The Impact of The European Law on The Media in The UK

The aim of this assignment is to explore the effects of how the European law has shaped and influenced the regulation of the media in the UK. It is paramount that the assignment focuses on the jurisdiction of the Council of Europe and the European Union.

The `media' whose regulation I am discussing are the public means of mass communication, especially the press, radio and television, but also including film and recorded music as well as a number of newer means of distribution by way of cable, satellite, internet, etc. Of increasing importance is the internet, which can now be regarded as a `mass medium' in its own right on the grounds of its gradual diffusion to majorities in many countries and its use for a number of public communication functions in the sphere of both entertainment and information.

The boundary between public and private communication is an important one from the point of view of regulation, but it is much less easy to identify than in the past, especially in relation to the internet which serves as means of personal communication as well as a means of dissemination and form of publication. To some extent, the same applies to mobile phones. Regulation refers to the whole process of control or guidance, by established rules and procedures, applied by governments and other political and administrative authorities to all kinds of media activities. Thus regulation is always a potential intervention in ongoing activities, usually for some stated "public interest" goal, but also to serve the needs of the market (for instance, by supporting competition) or for reasons of technical efficiency (for instance, setting technical standards).

Regulation takes many forms, ranging from clauses in national constitutions and laws to administrative procedures and technical specifications. Regulation can be internal as well as external. In the former case, we are usually speaking of `self-regulation', where internal controls are applied, sometimes in response to public pressure or criticism from outside.

The council of Europe is Europe’s oldest political body. The body was formed shortly after the end of the Second World War in 1949. The council includes most but not all European countries. In all, the council of Europe contains 47 member states with some arguably not geographically in Europe. The council’s stated aims are to uphold human rights, rule of law in Europe, democracy and to promote European culture. In contrast to the EU, the Council of Europe is unable to create binding laws, it does however have the power to enforce some international agreements reached by European states on numerous topics.

A well-known body of the Council of Europe is the European Court of Human Rights. The European Court of Human Rights enforces the European Convention on Human Rights. The Council of Europe has, for many years, promoted the idea of self-regulation of the media. Over the years, the virtues of media self-regulation, and the vices of regulation by the State, have been discussed in many seminars and recommendations. For example, in the Explanatory Memorandum to “Recommendation (2001) 8 on self-regulation concerning cyber content” the Committee of Ministers noted that “self-regulation has become an important and recognised mechanism for the media in avoiding restrictive State legislation on the dissemination of information through the media, especially on matters of decency and moral values which differ widely among individuals and States, while ensuring respect of certain standards, some actors of the new communications and information services have taken initiatives for the creation of their own self-regulatory mechanisms”[1].

More recently, in a discussion paper on “Ethical journalism and human rights” the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, argued that “Reworking notions of media accountability invites a new vision of media regulation, one which goes beyond bureaucratic frameworks for policing journalism, and which encourages self-regulation as a positive force for setting high standards and defending them. This may be achieved by adapting existing press councils or state media commissions, but less complex forms of peer review will continue, such as the use of readers’ editors or ombudsmen, or through professional journals and the systematic monitoring and reporting on media by non-governmental organisations and human rights bodies. New systems may benefit from legal guarantees, but unless they are cast in the mould of self-rule and provide an independent voice for civil society, they will constantly face the danger of undue political or corporate influence”[2].

In November 2011 comment, he said that self-regulation “protects the independence of the media”. But this is not an issue which has ever been directly considered in the case law of the Court of Human Rights. The Court has never analysed the issue of “self-regulation” versus “state regulation” from the point of view of Article 10. The basic position seems clear. First, a system of compulsory media regulation is a prima facie interference with the right to freedom of expression and must, therefore, be justified under Article 10(2). Second, such a system would, if enacted by statute, plainly be in accordance with law and would serve a legitimate aim (for example, the protection of the rights of others). As a result, third, the crucial question would, therefore, be whether the system was “necessary in a democratic society” – whether it was proportionate to the legitimate aim pursued.

Nevertheless, there are some general arguments can be advanced in favour of the proposition that no form of compulsory regulation could ever be justified under Article 10(2). One important argument derives from the wording of Article 10 itself. Article 10(1) – the provision which provides for the right to freedom of expression – provides that: “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.” The third sentence appears to contemplate the licensing of broadcasters and cinemas but not of the print media. It could, therefore, be argued that Article 10 appears to be drafted on the basis that print media “licensing” was unacceptable and that compulsory regulation was, in substance, a form of licensing.

However, this interpretation does not appear to be consistent with the purpose of the third sentence of Article 10(1). The position was explained in the Groppera Radio AG v Switzerland (1990) 12 EHRR 321 Groppera Radio AG, a limited company incorporated under Swiss law, has its registered office at Zug (Canton of Zug) and produces radio programmes. Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi are all Swiss nationals. Mr Marquard is a publisher and lives at Zug; he runs Groppera Radio AG and is its statutory representative and sole shareholder. Mr Fröhlich, who is a journalist and an employee of Groppera Radio AG, lives at Thalwil (Canton of Zürich). Mr Caluzzi is likewise employed by the company as a journalist and lives at Cernobbio in Italy but also has a home in Lucerne.

The Court observes that Article 19 of the 1966 International Covenant on Civil and Political Rights does not include a provision corresponding to the third sentence of Article 10(1). The negotiating history of Article 19 shows that the inclusion of such a provision in that Article had been proposed with a view to the licensing not of the information imparted but rather of the technical means of broadcasting in order to prevent chaos in the use of frequencies. However, its inclusion was opposed on the ground that it might be utilised to hamper free expression, and it was decided that such a provision was not necessary because licensing in the sense intended was deemed to be covered by the reference to “public order” in paragraph 3 of the Article.

This supports the conclusion that the purpose of the third sentence of Article 10(1) of the Convention is to make it clear 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 paragraph 2 (art. 10-2), for that would lead to a result contrary to the object and purpose of Article 10 taken as a whole. As a result the wording of Article 10(1) casts no light on the general acceptability of compulsory media regulation under Article 10.

A number of arguments can be advanced in favour of compulsory media regulation being compatible with Article 10 in an appropriate case.

First, there is some support in the Court’s case law for a positive obligation to engage in appropriate media regulation. The Court of Human Rights has emphasised on many occasions over recent years that the Article 10 right to freedom of expression needs to be balanced with the Article 8 right to reputation. This led the Grand Chamber to say that “the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention … to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power” Cumpana and Mazare v. Romania[3]. The Grand Chamber went on to emphasise that investigative journalists should not be inhibited from reporting on matters of general public interest by the risk of imprisonment or prohibition on the exercise of their profession. No system of compulsory regulation contemplated by the Leveson Inquiry would conceivably involve sanctions of this kind.

Second, it could be argued that the compulsory regulation of large publishers is fundamentally different from the licensing of journalists. The latter means that it is not permissible to write for the media without being a member of a state approved body. The former means that some, but not all, publishers must obey certain basic rules if they are to be permitted to publish.

Third, it is well established that compulsory regulation of the broadcast media and of advertising is acceptable under Article 10, provided that it is necessary and proportionate. There is no difference in principle between compulsory regulation in these areas and compulsory regulation of the print media. The question is whether the requirements of Article 10(2) are satisfied.

Finally, the question as to whether a particular interference with a Convention right is justified is “fact specific”: it is necessary to look at the precise feature of the scheme proposed. The nature of the regulator and the code which it applied would be relevant factors in the proportionality exercise, as would be the extent of the application of the compulsory regime. The Court would also take into account the “mischief” that the regulatory system was intended to deal with. A system of compulsory regulation for large publishers recommended by the Leveson Inquiry would be designed to deal with the “mischief” of wholesale invasion of rights identified by the Inquiry. If a regulator was independent of all government influence and applied a Code drawn up with substantial input from the media and journalists these would all be factors which the Court would take into account in the “justification exercise”.

In summary, although the Council of Europe has strongly promoted self-regulation it is likely that compulsory regulation of the print media will not, of itself, be incompatible with the requirements of Article 10. Compatibility will depend on the precise form of compulsory regulation which is proposed and the justifications for it. It is likely that care will be taken to ensure that investigative journalism is not inhibited and with compulsion being confined to large and powerful publishers. In these circumstances, provided that a compulsory regulatory system remains fully independent of government, it seems likely that they it would be held to be compatible with Article 10.

The media law jurisprudence and legislation of the former European Union Economic Community (EEC), now European Union (EU), is to a significant degree characterised by the EU’s focus on the development of a common market rather than by the pursuit of human rights standards. Under EU law, media goods and services had, in the first place, been perceived as economic commodities. In the seminal Sacchi decision, the then European Court of Justice (ECJ) held that broadcasting of television signals, including those in the nature of advertisements, falls within the rules of the Treaty relating to services[4].

In Procureur du Roi v Debauve, the ECJ included transnational transmission of broadcast signals by cable television within the rules of the treaty relating to services as well[5]. Later on, however, the EEC/EU also recognised the media as a factor of public interest with implications that go far beyond the market, such as cultural diversity, the right to information, diversity of opinion and media plurality, the protection of minors and consumer protection. Furthermore, it was the ECJ that introduced human rights into the community legal order. Since then, fundamental rights have formed an integral part of the general principles of the law that the court observes.

The ECJ case law on freedom of expression in particular concerned statements of EU officials and the relationship between freedom of expression and the fundamental freedoms in the now Treaty on the Functioning of the European Union (TFEU), with freedom of expression bolstering a free movement claim or constituting a legitimate interest capable of justifying a restriction on the fundamental freedoms. The principles established by the courts case law are now reaffirmed in article 6(3) of the Treaty on European Union. Furthermore, the EUChFR, which has the same legal status as the Treaties, has brought significant chance with regard to human rights protection in the EU. Particularly remarkable is Article 11(2) EUChFR which protects freedom and pluralism of the media; a landmark in international media law.

The evolution of technology and markets in electronic communications and media is putting pressure on traditional regulation in Europe. Both the sophisticated economic regulation of networks and the more ad hoc and partial regulation of content and media, are under pressure, as the era of the Internet is challenging business models and modifying players’ hierarchies. Furthermore, in the regulation of mass media, the presence of other fundamental rights to be protected, besides competition and efficiency, like pluralism and freedom, re-proposes old doubts and conflicts in new forms. In this rapidly evolving contest, the European Commission is trying to find workable solutions in respect of Member States’ long-term resistance to relinquishing sovereignty on media and audio-visual policy.

From the results of a series of recent reports, all edited for the Commission, the Van Thillo report, the HLG (High Level Group) report and the CMPF (The Centre for Media Pluralism and Media Freedom) Policy Report, it is now clear to most scholars and to policy makers that the AVMS Directive is, in several respects, largely obsolete and, in any case, severely incomplete. However, when the issue is not only how to favour markets’ development and competition, but also how to pursue fundamental rights, like pluralism and freedom of the media, the solution probably requires an even deeper reform than the necessary revisions of this Directive.

References

(Recommendation Rec(2001)8 of the Committee of Ministers to member states on self-regulation concerning cyber content (self-regulation and user protection against illegal or harmful content on new communications and information services) January 5, 2001) accessed January 2, 2017

Thomas Hammarberg, 'Ethical Journalism and Human Rights' (Coe.int, 2018) accessed 2 January 2018. [2005] 41 EHRR 4 (GC)

Case C155/73 [1974] Sacchi [6]

Case 52/79 [1980] Procureur du Roi v Debauve and others [15]