(ARTICLE 19/IFEX) – The following is ARTICLE 19’s Memorandum on the Georgian Draft Changes to the Law on Communications and the Post relating to Licensing: MEMORANDUM ON THE DRAFT CHANGES TO THE LAW ON COMMUNICATIONS AND THE POST RELATING TO LICENCING IN THE REPUBLIC OF GEORGIA By ARTICLE 19 The Global Campaign Against Censorship April […]
(ARTICLE 19/IFEX) – The following is ARTICLE 19’s Memorandum on the Georgian Draft Changes to the Law on Communications and the Post relating to Licensing:
MEMORANDUM ON THE DRAFT CHANGES TO THE LAW ON COMMUNICATIONS AND THE POST RELATING TO LICENCING IN THE REPUBLIC OF GEORGIA
By ARTICLE 19
The Global Campaign Against Censorship
April 2001
INTRODUCTION
Article 19, the Global Campaign for Free Expression, has been asked to comment on the Draft Changes to the Law on Communications and the Post relating to Licensing.
ARTICLE 19 welcomes the fact that the Draft is designed to make the criteria for obtaining a licence more detailed than is currently the case. It is important that the system for the granting of licenses is transparent and this marks a step in the right direction. However, there are a number of factors pertaining to the Draft, as well as the Law itself, which need to be addressed, in order to ensure the law conforms with international standards.
GEORGIA’S INTERNATIONAL AND CONSTITUTIONAL OBLIGATIONS
The State’s general obligations
Article 19 of the Constitution of Georgia protects the right to freedom of expression in the following terms:
1. Every individual has the right to freedom of speech, thought, conscience, religion and belief.
2. The persecution of an individual for his thoughts, beliefs or religion is prohibited, as is compulsion to express opinions about them.
Georgia is a party to the European Convention on Human Rights (ECHR), Article 10 of which protects the right to freedom of expression. It is also a party to the International Covenant on Civil and Political Rights (ICCPR), Article 19 of which guarantees the right to freedom of expression. Article 19 of the Constitution must, accordingly, be interpreted in a manner which is consistent with its obligations under the ECHR and ICCPR. Article 10(1) provides:
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 fundamental importance of the right to freedom of expression in a democratic society, is widely recognised. The European Court of Human Rights, for example, has stated that freedom of expression:
constitutes one of the essential foundations of society, one of the basic conditions for its progress and for the development of every man. .. it is applicable not only to ‘information’ or ‘ideas’ that are favourably received but also to those which offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (1).
Freedom of information is an important element of the international guarantee of freedom of expression. At its very first session in 1946, the UN General Assembly adopted Resolution 59(I) which states in relevant part:
Freedom of information is a fundamental right and … the touchstone of all the freedoms to which the UN is consecrated.
The case law of the European Court of Human Rights has consistently emphasised the special role of the media with regard to the right to freedom of information, in a State governed by the rule of law. Thus, it has stated the following:
Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society (2).
The Court has, furthermore stated that it is incumbent on the media to impart information and ideas on political matters as in other areas of public interest. It has stated consistently that:
Whilst the press must not overstep the bounds set [for the protection of the interests set forth in Article 10(2)] … it is nevertheless incumbent upon it to impart information and ideas of public interest. Not only does it have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would by unable to play its vital role of “public watchdog (3).
The Court has also held that Article 10 applies not only to the content of expression, but also the means of transmission or reception (4). Accordingly, the guarantee of freedom of expression in Article 10 covers broadcasting.
Freedom of expression is not, however, absolute. Both international law and the domestic laws of many countries recognise that freedom of expression may, in certain prescribed circumstances, be limited. As a party to the ICCPR and the ECHR, Georgia is bound to ensure that any limitations imposed on the right to freedom of expression complies with Article 19(3) and 10(2) respectively of those treaties. Article 10(2) of the ECHR is expressed in the following terms:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority or impartiality of the judiciary.
It is a maxim of Convention jurisprudence, that all restrictions must be given a narrow interpretation; this is especially true of Article 10 in view of its centrality in a democratic society. Accordingly, any restriction to the right to freedom of expression must meet a strict three-part test, as foreseen in paragraph 2 of Article 10. (5). First, the interference with the right must be prescribed by law. The Court has stated that this requirement will be fulfilled only where the law is accessible and “formulated with sufficient precision to enable the citizen to regulate his conduct” (6). Second, the interference must pursue one of the aims listed in paragraph 2 of Article 10; the list of aims is an exhaustive one and thus any interference which does not pursue any of those aims will constitute a violation of Article 10. Third, the interference must be necessary to secure one of those aims. The word “necessary” means that there must be a “pressing social need” (7) for the interference. The reasons given by the State for an interference must be, what the European Court of Human Rights describes as “relevant and sufficient” and the State must further show that the interference is proportionate to the aim pursued (8).
The State’s Positive Obligations
International law does not merely expect the State to refrain from interference with the right to freedom of expression, or indeed other rights. It places obligations on States to take positive measures to ensure the effective protection of the right to freedom of expression. Thus, Article 2 of the ICCPR obliges States to
adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant.
The European Court of Human Rights has ruled in a number of cases that the State has positive obligations with regard to the right to freedom of expression. Thus in Ozgur Gundem v Turkey it held that:
Genuine effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection even in the sphere of relations between individuals (9).
Accordingly, in order to protect the right to freedom of information, the State may have to take positive measures to protect the free flow of ideas. This ensures the media’s role as public watchdog and that the public has access to a wide range of opinions especially on matters of public interest. Another important aspect of the State’s positive obligations in the context of freedom of expression is the obligation to promote pluralism within, and ensure equal access of all, to the media. The European Court of Human Rights has stated that:
[imparting] information and ideas of general interest .. cannot be successfully accomplished unless it is grounded in the principle of pluralism (10).
Pluralism as a goal for broadcasters has also been recognised by the European Convention on Transfrontier Television (11). Although it is not binding on Georgia which is not a party to it, it is useful as a guide to interpreting its obligations under other treaties. In its Preambular paragraphs, the Convention reaffirms:
the importance of broadcasting for the development of culture and the free formation of opinions in conditions safeguarding pluralism and equality of opportunity among all democratic groups and political parties;
ANALYSIS OF THE GEORGIAN LAWS
Local Content Rules
According to the draft changes to the Law on Communications and the Post, licences will be granted for television and radio broadcasting only if the applicants fulfil certain criteria. One of those criteria is the achievement of certain quotas for local broadcasting. The relevant part of Article 36(3) (c) will provide that Georgian television and radio production should not be less than 50% of the full broadcasting time (with no effect on the commercial time). This quota will not apply to specialised (i.e. single genre) broadcasting. A separate quota of no less than 25% of the full broadcasting time will apply to local broadcasting with a limited coverage of a specific region or a city of Georgia, except Tblisi (with no effect on commercial time). ARTICLE 19 recognises the attempt to differentiate between two types of broadcasting local and national) by the application of different quotas, reflecting, among other things, their relative economic strengths.
The notion of pluralism envisages, among other things, the right of an individual to a diversity of sources of information. Local content rules which are designed to protect and promote the local broadcasting sector and local programming are seen as essential in many countries to protect the identity, unity and sovereignty of the nation. So long as such rules actually promote pluralism and diversity, they are consistent with the right to freedom of expression (12). Indeed, the absence of such rules, especially in countries in transition, can limit freedom of expression, since the local market is at risk of saturation with broadcasting and production from abroad, particularly from the United States, thereby reducing diversity and homogenising programming.
The European Convention on Transfrontier Television recognises the need for local content rules. Article 10(2) requires Member Party States to reserve a majority proportion of transmission time for European Works.
Each transmitting Party shall ensure, where practicable and by appropriate means, that broadcasters reserve for European works a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising and teletext services. This proportion, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria.
Thus there is a requirement that more than 50% of broadcasting time should be reserved for European works, which clearly includes national production by a Member State.
However, local content rules which do not in practice promote diversity, for example because they are excessively stringent and actually prevent new broadcasters from emerging, become illegitimate restrictions on freedom of expression. Rules which have unreasonably high quotas, and which do not make distinctions between different types of programming, or do not phase in quotas progressively, may have the effect of damaging local production. In countries with limited markets for their local productions, it will be hard for existing broadcasters to meet strict requirements, or for new broadcasters to enter the field.
ARTICLE 19 is concerned that the local content quotas contained in the Draft Amendment, particularly the 50% quota, are unreasonably high and will actually serve to harm, rather than promote local production. The requirement of at least 50% local content, is far stricter than the European norm, based on the European Convention on Transfrontier Television, which only requires 50% European content. Furthermore, few distinctions are made, in the Draft Changes, between different types of programming and different types of broadcasting. Many European Countries who are parties to that Convention, and have relatively developed and diverse broadcasting sectors, have lower requirements. In Hungary, for example, a 1996 law required that Hungarian-produced programmes comprise at least 15% of radio and television broadcasting time, with a transition to at least 20% of television time by 1 January 1999. The experience of other countries shoes that local production at the rates envisaged in the Draft Changes, are not achievable and many broadcasters will be driven out of business as a result.
ARTICLE 19 takes the view that the very stringent requirement of the 50% quota is not “practicable” in the sense of the word used in the European Convention on Transfrontier Television. Indeed, even in respect of the lower quota, ARTICLE 19 takes the view that a more layered and progressive approach should be taken. Thus, variable quotas should be used for different forms of broadcasting (e.g. TV and radio), and variable quotas should be used for different types of programming (e.g. drama, children’s programming, news, talk shows etc.) The expectation that all broadcasters falling within the two main categories provided for (i.e. local TV and radio, and national TV and radio) will achieve either the 50% or the 25 % level of local production, is unrealistic. Furthermore, the use of progressive implementation of quotas should be used, to enable broadcasters to build up over a period of time to a particular quota. Finally, there should be provision for periodic review and amendment of quotas, to take account of prevailing conditions in Georgia over time.
ARTICLE 19 recommends:
* The minimum percentages for locally produced programming should be reduced to levels which are realistic and imposed progressively so that broadcasters have the opportunity to build up to them over time.
* The minimum percentages should take account of the capacities of different areas of production.
* The draft should give existing broadcasters (who will be required to re-apply for their licences in April 2001) a reasonable period of time to bring their locally produced content up to the required levels.
* The Draft should allow for periodic review and amendment of quotas.
Programming content
Restrictions on the content of programmes that may be broadcast, are, like all restrictions on freedom of expression, subject the three-part test as outlined above (13). The draft amendment to the Law on Communications and the Post Relating to Licences, provides that the broadcasting concept should envisage a “commitment to conform to the active legislation on the language and copyright related laws” and a “commitment to conform to the regulations established by the active legislation on issues connected to the release on the air of transmissions containing pornography and violence” (14). Both categories of restrictions cited from the Draft are matters which are provided for in legislation of general application and therefore already apply to broadcasters. It is therefore unnecessary to repeat them in the law regulating broadcasting. Furthermore, repetition serves to give broadcasters a “double warning” about what is illegal and may have a chilling effect on media freedom.
ARTICLE 19 Recommends:
* Paragraphs 3(a) and (b) of Draft Article 36 should be deleted.
Independence of Regulatory Bodies
In order to ensure the free flow of ideas, and to guarantee that the public has access to a wide range of opinions, it is important that the broadcast media are independent of the government. This requires, inter alia, that bodies with regulatory or administrative powers over broadcasters should be free from political interference. In Recommendation 5 on “Measures Necessary to Protect and Promote Broadcasting Freedom”, ARTICLE 19 notes: “Licences must be allocated by a body that is independent of government.” In a pre-ambular paragraph, the European Convention on Transfrontier Television states that Member States “[reaffirm] their commitment to the principles of the free flow of information and ideas and the independence of broadcasters”. The Council of Europe’s Committee of Ministers also has issued a number of recommendations concerning the independence of regulatory authorities. For example, Recommendation 23 of 2000, on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector (15), states in its pre-ambular paragraphs that:
[T]o guarantee the existence of a wide range of independent and autonomous media in the broadcasting sector … specially appointed independent regulatory authorities for the broadcasting sector, with expert knowledge in the area, have an important role to play within the framework of the law.
The Recommendation goes on to advise Member States that they should set up independent regulatory authorities. Its guidelines provide that Member States should devise a legislative framework to ensure the unimpeded functioning of regulatory authorities and that it should clearly affirm and protect their independence (16). They further provide that the rules of Member States should guarantee that members are appointed in a democratic and transparent manner.
The Law on Telecommunications and the Post makes provision for the National Post and Telecommunications Regulatory Commission. However, ARTICLE 19 is concerned that Article XXII of the Law gives power to the President of Georgia to appoint the members of the Commission. As a result, the Commission is subject Presidential control. The independence of a regulatory body and the openness of its processes cannot be guaranteed where the President has the sole power to appoint members of the Commission. The power to appoint to the Commission should, instead be given over to a multi-party body, such as an all-party committee of Parliament. These guarantees are particularly important in countries in transition to democracy, such as Georgia, where the checks and balances on the exercise of political power are still being developed.
The lack of independent regulation has been held by national courts to contravene the right to freedom of expression. For example, the Supreme Court of Sri Lanka has held that a draft broadcasting bill was incompatible with the constitutional guarantee of freedom of expression, where the Bill gave the Minister substantial power over appointments to the Board of Directors of the regulatory authority. The Court noted:
[T]he authority lacks the independence required of a body entrusted with the regulation of electronic media, which, it is acknowledged on all hands, is the most potent means of influencing thought” (17).
The Draft Amendments to the Georgian Law on Post and Telecommunications concern licensing. A key element of independence in the private broadcast sector is that licences should be awarded on the basis of objective criteria which serve the public interest and not on the basis of political favouritism or other illegitimate considerations. This is only possible if the body responsible for granting such licences is independent of political control. While it is important to make provision for clear and democratic criteria upon which to make the grant of licences, amendments of this nature will only make sense where the body granting them is truly independent.
Article 19 recommends:
* The inclusion in the Draft Changes of a provision to ensure the de jure and de facto independence of the Regulatory Commission in accordance with international law.
* The inclusion in the Draft Changes of process of appointment to the Regulatory Commission which is open and takes account of a wide range of opinion.
Commission’s power to suspend licences
Article XXXIX of the Georgian Law on Telecommunications and Post grants the Regulatory Commission the power to suspend licences on certain conditions and Article XXIV makes provision for the Regulatory Commission to revoke licences. These are very harsh sanctions and would be merited, if at all, only in the most extreme cases and in the context of repeated breaches of the law. Power to issue warnings, to order broadcasters to take certain actions and to levy fines should be sufficient to deal with most breaches of licence conditions. Where a broadcaster consistently fails to comply with licence conditions, the Commission can decide not to renew the licence at the expiration of the ten-year term, a less draconian solution than revocation or suspension. Furthermore, one of the existing conditions for the suspension of a licence contained in Article XXXIX is overly broad and vague, namely where the licence holder violates the rights and freedoms of the people, the lawful interest and endangers the life and health of the people (Article XXXIX (d)). Vague provisions like this are open to abuse and thus an unacceptable restriction upon the right to freedom of expression.
ARTICLE 19 recommends:
* The powers to suspend and/or revoke licences should be restricted to very serious actions
* ARTICLE XXXIX (d) should be deleted.
Process for applying for Licenses
Article 36/1(3)(d) of the Draft Changes, which parallels Article 36/2(7) of the existing law, provides that, in order to obtain a licence, an applicant must attach to his or her application a certificate of payment of 10% of the licence fee. Provisions of this sort are rarely found in the laws of other countries and place a financial burden on applicants without any guarantee that this will result in a license being awarded. This may unnecessarily deter some applicants. In principle, an applicant should not be made to pay for a licence before he or she obtains it.
ARTICLE 19 recommends:
* Article 36/1(3)(d) should be deleted from the Draft Changes and Article 36/2(7) should be removed from the law.
1. Handyside v UK, 7 December 1976, 1 EHRR 737, at para. 49.
2. Castells v Spain 24 April 1992, 14 EHRR 445, para. 43.
3. See Castells v Spain, ibid, para. 43; The Observer and Guardian v UK 26 November 1991 (1992) 14 EHRR 153, para. 59; and The Sunday Times v UK (II) 26 November 1991, (1992) 14 EHRR 229, para. 65.
4. Autronic AG v Switzerland, 22 May 1990, 12 EHRR 485, para. 47
5. The Sunday Times v United Kingdom 26 April 1979, 2 EHRR 245, para. 45.
6. The Sunday Times v United Kingdom 26 April 1979, 2 EHRR 245, at para. 49.
7. Handyside v UK, ibid, at para. 48.
8. Lingens v Austria 8 July 1986, 8 EHRR 407, paras 39-40.
9. 16 March 2000, Application No 23144/93, para. 43.
10. Imformationsverein Lentia and Others v Austria, 24 November 1993, (1994)17 EHRR 93, para.38.
11. Strasbourg, 5.V.1989
12. See attached, ARTICLE 19 Draft Comments on Local Content Rules in Broadcasting.
13. See International obligations.
14. Article 36(3)(a) and (b)
15. Recommendation Rec (2000) 23, adopted by the Committee of Ministers on 20 December 2000.
16. Appendix to Recommendation Rec (2000) 23, Guideline 1.
17. Athokorale and Ors v Attorney-General 5 May 1997, Supreme Court, S. D. 1/97-15/97, p 23.
