It is a dismal future that awaits the printed press. The growth of the Internet cannot be considered the only cause of its decline[1] but there is no point denying that the development of Internet-based media services has only made a steep slope more slippery for the print business. In Belgium, the French-speaking newspapers have identified the public service broadcaster (PSB) as an unfair competitor on the tense market of online press and advertising. While the Internet activities of private broadcasters are seen as a mere continuation of existing competition, the fact that the PSB admittedly relied on public funding to support its online presence allegedly causes a distortion of market conditions. To that argument, the PSB retorts that its remit includes a duty to develop its presence on the Internet and that its websites are nothing more than the continuation of its previously existing activities. In the last days of 2011, a tribunal ruled in favour of the PSB, bringing a provisional end to a dispute that started at the beginning of 2010.

In January 2010, RTBF, the French-speaking PSB, re-branded itself as RTBF.be as part of its strategy to increase its online presence. The Association of Belgian French-speaking newspapers (JFB) reacted by sending an official letter to the PSB requesting that it renounces its ‘online written press activities’. Following a suggestion from the French Community Minister for the Audiovisual, the parties attempted to reach an agreement through mediation. After RTBF launched another website dedicated to culture, the discussions came to an abrupt end. In September 2010, the JFB took the matter to the court, seeking an injunction that the PSB immediately cease all ‘online written press activities’ and online advertising.[2]

The use of that surprising notion might illustrate a certain state of confusion in the media market, where technological lines that separated audiovisual and written communication have definitely become blurred. To be sure, the concept of ‘online written press’ is entirely absent from the legal and regulatory framework.[3] More importantly, it remains hard to link those words with any actual practice. Whether you are a print or audiovisual company, going online necessarily means that you will be doing something that will to a certain degree differ from your traditional craft. Since the Internet is by design a multimedia platform, the content of a website combines text, images, sound and video. As a consequence, the online press resorts to words, pictures and videos.[4] The websites of the PSB and of the newspapers show a number of obvious similarities, and the same observation remains true if one compares their respective activities on social networks. All media editors face the same challenge of adapting to a fast-changing technological context and they do so by exploring and adopting the formats of the web, the social networks and the mobile applications.

Before the court, the newspapers argued that, even if they were prepared to admit a ‘certain presence’ of the public service media (PSM) on the Internet, RTBF’s existing online activities were exceeding the boundaries of its legal remit. JFB also argued that the PSB’s online activities infringed European Union rules on State aids and competition,[5] but the tribunal found it had no jurisdiction to decide on that dimension of the dispute. The main discussions thus turned around the definition of the mission of the PSM in the online era.

To relate the Belgian situation to the broader European context, one should remember that a solid consensus has emerged among European institutions on the democratic importance of the PSM in the online environment. Protocol 29 to the Treaty on the European Union expressed adhesion to the notion that ‘the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism”. In November 2010, the European Parliament insisted on “the fundamental role of a genuinely balanced European dual system in promoting democracy, social cohesion and integration and freedom of expression, with an emphasis on preserving and promoting media pluralism, media literacy, cultural and linguistic diversity and compliance with European standards relating to press freedom” and emphasised “the need to maintain strong and vibrant independent public service broadcasting, whilst adapting it to the requirements of the digital age’.[6] In an April 2011 draft resolution of the Committee of Ministers of the Council of Europe, it is underlined that the PSM ‘through its content and services remains of utmost importance in the new dynamic media environment. Fundamental changes in the media reinforce public service media’s vital role in supporting such non-commercial objectives as social progress, public interest and ability to engage with democratic processes, intercultural understanding and societal integration” and Member States are reminded of their “commitment to firmly support the remit, funding, editorial and organisational independence of public service media operating on any relevant platform.’[7] Moreover, in a statement made on December 6, 2011, the Council of Europe Commissioner for Human Rights insisted that ‘well-functioning PSM can be decisive in the protection of human rights, particularly freedom of expression, and can provide space for all voices in society, not least for minorities, children and other groups which tend to be marginalised.’[8]

At the Belgian level, no public authority had taken side in the dispute between JFB and RTBF. However, in the June 2011 report that concluded the first workshop of the General States of the Information Media,[9] the appointed experts wrote the following: ‘the mission of the PSB must be reinforced by an updated definition of its remit. On the one hand, it is recommended to support the digital developments of the PSB. On the other hand, these developments call for a clarification of the framework in which they take place, both from the point of view of competition and of the public interest. (…) The experts recommend that the use of public funding for the digital developments of PSB be submitted to an assessment of their impact on the private sector. By virtue of the principle of precaution, it might be wise to forbid or limit advertising on PSB’s websites and mobile services.’[10]

It is law (1997 Statutory Decree on RTBF) and a management contract negotiated between the RTBF and the French Community Government that define the remit of the PSM. The mission of the PSM consists mainly in the production and broadcasting of audiovisual services but extends to accessory activities. The current management contract runs from 2007 to 2012 and notably provides that the RTBF shall develop an Internet offer that serves as a reference in the French Community of Belgium; that it shall develop non linear media services; that it shall broadcast and promote its services online; and that it shall maintain updated information webpages that constitute an extension of its news programmes. Consequently, after a detailed analysis, the tribunal decided that none of RTBF’s online activities could be considered as exceeding its broadly-defined legal remit. The tribunal observed that every section of the RTBF’s websites could be linked to its main public service remit either directly (i.e. the reproduction of broadcast programmes) or indirectly (i.e. the extension and development of topics included in the public service remit). The judges also confirmed that RTBF could legally use part of its public funding for such accessory activities. Finally, the tribunal admitted that the management contract authorises RTBF to include advertising in its digital platforms.

In sum, one may say that it is the breadth of the future-proof provisions of the management contract, agreed upon in 2006, that convinced the tribunal to decide in favour of the PSM. As the current agreement ends in 2012, it remains yet to be seen how influential the court’s decision will be in the course of the negotiations of the new management contract.

Pierre-François Docquir, Research team of the Université Libre de Bruxelles (ULB)

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[1] See for instance, with statistics on France, http://www.erwanngaucher.com/mobile/Le-web-m39a-tuer-Le-gros-mensonge-de-la-presse-papier,4838.media?a=769.

[2] The RTBF is funded by the French Community. Additionally, it may draw up to 30% of its income from advertising.

[3] The notion of “press” is of importance in the Constitution as it commands constitutional protection (Arts 19, 25 and 150). Interestingly, the Supreme Court (Cour de Cassation) maintains that it should apply only to the printed press and not to the audiovisual media. This position is the object of much controversy in legal scholarship and judiciary practice.

[4] It is worth noting that recital 28 of the AVMS Directive excludes the websites of the printed press from the notion of audiovisual media service. One could argue that this non-binding consideration is at least debatable. For a regulatory body whose remit concerns the audiovisual media services, to identify which online activities – or even what section of a website – it should regulate, is not an easy task. See for instance Belgian CSA’s public consultation on the perimeter of regulation of AVMS (http://csa.be/consultations/16). See also the background papers prepared by EPRA (European Platform of Regulatory Authorities) at http://www.epra.org/content/english/index2.html.

[5] In February 2011, the European Commission has been seized of a complaint by the newspapers.

[6] European Parliament Resolution of 25 November 2010 on public service broadcasting in the digital era: the future of the dual system (2010/2028(INI)).

[7] Draft declaration of Committee of Ministers on PSM governance, Council of Europe (April 2011 – MC-S-PG(2011)002rev4).

[8] “Public service media needed to strengthen pluralism”, http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=199. This Declaration of the Commissioner for Human Rights was accompanied by an “Issue Discussion Paper on public service media and human rights”, which is a 27-page article that promotes a human-rights approach to public service media – an approach its authors describe as transformative for the public service media (see https://wcd.coe.int/ViewDoc.jsp?id=1881537).

[9] The General States of the Information Medias (Etats généraux des medias d’information) are a broad consultative process held by the Parliament of the French Community. See http://egmedia.pcf.be/.

[10] Translation from French. Report, p. 26. See http://egmedia.pcf.be/wp-content/uploads/2011/03/Rapport-atelier-1.pdf.

In more detail, MEDIADEM researchers talked about the nature and scope of the project’s comparative reports, which is the next item on the research agenda. Project partners presented their preliminary observations on the issues that emerge as important for media freedom and independence from a comparative perspective. The presentations provided the basis for lively discussions on how the evaluation and analysis of variable (as well as common) patterns of media policy-making and regulation affecting the media’s freedom and independence could be best approached. Throughout discussion emphasis was put on the need to take the challenges posed by technological developments and the financial crisis into account. The meeting proceeded with a discussion about the compilation of policy briefs on the basis of the findings of the project, and the means to employ in order to reach out to the broader media policy community.

The on-line survey took place between November 1 and 14, 2011, among a sample of more than 200 Slovak journalists and media managers from national, regional and local media from all regions of Slovakia.

The vast majority of survey respondents (about 90%) expressed the view that journalists can work freely or rather freely in Slovakia. Research findings suggest that the freedom of expression in general, and through the media in particular, is primarily supported by the rulings of the Constitutional Court, which has in recent years shifted to favouring freedom of speech and media and has issued several key liberal decisions in this regard. The freedom of the media is relatively limited by the more conservative Council for Broadcasting and Retransmission (the main regulatory body for electronic/digital media) and a part of lower general judiciary (district courts). This is because a part of the judiciary issues unpredictable decisions in disputes relating to the protection of personality rights vis-à-vis freedom of expression. There also seems to be a problem with the Supreme Court which has issued several contradictory rulings in cases related to the decision-making of the Council for Broadcasting and Retransmission in regulatory issues.

The results further suggest that the Parliament as a policy maker is largely subordinate to the executive power (the Cabinet). However, several unexpected legislative initiatives were passed by the Parliament, which eventually limited freedom of speech, such as an amendment to the Penal Code sanctioning public questioning of crimes of communism and fascism.

Respondents feel that financial sanctions in court proceedings related to libel/defamation cases (non-pecuniary damages) do not have a liquidation impact on the media – smaller media outlets are usually cautious enough in making public unsubstantiated accusations, while big media outlets have sufficient resources to cover such costs.

Overall, respondents think that Slovakia has been missing an influential and respected journalistic organisation.

The findings of the on-line can be consulted here (in Slovakian).

The first panel ‘Is media freedom under threat from intermediaries, gatekeepers – and citizens?’ started with a presentation from Dr Chris Marsden, Senior Lecturer at the University of Essex, who focussed on the human rights dimension of net neutrality. His presentation was followed by that of Professor Lilian Edwards, Professor of Internet Law at the University of Strathclyde, who considered wikileaks, a year after the financial blockade began. Events surrounding wikileaks’ publication of the American diplomatic cables have highlighted the potential for private individuals and organisations to engage in censorship at one remove, pressurising host organisations and providers of financial services to deny ‘problematic’ sites access to essential services.

The second panel ‘Media freedom and the commercial imperative: Exploiting intellectual capital and the limits of the market’ opened with a presentation from Mr Robert Buchan, a Partner in the IP & Technology Department of Maclay, Murray and Spens LLP. He discussed a number of copyright issues relating to access to, and online distribution of, news articles, with specific regard to the recent Meltwater case in the UK.  Control over access to content is important not only in the music and film fields but also for the printed press, struggling to develop alternative business models in the light of online delivery. His presentation was followed by that of Mr. Jim Killock, Executive Director of the Open Rights Group, who discussed the attraction for governments of ‘diffuse’ mechanisms of censorship and the challenges this poses for freedom of expression and information.  In particular, he argued that politicians were not always clear as to their underlying motivations; in particular, child protection was apparently being used in some cases to justify restrictions designed to respond to more general concerns about adult exposure to sexually explicit content.  He noted that web blocking can result in what is in effect censorship by internet providers.

After lunch the conference reconvened for the third panel ‘Media plurality and diversity:  is public service media part of the solution or the problem? The panel opened with a presentation by Mr Ross Biggam, the Director of the Association for Commercial Television in Europe, who discussed ‘State aid and competition in the multiplatform era.’ He noted the differential implementation across Europe of the Commission’s 2009 Communication on state aid for public service broadcasting and that only relatively few states had put in place an effective public value test.  His presentation was followed by that of Mr Matteo Maggiore, Controller of International Policy for the BBC, who discussed the development and continuing relevance of public service media in an international context. The final presentation for this panel was provided by Dr Pierre-François Docquir, Vice-President of the Conseil Supérieur de l’Audiovisuel and senior researcher at the Centre Perelman for Legal Philosophy at the Université Libre de Bruxelles, who discussed public service media in the online environment and new ways to get the public engaged. In particular, he suggested that public service media could play an increasingly important role in responding to the public demand for relevant, high quality, local information, and providing a forum for public dialogue and debate.

The final panel focussed on ‘Empowering the citizen in the new online environment’. The first presentation was by Professor Natali Helberger, from the Institute for Information Law at the University of Amsterdam. The presentation focussed on the possibility of labelling information to enable individuals to better assess its quality and relevance. She also considered whether strategies could be adopted to improve individual exposure to diverse information, just as the state now encourages individuals to adopt a more varied diet. The final presentation of the day was given by Ms. Judith Rauhofer, a member of the Open Rights Group Advisory Council and Lecturer in Information Technology Law, at the University of Edinburgh. Ms. Rauhoffer noted that transparency is often equated with consumer control but that this is not always the case, especially in the online context where information can be rendered difficult to find or understand or made subject to confusing options.  Consumer protection laws have gradually developed rules relating to consumer information in the offline environment but more needs to be done to ensure that consumer protection and choice is meaningful online.

All presentations were followed by lively discussion in which speakers and public exchanged opinions and views on the varied topics discussed during the day.

The agenda of the workshop is available here.

For more information on the workshop, you may contact Yolande Stolte.

Credits: kmardahl/ Creative commons

A high-level group to provide recommendations for the respect, protection, support and promotion of media freedom and pluralism in Europe has been created by European Commission Vice-President Neelie Kroes. The members of the group have been selected for their expertise in their respective fields and for their complete independence.

The group, meeting for the first time on 11 October, will draw up a report for the Commission with recommendations for the respect, protection, support and promotion of pluralism and freedom of the media in Europe. The group will take into consideration the media laws of the Member States and the EU candidate countries in order to identify common issues or concerns and highlight possible solutions for the protection of media freedom. The findings of the group will be made public.

Commissioner Kroes said: ‘Freedom of expression is one of the essential foundations of our democratic societies, recognised in the European Treaties and in the EU Charter of Fundamental Rights. But both media freedom and pluralism also need to flourish in practice, in a favourable environment.’

View the press release here.

Credits: Bull3t/ Creative Commons

The Greek Government has formed a special committee to examine the possibility of enacting new legislation in order to deal with issues relating to the civil and criminal liability for libel, defamation, calumny and other acts or offenses committed by website/blog administrators or website owners or users of the respective services.

The MEDIADEM project contributed to the work of the committee by compiling and providing information concerning the relevant applicable rules in other European countries. The following countries were covered: Finland, Germany, Italy, Romania and Spain.

The proposals of the group are expected in November 2011. For more information you may contact Evangelia Psychogiopoulou.

Whilst the cultural value of the Internet cannot be questioned, the same can be said about the economic value of Internet services. The daily communication of Internet users via email, Twitter, and Facebook, the knowledge-building that is taking place in Wikipedia and the political and societal influence of the Internet in the Arab countries but also in our Western societies illustrate the manifold cultural aspects of the Internet. The annual turnover of Internet access providers and online music stores account for the Internet’s economic aspects among others. These cultural and economic functions determine the applicable fundamental rights prescribing and confining the remit of the lawmaker. Departing from these observations, 15 experts with different academic and professional backgrounds discussed currently debated issues.

During the two-day workshop it became clear that the Internet constitutes a highly dynamic and ever-changing network of users, platform providers, and technical infrastructures, which create many different communicative forums. This new, ‘potential’ public complements the traditional public of mass communications like press or television. While public mass communication once took place through the press, television, and radio with journalists as intermediaries, any individually-produced video on the issues once reserved to traditional media can now gain publicity.

The large number of different actors in the Internet and its global outreach renders the process of regulation complex and calls for a differentiated approach. For instance, national actors, especially state actors of broadcasting legislation, have to take the ideas and views of Internet’s active users more into account than before. Additionally, Internet regulation involves national, European, and international political actors and, thus, a broad spectrum of different legal traditions and decision-making processes.

Besides these broader issues, some of the debates on Internet regulation were presented and discussed in more detail during the workshop. Among the topics dealt with were: intellectual property law, public service broadcasting and EU state aid control, ancillary copyright law for publishers, the independence of regulatory bodies, civic journalism, data protection, the protection of privacy as well as censorship and block lists of websites. Clearly, it is still open which way Internet regulation will go, which cultural or economic aspects will be given precedence, and what balance will be found for the partly conflicting interests and the deriving objectives. In the case of Germany, the Basic Law established some framework conditions regarding communication, access to knowledge, protection of youth, and protection of intellectual property. Freedom of information and opinion, for example, enjoys a pronounced and privileged position in the Basic Law. Concurrently, safeguards exist for intellectual property, although the lawmaker has in this regard a broader margin of discretion.

The papers presented and the vivid discussions that followed were illustrative of the different viewpoints on the complicated and complex issue of Internet regulation.

The (translated) agenda of the workshop is available here.