New Broadcasting Code needs urgent revision. Relevant analysis and commentaries, episode I

Last week, the Foundation Soros – Moldova posted on its site www.soros.md the study “Broadcasting Code of the Republic of Moldova: Analysis and Commentaries” carried out by a group of independent experts as part of a project financed by the Foundation. The work has three chapters. The first chapter contains the analysis of the legal framework regulating the activity of the Broadcasting Coordinating Council (BCC). The next two chapters refer to the public and private broadcasters. The study is designed to facilitate the understanding of certain stipulations of the new Broadcasting Code (BC). At the same time, the authors reveal a number of lacunas in the content of the law that can affect the activity of the national broadcasting watchdog as well as of the public and private broadcasters. Info-Prim Neo proposes a three-part selection of the most important problems spotted by experts in the Code’s text, with emphasis on a series of suggestions put forward by them to remedy the situation. [BCC: deviations from the Constitution and functioning principles] It is considered that the State, the duties and method of choosing the broadcasting regulatory authority are the key problems in the respective legislation. In compliance with the European standards, the Broadcasting Coordinating Council must be autonomous, its members independent, proficient, selected and appointed transparently. The Broadcasting Code passed by the Moldovan Parliament in July 2006 includes a special chapter about the State, duties and way of functioning of the regulatory authority – Chapter VI. It is known that the appointment by three members of the BCC by the top decision-making bodies (Broadcasting Law of 1995) turned out to be inefficient due to authorities’ excessive control over the BCC. The civil society and professionals in the field proposed a compromise variant for the new law: five members to be appointed by the political authorities and four by the civil society – with a confirmation vote from the Parliament. Despite the criticism brought by the European and national experts during the public debates organized in Chisinau, the Parliament carried the version which gives it the exclusive right to appoint the BCC members, on the proposal of the relevant parliamentary committee. This method constitutes a real danger of political pressure on the Council, given the dominance in the Parliament of one party and the lack of a democratic practice of administering the area in Moldova. The study authors also point to other vulnerable aspects of the appointment, including the early age of the candidate. They consider that a 25-year-old man only theoretically can have a five-year professional experience, he cannot be a personality in the area and consequently his vote and voice in the Council will not have the necessary weight. The authors say that specialists’ observations that, as a rule, the authorities also have ‘pocket’ public associations, which they can exploit when there is a need to field candidates imitating democracy, were not taken into account. Another drawback to the appointment is the structure of the parliamentary committee, which is usually a copy in miniature of the Parliament and can make decisions without appealing to the principle of consensus. The practice of appointing the members of the BCC shows that the procedure was not in compliance with the law, which in article 1 says that the aim of the Code is “to institute democratic functioning principles for the broadcasters”. The study authors consider that such an approach would mean: a broad coverage of the period when the candidates file applications for the post of member of the BCC; a broad exposure of the candidates and their files, including the institution that proposed them; a broad publicity on the clear candidate selection criteria worked out by the relevant parliamentary committee; public examinations and debates with the participation of all the sides involved, including the candidates, having as topic their moral and professional qualities, their intentions and projects as members of the BCC; a broader detailed debate over the issue in the Parliament. The CV does not provide sufficient information about the candidate, partly because the candidate himself draws it up. The selection criteria could stipulate, for instance, that there should be accepted the candidates put forward by the public associations after these had presented their performances during the past three years for example. The ‘pocket’ NGOs generally have “an empty purse”, and the transparent democratic procedure would counteract the intention of the political game and would encourage and promote the quality of the future composition of the BCC. All these weak points emerged when the first composition of the new BCC was fixed as the candidates were not simply “confirmed” by the Parliament, but fielded, promoted and elected according to the rules of the political majority. Under the Code the BCC is headed by a president and, in his absence, by a vice president elected by the majority vote of the Council that chair the meetings, administer the financial means, employ and fire functionaries, are the chief accountants for the credits. These functions in fact give priority to a BCC member – the president – in relation to the other members, even if he has one vote as the others. During the public debates on the daft Code there were put forward the proposals that the employment and dismissal of the functionaries from the BCC should be done with the Council’s consent and the apparatus that prepares the files, the draft agendas should subordinate to the responsible secretary. But the suggestions had been passed over. The way of financing the BCC’s activities, despite the fact that the sources are diversified (article 47, paragraph (2)), reduce the Council’s chances of independence and autonomy. The BCC will be financed yearly, directly from the budget. Such a provision constitutes, as experts consider, one of the key shortcomings of the new law. The state subventions allocated annually (paragraph 4) will remain the principal source of financing. Therefore, the Code does not eliminate the danger and real possibly of financial pressure on the BCC on the part of the authorities. The danger is amplified by the lack of a transparent mechanism for forming the BCC’s budget that would cover all the expenses resulting from an efficient management of the affairs. A budget approved for several years or the allocation of subventions not directly but through an independent agency would be a good scheme for ensuring the independence and institutional autonomy of the Council. All the BCC decisions are adopted by the majority vote of the members. The study authors consider that this is step backward as under the previous law the decisions were adopted by the vote of 2/3 of members. The Code perpetuates an older problem related to the professional qualifications of the members of the regulatory authority. The Recommendation (2000) 23 of the Council of Europe, though stipulates the necessity of constituting the regulatory authority composed of experts in the area in principle, does not insist yet on the numerical proportionality in its composition. In countries without democratic traditions (like Moldova), this fact offers great possibilities of interpreting the conjuncture. The Recommendation (2000) 23 also says that the members of the broadcasting regulatory authority should be appointed in a “democratic and transparent” way and be protected from interference from abroad. Ignoring the Recommendation, the specialty parliamentary committee and ultimately the Parliament selected and confirmed the BCC members in non-transparent conditions, in an unjustified haste, without public debates and without involving the civil society. The case of the candidate that reached the stage of voting in the Parliament and was rejected because he did not meet the legal requirements for a BCC member (lack of five-year professional experience) is appropriate here. In another development, the Code defines the notion of ‘European works’ in article 2 and article 3, and obliges the BCC to follow the progressive growth of the proportion between the national and own broadcast works and to set real mechanisms for implementing the respective stipulations. But this can diminish their importance because the non-observance of these by the broadcasters is not regarded as contravention in the Code (cannot be found in Chapter V, article 38) and therefore does not entail sanctions. A solution would be that the BCC, following article 37, paragraph (1) (“The Broadcasting Coordinating Council oversees the implementation and observance of the stipulations of the present code”) confers substance and content on the article which has a declarative character. In article 40, paragraph (1), letter f, the BCC is given the right to adopt the code of conduct of the broadcasters for the purpose of producing and transmitting programs in compliance with the present Code and European standards.” The study authors consider that the legislative should have not included the respective stipulation in the Code. Normally, the norms of professional behavior, the ethical, deontological and other codes are an exclusive prerogative of the profession, are a voluntary and common decision of the guild. The norms of conduct are related to the ethics, moral principles and not to the legislation. The international practice also shows that the respective norms of conduct are formulated and adopted within the guild, at local or intercorporative level and have a moral and not juridical force. And the body that supervises how the norms of conduct are observed in most of the cases is not a state agency, except the Arbitration for Information Problems in Russia. Paragraph (4) of article 40 says that all the BCC’s decisions are well founded and that they, including their motivation, are published in The Official Gazette and on the webpage. This is an important stipulation for insuring transparency in the activity of the BCC. Even more important for the BCC it would be the formulation of measurable criteria to establish, whenever need be, what means “insignificant” modification of the content of the broadcast license (article 25, (2)), “radical modification of the program service” (article 38, (2), c), “the holder does not systematically fulfill the conditions stipulated in the license” (article 27, (1), a), “serious and repeated violation of the stipulations of the present code” (art. 38, (5). All these general stipulations refer to sensible situations that can easily result in interminable conflicts. That is why, if the law is not explicit, the Statute of the BCC or the Regulations should contain specifications. Paragraph (1), letter b) of article 40 says that the BCC “oversees the correctness of the content of the programs transmitted by the broadcasters only after the broadcast of these programs”. To be able to supervise “the correctness of the content of the programs transmitted by the broadcasters, the BCC should have the correctness criteria or lay them down exactly and clearly (in the Statute or in the Regulations). Otherwise, the legal stipulation will not be implemented or it will leave room for arbitrary interpretations. It is an acknowledged fact that the vote cannot establish the truth or correctness. It indicates the momentary option of the voters. [Licenses with deficiencies] The Broadcasting Code fixed a seven-year validity period for the radio and/or TV broadcast licenses and a six-year validity period for the distribution of cable services, periods considered by experts as optimal. But the Legislative did not find an adequate solution for the process of obtaining a technical license. During the public debates on the draft Code, the European experts and local broadcasters proposed canceling or simplifying the procedure of obtaining the respective document. A first step in this direction was done through the Code: the application for technical license is submitted to the BCC but is issued by the relevant central public administration authority. One of the basic conditions for issuing the broadcast license is to achieve the objectives set in the “Strategy of National Coverage with Program Services in Accordance with the National Radioelectric Frequencies Plan” (article 23 (3) a). Consequently, the examination by the BCC (shortly after constitution) of the applications for licenses runs counter to the Code. Under the Broadcasting Code, the procedure and conditions of issuing the broadcast license must be published in The Official Monitor of the Republic of Moldova and on the website of the BCC, while the announcement about the contest for available frequencies must be also posted in other mass media means, including local. Paragraph (3) of article 23, letter d) stipulates that when issuing licenses priority will be given to the applicants that produce their own programs, broadcast local programs and European creations. At the same time, the respective article does not provide how the winner of the contest for frequencies will be selected if the offers of two or more applicants will be equally good. Though many articles of the Code, including article 23, encourage the transparent activity of the BCC in general and the transparency in issuing broadcast licenses in particular, the lack of a clear stipulation that the selection criteria of the winners of the contest for frequencies must be published leaves yet room for eventual political or economic encroachment on the BCC. As the two earlier compositions of the BCC showed, the stipulation according to which the BCC members do not represent the authority that fielded them for the post was a gratuitous one, which did not protect “the autonomous public authority” from different interferences. The Code’s provision stipulating that BCC members cannot be dismissed could also be a declarative one as the law does not ensure the real institutional autonomy and the financial independence of the BCC. Although article 23 contains a number of judicious and clear stipulations, it leaves room for questions. For example, the obligation of the applicant for frequency to present “…the copies of the contracts for the purchase of the necessary equipment or for its lease...” (paragraph (6), letter g) seems to be exaggerated given the underdeveloped market “of necessary equipment” in Moldova. The stipulation in paragraph 6 letter h) regarding the comprehensive business plan “for the validity period of the broadcast license asked for …” that is for 6-7 years, is also exaggerated as a financial plan in an unstable economy would look like a nice drawing more. Paragraph (9) of article 23 stipulates that the winner of the contest for frequencies will be selected as a result of an objective and impartial examination, “in accordance with the criteria stipulated in paragraph (3)...” In fact, paragraph (3) envisages “conditions” and not” criteria”. The new simplified procedure for extending the license (the license of the broadcaster is extended for another seven years on request if the broadcaster worked observing the legislation) is encouraging for the broadcaster’s activity within the law. Yet, experts consider, article 24, paragraph (3), which says that the broadcaster can ask for the broadcast license to be extended for at the most two times is nebulous and logical. A question arises here: why should the broadcaster that worked in compliance with the law for 21 years take part in the contest again? The stipulation of the Code that the relevant central public administration authority can change the technical data of the license without bearing financial responsibility towards the holder of broadcast license that will have new expenses is described as inadequate. [Control and sanctions with 7 midwives] Article 37, paragraph (1) provides that the BCC “oversees the implementation and observation of the stipulations” contained in the Code, while article 39, paragraph (2) says: the BCC is “the authority responsible for the implementation and observance of the given code...” The stipulations seem to be logical until it is ascertained that about half of the Code’s stipulations are contained in other laws also. This concerns the publicity, exclusive rights, protection of the journalists, confidentiality of the sources of information, the consumer’s rights, the right to reply, protection of the minors etc. The respective laws also stipulate who “oversees the implementation and observation of the provisions” they contain. Therefore, a number of authorities have the right to supervise that the publicity “functions’ correctly, in compliance with the law, while in reality the law is defied for the whole period of its validity. In such a way, we have the situation of the child with several midwives. Article 37, paragraph (3), letter c) says that the control is carried out following the complaint filed by an individual or legal entity “directly affected” by the violation of the legal provisions. The exact phrase, the study authors say, would be: the control is carried out following the complaint filed by an individual or legal entity “that claims to have been affected” directly by the by the violation of the legal provisions. The phrase included in the Code suggests an ascertained fact: that the person was affected, the offender must be sanctioned and there is no need for control. Article 38, paragraph (5) says that the broadcast license “is withdrawn in the conditions stipulated in article 27 only if the stipulations of the present code are seriously and repeatedly violated.” It should be noted that the Code does not specify what “serious and repeated violation” is. How many times does “repeated” mean? Article 27, paragraph (1), letter a) says that the BCC can withdraw the broadcast license if the holder “does not systematically fulfill the conditions stipulated in the broadcast.” There is a similar situation in which the word ‘systemically’ can be interpreted arbitrarily and can lead to abuses on the part of the BCC. A solution would that the BCC should concretize in the normative documents (eventually in the statute or regulations) which violations are considered serious, how many times should a provision be violated to be considered repeated and how frequently and in what period of time the violation of certain legal provisions by a broadcaster can be described as systematic non-fulfillment of the license conditions. Otherwise, the danger of abuses will persist. Naturally, the Code should clearly describe by stages the BCC’s activities, especially in the initial period, time the formulation of normative documents supplementing the Code, including the Strategy of National Coverage with Audiovisual Program Services and the National Plan for Distributing Terrestrial Radioelectric Frequencies. This would have eliminated broadcasters’ incertitude and concerns and would have facilitated the coherent development of the area, the Code’s primary objective. [The first months of implementation] The last chapter, IX-th, in article 68, paragraph (1) says that the Parliament, within two months of the entering into force of the Code, will constitute and approve the composition of the BCC. It should be noted that the Parliament has exceeded this term. Paragraph (2) of the same article says that the BCC will formulate its statute and submit it to the Parliament for approval within two months of the constitution. The BCC observed the term but, the study authors consider, it could organize al least one public debate on the draft statute with the aim of improving its content. This thing was necessary because a few members of the BCC had earlier dealt with broadcasting problems, fact that obviously reflects on the quality of the draft statute submitted to the Parliament (the lack of experience and deficiency of special knowledge has influenced the initial decisions of the new BBC. Paragraph (6) of article 68 obliges the local public administration authorities that founded the broadcasting institutions to make, within three months, decisions to reorganize the respective institutions in compliance with the stipulations of the new Code. It should be noted that the new Code does not contain mechanisms or modalities for reorganizing the broadcasting institutions, the ‘contributions’ of other laws, such as the Civil Code or the law on public administration, being also necessary. In addition, it is not very clear when the three-month period begins: from the entrance into force of the Code or from the date when the BCC issues “recommendations regarding the mechanisms of legalizing” the broadcasters to the local public administration authorities. The authors of the study “Broadcasting Code of the Republic of Moldova: Analysis and Commentaries” say in the end of the first chapter devoted to the broadcasting regulatory authority that the ambiguous and inexact stipulations of the Broadcast Code make the putting into practice of the law defective and can diminish or even annihilate certain valuable legal provisions intended to develop the area. This fact indicates the necessity of improving the Code so that the possibilities of arbitrarily interpreting its stipulations are maximally reduced. [Final conclusions valid for the whole text of the Code] 1. The Broadcasting Code, as it is mentioned in analysis and commentaries, contains certain stipulations that fully comply with the European requirements. But these are only separate passages combined eclectically with ambiguous specifications coming out from an outdated mentality, which still persists in our area and cannot certify to a clear evolution in the legislative creation in the area that would ensure a real progress of the national broadcasting. 2. The Broadcasting Code contains many general formulas for guaranteeing broadcasters’ independence and freedom, but do not provide for comprehensible mechanisms that would really ensure their independence and freedom. 3. By its stipulations, the Broadcasting Code does not provide for sufficient mechanisms for ensuring the autonomous and independent functioning of the broadcasting regulatory authority. 4. Though devotes the largest chapter to the public broadcaster, the Broadcasting Code inexplicably neglects the essential principles that ensure that functionality and complexity of a true public broadcaster. 5. The Broadcasting Code, wanted and long awaited by the whole society, did not live up to expectations after implemented. 6. The Broadcasting Code needs a new amendment so as to actually adjust the national juridical framework to the European standards. Only in such a way there will be created preconditions for constituting and developing the national broadcasting on the basis of democratic principles.