Public service media do not have to end ‘online written press activities’
It is a dismal future that awaits the printed press. The growth of the Internet cannot be considered the only cause of its decline 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.
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. 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. 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, 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’. 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.’ 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.’
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, 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.’
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.
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 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.
 The RTBF is funded by the French Community. Additionally, it may draw up to 30% of its income from advertising.
 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.
 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.
 In February 2011, the European Commission has been seized of a complaint by the newspapers.
 European Parliament Resolution of 25 November 2010 on public service broadcasting in the digital era: the future of the dual system (2010/2028(INI)).
 Draft declaration of Committee of Ministers on PSM governance, Council of Europe (April 2011 – MC-S-PG(2011)002rev4).
 “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).
 Translation from French. Report, p. 26. See http://egmedia.pcf.be/wp-content/uploads/2011/03/Rapport-atelier-1.pdf.