 ES: Advertising spend 

Type of advertising support 

Invested amount (in million €) 

Cinema 

External (public spaces) 

Internet 

Radio 

Magazines 

Television 

24,4 

420,8 

789,5 

548,5 

397,8 

2,471.9 

2.2.25.3.  Conclusion and Recommendations 

Spain  has  approved  a  coherent  and  systematic  law  on  audiovisual  media  services, 
including  the  creation  of  an  independent  regulatory  authority,  finally.  However,  very 
recent  legislative  proposals  show  a  clear  change  of  view  from  the  ruling  majority, 
regarding  the  future  creation  of  a  big  “convergent”  regulatory  authority  with  general 
competences  over  all  economic  markets.  This  being  said,  it  is  also  important  to  outline 
that the Government seems to have a serious will to approve a law to guarantee citizens’ 
right to information and transparency. 

The  very  serious  financial  and  economic  crisis  now  being  faced  by  Spain  has  had  very 
serious impacts in different media outlets. Several local private televisions, radio stations 
and even national newspapers (like Público) have been closing down within the last three 
years.  Those  media  outlets  which  still  remain  in  the  market  have  seriously  lost  an 
important amount of their income sources and severe measures in terms of labour costs’ 
reduction have been taken almost everywhere. At the same time, this delicate situation 
has also increased the level of concentration (both at the horizontal and vertical level) of 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

media companies. The case of national DTT channels is very clear in this sense: after a 
controversial legislative modification, the four most important national companies in that 
business have actually become two. 

Regarding public service broadcasting, the elimination of advertising as a funding source 
with  no  real  feasible  alternative  sources  has  put  RTVE  in  a  very  difficult  situation  which 
has also lead nowadays to an important internal institutional crisis. Thus, the immediate 
future and viability of this important entity is not clear at all, whereas the private sector 
does  not  seem  to  have  obtained  important  and  remarkable  benefits  from  this  decision. 
Along the same line, the recent reform in order to reduce the parliamentary majority that 
will be needed to appoint the members of the board of RTVE also raises serious concerns 
in terms of lack of autonomy vis-à-vis governamental interests. 

Finally,  it  has  to  be  outlined  that  during  2011  the  Spanish  Parliament  adopted  a 
modification  of  the  legislation  in  the  field  of  protection  of  intellectual  property  and  on 
information  society  services,  in  order  to  guarantee  a  better  protection  of  copyrighted 
materials in the on-line world (the so-called Ley Sinde or Sinde Act). In this sense, a new 
administrative authority has been created, with significant powers in order to close down 
websites  which  contribute  to  the  dissemination  of  copyrighted  materials  without 
authorization,  in  particular  regarding  cases  which  until  that  moment  escaped  from  the 
competences of ordinary courts (basically websites that do not provide direct access but 
offer a link to other pages that do provide copyrighted contents such as music or videos). 
The approval of such legislation has raised a high controversy between users and on-line 
and content companies. Some legal scholars have also expressed their concern about the 
ambiguous nature, powers and scope of activity of such administrative authority and the 
existence of a possible violation of the constitutional principle of separation of powers. 

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SWEDEN 


2.2.26.	  Sweden 

2.2.26.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

2.2.26.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

- Specific safeguards and rights for the media 

The  regulations  have  not  changed  since  2004.  The  two  main  constitutional  laws 
regulating  these  questions  are  the  Freedom  of  the  Press  Act  (Tryckfrihetsförordningen) 
and  the  Fundamental  Law  on  Freedom  of  Expression  (Yttrandefrihetsgrundlagen).  Each 
law deals with certain types of media. The former deals with the printed press while the 
latter regulates other types of media, such as radio and TV. In line with the convergence 
of  media  types  in  the  last  years,  distinctions  become  increasingly  difficult.  A  printed 
newspaper that also offers web-TV on its website might fall under both laws or neither. 

The  Government  therefore  initiated  a  committee  (Yttrandefrihetskommittén)  in  2003  to 
investigate  the  regulations  of  freedom  of  expression  and  freedom  of  the  media,  aiming 
for  more  technical  neutrality.  The  committee  published  one  of  its  reports  in  2010  -  Ny 
yttrandefrihetsgrundlag?  Yttrandefrihetskommittén  presenterar  tre  modeller1.  In  the 
report  three  different  models  of  regulation  are  presented:  the  model  of  responsibility 
(ansvarsmodell),  the  operation  model  (verksamhetsmodel)  and  the  purpose  model 
(ändamålsmodell).  A  follow-up  report  is  expected  at  the  earliest  in  August  2012,  but  it 
seems at the moment that it will not lead to any larger changes in the two acts. The six 
corner  stones  of  the  current  Swedish  legislation  will  prevail  in  any  event:  ban  on 
freedom  of  establishment  (etableringsfrihet),  editorial 
censorship  (censurförbud), 
responsibility 
and  whistleblowers 
sources 
(meddelarskydd),  special  catalogue  of  crimes  (brottskatalog)  and  the  special  procedural 
law regulations (särskilda rättegångsordning). 

(ensamansvar), 

protection 

for 

  Freedom to receive and to access information 

- Specific rights for the citizens 

The  specific  details  of  the  freedom  to  access  information  are  stipulated  in  Chapter  2  of 
The Freedom of the Press Act. While the general right is guaranteed in the Instrument of 
Government (Regeringsformen), Chapter 2 of the Freedom of the Press Act stipulates the 
rights  and  obligations  in  more  detail,  e.g.  the  principle  of  anonymity  for  the  person 
exercising the right to access information, the conditions of granting access etc. 

  Safeguards on regulatory authorities 

Swedish public authorities are generally independent and have the authority – delegated 
by  the  government  –  to  issue  regulations  within  their  areas  of  responsibility.  They  can 
decide  on  specific  cases  and  issue  fines  and  recommendations.  Chapter  12  Article  2  of 
the  Swedish  Instrument  of  Government  (Regeringsformen),  one  of  the  constitutional 

1 

SOU 2010:68, available in Swedish at http://regeringen.se/sb/d/108/a/154177. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

laws,  states  the  independence  of  public  authorities:  “No  public  authority,  including  the 
Riksdag,  or  decision-making  body  of  any  local  authority,  may  determine  how  an 
administrative authority shall decide in a particular case relating to the exercise of public 
authority vis-à-vis an individual or a local authority, or relating to the application of law.” 
Further,  according  to  Chapter  8  Article  1  the  Swedish  parliament  may  also  authorise 
other public authorities to adopt regulations. This authorisation requires, however, an act 
of  law  or  an  ordinance.  Rather  often,  this  authorisation  together  with  the  specific 
functions of a public authority are detailed in an Ordinance adopted by the Government, 
e.g. the Ordinance Instructing the Post and Telecom Agency2 deals with the specific tasks 
of the National Post and Telecom Agency (PTS). 

  Safeguards on “universal service” 

Universal services in the context of electronic communications are solely regulated in the 
Electronic Communications Act, i.e. no constitutional provisions have been implemented 
when transposing the Electronic Communications Directive. 

2.2.26.1.2. 

Media order (de lege lata and de facto) 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

The Broadcasting Authority grants commercial TV licences, whilst the Government grants 
licences  for  public  service  TV  channels.3  A  TV  licence  issued  by  the  Broadcasting 
Authority is generally valid for six years; the Government can determine the duration of 
the licences it issues.4 

A broadcaster must have adequate financial and technical resources to broadcast during 
the  entire  term  of  the  licence.5  A  licence  may  have  certain  conditions,  such  as  to 
broadcast  programmes  throughout  the  country,  to  broadcast  a  diverse  range  of 
programmes6 or to prohibit advertising or sponsored programmes7. 

The  new  Radio  and  Television  Act  (Radio-  och  tv-lag,  SFS  2010:696)  introduces 
requirements  on  the  accessibility  of  television  programmes  for  those  with  functional 
impairments (Chapter 5, Section 12). A license granted under the Act may carry with it 
certain conditions, e.g. to require that a programme be broadcast throughout the country 
or to a specific part of the country (see Chapter 11 Section 3, Chapter 13 Section 9). 

The Broadcasting Authority grants licences to broadcast commercial radio.8 Such licenses 
are generally valid for eight years.9 Commercial radio is split into analogue and digital. A 
licence  to  broadcast  analogue  commercial  radio  is  only  granted  to  a  natural  or  legal 
person that has adequate financial and technical resources to broadcast during the entire 
term  of  the  licence.10  The  same  applies  for  digital  commercial  radio,  along  with  the 

2 

3 

4 

5 

6 

7 

8 

9 

10 

Förordning (2007:951) med instruktion för Post- och telestyrelsen. 

Chapter 4 Section 3 Radio and Television Act.
 
Chapter 4 Section 12 Radio and Television Act.
 
Chapter 4 Section 5 Radio and Television Act.
 
Chapter 4 Section 9 Radio and Television Act.
 
Chapter 4 Section 10 Radio and Television Act.
 
Chapter 13 Section 1 Radio and Television Act.
 
Chapter 4 Section 30 Radio and Television Act.
 
Chapter 13 Section 4 Radio and Television Act.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

condition that the person is prepared to cooperate with other licence holders on technical 
matters.11 Both types of commercial licences may be subject to certain conditions.12 

Radio  and  TV  programmes  that  are  sent  online  via  live  broadcast  or  as  streaming 
services  fall  automatically  under  the  protection  of  the  Fundamental  Law  on  Freedom  of 
Expression, provided that they are aimed at the general public. In this case they do not 
require  a  license  but  have  to  be  registered  with  the  Swedish  Broadcasting  Authority. 
Making  a  video  or  audio  clip  available  for  download  on  a  website  is  not  considered  a 
protected  broadcast.  Such  a  service  may,  however,  be  protected  if  a  certificate  of  no 
legal impediment (utgivningsbevis) is granted (see below). 

The Government grants licences to public service radio broadcast operations, along with 
to  those  who  broadcast  radio  to  places  outside  of  Sweden.13  Such  a  licence  may  have 
similar conditions such as those for TV broadcasts14 and, as for TV, the Government can 
determine the duration of the licence.15 

Public  service  broadcasters  are  required,  freely  and  independently  of  external  financial, 
political  and  other  interests,  to  offer  a  range  of  programmes  that  are  available  to 
everyone,  reflect  the  entire  country  and  are  characterised  by  good  quality,  impartiality 
and relevance, irrespective of their genre.16 

An inquiry executed by an expert commission is to look into the remit and conditions of 
public service broadcasting ahead of the next licence period (starting in January 2014).17 

Newspapers,  i.e.  periodicals,  must  apply  for  a  certificate  of  no  legal  impediment  to 
publication (utgivningsbevis) according to the Freedom of the Press Act. Upon granting of 
the  certificate,  the  periodical  falls  under  the  Freedom  of  the  Press  Act  and  all  its  rights 
and  obligations.  Applications  have  to  be  submitted  to  the  Swedish  Patent  and 
Registration Office (PRV)18 and state a responsible editor for the periodical. 

The certificate also applies to the online version of a newspaper. If the two versions are 
not  identical,  a  newspaper  can  register  a  responsible  editor  with  the  Swedish 
Broadcasting Authority. This possibility is also available for websites and online databases 
in  general.  Even  online  discussion  forums  can  fall  within  this  category  if  all  posts  and 
comments  are  approved  by  the  editor  before  they  are  published.  By  receiving  a 
certificate  from  the  Swedish  Broadcasting  Authority  a  website  can  claim  the  same 
freedom of expression protection as radio and TV (see further below). This means, inter 
alia,  that  the  Swedish  Personal  Data  Act  (Personuppgiftslag  (1998:204))  is  not 
applicable.19 

11	 

12	 

13	 

14	 

15	 

16	 

17	 

18	 

19	 

Chapter 13 Section 23 Radio and Television Act. 
Chapter 13 Sections 9, 27, 28 Radio and Television Act. 
Chapter 11 Section 1 Radio and Television Act. 
Chapter 11 Section 3 Radio and Television Act. 
Chapter 11 Section 4 Radio and Television Act. 
http://www.sweden.gov.se/sb/d/14475/a/161859. 
ToR 2011:51, http://www.sweden.gov.se/sb/d/8375/a/173449/pressitem/173449#anc173449. 
http://www.prv.se. 
More information in Swedish at http://www.radioochtv.se/Tillstand-och­
registrering/Internet/Utgivningsbevis/. More on the relation between privacy and freedom of expression in 
Christine Kirchberger (ed), Cyber Law in Sweden, Kluwer Law International, 2011, para 407. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Media pluralism/ownership; competition law aspects 

Sweden  does  not  have  any  media-specific  competition  rules.  The  general  anti-
concentration  rules,  stipulated  mainly  in  the  Swedish  Competition  Act  (Konkurrenslag 
SFS 2008:579), apply.20 

There  have  only  been  a  few  cases  where  the  Swedish  Competition  Authority 
(Konkurrensverket) got involved with regards to media concentration. One example was 
the  purchase  of  the  Swedish  movie  chain  Sandrew  Metronome  by  SF  Bio.  The  district 
court did not see any legal obstacles for the purchase and dismissed the case.21 

In 2006 the European Commission initiated court proceedings against Sweden as certain 
digital  terrestrial  broadcasting  services  were  in  fact  held  by  a  partly  state-owned 
company.  After  amending  the  Radio  and  Television  Act,  the  Commission  stopped  the 
court proceedings.22 

In  practice,  competition  on  the  TV  market  can  be  seen  both  between  the  different 
channels as well as between the different TV operators.23 

- Media pluralism/ownership; competition law aspects 

Public  service  media  consists  of  Sveriges  Radio  AB  (SR),  Sveriges  Television  AB  (SVT) 
and the Swedish Educational Broadcasting Company (UR). These companies are financed 
through  radio  and  television  fees,  in  accordance  with  the  Television  Licence  Fees  Act 
(1989:41). The fee is levied on all who own a TV or radio receiver. TV sellers are obliged 
to report the purchase of televisions to the government, although individual reporting of 
ownership is voluntary. 

Parliament  decides  on  the  level  of  the  fees  and  on  the  annual  funding  for  the  public 
service broadcasters. 

- The role and functioning of regulatory authorities in these respects 

The  Ministry  of  Culture  is  responsible  for  media  policy.  As  shown  above,  there  are 
different  authorities  involved  depending  on  the  type  of  media  in  question.  Their 
responsibilities are clearly regulated in legislation. 

On  1  August  2010,  the  Swedish  Broadcasting  Authority  replaced  the  previous  agencies, 
the Broadcasting Commission and the Swedish Radio and TV Authority. The Broadcasting 
Authority  is  required  to  monitor  developments  within  the  field  of  media,  to  decide  on 
permits,  charges  and  registration,  to  exercise  supervision  on  issues  relating  to  TV 
broadcasts, on-demand, teletext and radio broadcasts, and to decide on issues related to 
certificates  of  publication.  A  special  decision-making  body  in  the  new  agency  examines 
whether  the  content  of  radio  and  TV  programmes  comply  with  the  rules  for 
broadcasting.24 

  “Pursuit of Core Activity” 

20 

21 

22 

23 

24 

http://www.kkv.se/upload/Filer/ENG/Publications/The_Swedish_Competition_Act.pdf. 
Decision by the Stockholm District Court from 9 June 2005, no T 6633-05. 
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/878& 
format=HTML&aged=1&language=EN&guiLanguage=en. 
See also the report by the Swedish Competition Authority, TV-Distribution in Sweden - Is It Competitive? 
at http://konkurrensverket.se/t/asp/rapport.asp?rid=126. 
http://www.sweden.gov.se/sb/d/9197/a/161339. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- Ordinary law safeguards for journalistic activity 

Both the Freedom of the Press Act (TF - Tryckfrihetsförordningen) and the Fundamental 
Law on Freedom of Expression (YGL - Yttrandefrihetsgrundlagen) contain safeguards for 
journalistic  activity.  For  example,  Chapter  1  Article  2  TF  stipulates:  “No  written  matter 
shall  be  scrutinised  prior  to  printing,  nor  shall  it  be  permitted  to  prohibit  the  printing 
thereof.” 

The principle of editorial responsibility (ensamansvar) means that only one person can be 
held responsible – from a criminal and civil law perspective. Chapter 8 TF and Chapter 6 
YGL identify the person to be held responsible, e.g. the editor of a TV programme.  

One of the main cornerstones of the Swedish freedom of information laws is the principle 
of  protection 
for  whistleblowers  and  sources  (meddelarskydd).  The  principle 
encompasses several rights: 

a)  	 freedom  of  communication  - meddelarfrihet  (anybody  is  allowed  to  communicate 
information  regarding  any  subject  for  publication  in  print  or  any  other  media 
protected by TF or YGL) 

b)  	 freedom  of  procurement  of  information  -  anskaffarfrihet  (anybody  is  allowed  to 
procure information on any subject for publication in any of the media protected by 
TF or YGL) 

c) 	 right to anonymity – rätten till anonymitet (right to not have one’s name published) 

d)	  prohibition of inquiry into the identity – efterforskningsförbud (public authorities are 

not permitted to inquire into the identity of an author). 

There  are  certain  exceptions  to  these  principles,  though  they  are  limited  and  specified 
clearly in the two Acts. 

Any  publications  that  fall  within  the  two  Acts  cannot  be  prosecuted  on  the  basis  of  the 
Swedish  Criminal  Code,  but  have  to  be  judged  according  to  the  special  Articles  in  TF 
(Chapter 7) and YGL (Chapter 5). 

In general,  criminal  liability for any offence rests with the responsible  editor (Chapter 8 
TF  and  Chapter  6  YGL).  In  other  words,  the  author  of  a  publication  cannot  be  held 
responsible.25 

- Specific positive content obligations 

There are no specific rules on content obligations, but some might apply on an individual 
basis.  For  example,  the  broadcasting  license  for  SVT  (Sveriges  Television,  the  public 
service  broadcaster)  includes  general  rules  on  the  importance  of  content  and  cultural 
diversity and a specific responsibility for upholding the status of the Swedish language. 

- Funding schemes for specifically desired content 

Sweden  financially  supports  its  daily  press  according  to  the  Press  Aid  Regulation 
(Presstödsförordning  (SFS  1990:524)).  There  are  two  forms  of  subsidies  to  the  daily 

25 

Additional  information  in  English  can  be  found  in  the  information  material  from  the  Ministry  of  Justice, 
Public Access to Information and Secrecy Act, 11 September 2009:
http://www.sweden.gov.se/sb/d/574/a/131397. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

press,  one  for  operation  and  one  for  distribution.  The  operational  subsidy  is  granted  to 
daily newspapers that meet the requirements of the Regulation. Press aid is available to 
newspapers,  i.e.  publications  of  daily  press character  that  are  published  at  least  once  a 
week,  have  content  primarily  written  in  Swedish  and  are  mainly  distributed  within 
Sweden. There are different requirements dependent on if the newspapers has a high (6­
7 times a week) or medium (3-5 times a week) periodicity or if it has low periodicity (1-2 
times a week). In general the subscribed circulation has to be at least 1,500 copies, and 
primarily  be  based  on  subscriptions.  In  addition,  the  average  distribution  among 
households  may  not  exceed  30  %.  For  low  periodicity  newspapers  a  maximum 
requirement regarding paid advertising share is also stipulated.26 

At  the  moment  around  90  daily  newspapers  receive  this  operational  subsidy,  which 
amounted  to  500  million  SEK  in  2011.  Distribution  subsidy  is  paid  to  daily  newspapers 
that  are  distributed  through  organized  and  shared  distribution.  Currently  137  daily 
newspapers  receive  this  distribution  subsidy,  which  amounted  to  67  million  SEK  in 
2011.27 

The EU Commission (DG Competition) approached the Swedish Government in 2009 with 
regards  to  the  fact  that  the  state  aid  is  not  in  compliance  with  the  single  market.28 
Sweden subsequently amended the Press Aid Regulation in 2010. 

- Political advertising and/or broadcasting time 

Although  advertising  is  specifically  dealt  with  in  the  Radio  and  TV  Act,29  political 
advertising is only regulated where a broadcast is subject to conditions of impartiality,30 
where  such  advertising  is  prohibited.  In  other  cases,  political  advertising  has  been 
prohibited  by  terms  of  the  broadcasting  licences.  As  will  be  discussed  below,  many 
channels broadcast from the UK, and are therefore subject to UK law, where in any case 
political advertising is prohibited. In practice, the Swedish prohibition applies only to the 
public  service  channels,  SVT  (television),  SR  (radio)  and  UR  (the  Swedish  Educational 
Broadcasting  Company).  This  is  because  the  broadcasting  licences  issued  to  digital  and 
commercial channels from 2006 onwards no longer contained the prohibition on political 
advertising;31  this  therefore  means  that  commercial  channels,  including  the  TV4  Group, 
can  show  political  advertising.32  Such  advertising  is,  however,  not  common,  and  only 
tends to occur during election periods. 

- Codes of conduct and their organisational framing 

The code of ethics has not changed since 2004. The self-regulatory code was issued by 
the  Press  Cooperation  Committee  (Pressens  Samarbetsnämnd),  a  Joint  Committee 
founded by media organisations in Sweden (The Newspapers Publishers Association, The 
Magazine Publishers Association,  The Union of Journalists and The National Press Club). 
It applies for press, radio and television and was last amended in 2001. The four media 
organisations  are  responsible  for  the  Charter  of  the  Press  Council  and  the  Standing 

26 

27 

28 

29 

30 

31 

32 

For more details please see http://www.presstodsnamnden.se/hem/in-english/. 
See the website of the Press Subsidies Council (Presstödsnämnden): 
http://www.presstodsnamnden.se/hem/in-english/. 
See press release at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/940. 
Chapters 8 and 15. 
Chapter 5 Section 6 in relation to TV and Chapter 14 Section 3 in relation to radio. 
http://sverigesradio.se/sida/artikel.aspx?programid=1291&artikel= 
828307; 
sa(2135641).gm. 
http://www.tv4.se/1.300043; http://www.tv4.se/1.1242852. 

http://www.bt.se/ledare/kronikorer/fritt-fram-for-politisk-tv-reklam-hur-blev-det­

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Instructions for the Press Ombudsman and contribute to the financing of both the Press 
Council and the Office of the Press Ombudsman.33 

The code consists of six main rules of publicity: 

- to  provide  accurate  news:  news  reports  should  be  accurate  and  objective,  facts 
should  be  checked,  the  text  should  be  in  line  with  headlines,  pictures  should  be  
checked for authenticity. 

- to treat rebuttals generously: factual errors should be corrected, critical rulings by 

the Swedish Press Council should be published without delay. 

- to  respect  individual  privacy:  refrain  from  publication  that  could  violate  individual 
privacy,  exercise  caution 
information  about  suicide,  show 
consideration  for  victims  of  crime,  do  not  emphasise  particulars  e.g.  ethnic  origin, 
sex, nationality etc. unless important.  

in  publishing 

- to exercise care in the use of pictures: readers should not be misled or deceived, it 

should be stated when a picture has been altered. 

- to  listen  to  each  side:  represent  the  view  of  all  parties,  remember  that  a  person 

suspected of an offence is innocent until proven guilty. 

- be  cautious  in  publishing  names:  refrain  from  publishing  names  if  it  might  cause 
harm unless it is obviously in the public interest, refrain from publishing a picture or 
particulars  that  would  enable  identification,  remember  that  responsibility  for 
publishing names and pictures rests with the publisher. 

The  Press  Council  and  the  Press  Ombudsman  are  responsible  for  matters  regarding  the 
press. 

- The role and functioning of regulatory authorities in these respects 

The  Swedish  Broadcasting  Authority  is  responsible  for  monitoring  radio  and  television 
programmes, forming part of the Ministry of Culture and set up in August 2010 following 
the new Radio and Television Act. 

  Distribution Aspects 

- Access to frequencies 

In accordance with Chapter 4 Section 1 of the Radio and Television Act, the Government 
decides  what  broadcasting  frequencies  are  allocated  for  TV  broadcasts  that  require  a 
licence. 

The  Broadcasting  Authority  determines  the  boundaries  of  the  transmission  areas  for 
analogue  whereas  the  Government  decides  the  broadcast  frequencies  for  digital 
commercial radio.34 

33 

34 

The Press Ombudsman, http://www.po.se/english/code-of-ethics.  
Chapter 13 Sections 2, 22. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Access to distribution networks and control of actual conditions 

Distribution  of  newspapers  is  being  handled  by  several  private  or  partly  state-owned 
companies.35  There  is  no  direct  obligation  to  coordinate  the  distribution  of  newspapers, 
but the above mentioned press subsidy for distribution is only granted if the newspapers 
cooperate  and  apply  the  principle  of  equal  pricing.  The  subsidy,  therefore,  leads  to  an 
indirect motivation to coordinate the distribution of periodicals in Sweden and most of the 
Swedish daily newspapers participate in the cooperation. 

Concerning  radio  and  TV,  there  is  no  common  distribution  network.  Teracom,  a  state-
owned  company,  has  provided  the  technical  infrastructure  for  TV  and  radio  since  the 
1920s.  Nowadays  it  also  controls  the  infrastructure  for  terrestrial  digital  broadcasts  and 
offers  data  communication.  In  the  pay-TV  segment,  services  are  offered  through  its 
subsidiary Boxer. As a company with significant market power, Teracom has – according 
to a decision by PTS – to allow providers access to its distribution network.  

Some of the larger electronic communication providers also offer TV packages, and vice 
versa.  Comhem,  for  example,  both  offers  cable  TV  and  Internet  access  via  the  same 
network.  Telia  and  some  other  communications  providers  have  started  offering  TV 
subscription, often in co-operation with large media companies, e.g. Telia offers TV in co­
operation with Viasat. 

- Must-carry/must-offer rules for electronic media 

Section 1 Chapter 9 of the Radio and Television Act deals with the obligation of cable and 
IP-TV operators to retransmit programmes and stipulates that any natural or legal person 
owning  an  electronic  communication  network  shall  ensure  that  residents  can  receive 
television  broadcasts.  In  practice  this  concerns  transmissions  from  the  Swedish  public 
service channels, SVT. 

If an operator does not allow the transmission, one can file a complaint with the Swedish 
Broadcasting Authority. 

- Role of platform operators 

The Swedish digital terrestrial network currently consists of five transmitter networks or 
multiplexes. Multiplex 1 (consisting of the public service TV stations SVT1, SVT2, SVT24, 
etc.) reaches 99.8% of permanent Swedish households, multiplexes 2-4 (e.g. TV4, Kanal 
5 and TV3) approximately 98% and multiplex 5 approximately 70%. Multiplex coverage 
has  gradually  expanded  since  2004.  Each  multiplex  can  accommodate  up  to  seven 
different programme services depending on programme content and compression.36 

To  an  increasing  extent,  organisations  and  especially  local  authorities  have  started 
offering  open  broadband  networks,  typically  called  city  networks  (stadsnät).  One 
example is Sundbyberg situated in the greater area of Stockholm.37 The idea is that the 
operator  provides  the  platform  (currently  mainly  fibre  network)  on  top  of  which  service 
operators can offer their specific services such as Internet access, TV, radio, telephony, 
etc.  The  platform  operators  are  often  local  municipalities  who  aim  at  providing  a  fast 
network  to  their  citizens  and  cooperate  closely  with  house-owners’  and  tenants’ 

35 

36 

37 

A list of companies can be found here in Swedish http://www.tu.se/marknadsinsikt/73-distribution/1620­
distributorer. 
The Digital TV Commission's final report, KU 2004:04,
www.regeringen.se/content/1/c6/11/30/58/5153a9e7.pdf. 
Sundbybergs Stadsnät http://www.sundbybergsstadsnat.se/. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

organisations. The advantage is increased competition between the service providers as 
housing organisations previously would conclude a contract with one network and service 
provider  only.  Now  the  municipality  offers  the  network  and  different  service  providers 
offer Internet, TV, radio and/or telephony to the apartment owners or tenants. 

In order to increase standardisation, the different providers of open networks founded an 
umbrella organisation, the city network factory.38 

- the role and functioning of regulatory authorities in these respects 

For  most  issues  regarding  distribution,  the  Swedish  Broadcasting  Authority  is  the 
responsible  regulatory  authority.  However,  for  newspapers  there  is  no  regulatory 
authority as no legal obligation exists in relation to distribution. 

  Access to Information 

- Transparency of media ownership situations 

Several  Swedish  organisations  publish  reports  on  a  regular  basis  on  the  media  market 
and the different companies owning media services. One example is the Press Subsidies 
Council  (Presstödsnämnden),  which  publishes  annual  numbers  on  the  economy  of  the 
daily  press.39  There  is  also  an  online  database  that  lists  all  Swedish  magazines  and 
newspapers, also sorted by media company.40 

Another  example  is  NORDICOM,  a  knowledge  centre  within  media  and  communication 
research, and a cooperation between the five countries of the Nordic region - Denmark, 
Finland,  Iceland,  Norway  and  Sweden.  NORDICOM  publishes  an  annual  report  on  the 
Swedish media landscape, comprising newspapers, journals, books, radio, television and 
film.41  These  reports  not  only  publish  statistics  about  the  media  market,  but  also  the 
involvement  of  the  different  media  companies  in  the  market.  In  addition,  the  reports 
discuss the ownership structure of the major media companies and their histories. 

- Accountability of public service media 

Public  service  media  must  follow  the  rules  set  out  in  the  Radio  and  Television  Act,  for 
example on impartiality, objectivity, respect for privacy and advertising. 

The  Swedish  Broadcasting  Authority  is  responsible  for  monitoring  radio  and  television 
programmes.  As  stated  above,  the  authority  is  part  of  the  Ministry  of  Culture.  Public 
service media hand in an annual report to the Ministry of Culture, detailing the fulfilment 
of  their  public  service  duties.  The  reports  are  available  online  through  the  company’s 
website.42 

- Freedom of information laws 

The main act with regards to access to information is the Freedom of the Press Act (TF - 
Tryckfrihetsförordningen), in particular Chapter 2. In Sweden, the principle is openness, 

38 

39 

40 

41 

42 

http://www.stadsnatsfabriken.se/. 

http://www.presstodsnamnden.se/publikationer-2/dagspressens-ekonomi/. 

http://www.medieregistret.se/.
 
Links to other media-relevant websites can be found at
 
http://www.nordicom.gu.se/eng.php?portal=mt&main=showLinksMt.php&media=Sverige&type=land&tran 
slation=Sweden&me=14. 
E.g. http://svt.se/2.60232/1.698442/public_service-redovisningar and 
http://sverigesradio.se/sida/artikel.aspx?programid=3088&artikel=4858908. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

which  means  that  an  official  document  can  be  accessed  by  the  public  unless  the  law 
states  otherwise.  The  main  act  containing  such  exceptions  is  the  Public  Access  to 
Information and Secrecy Act (Offentlighets- och sekretesslag (2009:400)).43 

- Accessibility of products/services and distribution networks 

Sweden’s switch from analogue to digital TV did not lead to any aid schemes, as it was 
assumed  that  the  market  would  regulate  itself  in  order  to  keep  competition  within  the 
sector.  In  addition,  the  Swedish  government  decided  to  rely  upon  the  regular  social 
security  system  to  meet  the  needs  of  vulnerable  groups.44  As  such,  no  groups  receive 
discounts  on  for  example  the  broadcasting  licence  fee  e.g.  students  or  pensioners.45 
Newspapers  often  offer  commercially  reduced  rates  for  subscriptions,  for  example  to 
students.  However,  this  is  through  self-regulation,  and  is  mainly  done  to  attract  new 
customers. 

As  stated  previously,  the  Swedish  Electronic  Communications  Act  (2003:389)  requires 
that  universal  services  shall  always  be  available  for  everybody  on  equivalent  terms 
throughout Sweden at affordable prices (Chapter 1 Section 1 Paragraph 2). This includes 
for example telephony and functional Internet access.46 

The  Swedish  Broadband  Strategy  from  2009  states  that  40  %  of  households  and 
businesses should have access to broadband at a minimum speed of 100 Mbps by 2015, 
and  90  %  by  2020.  Infrastructure  investment  will  be  done  by  the  market  players.  The 
Government  aims  at  providing  good  business  conditions  for  the  market  players.  In 
addition,  they  introduced  a  home  improvement  tax  allowance  for  certain  types  of 
groundwork, e.g. work on cables for electricity or electronic communication.  

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The  Press  Council  and  the  Press  Ombudsman  are  responsible  for  matters  regarding  the 
press. They are independent self-disciplinary bodies that deal with complaints about the 
editorial content of newspapers, magazines and their websites. The complainant must be 
personally affected (i.e. identified in some way) by the publicity and the complaint should 
be made within three months from publication.47 Companies, government authorities and 
organisations can also file complaints.  

When  a  complaint  is  filed,  the  Press  Ombudsman  must  decide  whether  it  can  be  dealt 
with  by  a  factual  correction  or  a  reply  from  the  affected  person  published  in  the 
newspaper  concerned.  If  this  is  not  the  case,  the  Press  Ombudsman  may  undertake  an 
inquiry if she/he suspects that the rules of good journalistic practice have been violated. 
The  outcome  of  this  enquiry  will  be  either  that  the  matter  does  not  warrant  formal 
criticism of the newspaper, or that the evidence is weighty enough to warrant a decision 
by  the  Press  Council.48  A  newspaper  that  has  been  found  to  violate  good  journalistic 
practice is expected to publish the written decision of the Press Council, and shall pay an 
administrative fine. 

43  More  information  in  English  can  be  found  in  the  information  material  from  the  Ministry  of  Justice,  Public 
2009, 

Information 

September 

and 

11 

to 

Access 
http://www.sweden.gov.se/sb/d/574/a/131397. 
The Digital TV Commission’s final report, KU 2004:04, SOU 2008:35. 
http://radiotjanst.se/sv/avgiften/. 
Broadband Strategy for Sweden, Government Offices of Sweden, 2009, p.34. 
http://www.po.se/english. 
http://www.po.se/english/how-self-regulation-works. 

Secrecy 

Act, 

44 

45 

46 

47 

48 

642 


 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
  
  
 
  
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

The  Swedish  Broadcasting  Authority  is  responsible  for  monitoring  radio  and  television 
programmes. The Broadcasting Commission deals with complaints regarding the content 
of media broadcast by Swedish companies at the local, regional and national levels.49 The 
Commission’s  decision  can  be  guilty,  exculpatory  (i.e.  free  from  blame),  or  exculpatory 
with  criticism.  The  result  of  a  guilty  decision  depends  on  what  rule  the  company  has 
broken; it may have to publicise the decision, it may be required to pay a special fee to 
the state, or it may be fined if it does not comply with certain measures. 

However, as many television channels are owned by foreign companies, they do not fall 
under  the  Swedish  Radio  and  Television  Act  and  instead  follow  the  rules  of  the  country 
where the company is established. Several of the main channels broadcast to Sweden fall 
within these rules. TV3, TV6, TV8 and TV10 are broadcast by Viasat Broadcasting UK Ltd; 
Kanal  5  and  Kanal  9  are  broadcast  by  SBS  Broadcasting  Networks  Ltd.  As  these  two 
companies  are  established  in  the  UK,  complaints  are  handled  by  the  British  authority 
Ofcom (Office of Communication). A complaint must have reached Ofcom within 20 days 
from the date of broadcast. Matters relating to TV advertisements are sent on to the ASA 
(Advertising Standards Authority). An agreement has been reached whereby the Swedish 
Broadcasting  Commission  sends  complaints  regarding  the  British  companies  to  Ofcom; 
Ofcom reports the outcome of any review to the Swedish Broadcasting Commission.50 

As the Broadcasting Commission deals with complaints regarding the content of Swedish 
media  broadcasts  there  is  no  need  for  a  special  ombudsman  at  the  public  service 
broadcaster. 

In  addition  to  these  media-specific  procedures,  the  Swedish  Consumer  Agency 
(Konsumentverket)  has  the  task  of  safeguarding  consumer  interests.  The  Agency’s 
Director  General,  also  the  Consumer  Ombudsman,  represents  consumer  interests  in 
relations with businesses and can pursue legal action.51 

- Participation in media operators/(self-)regulatory bodies 

Many media operators have set up viewers’ or readers’ panels, but it depends very much 
on the individual company what influence these panels have.  

2.2.26.2.  Main Players in the Media Landscape 

2.2.26.2.1. 

Radio 

The  conditions  for  sending  commercial  radio  have  recently  been  relaxed,  following  the 
new Radio and Television Act. Commercial radio’s total revenue amounted to 688 million 
SEK  in  2010.52  Two  main  groups,  MTG  (Modern  Times  Group)  and  SBS  Radio,  control 
virtually all of the commercial radio market. 

71.4% of the Swedish population listen to radio at least 5 minutes on a regular day. On 
average they listen for 3 hours and 10 minutes every day.53 

49 

50 

51 

52 

53 

http://www.radioochtv.se/Tillsyn/Granskning-av-program/Granskningsnamndens-beslut/. 
http://www.radioochtv.se/Tillsyn/Granskning-av-program/Detta-kan-man-anmala/. 
http://www.konsumentverket.se/otherlanguages/English/About-the-Swedish-Consumer-Agency/. 
Den  svenska  mediemarknaden  2011,  Sundin,  MedieNotiser  Nr.  3/2011,  Nordicom  (Nordic  Information 
Centre for Media and Communication Research), p. 23,
http://www.nordicom.gu.se/?portal=mr&main=info_publ2.php&ex=346. 
TNS SIFO Radioundersökningar Rapport II 2012,
http://www.tns-sifo.se/rapporter-undersokningar/radioresultat. 

643 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
                                                 
  
 
  
 
  
  
 
  
 
  
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

MTG  Radio  has  45  stations,  with  an  audience  share  of  18%.  SBS  Radio  has  greatly 
strengthened  its  position  on  the  market  recently  through  several  major  acquisitions, 
including Bonnier radio. It has 42 stations, and in December 2010 received 13 of the 14 
new broadcasting licenses announced by the Broadcasting Authority. SBS Radio currently 
has an audience share of 15%. The balance of market power will change in 2013 when 
SBS  Radio  takes  over  the  running  of  NRJ’s  20  stations,  which  have  been  part  of  MTG 
since 2004. 

Public  service  radio,  Sveriges  Radio,  has  four  national  channels,  26  local  channels  and 
some  digital  channels.  Public  service  radio  accounts  in  total  for  51%  of  the  audience 
share; the largest national channel is P4 with 30%. Local radio gains 2.7% and web radio 
4.4% (divided approximately equally between public service and commercial radio) of the 
audience share.54 

2.2.26.2.2. 

Television 

Television has undergone a transition in the 2000s from expensive analogue technology 
to  low-cost  digital  technologies,  which  has  fundamentally  changed  production  and 
distribution conditions. As a result, a number of new channels have been launched by all 
the  major  players  in  the  market.  These  new  channels  are  generally  niche  channels, 
focusing  for  example  on  sport  or  nature.  A  number  of  large  foreign  media  groups  have 
recently established themselves on the TV production market through the acquisition or 
launch  of  companies,  for  example  the  British  company  ITV  with  ITV  Studios  Nordic  and 
the German company Bertelsmann with Freemantle. Within the distribution market there 
is  intense  competition  between  satellite,  cable  and  terrestrial  networks  and  between 
companies in each sector. The major telecom companies have in recent years started to 
offer IPTV and mobile TV. 

70.7% of the Swedish population watched TV at least 5 minutes every day in 2011. On 
an average day people watched TV for 162 minutes which is 4 minutes less than in 2010. 

Public  service  television,  Sveriges  Television,  consisting  of  5  channels,  has  a  combined 
audience  share  of  35%.  The  TV4  Group,  consisting  of  20  channels,  follows  with  a  29% 
audience 
SBS 
Broadcasting/ProSiebenSat1 (9%).55 

Viasat/MTG 

players 

(17%) 

share. 

Other 

and 

are 

54	 

55	 

Figures  taken  from  Den  svenska  mediemarknaden  2011,  Sundin,  MedieNotiser  Nr.  3/2011,  Nordicom,  p. 
23-24. 
Figures  taken  from  Den  svenska  mediemarknaden  2011,  Sundin,  MedieNotiser  Nr.  3/2011,  Nordicom,  p. 
25-26, 43-44. 

644 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
 
 
  
 
 
 
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 147 SE: Main television operators, their channels and audience share 

TV Company 

Number of Channels 

Audience 
share 2010 % 

Sveriges Television 

TV4/Bonnier 

Viasat/MTG 

SBS Broadcasting/ProSiebenSat1 

6 
e.g. SVT1, SVT2 

18 
e.g. TV 4, Canal + 

19 
e.g. Channel 3, 6, 8 

2 
e.g. Channel 5 and 9 

Discovery 

Viacom 

Disney 

Time Warner 

BBC 

MMG 

Other 

6 

4 

3 

4 

4 

4 

35.3 

28.8 

17.3 

9 

2.2 

1.9 

1.8 

0.8 

0.4 

0.2 

2.7 

2.2.26.2.3. 

Press and publishing 

In 2010 the overall revenues from the newspaper business amounted to about 18 billion 
SEK.  An  additional  492  million  SEK  are  added  through  the  Swedish  press  subsidies, 
representing an added income of 2.6%. The overall result from the newspaper business 
was 1.4 billion SEK. 

The  two  largest  newspaper  owners  are  the  Stampen  Group  and  the  Bonnier  Group, 
accounting for 23–24% of the total revenues of the daily newspaper industry. The third 
largest newspaper unit is the Schibsted Group with a share of 16%. This means that that 
the two biggest units accounted for 47% of the industry’s revenues.56 

Sweden has about 170 newspapers with a circulation of about 4 million. Around 87% of 
the Swedish population reads a newspaper daily.57 

56 

57 

Source: Report by Press Subsidies Council (Presstödsnämnden) on the Economy of the Daily Press for 
2010 (Dagspressens Ekonomi). http://www.presstodsnamnden.se/publikationer-2/dagspressens­
ekonomi/. 
http://www.tu.se/in-english/1697-swedish-newspapers. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.26.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

Moving images, TV and video clips have become an increasingly common activity on the 
Internet. Larger and faster broadband has contributed to this trend. In 2011, 21% of the 
Swedish population watched TV via the Internet, as compared to 9% in 2009. YouTube is 
one of the most visited websites.  

In  2011,  the  following  types  of  media  were  –  at  least  occasionally  –  accessed  via  the 
Internet:58 

Table 148 SE: Access to media websites/types of content 

Types of media accessed 

(at least occasionally) 

Newspapers 

Music (listening/downloading) 

TV 

Video (watching/downloading) 

Radio 

Percentage (%) 

80 

66 

54 

53 

45 

With  regards  to  the  daily  usage  patterns,  35%  read  newspapers  online  every  day,  6% 
listen to radio and 4% watch TV online. The most commonly visited online TV channel is 
SVT,  the  Swedish  public  service  television,  followed  by  TV4,  which  is  only  half  as 
common. 

Another  trend  is  online  music,  with  services  such  as  Spotify  streaming  music  at  a  wide 
selection and low cost. In 2011, 57% of the Swedish population listened to music online, 
which correlates to almost everybody interested in music in general.59 

Monthly  statistics  over  the  most  visited  Swedish  websites,  calculated  according  to  the 
number of daily visitors and page views, are available on http://www.alexa.com. 

58	 

59	 

from 

Taken 
http://www.internetstatistik.se/rapporter/swedes-and-the-internet-2011/, p. 14. 
Swedes and the Internet 2011, Report by .SE, http://www.internetstatistik.se/rapporter/swedes-and-the­
internet-2011/ 

Internet 

Swedes 

Report 

2011, 

and 

the 

by 

.SE, 

646 


 
 
  
 
 
 
 
  
 
  
                                                 
  
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Table 149 SE: Most important websites used/monthly basis 

Rank 

Website 

Description 

Website Address 

1 

2 

3 

4 

5 

6 

7 

8 

9 

Google 

Search engine 

http://www.google.se 

Facebook 

Social network 

http://www.facebook.com 

Google 

Search engine 

http://www.google.com 

YouTube 

Video search engine 

http://www.youtube.com 

Aftonbladet 

Online news 

http://www.aftonbladet.se 

Wikipedia 

Encyclopaedia 

http://www.wikipedia.org 

Windows Live 

Search engine 

http://www.live.com 

Blocket 

Individual advertisements 

http://www.blocket.se 

Blogspot 

Blogging platform 

http://www.blogspot.se 

10 

Yahoo! 

Search engine 

http://www.yahoo.com 

11 

Swedbank AB 

Bank 

http://www.foreningssparbanken.se 

12 

LindedIn 

Social network 

http://www.linkedin.com 

13 

The Pirate Bay 

Bittorent directory 

http://www.thepiratebay.se 

14 

Expressen 

Online news 

http://www.expressen.se 

15 

Twitter 

Social network 

http://www.twitter.com 

16 

WordPress.com 

Blogging platform 

http://www.wordpress.com 

17 

Hitta 

Yellow Pages 

http://www.hitta.se 

18 

Dagens Nyheter 

Online news 

http://www.dn.se 

19 

20 

The 
Movie Database 

Internet 

Svenska 
Dagbladet 

Media database 

http://www.imdb.com 

Online news 

http://www.svd.se 

The  following  figures  are  taken  from  http://www.alexa.com/topsites/countries/SE  on  8 
May 2012: 

Statistics  updated  on  a  weekly  basis  are  also  available  and  can  be  found  at 
http://www.tns-sifo.se/rapporter-undersokningar/webbplatsstatistik. 

647 


 
 
 
 
 
 
 
 
 
 
  
Policy Department C: Citizens' Rights and Constitutional Affairs 

2.2.26.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

TV in Sweden is being delivered by terrestrial, cable, satellites and IPTV. The main pay-
TV operators in Sweden are (the infrastructure owner within parenthesis):60 

• Terrestrial: Boxer (Teracom) 
• Cable: Com Hem, Canal Digital, Tele2Vision, numerous local distributors 
• Satellites: Viasat (SES), Canal Digital (Telenor) 
• IPTV: Telia Digital-TV, FastTV, Bredbandsbolaget, Canal Digital 

Table 150 SE: Providers of digital TV services (June 201161) 

Provider of digital TV 

Market share based on subscriptions 

Boxer 

Comhem 

Canal Digital 

Telia Sonera 

Viasat 

Others 

23.3% 

22.8% 

12.9% 

15.9% 

12.3% 

12.7% 

Table 151 SE: Providers of broadband access (June 2011)62 

Provider of (fixed & mobile) broadband 

Market share based on subscriptions 

Telia Sonera 

Tele 2 

Telenor 

Hi3g 

ComHem 

Others 

37.4% 

15.6% 

21% 

9.3% 

7.5% 

9.1% 

60	 

61	 

62	 

Swedish 

http://konkurrensverket.se/t/asp/rapport.asp?rid=126. 
The 
http://www.statistik.pts.se/pts1h2011e/index.html. 
The 
http://www.statistik.pts.se/pts1h2011e/index.html. 

Telecommunications 

Telecommunications 

Swedish 

Market 

Market 

first 

half-year 

2011, 

PTS, 

first 

half-year 

2011, 

PTS, 

648 


 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
  
 
  
 
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

2.2.26.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

The audience share per day for SVT1 is 39%, SVT2 23% and TV4 36%.63 

In  2010,  the  share  of  total  advertising  investment  was  the  following:  newspaper  26%, 
Internet/mobile 19%, television 17%, radio 2%.64 

According  to  another  report,  a  total  of  13,5  billion  SEK  was  invested  into  advertising  in 
2011.  TV  advertising  amounted  to  5,1  billion,  newspapers  to  around  4  billion  SEK, 
Internet to 1,7 billion and radio to 412 million.65 

2.2.26.3.  Conclusion and Recommendations 

Freedom of information and freedom of expression have had a long and strong tradition 
in Sweden. Not only from a historical perspective – Sweden enacted the first freedom of 
information  act  in  1766,  but  also  from  a  legislative  perspective,  as  both  freedoms  are 
stipulated in the Swedish constitution. Starting from this strong base, the importance of 
human  rights  in  context  with  other  interests  such  as  privacy,  Sweden  has  seen  a  lot  of 
discussion  on  the  balance  of  different  interests.  Recent  discussions  focused  particularly 
on  the  possibility  for  websites  to  receive  a  certificate  of  no  legal  impediment 
(utgivningsbevis), the consequence being that several Swedish online services no longer 
fall under the Swedish Personal Data Act. 

The self-regulatory regime within the press has been effective and has guaranteed both 
protection  of  individual  interests  and  freedom  of  expression  for  journalists  and  media 
organisations.  Effective  complaint  procedures  are  in  place  and  diversity  in  content  and 
culture has been seen not only in the press but in TV and radio alike. The high amount of 
soft  law  and  self-regulation  within  press,  radio  and  TV  does  not  hinder  access  to 
information by citizens, rather it allows for more flexibility and therefore does not require 
any further legislative measures.  

Though  media  concentration  is  rising  in  certain  sectors,  especially  within  print  and 
newspapers,  competition  is  still  strong  enough  to  provide  a  working  market  with 
advantages for consumers and the general public. In the event of dominant positions and 
mergers that would change the market balance, the Swedish Competition Authority can 
prevent  and  limit  possible  damage.  Though  not  only  a  Swedish  phenomena,  media 
companies  are  increasingly  growing  and  merging  into  several  markets  (press,  tv,  radio, 
internet). Media providers are in many instances owned by non-Swedish companies, and 
may  provide  services  in  several  European  countries  at  the  same  time.  This  leads  to  an  
increased need of harmonised legislation in order to ensure a certain minimum standard 
throughout the  EU,  not  only  with  regard  to  access  rights  but  also  complaint  procedures 
which at the moment involve cross-border cooperation in some cases. 

Public  service  media  guarantees  diversity  in  content  and  impartiality  while  press 
subsidies  ensure  that  also  smaller  newspapers  can  survive  and  share  their  opinion  with 
the  public.  Sweden  completed  its  digital  switchover  for  television  in  late  2007.  The  new 
Radio and Television Act was a consequence of the move to digital and the need to fully 
implement the Audio-Visual Media Services Directive (2007/65/EC). The new Act covers 
on-demand television, unlike the previous. In addition, rules on advertising are simplified 

63  MMS Annual Report 2011, in Swedish at http://www.mms.se/rapporter/tv-tittandet/ar.asp. 
64 
Den svenska mediemarknaden 2011, Sundin, MedieNotiser Nr. 3/2011, Nordicom, p. 6. 

65  Mediebyråbarometern för december och helåret 2011, 

http://www.sverigesmediebyraer.se/mediebarometerDec2011.shtml. 

649 


 
 
  
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
  
 
 
  
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

and specific provisions regarding product placement have been introduced.66 As Sweden 
has implemented the relevant EU Directives, no concrete measures are necessary in this 
regard. 

initiatives, 

The  Swedish  broadband  strategy  has  greatly  increased  the  number  of  high-speed 
Internet  connections  and  the  infrastructure  is  continuously  developing.  In  addition,  e-
government 
Delegation 
(http://en.edelegationen.se/),  aim  at  providing  citizens  with  a  vast  variety  of  electronic 
services  which  allows  people  living  in  remote  areas  to  access  services  otherwise  not 
easily available to them. These initiatives together actively encourage access by citizens 
and  no  further  measures  are  currently  necessary  in  order  to  ensure  universal  access  to 
services. 

eGovernment 

faciliated 

The 

by 

The  Swedish  principle  of  openness  combined  with  a  strong  protection  for  sources  and 
whistleblowers has guaranteed citizens’ access to information and contributed to an open 
public debate. Opinions have been voiced on the risks of such a strong protection, as the 
privacy  of  individuals  might  be  at  stake  at  times.  It  remains  to  be  seen  if  the  current 
Government  inquiry  will  lead  to  any  changes  in  the  legislation  and  if  the  balance  of 
interests will be adapted in order to consider personal integrity to a larger extent. 

As  the  report  touches  upon  opposing  human  rights  i.e.  access  to  information  and 
protection  of  privacy,  as  well  as  bringing  in  national  and  European  legislative 
competence,  possible  recommendations  must  be  dealt  with  at  different  levels.  To  the 
extent  EU  harmonisation  is  applicable,  ensuring  a  minimum  level  of  freedom  of 
information  has  to  be  a  priority.  Privacy  will  always  be  one  of  the  main  opponents  to 
freedom of  information but is generally something that needs to be weighed on a case-
by-case  basis.  As  freedom  of  information  is  very  much  connected  to  government  and 
public  authorities  some  aspects  should  stay  within  the  competence  of  the  national 
legislator,  and  national  traditions  should  be  taken  into  consideration.  From  a  Swedish 
point  of  view,  the  principle  of  openness  is  considered  particularly  important.  Although 
this is shown in the area of public service, the growing private sector involvement in the 
media  market  may  not  reflect  this  principle  to  the  same  extent.  As  private  sector 
involvement  is  unlikely  to  diminish  in  the  near  future,  a  higher  level  of  transparency 
would be recommended in order to ensure citizens’ access rights.  

Due to convergence of different media types (newspapers being published online, 
TV available via mobile phones etc.), the fact that  different legislation is applic­
able  dependent  upon  the  media  in  question  (radio,  TV,  internet  etc.),  and  that 
different  rules  and  procedures  apply  depending  on  the  media  company  in 
question  (public  service  broadcaster,  private  company  established  nationally  or 
outside  of  Sweden),  the  current  media  landscape  in  Sweden  is  somewhat  com­
plex  for  the  average  citizen  to  fully  comprehend.  The  complexity  of  the  current 
framework may lead to certain problems, such as a citizen being unsure of where 
to file a complaint. In order to make the framework easier to understand, tech­
nology-neutral  legislation  focusing  on  the  content  and  not  the  medium  would 
therefore be recommended. In addition, information on which authority has res­
ponsibility for particular issues should be made more readily available to citizens, 
so  that  in  the  case  they  are  unsure  of  where  to  turn  to  they  are  guided  to  the 
relevant  authority.  The  number  of  responsible  authorities  could  also  be  mini­
mised, and a more streamlined approach adopted.  

66 

Chapter 8 and Chapter 6 respectively. 

650 


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
The Citizens' Right to Information: Law and Policy in the EU and its Member States 

UNITED KINGDOM 


2.2.27.	  United Kingdom 

2.2.27.1.	  Human  Rights/Fundamental  Guarantees,  Legislation/Regulation,  Codes  of 

Conduct/Practice 

The  United  Kingdom  does  not  have  a  formal,  written  constitution.  Protection  of 
fundamental  freedoms,  usually  found  in  written  bills  of  rights,  can  be  found  instead  in 
ordinary  statutes,  though  the  courts  have  begun  to  recognise  that  some  statutes  are 
more  significant  in  constitutional  terms  than  others.1  While  parliamentary  sovereignty 
means  that  this  category  of  statutes  could  be  repealed,  any  such  repeal  would  require 
the express wording of Parliament. 

2.2.27.1.1. 

Human rights/Fundamental freedoms 

  Freedom of expression/Freedom of the media 

As  noted  in  the  previous  report,  fundamental  rights  are,  in  principle,  protected  in  the 
United Kingdom by the Human Rights Act 1998, which incorporates the provisions of the 
European  Convention  on  Human  Rights,  including  freedom  of  expression  (article  10 
ECHR). Two points in this regard should be noted. First, section 12 of the Human Rights 
Act  provides  specific  protection  for  freedom  of  expression  in  that,  when  determining  a 
case  which  impacts  upon  freedom  of  expression,  the  court  should  have  regard  to  any 
code  of  practice.  Initially,  it  had  been  thought  that  this  meant  that  the  courts  would 
automatically  defer  to  the  relevant  regulatory  (or  self-regulatory)  bodies.  This  has  not 
proved to be the case. Apart from section 12, the media are not guaranteed any special 
rights to freedom of expression, or rights of access to information, over and above that 
awarded to individuals (see immediately below), with the possible exception of protection 
of  journalists’  sources.  Secondly,  while  it  is  assumed  that  the  human  rights  act  is  a 
constitutional statute, as noted this does not mean it is immune from repeal. The current 
government in its election manifesto said it would repeal the human rights act, replacing 
it with a "British" Bill of Rights. This controversial proposal has not yet been acted upon. 
The Human Rights Act therefore, for the time being, remains in force. 

  Freedom to receive and to access information 

UK legislation provides for access to public information. The Freedom of Information Act, 
as  described  in  the  initial  country  report,  came  into  force  in  2005.  Note  there  is  an 
equivalent act to cover Scotland (Freedom of Information (Scotland) Act 2002). The Data 
Protection  Commissioner  was  given  responsibility  for  overseeing  the  act,  and  was  re­
named  the  Information  Commissioner  (s.  18(1)  Freedom  of  Information  Act).  It  is  far 
from  clear  whether  the  Freedom  of  information  Act  is  a  constitutional  statute  as 
described above. 

Although the UK subscribes to the principle of open justice; a trial has been described as 
a ‘public event’2 and the courts have emphasised that not only must justice be done, but 
it must be seen to have been done.3 Thus, the rules on access to the family courts (for 
the purpose of reporting on the process of justice) have been relaxed. Current proposals 

1 

2 

3 

Thoburn v Sunderland City Council [2003] QB 151, DC.
 
Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 607.
 
R v Sussex Justices; Ex parte Macarthy [1924] 1 KB 256, 259.
 

651 


 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
  
 
 
  
 
 
  
 
 
 
Policy Department C: Citizens' Rights and Constitutional Affairs 

aim to allow for a greater number of hearings in camera, which would exclude not only 
members of the public but also media representatives. This apparently is in the interests 
of the fight against terrorism. 

The  protection  to  journalists'  sources,  protected  partly  by  virtue  of  the  Strasbourg 
jurisprudence  on  freedom  of  expression,  is  recognised  within  the  UK  via  a  range  of 
statutory  provisions,  but  not  given  a  express  constitutional  status,  notably  s.  10 
Contempt  of  Court  Act  (see  2.2.27.1.2  below).  Certainly,  some  concerns  have  been 
expressed in Parliament as to whether stronger guidance should be given to police forces 
as to the need to respect confidentiality of sources.  

  Safeguards on regulatory authorities 

The  Information  Commissioner’s  Office  (ICO)  is  an  independent  public  body  set  up  to 
uphold  information  rights  in  the  public  interest;  it  also  retains  responsibility  for  data 
protection. 

  Safeguards on “universal service” 

Universal  service  is  protected  via  the  regulation  of  broadcasters  and  the  imposition  of 
must carry/must-offer obligations in the statutory regime (see chapter below). 

2.2.27.1.2. 

Media order (de lege lata and de facto) 

Media regulation in the UK is a patchwork of self-regulatory, co-regulatory and regulatory 
initiatives  involving  a  range  of  public  bodies  and  industry  initiatives.  As  noted  in  the 
previous  report,  the  key  piece  of  legislation  is  the  Communications  Act  2003,  which 
covers electronic communications including radio and television broadcasting and confers 
powers  to  regulate  the  sector,  on  Ofcom.  It  has  a  broad  range  of  powers  concerning 
licensing,  content  regulation,  radio  frequency  allocation  and  competition  matters.  The 
BBC  is  subject  to  a  separate  regime,  contained  in  its  Charter  and  agreement.4  As  the 
Charter  forms  the  basis  of  the  BBC’s  incorporation,  as  well  as  defines  its  nature  and 
tasks,  the  Charter  must  be  renewed  to  ensure  the  BBC’s  continued  existence  and 
functioning. The current Charter runs until 31 December 2016. Recent information from 
DCMS  informs  us  that  a  White  Paper  is  planned  for  early  2013,  with  a  Bill  to  be 
introduced  by  the  last  session  of  this  Parliament.  The  press  is  currently  not  subject  to 
regulation, but instead claim to operate a self-regulatory system. This is currently subject 
to review under the Leveson Enquiry. 

  “Market Entry” 

- Licensing schemes; remit psm; notification for print publications 

Broadcasters  remain  regulated  via  a  licence  granted  by  The  Office  of  Communications 
(Ofcom), though for many categories of licence (e.g. digital programme services, digital 
additional  services  and  their  radio  equivalents)  Ofcom  must  grant  the  licence  if  certain 
conditions are fulfilled. Such licences do not confer a right of access to a communications 
network or spectrum: the content provider must make its own arrangements. Following 
the  provisions  of  the  Communications  Act,  public  service  broadcasters  have  a  greater 
range  of  obligations  imposed  on  them  (via  licence  conditions)  than  the  non­
terrestrial/commercial  broadcasters  (holding  a  television  licensable  content  service 

4 

See  further,  Woods,  L.,  ‘Regulation  and  Extra-Legal  Regulation  of  the  Media  Sector’  in  Goldberg,  Sutter 
and Walden (eds) Media Law and Practice (OUP, 2009), pp. 347 et seq. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

licence).  The  government  is  proposing  to  introduce  specific  provisions  to  allow  the 
introduction  of  local  television  services  on  Freeview.  Comprising  three  statutory 
instruments,5 these will form the framework to allow Ofcom to regulate local television: 
currently,  two  of  these  orders  are  still  in  draft.  On-demand  services  must  notify  The 
Authority  for  Television  On  Demand  (ATVOD)  of  the  on-demand  services  that  they 
provide. ATVOD is under a duty to ensure that service providers comply with standards 
set  down  in  the  amended  Communications  Act  and  may  ensure  compliance  through 
enforcement notification and financial penalties.6 

The  policy  direction  of  the  Communications  Act  was  to  a  large  extent  deregulatory.7  In 
line  with  this,  Ofcom,  which  is  an  independent  body,  has  delegated  regulatory 
responsibility  in  respect  of  broadcast  advertising  to  the  Advertising  Standards  Authority 
(ASA)  and,  in  respect  of  video  on  demand,  to  ATVOD.8  Although  Ofcom  has  some 
regulatory  responsibility  for  the  BBC,  the  BBC  is  subject  to  a  separate  regime  under  its 
Charter, involving the BBC Trust. 

The print media lies outside Ofcom's remit, being governed by a self-regulatory scheme, 
based  on  the  Editors'  Code,  and  implemented  by  the  Press  Complaints  Commission 
(PCC). The proposal to give  Ofcom the power to oversee all media and not just TV and 
radio  was  dropped  from  the  (then)  Digital  Economy  Bill  in  an  attempt  to  get  the  bill 
through  parliament  before  the  end  of  that  parliament.  Following  the  phone  hacking 
scandal,  the  Leveson  Enquiry  was  set  up.  The  Leveson  Inquiry  as  an  investigation  into 
the culture, practices and ethics of the press is running in four “modules” dealing with: 

	  the relationship between the press and the public and looks at phone-hacking and 

other potentially illegal behaviour; 

	  the  relationships  between  the  press  and  police  and  the  extent  to  which  that  has 

operated in the public interest; 

	  the relationship between press and politicians; and  

	  Recommendations  for  a  more  effective  policy  and  regulation  that  supports  the 
integrity and freedom of the press while encouraging the highest ethical standards. 

Some reporting has suggested the Leveson Inquiry is looking at the bid by NewsCorp to 
acquire shares in BSkyB. This is not the case; the matter has been discussed as part of 
“module  3”,  as  the  final  say  in  media  mergers  can  rest  with  the  Secretary  of  State  for 
Culture  Media  and  Sport  and  is  a  politicised,  if  not  political,  decision.  As  a  result  of  the 
phone-hacking revelations, the PCC has agreed to transfer its responsibilities and assets 
to a new regulatory body.9 The form of this body has not yet been agreed, and the PCC 
continues as a transitional regulator. 

5 

6 

7 

8 

9 

The  Wireless  Telegraphy  Act  2006  (Directions  to  OFCOM)  Order  2012  (still  in  draft);  The  Local  Digital 
Television  Programme  Services  Order  2012  (still  in  draft);  and  The  Code  of  Practice  for  Electronic 
Programme Guides (Addition of Programme Services) Order 2011 (SI 3003/2011). 
S.  368I  Communications  Act  2003,  as  amended  by  The  Audiovisual  Services  Regulations  2009  (SI 
2009/2979). 
See also Deregulation and Contracting Out Act 1994 (“DCOA”). 
S, 368B Communications Act 2003. 
PCC,  Minutes  of  the  meeting  of  The  Press  Complaints  Commission  Limited,  held  on  Wednesday  21 
February 2012, available at 
http://pcc.org.uk/assets/559/Minutes_February_2012.pdf [accessed 13th April 2012]. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

- Media pluralism/ownership; competition law aspects 

The  basic  framework  for  media  ownership  remains  as  it  was  described  in  the  previous 
report; that is, a media-specific regime found in the Communications Act, which imposes 
a  specific  public  interest  test  on  media  mergers,  against  the  general  competition 
framework  found  in  the  Competition  Act  1998  in  which  the  main  actors  are  the 
Competition Commission and the Office of Fair Trading (OFT). As suggested above, there 
was public concern about the independence of the relevant Secretary of State in making 
his  decision  on  the  BSkyB  bid  (referred  under  this  regime),  and  the  revelations  of  the 
Leveson Inquiry have re-inforced this concern. Critics of the regime have suggested that 
it  is  inappropriate  for  final  decisions  to  be  made  as  an  administrative  matter  by  a 
politician  and  that  it  might  be  preferable  to  have  some  form  of  check  on  this  power  – 
either by an obligation to follow the regulators’ views or by having the decision approved 
by Parliament (see further below). 

Note  that  the  Competition  Commission  and  OFT  are  not  limited  to  media  ownership 
concerns, but may review anti-competitive practices of media undertakings generally. For 
example,  the  OFT  referred  ‘project  kangaroo’  to  the  Competition  Commission.  Project 
Kangaroo was a joint venture between the BBC, Chanel 4 and ITV to produce a paid-for 
on-line video-on-demand service. The service was felt to constitute too much of a threat 
to  competition  in  a  developing  market  and  the  project  was  blocked  by  the  Competition 
Commission.10 

Under  the  provisions  introduced  by  the  Enterprise  Act,  Ofcom  has  a  duty  to  flag  up 
concerns  about  media  plurality,  whilst  the  Broadcasting  Act  also  makes  the  regulator 
responsible  for  ensuring  licence  owners  of  broadcast  media  are  "fit  and  proper".  The 
meaning of ‘fit and proper’ has been the subject of some debate in the light of the phone 
hacking scandal: the Liberal Democrats raised the question of the extent to which group 
companies  would  be  tainted  by  the  activities  of  other  companies  in  the  same  group.11 
While  this  seems  in  principle  possible,12  Ofcom  did  not  seem  enthusiastic  about 
investigating the matter over the summer of 2011.13 Nonetheless, the matter was raised 
again  in  the  House  of  Lords  but  any  action  seems  to  be  awaiting  the  outcome  of  the 
Leveson  Enquiry  and  any  decision  to  bring  criminal  charges  against  the  persons 
involved.14 

Ofcom  is  under  a  duty15  to  report  on  media  ownership  every  three  years:  the  most 
recent  report  was  that  of  17  November  2009.  As  a  result  of  this  report,  a  statutory 
instrument  was  introduced16  to  remove  the  restrictions  on  ownership  in  local  radio  and 
press.  It  amends  Schedule  14  to  the  Communications  Act  and  the  Media  Ownership 
(Local Radio and Appointed News Provider) Order 2003.17 The following restrictions were 
removed  from  the  Schedule:  the  prohibition  on  a  person  holding  a  licence  to  provide  a 
regional  Channel  3  service  where  that  person  also  runs  a  local  newspaper  (or  local 
newspapers) with a local market share of 20 per cent or more in the coverage area of the 
service;  the  prohibition  on  holding  more  than  one  national  radio  multiplex  licence;  and 

10 

11 

12 

13 

14 

15 

8 

July 

press 

Release 

http://www.competition-commission.org.uk/press_rel/2009/feb/pdf/05-09.pdf. 
See 
http://www.libdems.org.uk/press_releases_ 
2011, 
detail.aspx?title=Simon_Hughes%3A_Ofcom_must_investigate_whether_BSkyB_is_%E2%80%98fit_and_ 
proper%E2%80%99&pPK=292bc47b-a281-4faa-a990-7e0c0505885f. 
Ofcom's paper "Frequently asked Questions 'Fit and Proper' in relation to broadcast licensees" of 18 July 
2011. 
Ofcom's letter to Rt Hon Simon Hughes MP, Rt Hon Don Foster MP and Tim Farron MP of 22 July 2011. 
Hansard, House of Lords Debates 7 March 2012, columns 1771-2. 
S. 402, and Schedule 14 to the, Communications Act 2003. 

16  Media Ownership (Radio and Cross-media) Order 2011 (SI 1503/2011). 
17 

The Media Ownership (Local Radio and Appointed News Provider) Order 2003 (SI 2003/3299). 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

the  prohibition  on  holding  more  than  one  local  radio  multiplex  licence  in  specified 
circumstances.  

The efficacy of the media ownership rules and the public interest test has, however, been 
the subject of some debate in the light of News Corporation’s abortive bid for BSkyB, and 
Ofcom suggested that the public interest test may need revision.18 Particular concern has 
been  expressed  about  concentration  of  control  in  news  production  for  television.19 
Following  the  phone-hacking  scandal,  there  has  been  some  suggestion  that  media 
ownership  rules  need  further  amendment  to  prevent  the  rise  of  the  over-mighty  press 
baron.20  Consequently,  Ofcom  has  been  requested  to  work  on  "a  new  framework  for 
media  plurality  in  a  cross-media  world".21    A  consultation  on  the  issues  closed  on  18 
November  2011,  but  the  outcome  is  not  yet  known.  The  House  of  Commons  Select 
Committee contemporaneously launched an inquiry into media plurality.22 

As  the  Leveson  Inquiry  reveals  malpractice  among  the  UK  media,  broadcast  regulator 
Ofcom  is  recommending  that  the  state  of  media  ownership  should  be  assessed  around 
once every four years but rejects the prospect of market share prohibition. In its report 
submitted in early June 2012, Ofcom has proposed an effective framework for measuring 
media  plurality  be  based,  to  a  significant  extent,  on  data  and  analysis.  It  said  that  on 
balance, a periodic review of plurality every 4 or 5 years is the best approach with further 
consideration needed as to whether the existing media merger regime should sit within a 
new  proposed  plurality  regime  or  continue  in  parallel.  Ofcom  added  that  online  media 
should be included in a plurality review as online news sources are used by a significant 
and growing proportion of the UK population. Ofcom rejects on the other hand the notion 
of  share  prohibition  as  being  “inflexible”.  It  notes  that  in  terms  of  prohibitions  on 
transactions,  there  is  currently  a  prohibition  which  prevents  an  organisation  with  more 
than  a  fifth  of  national  newspaper  circulation  from  holding  a  similar  share  or  more  in  a 
Channel  3  licence  or  licensee.  Ofcom  considers  that  the  case  for  retaining  or  removing 
this  rule  in  the  context  of  a  new  proposed  plurality  regime  is  a  matter  for  the  UK 
Parliament.  Ofcom  recommends  that  the  BBC  Trust  assesses  the  BBC’s  contribution  to 
plurality,  both  internal  and  external,  and  considers  a  framework  for  measuring  and 
evaluating this periodically. 

Ofcom  also  has  more  general  competition  obligations.  It  was  under  its  competition 
powers  under  the  Enterprise  Act  that  Ofcom  carried  out  an  investigation  into  Premium 
Pay TV Movies (see further below),23 and with regard to Sky Sports provision,24 in both 
instances finding a distortion of competition. 

- Legal framework for psm; ability to fulfill their tasks 

The  framework  for  public  service  broadcasting  in  the  UK  remains  as  before:  the  BBC 
provision  under  the  Charter  and  Agreement  and  the  services  provided  by  terrestrial 
broadcasters  under  the  Communications  Act.  It  is  heavily  reliant  on  self-assessment, 
although  Ofcom  provides  a  review  of  the  provision  of  PSB  periodically,  most  recently  in 

18 

19 

20 

21 
22 

23 

24 

http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public­
interest-test-report.pdf. 
House of Lords Select Committee on Communications, The Ownership of the News, 1st Report of Session 
2007–08, (HL Paper 122–I). 
See e.g. House of Lords Debates, supra n. 12. 
http://www.culture.gov.uk/images/publications/CMS_188245_Ensuring_Meda_Plurality.pdf. 
http://www.parliament.uk/business/committees/committees-a-z/commons-select/culture-media-and­
sport-committee/inquiries/parliament-2010/media-plurality/. 
Ofcom, Premium pay TV movies – Decision, 4 August 2010,
http://stakeholders.ofcom.org.uk/consultations/movies_reference/statement/. 
Ofcom, Pay TV Statement, 31 March 2010,
http://stakeholders.ofcom.org.uk/consultations/third_paytv/statement/. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

2008. Note, however, the 2010 BBC funding settlement saw the licence fee frozen for 6 
years  at  £145.50  pa,  with  the  BBC  at  the  same  time  absorbing  costs  for  the  World 
Service and the Monitoring Service (previously the responsibility of the Foreign Office) as 
well as some of the costs of S4C (the Welsh language channel broadcast in Wales). While 
some concerns have been expressed about the impact on quality of increasing spending 
obligations while reducing funds, the government’s view is that this is a matter to which 
the BBC and BBC Trust must attend.25 

At  the  same  time,  the  Digital  Economy  Act  2010  (better  known  for  the  controversial 
obligations imposed on ISPs to stop on-line piracy) introduced new provisions regarding 
Channel 4: s. 22 Digital Economy Act 2010 inserted into the Communications Act 2003 a 
new  section,  s  198A,  which  requires  Channel  4  to  ‘participate  in  (a)  the  making  of  a 
broad range of relevant media content of high quality that, taken as a whole, appeals to 
the tastes and interests of a culturally diverse society,’26 which includes news and current 
affairs;  content  that  appeals  to  the  tastes  and  interests  of  older  children  and  young 
adults;  and  “feature  films  that  reflect  cultural  activity  in  the  United  Kingdom”.27  Its 
original  requirement  to  make  innovative  content  for  minority  groups  now  applies  to  its 
online activities as well as television. In general, this represents a strengthening on the 
public  service/public  sphere  obligations  of  Channel  428  which  otherwise  had  perhaps 
become  best  known  for  its  extensive  Big  Brother  transmissions.  New  content  reporting 
requirements were also imposed on Channel 4. 

- The role and functioning of regulatory authorities in these respects 

Save  to  the  extent  that  Ofcom  has  designated  ATVOD  and  the  ASA  as  competent 
authorities with regard to video on demand, the legal position has not changed since the 
last  report,29  although  the  public  climate  has  perhaps  altered.  In  particular,  the 
effectiveness of the PCC has been the subject of much criticism in the evidence given to 
the  Leveson  Inquiry.  Of  less  high  profile  has  been  the  response  to  ATVOD.  Many  web-
based providers (including the on-line version of newspapers and magazines) have been 
concerned  as  to  ATVOD’s  expansive  approach  to  its  jurisdiction,  which  has  led  to  a 
number  of  challenges  to  ATVOD’s  determination  of  whether  a  service  falls  within  the 
definition  of  ODPS.30  The  majority  of  the  appeals  to  Ofcom  have  been  unsuccessful, 
although some determinations have been withdrawn, in particular with regard to on-line 
newspapers.  Ofcom  plans  to  review  the  regulation  of  VOD  during  2012  and  has  invited 
stakeholders’  views.31  Note  also  the  proposals  with  regard  to  the  introduction  of  local 
television  services:  the  draft  order  will  extend  provisions  of  the  Broadcasting  Act  1996 
and Part 3 of the Communications Act 2003 (with modifications) to local digital television 
programme services and are thus to be regulated by Ofcom. 

25	 

26	 

27	 

28	 

29	 

30	 

31	 

Hansard, House of Lords Debates, 17 November 2010, column WA205, question HL3874. 
S. 198A(1)(a) Communications Act 2003. 
S. 198(A)(1)(b) Communications Act 2003. 
See section 265 Communications Act 2003. 
For  a  review  of  regulatory  bodies  in  this  sector  in  the  UK,  see  Woods,  L.,  ‘Regulation  and  Extra-Legal 
Regulation  of  the  Media  Sector’  in  Goldberg,  Sutter  and  Walden  (eds)  Media  Law  and  Practice  (OUP, 
2009). 
A  list  of  appeals  to  Ofcom  can  be  found  on  the  Ofcom  website:  http://www.atvod.co.uk/regulated­
services/scope-determinations. 
Ofcom, Invitation to Stakeholders to make contributions to ATVOD Review, 22nd march 2012, Available at 
http://stakeholders.ofcom.org.uk/binaries/broadcast/tv-ops/atvod-invite.pdf [accessed 13 April 2012]. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

  “Pursuit of Core Activity” 

- Ordinary law safeguards for journalistic activity 

The key provision  is s. 10 Contempt of Court Act, which permits journalists to  maintain 
the  confidentiality  of  their  sources.  It  is  subject  to  four  listed  exceptions,  although  the 
party  seeking  disclosure  must  show  that  disclosure  is  necessary  for  one  of  those 
purposes.  The  House  of  Lords  in  Ashworth  Hospital  Authority  v  MGN32  noted  that  the 
same  approach  to  the  issue  of  necessity  should  be  adopted  in  the  UK  as  in  the  case  of  
Goodwin  v  UK33  under  the  ECHR.  The  Police  and  Criminal  Evidence  Act  (PACE)  1984 
provides a special regime for the police when they wish to obtain “journalistic material”. 
On the other side of the coin, production orders may also be made under the Terrorism 
Act  200034,  and  during  the  phone-hacking  scandal,  (unsuccessful)  attempts  were  made 
by  the  police  to  use  the  Official  Secrets  Act  to  circumvent  the  PACE  regime.  Actions 
between  private  parties  may  also  result  in  journalists  being  forced  to  reveal  sources, 
through  Norwich  Pharmacal35  orders.  The  ECHR  decision  in  Financial  Times  v  UK36 
reiterated  that  protection  of  journalists'  sources  is  one  of  the  basic  conditions  of  press 
freedom  in  a  democratic  society,  even  when  the  source  is  operating  malevolently.  In 
finding  a  violation  of  Article  10  ECHR,  it  seems  the  approach  of  the  British  courts 
(admittedly  a  Court  of  Appeal  decision37  criticised  by  the  Lords  in  Ashworth)  was 
insufficient. As a contrast, it should be noted that their is no right of anonymity for those 
who seek to publish on-line. In the Author of a Blog,38 which concerned a whistleblower 
whose identity the Sunday Times sought to expose, Eady J held that anonymity was not 
protected by privacy. This is an unfortunate judgment as the court did not consider the 
freedom  of  expression  aspects  of  this  issue  (and  the  Leveson  Inquiry  reveals  that  the 
factual basis of the decision for the Sunday Times may have been inaccurate). 

Before  the  phone-hacking  scandal  broke,  there  was  much  in  the  press  about  the 
draconian  defamation  laws  and  the  illegitimate  development  of  a  law  of  privacy  by 
judges.  To  some  extent,  the  issue  of  whether  the  UK  law  on  defamation  is  acceptable 
depends  on  your  view  of  the  value  of  speech.  By  comparison  with  the  USA,  the  UK 
position  was  more  restrictive,  but  hardly  the  most  restrictive  in  Europe.  Case  law  had 
developed some protection39 and there were defences, though there were concerns about 
the  way  this  operated  in  practice40  as  was  recognised  in  Jameel  v  Dow  Jones.41 
Nonetheless, a new bill42 is under consideration, having recently passed second reading 
without  debate.43.  The  bill  proposes  to  legislate  so  as  to  avoid  trivial  claims,  arguably 
already  the  position  under  cases  such  as  Thornton  v  Telegraph  Media  Group  Ltd44  and 
even Jameel v Dow Jones,45 where the court reiterated the point that there needs to be a 
substantial  wrong.  The  view  was  taken  that  legislation  would  clarify  any  doubt  on  the 
matter and discourage dubious claims and a substial-harm-test was included in the bill. 
The  bill  also  proposes  a  new  defence  providing  for  responsible  publication  in  the  public 

32 

33 

[2002] UKHL 29.
 
(1996) 22 EHRR 123, para 39.
 

34  Malik v Manchester Crown Court & anor [2008] EWHC 1362 (Admin).
 
35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

[1973] 2 All ER 943.
 
Financial Times v UK Application no. 821/03, judgment 15 December 2009.
 
Interbrew SA v Financial Times [2002] EWCA Civ 274.
 
The Author of a Blog v. Sunday Times [2009] EWHC 1358 (QB).
 
Reynolds  v  Times  Newspapers  [1999]  4  All  ER  609;  Jameel  v  Dow  Jones  [2005]  EWCA  Civ  75;  Flood  v  

Times Newspapers Limited [2012] UKSC 11. 
For a general discussion of the issues and solutions see Reframing Libel: http://reframinglibel.com/ 
[2005] EWCA Civ 75. 
http://www.justice.gov.uk/consultations/365.htm 
The Joint Committee on Human Rights has issued a call for evidence on this bill. 
[2010] EWHC 1414 (QB), citing the House of Lords in Sim v Stretch 1936] 2 All ER 1237. 
[2005] EWCA Civ 75. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

interest.  Note,  this  defence  –  following  the  line  of  the  preceeding  case  law  –  does  not 
apply just to journalists. Interestingly, the proposal that compliance with press codes of 
conduct should be taken into account has not been included. The bill also proposed new 
defences  of  ‚truth‘,  abolishing  the  existing  common-law  defence  of  justification  though 
seemingly  reflecting  it46,  and  ‚honest  opinion‘,  which  parallels  fair  comment  as  most 
recently  elaborated  in  Spiller  v.  Joseph.47  The  bill  proposes  changes  to  the  rules  on 
privilege and also to introduce a single publication rule. Jurisdiction has been changed to 
address the perceived fear of libel tourism (though the incidence of actual cases of libel 
tourism is low). Other key questions relate to defamation on the internet, as well as the 
cost  of,  and  time  taken  in,  bringing  an  action,  as  well  as  the  question  of  the  extent  to 
which corporations should be able to bring actions for defamation. The bill is not yet law; 
the  Joint  Committee  on  the  Draft  Defamation  Bill  has  recently  published  its  report.48  It 
made the important point that, ‘It is essential that the Government makes clear, in a way 
that the courts can take into account, during the passage of the Bill if not before, when it 
is seeking to make changes of substance to the law and when it is simply codifying the 
existing common law.’ It also made proposals for a new take-down procedure regarding 
Internet publications. It seems clear, however, that there will be no special treatment for 
journalists  though  they  may  be  more  likely  to  benefit  from  some  of  the  changes  than 
others. Much of the case law on privacy has been based on Article 8 ECHR and associated 
jurisprudence, leading some commentators to suggest that it is this that motivates some 
elements  of  the  press  in  an  anti-Convention  stance.  The  courts  take  a  balancing 
approach  between  the  competing  interests  of  Articles  8  and  10  ECHR;  neither  takes 
automatic priority and much will turn on the facts.49  It has been suggested that certainty 
would  be  best  served  by  the  development  of  a  new  bill  on  privacy;  this  has  not  been 
taken forward however, and it is debatable how much a bill would solve given problems 
which lie in the application of legal principles to the facts. One issue that has given rise to 
particular concern is the privacy injunction, particularly the so-called ‘super injunction’. A 
super  injunction  is  different  from  anonymity,  as  a  super  injunction  requires  that  no 
information  about  the  case  can  be  published.  It  should  be  remembered  that  anonymity 
does  not  arise  purely  in  celebrity  cases  but  can  relate  to  family  matters  or  asylum.  It 
seems  hard  to  ascertain  the  numbers  of  injunctions/super-injunctions,  though  the 
Inforrm blog is publishing information on this matter now.50  One of the key concerns is 
the  extent  to  which  blackmail  arises  in  the  context  of  celebrity  partners,  threatening  to 
‘kiss and tell’ for money.  Note the PCC code does not cover payments for a ‘kiss and tell’ 
story (cf payments to criminals prohibited by cl 16).51 Eady J commented, ‘the majority 
of  cases  over  the  last  few  years,  in  which  the  courts  have  had  to  apply  those  [privacy] 
principles,  would  appear  to  be  of  the  so  called  “kiss  and  tell”  variety  and  they  not 
infrequently involve blackmailing threats’. 52 While there seems to be a risk of blackmail 

46 

47 

48 

49 

50 

51 

52 

http://www.city.ac.uk/centre-for-law-justice-and-journalism/seminars-events/past-events/cljj­

In Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 at para 34, the Court of Appeal indicated 
that “the defendant does not have to prove that every word he or she published was true but rather the 
““essential” or “substantial” truth of the sting of the libel”. 
[2010] UKSC 53. 
http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/20304.htm. 
For a review, see Eady, D., “Protecting free speech in the context of the European Convention of Human 
Rights” 
inaugural-lecture. 
http://inforrm.wordpress.com/privacy-injunctions-2010-2011/ See also
http://lawjusticejournalism.org/2011/04/14/privacy-injunction-hearings-not-super-but­
anonymous/#more-126  and  Justice  Wide  Open,  Centre  for  Law,  Justice  and  Journalism,  City  University 
London: 
legal-knowledge-in-a-digital-era/. 
See comments of Robertson and Nicol Media Law (5th ed) p. 790. 
CTB v Newsgroup Newspapers [2011] EWHC 1232 (QB). 

http://lawjusticejournalism.org/2012/01/16/registration-open-for-justice-wide-open-event-on­

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

here53,  there  is  presumably  a  danger  a  claim  of  blackmail  has  turned  into  a  catch-all 
justification for a super injunction. 

- Specific positive content obligations 

The Communications Act requires public service broadcasters to cover specified types of 
content. These obligations are repeated in the licences (save for the BBC, where relevant 
provisions  are  found  in  the  Charter  and  Agreement)  and  then  given  force  through 
Statements  of  Programme  Policy  (SOPs)  and  reviewed  through  a  self-assessment 
regimes (SARS).54 A similar self-assessment system operates with regard to the BBC and 
its obligations under the Charter and Agreement. 

Public  service  broadcasters  are  under  obligations  to  produce  certain  types  of  desired 
content,  though  to  different  degrees.  They  are  also  required  to  commision  work  from 
third  party  producers.  The  Communications  Act  also  requires  terrestrial  licensees  to 
provide news, but these provisions have been criticsed for being too flexible and allowing 
Channel 5 to scale back its news provision and ITV to lower its regional news production. 
Ofcom  had  previously  allowed  ITV  to  scale  back  its  production  of  children’s 
programming.55 

Perhaps  one  of  the  key  differences  between  the  regulation  of  the  print  media  and  the 
broadcast media as far as access to information for the audience is concerned, is the fact 
that  there  is  no  taste  and  decency  clause  in  the  Editors’  Code  and  nor  is  there  any 
impartiality  requirement,  both  of  which  are  imposed  on  broadcasters.  In  this  there  is 
nothing  new,  though  there  is  pressure  from  some  quarters  to  remove  the  impartiality 
obligation. 

- Funding schemes for specifically desired content 

There is no specific provision regarding funding schemes. 

- Political advertising and/or broadcasting time 

Non-broadcast  political  ads,  such  as  those  appearing  on  posters,  newspapers,  cinemas 
and leaflets, do not have to comply with the same strict rules to which all other ads have 
to adhere but political advertising has always been banned from television and radio. The 
ban  is  now  based  on  s.  319(2)(g)  Communications  Act  2003  and  reflected  in  the  BCAP 
codes  and  the  Ofcom  Content  Code.  Section  7  of  the  BCAP  Code  provides:  “No 
advertisement: (a) may be inserted by or on behalf of any body whose objects are wholly 
or mainly of a political nature; (b) may be directed towards any political end” and in this 
tracks  the  wording  of  the  Communications  Act.  The  question  of  whether  an  advert  is  
political is to be determined by Ofcom, not the ASA. The ban is enforced via the inclusion 
by  virtue  of  sections  321  and  325  of  the  Act,  of  a  condition  in  broadcasters’  licences 
requiring them to secure compliance with the prohibition. 

‘Political’  has  a  wider  meaning  than  ‘party  political’  and  covers  such  things  as  issue 
campaigning or seeking to influence opinion on matters of public controversy but should 

53 

54 

55 

See  also  e,g,  OPQ  v  BJM  [2011]  EWHC  1059  (QB)  –  it  is  interesting  that  the  contra  mundum  injunction 
was granted even though there was no threat to life or limb, which was the previously excepted position: 
Tugendhat  and  Christie:  The  Law  of  Privacy  and  the  Media  (OUP,  2011),  para  13.35.  Eady  held  it  was 
available where Convention rights were threatened. 
For  more  detail  see  Woods,  L.,  ‘Regulation  and  Extra-Legal  Regulation  of  the  Media  Sector’  in  Goldberg, 
Sutter and Walden (eds) Media Law and Practice (OUP, 2009), pp 358-360. 
Ofcom,  Statement  on  Reduction  in  ITV’s  Children’s  Programmes,  18  March  2008,  available  at: 
http://stakeholders.ofcom.org.uk/broadcasting/tv/children-itv/ [accessed 13 April 2012]. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

be  distinguished  from  a  public  service  announcement  under  section  321(7)(a).  An 
example of this difficult boundary can be seen in the Bedtime Story advert, dealing with 
climate  change  and  broadcast  at  the  behest  of  a  number  of  government  departments. 
The broadcasting of this advert led to many complaints to the ASA. While that body could 
deal with issues such as whether the advertisements were misleading, it fell to Ofcom to 
deal with the complaint that, as the advert dealt with a matter of controversy, it violated 
the ban on political advertising.56 The relevant government departments made the point 
that  a  matter  of  public  interest  can  still  be  controversial,  but  that  there  was  no  reason 
why  the  government  should  not  seek  to  educate  people  as  to  the  current  prevailing 
scientific  understanding  on  such  an  issue.  Ofcom  broadly  agreed,  holding  that  “the 
primary  determinant  of  an  advertisement  of  a  public  service  nature  is  that  the 
advertisement‘s  purpose  is  to  inform  and  educate  the  public  by  means  of  imparting 
information  which  is  in  the  public  interest”  and  that  this  was  a  matter  of  fact  to  be 
determined  in  each  case.  Factors  to  take  into  account  are:  the  nature  of  the 
advertisement‘s  subject  matter;  the  nature  of  any  information  or  advice  given;  the 
manner  in  which  information  or  advice  is  given;  the  timing  and  context  of  the 
advertisement‘s broadcast; and the degree of any controversy that might be associated 
with  the  subject  matter  and/or  contents  of  the  advertisement.  Ofcom  noted  that  there 
was  debate  about  whether  anthropogenic  climate  change  existed  but  recognised  that 
the 
this 
current  scientific  orthodoxy  accepted 
advertisement  fell  within  s  321(7)(a),  but  was  close  to  the  edge  of  acceptable.  By 
contrast to earlier adverts, this broadcast focussed much more on broader issues, rather 
than specific actions that individuals could take. More recently, Clearcast determined that 
an  ad  by  ONE  International  called  “The  F  Word  –  Famine  is  the  Real  Obscenity”  was  in  
breach of the prohibition as ONE International appears to be a political organisation with 
political objectives: to pressure political leaders to take particular action.57 In this, it was 
applying Ofcom’s decision in Make Poverty History,58 a decision which has been criticised 
for meaning that any charity which has even only a partial political purpose will fail this 
test.  By  contrast,  an  anti-bullying  advert  by  a  charity  was  deemed  acceptable  by 
Clearcast (though this is not determinative: Ofcom has the final say). 

theory.  Ofcom  concluded 

that 

The  Communications  Act  requires  Channels  3,  4  and  5,  and  national  radio  stations,  to 
give airtime to political parties in the form of Party Political Broadcasts (PPBs) and Party 
Election  Broadcasts  (PEBs).  PEBs  are  limited  to  5  minutes’  duration,  though  in  practice 
political parties prefer shorter slots. Parties must contest at least one sixth of seats to be 
entitled  to  a  broadcast.  The  major  parties'  broadcasts  are  carried  in  "peak  time"  ­
between  6pm  and  10.30pm.  For  smaller  parties,  their  allocation  depends  on  size.  Note 
that the limitation on the broadcasters does not apply to the Internet and during the last 
general  election,  the  Tories,  LibDems  and  Labour  launched  their  election  broadcasts  on 
YouTube and similar sites. All parties also used social networking sites; again outside the 
general  field  of  media  regulation.  As  smaller  parties  get  less  television  coverage,  the 
Internet  is  a  valuable  tool  for  publicity.  Matters  were  reviewed  by  Ofcom  and  Electoral 
Commission, though no steps to regulate have been taken as yet. 

The Queen’s Speech is also broadcast at Christmas. 

- Codes of conduct and their organisational framing 

There  has been  some disquiet  about the PCC's  level  of  effectiveness  since  its  inception. 
While  the  system  has  been  subject  to  on-going  monitoring  by  the  Department  for 

56 

57 

58 

Ofcom Broadcast Bulletin, 167. 11 October 2010.
 
Clearcast Press Release 7 October 2011, http://www.clearcast.co.uk/clearance-of-one-campaign.
 
Ofcom Broadcast Bulletin, 43, 12 September 2005.
 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

Culture, Media and Sport (DCMS), it is only now in the light of the phone hacking scandal 
that  change  is  envisaged.  The  nature  of  the  change  has  not  yet  been  finalised  so  the 
Editors Code continues to be relevant. As noted in the previous report, there is a code of 
ethics  adopted  by  the  National  Union  of  Journalists  (NUJ).  There  is  no  separate 
enforcement mechanism for the code, although some employers will require compliance 
as part of the terms of a journalist's employment. 

Since  the  last  report,  there  have  been  a  number  of  changes  to  the  codes  underpinning 
the regulatory system, all have been, to varying degrees, updated (Ofcom Content Code; 
BBC  Editorial  Guidelines;  Editors’  Code;  NUJ  code;  ATVOD  Rules  and  Guidance  (March 
2011);  BCAP  Code  (on  broadcast  advertising)).  There  are  likely  to  be  more  changes 
forthcoming.  Last  year,  the  phone-hacking  scandal  broke,  resulting  in  the  House  of 
Commons  Select  Committee  investigating  the  matter,59  and  then  the  establishment  of 
the  Leveson  Inquiry.60  Additionally,  there  has  been  a  House  of  Lords  enquiry  into  the 
Future  of  Investigative  Journalism.61  Against  a  background  in  which  the  ethics  of 
journalists  being  scrutinised,  the  NUJ  change  to  its  code  gains  significance.  Essentially, 
this 2011 amendment inserts what has been termed a "conscience clause" into the NUJ 
code.  It  states  that  journalists  are  entitled  to  refuse  to  produce  work  in  breach  of  the  
code  and  will  be  given  the  support  of  the  union  if  they  do  so.  The  NUJ  has  also 
established an "Ethics Hotline" to provide further support by allowing journalists to seek 
a second opinion on a required course of action.  

Since  the  last  report,  the  PCC  has  engaged  in  some  reform  of  its  institutions  and 
practices,  however  questions  remain.  Membership  is  optional  and,  while  the  PCC  claims 
to take preventative action, an increasing number of cases before the ordinary courts as 
well  as  the  evidence  given  to  the  Leveson  Inquiry,  suggests  that  the  PCC  is  not  an 
effective body; as noted above, it will hand over to another regulator, its form yet to be 
determined.62  It  remains  to  be  seen  what  the  outcome  of  the  Leveson  Inquiry  is;  there 
have been many previous suggestions that the press need stronger regulation and none 
have come to fruition. 

  Distribution aspects 

- Access to frequencies 

As noted above, the grant of a content licence does not imply any access to frequency or 
electronic  communication  network.  The  exception  to  this  proposition  relates  to  the 
terrestrial  broadcasters,  where  the  grant  of  a  licence  was  competitive  (under  the  1990 
Act), and the BBC. Three of the six digital multiplexes carry the BBC and Channels 3, 4 
and 5 programming (with a reach of approximately 98.5%). 

Note  digital  switchover  will  be  complete  this  year  and  most  of  the  UK  except  the  home  
counties  have  already  switched  off  analogue.  Some  of  the  digital  dividend  will  be  used 
(geographic  interleaved  spectrum)  to  allow  the  development  of  local  TV,  though  it  may 
be  that  such  services  will  be  delivered  via  IPTV  in  the  long  term.63  To  implement  this 

59 

60 

61 

62 

63 

http://www.parliament.uk/business/committees/committees-a-z/commons-select/ 
culture-media-and-sport-committee/inquiries/parliament-2010/phone-hacking/. 
http://www.levesoninquiry.org.uk/. 
http://www.parliament.uk/business/committees/committees-a-z/lords-select/ 
communications-committee/inquiries/parliament-2010/the-future-of-investigative-journalism/. 
Ofcom has given evidence to the Leveson Enquiry: available at  
http://media.ofcom.org.uk/2012/04/18/ofcom-evidence-to-the-leveson-inquiry/ 
?utm_source=updates&utm_medium=email&utm_campaign=leveson. 
DCMS, 
consultations/ConDoc-Local_Media_Action_Plan_190111.pdf. 

January 

Action 

Media 

2011, 

Local 

Plan 

http://www.culture.gov.uk/images/ 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

plan, a (draft) SI directs Ofcom to ensure that, at every place in the United Kingdom, one 
broadcasting channel is kept available, or is made available, for the purposes of multiplex 
broadcasting of a local digital television programme service.64 

- Access to distribution networks and control of actual conditions 

The Communications Act implements the Telecoms Package and Ofcom has powers under 
the act for resolving disputes (see s. 185 Communcations Act). It has had on a number 
of  occasions  considered  disputes  with  regard  to  EPG  charges65  as  well  as  about  the 
positioning of programmes on the EPG.66 There is an EPG Code.67 Under section 310(2) 
Communications  Act  the  public  service  broadcasters  have  a  right  to  an  appropriate 
degree  of  prominence  on  EPGs,  which  is  implemented  by  the  code.68  The  code  also 
contains conditions relating to FRAND in respect of other broadcasters. The new local TV 
stations would also benefit from prominence rules.69 

- Must-carry/must-offer rules for electronic media 

Section 64(1) Communications Act gives Ofcom the responsibility for implementing ‘must 
carry’  obligations,  which  it  does  by  imposing  these  requirements  in  electronic 
communications  licence  conditions.  Section  64(3)  lists  those  services  which  must  be 
carried  as  BBC,  Channel  3,  Channel  4,  Channel  5,  S4C  and  the  public  teletext  service. 
This  list  may  be  amended.  The  broadcasters  are  subject  to  matching  ‘must  offer’ 
conditions.70 

- Role of platform operators 

The  multiplexes  are  operated  under  a  non-transferrable  licence  according  to  the 
Broadcasting  Act 1996 and  then the  Wireless Telegraph  Act  2006,  s 8(1). Following  the 
collapse  of  ONDigital  (ITV  Digital),  a  ‚free  to  air‘-only  obligation  was  imposed  on  the 
multiplex  operators,  essentially  to  protect  Freeview,  the  consortium  set  up  by  the  BBC, 
Crown  Castle  (as  it  then  was)  and  BSkyB,  which  was  offering  a  free-to-air  service.  In 
2006,  Ofcom  decided  to  remove  the  restriction  in  relation  to  Multiplexes  B,  C  and  D 
(effectively owned by Freeview consortium). An operator may make an individual request 
to  offer  pay-TV,  though  this  was  likely  to  be  an  issue  for  Multiplexes  C  and  D,  as 
Multiplex B is operated by the BBC. In 2007 Sky (with Arquiva) proposed to remove Sky 
Three,  Sky  News  and  Sky  Sports  News,  replacing  them  with  4  subscription  channels 
(Picnic):  as  Sky  also  proposed  to  change  the  standard  used  for  broadcasting,  specific 
decoder  boxes  would  be  required.  Ofcom  ruled  that  this  would  give  rise  to  competition 
concerns,  but  in  2010  consented  to  the  Picnic  proposal  though  subject  to  conditions. 
Ofcom  specifically  stated  that  Sky  would  be  permitted  to  launch  Picnic  only  once  it  has 
concluded  a  wholesale  agreement  with  at  least  one  third-party  retailer.  The  wholesale 
agreement  would  be  for  the  premium  sports  and  movies  channels  that  Sky  wishes  to 
retail on DTT - Sky Sports 1 and Sky Movies Screen 1.71 

64 

65 

66 

67 

68 

69 

70 

71 

Article 3(2) (Draft) Wireless Telegraphy Act 2006 (Directions to OFCOM) Order 2012.
 
See e.g. Dispute between Rapture TV and Sky about EPG charges (Case CW 00920/09/06), 9 March 2007.
 
See e.g. Complaint from Education Digital Management Ltd (Case CW/00882/12/05), 10 May 2006.
 
http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/epg-code/. 

On  the  impact  of  location,  see  report  commissioned  by  Ofcom:  Attentional  Limited,  An  Analysis  of  the
 
Audience Impact of Page One EPG Prominence, July 2010,
http://stakeholders.ofcom.org.uk/binaries/consultations/review_c3_c5_licences/statement/attentionalrepo 
rt.pdf. 
The Code of Practice for Electronic Programme Guides (Addition of Programme Services) Order 2011. 
Ss 272-275 Communications Act. 
http://stakeholders.ofcom.org.uk/consultations/picnic/statement/. 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

- The role and functioning of regulatory authorities in these respects 

As  noted,  these  services  are  licensed  by  Ofcom,  though  the  licences  are  now  issued 
under the Wireless Telegraphy Act 2006. 

  Access to Information 

- Transparency of media ownership situations 

Normal  company  legislation  continues  to  apply  so  companies  must  follow  filing 
obligations for private or public listed companies as relevant. This includes information as 
to directors and shareholders and is available at companies house.  

When  companies  or  individuals  apply  for  a  Communications  Act  licence,  they  must 
provide certain information to Ofcom so that Ofcom may satisfy itself that the conditions 
in the Communications Act are met (e.g. that the licensee is a fit and proper person, or 
that  the  licensee  is  not  a  disqualified  person  under  the  Broadcasting  Act  1990  (as 
amended)). The licence also requires a licensee to provide information to Ofcom inter alia 
about proposals affecting the control of the licensee, and changes in control; changes in 
shareholders  and  directors;  changes  in  management,  key  staff  and  contact  details. 
Licensees  must  also  inform  Ofcom  of  an  intention  to  transfer  a  licence,  using  the 
appropriate  form,  which  requires  similar  information,  as  a  licence  is  transferrable  only 
with the prior written consent of Ofcom. 

It  is  an  offence  to  attempt  to  mislead  Ofcom,  which  may  itself  lead  to  disqualification. 
Ofcom regards this information as public information and publishes lists of the holders of 
various licences.72 

There is no equivalent obligation with regard to the press. 

- Accountability of public service media 

The situation remains broadly the same as it was at the time of the previous report. 

- Freedom of information laws 

The general freedom of information laws apply and will affect public bodies. Note that the 
BBC is permitted to keep commercial information confidential or other sensitive issues73 
(subject  to  the  public  interest74)  or  when  the  requests  are  vaxatious  and  harrassing.75 
There is also a derogation for the purposes of journalism.76 

- Accessibility of products/services and distribution networks 

A Help Scheme was established to provide everyone aged 75 and over or eligible disabled 
with everything needed to switch one TV to digital. This covered cost of set top box and 
any upgrade to aerials. The elderly also continue to enjoy a reduced BBC licence fee. 

72 

73 

74 

75 

76 

Available at http://licensing.ofcom.org.uk/tv-broadcast-licences/updates/. 
See  e.g.  Freedom  of  Information  Act  2000  (Section  50),  Decision  Notice  Date  15  February  2006 
(FS50066295)  –  re  the  BBC,  where  the  BBC  was  allowed  not  to  disclose  the  minutes  of  the  Trust  in 
response to the Hutton Report. 
See  e.g.  ICO  News  Release,  13  December  2010  “ICO  orders  disclosure  of  contract  incentives  offered  by 
the BBC”. 
See  e.g.  Freedom  of  Information  Act  2000  (Section  50),  Decision  Notice  Date  19  March  2007 
(FS50086298) – re the BBC. 
E.g Freedom of Information Act 2000 (Section 50), Decision Notice Date 14 February 2011 (FS50353677) 
– re the BBC. 

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Policy Department C: Citizens' Rights and Constitutional Affairs 

As  part  of  the  reorganisation  following  digital  switch  over,  Ofcom  proposes  to  clear 
channel  69  (800MHz)  to  match  the  rest  of  Europe.  Funding  was  made  available  to 
support  the  change,  which  affected  the  Programme  Making  and  Special  Events  (PMSE) 
sector. 

  “Have a Say on ...” 

- Complaint procedures, “Ombudsmen” 

The  position  remains  broadly  the  same  as  previously,  with  the  various  regulatory  and 
self-regulatory  bodies  providing  complaints  procedures,  usually  with  the  possibility  of 
review by an external independent body, or possibly by judicial review before the courts. 
These bodies vary in the remedies they provide: the PCC has come under criticism in this 
regard. 

- Participation in media operators/(self-)regulatory bodies 

The position remains the same as previously. In general terms, the regulatory bodies do 
include  non-industry  actors,  but  these  are  apppointed  for  their  standing  not  as  a 
representative of the viewer/listener/reader. 

2.2.27.2.  Main Players in the Media Landscape 

2.2.27.2.1. 

Radio 

There  are  18  national  radio  stations  as  at  the  end  of  2009  together  with  371  local 
stations.  Ofcom  lists  the  radio  licences  as  being  294  local  sound  broadcasting  licences 
together  with  3  national  sound  broadcasting  licences  and  88  Radio  Licensable  Content 
Service  (RLCS).    As  regards  digital  services,  there  are  46  local  radio  multiplex  services 
and 1 national radio multiplex. Of the digital sound programme service there are 65 local 
and 15 national. 

Additionally,  there  are  those  stations  provided  by  the  BBC.  The  BBC  national,  network 
radio stations are the imaginatively named BBC Radio one, 1 Extra, BBC Radio two, BBC 
Radio three, BBC Radio four, Radio 4 extra, BBC Radio five live, Five Live Sports Extra, 
BBC  Radio  six  music  and  BBC  Asian  Network.  There  is  also  the  World  Service.  The 
listening share of the BBC network services is according to RAJAR 46.60% for the quarter 
ending December 2011. There are 41 BBC local radio stations and four channels relating 
to  the  nations  making  up  the  UK:  BBC  Radio  Scotland;  BBC  Radio  Ulster;  BBC  Radio 
Wales; and BBC Radio Cymru. BBC Local/Regional had an 8.9% share.  

There  are  several  radio  ‘brands’,  with  a  number  of  radio  licences  each,  such  as  the 
Capital Radio Group, Absolute Radio Network and Heart. Heart and Capital both belong to 
Global Radio. The merger between Capital Radio Group and GWR noted in the last report 
took  place  to  form  Gcap  Media  plc,  but  the  shares  in  that  company  were  subsequently 
acquired by Global Radio in 2008. Global also holds Gold, Classic FM, LBC and XFm which 
gives it, according to RAJAR figures, an audience of more than 20 million. It also claims 
to  have  the  top  3  commercial  services:  the Heart  and  Capital  networks  and  Classic  FM. 
Absolute Radio is run by TIML Radio Ltd. 

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2.2.27.2.2. 

Television 

Overall, BARB figures for 2010 show a gradual increase in the individual average weekly 
reach77  (93.90%)  as  well  as  an  average  increase  in  daily  viewing  hours78  (4.03)  and  in 
platform universes79 (25,950,000). The third quarter of 2010 shows that 93% of homes 
in  the  UK  had  access  to  digital  TV  and  that  73%  of  homes  had  access  to  Freeview.  An 
increasing number of homes have HDTV; at the end of the first quarter of 2010, Ofcom 
records  24  million  HDTV  sets.  Its  annual  reports  notes  that  it  has  issued  989  television 
licences, made up of 887 TLCS licences (which authorises cable, satellite, and internet); 
84 DTAS/DTPS (for content on Freeview); 18 public service (regional channel 3 licences, 
4,  5  and  Breakfast).  The  BBC  is  not  licensed  by  Ofcom,  so  BBC  services  are  on  top  of 
these numbers. 

On terrestrial television, the market players are the same as previously, and the division 
of the market into publicly owned (the BBC and Channel 4) and private limited company 
likewise  remains  the  same  (the  ITV  companies  and  Channel  5,  as  well  as  the  news 
provider  ITN).  In  general  terms  there  has  been  a  consolidation  of  ownership  in  these 
companies,  as  the  Granada-Carlton  merger  illustrated.  One  point  of  note  is  that  on  17 
November  2006,  the  BSkyB  Group  acquired  696  million  shares  in  ITV  plc  (“ITV’’) 
representing 17.9% of the issued share capital of ITV. 

There  is  one  major  satellite  broadcaster  in  the  UK:  BSkyB.    BSkyB  commissions  and 
acquires programming to broadcast on its own channels. It also supplies a number of its 
channels  on  a  wholesale  basis  to  third  party  operators  for  retransmission  to  their 
subscribers  (see  Virgin  Media  below).  Sky  also  contracts  with  individuals  to  provide 
television  programming,  comprising  both  Sky  channels  and  channels  of  other  providers 
(there are 147 such partner channels), which are provided by the Astra satellite. Certain 
Sky channels are available free-to-air in the UK DTT platform, Freeview. Additionally, Sky 
sports  channels  are  available  (via  Top_IP  TV)  on  DTT  and  on  the  BT  Service  (see 
competition section above). Sky also operates broadband as well as pay-TV services. 

2.2.27.2.3. 

Press and publishing 

Newspapers  in  the  UK  tend  to  be  divided  into  two  main  categories:  the  broadsheets 
(serious press) and the ‘red tops’ or tabloid newspapers. The Scottish market has its own 
titles.  The most popular print newspapers in the UK by circulation are The Sun, the Daily 
Mail, The Guardian, The Times, the Financial Times and The Daily Telegraph. In general, 
it seems that newspaper circulation figures are dropping. 

Many  of  the  titles  are  consolidated  into  common  ownership.  For  example,  News 
International/News Corporation (which owns BskyB) owns The Sun (and now the Sun on 
Sunday)  and  the  Times/Sunday  Times.    The  Sun’s  circulation  is  in  excess  of  3  million. 
Richard  Desmond's  (a  Channel  5  licensee)  Northern  &  Shell  owns  the  Daily  Star/  Daily 
Start Sunday, the Express/Sunday Express (circulation approx. 700, 000). It also runs a 
couple  of  ‘adult  tv’  channels.  Trinity  Mirror  publishes  the  Express/Sunday  Express  (the 
second best selling tabloid after The Sun) and The People. The Scott Trust publishes the 
Guardian  and  the  Observer;  while  its  print  circulation  is  not  significant  by  comparison 
with the tabloids or even the Times or the Telegraph, it was the first to surpass the 25 
million  unique  users  mark  in  a  month  for  a  UK  newspaper  website.  Its  circulation  is 
greater than that of the Independent, which is now owned by Independent Print Limited 

77 

78 

79 

Average weekly reach is the average number of people who have viewed TV within a week for at least 3 
consecutive minutes. 
The average daily hours of viewing provided is in decimal form. 
The Universe is the total population of TV homes on a specific broadcast platform. 

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(Lebedev).  It  also  publishes  the  London  Standard,  now  a  free  newspaper.  The  Daily 
Mail/Sunday  is  owned  by  the  Daily  Mail  and  General  Trust  plc,80  via  Associated 
Newspapers.  The  Daily  Mail  had  a  per  issue  circulation  in  excess  of  2  million.  Through 
Northcliffe Media, the group also has a number of regional papers and extensive holdings 
outside the UK. Associated Newspapers is behind ‘Metro’, a free newspaper but which is 
available nationally. The group also has a 20% shareholding in ITN. Press Holdings owns 
the  Telegraph/Sunday  Telegraph;  the  same  company  also  publishes  the  Spectator 
magazine.  The  Financial  Times  is  published  by  Pearson  PLC.  It  is  a  significant  business 
newspaper:  it  only  has  a  small  circulation  of  75,665  in  the  UK  alone,  but  it  has  an 
international circulation of 432,944. 

2.2.27.2.4. 

Online media (non-linear audiovisual (media) services; websites) 

ATVOD  provides  a  directory  of  services  that  have  registered  as  VOD  service  providers; 
many reflect the main media players already identified. For example, the terrestrial PSBs 
provide  catch  up  TV  services.  It  also  includes  services  such  as  those  offered  by  BT, 
providing  a  range  of  entertainment  content.  There  are  also  companies  which  operate 
‘virtual video shop’ sites, such as Netflix, Amazon’s LoveFilm and Tesco’s Blinkbox. Other 
services  cover  specific  genres  such  as  sport  and  porn.  The  issue  of  whether  the 
newspaper sites were VOD sites has caused some dispute with ATVOD. 

The  on-line  film  market  is  comparatively  established  in  the  UK  though  early  market 
leaders  (Apple  via  ITunes,  estimated  by  Screen  Digest  to  have  60  per  cent  of  the  
transactional  digital  movie  market  in  the  UK  in  2007)  now  face  more  competition  with 
other film providers as well as the broadcasters’ catch up services. It has been suggested 
that the success of Apple (and Microsoft) in this field is due to the fact that the content is 
used  as  a  way  of  driving  sales  of  devices  and  services,  and  sold  at  low  profit  or 
breakeven point.   

While audience figures are compiled for press, television and radio, there seems to be no 
equivalent  set  of  figures  across  VOD  providers  as  a  whole,  although  some  information 
can  be  derived  from  company  annual  reports,  and  the  hit  rate  for  newspaper  sites  are 
published  by  the  Guardian.  It  is  therefore  difficult  to  assess  the  composition  of  the 
market,  especially  when  the  focus  is  on  opinion  forming  sites,  rather  than  sites  overall 
(which  can  be  aggregated  in  company  reports).  There  is  also  some  overlap,  as  can  be 
seen below, with the position for catch up TV – a process which is likely to continue. 

2.2.27.2.5. 

Cable/Satellite network operators, IPTV & Internet Access Providers 

The multiplex licences  are owned by: BBC; Digital 3&4 Ltd; SDN Ltd; BBC Free to View 
Ltd; and Arquiva (2 licences). 

The cable market has likewise consolidated with NTL, Telewest  and Cable and Wireless 
forming  Virgin  Media.  The  main  cable  operator  is  Virgin  Media.  It  owns  and  operates 
cable networks that pass approximately 13 million homes in the U.K. and is a ‘quad-play’ 
provider:  broadband  internet,  television,  mobile  telephony  and  fixed-line  telephony 
services.  It  produces  no  unique  content,  rather  providing  access  to  others' 
channels/programmes and operates a video-on-demand service (Virgin TV On Demand). 
Virgin sold its television channel business (Virgin Media Television) to BSkyB in 2010 but 
at  the  same  time  entered  into  long  term  carriage  agreements  with  BSkyB.  The 
agreements  mean  that  some  of  BSkyB’s  basic  channels,  the  Virgin  Media  TV  channels 
and BSkyB’s sports and movie channels in standard definition are available via the Virgin 

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network.  The  carriage  agreements  also  provide  for  the  distribution  of  BSkyB’s  basic 
channels  in  high  definition  together  with  a  selection  of  premium  sport  and  movie 
channels in high definition on our cable television service. Virgin Media has also entered 
into an agreement with Tivo for set top boxes. 

2.2.27.2.6.	 

Audience/Readership/Usage/Subscription; Advertising market shares (all 
media) 

In general, despite the huge changes in the communications market generally, driven by 
new  technology  and  new  services  (such  as  smart  phones),  the  average  amount  of  time 
spent viewing TV and listening to radio in the UK has remained fairly stable over the last 
decade.  There  has  been  an  increase  in  take up  of  new –  and  also  older  –  technologies. 
Satellite (including free to view satellite) and cable saw increases in subscribers, as well 
as  take  up  of  new  communication  devices,  such  as  HDTV  and  smart  phones.  With  the 
completion  of  digital  switch  over  being  imminent,  the  increase  in  digital  homes  was 
significant. 

BARB figures show that the average amount of time spent watching television is 4 hours 
a day, though this average increases with the viewer’s age (and there is a higher average 
viewing  figure  in  Scotland  and  Wales).  While  the  BBC's  share  of  television  audience  is 
declining, over its channels it had 32.9% of the market; whereas the cumulative total for 
ITV  was  22.86%  and  for  the  main  satellite  provider,  BSkyB,  6.61%.  While  there  is  a 
trend  that  shows  a  move  away  from  the  terrestrial  broadcasters,  they  still  attract  a 
significant  share  of  the  audience:  together  they  attracted  71%  of  viewing  hours  during 
2010 in multichannel homes. Although there is some variation among the nations, Ofcom 
figures  suggest  that  on  average  more  than  half  the  viewing  hours  are  spend  watching 
PSB channels; there is greater variation with regard to radio listening. There has been a 
significant increase in the use of the Internet to watch catch-up TV. RAJAH’s figures show 
an increase in number of people listening to radio: the first quarter of 2011 showed that 
91.6%  of  the  UK  adult  population  listened  (weekly  figures)  and  listener  hours  rose  to 
1.04 billion a week. There has been a trend towards listening to the national stations as 
opposed to local stations, and the BBC’s share of listeners has increased on its network 
stations.  Radio is more popular than other on-line distribution channels (such as spotify 
or spotify premium). There is low growth also for on-demand only audiovisual content. 

According to Ofcom, during 2010 the UK TV industry generated revenue of £11.8 billion, 
which  constituted  a  6.6  per  cent  increase  on  2009.  The  increase  was  driven  by  a 
recovery  in  advertising  revenue  and  continued  increases  in  subscription  revenues.  The 
biggest increase came in respect of the commercial terrestrial PSB channels (although it 
is  still  overall  down  over  the  longer  term).  Radio  revenue  likewise  showed  an  increase, 
though  the  figures  are  on  a  much  smaller  scale.  Over  the  same  period,  internet 
advertising  spend  grew  by  16  per  cent  to  more  than  £4  billion.81  Despite  this,  Ofcom 
suggests  that  in  real  terms,  advertising  spend  has  decreased  over  the  last  decade  in 
respect of both TV and radio.82 Nonetheless, advertising remains the main income stream 
for most operators. Subscriber income has increased in real terms, benefitting the pay TV 
operators rather than the terrestrial PSBs, though revenue growth has slowed. PPV and 
subscription  revenues  constitute  approximately  17%  of  the  overall  market.  Sponsorship 
deals generated £178m (24% of the total income – down by 6%). ‘Download-to-own’ is 
increasing  in  popularity  although  in  absolute  terms  is  still  small.  Ofcom  in  its  2011 
International  Communications  Report  suggested  that  advertising  revenue  in  respect  of 
UK  internet  almost  equalled  that  of  television  having  29%  and  30%  respectively  of  UK  

81 

82 

Ofcom, The Communications Market 2011 (August): 8th Annual Communications Market Report. 
Ofcom, The Communications Market 2011 (August): 8th Annual Communications Market Report, p. 29. 

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advertising  revenue,  which  is  double  the  global  average  according  to  Ofcom’s  figures. 
Newspapers (excluding magazines) had 23%. 

2.2.27.3.  Conclusion and Recommendations 

The  media  landscape  seems  to  have  been  dominated  by  ‘scandals’  and  concerns  about 
press  freedom  and  press  regulation.  The  Defamation  Bill  is  under  way;  the  Leveson 
Inquiry  in  full  flood,  though  it  remains  to  be  seen  what  changes  will  result.  It  is  to  be 
hoped that this time a firmer line is taken; the history of press (self) regulation has been 
with  threats  to  regulate  as  whatever  form  self-regulation  has  taken,  has  been  seen  as 
insufficient.  Surely  now  has  come  the  time  to  investigate  the  options  for  a  truly 
independent and obligatory regulatory system.  

The government is focussing on the electronic communications sector (again): potentially 
much  more  profitable  than  the  press.  We  have  noted  the  changes  being  introduced  to 
facilitate  Local  TV.  The  government  has  also  launched  a  review  of  the  communications 
sector generally, its aim being "to strip away unnecessary red tape and remove barriers 
to  growth"83  and  legislation  is  planned  by  the  end  of  this  Parliament.  One  big  question 
relates to the future of the BBC. Although the current arrangements are fixed until 2016, 
when  the  BBC’s  current  charter  expires,  the  current  government  has  already  sought  to 
‘rein in’ the BBC, arguing that the expenditure cannot be justified given the BBC’s falling 
viewing numbers in a multichannel environment.84 This of course is a very metropolitan 
view, one that overlooks limitations on individuals’ access to other sources of broadcast 
content,  whether  for  geographical,  town-planning  or  financial  reasons,  quite  apart  from 
issues of range of content and market failure and the fact that overall the BBC seems to 
be  the  most  trusted  news  supplier  and  maintains  significant  market  share.  Surely,  a 
more  appropriate  response  would  be  to  put  the  BBC  on  a  more  long-term  footing  than 
periodic  charter  review  permits  and  to  remove  some  of  the  duplications  from  the 
regulatory  system.  The  BBC  seems  too  important  to  leave  to  political  whim-  both  in 
terms  of  its  existence  and  its  financing.Finally,  Ofcom  itself  has  not  been  immune  from 
the  Government’s  reforming  zeal,  though  it  seems  that  it  is  no  longer  under  threat  of  
abolition. Ofcom is a creature of the Communications Act. Within the constraints imposed 
thereby, it seems to have fulfilled its functions. Given that some form of regulatory body 
seems  necessary,  in  terms  of  infrastructure  and  content  regulation,  does  change  do 
much  other  than  involve  cost  and  confusion?  While  it  is  hard  to  predict  how  the  media 
landscape  will  change  in  the  next  decade,  one  thing  seems  likely  -  that  regulatory 
structures will be different.  

From the above, the following recommendations arise (though they may be unlikely to sit 
well with the political stance of the current government): 

	  the  current  regime  for  press  regulation  is  ineffective;  a  different  system  (possibly 
co-regulatory)  is  required  in  which  the  regulatory  body  must  be  independent,  not 
only from government but also the industry itself 

	 

it is anachronistic that so much power regarding the structure of the media markets 
(existence of BBC and its funding; determination of public interest test) lies in the 
hands of the executive and this should be remedied 

	  the scope of the public interest test itself needs to be broadened. 

83 

84 

http://www.culture.gov.uk/images/publications/commsreview-open-letter_160511.pdf 
http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/value-for­
money-in-public-services/future-of-the-bbc/ 

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3. COMPARATIVE ANALYSIS 

3.1.	  Constitutional  law/fundamental  rights  safeguards  for  the 
freedom  of  the  media  and  of  the  citizens’  right  to 
information 

The freedom of expression is protected by both Art. 11 of the CFREU and Art. 10 ECHR. 
Unlike  the  former  fundamental  rights  document,  the  ECHR  does  not  contain  an  explicit 
guarantee  of  the  freedom  of  the  media  (or  its  constituent  parts  such  as  the  press, 
broadcasting, cinema etc.), but, following the constant jurisprudence of the ECtHR, it is 
clear that this freedom is also safeguarded by Art. 10 ECHR. The freedom of information, 
understood  as  the  right  to  impart  and  to  receive  information  from  sources  which  are 
generally  accessible  (“active”  and  “passive”  freedom  of  information),  is  also  guaranteed 
by  the  two  instruments.  While  Art.  42  CFREU  provides  for  an  express  safeguard  of  the 
right  to  access  information  held  by  public  authorities,  more  precisely:  the  EU  organs, 
institutions and further bodies, the jurisprudence of the ECtHR in relation to Art. 10 ECHR 
does not seem to have embraced in a comprehensive manner such concept yet. 

Similar  to  the  situation  at  the  European  level,  there  exists  some  divergence  in  the  way 
EU Member States have enshrined the freedom of the media and the freedom of (access 
to) information in their constitutional texts/bills of human or fundamental rights. While in 
the majority of countries there is an explicit mentioning of the freedom of the media, as 
one will observe in Sweden, in others this concept has been interpreted as being included 
in,  or  found  to  represent  a  corollary  of,  the  freedom  of  expression  by  the  relevant 
jurisprudence,  mainly  the  constitutional  courts  in  Spain  and  in  the  Slovak  Republic,  for 
instance. Only a limited number of national constitutions stipulates expressly a freedom 
of  the  citizens  to  access  information  held  by  public  authorities,  for  example  Greece, 
Estonia, Portugal or Romania; in some other Member States, such right has been derived 
from  the  general  freedom  of  expression  and  information  or  from  further  concepts,  as  is 
the case in Spain, Lithuania, Austria or Belgium. 

With regard to the situation in several Member States (Belgium, Finland, Germany, Italy, 
Spain,  Czech  Republic,  Poland),  it  can  be  noticed  that  the  jurisprudence  of  the 
constitutional  courts  has  had,  and  continues  to  have,  a  major  impact  on  defining  the 
notion  and  elaborating  on  the  extent  of  the  freedom  of  the  media,  foremost  in  cases 
concerning the balancing of this freedom with other protected interests, such as the right 
to  protection  of  one’s  personality  (including  privacy  and  protection  of  personal  data), 
confidentiality of state secrets, freedom to conduct a business and protection of property, 
etc. The same can be said in respect of the jurisprudence by the ECtHR, and, mainly in 
relation  to  the  fundamental  freedoms  provided  for  by  the  TFEU,  of  the  case-law  of  the 
ECJ. 

For  the  ECtHR  the  freedom  of  the  media,  in  particular  of  broadcasting,  is  clearly  to  be 
understood  as  an  individual  right,  whereas  to  stress  the  function  of  the  press  and  of 
audiovisual services as “public watchdog” essentially serves to provide arguments, also in 
the balancing processes with other freedoms concerned, in favour of the exercise of the 
freedom.  In  contrast,  some  constitutional  courts  in  the  Member  States,  for  example  in 
the Slovak Republic, in Germany and Belgium, use the “public watchdog” figure more in 
a  way  to  characterise  the  freedom  of  the  media  as  an  “institutional”  one,  i.e.  the 
recognition  and  exercise  of  the  freedom  is  governed  by  the  interest  of  democracies  to 
have  open  and  widely-accessible  information  and  communication  fora.  Furthermore, 
while the ECtHR has emphasised on different occasions that it follows from Art. 10 ECHR 
that the Member States act as the “ultimate guarantor” of diversity of the media, putting 

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on them a positive obligation to ensure that a variety of viewpoints can be expressed by 
different actors, and particularly by public service media, the approach taken to date by 
the ECJ and by some national courts has been a different one: media pluralism has been 
recognised as an overriding reason of general public interest which may justify restriction 
on  fundamental  freedoms,  or  of  the  freedom  of  the  media  itself.  This  latter  approach  is 
also  followed  by  the  ECtHR  when  interpreting  Art.  10  para.  1  sentence  3  read  in 
conjunction with para. 2 ECHR. 

It  is  important  to  note  that  the  constitutions  of  a  couple  of  Member  States  (i. a.  Spain 
and Austria) contain specific safeguards not only for psm (implicitly), but also for media 
regulatory  authorities  (explicitly),  underlining  especially  their  independence  and  their 
function vis-à-vis public communication processes and, partly, psm. 

3.2.  The legal and regulatory order for the media 

3.2.1. 

General remarks 

The  sections  within  country  reports  dealing  with  the  regulatory  framework  aim  at 
exploring  the  conditions  which  exist  for  media  operators  and  journalists;  it  follows  the 
idea  that  a  framework  which  is  favourable  to  a  diverse  and  pluralistic,  independent  and 
comprehensive provision of information will, in the end, enhance chances to increase the 
citizens’ ability to inform themselves by consulting reliable/credible and current sources. 

It  should  be  noted  at  this  stage  that,  for  present  purposes,  the  analysis  of  the  national 
media orders in general has not focussed on such aspects which have been harmonised 
by the AVMSD. There are, of course, more obvious cases which lend themselves to being 
considered relevant for the citizens’ right to information, such as the right to short news 
reports,  the  prohibition  on  coverage  of  major  events  exclusively  on  pay-TV,  the 
promotion of accessibility of programmes for certain parts of the population, or even the 
prohibition on programmes containing incitement to hatred, and so forth. However, since 
these  aspects  have  been  harmonised  at  EU  level  already,  the  detail  of  national 
transposition  and  implementation  was  not  deemed  of  considerable  concern  for  the 
assessment to be undertaken by this study. 

In almost all EU Member States legislation is in place which governs the activities of the 
press,  broadcasting  (radio  and  TV)  and  the  provision  of  non-linear  (audiovisual)  media 
services.  The  regulation  of  these  media  activities  may  be  governed  by  a  single  act, 
through  specific  acts  for  the  press  and  electronic  media,  through  acts  dedicated  to 
commercial  media  activities  and  public  service  media,  respectively,  or  via  legislation 
applicable only to broadcasting and/or so-called Information Society services. In addition, 
co- and/or self-regulation are in place, either as a substitute for public regulation or as a 
complementary tool. 

In the following, for evident and inevitable reasons, the general lines of the situation in 
the  EU  Member  States  are  portrayed;  information  on  specificities  of  one  or  several 
countries  or  more  detailed  analysis  of  the  legal  and  factual  framework  is  primarily 
rendered accessible via the individual country reports. 

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3.2.2. 

“Market entry” aspects 

-  Licensing/authorisation  for  audiovisual  media  service  providers;  the  remit  of  public 
service media; registration/notification schemes for print publishing 

All  Member  States  require  broadcasters  to  subject  themselves  to  different  forms  of 
licensing  procedures  before  starting  radio  or  TV  operations.  Usually  the  countries  are 
following  graduated  approaches  in  respect  of  the  need  of  licensing/  authorisation  when 
services  are  at  hand  whose  distribution  does  not  entail  making  use  of  scarce  frequency 
spectrum resources. More specifically, this holds true for (traditional) ways of programme 
conveyance  via  satellite  or  cable  networks,  but  also  distribution  “over  the  Internet”, 
which includes, as the case may be, webcasting and IPTV.  

Conditions  for  obtaining  broadcasting  licences  vary  greatly,  partly  following  from  the 
requirements  stipulated  for  the  category  of  service  which  is  to  be  provided,  but  also 
reflecting on slightly different legal traditions  attached to the concept of freedom of the 
media  (see  supra).  Besides,  the  observed  graduated  approach  is  motivated  by 
consideration  of  the  possible  impact  of  some  services  on  individual  and  public  opinion-
forming  and/or  related  to  more  recent  forms  of  programme  distribution  which  have  not 
(yet) a huge market impact.  

The  broadcasting-market  entry  regulates  therefore  different  procedures.  In  accordance 
with  the  way  of  programmes  distribution,  different  licensing  regimes  exist,  e. g. 
depending  on  whether  the  broadcaster  will  broadcast  its  programmes  through  a 
terrestrial analogue network or a digital one. In the first case, the regulatory authorities 
issue  a  communication  permit  to  the  broadcaster,  which  need  to  respect  all  the 
conditions (after attending a tender procedure – as in Romania or Hungary, for instance) 
laid down in the authorisation or in the “book of obligations” (as in Luxembourg) and to 
apply eventually for a renewal, because the license is valid for a certain period of time (8 
years  for  radio  in  the  Slovak  Republic  and  Sweden,  9  years  in  Romania,  10  years  in 
Austria  or  Finland  or  12  years  for  TV  in  the  Slovak  Republic).  In  the  second  case,  the 
licensing is not related to a specific frequency, the number of the licenses is not limited 
and the operator should only abide by the legal requirements, while a license even for an 
unlimited  period  of  time  might  be  issued.  In  specific  cases,  the  activity  license  for 
provision  of  free  access  television  and  radio  services  (in  Estonia)  or  of  DTT  services  for  
mobile  television  (in  France),  the  services  are  selected  after  a  invitation  to  tender  and 
the  license  is  issued  to  the  applicant  who  has  made  the  best  bid  in  the  selection 
procedure. 

In  practice,  let  aside  market-entry  hindrances  which  are  to  be  reasoned  with  a  lack  of 
available  distribution  channels  (frequencies  for  terrestrial  transmission),  neither  the 
necessity  nor  the  suitability  of  authorisation  schemes  do  appear  to  provoke,  generally 
speaking, considerable debate in Member States – although some voices remain sceptical 
towards the need to uphold such entry barriers at all, given the reduced organisational, 
technical and financial threshold for providing programme services nowadays. It must be 
noted,  however,  that  authorisation  of  broadcasting  activities  should  not  be  looked  at  in 
an  isolated  manner;  account  rather  should  be  had  additionally  to  administrative 
procedures  related  to  authorising  the  use  of  radio  spectrum  resources  and  access  to 
platform  services  for  digital  transmission  (multiplexing)  (infra,  distribution  aspects). 
Where  market  entry  for  broadcasters  or  other  service  providers  is  made  conditional  on 
the  prior  control  of  possible  future  media  pluralism  concerns,  this  issue  does  not  - in 
itself  –  seem  to  have  given  rise  to  prominent  debate  (see  further  infra  on  media 
ownership). 

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In a very limited amount of Member States, as in the case of Hungary, the role of media 
and telecommunications regulatory authorities (or converged bodies) has been seen in a 
critical light, questioning whether full independence from political or economic interests is 
always  present,  which  should  theoretically  ensure  that  authorisation  regimes  are 
governed  by  objective  considerations  only,  and  not  be  based  on  e.g.  perceived 
disadvantages  for  ruling  political  forces  which  might  be  brought  about  by  allegedly 
“negative” media coverage. 

The  formulation  of  the  psm  remit,  in  a  certain  sense,  may  be  considered  to  form  a 
market-entry aspect, too, since Member States’ authorities thereby will direct, at least in 
a  general  manner,  the  activity  of  these  operators.  It  can  be  said  that  the  broad 
definitions  which  are  to  be  encountered  in  Member  States  legislation  on  psm  cover 
several elements of great importance to the citizens’ right to be informed, including news 
reporting and political debate, information services as well as education and culture; this 
includes  in  the  majority  of  cases  also  coverage  of  European  and  international 
developments (for more on this see infra, legal framework for psm). In order to offer a 
range  of  programmes  that  are  available/accessible  and  of  interest  to  ideally  everyone 
and to cover the entire national territory, all Member States are having one (in the case 
of  “Radio  100,7”  in  Luxembourg)  or  several  public  service  broadcasters  (seven  in 
Romania),  with  the  objective  of  offering  programmes  of  good  quality,  impartiality  and 
relevance, irrespective of their genre. 

In essence, Member States do not require the activity of press publishing made subject 
to authorisations. While a smaller number of countries, such as Cyprus, Italy, Lithuania, 
Hungary,  Malta  and  the  Slovak  Republic,  maintains  in  place  notification  or  registration 
requirements,  only  some  have  introduced  specific  rules  on  “electronic  versions”  of 
newspapers/magazines  or  stand-alone,  press-like  Internet  services  (Denmark,  Finland, 
France,  Latvia,  Hungary,  Malta,  Poland).  Incentives  for  registration  or  notification  of  a 
“press product” may, however, be provided, since these may be linked to the recognition 
of specific privileges or rights affording protection of journalists or print outlets. 

-  Media-specific  anti-concentration  rules  and/or  competition  law  aspects  of  media 
ownership 

Member  States  of  the  EU  have  adopted  highly  divergent  approaches  with  regard  to 
“market power” regulation in the media sector. While a significant part among them have 
introduced  complex  and  sometimes  rather  sophisticated  schemes  aimed  at  restricting 
(cross-)media  ownership,  others  “only”  rely  on  general  competition  policy  to  address 
market  power  of  media  organisations,  rarely  foreseeing  any  kind  of  specific  media-
pluralism  considerations  coming  into  play  in  the  case  of  merger  control  or  the 
assessment of an alleged abuse of a dominant market position, for instance. 

Basically, the ownership issues are thoroughly examined during the licensing procedure. 
Details  about  shareholders,  shares  and  funding  sources  must  be  provided  in  the 
application, including a declaration by every shareholder as to shares owned and kinship 
relations.  However,  the  legislation  in  most  of  the  countries  provides  clear  limits  to 
horizontal  concentration  in  the  media  sector.  In  Spain,  a  significant  stake  in  more  than 
one provider of state-wide television services is reached when the average audience of all 
the channels exceeds 27% of the total audience for twelve consecutive months prior an 
eventual acquisition), in France a natural or legal person cannot own directly or indirectly 
more  than  49%  of  the  share  capital  or  voting  rights  of  a  company  holding  an 
authorisation for a national television service which is broadcast by DTT (33% in the case 
of a local channel), while in Greece the media concentration regulation derives from the 
Constitution  itself,  which  outlines  the  obligation  for  media  outlets  to  register  ownership 

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status  and  information  regarding  the  financing  of  the  outlet.  Cyprus  is  limiting  both 
horizontal and vertical ownership and the law foresees expressly that a foreign (non-EU) 
ownership is possible only to a ceiling of 5% per person, conditional upon the approval of 
the council of ministers and limiting the maximum foreign ownership to 25%. The limit of 
25% is maintained also in Greece while, in contrast, in Estonia there are no restrictions 
on foreign ownership of the media services providers or print media. 

With  the  purpose  of  preventing  (and  consequently  prohibiting)  the  abuse  of  dominant 
positions,  many  Member  States  have  provided  in  the  legislation  certain  limitations:  in 
Estonia the dominant position is presumed if an undertaking accounts for at least 40% of 
the  turnover  in  the  market,  in  Hungary  the  “significant  market  power“  has  to  be 
considered  as  an  average  annual  audience  share  of  at  least  15%,  while  in  Italy  even 
shares  of  advertising  in  daily  newspapers  are  subject  to  specific  restrictions. 
Furthermore, in Lithuania the issue of the dominant position has been considered by the 
Constitutional  Court  as  a  constitutional  duty  of  the  legislator,  in  order  to  establish  legal 
regulation  and  restrictions  and  to  limit  therefore  the  possibilities  of  a  monopoly  or  of  a 
too obvious domination in the media market. 

Concerning  cross-media  ownership,  it  is  worth  mentioning  the  “two-out-of-three”  rule 
stipulated in the Greek legislation, meaning that a single natural or legal person cannot 
participate in more than two traditional media categories (radio, TV, newspapers). 

Finally,  one  of  the  main  problems  remains  to  ascertain  the  final  beneficial  owner  of 
shares and despite the legal provision that many of the Member States are securing, this 
strict regulatory framework has not prevented high levels of concentration of media and 
cross-media ownership. 

It  has  been  frequently  pointed  out  by  national  experts  that,  in  the  opinion  of  the 
legislative  or  the  competent  authorities,  particularly  smaller  markets  or  markets  in 
countries  with  a  less  well-off  economy  do  not  appear  sufficiently  prepared  to  address 
high  levels  of  concentration  in  the  media,  since  for  an  efficient  functioning  the  media 
business would have to be able to reach a certain size. But even in Member States which, 
at  least  before  the  current  financial  and  economic  crisis,  had  been  regarded  to  perform 
above  average  or  at  least  comparatively  well,  the  levels  of  media  concentration  have 
rather seldom given rise to intervention - either by the legislator, or by media regulatory 
(where such have competencies in this field) and competition authorities. A more general 
perception  therefore  holds  that  especially  significant  cross-media  ownership  positions 
achieved by a few operators (as for example the cases of O’Brian’s Communicorp, which 
has interest in the radio and publishing sector in Ireland, of Murdoch’s NewsCorp in the 
UK  and  elsewhere,  and  Berlusconi’s  Mediaset  and  further  activities  in  Italy)  give  reason 
for  concern  in  respect  of  the  diversity  and  variety  of  media  content  output,  thus 
challenging the goal to provide the citizens with an adequate choice of information. 

- Legal framework for public service media and their ability to fulfil their mission 

In  the  EU  Member  States,  the  fundamental  law  (as  in  Spain),  primary  and  secondary 
legislation  and  regulation  as  well  as  co- or  self-regulation  or  combinations  of  those 
govern the activity of psm, in the vast majority of cases not only covering radio and TV 
operations, but also activities in the “new media”. Given the impact of EU State aid law 
on  the  definition  of  the  remit  of  psm  and  particularly  their  funding  and  control,  the 
countries have implemented a variety of measures in order to lay out the psm mission, 
ranging from enumerating the number and describing the general orientation of TV and 
radio  channels  in  legislative  acts,  over  “public  service  (management)  contracts”  (in  the 
“French”  model:  cahier  de  charges  et  de  mission)  concluded  between  the  psm  and  the 

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government  or  the  media  regulator,  to  the  establishment  of  “public  value”  tests  which 
have to be fulfilled before a new activity is being commenced with, or a combination of 
those. From a standpoint of freedom of the media, translated into the concept of freedom 
of programming, the difficulty in such exercises lies in finding the right balance between, 
on the one hand, a sufficient level of detailed description of the psm tasks, and, on the 
other,  ensuring  the  necessary  freedom  for  broadcasters  to  chose  the  topics  and  the 
manner in which these are covered. 

Often,  it  has  been  reported,  the  legal  framework  for  the  psm  does  not  achieve  to  fully 
ensure independence from politics or the economy. This observation is linked to influence 
exercised  by  the  political  strata  on  e.g.  the  governing  bodies  of  psm,  and  finds  its 
expression particularly in insufficient safeguards against changes being “forced upon” the 
psm after a transfer of ruling power in governments has taken place. Another matter of 
concern is the dependence of the psm on political decision-making in relation to funding; 
in  this  respect  financial  means  available  for  the  fulfilment  of  the  remit  are  frequently 
considered  insufficient.  This  latter  aspect  can  be  traced  back  to  a  general  lack  of 
allocation of necessary financial resources and/or to deficiencies in the way such moneys 
are being collected or assigned. The financial and economic crisis already referred to has 
certainly not eased the situation in many countries, either because funding from license 
fee income has decreased or because the provision of (direct) government subsidies has 
shown instability in times of budget restraints.  

The  general  tasks  of  the  public  sector  are  mainly  focused  on  the  concept  of  diversity 
(including  both  cultural/linguistic  pluralism  and  variety  of  information  and  genres), 
programme  quality  and  innovation.  The  most  important  aspect  at  this  point  concerns 
political  independence  from  controlling  bodies,  as  long  as  members  of  executive  or 
supervisory  boards  are  designated  following  political  decisions  (or  even  reflecting  the 
distribution  of  power  in  Parliament,  as  is  the  case  in  the  Czech  Republic,  Hungary  or, 
traditionally,  in  Italy).  In  this  context,  many  discussions  and  concerns  have  been 
expressed – also at European level, as shown in this study – regarding an inappropriate 
development  of  the  public  service  broadcasters  (for  example,  besides  the  cases  already 
referred to, in Greece and Romania) which jeopardises the freedom of expression and the 
objective forming of opinion. 

Regarding  the  financing,  in  all  the  Member  States  (except  for  Spain,  where  no 
commercial communication is allowed), the public service broadcasters are financed on a 
“dual funding” basis: this entails that the major part of the financial resources originates 
from state funding (annual state grant/ broadcasting licence fees) and that the other part 
is derived from commercial revenues or other commercial activities.  

With  respect  to  new  media  services  and  the  extent  to  which  the  remit  of  public  service 
media also requires them being active in this field, the German Constitutional Court has 
clearly stressed that there is an important role to be played by PSM when it comes to the 
provision of their offers in new formats and/or via new platforms. In respect of the ability 
of the public service broadcasters, doubts have been expressed as to the effectiveness of 
the  public  service  media  funding  system  to  fully  ensure  the  independence  of  the  public 
service  broadcasters  from  political  and  governmental  influence  (in  Italy),  but  also 
regarding  the  lack  of  stability  in  the  board  of  management  of  the  public  service 
broadcaster (in Poland) and referring to the quality of the informational, educational and 
entertainment  programmes  in  relation  to  weak  financing  through  state  funding  (in 
Greece). Due to this latter deficiency the public service  broadcasters are often  detained 
from  launching  digital  and  online  services,  and  therefore  conveying  content  via  various 
platforms to reach all citizens in the information society. 

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3.2.3. 

Pursuit of “core activity” 

- Ordinary law safeguards for journalistic activity 

In this section, the research interest was mostly directed towards enquiring what kind of 
legal  safeguards  exist  for  the  conduct  of  journalistic  and  editorial  activities,  more 
precisely,  whether  the  ordinary  law  provisions  could  be  misused  to  make  journalistic 
work disproportionally difficult (“chilling effect”), e.g. through “silencing” libel or slander 
claims,  and  whether  sufficient  safeguards  exist  for  enabling  the  media  to  fulfil  their 
“public watchdog” function, e.g. through the provision of workable and effective schemes 
for the access to information held by public authorities. One (upfront) issue touched upon 
by  several  contributions  concerns  the  (non-)existence  of  a  legal  definition  and/or 
recognition  scheme  of  the  profession  of  “journalist”:  in  many  instances,  whether  or  not 
such regime is in place does not have a significant bearing on the exercise of the activity; 
in  some  cases,  however,  certain  legal  (i.e.  not  merely  practical)  privileges  will  be 
available  to  those  recognised  journalists/publishers  or  other  editorial  staff  members  of 
media companies, as for example the Press Laws in Malta, Latvia or Cyprus provide for. 
The  EU  Member  States  have  enacted  a  variety  of  provisions,  stemming  from  criminal, 
civil  or  administrative  law,  which  aim  at  balancing  the  freedom  of  the  media  with  the 
rights  of  others,  in  this  case  the  personality  rights.  In  this  regard,  Finland  was,  for 
instance,  several  times  convicted  by  the  ECtHR  for  favouring  protection  of  privacy  and 
dignity  at  the  expense  of  the  freedom  of  expression.  Liability  for  defamation,  libel  or 
slander is foreseen by the law (defamation and insult are criminalized in Poland, Belgium, 
Denmark)  and  the  Constitution  of  Belgium  provides  a  cascade  liability  system  for  the 
press. In Estonia, the protection of one’s reputation against defamation is set forth even 
in  the  Constitution  and  a  law  introduced  at  the  end  of  2010  stipulates  the  so-called 
“preventive damages” concept, based on the financial situation of the person who caused 
a  breach  of  the  personality  rights  of  a  person.  In  the  context  of  claiming  important 
penalties  in  case  of  moral  damages,  having  regard  to  the  libel  tourism,  it  is  worth 
mentioning  that  the  European  Parliament  has  recently  adopted  a  resolution  with 
recommendations to the European Commission on the amendment of the EC Regulation 
on the law applicable to non-contractual obligations (Rome II). 

In  general  terms,  protection  for  the  journalistic  activity  is  safeguarded  through  taking 
into account the specific role of the media and its importance for public debate, i.a. in the 
context of defamation claims, where the justification of statements is open to recourse to 
having observed journalistic standards (as expressed, for example, in codes of conduct/ 
ethics), thus reducing the burden of proof for media professionals in case the correctness 
of an assertion of facts is difficult or would lack a clear-cut result. Furthermore, the legal 
provisions  in  all  countries  stipulate  the  right  of  rectification  (correction  in  Finland)  or 
reply. 

The  details  of  how  responsibility  or  liability  is  attributed  to  different  steps  within  the 
“production  chain”  of  a  journalistic  product  –  journalist,  editor,  publisher  –  also  shows 
great variances. 

When  it  comes  to  the  right  of  journalists  not  to  disclose  their  sources  and  the  related 
protection against searches and confiscation/seizure of material, some variation in detail 
can  be  observed  (in  Bulgaria  also  the  regulatory  authority  CEM  can  request  to  media 
service  providers  to  reveal  their  source  of  information;  the  Hungarian  Constitutional 
Court having recently ruled out such possibility), although the main material lines of this 
right and especially the procedural safeguards attached to it – such as the requirement of 
a court order or the “necessity or unavoidability test” – appear to be common standard. 

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The  right  to  access  information  held  by  public  authorities,  or  private  bodies  acting  in  a 
quasi-administrative capacity, in an administration’s interest or on its behalf, is foreseen 
in  the  legislation  of  most  of  the  Member  States,  which  also  forbids  obstructions  to 
information gathering and press criticism. 

Nevertheless, in practice, a couple of perceived shortcomings particularly of the juridical 
approach  to  the  abovementioned  safeguards  has  to  be  noticed  –  ranging  from  illegal 
searches (in Cyprus or Germany), over too broad an acceptance of invoked exceptions to 
professional  secrecy  (how  the  “secret  of  state”  has  been  clarified  by  law  in  Italy), 
damages  being  awarded  for  alleged  invasion  on  personality  rights,  to  difficulties  of 
obtaining information held by public bodies. In some instances, national courts will be in 
a position to provide for effective remedies, however, it is not only on singular occasions 
that  as  a  last  resort the  ECtHR had  to  remind  Member  States  of their  obligations  under 
Art. 10 ECHR. 

It is yet unclear, in the jurisdiction of many countries, whether and, in the affirmative, to 
what  extent  such  guarantees  also  encompass  new  forms  of  information  provision, 
particularly by blogs and Internet fora. However, the Supreme Court of the Netherlands 
has concluded in 2008 that almost every publication on the internet can be considered to 
be comparable with a press publication and should deserve the same level of protection. 

Furthermore, some Member States, such as Belgium, also have introduced legislation on 
the relationship between journalists and their editors/publishers/ media owners, in order 
to enhance independence in coverage. 

- Specific positive content obligations 

Foremost  psm  are  the  objects  of  the  imposition  of  specific  positive  content  obligations. 
Still, while legislation in EU Member States in the vast majority of cases remains silent on 
the  issue,  in  the  context  of  licensing  commercial  broadcasters  specific  obligations  as  to 
the  inclusion  and  extent  of  news  coverage,  current  affairs  information  programmes, 
educational  and  cultural  programme  elements  is  more  frequently  to  be  encountered, 
worth mentioning here are the Netherlands, the United Kingdom and Belgium. However, 
the  level  of  specification  of  positive  stipulations  on  required  content  is  to  be  regarded 
rather  low.  Abstention  from  using  such  instruments  to  steer  media  output  is  obviously 
justified in the first place by the freedom of the media.  

As  far  as  the  pursuit  of  cultural  objectives  is  concerned,  in  particular  promotion  of 
(minority)  languages,  the  existence  of  some  quota  regimes  and  other,  less  strictly 
formulated  obligations  can  be  noted,  for  instance  in  the  Czech  Republic,  Slovenia  and 
Romania.  In  a  broader  sense,  enhancing  accessibility  of  media  content  to  people  with 
disabilities  may  also  be  seen  as  a  facet  of  the  topic,  e.g.  in  Portugal  the  free-to-air 
channels must provide 8 hours per week of programmes, fictional or documentary, with 
subtitles, sign language or audio description. 

- Funding schemes for specifically desired content 

Notwithstanding  funding  public  service  media,  only  some  Member  States  have  opted  to 
introduce schemes that aim at supporting (other) broadcast media or, more importantly, 
press activities or engagement for general journalistic purposes (Austria, Czech  Republic, 
Denmark,  France,  Italy,  Luxembourg,  Sweden,  the  Netherlands).  It  appears,  however, 
that all countries concerned remain reluctant to make the availability of such financial aid 
conditional upon the provision of a certain kind of content. Here, two main concerns may 
play  a  role,  firstly,  the  freedom  of  the  media  concretised  as  a  freedom  to  decide  by 

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The Citizens' Right to Information: Law and Policy in the EU and its Member States 

themselves,  based  on  editorial  or  other  considerations,  what  to  publish,  and,  secondly, 
the  perceived  risk  of  arbitrary  decision-making  which  might  be  motivated  by  specific 
political  or  economic  interests.  Therefore,  in  most  instances,  for  example  for  radio  in 
France,  existing  aid  schemes  concentrate  on  contributing  to  bearing  the  costs  of 
distribution, technical equipment used for production, or education. Seldom, the national 
authorities, as in Austria and the Netherlands, have taken initiatives to subsidise content 
which should provide an (added) “public value”, through making available an “additional” 
voice, thus enhancing the external plurality of media output, for instance.  

- Political advertising and/or (party-) political broadcasting time 

In  almost  all  EU  Member  States  there  is  a  ban  on  political  commercial  communications, 
generally except for the period of election campaigns (but also the contrary approach can 
be  encountered).  With  regard  to  pre-election  periods,  many,  sometimes  rather 
sophisticated  regimes,  as  in  Belgium,  exist  as  to  providing  air-time  for  the  coverage  of 
candidates  and  their  programmes.  In  Denmark  political  advertising  is  not  allowed  on 
television,  in  the  United  Kingdom  neither  on  the  radio,  but  in  the  press,  while  in  other 
countries – Czech Republic, Cyprus, Poland, Spain, Romania, Luxembourg, Latvia – such 
advertisements  are  permitted  (under  specific  regulation,  free  or  paid)  during  election 
campaigns. By so doing, the legislators and regulators aim at ensuring information of the 
citizens  on  the  topics  of  current  debate  and  the  related  (diverging)  stances  on  these; 
fairness/equality  in  treatment  –  such  as  an  allocation  of  time  made  available  in 
proportionality  to  importance  with  specific  consideration  to  newcomers  –  as  well  as 
the  performance  of 
impartiality  and  objectivity  are  guiding  principles 
moderators/presenters in political debate programmes. 

for 

Balance of political and public/current affairs coverage is an obligation imposed widely on 
psm,  save  for  the  specific  Dutch  model  of  internal  pluralism  within  the  range  of  psm 
operators.  Some  countries  (France  and  Romania,  for  example)  have  established 
dedicated monitoring schemes in order to ensure political pluralism in all broadcast media 
(at all times). 

- Codes of conduct and their organisational framing 

Self-  or  co-regulation  for  the  press  sector  or,  more  broadly,  the  media  sector  exists  in 
many  EU  Member  States.  These  may  take  the  form  of  codes  of  conduct  adopted  by 
individual  media  outlets,  agreed  among  journalists,  or  among  editors/  publishers  or 
between  both  of  these  groups  –  for  a  specific,  parts  of  or  the  entire  media  sector  -, 
issued by an umbrella organisation such as a Press Council, etc. It is interesting to note 
that in some instances, as in the case of Greece, formulation or implementation of said 
codes involves regulatory authorities. 

The scope and detail of regulation and the extent to which such codes go beyond norms 
in legislation, where such exist on the subject matters, varies greatly. In part, such codes 
might  also  be  sedes  materiae  for  delineating  the  different  rights  and  obligations  of 
journalists and the owners/responsible persons of the media, respectively, thus defining 
the internal media relationships.  

There  is  also  some  variation  in  perceptions  as  regards  the  effectiveness  of  bodies 
established  with  the  task  to  monitor  adherence  to  codes  -  by  their  own  initiative,  upon 
complaint  by  persons  concerned  by  media  coverage,  or  the  public  at  large.  Criticism 
furthermore  relates  to  the  limited  incentive  which  is  given  to  entrusting  press  councils 
with  the  examination  of  complaints;  in  view  of  their  almost  non-existent  sanctioning 
powers,  lack  of  inclusion  of  market  participants  or  disrespect  of  (the  duty  to  publish) 

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reprimands by media affiliated with them, preference is usually given to seeking redress 
by way of filing law suits. 

Distribution aspects 

- Access to frequencies; to distribution networks and control of actual conditions; must-
carry/must-offer rules and the role of platform operators 

As has been alluded to in respect of licensing regimes applicable to broadcasting or other 
electronic  media  (supra),  a  full  picture  of  the  conditions  relevant  for  market  entry  can 
only  be  obtained  when  account  is  being  had  of  the  legal  and  practical  factors  of  having 
media  content  distributed.  In  this  respect,  again,  there  exists  a  great  diversity  in  the 
approaches  followed  by  EU  Member  States,  which  begins  with  the  questions  of  whether 
the  licensing  of  the  broadcasting  activity  entails,  mostly  in  connection  with  terrestrial 
frequencies,  also  a  right  to  use  a  transmission  capacity  and  whether  this  right  is 
conferred  upon  an  applicant  by  the  media  authority  or  by  the  telecommunications 
regulator. Therefore, in the majority of the cases, the spectrum capacities are  allocated 
to the commercial broadcasters through an administrative decision or authorisation of the 
regulatory  authority,  in  the  wake  of  an  invitation  to  tender  procedure.  The  situation 
shows  variations  also  with  regard  to  the  issue  of  access  to  distribution  networks  (e.g.  
digital  broadcasting  in terrestrial  mode,  on  cable  and  satellite),  where  broadcasters  and 
providers  of  non-linear  audiovisual  media  services  are  mainly  dependent  on  concluding 
agreements  with  network  operators  following  negotiations  on  the  applicable  conditions. 
Whether or not the relevant legislation or regulation provides safeguards to ensure fair, 
reasonable,  non-discriminatory  treatment  of  content  providers,  in  principle,  is  not  a 
matter  in  the  discretion  of  Member  States,  given  the  obligations  that  stem  from  the 
Package  of  Directives  on  electronic  communications  and  general  competition  law. 
However,  the  avenues  of  regulation  opted  for  in  individual  countries  show  some 
divergences:  it  may  be  stipulated  in  legislation  that  network  operators  and/or  service 
providers  have  a  duty to  contract,  subject  to  some  conditions  being  fulfilled,  there  may 
be a system of prior control by regulatory authorities of the requirements being made for 
carriage,  or  recourse  may  be  had  to  different  instruments  of  ex-post  control.  These 
considerations  also  hold  true  for  the  manner  in  which  the  role  of  platform  operators 
(mainly  multiplexers)  is  defined  –  where  those  functions/  entities  are  separate  from 
network or service provision. In particular, the role assumed either by content providers 
directly  or  by  regulatory  authorities  in  the  process  of  establishing  which  channels  are 
made  available  on  a  platform,  is  not  defined  uniformly  in  Europe.  Furthermore,  the 
strategy  plan  for  digitisation  of  (radio  and)  TV  broadcasting  in  many  Member  States  
foresees that at least one multiplex is reserved to the public service channels. Diverging 
concepts have been devised in relation to providing incentives for the commercial actors 
to also engage into the digital switch-over. 

Some  cases  have  been  reported,  in  Bulgaria,  Italy  and  Hungary,  in  which  the  actual 
provision by (licensed) broadcasters (radio and TV) of their services could not have been 
effectively pursued due to obstacles encountered in the access to distribution facilities. In 
the first two cases, intervention by organs of the EU (European Commission, ECJ) and, in 
the case of Italy, also by the CoE (ECtHR) has taken place in order to ensure respect of 
the acquis unionaire and the freedom of the media. 

Must-carry  rules  that  aim  at  ensuring  that  the  most  important,  not  exclusively  public 
service, media are being made available to citizens on the relevant distribution platforms 
(traditionally  cable,  more  recently  –  depending  on  the  importance  of  this  way  of 
conveying  radio  or  audiovisual  services  –  also  terrestrial  networks  operating  in  digital 
mode), are in place in the majority of Member States. 

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A  limited  number  of  Member  States’  bodies  of  regulation  (Lithuania  and  Cyprus)  hold 
provision  on  distribution  systems  for  print  publications,  but  if  so,  the  emphasis  is  on 
equal treatment and universal coverage. In an even smaller number of cases (France, for 
example),  there  exists  a  system  of  regulatory  oversight;  generally,  the  entire  issue  will 
be left to the application of competition law on an ex-post-facto basis. 

3.2.4. 

Access to information 

Turning to instruments of which (mainly) citizens’ may avail themselves for the purpose 
of accessing information, this section of the country reports comprises different aspects: 
(i) is media ownership transparent; (ii) what requirements are imposed on psm in terms 
of  accountability  –  towards  supervisory  authorities,  the  government/parliament,  but 
moreover the general public; (iii) what does the state of enactment and implementation 
of  legislation  on  access  to  public  information  look  like;  and  (iv)  is  accessibility  of  media 
products given. 

As  a  complement  to,  or  as  a  component  or  even  instead  of,  regulation  on  media 
ownership/pluralism,  several  EU  Member  States  (except  for  Denmark)  have  been 
embracing  the  concept  of  transparency  of  media  ownership  situations  and  have 
incorporated  under  the  legal  obligations  also  provisions  regarding  a  proper  publicity  of 
each  broadcaster  (programmes,  editorial  responsibility,  contact  details),  although  this 
data  does  not  implicitly  contain  the  ownership  structure  (as,  for  example  in  Poland). 
Furthermore,  the  information  is  publicly  available  either  through  registration  in 
commercial  registers  (as  in  the  Czech  Republic  and  Estonia),  on  the  web  page  of  the 
regulator (e. g. in the Netherlands, Lithuania, Bulgaria, Portugal and Sweden) or on the 
website of each broadcaster (as in Romania and Spain). However, approaches taken vary 
greatly  in  detail  and  seem  to  encounter,  at  least  in  a  significant  number  of  countries, 
persistent difficulties of full implementation (application and enforcement). In numerous 
cases, such schemes are not comprehensive, i.e. they exist for only one or several, but 
not all sectors of the media (including the advertising sector) or other relevant upstream 
or downstream markets such as electronic communications networks and services (as in 
Slovakia and Greece), thus the levels of cross-ownership and vertical concentrations can 
hardly  be  assessed,  and  remain  therefore  somewhat  obscure.  Furtheron,  there  may  be 
limited  scope  of  transparency  insofar  as  the  information  may  not  require  to  go  beyond 
including  the  first  level  of  ownership  and  cannot  serve  to  identify,  hence,  the  actual 
beneficiaries. 

Different  accountability  instruments  to  be  used  by  psm  exist  in  all  EU  Member  States; 
however,  the  accessibility  and  the  degree  to  which  the  information  is  published  show 
great  divergences.  The  means  used  to  increase  accountability  by  providing  tools  for 
reporting, either by the psm themselves and/or supervisory authorities, on (financial and 
programming) plans (ex ante) as well as on the fulfilment of their remit and the results 
of the business management (ex post), are differing from country to country, and reflect 
on  differing  traditions  in  respect  of  the  psm  and  also  with  regard  to  cultures  of  
administration (in the Netherlands there exists, for example, both types of regulation). It 
appears that a smaller number of Member States - particularly those which seem to have 
adopted a view that the provision of the public service is essentially an obligation toward the 
State,  who  provides  for  its  funding  –  does  not  lay  significant  emphasis  on  making  such 
reports  or  external  research  available  to  the  general  public:  Spain,  Finland,  Latvia, 
Portugal. This means at the same time, there exists an indication that the psm is not, at 
least  not  predominantly,  seen  as  a  service  which  is  accountable  to  the  citizens. 
Irrespective  of  the  foregoing,  it  was  mentioned  that  a  considerable  level  of  insecurity 
exists  in  view  of  the  use  citizens’  make  from  the  information  available;  as  will  be 

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discussed infra, this may find reason in a lack of involvement in concrete discussions on 
the psm, specifically its remit and orientation, in general. 

Legislation  (even  the  Constitution  in  Greece)  and  regulation  on  the  right  of  the  citizens 
(and of representatives of the media, where for these no specific guarantees are in place) 
to  access  information  held  by  public  authorities  appears  to  have  gained  additional 
momentum  in  recent  years.  It  is  of  interest  to  note  that  the  scope  of  the  provisions  in  
some Member States also includes psm operators in the ratione personae of institutions 
subject  to  relevant  requests;  however,  there  are  safeguards  against  access  to  material 
that  is  of  (fundamental  or  exclusive)  relevance  to  editorial/  programming  or  otherwise 
concerns sensitive issues. The exercise of the right to access information represents one 
of  the  rare  circumstances  in  which  the  citizens  enjoy  the  freedom  of  directly  accessing 
original  information,  that  is  to  say,  they  are  not  depending  on  intermediary  functions 
such  as  those  of  the  media.  However,  the  legal  provisions  guarantee  the  freedom  to 
receive  information,  as  long  as  no  conflict  with  a  legal  requirement  to  maintain 
confidentiality  or  secrecy  arises.  Such  provisions  in  respect  of  documents  considered  as 
secrecy or “non-official” are stipulated, for instance, in countries as the Czech Republic, 
Denmark  Finland  or  France.  This  being  said,  it  is  particularly  important  that  the  actual 
application  of  the  right  should  not  be  frustrated  through  complex  or  complicated,  and 
sometimes  unnecessary  costly  (as  in  Ireland  and  the  Netherlands),  time-consuming 
procedures or by way of allegedly undue invocation of exceptions that would justify non­
disclosure. In order to support the freedom to receive information, some Member States 
provide  even  a  legal  time  limit  for  the  administrative  authorities  to  answer  to  an 
information  request:  in  the  Netherlands,  for  example,  two  weeks  are  foreseen,  in 
Portugal ten days, while in Romania thirty days represent the maximum delay. In spite of 
the  permissive  procedures,  several  technical  (contact  through  emails  addresses)  and 
practical  restrictions  (incomplete  information)  have  been  found,  partly  from  the 
inconsistent  legal  interpretation  of  public  and  non-public  matters,  partly  from  too  short 
deadlines for making available the information requested. 

In essence, there do not appear to exist major obstacles of accessing media products or 
service, from the perspective of the citizens. Nevertheless, this does not intend to argue 
that all Member States have put in place regulation which would, on the opposite, ease 
such  access.  In  few  cases,  such  as  in  Luxembourg,  Estonia  and  Malta  (for  analogue 
transmission)  no  broadcasting  licence  fee  exists,  while  in  a  limited  number  of  cases 
(Germany  Poland,  Romania  and  Slovenia,  for  instance),  for  social  reasons,  reduction  or 
exemption from the licence fees is provided for to some groups of society. Only seldom, 
schemes are operational which include as a social welfare the provision of TV and radio 
reception devices (in Germany and Latvia), and some programmes exist which promote 
reading  newspapers  particularly  in  schools  or  for  pupils  and  students.  For  new 
information  services,  however,  access  to  the  Internet  –  e.g.  through  provision  of 
computers  and  connection  to  the  www  –  has  mostly  not  been  integrated  in  respective 
schemes,  although  the  importance  of  information  made  available  online  increases,  as 
does  the  switch  to  eAdministration  services  which  require  citizens  to  “go  online”. 
Moreover,  in  the  above  contexts  of  access  to  public  information  and  to  accountability 
tools of psm as well as of media ownership transparency, exclusive online publication of 
information  becomes  more  usual,  rendering  sufficient  universal  service  guarantees  of 
broadband  Internet  access  ever  more  important.  “Hadopi-type”  or  “three-strike” 
legislation/  or  (“self-“)regulation  on  the  other  hand  may  render  it  more  difficult  to 
maintain, in the future, sustainable access to Internet, particularly should weaknesses of 
such  system  become  more  concrete,  -  let  aside  technical  problems  of  correct 
identification of an IP address allocated on a temporary basis to a subscriber - an entire 

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household may be cut off, although “only” one member of it has misused the Internet to 
illegally obtain copyright-protected works, for instance. 

3.2.5. 

“Have a say on ...” 

The  citizens’  right  to  information  not  only  theoretically  could  be  enriched,  without 
necessarily  unduly  restricting  the  freedom  of  the  media,  if  there  existed  measures  to 
exert  influence  on  media  content  output.  In  a  “negative  way”,  this  influence  might  be 
channelled through complaint mechanisms established at individual media operators (as 
opposed  to  schemes  like  press  councils  competent  for  the  assessment  of  obeyance  to 
codes of conduct relevant for a multitude of players), or with regard to the possibility to 
bring matters to the attention of official or institutionalised ombudspersons. Indeed, such 
instruments exist, though to a highly diverging degree. The efficiency of those apparently 
depends not least on the “complaints culture” in a given country and on the position and 
repute  of  an  ombudsman  body,  particularly  if  established  internally.  A  major  problem 
seems  to  be  connected  to  a  low  level  of  public  awareness  of  the  existence  of  such 
possibilities,  especially  were  media  do  not  feel  specifically  inclined  to  communicate 
actively and widely on this. Safeguards implemented may be seen in the option to appeal 
to  other  bodies  and  in  the  requirements  imposed  on  ombudspersons  in  few  Member 
States  to  inform  citizens  on  the  outcome  of  their  interventions:  Ombudsmen  institution 
for  the  media  exist  in  Finland,  Belgium,  Slovenia  and  Spain,  while  in  Malta  it  has  no 
jurisdiction over the private media. 

Perhaps  more  importantly,  active  participation  opportunities  for  citizens  in  advisory  or 
even decision-making functions of the media themselves, supervisory authorities or self-
regulatory institutions appears not to rank high on the priorities of media policy agenda 
of and within Member States. It might even be considered particularly astonishing – for a 
service funded by and provide for the citizens - that public service institutions are not as 
a  general  rule  designed  in  a  way  which  does  include  basic  elements  of  at  least  indirect 
representation  of  general  societal  or  viewers/listeners/users  interests.  This  does,  of 
course,  not  mean  negligence  of  the  fact  that,  especially  where  control  is  exercised 
through  parliaments  or  media  regulatory  authorities  -  which  either  directly  or  indirectly 
represent interests of the society at large in the pursuit of psm tasks - , other forms of 
incorporating views on the actual and future performance might exist.  

However,  in  some  Member  States  –  Austria  ,  Denmark,  Estonia  and  Greece  –  the 
participation  of  the  viewers  or  listeners  in  bodies  of  media  operators  or  in  (self-) 
regulatory  authorities/bodies  is  foreseen,  but  on  the  other  hand  this  does  not  imply 
always  or  expressly  private  persons  from  the  public  (as  in  Austria),  but  also 
representatives  of  the  civil  society  groups,  including  churches  (case  of  Hungary)  or 
persons with achievements and experience in culture and media (Poland). 

But the limited recourse that is had to this kind of user involvement and the fact that the 
role of user’s participation remains consultative and marginal, seems hardly to be in line 
with  the  requirements  of  modern,  open,  participatory  societies  and  with  a  real  service-
orientation. 

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3.3.  Media markets situation in the EU Member States 

In the same way as (cross-)media ownership situations vary among Member States, the 
level  of  multinational  engagement  of  a  couple  of  major  players  of  a  European,  if  not 
global, scale shows differences when national market situations are compared. From the 
analysis  it  transpires  that  concentration  tendencies  within  individual  media  sectors  as 
well  as  several  or  all  markets  appear  to  have  been  accelerating,  which  may  in  part  be 
attributed  to  the  economic  crisis,  in  part  to  market  streamlining  irrespective  of  this 
aspect,  and  not  least  by  a  lack  of  instruments  for  intervention,  or  resistance  in  gaining 
conviction that one would be able to lawfully base decisions on unclear, vague terms in 
legislation. 

While assessment of the mere number of media outlets operating, within one or covering 
more markets, hardly can provide any useful insight into the level of diversity of opinion 
or  quality  of  information  being  made  accessible,  it  seems  that  in  some  Member  States 
there exists an “unhealthy” high level of operators to the detriment of sufficient access to 
refinancing  resources,  in  particular  in  smaller  markets  and/or  economies  which  face 
difficulties.  But  also  the  opposite  appears  to  be  true  in  several  cases,  i.e.  the  existing 
market  oligopolies  not  allowing  for  new  entrants  to  find  a  sustainable  business-case 
scenario due to little or even decreasing prospects of funding opportunities. 

In this context, the partly aggravating situation of psm should be taken into account. It 
might  be  argued  that  some  national  media policies  are  based  on  the  assumption  that  a 
strong,  independent  public  service  sector  may  balance  out  possible  deficiencies  of  a 
comprehensive information provision to citizens through diverse media offerings; then, a 
reduced  level  of  attention  devoted  to  content/  quality  requirements  for  commercial 
operators  as  well  as  less  vigour  in  the  area  of  media  ownership  may  be  seen  justified. 
But  if  such  basic  assumptions  or  policy  preconditions  are  not  met,  not  only  the 
framework  for  the  psm  becomes  unstable,  but  rather  the  entire  information-capacity 
power  of  the  different  media  markets  may  be  heavily  compromised.  In  the  following, 
some  impressions  are  given  –  in  respect  of  all  media  markets  covered  by  the  present 
study – which may serve to demonstrate the diversity of national supply situations. 

As  regards  radio,  the  number  of  programmes  edited  by  public  service  broadcasters 
ranges  from  two  (Luxembourg)  to  eighteen  in  Poland  (nationwide  as  well  as  regional) 
and over fifty in Germany (regional, not including web-radio offers) plus three nationwide 
programmes.  In  the  commercial  sector,  the  number  is  varying  between  two  main  radio 
stations in Hungary or Denmark (at the national level) to 1,052 in Greece (928 not being 
officially licensed). 

Television is in many countries the most popular medium, as for example in Spain, with 
over  90%  of  the  population  watching  TV  daily.  In  the  majority  of  Member  States,  the 
programme offer of the public service broadcaster ranges between two to four channels 
(as  in  Cyprus,  Malta,  Portugal,  Poland,  Hungary)  and  23  in  Germany.  In  the  case  of 
commercial  television,  the  digitalisation  process  has  multiplied  the  number  of  free 
channels, for instance in Finland the free-to-air channels reach up to around twenty and 
pay-TV  channels  up  to  around  thirty.  While  in  Malta,  there  are  only  2  commercial 
broadcasters,  in  Germany  a  total  of  202  nationwide  private  television  programmes  are 
licenced. 

In  the  press  sector,  at  a  national  level  the  range  of  newspaper  offers  is  from  around 
three to four dailies in Spain and the Netherlands, to sixteen in France (the national daily 
newspaper  market  being  actually  dominated  by  three  main  groups).  The  levels  of 

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newspaper consumption are still quite high – 73.7% of the population in Austria and 87% 
in Sweden reads a newspaper daily. However, the largest newspaper market in Europe is 
the German one, this kind of information supply encompassing 351 different titles with a 
total  circulation  of  over  23.8  Mio.  copies  sold  per  date  of  publication.  This 
notwithstanding, as in almost all other European countries too, the circulation figures of 
daily  and  Sunday  newspapers  decrease  continuously.  However,  when  analysing  the 
situation  with  a  reference  to  the  total  number  of  dailies  and  their  circulation  in  one 
country, Finland holds the third place in the world, with nearly 500 copies per thousand 
inhabitants. The category of free newspapers (which cover their costs only by means of 
advertising  revenues)  have  gained  a  significant  share  in  the  market  in  recent  years, 
especially  in  Flanders,  but  also  in  Hungary;  here,  the  daily  of  the  largest  circulation  is 
Metropol, with an average of 274,296 copies disseminated per issue.  

Magazines  (in  many  cases  published  by,  or  affiliated  to,  newspapers)  are  having  a 
significantly  lower  circulation,  targeting  a  more  limited  segment  of  people,  having  a 
specialised,  thematic  character;  in  Denmark,  however,  there  are  more  than  hundred 
different magazine titles, for instance. 

Although the press sector is in some cases strongly dominated by bigger media players – 
three  strong  “domestic”  suppliers  which  together  control  70.3  percent  of  the  market  in 
the  Netherlands  and  cover  also  the  media  in  other  countries  as  contrasted  to  foreign 
groups  in  Hungary  and  Slovakia  -,  in  only  a  few  Member  States  large  numbers  of 
publications  remain,  such  as  in  Portugal  where  one  counts  approximately  650  local  and 
regional newspapers, mainly with a weekly periodicity. 

The  migration  of  print  media  to  the  Internet  in  the  past  years  still  continues,  thus  the 
print media is in search for new ways to retain its readership. Nevertheless, it should be 
noted  that  substantial  investments  were  made  by  traditional  publishers  into  the 
electronic  press  segment  and  in  particular  in  the  provision  of  editorial  contents  to 
portable  devices,  such  as  tablets  and  smartphones.  Besides,  very  important  brands  of 
news  agencies  or  radio  and  television  channels  attract  big  amounts  of  website  visitors. 
Most  of  these  sites  belong  to  commercial  stations  and  offer  specific  content,  while  the 
public  service  broadcasters,  with  some  exceptions  in  the  field  of  catch-up  TV  and  video  
libraries,  are  developing  their  sites  more  as  a  representation  of  their  own  brand(s). 
News,  sport  and  entertainment  are  the  most  accessed  information:  in  Belgium  ,  for 
example, in 2010 around 150 million video downloads were initiated, an increase of 75% 
compared to the year before. However, in many Member States, there is no compilation 
of  figures  regarding  the  real  use  of  the  Internet,  website  users  or  across  the  VOD 
providers; thus it is difficult to assess the composition of the market, especially when the 
focus is on opinion-forming sites. 

With regard to network and platform operators as well as Internet service providers, the 
evolution  of  the  entire  EU  market  has  to  consider  the  digitalization  process  and  the 
condition of the network infrastructure in different countries. The cable network remains 
in some Member States the most important distribution network; in Austria, the number 
of households with cable TV grew substantially from 1,279 Mio. in 2003 to 1,549 Mio in 
2011, in the Czech Republic there are about 100 cable broadcasting operators. In other 
countries (in Spain or France, for instance) most of the distribution market for pay-TV is 
dominated by satellite technology or terrestrial platforms, respectively, while in Germany 
the  market  leader  covers  about  2.8  mio.  subscribers,  in  both  satellite  and  cable 
platforms. More often, providers of electronic communications services implemented the 
“triple (or quadruple) play” offer, which combines high-speed Internet access, telephony 
and  television/radio  (and  mobile  communications  services);  in  the  United  Kingdom,  the 

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main  operator  owns  and  operates  cable  networks  that  pass  approximately  13  million 
homes and is a “quad-play” provider. 

Depending  on  the  specificity  of  each  country  and  on  the  economical  and  technological 
development, the behaviour of the information consumers is quite different. For instance, 
the  audience  shares  of  radio  use  in  Germany  shows,  for  example,  consistently  high 
levels:  58.43  Mio.  people  per  day  tune  in  a  radio  and  stay  tuned  for  more  than  four 
hours. In Greece, television is still considered the most important medium for news (78% 
of  Greeks  turn  to  TV  for  news),  followed  by  the  press,  the  Internet  and  radio.  Also  a 
decline of the public service television has been observed, such as in Cyprus or the Czech 
Republic. 

The  economic  crisis  has  also  hit,  in  the  past  years,  the  advertising  industry  and, 
consequently, the media which meant a decline of expenditure and income, respectively. 
However,  for  a  certain  complex  of  reasons,  including  digitalisation  and  several  lifestyle 
changes,  in  apparently  more  exceptional  cases  a  high  demand  for  advertising  slots  has 
led  to  an  increase  in  the  prices  for  advertising.  In  Austria,  for  instance,  the  advertising 
revenue in 2011 amounted to a total of € 3,844,207,000.00, which is particularly due to 
the  growing  importance  of  online  advertising.  This  latter  observation  certainly  has  a 
general importance for almost all of the Member States’ media markets and is underlined 
by a constant, yearly increase in advertising spend on the Internet. 

Conclusions and recommendations in respect of the national situations 

As an overall observation it can be stated national experts to have concluded that, while 
there is certainly room for improvement of the situation at national level, the status quo 
does  not  present  itself  as  entirely  unsatisfactory.  Nevertheless,  on  a  more  individual 
account,  it  is  fair  to  say  that  quite  a  number  of  difficulties  have  been  identified,  the 
provision of remedies to which is seen as being also a duty for the legislature/regulatory 
bodies, but certainly for the media themselves, too. 

Recommendations,  where  these  have  been  made,  include  suggestions  in  respect  of  the 
respective  national  situation  having  some  specific  characteristics,  but  also  cover  issues 
which are deemed to be of a cross-cutting nature since these affect a plurality of Member 
States.  Account  should  be  had  to  the  fact  that  only  a  handful  of  recommendations 
referred  to  action  to  be  taken  at  EU  level,  though  it  cannot  be  excluded  that  this  was  
induced by a perhaps restricted, or at least unclear, phrasing of the related point of the 
questionnaire. Simply in order to briefly give some examples of suggestions in the form 
of catch-phrases, the following overview can be provided: 

-	

-	

-	

-

-	

-	

enhance  compatibility  of  national  media  legal  orders  with  European  standards, 
particularly case-law of the ECtHR on Arts 10 and 8 ECHR; 

disintegrate politics and media (regulators); 

improve editorial independence and funding for psm; 

introduce  media-specific  anti-concentration  regulation  and/or  render  it  readily 
enforceable; 

increase media ownership transparency to sufficient and sustainable levels; 

implement a truely convergent regulation; 

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-

-

-

-	

-	

-	

enhance vigorous effect of media supervisory authorities;
 

provide better incentives, including funds, for diverse and high-quality content;
 

provide  answers  in  relation  to  applicability  of  safeguards  to  new  forms  of  

“journalism” or expression on the Internet; 

unlock the potentials of digitisation of media; 

devise means of assistance, not necessarily merely financial, to help especially the 
print sector to adapt to the new digital environment; 

provide  remedies  against  ever-increasing  difficulties  for  journalistic  work  (mainly 
economic  and  legal  situation,  but  also  other  factors  like  “internal  independence” 
and protection from various kinds of threats). 

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4. CONCLUSION AND RECOMMENDATIONS 

Given  the  (partly)  differing  legal  nature  of  European  Union  law  vis-à-vis  Council  of 
Europe  instruments  in  the  media  field,  the  fact  will  not  be  encountered  with  great 
surprise  that  EU  law  -  in  particular  the  fundamental  freedoms,  competition,  specifically 
State  aid  law,  and to  some  extent  also  “secondary  legislation”  -  proves  to have  a  more 
“binding,  enforcable  character”  when  contrasted  to  e.g.  recommendations  of  the  CoE’s 
Council of Ministers or Parliamentary Assembly.  

However, the impact of EU law on a number of highly important facets of Member States’ 
media legal orders yet remains of limited scope. As has been outlined in particular in the 
chapter  on  the  “European  benchmark”  (supra,  at  1.3.),  EU  legislation  deals  with  a 
number of structural and organisational aspects of media operations, such as in view of 
public  funding  being  provided  for  psm,  the  press  or  other  (infrastructure)  sectors,  and 
also  in  respect  of  several  aspects  relevant  for  electronic  communications.  Still,  in  this 
scenario  the  impact  of  the  fundamental  freedoms,  though  highly  important  and  directly 
applicable, remains a somehow “weak” factor in the sense that their implementation, in 
the absence of harmonising measures, is based on a case-by-case approach requiring the 
balancing  of  different  interests  stemming  i.a.  from  public  order  considerations  and 
overriding reasons of the general interest.  

The  “softer”  issues  –  such  as  the  protection  of  journalistic  sources,  protection  against 
“silencing”  defamation  claims,  the  right  to  access  information  held  by  public  authorities 
or the entitlement of socially-weaker groups to reduced licence fees for psm - which are 
of  course  of  outmost  importance  for  the  freedom  of  the  media  and  the  right  of  the 
citizens’ to information, will generally be vested, at a European level, in the competence 
of  the  CoE,  moreover  Art.  10  of  the  ECHR,  and  thereby  the  crucial  role  played  by  the 
ECtHR  is  highlighted  when  interpreting  the  relevant  guarantees  and  assessing  both  the 
legitimacy  of  restrictions  and  the  extent  to  which  positive  obligations  are  imposed  on, 
and thus to be respected by, the Member States. 

Naturally,  the  above  sketched-out,  quite  “binary”  picture  comes  with  a  number  of 
graduations  and,  more  importantly,  the  mutual  promotional  influences  on  the  freedoms 
concerned  should  neither  be  “downplayed”  nor  the  complementary  of  actions,  also  at  a 
practical-political  level,  be  neglected:  it  is  of  great  importance  and  does  not  remain 
without effects on Member States’ policies if and when the institutions of both fora raise 
concerns with regard to certain developments, for instance. 

As  spotlighted  in  the  foregoing  comparative  analysis  relating  to  the  individual  country 
reports,  the  legal  frameworks  for  the  freedom  of  the  media  and  the  citizens’  right  to 
information  in  the  EU  Member  States  certainly  show  some  room  for  improvement,  in 
some instance even definite need for action, but the overall situation may reasonably be 
considered  as  having  a  rather  reassuring  character.  A  number  of  caveats  to  this  global 
assessment immediately needs to be made with a view to some or even a larger number 
of  countries,  for  instance  in  relation  to  the  situation  of  psm  (independence  and 
financing),  the  commercial  broadcasting  and  on-demand  media  sectors  (hindrance  to 
effective  market  entry,  levels  of  concentration,  role  of  regulatory  authorities,  difficulties 
in  establishing  sound  funding  bases),  the  working  conditions  for  media  and  journalists 
(confidentiality of sources, threat of defamation claims, unsufficient access to documents 
held be public institutions, efficiency of self-regulatory bodies), and so forth. 

In view of the overall findings, considerations for the future shaping of EU policies, both 
general and specifically related to the media, are presented: 

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	  Recommendations in view of EU general and media policies 

At  present  stage,  a  limited  amount  of  suggestions  shall  be  provided  as  to  the  main 
directions which should be followed when the shaping of EU media policy is at hand: 

-	 European  Union  media  policy  should  strive  to  achieve  even  greater  inclusiveness 

and coherence, also with regard to other EU policies;  

-	

-	

-	

-	

-	

it should continue to stretch out to other International fora; however, with a view to 
the added value which the Council of Europe  can contribute particularly  in respect 
of  subject-matter  that  will  clearly  rest  outside  of  EU  competencies  and  of 
(European) countries which are not (yet) becoming more closely integrated into the 
EU’s accession and neighbourhood policies, a  mutually-benefitting, complementary 
modus vivendi should be aimed at; 

the  European  Parliament  should  continue  to  underline  the  dual  character  of  the 
media as expressions of culture and of societal needs, on the one hand, as well as 
their nature as market products and service, on the other, while attempts should be 
rejected to “artifically” portray these two facets as only being in confrontation with 
each other; 

the balanced approach which has shown to be instrumental when EU policies are at 
hand  implying  a  direct  impact  on  national  media  policies,  such  as  competition  law 
and State aid law, should be preserved; 

the European Parliament should continue to be, together with the Committee of the 
Regions,  the  European  Economic  and  Social  Committee  and  also  the  Council,  an 
advocate  for  stressing  the  need  to  duly  observe  and  respect  the  existing  diversity 
between  and  within  Member  States,  their  media  and  economic  potentials  and  the 
needs of the citizens; 

further  initiatives  should  be  envisaged  in  order  to  secure  and  enhance  the 
availability  of  information  on  the  situation  of  the  media  in  Europe,  in  order  to 
maintain a sound basis for devising future policy options; 

- more cooperation appears advisable in respect of different organs, institutions and 
bodies  as  well  as  ad  hoc  or  continuously-working  expert  groups  and  research 
institutions,  within  and  outside  the  framework  of  the  EU,  in  order  to  enhance 
dialogue  and  increase  information  and  knowledge  through  pooling  existing 
expertise  and  competences  –  and  the  European  Parliament  should  seek  to  be  an 
active part in such schemes; 

-

in  particular  as  far  as  the  area  of  protection  of  human  rights  is  concerned,  the  
activities  of  different  expert  bodies,  e.g.  by  the  FRA,  the  Ombudsman,  the 
European Data Protection Supervisor, etc., should be followed with great attention 
and, wherever possible, the possibility and appropriateness of joining resources and 
knowledge to the advantage of more comprehensive approaches and for countering 
undue  “proliferation”  of  fora,  where  this  would  risk  to  lead  to  unsustainable 
resources being made available to each of them, should be taken into account; 

-	 additional  funding  should  be  made  available  to  increase,  on  a  constant  basis,  the 
access of the MEPs, the EP’s committees and services to inhouse knowledge in the 
fields of technologies and economics of media sectors; 

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-	

-	

-

-	

-	

the  dialogue  with  citizens  and  experts  representing  “grass-roots”  initiatives  in  the 
media  and  information  sectors  should  be  upheld  to  the  greatest  extent  possible, 
notwithstanding the need to monitor closely the developments in formal procedures 
like petitions as a form of an “early-alert” system; in view of the expected concrete 
definition  of  a  framework  for  citizens’  motions,  the  EP  should  maintain  a  vigilant 
position  as  to  whether  the  design  of  details  matches  the  requirements  of  fully 
ensuring participation; 

in the case of further accessions to the EU, emphasis should be laid on the fact that 
pre-accession  undertakings  are  formulated  in  a  clear  manner  and  accessible  to 
objective  assessment  as  to  their  fulfilment,  particularly  where  fundamental  rights 
and the rule of law according to the Copenhague criteria are at hand; 

trade  policy  developments  continue  to  deserve  specific  attention,  as  has  been 
demonstrated not least in the context of ACTA negotiations; 

in  the  event  of  future  revision  of  the  EU  treaties,  an  additional,  careful 
consideration  should  be  given  to  the  opportunities  to  at  least  clarifying  the 
extension of the CFREU to action at Member State level, and to the expediency of 
assessing the efficacy of Art. 7 TEU material and procedural conditions; 

in  the  same  perspective,  while  preservation  of  the  diversity  of  Member  States 
cultures  remains  an  important  objective,  it  should  be  asked  whether  the  complete 
and  uncompromised  exclusion  of  harmonisation  competencies  of  the  EU  in  the 
cultural  domains  still  presents  itself  as  the  optimal  solution  for  addressing  future 
problems, not least when bearing in mind that - while devising EU policies in other 
fields - the impact on the cultural sectors appears to become increasingly significant 
(anyway). 

	  Specific recommendations in view of current and future EU media policies  

In  relation  to  more  specific  and/or  current  media  policy  initiatives,  the  following 
suggestions are formulated: 

-	

-	

-

the  European  Parliament,  besides  continuing  to  provide  political  support,  might 
wish  to  reflect  upon  the  desirability  of  formally  requesting  the  European 
Commission to initiate infringement procedures on matters of national media legal 
orders,  either  being  of  importance  prima  facie  for  the  safeguard  of  the  TFEU’s 
fundamental  freedoms  or,  in  combination  therewith,  for  the  safeguard  of 
fundamental rights, particularly Art. 11 CFREU; 

the European Parliament could focus more closely - based i.a. upon the soon-to-be­
expected  outcome  of  the  assessment  of  the  EU  competencies  in  respect  of  media 
ownership  and  transparency  legislation,  but  also  on  further  consideration  -
investigate 
formally  calling  on  the  European 
Commission to present a proposal for a EU Directive on this subject-matter; 

into  the  appropriateness  of 

in  light  of  existing  provisions  in  the  AVMSD  on  the  right  of  reply,  transparency 
requirements  for  audiovisual  media  service  providers,  the  right  to  short  news 
reporting,  the  prohibition  on  incitement  to  hatred,  the  European  Parliament  might 
see prospects in discussing with Member States and the European Commission the 
opportunities to enhance the formulation of rights and obligations of the media; 

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-	

-

in the same vein, a future revision of the AVMSD might entail, firstly, an additional 
extension  of  scope  (ratione  materiae),  given  that  the  European  Commission  has 
announced to consult on, and possibly put forward a Communication in relation to, 
Connected-TV, and, secondly, should make the provision on independent regulatory 
the 
authorities  as 
eCommunications package and in EU data protection law; 

“biting”  as  are 

“sister”-provisions 

the  parallel, 

in 

the  European  Parliament  should  also  explore  the  avenues  of  pressing,  on  the  one 
hand,  for  a  revision  of  the  eCommerce  Directive,  which  lacks  -  given  the  current 
and  increasing  importance  of  on-demand  services,  which  are  media-like,  but  not 
audiovisual – both significant guarantees and requirements and in particular shows 
need for re-assessing the “safe-harbour” principles for intermediairies, while, on the 
other  hand,  in  the  above  context  of  Connected  TV  and  also  beyond,  “consumer 
equipment”  regulation  requires  adaptation to  products’  and  services’  design  actual 
realities of new and emerging media markets; 

- with  regard  to  universal  service  obligations,  the  stand-still  in  discussions  over  the 
appropriateness of including (fast or even ultra-fast, but at least “real”) broadband 
Internet  access  into  the  definition,  should  be  overcome,  while  in  parallel  different 
kind  of  support  mechanisms  at  European  and  national  level  should  be  explored  in 
order  to  prevent  a  digital  divide;  additionally  and  also  in  respect  of  electronic 
communications  regulation,  the  issue  of  net  neutrality  deserves  continuous 
attention  by  policy  makers  at  all  levels,  since  developments  here  can  impact 
simultaneously  on  the  distribution  of  and  the  access  to  information  which  is  of 
public interest; 

-	 a review of existing aid schemes for different kinds of media content production and 
distribution as well as in view of the underlying conditions (training, equipment) at 
national level should be commissioned with the purpose of, firstly, establishing best 
practices  models  and,  secondly,  to  help  delineate  discussions  on  alleged  disability 
to  adapt  to  new  environments  and  embrace  opportunities  of  the  new  media 
“ecosystem”  from  the  more  substantial  issue  of  what  kind  of  value  is  attached  to  
the making available of high-quality and diverse media output; 

-	

the existing or perceived hindrances for the establishment of new business models 
in  the  online  environment  -  which  might  stem  from  a  lack  of  legal  certainty  or 
actually  be  the  result  of  unsuitability  of  the  existing,  applicable  legal  framework 
mainly  in  the  field  of  copyright  and  related  rights  –  should  be  addressed  in  the 
shortest  possible  delay,  not  least  in  order  to  maintain  awareness  particularly  of 
younger generations of the “value of culture”; in parallel, the preconditions should 
be  secured  to  foresee  the  introduction  of  a  “cultural  flat  rate”  with  the  aim  to, 
firstly,  componsate  rightsholder  for  the  continuing  loss  of  any  remuneration 
presently incurred and, secondly, to provide for a legitimate exception to exclusivity 
rights  where  copying  happens  solely  for  private,  non-commercial  purposes  –  thus 
transposing the idea of private copy levies into todays “digital realities”. 

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5. ANNEX 

5.1.  Questionnaire 

Information  of  the  citizen  in  the  EU:  obligations  for  the  media  and  the  institutions 
concerning the citizens' right to be fully and objectively informed – Update 2012 

Preface 

- Questionnaire - 

As stated in the terms of reference underlying the tender procedure, the study shall cover 
the following ‘themes of research’: 

‘freedom of the media, freedom of expression and freedom of information, codes of practice 
for journalism and self regulation, legal framework on media ownership and regulation, the 
media system in Europe’. 

With a view to the country reports, forming an integral part of the overall study, the following 
structure  had  been  foreseen  by  the  European  Parliament:  (i)  relevant  legislation  and 
regulation  related  to  the  media  [acts,  legislation,  regulation,  codes];  (ii)  the  media 
landscape  and  main  players  in  the  industry;  (iii)  conclusions  and  future  perspectives.  In 
order to duly take into account the character of the present study as update to the study 
published in 2004, we would like to ask you, when drafting the country report, to refer to 
the  initial  study  whenever  possible  without  prejudicing  the  report’s  readibility.  In  the 
following,  the  description  of  the  required  country  report  is  formulated  in  such  a 
way as to outline what kind of information should be covered/ what is “needed” 
content-wise, irrespective of whether, in the individual case at hand, an update or 
some addenda would suffice or an entirely new text has to be written. 

Overall, the study and its country reports shall allow to gain a reliable picture of the status 
quo as regards the citizens’ access to information – via the media and otherwise – that is 
deemed important for public debate and, hence, for the individual and collective formation 
of opinion. 

Content of Country Reports 

ad (i): 

a) Relevant Legislation etc. 

aa)  Initially,  a  short  overview  over  the  constitutional  law/fundamental  freedoms 
background of the media legal order should be given: 

- What  are  the  safeguards  in  terms  of  freedom  of  expression,  freedom  to 
impart  information  (freedom  of  the  media),  freedom  to  receive  information, 
freedom to access information (held by public authorities)? 

- Are  there  specific  safeguards  to  protect  the  media/journalists  enshrined  in 
the constitution, such as the right not to disclose one’s sources or the right to 
refuse  to  testify  or  similar  guarantees;  and  are  there  specific  rights,  e.g.  a 
right to request information which goes beyond the “normal” citizen’s right to 
access information? 

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- Has specific mentioning been afforded to the press, public service media, or 

media regulatory authorities, such as institutional guarantees or alike? 

- What kind of universal service entitlements (not to be understood only under 

a telecommunications-law angle) are foreseen? 

Please elaborate on these issues including the relevant jurisprudence of the courts – whose 
interpretation might in some cases go beyond the explicit text of the norms! 

bb) The core part of the first section shall be devoted to describing the main elements of 
the  media  order,  be  it  legislative/regulatory  or  self-regulatory,  which  have  a  bearing  on 
the pursuit of the relevant freedoms, as well as the actual situation. The points addres­
sed in this respect in the 2004 study should in any event be covered (cf. country report on 
Austria,  points  1.4  and  1.3).  Overall,  the  information  provided  shall  allow  to  assess  “the 
two sides of the medal”, i.e. what (legal and factual) conditions exist ... 

  ... firstly for those who are willing to impart information ... 

(1)  “market  entry”:  licensing/registration  schemes  for  commercial  broadcasters  or 
providers  of  online  services;  remit  of  public  service  media;  notification  requirements 
for print publications; etc. In particular 

- media-specific anti-concentration rules (horizontal, vertical, cross-ownership) 
and/or  competion  law  aspects  of  media  ownership  and  their  application  as 
well as other safeguards for the preservation and promotion of diversity, 

- legal framework for public service media operations (broadcasting and online) 

as well as their ability to fulfil their tasks and their actual performance, 

- the role and functioning of regulatory authorities in these respects; 

(2) “pursuit of core activity”: in particular 

- ordinary  law  safeguards  for  journalistic  activity  (e.g.  freedom  of  information 
laws,  protection  against  searches,  protection  against  “silencing”  libel  and 
defamation claims) 

- specific positive content obligations, 

- funding  schemes  for  specifically  desired  content  (for  present  purposes: 

mainly in relation to news/current affairs and information/ service), 

- political  advertising  and/or  broadcasting 

to 
parties/candidates  or  editorial  programmes/articles  devoted  to  upcoming 
elections, 

to  be  offered 

time 

- codes of conduct and their organisational framing, 

- the role and functioning of regulatory authorities in these respects. 

(3) “distribution aspects”: in particular 

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- access  to  frequencies  (i.a.  for  terrestrial  transmission  of  broadcasting 

services), 

- access  to  distribution  networks  and  control  of  actual  conditions  (FRAND; 

circulation instruments for the press), 

- must-carry/must-offer rules for electronic media, 

- role of platform operators (e.g. multiplexes), 

- the role and functioning of regulatory authorities in these respects. 

  ... and secondly for those who are willing to receive information 

(4) access to information: in particular 

-	

transparency of media ownership situations, 

-	 accountability of public service media, 

-	

freedom of information laws, 

-	 access  to  products/services  and  distribution  networks  (right  to  install  or  aid 
schemes to purchase reception devices; universal (technical) coverage and/or 
service  obligations;  exemption 
fee,  where 
applicable;  public  subsidisation  or  commercially-offered  reduced  rates  for 
subscription to print publications etc.) 

from  broadcasting 

license 

(5) “have a say” on what information is provided and how: in particular 

- complaint procedures, “Ombudsmen”, 

- participation in bodies of media operators (viewers’ and listeners’ councils or 

alike) or in (self-)regulatory authorities/bodies. 

ad (ii): 

b) Main market players etc. 

Here in the second section, some general figures on the main players (and their shares in 
audience reach, subscription etc) in the following markets are requested: 

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aa) Radio 

bb) Television 

cc)  Press  and  Publishing  (titles  mainly  devoted  to  political/economic/cultural  information, 
not: “car maintainance journals”, books on cooking recipies or furnishing, and so on) 

dd)  Online  media  (particularly:  non-linear  audiovisual  media  services;  websites.  For 
exemptions see above under cc).) 

ee) Cable and Satellite operators/IPTV/Internet access providers (please note: information 
on service providers, such as satellite- or cable-“only” TV programmes, should be included 
(and  appropriately 
telecommunication  network  and  service  providers  including  platform  operators,  pay-TV 
operations,  however,  where  attributable  to  programming  activities,  should  also  feature 
under bb) above) 

indicated)  under  aa)  or  bb)  above;  here  the 

focus 

is  on  

ff)  Audience  (broadcasting)/Readership  (print)/Usage  (online)/Subscription  (telecoms)/ 
Advertising market shares (all markets) 

ad (iii): 

c) Conclusion and perspectives. 

Your  own  assessment  of  the  overall  situation  –  as  mainly  characterised  by  the  findings 
under a) and b) above in view of the study’s interest in learning about the state of play in 
the (pluralistic and diverse) provision of information to the citizens – should be made here. 
If  compared  with  the  approach  of  the  2004  study,  it  might  be  advisable  to  also  tackle 
relevant  case-law  (court  judgements,  regulatory  authorities’  decisions,  practice  of  the 
media  themselves  as  well  as  self-regulatory  codes  and  institutions)  at  this  stage  of  the 
description,  unless  such  information  on  the  practice  is  of  such  relevance  that  the 
information provided under the previous sections would be incomplete or even misleading if 
not  presented  at  an  earlier  stage.  Please  bear  in  mind,  when  allocating  elements  of  your 
description to either section that, on the one hand, your conclusion has sufficient grounding 
and  textual  framing  and  that,  on  the  other  hand,  the  assessment  of  perspectives  is  duly 
and understandibly prepared for. 

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5.2.  List of Sources 

References used for the drafting of this study, including case law of European and national 
courts,  legislation  and  regulation,  codes  of  conduct,  dcotrine,  statistical  data,  articles  in 
written and electronic press, have been comprehensively indicated in the relevant parts of 
this study, particularly in nos. 1 and 2, to which the reader is kindly referred. 

5.3.  About the Authors 

  The Institute of European Media Law (EMR), Saarbrucken/Brussels 

Organisation 

The  EMR  was  founded  in  1990  as  an  association  under  private  law  being  recognised  to 
pursue not-for-profit goals in the public interest; today it is a partner to numerous national 
and European institutions. The Institute acts as a service provider and neutral platform in a 
number  of  fields  of  media  law.  Thanks  to  its  network  which  comprises  over  175  national 
experts  from  app.  40  European  countries,  it  is  particularly  able  to  carry  out  comparative 
legal  studies.  The  EMR  organises  conferences  and  publishes  research  results  in  different 
publications, including its own series of books. 

The EMR is composed of supporting and regular members. Together they form the General 
Assembly,  which  convenes  at  least  on  an  annual  basis.  Supporting  members  of  the 
association  comprise public service as well as commercial TV and radio broadcasters from 
Germany  and  other  European  countries,  the  German  media  regulatory  authorities  and 
further  donors.  Regular  members  are  media  experts  from  Germany  and  neighbouring 
countries. The executive bodies of the EMR are the assembly of members and the board of 
directors.  The  board  of  directors  brings  together  practitioners  from  the  media;  its 
composition reflects the neutral, cross-sectoral approach of the Institute’s work. Beside the 
General Assembly, by which it is elected, the Board is the second organ of the association; 
for  the  latter’s  day-to-day  operations,  it  nominates  the  Executive  Board  which  consists  of 
the Director, the Director for Scientific Affairs, and the General Manager. 

The  staff  consists  of  the  General  Manager,  4  additional  lawyers,  one  assistant  and  10 
scientific  researchers  (all  with  a  legal  education  background).  Their  tasks  cover  the 
Institute’s  publication  activities,  studies  and  research,  management  and  development  of 
databases  as  well  as  assisting  in  the  organisation  of  conferences.  Focussing  on  different 
areas of media law, they are the contact persons for their respective fields of specialisation. 

Fields of activity 

One  of  the  EMR‘s  major  activities  is  to  carry  out  legal  studies  covering  current  aspects  of 
media law on behalf of public and private institutions. The EMR has carried out studies for 
organisms such as the German Federal Government, the European Commission, European 
Parliament, and the Committee of the Regions, the Council of Europe, the German Länder 
media  authorities  as  well  as  regulatory  bodies  of  neighbouring  countries,  national  and 
foreign public and private media enterprises as well as several associations. 

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Conferences 

Serving  as  a  platform  for  information  and  communication,  the  EMR  via  its  conferences, 
dialogues,  workshops  and  expert  meetings  contributes  to  the  development  of  media  law 
and  policy.  Almost  150  events  in  different  formats  have  been  organised  regularly  in 
collaboration with partners who aim at benefiting from the experience gathered over more 
than 20 years. 

Scientific research 

The  Institute  has  conducted  a  variety  of  research  projects  which  have  been  funded  by 
different national and foreign institutions.. In order to support the EMR’s research activities, 
an advisory council was established in 1997. Its current members are renowned experts in 
media law research and practice. 

Publications 

The  EMR  edits  its  own  series  of  publications,  published  by  Nomos,  covering  conference 
proceedings, studies and research findings as well as Ph.D. theses and liber amicorum. 

Two  electronic  newsletters  provide  information  on  recent  developments:  abstracts  on 
recent media law and policy from all over Europe and the U.S. on the one hand, and short 
notes on the most significant events in relation to the Institute. 

The  EMR  is  member  of  the  Advisory  Board  of  the  European  Audiovisual  Observatory  in 
Strasbourg  and  of  the  Editorial  Board  of  IRIS.  The  Institute  contributes  to  the  various 
publications  in  this  series,  i.e.  monthly  abstracts  on  recent  media  law  and  policy 
developments  in  Central  and  Eastern  Europe  to  the  electronic  newsletter  ‘Legal  Ob­
servations’,  two  lead-articles  as  well  as  additional  information  provided  for  the bi-monthly 
IRIS plus as well as conference reports and comparative legal analysis for the IRIS Special. 

In  the  same  way,  the  EMR’s  short  reports  focussing  on  Western  Europe,  the  EU  and  the 
CoE  and  concentrating  on  broadcasting,  telecommunications  and  new  media  law  are 
published in the Newsdienst MMR-Aktuell of the German specialised legal journal MultiMedia 
und Recht. 

Databases 

The  EMR  offers  a  comprehensive  service  for  the  provision  of  legal  information,  namely 
established  in  the  form  of  two  online  databases,  DEMIS,  which  compiles  all  relevant 
jurisdiction that has been issued either on the European or on the German level, and EMIS 
which contains legal texts which have an impact on the media and which originate from the 
European Union, the Council of Europe and the European states; at present around 1,750 
documents in English, French and/or German can be accessed via a cross-lingual retrieval 
system. 

Partners 

Based  on  the  partnership  agreement  initially  concluded  in  1994  and  renewed  since,  the 
European  Audiovisual  Observatory  in  Strasbourg  is  the  most  import  partner  of  the  EMR. 
The  EMR  is  also  in  close  contact  with  the  Europa-Institut,  Law  Section,  University  of 
Saarland,  the  Hans-Bredow-Institute  for  media  research  at  Hamburg  University,  and  the 
Institute of Information Law at the University of Amsterdam.  

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EMR Media Network 

The  mutual  co-operation  established  with  media  law  experts  all  over  Europe  acting  as 
correspondents  under  the  umbrella  of  the  EMR  Media  Network  has  enabled  the  EMR  to 
include expert analysis into different projects for a considerable number of years. 

  Dr Carlos de Almeida Sampaio (Portugal) 

He obtained his Law Degree from the University of Lisbon Law School in 1974-1975. There 
he also received a Master in Legal and Economic Sciences in 1983. JD studies at the College 
of  Law,  University  of  Illinois,  Champaign-Urbana,  in  1993-1995:  PhD  at  the  University  of 
Lisbon Law School. He was admitted to the Portuguese Bar in 1979. Then he was Assistant 
Professor of European Law, Fiscal Law and International Economic Law at the University of 
Lisbon Law School in 1979-2002. Invited Professor of the Law Degree and Post-graduation 
in European Studies, at the Portuguese Catholic University. From 1987-1992 he was Prime 
Minister’s Senior Advisor for European Affairs. He was a Member of the Portuguese Court of 
Accounts  Reform  Commission.  Member  of  Banco  Pinto  &  Sotto  Mayor  Board  of  Directors 
(1992-1993). Non executive member of Siemens, S.A. Board of Directors (1993-2006).  

The  main  projects  on  which  he  has  advised  in  recent  years  include  large  industrial 
investments, establishing industrial projects of state-of-the-art technology in Portugal, and 
investment  contracts  and  international  distribution  agreements.  He  has  also  advised  large 
international  groups  on  matters  relating  to  the  fields  of  electronics,  communications  and 
audiovisual. 

He  was  Partner  of  Cuatrecasas,  Gonçalves  Pereira  &  Associados  since  April  2008  to  May 
2012. Actually he is Partner of CSA-Correia, Seara, Caldas e Associados. 

  Ms Ieva Andersone (Latvia) 

She  is  an  attorney-at-law  qualified  in  Latvia,  and  practicing  as  a  senior  associate  in 
SORAINEN  Latvia  office  since  2005.  Before  joining  SORAINEN,  she  worked  as  a  legal 
counsel with the Latvian National Broadcasting Council. 

Ieva  has  gained  her  legal  qualification  from  the  University  of  Latvia  and  a  LL.M  first  class 
degree in European and Commercial law from the University of Cambridge (Trinity Hall). 

Ieva's  key  areas  of  expertise  include  litigation  &  arbitration,  competition,  intellectual 
property  and  commercial  contracts.  Since  2011,  Ieva  is  co-heading  the  competition  & 
regulatory and commercial contract teams in SORAINEN Latvia office. Since 2005, she has 
been the Latvian correspondent for the IRIS newsletter on audiovisual media law published 
by  the  European  Audiovisual  Observatory,  as  well  as  has  authored  numerous  publications 
on  Latvian  intellectual  property  and  competition  law.  Ieva  has  also  lectured  on  public 
international  law  and  EU  law  at  the  Law  Faculty  of  the  University  of  Latvia  and  is  a 
professional trade-mark attorney. 

  Prof Dr Kevin Aquilina (Malta) 

He is Associate Professor and Dean of the Faculty of Laws at the University of Malta. He is 
also Head of the Department of Media, Communications and Technology Law at the Faculty 
of  Laws.  He  holds  a  doctorate  of  philosophy  in  law  (Ph.D.)  from  the  London  School  of 
Economics  and  Political  Science  of  the  University  of  London,  a  doctorate  in  law  from  the 
University  of  Malta  (LL.D.)  and  a  Masters  in  International  Maritime  Law  (LL.M.)  from  the 

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International  Maritime  Organization’s  International  Maritime  Law  Institute.  He  currently 
lectures on Media Law and Administrative Law. He has held the office of Chief Executive of 
the  Maltese  audiovisual  broadcasting  regulator  –  the  Broadcasting  Authority  –  and  was 
Chairman  of  Press  Ethics  Commission.  He  has  written  extensively  on  Media  Law  and  is  a 
regular contributor to IRIS – Legal Observations of the European Audiovisual Observatory, 
of the Council of Europe. 

  Dr Amedeo Arena (Italy) 

He is Assistant Professor (Ricercatore) of European Union Law at the School of Law at the 
University  of  Naples  “Federico  II”.  He  graduated  in  Law  summa  cum  laude  from  the 
University of Rome and holds an LL.M. in European Law from King's College London and an 
LL.M.  in  International  Legal  Studies  from  New  York  University,  where  he  was  also  a 
Fulbright  Fellow.  He  completed  a  JSD  in  International  Law  and  a  Postdoctoral  Research 
Fellowship  at  the  Department  of  International  and  EU  Law  at  the  University  of  Naples 
“Federico  II”.  He  was  a  Visiting  Scholar  at  the  Institut  voor  Informatierecht  at  the  
University of Amsterdam and at the Centre of European Law at King’s College London. Dr. 
Arena was awarded the “SIDI 2011” Prize by the Italian Society of International Law for an 
article  on  the  Doctrine  of  Preemption  in  the  EU.  Dr  Arena  has  authored  and  co-authored 
several publications on peer-reviewed Italian and international legal journals, as well as the 
first Italian collection of WTO legal texts (Naples, Editoriale Scientifica, 2009), a monograph 
on  public  services  in  the  law  of  economic  integration  (Naples,  Editoriale  Scientifica,  2011) 
and a handbook on media law in Italy (Alphen aan den Rijn, Wolters Kluwer, 2012). 

  Ms Cristina Bachmeier (Project Manager for the study) 

Cristina  Bachmeier  graduated  in  law  from  Bucharest  University,  Romania,  in  1999.  From 
1999 until 2001 she worked as a Director of Cabinet of the State Secretary in the Ministry 
of  Justice  in  Bucharest.  She  was  head  of  the  department  for  law,  human  resources  and 
administration  of  the  Romanian  subsidiary  of  Fuchs  Gewuerze  GmbH  (2001-2006).  Since 
June 2009, Cristina Bachmeier is a permanent member in the Romanian Advertising Council 
(RAC),  active  judge  in  the  Ethical  Committee of  RAC  and  consultant  for  Copy Advice.  She 
worked  as  an  in-house  lawyer  for  Intact  Media  Group  (Antena  1,  Antena  2,  Antena  3, 
Euforia  TV,  GSP  TV;  Radio  ZU,  Radio  Romantic)  from  2006  until  2010  and  was  a  legal 
representative  at  the  Romanian  Audiovisual  Council  and  at  the  European  Association  of 
Commercial Televisions (ACT). In July 2011, she was admitted to the bar of Frankfurt/Main 
as  a  European  lawyer.  Since  the  end  of  2010,  she  is  following  a  postgraduate  Master 
programme  in  order  for  her  to  obtain  a  LL.M.  in  Media  Law  at  the  Johannes  Gutenberg 
University in Mainz, Germany. Since March 2012 she is working as an scientific researcher 
at the Institute of European Media Law (EMR). 

  Dr Joan Barata Mir (Spain) 

He is the Vice Dean for International Relations and Professor of Communication Law at the 
Blanquerna Communications School (Universitat Ramon Llull, Barcelona). He has also been 
Head of President's Cabinet and Secretary General of the Catalonia Audiovisual Council, and 
member  of  the  Permanent  Secretariat  of  the  Mediterranean  Network  of  Regulatory 
Authorities.  He  gained  his  PhD  from  the  University  of  Barcelona,  writing  a  thesis  on 
Television  and  Public  Service  Theory,  and  is  the  author  of  several  books  and  articles  on 
audiovisual  law  and  regulation.  He  is  an  international  specialist  in  media  law,  and  has 
assisted the elaboration of communications and audiovisual laws and regulations in several 
countries. 

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  Mr Marcel Betzel (Netherlands) 

He is a policy advisor for the Dutch media authority, Commissariaat voor de Media (CvdM). 
He is involved in policy advisory work, research and legal affairs. He is dealing with topics 
like the implementation of the AVMS Directive, regulation of new media, jurisdiction issues 
and monitoring of media concentration developments in Dutch media. International affairs 
and  relations  are  his  main  task  and  he  represents  his  authority  in  the  AVMS  Directive 
Contact  Committee  of  the  European  Commission,  the  Working  group  of  the  AVMS 
Regulatory Authorities and the European Platform of Regulatory Authorities (EPRA). Besides 
he  is  a  board  member  of  MEDIA  Desk  in  the  Netherlands  which  is  involved  in  the  MEDIA 
programme of the European Commission in order to promote European works in film sector 
and mainly provides assistance to Dutch applicants of these European funds. Furthermore 
he sometimes represents the Council of Europe (CoE) during expert missions to countries in 
transition  (recently  Azerbaijan,  Armenia  and  Ukraine).  Marcel  Betzel  studied  law  at  the 
Maastricht  University  and  University  of  Antwerp  and  Journalism  at  the  Academy  of 
Journalism in Tilburg. Before, he also worked as a legal consultant, music journalist at the 
Dutch public service broadcaster VPRO and guest lecturer for the post graduate programme 
radio and television journalism of the University of Groningen.  

  Dr Christoph Bezemek, BA, LL.M. (Austria) 

Assistant Professor of Law, teaches at Vienna University of Economics and Business (WU). 
Dr  Bezemek  has  studied  law  and  philosophy  at  the  University  of  Vienna  and  at  Yale  Law 
School.  He  has  held  several  appointments  as  Visiting  Lecturer  at  domestic  and  foreign 
institutions of higher education; various publications and lectures in the field of Public Law. 

  Dr Christophoros Christophorou (Cyprus) 

He studied Education in Cyprus and Paris and Political Science in Athens and Lille (France), 
where he obtained his Ph.D. He has worked as school teacher, as a senior press officer in 
the  Public  Service  (PIO  -  Cyprus)  and  as  the  first  Director  of  the  Cyprus  Radio  and 
Television  Authority.  As  Cyprus  representative  to  media  experts  groups  at  the  Council  of 
Europe  and  other  European  organizations  he  contributed  to  the  drafting  of  modern  media 
policies  (1990-2001).  As  an  external  expert  of  the  Council  of  Europe  in  media,  regulation 
and  elections,  he  participated  in  training  and  other  seminars  in  most  Central  and  Eastern 
Europe countries. Christophorou has also thirty years research work on political parties and 
elections  and  is  the  author  of  books  and  publications  on  elections,  media  and  other 
subjects. He is assistant professor in Communications at the University of Nicosia. 

  Mr Eugen Cojocariu (Romania) 

He  is  a  professional  journalist  from  Romania.  Head  of  Radio  Romania  International/RRI, 
part  of  Radio  Romania/SRR,  public  service,  Eugen  has  worked  for  RRI  since  1992.  He 
speaks English and French and was a correspondent in Chişinău (Republic of Moldova) and 
Paris.  Eugen  Cojocariu  is  member  of  more  professional  bodies  (Professional  Journalists 
Union  of  Romania/UZP,  Southeast  Europe  Media  Organisation/SEEMO,  International  Union 
of  Francophone  Press/UPF,  World  Federation  of  Journalists  and  Travel  Writers  FIJET 
Romania). In 2001 he won the Romanian’s Press Club Prize for a radio talk-show and was 
nominated in 2003 for the same prize. Since 2009 Eugen is a nonpermanent Vice President 
of EURANET (European radio project financed by the European Commission), in charge with 
development  and  distribution,  and  member  of  the  International  Radio  Group  of  the 
European  Broadcasting  Union/EBU.  He  graduated  from  Chemistry  and  Physics,  then  from 

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Political  Sciences.  Eugen  holds  a  European  Mastery  on  the  Management  of  Cultural 
Enterprises, as well as a MBA degree in General Management. 

  Prof Dr Mark D. Cole (Luxembourg) 

He is Associate Professor of Law at the University of Luxembourg since March 2007 (Law of 
New Information Technologies, Media and Communications Law). Of British origin, he grew 
up  in  Switzerland  and  Germany  where  he  studied  law  and  political  sciences.  He  holds  a 
doctorate  from  the  Johannes  Gutenberg  University  of  Mainz  (Ph.D.,  2003)  where  he  was 
research assistant from 1999 to 2002 and again from 2005 to 2007 at the Chair in Public 
Law, International and European Law, Media Law. Additionally, he holds both German State 
Examinations in Law and gained practical experience in media law at the DG Competition of 
the European Commission, a law firm specialising in Intellectual Property Law and the legal 
department  of  a  television  broadcasting  company.  For  three  years  he  was  Researcher  at 
the  Mainz  Media  Institute  where  he  still  teaches  a  class  on  European  Media  Law  in  the 
LL.M.-programme on Media Law. In addition he also teaches yearly a course on European 
Media  Competition  Law  at  the  Europa-Institut  Saarbrücken  and  is  a  member  of  the 
Research  Advisory  Council  of  the  Institut 
für  Europäisches  Medienrecht  (EMR), 
Saarbrücken/  Brussels.  More  information  under  www.medialaw.lu  with  details  on  a 
comparative research project concerning the EU Audiovisual Media Services Directive. 

  Mr Jan Fučík (Czech Republic) 

After  having  graduated  from  the  Faculty  of  Law  of  the  Charles  University  in  Prague,  he 
started to work in the public Czech TV, later as head of the legal department. He dealt with 
different aspects of the media law and cooperated in the preparation of Czech media laws 
during the past twenty years. He also took part in the work of the Legal Committee of the 
European Broadcasting Union in Geneva. He then started to work in the Council for Radio 
and Television Broadcasting. His task was to cooperate with European Union authorities and 
with the regulatory bodies of EU Member States with a similar field of competence, focusing 
in particular on obtaining and providing data and information required by law, by decisions 
issued on the basis of law or decisions made on the basis of law, or by the legal acts of the 
European Union and to cooperate in the field of television broadcasting regulation with the 
relevant bodies of the member states. 

Today he is employed in the Ministry of Culture of the Czech Republic, Legal Department. 
His  tasks  focus  on  preparation  of  media  regulation.  He  is  a  member  of  the  Contact 
Committee  according  to  the  AVMS  Directive  and  a  member  of  the  Standing  Committee  of 
the  Transfrontier  Television  Convention  of  the  Council  of  Europe.  He  acts  as  an  IRIS  
correspondent for the Czech Republic for many years. 

  Ms Katharina Grenz (Germany) 

She  obtained  her  law  diploma  (First  State  Exam),  after  finalising  her  legal  studies  at  the 
University  of  Saarland,  in  December  2010.  Currently,  she  is  a  trainee  lawyer  at  the 
Regional Supreme Court of the Saarland, Saarbrücken. Since January 2010, she works as a 
research assistant at the Institute of European Media Law (EMR).  

  Ms Pirkko-Liis Harkmaa (Estonia) 

She is an Associate Partner and Attorney-at-law of LAWIN Lepik & Luhaäär in Estonia. She 
has  been  advising  the  firm’s  clients  in  data  protection  &  privacy  related  matters  since 

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joining the law firm in 1998 and currently leads the firm’s data protection & privacy team. 
She  is  experienced  in  all  aspects  of  data  protection  legislation,  including  employee  and 
consumer  data  privacy,  employee  monitoring,  international  data  transfers,  personal  data 
processing  consent  forms  and  policies.  Her  other  fields  of  expertise  include  IT  & 
communications,  media,  employment  law,  environmental  law  and  general  business  and 
corporate law. 

  Prof Dr Michael Holoubek (Austria) 

Professor of Law, he teaches at Vienna University of Economics and Business (WU) and has 
held  various  positions  in  regulatory  authorities,  i.a.  as  member  of  the  Austrian  Private 
Broadcasting  Authority  and  as  member  of  the  Federal  Communications  Board.  Professor 
Holoubek  has  served  as  an  expert  in  parliamentary  hearings  on  many  occasions.  He  has 
lectured  on  a  variety  of  issues  in  the  field  of  Constitutional  and  Administrative  Law, 
Fundamental Rights, and European Law, both at domestic and at international conferences, 
and published extensively on a broad scope of subjects in these fields. In 2011 he has been 
appointed as member of the Austrian Constitutional Court. 

  Ms Jurgita Iešmantaitė (Lithuania) 

From 1991 to 1996 she studied law at the Vilnius University, Faculty of Law. Currently, she 
is  the  Deputy  Executive  Director  at  the  Radio  and  Television  Commission  of  Lithuania 
(RTCL). Her regular duties consist of discharge of management functions and the provision 
of  consultations.  Beside  her  regular  duties  she  participates  in  the  activities  of  WGs  on 
drafting  legislation.  Before  working  at  the  RTCL,  she  worked  as  Senior  Lawyer  at  the 
Lithuanian  National  Radio  and  Television  (LRT).  Her  working  area  consisted  in  the 
safeguarding  of  the  legitimacy  of  the  activities  of  the  public  service  broadcaster,  the 
provision of consultations. She made contracts and participated in negotiations. 

  Dr Petros Iosifidis (Greece) 

He  obtained  his  first  degree  in  Sociology  from  Panteion  University  of  Social  and  Political 
Sciences  of  Athens  and  completed  his  MA  in  Communication  Policy  Studies  and  PhD  in 
Media Policy at City University and University of Westminster, respectively. He is currently 
Reader (Associate Professor) in Sociology and Media Policy at City University London. He is 
author of five books, has published extensively in referred journals, contributed chapters to 
books  and  presented  papers  in  national  and  international  conferences.  He  is  associate 
editor of the ‘International Journal of Digital Television’ (Intellect UK) and co-editor of the 
book  series  ‘Global  Media  Policy  and  Business’  (Palgrave  Macmillan).  He  has  acted  as  an 
ESRC  (Economic  and  Social  Research  Council)  Peer  Review  College  reviewer  and  as  a 
national expert for European projects. 

  Ms Christine Kirchberger (Sweden) 

She obtained her Law Degree from the University of Vienna. After working as a trainee with 
the  European  Parliament  and  at  two  district  courts  in  Austria,  she  obtained  a  Master’s 
Degree  in  Law  and  Information  Technology  from  the  University  of  Stockholm.  In  2001, 
Christine  Kirchberger  joined  the  Swedish  Law  and  Informatics  Research  Institute  (IRI)  at 
Stockholm  University  as  a  junior  lecturer.  She  has  been  teaching  legal  informatics  to  law 
students as well as computer scientists, both in Stockholm and other Swedish universities 
as well as at King’s College in London. Christine Kirchberger has participated in several EU 
projects  on  IT-related  legal  issues,  such  as  eHealth,  electronic  procurement  and  data 

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protection, and published several articles and blog posts on legal information retrieval and 
legal  informatics  in  general.  In  2010,  she  authored  “Swedish  Cyber  Law”,  as  part  of 
Kluwer’s International Encyclopaedia for Cyber Law. 

  Dr Ewa Komorek (Ireland) 

LL.B (Warsaw 2002), LL.M (Amsterdam, 2003), PhD (Trinity College Dublin, 2008); she is a 
lecturer in Media Law in the Griffith College Dublin and an adjunct lecturer in Trinity College 
Dublin. She formerly worked for the European Commission’s DG Competition (Media Unit) 
and  in  the  EU  &  Competition  Departments  of  Linklaters  and  Hammonds  law  firms  in 
Brussels. She also worked as a consultant in the EU & Competition team of A&L Goodbody 
Solicitors in Dublin, and as research assistant for the Sales Law Review Group in the Irish 
Department  of  Enterprise,  Trade  and  Employment.  She  is  the  author  of  the  book  “Media 
Pluralism and European Law” (forthcoming, Kluwer Law International, 2012). 

  Dr Philie Marcangelo-Leos (France) 

She  has  a  postgraduate  degree  in  media  law  (1997)  and  a  Ph.D.  on  pluralism  in  the 
audiovisual  sector  in  public  law  (2003)  (published  by  LGDY)  from  the  University  of  Aix-
Marseille  III.  Since  2005,  she  writes  articles  for  several  law  journals  of  the  Victoires-
Editions group concentrating on media law (Légipresse, Légicom) and is editor of Légilocal, 
a journal which specializes in the law of local authorities (Groupe Victoires-Editions). She is 
also  author  of  several  articles  on  topics  concerning  transports  and  environment  for  the 
website localtis.info of the Caisse des dépôts et consignation and keeps the site legally up to 
date. In 2008, she contributed to the EMR study “The contribution of public service media to 
social and to the promotion of a culture of tolerance” on behalf of the Council of Europe. 

  Prof Dr Roberto Mastroianni (Italy) 

He  is  full  Professor  of  European  Union  Law  at  the  University  ‘Federico  II’  in  Naples,  Italy, 
where he also teaches Media Law. He graduated in Law at the University of Florence, Italy 
(1987), and holds a PhD in European Law from the University of Bologna (1991) as well as 
a  LLM  from  the  Penne  State/Dickinson  School  of  Law  in  Carlisle  (PA),  USA  (1992).  He 
specialized in International Copyright Law and in European Media Law at the Universities of 
Geneva, Amsterdam and New York (NYLS). Former Researcher of International Law at the 
University  of  Florence  (1992-1997),  he  served  as  Referendaire  at  the  European  Court  of 
Justice in Luxembourg, in the Cabinets of Advocate General Giuseppe Tesauro and Antonio 
Saggio (1997-2000). He practises law in Rome and Naples in the area of European Law and 
Media  Law,  and  collaborates  with  several  private  and  public  companies  and  authorities. 
Among his publications are a treatise on International copyright Law (Milan, Giuffré, 1997), 
a book on the reform of Italian Broadcasting Law (Turin, Giappichelli, 2004), a monograph 
on the Audiovisual Media Services Directive (II ed., 2011) and several articles and notes on 
EU  Law,  International  Law  and  Mass  Media  Law.  He  is  the  co-author  of  a  European  Law 
handbook  (Diritto  dell’Unione  europea,  with  G.  Strozzi,  Turin,  Giappichelli,  2011)  and  of  a 
treatise on Procedural Law of the European Union (Il contenzioso dell’Unione europea, with 
M. Condinanzi, Turin, Giappichelli, 2010). 

  Prof Dr Kaarle Nordenstreng (Finland) 

Professor of Journalism and Mass Communication at the University of Tampere 1971-2009, 
earlier editor of radio youth programmes and head of research at the Finnish Broadcasting 
Company. He is author and editor of 50 books, including Normative Theories of the Media: 

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Journalism  in  Democratic  Societies  (with  Christians  et  al.  2009)  and  Finland’s  Media 
Landscape (in  Finnish,  edited  with  Wiio  2012).  His  international  tasks  include  consultation 
at  UNESCO  (1969-1975)  and  membership  in  European  Science  Foundation's  Research 
Programme “Changing Media – Changing Europe” (2000-2004). 

  Mr Juraj Polak (Slovakia) 

He graduated in Comenius University at Faculty of Law in 2005. He worked for the Ministry 
of  Interior  Affairs  in  the  administrative  law  and  legislative  department  and  was  also 
secretary  of 
(advisory  body  which  gives 
recommendation to the Minister on how to handle appeals against decisions adopted by the 
bodies of the Ministry). 

the  Minister’s  appealing  committee 

He is working for the Office of the Council of Broadcasting and Retransmission of the Slovak 
Republic (hereinafter only “Council”) since 5 years where he works for the law and license 
department, and for a year and a half, he was deputy of the head of this department. His 
regular  duties  mostly  include  writing  legal  opinions  on  the  matters  handled  by  Council 
(mostly  regarding  complaints  from  citizens),  writing  answers  to  appeals  against  Council’s 
decisions and representing the Council at courts. 

Besides his regular duties he is the person responsible for international affairs that concern 
the Council. He represents it at EPRA meetings, meetings of the working group of the AVMS 
regulatory  authorities.  He  frequently  attends  the  Contact  Committee  meetings  with 
delegate  from  the  official  government  body.  He  is  involved  and  he  attends  the  recently 
founded  CERF’s  (Central  Europe  regulatory  forum)  meetings  as  also  other  international 
events in which the Council is involved. 

In 2009, he was member of a group which closely cooperated with the Ministry of Culture 
of  the  Slovak  Republic  on  the  transposition  of  the  Directive  2007/65/EC  into  the  Slovak 
legal system and he represented the Council at the meeting of the Government’s legislative 
council  when  the  relevant  main  legislative  proposals  were  passed.  He  was  also  involved 
(with the Ministry as the officially responsible body) in writing the answers to the European 
Commission in the review process of the notifications of the Member States regarding the 
Directive’s transposition. 

He  is  also  national  correspondent  for  the  Slovak  Republic  for  the  IRIS  newsletter  of  the 
European Audiovisual Observatory.  

  Dr Gábor Polyák (Hungary) 

Associate professor at the University of Pécs and at the Corvinus University of Budapest. He 
graduated in law and media sciences at the University of Pécs. He obtained an LL.M. degree 
at the University of Vienna in ICT law. His PhD was made at the University of Pécs with the 
title  ‘Forming  the  Media  System’.  He  is  the  chief  editor  of  the  Hungarian  professional 
journal  'Infokommunikáció  és  Jog'  ('Infocommunications  and  Law').  He  is  author  of 
numerous  publications  and  expert  papers  in  media,  informatics  and  telecommunications 
law. He worked as advisor at the National Radio and Television Authority (ORTT) during the 
presidency of László Majtényi. He is Fellow of the Bolyai Scholarship of Hungarian Academy 
of Sciences. 

He  was  assisted  in  his  contribution  to  the  present  study  by  Attila  Mong,  Krisztina  Nagy, 
Ágnes  Urbán  and  Zsófia  Lehóczki,  all  of  which  are  member  of  Standards  Media  Monitor 
(Mérték  Médiaelemző  Műhely),  a  civil  and  professional  organisation  committed  to  opinion 

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and press freedom, with the aim of evaluating the impacts of media laws and other media 
policy decisions. 

  Dr Maciej Ramus (Poland; market analysis part) 

He is currently lecturer (dozent) at the Faculty of Management of the University of Warsaw 
and  strategy  analyst  at  the  Polish  Radio  S.A.  In  the  nineties,  Dr  Ramus  acted  as  Director 
General at the Ministry of Culture of the Republic of Poland, Advisor to the Polish Ministry of 
Finance, CFO and Vicepresident of the Polish Radio and Television. 

  Leyla Rock (France, coordination of country report) 

She graduated from the Faculty of Law of the University of Saarland, Saarbrücken, in June 
2012, when she finalised her legal studies and passed the First State Exam. She is working 
at the Institute of European Media Law (EMR) since September 2010 and was involved as 
Interessenausgleich  bei  der 
scientific  assistant 
Vorratsdatenspeicherung”, conducted on behalf of the German federal Ministry of Education 
and  Research  (BMBF),  where  she  significantly  contributed  to  the  editing  and  comparative 
analysis of country reports on Member States transposition of the Date Retention Directive. 

“INVODAS  – 

study 

the 

in 

  Prof Dr Søren Sandfeld Jakobsen (Denmark) 

He  is  Professor  at  the  Law  Department  of  Aalborg  University.  His  primary  research  areas 
cover Media, IT and Communications Law, on which subjects he has published a number of 
books, articles, reports, etc. His PhD dissertation (2004) concerned the legal aspects of the 
growing media convergence. He has previously worked as attorney-at-law and Head of the 
Legal  Office  of  the  Danish  Ministry  of  Business  and  Industry.  He  is  a  member  of  several 
research groups and holds a number of honorary offices within his legal field. 

  Dr Evgeniya Scherer (born Nikolova) (Bulgaria) 

She has been a qualified lawyer for more than 10 years. She has received her diploma for 
Master  in  Law  at  the  Sofia  University  “St.  Kliment  Ohridski”  and  at  the  University  of 
Hamburg.  She  obtained  her  doctor’s  degree  in  2009  from  the  University  of  Hamburg.  Her 
dissertation  concerns  the  digitalisation  of  television  in  Europe  and  especially  in  Germany 
and  Bulgaria.  In  2004,  Dr  Scherer  was  a  lecturer  in  telecommunication  and  media  law  at 
the Institute for European and German Law with the Faculty of Law at Sofia University. As a 
senior  consultant  at  Kambourov  &  Partners  law  office  (2004-2006)  she  was  involved  in 
number of high-profile project-finance cases such as the privatisation of the national film­
making  monopolist  Boyana  Films  EAD.  Today  she  is  acting  as  an  attorney-at-law  and  a 
consultant in the media field in Bulgaria and in Germany. She has participated/participates 
in European and Bulgarian projects concerning media legislation and environment such as 
the EU-Twinning-Project „Strengthening the capacity of the Bulgarian Ministry of Culture to 
secure  the  development  and  implementation  of  a  National  Audiovisual  Policy,  including 
copyright  protection“  (2009–2010)  and  “The  electronic  media  environment  in  Bulgaria  in 
times of change and digitalisation” (2010–2012). She was involved as a national expert on 
behalf  of  EMR  in  two  media  studies,  namely  in  the  “Study  on  the  monitoring  of  the 
compliance  by  television  broadcasters  with  the  provisions  of  Chapter  IV  of  the  “Television 
without  Frontiers”  Directive  (2010-2011)  and  in  “The  Media  in  South-East  Europe.  A 
comperative  Media  Law  and  Policy  Study”  (2010-2011).  Since  2010,  Dr  Scherer  is  a 
lecturer  in  European,  German  and  Bulgarian  media  law  at  the  University  for  Applied 
Sciences in Kehl, Germany. She has many related publications.  

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Policy Department C: Citizens’ Rights and Constitutional Affairs 

Dr  Scherer  is  a  founding  member  of  the  German  School  established  at  the  German 
Embassy  in  Sofia  and  was  a  Board  Member  voluntary  until  March  2010.  She  speaks 
Bulgarian (native), German, English and Russian. 

  Mr Alexander Scheuer (Responsible for the study) 

Attorney  at  law,  General  Manager,  Member  of  the  Executive  Board  of  the  Institute  of 
European Media Law (EMR), Saarbrucken/Brussels (2000 to date). Scheuer is a member of 
the Advisory Committee and of the IRIS Editorial Board, both at the European Audiovisual 
Observatory.  Since  2003  he  has  been  member  of  the  Scientific  Advisory  Board 
(Kuratorium) of the Voluntary Self-Regulation of Private Televisions in Germany (Freiwillige 
Selbstkontrolle  Fernsehen,  FSF),  Berlin.  Editor  and  author  of  the  Commentary  “European 
Media  Law”,  Castendyk/Dommering/Scheuer,  Alphen  a/d  Rijn  2008;  co-author  of  the 
Commentary  on  the  EU-  and  EC-Treaties,  Lenz/Borchardt  (eds.),  Köln,  Basel,  Genf, 
München, Wien (1999, 2003, 2006, 2010; chapters on free movement of workers, freedom 
of  establishment).  Scheuer  has  been  responsible  for  several  major  studies  in  the  area  of 
media and telecommuniations law, commissioned, at European level, i.a. by the European 
Commission  (co-regulation;  media  market  definitions),  the  Committee  of  the  Regions,  the 
Council  of  Europe  and  the  European  Broadcasting  Union,  as  well  as,  at  the  national  level, 
by  different  media  authorities  in  Germany,  Austria  and  Switzerland.  He  has  published 
widely  on  European  media,  telecommunications,  protection  of  minors  and  copyright  law. 
Scheuer  has  held  numerous  speeches  at  international  and  national  conferences  and  acted 
as  a  speaker  and  panel  chairperson/moderator  among  others  in  several  media  expert 
seminars organized by the respective EU Council presidencies. 

  Ms Birgit Schmeyer (France, translation into English) 

Birgit  Schmeyer’s  graduation  in  law  from  Saarland  University,  Germany  (2010),  was 
followed by LL.M. studies in South Africa at the University of Johannesburg (2011). She got 
a diploma after two years of French Law studies (D.E.U.G. in 2007). Since the end of 2007, 
she is working as a student and scientific assistant at the Institute of European Media Law. 
She  is  currently  a  Ph.D.  student  at  Saarland  University  where  she  is  also  working  as  a 
research assistant. 

  Dr David Stevens (Belgium) 

He  is  research  manager  (since  2005)  and  researcher  (since  1998)  at  the  Interdisciplinary 
Centre for Law & ICT of the Faculty of Law of the Katholieke Universiteit Leuven (part of the 
Flemish Institute for BroadBand Technology). 

His academic expertise relates to the evolving role of governments and national regulatory 
authorities  in  the  telecommunications  and  media  sectors.  The  most  important  projects  on 
this subject were funded by the Fonds voor Wetenschappelijk Onderzoek Vlaanderen (Fund 
for  Scientific  Research  Flanders),  the  federal  and  regional  governments  and  private  and 
public  market  players.  In  2009,  David  defended  his  PhD  on  this  matter.  He  regularly 
publishes  on  communications  and  media  law  in  Belgian,  European  and  international 
journals  and  is  a  frequent  speaker  at  national  and  international  conferences.  Since  2010, 
he is a member of the editorial board of Computerrecht, a Dutch-Belgian journal on law & 
informatics published by Kluwer. 

David  is  also  actively  involved  in  a  number  of  government  advisory  bodies  in  the  Belgian 
media  and  communications  sectors,  such  as  the 
‘Raadgevend  Comité  voor  de 
Telecommunicatie’  (as  chairman  since  2007)  and  the  'sectorraad  media'  of  the  'Raad 

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Cultuur,  Jeugd,  Sport  en  Media  (as  chairman  since  2008).  These  committees  are 
permanent advisory bodies to respectively the federal Minister for Telecommunications and 
the Flemish Minister for the Media. 

  Ms Pam Storr (Sweden) 

She  obtained  her  Law  Degree  from  the  University  of  Durham,  England.  She  has  since 
obtained  two  LL.M.  degrees,  in  Law  and  Information  Technology  and  in  European 
Intellectual  Property  Law  from  the  University  of  Stockholm.  Pam Storr  joined  the  Swedish 
Law  and  Informatics  Research  Institute  (IRI)  at  Stockholm  University  in  2009  and  is 
currently  a  lecturer  within  the  field  of  IT  law.  She  teaches  primarily  on  the  Master 
Programme  in  Law  and  Information  Technology,  and  is  currently  course  director  for  the 
programme. She is also the research coordinator at IRI and the editor for IRI's blog. 

  Ms Miriam van der Burg (Netherlands) 

She  works  as  a  researcher  at  the  Strategy,  Policy  and  Research  department  of  the  Dutch 
Media Authority (Commissariaat voor de Media, CvdM). This national regulatory authority is 
concerned with controlling compliance with the Media Act in the Netherlands. Moreover, the 
CvdM monitors developments in the media landscape since 2001. The annual report, called 
Mediamonitor,  provides  insight  into  the  public  information  supply  and  particularly  into  the 
effects  of  media  concentration  on  the  diversity  and  independence  of  that  information 
supply. Miriam is co-author of the Mediamonitor and is concerned with policy matters such 
as  the  performance  contract  of  the  national  Public  Broadcasting  Service  (Nederlandse 
Publieke Omroep). Before she started working at the CvdM, she finished a research master 
in Communication Science at the University of Amsterdam. 

  Dr Krzysztof Wojciechowski (Poland; legal information parts) 

In  1992  he  graduated  from  the  University  of  Warsaw,  Faculty  of  Law  and  Administration. 
He  obtained  a  training  for  the  profession  of  legal  adviser,  in  the  Warsaw  District  Bar  of 
Legal  Advisers  between  1997-2001  and  is  a  legal  adviser  (radca  prawny)  in  the  Warsaw 
Bar. In 2003 he obtained a grade of doctor of law, on the basis of the thesis devoted to the 
protection of sports events and audiovisual sports transmissions. He works as a lecturer at 
the University of Warsaw, Faculty of Law and Administration, in the Institute of Civil Law, 
currently  in  the  Department  of  Intellectual  Property  Law.  He  teaches  civil  law  and 
intellectual  property  law,  including  European  copyright  law.  As  a  legal  adviser  Dr 
Wojciechowski  works  for  Polish  public  service  television,  Telewizja  Polska  (TVP),  where  he 
holds the position of the adviser to the Board of Management. He is involved in the works 
of  European  Broadcasting  Union  (EBU)  and  is  a  Chairman  of  the  Statutes  Group  of  EBU, 
member  of  the  EBU  Legal  and  Policy  Committee  and  the  Copyright  Group.  He  has  also 
cooperated  with  the  Council  of  Europe  and  UNESCO.  Currently  he  is  a  member  of  the 
Intergovernmental  Council  of  UNESCO  International  Programme  for  the  Development  of 
Communications  (IPDC).  Dr  Wojciechowski  participated  in  legislative  works  in  Poland  on 
copyright  and  media.  He  is  a  member  of  the  Copyright  Committee  in  Poland  –  the 
arbitration  board  responsible  for  approval  of  tariffs  and  certain  other  matters  relating  to 
collecting  societies.  Dr  Wojciechowski  has  also  been  an  ad  hoc  expert  of  the  National 
Broadcasting Council and the Ministry of Culture and National Heritage in Poland. 

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  Prof Dr Lorna Woods (United Kingdom) 

Lorna Woods has research interests in the areas of broadcasting law and policy, regulation 
of  the  media  (including  the  Internet),  and  related  issues  of  freedom  of  expression  and 
privacy. She is also known for her work in EC Law (particularly free movement rights and 
the  law  relating  to  public  services)  as  well  as  the  European  Union  and  human  rights.  She 
practised as a solicitor for five years, working at Simmons and Simmons before returning to 
academia.  She  has  taught  at  Sheffield  University  and  Essex  University  before  joining  City 
University in 2008. She is currently Associate Dean for Research. 

She is the co-author of 'EU Law' (9th ed.) (OUP, 2006), one of the leading textbooks in this 
field;  (with  Sabine  Michalowski)  'German  Constitutional  Rights'  (Ashgate,  1999);  'Free 
Movement of Goods and Services' (Ashgate, 2004); and (with Prof. J. Harrison) 'European 
Broadcasting Law and Policy' (Cambridge University Press, 2007) and has published widely 
in  the  field  of  European  broadcasting  law  and  policy.  Professor  Woods  has  been  country 
expert  in  respect  of  a  number  of  studies  relating  to  regulation,  self-regulation  and  co­
regulation  in  the  media  and  new  media  sectors,  commissioned  variously  by  the  European 
Commission, DFID and a number of NGOs. She has also contributed to the UNESCO/Council 
of Europe round table on Ethics and the Internet. 

  Ms Anne Yliniva-Hoffmann (Germany) 

She  is  a  lawyer  and  had  been  researcher  at  the  Institute  of  European  Media  Law  (EMR) 
until  mid-June  2012.  She  studied  Law  in  Marburg  and  Würzburg  and  graduated  with  a 
particular focus on Tax and Company Law. After her two-year legal clerkship she worked as 
a  researcher  and  lecturer  at  the  University  of  the  German  armed  forces  in  Munich.  The 
thematic priority of her research work at the EMR comprised general audiovisual media law 
as well as copyright and film law.  Furthermore she had been responsible project manager 
for  the  EMR  contributions  to  the  IRIS  newsletter  and  the  MMR,  specialists  journals  on  the 
international/national audiovisual law sector. 

  Prof Dr Suzana Žilič Fišer (Slovenia) 

She is a graduated journalist and holder of an MSc in Political Science. She completed her 
postgraduate  studies  at  the  Central  European  University,  Budapest.  She  continued  her 
education at the Faculty of Social Science, University of Ljubljana, where she obtained her 
doctorate. 

After her studies, she started to work as a journalist for a number of media institutions and 
newspapers (Večer) as well as for the national Radio-Television Slovenia (RTV Slovenia). In 
1995,  she  continued  her  career  at  Pro  Plus  Company,  where  she  became  editor  and 
executive producer and deputy director of production at POP TV. She held this post up until 
the  end  of  2001.  At  Pro  Plus,  she  was  head  of  the  company's  largest  production 
department,  the  Maribor  department.  At  the  end  of  2001,  she  was  awarded  a  Chevening 
Research  Scholarship  from  the  British  Council  and  the  British  Foreign  and  Commonwealth 
Office, so she left for London. Between 2001 and 2004 she was a researcher and lecturer at 
the University of Westminster and the European School of Economics, London. 

From  2004  on,  she  is  Lecturer  and  Head  of  Media  Communications  at  the  Faculty  of 
Electrical  Engineering  and  Computer  Science,  University  of Maribor.  She  published  several 
academic  and  research  papers,  books  and  co-authored  other  works  in  the  fields  of  the 
media, media management and the realisation of public interest. 

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Between  June  2006  and  2008  she  was  president  of  the  Ministry  of  Culture's  expert 
commission  for  the  evaluation  of  projects  for  co-funding  for  media  contents,  and  later  on 
took part in the Ministry of Culture's expert commission for the preparation of a new media 
law.  She  has  been  involved  in  the  ECOC  2012  project  right  from  the  start,  first  as  a 
member  of  the  temporary  ECOC  secretariat  and  later  as  a  member  of  the  Maribor  2012 
Institute Council. 

707