Comments on the draft Bulgarian Law on Radio and Television
Prepared by: Ms. Carolyn Morrison, Head of International Broadcasting, Department of Media, Culture and Sport (London) and Mr. Michael Wagner, Legal Adviser, European Broadcasting Union (Geneva)
Preliminary remark: due to time constraints, the following comments highlight major points, without providing an exhaustive analysis of the draft law.
Introduction
Any Broadcasting Law must achieve genuine and transparent independence for broadcasters vis-a-vis the Sate. The other laws of the State to which they are subject must similarly respect fundamental freedoms enshrined in the European Convention on Human Rights, so that all broadcasters can properly respect these without undue interference. This would particularly involve actions taken under Section 11 (2) and 15 (1) and (2).
Sections 5 and 6
Whilst it is true that commercial broadcasters mostly have the object of distributing profits, this is not always the case (Channel 4 in the United Kingdom is a public corporation obliged to invest all profits back into the company). Nor is it always the main objective: a commercial broadcaster may be given , in legislation, public service obligations.
It is also unwise to define public broadcasters as having their "main object to contribute to the realization of the right to information". This must be a principle objective of all broadcasters. It is comprehensive mission given in Section 6 (3) which should define them.
Independence
Section 19 (1) rightly states that the NRTC shall be independent. However, to ensure such independence in practice, organizational and procedural safeguards are needed, which are still partly missing in the draft (see below). Whereas countries with long-established democratic traditions and with a strong and pluralistic media sector may perhaps not always need legality explicit organizational and procedural safeguards, adopting legal safeguards should help to reassure new democracies.
Composition
The nomination procedure for the members of the NRTC as currently envisaged in Section 24 (1) neither guarantees the independence of the NRTC nor does it provide for a pluralistic composition if the NRTC.
This is obvious in a situation where the President belongs to a party which is part of the parliamentary majority. There are no safeguards ( at least not in the Law on Radio and television) to ensure that the President and the parliamentary majority do not exercise their nomination powers to favor persons which are close to the political party in power. (The incompatibility rules in Section 27 (1) are important but not sufficient.)
There are several legal solutions available. One would be to require members of the NRTC to be elected by Parliament with a qualified (three-quarters) majority, thus forcing the major political parties to agree on a compromise package solution. Other solutions would be to have a "proportional" instead of a "majority" voting system, or to reserve from the outset a number of seats for the parliamentary opposition.
In addition to experience in the fields mentioned under Section 25, banking might be added. Some practical commercial experience is worthwhile, and because Section 27 (2) excludes company directors etc, the banking sector would be a more neutral source. The same point can be applied to Section 61 (1).
Section 27 (2) (regarding unpaid leave and reinstatement in the former position) provides for social protection but does not really contribute to the independence of NRTC members. In cases where there is a clear conflict of interest between the former/future position and the role as a member of NRTC, for example in the cases of Section 27 (1) No. 2 and 4, Section 27 (2) goes in the wrong direction. (It would be better for there to be a period of time after termination of office where former members are excluded from taking up certain conflicting activities.)
Competence
As a general comment, the relationship of the NRTC to the governing Bodies of BNT and BNT, and to RTV Fund is too close. A regulatory body should stand in the same relationship to all broadcasters, public and commercial. The fact that the NRTC (Sections 32 (3), (4) and (14)) determines the composition of the Managing Boards et. and appoints the Fund’s executive director concentrates too much power in a Council which is not independent of the Government. This could work to the advantage of the public broadcaster vis-a-vis a commercial one, or it could interfere with the freedom/independence of the public broadcaster. The Boards should be separately elected, along the lines suggested for the NRTC, and the terms of appointment be for 5 years, to allow for management planning, and to keep the terms of office separate from the 3 years of the NRTC.
It is not clear what the status of the opinions of the NRTC will be. Do they have any legal force? This would, if so, reinforce the comments made above concerning the Boards and especially funding ( see also the comments made below on the competencies of the NTC and the NRTC)
Remit
Why in Section 7 (6), are "programs of a cultural, educational and specialized nature" given special mention? Surely the point is that BNR and BNT should be asked to use new information technologies positively across all their remit, and develop new digital channels when finance and need allows.
In Section 7 (8), singling out "the official position of the State" is dangerous and misleading. a public service broadcaster must deal even-handedly and impartially with items of news/current affairs, and opinions of the opposition are of equal importance.
As worded, Section 47 (2) means that BNR and BNT may be the providers of news etc. This may be only a drafting point, but it should be clear that any broadcaster, in the interests of freedom of speech and pluralism, may also provide and produce news etc.
As regards section 47 (3), it should not be necessary to insist on a tendering process for independent productions. These should be a matter for BNR and BNT internal editorial decision. It should be noted that the public procurement Directive has an exemption for program commissions.
Management
The independence and the continuity of the functioning of the managing boards of BNR and BNT could be improved by extending their tem of office under Section 62 (1) (to 5 years).
Competencies of the NTC and NRTC
It is not said explicitly that the National Telecommunications Commission (NTC) is legally bound by the opinions given and proposals made by NRTC as the liensing of radio and television services is concerned (see Section 32 (1) No. 10 and 11). This could undermine the role of the NRTC and render the safeguards for its independence ineffective.
Eligibility for radio and television licences ("disqualified persons")
In order to ensure that radio and television broadcasters are not – directly or indirectly – controlled by the State, it should be explicitly stated that public authorities or legal persons owned or controlled by the State cannot obtain a broadcasting licence. (Bulgarian National Radio and Bulgarian National Television are of course special cases owing to their pluralistic structure and independent supervision by the NRTC).
For similar reasons, political parties are often excluded in their countries from operating their own radio and television services.
Another question is whether telecommunications operators should be eligible for a
broadcasting licence. If a telecommunications operator is still owned or controlled by the
State (including majority shareholding), broadcating activities should be excluded I order
to ensure independence from the State. If a telecommunications operator is privately owned
and controlled, careful consideration would need to be given to the question of whether
the extension of its activities to broadcasting would be in line with antitrust rules and
the necessary safeguards for media pluralism. (if a telecommunications operator, whether
public or private, enjoys special or exclusive (monopoly) rights or has a dominant
position in the telecommunications market, it might easily harm competition and pluralism
on the broadcasting market, especially where broadcasters depend on the same
telecommunications operator for transmission of their broadcasts.)
Withdrawal of broadcasting licenses(Sections 126 and 127)
Decisions to withdraw licences should be for the regulator (NRTC) alone, and not subject to the STC. The STC should allocate frequency spectrum, and thereafter all decisions on individual licence applications should be for the NRTC.
It is also unclear who ahs the right to appeal in Section 127 (2): is it the NRTC, or the broadcaster.
It is doubtful whether the general rules in the draft Telecommunications Act are appropriate for the withdrawal or termination of a broadcasting licence, given the consequence of any such decision on freedom of expression and freedom of broadcasting. Such a decision can only be the last resort in a safeguard system of sanctions and must respect the principle of proportionality.
Should there need to be a reference to the Telecommunications Act, for reasons of clarity this should be a reference to specific provisions only.
Access to official information and use thereof (Section 12 (2))
The legal requirement that broadcasters shall not use "in an inaccurate or biased manner" official information (i.e. information received from State authorities) is unusual, vague and lends itself to abuse. why should the same criteria of journalistic ethics not apply to both official and unofficial information?
Retention of recordings (Section 13 (1))
Why is a distinction made between public and commercial? A better distinction would ne between radio and television (one and three months), reflecting the volume of material of a more ephemeral nature on the former. There should in any case be no distinction between public and commercial television – any program is potentially subject to complaint and sometimes needs time to assemble the complaint.
News, economic and political broadcasting ( Section 47 (2))
The requirement that BNR and BNT must produce all their news, economic and political broadcasts themselves appears overly restrictive, limits programme exchanges and does not contribute to a pluralistic programme output. There should at least be scope for exceptions from the principle that BNR and BNT produce these programmes themselves.
Access to major ( sports ) events ( Section 48 )
The draft law does not foresee measures to ensure that a substantial proportion of the national public is not deprived of the possibility to follow events of major importance for society via live coverage on free television ( see article 3a of the new "Television without Frontiers" Directive of the european Union, which allows for this option).
Section 48 only ensures free short reporting for BNR and BNT, thus covering a much larger number of events, but providing only for short extracts instead of full live coverage. (The difference between Section 48 (1) and (2) does not seem altogether clear.)
The legislator should be aware that in future major sports events may be exclusively shown on channels which can only be received by part of the population. This is all more likely since the strict advertising limits for BNT (Section 90 (1)) make it virtually impossible for the public national broadcaster, covering the entire territory, to refinance a substantial part of the cost for sports rights via advertising.
Broadcasting time for state government representatives
( Section 53(1))
The rights for the President, the Chairman of the National Assembly, the Prime Minister and other representatives from high State bodies to "address the audience on BNR and BNT" are extremely far-reaching and could easily be used to throaten the balance of access to the media fro the government and the opposition.
Therefore, it appears, on the one hand, necessary to limit the exercise of these rights (for example, by restricting the exercise to specific occasions or purposes, preventing any abuse especially during the pre-election period, and clarifying that the exercise of these rights must not impinge on the scheduling autonomy of BNR and BNT). On the other hand, in certain cases a spokesman for the opposition should have an euivalent right of response.
6. FUNDING OF RADIO AND TELEVISION ACTIVITIES
Broadcasting licence fee (Section 98)
Taking the minimum wage as a reference point seemes to be an acceptable pragmativ approach, as does the reference to the "registered electric meter" under Section 97.
However it appears to be doubtful whether the principle of equality of treatment is respected when legal and natural persons carrying on commercial activities have to pay a fee which - although increased by a factor of slightly over 4 - does not take into account that these commercial activities may involve the use of a much higher number of radio or TV sets (e.g. hotels, car rental agencies, etc.)
Radio and Television Fund (Section 105)
The fact that the income from the broadcasting licence fee goes into the Radio and Television Fund which then disburses these sums inter alia for the funding of BNR and BNT may not be contestable as such.
However, if decisions on disbursement are simply put at the discretion of the management board of the Fund (without binding criteria) or if these decisions are taken for relatively short terms (e.g. annually) this will not create the "appropriate, secure and transparent funding framework which guarantees public service broadcasting organisations the means necessary to accomplish their missions" ( see Guideline N Vof the Council of Europe Recommendation N R (96) 10 on the guarantee of the independence of public service broadcasting).
7. OTHER COMMENTS
Sections 10 and 11
Some recasting is necessary, because there is confusion between a constitutional right and a contractual one. It would be better to have an opening Section which would be existing Section 11 (1). Then existing 10, followed by 11 (2), (3) and (4).
Section 15 (2)
It would be more accurate to say " information" in the public interest ", since minor sexual or other pecadillos can be " of public interest " and contradict Section 15 (1).
Section 37 (1)
It should be made clear whather the majority is of members present and voting, or not.
Section 2 (5) ( Transitional and final provisions)
Are the dates in Section 5 (2) , (3) correct where they say 1994 and 1995?