PUBLIC BROADCASTING SERVICE LEGAL AND REGULATORY

WORKSHOP WITH FOCUS ON PUBLIC SERVICE BROADCASTING FOR CENTRAL AND EASTERN EUROPE

REPORT BY THE RAPPORTEURS

 

RAPPORTEURS:

Mr. E. P. CASSAR, Malta

Ms. N. OGNYANOVA, Bulgaria

Mr. Y. VDOVIN, Russian Federation

St. Petersburg, 3 July 1998.

The participants of the Regional Legal and Regulatory Workshop with Focus on Public Service Broadcasting for Europe gathered in St. Petersburg have examined the working documents of the Model Law for Public Service Broadcasting and have adopted the following Articles together with a number of amendments as indicated hereunder. The participants agreed to consider the English version as the authentic basis, as some of the participants could not be sure whether the Russian version was identical.

 

I ADOPTION OF ARTICLES. AMENDMENTS

ARTICLE 1 Name, Legal Personality, Seat - paragraphs 1 to 4 were adopted without amendments.

ARTICLE 2 Objectives of PSBO, Scope of Activity - paragraph 1 which reads : " The objectives of PSBO shall be to provide a radio/TV programme service in the public interest" was amended to read: "The objective of PSBO shall be to provide a radio/TV programme service in the public interest and to realise such an activity independently of Govt."

Paragraph 1 of Article 2 was adopted as above and paragraphs 2 to 8 without amendments.

ARTICLE 3 Programming - paragraph 1 was amended to read : "PSBO shall provide varied and balanced programming for all sections of the population, whilst respecting the needs and demands of special/minority interests. Programming shall include information, entertainment and education/advice. It shall meet high professional standards".

Paragraph 1 was adopted as amended and paragraphs 2 to 9 without amendments.

ARTICLE 4 Access to information, confidentiality of journalistic sources -paragraphs 1 to 3 were adopted without amendments.

Paragraph 4 - the sentence "Their duration shall not exceed 90 seconds" was deleted. Paragraph 4 was adopted with deletion.

Paragraphs 5 and 6 without deletion.

Paragraph 7 was deleted apart from the first sentence which reads : "The confidentiality of the sources of information (including material researched by journalists) shall be guaranteed by law". Paragraph 7 was adopted with deletion of second sentence.

ARTICLE 5

Air-time for third parties - paragraphs 1 to 6 were adopted without amendments.
ARTICLE 6 Right of Reply - paragraphs 1 to 5 were adopted without amendments.
ARTICLE 7 Rectifications, complaints or suggestions - paragraphs 1 and 2 were adopted without amendments.
ARTICLE 8 Advertisements - paragraphs 1 to 5 were adopted.

Paragraphs 6 and 7 were discussed with Article 14 Re Financial Basis of Organisation and paragraph 6 was adopted with the following amendments to first and second sentences: "On first TV channel, the amount of television advertisement shall be restricted according to time or period of day". "There should be channels free from advertising".

Paragraphs 8 and 9 were adopted without amendments.

Paragraph 10 was amended so that words "not be allowed" were substituted with "be prohibited".

Paragraphs 11 to 22 were adopted without amendments.

ARTICLE 9 Sponsorship - paragraphs 1 to 7 were adopted without amendments.
ARTICLE 10 The Organs of PSBO - Article 10 was adopted without amendment.
ARTICLE 11 The Broadcasting Council - paragraph 1 was amended to read : "The Broadcasting Council has to ensure the independence of the organisation whilst representing the interests of the general public with regard to programming".

Paragraphs 2 to 15 were adopted without amendment.

ARTICLE 12

 

The Board of Administration - paragraphs 1 to12 were adopted without amendment.

ARTICLE 13

 

Paragraph 1 was adopted as amended hereunder : "The Director General shall have final responsibility for programming, including the content of programming and shall ensure ... ...".

Paragraphs 2 to 5 were adopted without amendments.

The Director General - paragraph 6 was amended to read : "The Director General may not be dismissed except on legal grounds or for reasons which prevent him/her from performing his/her duties when at least a qualified majority of members of the Broadcasting Council shall decide to replace him or her by another person ......". Paragraph 6 was adopted as amended above.

ARTICLE 14

 

Public Funding - the title should be "Financial Basis and Sources". A new paragraph 1 was added : "PSBO shall have a sufficient financial basis which will enable it to fulfil its duties and which is given under conditions which do not affect its independence. Potential sources are:

broadcast receiving licence fee

advertising

sponsorship

others

It has to be ensured that all revenues generated by sponsorship have to be part of PSBO's budget".

The aim is for revenues generated by advertising and sponsorship not to exceed an appropriate part of the budget.

Paragraph 1 was adopted and renumbered 2 and each succeeding paragraph was adopted with the new numbering and no amendments.

 

 

ARTICLE 15  

Securing of Evidence - paragraphs 1 and 2 were adopted without amendments.

ARTICLE 16  

Legal Supervision - paragraphs 1 to 6 should be replaced to reflect the following criteria :

legal supervision is necessary

it should not be executed by the government but by an independent institution in accordance with national legislation (e.g. independent prosecutor)

ARTICLE 17 Transitional Provisions
ARTICLE 18 Entry into Force

 

After approving the Model Law in some detail, participants went on to discuss aspects of regulating commercial broadcasting.

II SUMMARY OF POINTS, COMMENTS AND SUGGESTIONS MADE

"Countries to which European Law applies (those that signed European Convention) can deviate in their domestic law from this Model law, as they have to conform with European Law provisions."

ARTICLE 1.1

paragraph 4

Key issue was independence suggested be read in conjunction with check list.
ARTICLE 1 Add to the expression "non-profit": "The term non-profit in the text of the Model Law may have different meanings from those in national legislation."
ARTICLE 1 ADD: Transformation is not the only way of setting up PSBOs. Alternatively, they may be established by a legal act.
ARTICLE 2 The term " to provide" has two meanings: a) to provide by using their own network and b) by contracting telecommunications operators.
ARTICLE 3 Does not make sense to repeat negative aspects already mentioned in pages 5,6,7,9
ARTICLE 3

paragraph 9

Suggested substituting words "it shall be forbidden" with "it is forbidden" at the beginning of paragraph. Some thought it should be abolished altogether but others still thought it should stand as it is.
ARTICLE 3

paragraph 8

Recommendation was made to delete whole Paragraph except the very first sentence because of hints of censorship; clarifications were made regarding necessity to verify sources of news.
ARTICLE 4

paragraph 1

Suggested substitution of words "Shall be entitled" with "Shall be obliged" but others thought "Shall be entitled" was more appropriate because it allowed PSBO leeway to decide for itself which debates to broadcast.
ARTICLE 4 paragraph 2 Suggested 2 sentence in contradiction to law and can be appealed.
ARTICLE 4 paragraph 4 Deletion of 90 seconds clause adopted because it was suggested that it ran counter to transfrontier laws.
ARTICLE 4 paragraph 7 Suggested 2nd sentence was contradictory to 1st and should be left out (suggestion adopted).
ARTICLE 4 Suggested addition: "If there are unused frequencies available, the PSBO must transmit parliamentary sessions."
ARTICLE 5 Alternative : Delete para 1 in conjunction with the existence of national legislation on emergency situations.
ARTICLE 5 paragraph 1 Suggested stipulating what is meant by Government and who has right to free air-time - suggested reference to opposition was vague.
ARTICLE 5 paragraph 1 Suggested substitution of "official" with "emergency" but also suggested best to leave unaltered.
ARTICLE 8 paragraph 18 Suggested since international legislation in existence matter should not be discussed but regulated according to legislation already in existence in particular country.
ARTICLE 11 paragraph 1 Various speakers spoke about importance of stressing independence of organisation and prospect of seeking consensus to attain this goal.
ARTICLE 11 paragraph 3 Remarks concerning the method used for nomination of candidates standing for election.
ARTICLE 11 paragraph 14(g) Possible misunderstanding in respect to censorship in meaning of Russian text. Therefore agreed that basis of discussion and understanding was English version.
ARTICLE 12 paragraph 8 Cultural and Legal traditions in structure of country were held to be decisive in determining methods used.
ARTICLE 13 paragraph 1 Director General held to be key figure in organisation; Council and Board of Administration were held to have no competence with regard to content of programming
ARTICLE 13 paragraph 4 Suggested appointment made on a competitive basis qualifications with possible public debate if appointment is of controversial nature.
ARTICLE 13 paragraph 6 In discussion over criteria for director's dismissal, Participants voted for requirement of qualified majority in preference to simple one calling for removal.
ARTICLE 13 paragraph 6 If dismissal not on legal grounds, organisation may be held liable for failure to honour service contract (art. 12, para 11b)
ARTICLE 14 paragraph 1 Suggested PSBO use some promotional information about market and use up to 20% of its funding sources from advertising rather that depend solely on license fees.
ARTICLE 14 paragraph 14 No distinction to be made between public and private monies when this is accrued as income from advertising and all income generated should go to whole budget.
ARTICLE 14 paragraph 12 PSBO was considered to need sound financial base to rely on and paragraph 12 was thought to be a suitable method of procuring necessary finances when countries are undergoing transition.
ARTICLE 14 paragraph 1 Suggested income from commercials not to exceed 20 % but decided this was unnecessary restriction if no other sources of income were available.
ALTERNATIVE article14 para 1,2,3 Participants considered whether provision should be so structured as to restrain income to %of whole budget
ALTERNATIVE article 14 para 1,2,3 Suggested income should be based on mixed incomes.
ARTICLE 14 paragraph 14 Suggested period of 5 years in order to allow PBSO time to plan ahead and adjust to automatic inflation indexation.
ARTICLE 16 paragraph 1 Suggested the word "Government" be deleted since supervision should be carried out according to law by means of legal system and no reason to call government into play.

 

RAPPORTEURS:

Mr. E. P. CASSAR, Malta

Ms. N. OGNYANOVA, Bulgaria

Mr. Y. VDOVIN, Russian Federation

St. Petersburg, 3 July 1998.