New Broadcasting Code needs urgent revision. Relevant analysis and commentaries, part II

Recently, 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. In the newscast of April 13, Info-Prim Neo news agency presented the first of the three parts of a 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 regarding the constitution and functioning of the public broadcasting regulatory agency – the Broadcasting Coordinating Council. The second part follows the same idea and centers on the regulation of the activity of public broadcasters in Moldova. [A thorny road towards a truly public broadcaster] The public broadcaster marks the communicational valences of the public space of the society and defines political freedoms of the citizen, including to free expression. It primarily ensures the satisfaction of the public information interests, the development of the citizens’ potential to think freely and to make conscious decisions. The study authors consider that the fact that the service of the public broadcasting, alongside the eligibility and separation of powers in the state, the independence of justice, the prohibition of censorship and the inviolability of property, became an indispensable condition of the democracy and social progress in any country is not at all accidental. The legislative endorsement of the conception of public broadcaster in the Republic of Moldova has lasted for over ten years and has known several stages. Initially, it was officially approved in the Law on Broadcasting adopted in 1995 through the rather strange article 7(1) that was saying: “The State-Owned Company “Teleradio Moldova” is the public broadcasting institution.” The confuse and paradoxical interpretation (the state media institution was equalized with a public one) as well as the lack of clear legal coordinates for the constitution of such a type of broadcasting eliminated from the start the impact of the given law on the process of validating the idea and practice of the public broadcaster on native ground. The next step in this direction was made on 26 July 2002, when the Parliament adopted the Law No.1320-XV regarding the national public broadcasting institution, the Company “Teleradio-Moldova”. But the Law, according to which the reorganization of the State-Owned Company into Public Company was to take place within four month, was violated. The Parliament, the President of the Republic of Moldova and the Government did not appoint the members of the Supervisory Board of the national public broadcasting institution. In consequence, the Supervisory Board of the Company “Teleradio-Moldova” was not constituted and the process of transforming the Company did not start. The broadcasting law in its initial form, which did not comply with the European standards, attracted criticism from professionals in the area and from the civil society, accompanied by protests staged by the company’s employees who sought the adjustment of the law to the European standards. The Council of Europe’s assessment indicated the opportunity of introducing a number of amendments to the given law. Therefore, The Parliament started to amend and supplement the law. The amendments introduced on 13 March 2003 and on 13 November 2004 turned out to be contradictory and insufficient to create a legislative framework allowing the public broadcasters in Moldova to assert themselves. For that reason, the revision of the legal framework in public broadcasting became imminent. A number of different actors of the civil society engaged initially in this work. The Association of Electronic Press (APEL) worked out three bills on broadcasting, including public broadcasting. Experts of the Council of Europe approved the respective documents and they were presented by MPs as legislative initiative in the Parliament. Meanwhile, there was set up a parliamentary group that framed its own bill – the Broadcasting Code of the Republic of Moldova. That bill was adopted on 27 July 2006. The International Union of Electronic Communications and UNESCO, adopting a similar law on public service broadcasting in March 1998, identified three primordial qualities of this category of electronic media: the public broadcaster promotes the interests of the society, is financed by the society and is under the society’s control. Similar statements can be found in the Broadcasting Code of the Republic of Moldova, which in article 2 (Terms employed) defines the public broadcaster as “an editorially independent national or regional audiovisual institution that has a public legal entity status, serving the society, the activity of which is supervised by the society”. From this perspective, the commentaries that follow center on the way and extent to which the Broadcasting Code of Moldova meets these opportunities. [Declarations and noble intentions] The Broadcasting Code of the Republic of Moldova regulates the whole range of electronic media that is within Moldova’s jurisdiction. According to article 5, the electronic media is classified in terms of two criteria. According to the pattern of ownership and aim of the activity, the Code distinguishes public and private broadcasters. As to the territorial coverage, there are identified three categories of broadcasters: local, which cover a settlement, regional, which cover a geographic zone that does not exceed 60% of Moldova’s territory, and national, which cover a geographic zone that exceeds 60% of Moldova’s territory. Such a classification, traditional for a number of states, is justified in Moldova’s case too. The public broadcaster, by its status and social vocation, is or has to be at the society’s service (unlike the state broadcaster that serves the government and the commercial broadcasting that centers on the owner’s profit). From this viewpoint, the analyzed Code contains a multitude of relevant stipulations that can implicitly help the public broadcasting to take roots in Moldova if observed. First of all, these are the stipulations contained in chapter II that make reference to the principles of broadcasting communication, both in the case of public and private broadcasters. Secondly, the social vocation of the public broadcaster is promoted by establishing the status and functioning conditions of the Company “Teleradio Moldova”. According to article 50, the national public broadcasting institutions, the Company “Teleradio Moldova”, is an editorially independent public broadcaster that is institutionally autonomous in its creational activity, constituted on the basis of public financial capital which, under the given Code, provide program services for the whole Moldovan society and covers all the country. [Inadvertences and risks] The study authors consider as vulnerable the classification of the broadcasters when treating the Code because it does not respect the correlation between the categorization criteria of the broadcasting institutions. This concerns first of all the public broadcasters. Articles 1, 50 and 65 say that the public broadcasters can have the status of national and (or) regional services only, excluding the possibility of creating local public broadcasters. The respective drawback was also spotted by the Council of Europe experts Eve Salomon and Karol Jakubowicz, who examined the draft code. They described the lack of stipulations regarding the local public broadcaster as “serious shortcoming”. “The draft code, they said, must be modified so as it regulates the activity of local public broadcasters and ensures their existence as truly independent broadcasting organizations.” The given recommendations were not taken account of in the final version of the Code. A similar option was expressed and argued by local experts during public debates on the draft code, organized in spring-summer 2006 under the aegis of the Public Policy Institute. On the other hand, the Code treated ambiguously the regional broadcasting institution. Though article 65 says that “the regional public broadcaster, the Company “Teleradio-Gagauzia” functions in the Autonomous Territorial Unit Gagauzia in compliance with the given code, on the decision of the Gagauz People’s Assembly, and a regional public broadcaster will function in the districts on the left bank of the Nistru river after the Transnistrian dispute is solved, on the decision of the regional public authorities,” it does not contain legal provisions regarding the status and functioning of these categories of public broadcasters. We can assume that the given code would have to be supplemented in time. The identified inadvertences can generate a number of risks both for the future of the public broadcaster and in ensuring Moldovan people’s access to information of public interest through mass media. This danger can result from the Code’s stipulations regarding the limitation of broadcast diversity, including at the level of public broadcasting. But the lack of diversity in the conditions in which the national public broadcaster does not honor its statutory obligations for different reasons and adopts a partisanship approach, the study authors giving as example the Company TRM in 2004-2006, can restrict people’s right to pluralist information, including local/community issues (this is also because the local commercial stations are not interested in news) etc. The development of the regional public broadcasting is also in question, as the Code does not provide for the appropriate legislative framework. [Other inadvertences and other risks] The Broadcasting Code in the adopted form does not make clear and convincing references to the editorial policies of the public broadcaster. Moreover, the notion of editorial policies, though appears in the Code’s text, (see, for example, article 52), is overlooked in article 1 of the Code, which describes the register of used terms. The given fact and the legislative consideration of the editorial policies in the Code’s text diminish the value of the editorial independence, first of all of the public broadcasters. But the editorial independence can be grasped and fructified through this type of policies, which can also be an expression of the philosophy of the national public broadcaster “Teleradio Moldova”. The editorial policies expressed concisely and convincingly, in our opinion, must precede the Program Policy Statement. In such a way, we will overcome the risk of transforming it into a preponderantly technical document. The broadcast volumes and other parameters of the programs transmitted by the national public broadcaster must implicitly result from the editorial policies. From this perspective, the study authors consider it necessary that the respective document be titled Statement on Editorial Policies and Programs. Though the Code recognizes the independence of the creation activity in article 50 and sets a number of conditions for the protection of journalists in article 15, it lays the stress on the editorial independence and independence of the program policy of the Company “Teleradio Moldova”. Accordingly, the creational, editorial independence of the personnel did not acquire a clear and definite legislative consideration, fact that can affect the activity of the journalists and other people of creation working for the national public broadcaster. Hence, the lack of legal guarantees for the freedom of creation can generate administrative control over the creational activity. Such a state of affairs would definitely be in opposition to the national public broadcaster’s mission to promote the interests of the society. In article 50, the national public broadcaster “Teleradio Moldova” is declared autonomous from institutional viewpoint. The Code yet does not provide for a lucid legislative explanation of this status, including the responsibilities deriving from its institutional autonomy in front of the society and public. Given that the respective mechanisms are absent, the institutional autonomy of the national public broadcaster can in fact turn out to be declarative. This would mean that the Company “Teleradio Moldova” will not be free to organize and administer the activities stipulated in the code and to ensure the autonomous management of the human and financial resources. [Legislative conditions and ‘Achilles' heel’ in public broadcasting financing] In article 64, the Broadcasting Code provides legal conditions regarding the financing of the national public broadcaster. Stipulating that “the Parliament guarantees consistent financing corresponding to the activity necessities of the company”, it indicates six sources of financing. The Code also provides the ways of administering assets and of taking out loans (article 63). According to article 64 (points 4, 5 and 6), the national public broadcaster “Teleradio Moldova” is obliged to make public the approved budget and the reports on its implementation, to present to the Parliament reports on the accomplishment of the budget that must also be made known. The financial activity of the company is periodically checked by a foreign audit service. The consistent financing, the multitude of financing sources, the transparency of the financial activity promoted by the Broadcasting Code correspond to the Recommendation No. R (96) 10 of the Council of Europe. This document says that the state must fix a reliable, appropriate and transparent financing framework that would provide the public broadcasting institutions with the resources they need to fulfill their tasks. But the study authors say that the subventions from the state are traditionally the main source of financing of the national public broadcaster “Teleradio Moldova”. The principle formulated in the Council of Europe’s Recommendation No. R (96) 10, which says that the authority to make decisions held by the public authorities from outside the public service broadcaster “must not be used by these authorities to directly or indirectly exert influence on the editorial independence and institutional autonomy of the broadcaster”, is opportune to be put into practice here. The Broadcasting Code yet does not provide for such guarantees. For this reason, the national public broadcaster becomes vulnerable and is in a potential danger to be subjected to pressure by the public authorities through financial levers. According to experts, there are a number of ways of minimizing this risk. The first way would be to specify the public authorities’ part in financing the national public broadcaster. The participants in the public debates on the draft broadcasting code of 2006 proposed that the budgetary allocations should cover the Company’s expense for renting and using the broadcast stations, the radio relays and tele/radiocommunication circuits, including satellite; for capital and re-technologization investments; for broadcasting programs covering at least 95% of the country’s territory and producing radio and television programs intended for foreigners. Another way of financially fortifying the editorial independence of the Company would be to gradually implement special taxes for selling/purchasing radio and video equipment; taxes for using this equipment in cars etc. Doing so, we would strengthen direct contributions of the public to financing the national public broadcaster and would offer it more institutional autonomy. Some of the Broadcasting Code’ stipulations regarding the financing of the national public broadcaster are also contradictory, fact that can have a negative impact on the company’s good functioning. In such a way, the Terms of Reference that contains the financial plan and the program policy statement, according to article 59 (3, letter d) and 62 (2), is drawn up by the president of the company, by the radio and television directors, by the heads of the company’s departments and is approved by the Supervisory Board. According to article 62 (3 letter a), the company’s draft budget forms part of the financial plan drawn up, as mentioned above, by the president and other authorities of the company. On the other hand, article 64 (3) univocally stipulates that “the Supervisory Board drafts the company’s budget.” The identified discrepancies can cause certain collisions and even confrontations between the company’s administration and the Supervisory Board. [Public control over public broadcasters in evasive formulas] The public control understood grosso modo as control performed by the nongovernmental organizations (parties, movements, public associations, civilians) over the fulfillment of the state policies and over the public affairs for the purpose of defending the rights and freedoms of the people and the interests of the society would mean, in relation to the national public broadcaster “Teleradio Moldova”, the control carried out by actors of the civil society and by the citizens over the quality and method of implementing the Broadcasting Code’ stipulations regarding its status of public institution – article 2 of the Code also points to this fact, as it says that the activity of the public broadcaster “is supervised by the society”. The Code reveals two types of generators of public control in public broadcasting. These are the Broadcasting Coordinating Council and the Supervisory Board of “Teleradio Moldova” Company. The experts say that the Code does not directly invest the respective institutions with functions of public control. These functions as well as other mechanism for performing public control over the public broadcaster by the Broadcasting Coordinating Council and the Supervisory Board can be sooner deduced from the Code’s text. But even under such conditions, the Supervisory Board benefits from a rather scanty treatment as regards the functions of public control, compared with the Broadcasting Coordinating Council. According to the study authors, the public control of the public broadcasting did not constitute a direct subject for consideration in the Broadcasting Code. On the other hand, they say, the present Broadcasting Code does not stipulate other mechanisms through which the people can be directly involved in performing public control over the Company “Teleradio Moldova”. The performance of public control over the national public broadcaster remains at the discretion of the Broadcasting Coordinating Council and of the Supervisory Board. These, if doing completely and consistently their duties, can probe their status of exponents of the control and of the public interest. At the same time, such a situation, if taking into account the previous practices of the Broadcasting Coordinating Council and of the Supervisory Board, risk leaving the national public broadcaster outside public control. That is why it is considered that both the Broadcasting Coordinating Council and the Supervisory Board must assume consistent commitments that should be fixed in their statutes. The respective commitments must equally concern the direct contributions of the Broadcasting Coordinating Council and of the Supervisory Board when performing public control and the methods of engaging the general public and the institutionalized mass media representatives of the civil society in this activity. [Special worrying conclusions …] According to the experts that examined the Broadcasting Code’s stipulations regarding the public broadcasting, these give priority to the indirect methods of society’s and public’s participation in public broadcasting financing, completely ignoring the direct ones. In such a way, the editorial independence and institutional autonomy of the public broadcaster is endangered. At the same time, the Broadcasting Code left without legislative solutions the performance of public control over the national public broadcaster “Teleradio Moldova” by the society, fact that can harm its status of public broadcaster. [… and final alarming conclusions for the whole Code’s text] 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.