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Doc. 10029
12 January 2004
Public service broadcasting
Report
Committee on Culture, Science and Education
Rapporteur: Mr Paschal Mooney, Ireland, Liberal, Democratic and Reformer’s Group
Summary
Public service broadcasting is a vital element of democracy in Europe. Across the continent, its future is challenged by political and economic interests, by increasing competition from commercial media, by media concentrations and by financial difficulties.
Some post-communist countries have not yet even started the transition from state-controlled to public electronic media. In other countries, public service broadcasting is in crisis.
The report calls for a clear political commitment of European governments to maintain strong and vibrant independent public service broadcasting, whilst adapting it to the requirements of the digital age.
I. Draft recommendation
1. Public service broadcasting is a vital element of democracy in Europe but it is under threat. It is challenged by political and economic interests, by increasing competition from commercial media, by media concentrations and by financial difficulties. It is also faced with the challenge of adapting to globalisation and the new technologies.
2. Public service broadcasting, whether run by public organisations or privately owned companies, is distinguished from broadcasting for purely commercial or political reasons by its specific remit, which is essentially to operate independently of economic and political power. It provides the whole of society with information, culture, education and entertainment, enhances social, political and cultural citizenship and stimulates the cohesion of society. To that end, it is typically universal in terms of content and access; it guarantees editorial independence and impartiality; it provides a benchmark of quality; it offers variety of programmes and services catering for the needs of all groups in society and it is publicly accountable. These principles apply whatever changes may have to be introduced to meet the requirements of the 21st century.
3. It is a matter of concern that many European countries have so far failed to meet the commitment that their governments undertook at the fourth European Ministerial Conference held in Prague in 1994 to maintain and develop a strong public broadcasting system. It is also worrying that the fundamental principle of the independence of public service broadcasting contained in Recommendation No. R(96)10 of the Committee of Ministers is still not yet firmly established in a number of member states. Moreover governments across the continent are in the process of reorienting their media policies in the light of the development of digital technology and in danger of leaving public service broadcasting without enough support.
4. Public service broadcasting was born in Western Europe and has evolved by adapting itself naturally to the needs of a mature democracy. In Central and Eastern Europe it is not yet socially embedded since it was “transplanted” into an environment that lacked the necessary political and management culture, in which civil society is still weak and has inadequate resources and little dedication to public service values.
5. The situation varies across Europe. At one extreme, national broadcasting continues to be under strict governmental control and there is little prospect of introducing public service broadcasting by legislation in the foreseeable future. In Russia, for instance, the lack of independent public service broadcasting was a major contributing factor to the absence of balanced political debate in the lead up to the recent parliamentary elections, as mentioned by the International Election Observation Mission. Hardly any progress has been made in adopting the necessary public service broadcasting legislation that might meet Council of Europe standards in Azerbaijan, Georgia and Ukraine.
6. In Bosnia and Herzegovina and in Kosovo, public service broadcasting still only operates under regulations imposed from outside by the international community. Adoption of a proper law has been delayed in Bosnia and Herzegovina as a result of internal resistance to structural change and in Kosovo because of attempts to undermine the funding of public service broadcasting.
7. In other countries, laws on public service broadcasting have been adopted but certain provisions and practices contradict European standards. In Armenia, all the members of the Council for Public Radio and Television are appointed by the President of the Republic. It remains to be seen whether TeleRadio Moldova will be able to be independent in its day-to-day operation after two changes in the law in 2003. The appointment of a Serbian Broadcasting Agency has been marred by scandals that are yet to be resolved.
8. More substantial progress has been made in other countries, although problems still remain. Changes in the broadcasting laws, making them more politically independent and financially viable, have been recommended by the Council of Europe in Bulgaria and “the former Yugoslav Republic of Macedonia”. There are still attempts to change laws in order to make them more suitable for a ruling majority as with the new law on Croatian Radio and Television. Severe financial difficulties are experienced by public service broadcasting in the Czech Republic, Hungary and Slovakia.
9. There is political pressure on public service broadcasting in Western Europe too. The BBC was attacked by the British government over its coverage of the war in Iraq. In Greece, Italy, Portugal and Spain, situations variously defined as “political clientelism”, “state paternalism” and partitocrazia have prevented the full emancipation of public service broadcasters from direct, “hands-on” political control. Manipulation of information under political influence led to the unprecedented sentencing of TVE for its coverage of the general strike in Spain in June 2002. The politisation of RAI caused by a unique division of the three Italian channels between the main political parties has been further aggravated by the current government.
10. There is a growing tendency to go beyond hitherto existing forms of public service broadcasting regulation and define its obligations more precisely, often by contracts backed up by accountability reports to parliament, government and/or a regulatory agency. Increasing attention is paid to the financial aspects of the operation of the public service broadcaster. While such moves are to be welcomed in so far as they give public service broadcasting organisations greater stability, they should not be used by governments as an instrument of undermining their financial and statutory situation. Recent government decisions in the Netherlands and France have seriously affected the funding of their public service broadcasters.
11. Governments have been examining possible structural changes that would affect the very nature of public service broadcasting. Privatisation plans have been discussed in Denmark and Portugal and in Italy with the recently proposed broadcasting legislation (the “Gasparri law”), which has since then been referred back to parliament by the President of the Republic. In the UK, there is growing concern at the government’s attitude to the renewal of the charter of the BBC, fuelled by the very public row between the corporation and the government.
12. In a large majority of countries, digital channels are not yet defined in broadcasting legislation. There is also a clear absence of legal provisions concerning Internet activities by public service broadcasting in most countries. This might affect their ability to expand on new platforms.
13. The coexistence of public and commercial media has largely contributed to innovating and diversifying the content offer and has had a positive impact on quality. However, commercial interests are trying to reduce competition from the public sector to a minimum. EU competition law is often used to attack the systems of funding of public service broadcasting. In this respect, the Assembly welcomes the decision of the European Court of Justice in the Altmark case not to regard the fee as State aid but as a compensation for discharging public service obligations. Commercial broadcasters also challenge the possibility for public service broadcasting to expand into new areas and new services. Recent examples include BBC’s Internet activities and the plans of the German ARD to turn the Internet into its “third pillar”, which had to be abandoned under commercial pressure.
14. Commercial broadcasters also claim that with the shift to multi-channel, on-demand broadcasting offered by digitalisation, the market would be able to cater for all needs and therefore would also fulfil the public service obligations currently assigned to public broadcasting institutions. However, there is no guarantee about the quality and independence of such offer, or that it would be free-to-air, universally accessible and constant over time.
15. It is recognised that there can be an overlap with commercial broadcasting in popular genres. However, the growing commercialisation and concentration of the media sector with the resulting dumbing-down of general quality gives reason, when it is followed by public service broadcasters, to those who criticise the misuse of public money for such purposes. Public service broadcasting is suffering an identity crisis as it is in many instances striving to combine its public service obligations with chasing ratings and the need to secure an audience to justify its “public” character or simply to attract advertising revenue.
16. European countries and the international community in general must become more actively involved in efforts to develop general standards and good practice as guidance for national policies in this area.
17. Therefore the Assembly recommends that the Committee of Ministers:
i. adopt a new major policy document on public service broadcasting, taking stock of developments since the Prague Ministerial Conference and defining standards and mechanisms of accountability for the future of public service broadcasting. The forthcoming Ministerial Conference on Mass Media Policy in Kyiv could include the preparation of such a document in its Plan of Action;
ii. mobilise the relevant structures of the Council of Europe to ensure proper and transparent monitoring, assistance and, where necessary, pressure, so that member states undertake the appropriate legislative, political and practical measures in support of public service broadcasting;
iii. consider specific measures to ensure that public service broadcasting legislation in line with European standards is adopted as soon as possible in Azerbaijan, Georgia, Russia and Ukraine;
iv. ensure close co-operation with other international organisations in maintaining its standards regarding freedom of expression;
v. continue to press for audiovisual services to be regarded as more than simply a commodity in the WTO and GATS negotiations;
vi. endeavour to ensure that the World Summit on the Information Society gives proper recognition to public service broadcasting as an important element of developing the Information Society and at the same time easing the shock of rapid change that it will involve;
vii. call on the governments of member states to:
a. reaffirm their commitment to maintaining a strong and vibrant independent public service broadcasting whilst adapting it to the requirements of the digital age, for instance on the occasion of the next European Ministerial Conference on Mass Media Policy in 2004, take concrete steps to implement this policy objective and refrain from any interference with the editorial independence and institutional autonomy of public service broadcasters;
b. define an appropriate legal, institutional and financial framework for the functioning of public service broadcasting as well as its adaptation and modernisation to suit the needs of the audience and the requirements of the digital era;
c. design education and training programmes for journalists adapted to the digital media environment.
II. Explanatory memorandum
by Mr Mooney
Table of contents
I. INTRODUCTION
II. PUBLIC SERVICE BROADCASTING: A BRIEF OVERVIEW
Features of Public Service Broadcasting
The Rationale for PSB
New Zealand: Experiencing the Lack of PSB
Some Models of PSB
III. THE TRANSITION FROM STATE MONOPOLY TO PSB IN THE NEW DEMOCRACIES
IV. PUBLIC SERVICE BROADCASTING IN WESTERN EUROPEAN COUNTRIES
Efforts by commercial broadcasters
Media Policy and PSB
V. PSB AND NEW TECHNOLOGIES
Three Stages of Technological Development
PSB and Regulatory Responses to the New Technologies
VI. THE DEBATE ON THE FUTURE OF PSB
Three Approaches
Quality and Distinctiveness
VII. CONCLUSIONS AND RECOMMENDATIONS
Council of Europe
Member States
Public Service Broadcasters
I. INTRODUCTION
1. This report was prepared on the basis of a hearing held by the Sub-Committee on the Media (of the Committee on Culture, Science and Education) on 16 October 2003 in Paris with the participation of international organisations, public and commercial broadcasters and NGOs (see appendix) and a discussion of the Committee with the participation of a BBC representative on 19 November 2003 in Liverpool. The rapporteur expresses his gratitude to all participants in these debates. He expresses particular appreciation and thanks to the Consultant Expert, Mr Karol Jakubowicz, Adviser to the Chairman of the National Broadcasting Council (Poland) for his invaluable assistance in the production of the report.
2. A debate about public service broadcasting (PSB) is in reality a debate about the philosophical, ideological and cultural underpinnings of society and about the role of the State and the public sector in meeting the needs of individuals and society as a whole. This, rather than technological developments, may be the decisive factor in determining the future of PSB. In many European countries PSB is still the major broadcaster and audiovisual producer, performing its proper role defined in the many documents on the subject (see the Appendix). The challenge today is how to preserve what has been described as one of the key socio-political and media institutions developed by Western European democracies in the 20th century in a form suited to the conditions of the 21st century.
3. We are witness to attempts to turn the clock back. The issue is often debated in terms of the experience of the past, instead of adopting a forward-looking approach Efforts are being deployed to halt or slow down the necessary evolution and development of PSB and consign it to a position of a niche broadcaster, serving as a complement to commercial broadcasting – in short to turn the European PSB into the American PBS. In those Central and Eastern Europe countries where PSB has been established, it has largely been turned into a mouthpiece of the government and parliamentary majority of the day. It is hampered by legislation and a variety of accountability and administrative systems which reduce the PSB organisations’ freedom of action, significantly slow down decision-making and have grievous consequences for their ability to deliver their programming in ways suited to contemporary realities. Moreover, with governments and public administration everywhere more and more actively imposing “clear and precise” remits on them, devising accountability systems and exercising close control over the way they spend their money, public service broadcasters are increasingly forced to fit their activities to a Procrustean bed of concepts of PSB created by political and bureaucratic minds. It is, indeed, trapped in a welter of conflicting expectations.
4. The result of this situation has been described by Dave Atkinson (in Public Service Broadcasting: the Challenges of the Twenty-first Century, 1997) as follows: “Public television […] is in the throes of a crisis. It is expected to do better than the private channels in embodying the public service ideal of which it is no longer allowed the monopoly […], and in order to achieve this it is expected to adopt a mode of operation which no longer distinguishes it from the commercial channels. It is expected to be productive, efficient, capable of generating its own income and able to attract ‘consumers’. It is also expected to differ from the private channels in its programming. So it is expected to be similar and different at the same time”. As PSB organisations bend over backward to meet these conflicting political expectations, they are hardly in a position to hold a steady course and perform their obligations properly.
5. Abandoning PSB, or condemning it to slow asphyxiation, would be an act of grave irresponsibility, a historical mistake – all the more so that (as we will argue below) PSB has a major role to play also in the 21st century. Imagination, an ability to take a long-term view, and a sense of responsibility for preserving the values of European societies are all required to develop policies serving to support PSB and provide adequate and secure financing for it. The goal is to help its retain its distinctiveness as it transforms itself to address audiences in ways suited to their
needs and sensibilities, to adjust to a highly competitive, globalized and increasingly commercialised audiovisual market, and to take advantage of possibilities offered by modern technology. The additional task in Central and Eastern Europe is to assist civil societies in their quest to turn PSB into a civil society institution, rather than an adjunct to the political elite.
6. While it is not possible to “harmonize” concepts and policies on PSB, the international community must become more actively involved in these efforts and to develop general standards as guidance for national policies in this area.
II. PUBLIC SERVICE BROADCASTING: A BRIEF OVERVIEW
7. Public service broadcasting is a product of stable, mature democracy. Democracy and PSB reinforce each other, but a democratic context is still a prerequisite for genuine PSB to emerge, because otherwise its crucial feature – the ability to operate at arm’s length from the government and power elite – would not be possible. That is what sets it apart from State/government broadcasting which is subordinated to some government department, operates by the rules of the civil service and seeks to further and justify the activity of government. PSB could in fact be treated as a benchmark of the nature of the political system: its genuine independence, impartiality and pluralism are unthinkable without the existence of a healthy democracy and a strong civil society.
8. PSB is a product of Europe, though it has emerged also in some Commonwealth countries (Canada, Australia, New Zealand), as well as in the United States, where it was introduced in its present form in the 1960s as a marginal complement to commercial broadcasting.
9. One can distinguish three main waves of PSB development. It was originally born in some European countries before World War II, beginning in 1926 with the BBC, an independent public corporation with a public service remit, then understood in part as playing a clearly paternalistic and normative role in the country’s life. In some other Western European countries (e.g. France or Italy), erstwhile state broadcasting organisations began to be transformed into public service broadcasters in the 1960s and 1970s, when sweeping social and political change had deprived direct State control and management of broadcasting of all its legitimacy and made it indefensible. In some European countries, as in West Germany after World War II, Spain, Portugal and Greece in the 1970s, and in Central and Eastern Europe after 1989, emergence of PSB in the context of a media system change was part and parcel of broader political change, typically transition to democracy after an authoritarian or totalitarian system.
10. And finally public service broadcasting is a product of both stability and extensive change. Some of its features and obligations have remained constant over time, but the way PSB is defined, organized, structured and financed varies greatly from country to country. PSB is, after all, a product of national media policy, according to the needs and traditions of particular countries (the principle of subsidiarity is clearly and emphatically recognized in this respect). In addition, political, social, cultural and technological change has brought about, and will continue to promote, far-reaching change in the way public service broadcasting operates and is delivered to the public.
Features of Public Service Broadcasting
11. Arthur Miller has said that a good newspaper is a nation talking to itself. Similarly PSB is a means for the community to express, discuss and sift through the issues and matters that are important and meaningful for it. To perform this function, it must achieve and retain a significant share of voice and meaningful presence in the social, public and cultural debate and communication. PSB is also a means for the community to invest in the production and mediation of pluralistic programming, without regard for its market value. The central unchanging feature of public broadcasting is that by definition it is a service for the individual and for society, enhancing, developing and serving social, political and cultural citizenship and contributing to social cohesion. Public service broadcasting must be a force to enable the effective working of a pluralist democracy and serve as a watchdog of the authorities. It must also include media content which preserves and develops cultural diversity, identity and culture - not just “high culture”, but culture generally. It has an important educational role to perform. At the same time, it is accepted that PSB broadcasters have a comprehensive mission to deliver a wide range of programming in order to address society as a whole. Hence, overlap with commercial broadcasting in popular programming - sport, comedy, drama, news and current affairs – is seen as natural and acceptable.
12. The PSB broadcasters’ role is to provide media content with the following characteristics:
§ Universality of content, understood as both universality of basic supply on generalist channels (including mass-appeal, entertainment programming), which in the foreseeable future will continue to be central to what public service broadcasters offer to the public, and universality across the full portfolio of services, some of them specialized or tailored for specific audiences, adding up to a more extended and comprehensive range of services;
§ Universality of access, today signifying presence on all significant media and platforms (i.e. those with significant penetration), including terrestrial, satellite, cable, and broadband networks, but also the ability to deliver a “personalized public service” in the online and on-demand environment;
§ Editorial freedom, and independence from both political ties and commercial bias (while at the same time PSB naturally operates within parameters set by legislation);
§ High quality of services and of output, aspiring, in each type of content or service, to constitute a benchmark of quality and professionalism. PSB must offer the audience new, original, first-run programming developed for that audience and within its cultural context, resonating with themes, characters and references taken from its historical or contemporary reality.
13. Another constitutive feature of public service broadcasting is its accountability to the public – in some cases directly (e.g. by means of “Statements of Promises”, or similar documents spelling out the broadcaster’s commitments to the audience), and mostly indirectly, via a supervisory body, designed to represent the interests of society in general and charged with the task of overseeing the operations of the organization. Forms of formalised accountability (reports, audits, execution of licence obligations, etc.) to the broadcasting regulatory authority or parliament are being developed in more and more countries into detailed “service contracts”.
14. Most European PSB organisations have a mixed funding system which may involve any combination of a number of sources of funding: “public funding” (including broadcasting/licence fees paid by viewers/listeners; grants from the state budget and other sources of public funding), and “commercial funding” (concession fees paid by commercial operators; radio/television advertising; radio/television sponsorship; subscription fees for pay services; other commercial revenue). Proportions of revenue from particular sources vary widely (see the Appendix). Since “funding influences content”, the choice of the funding scheme must be seen as an important way of influencing the activities of public service broadcasting organisations, and, in particular, the content of their programme services.
15. The broadcasting fee is the traditional means of funding for public service broadcasting, and it is often regarded as the most appropriate source of funding. It exists in most European states; exceptions are Spain, Luxembourg and (as far as television is concerned) Portugal. In the Netherlands, the Parliament has decided to replace the traditional broadcasting licence fee by a special levy as a supplement to income tax. The broadcasting (licence) fee is known as “solidarity funding” of PSB. Due to the fragmentation of audiences as a result of multiplication of channels, and differences in audience share and reach of different broadcasters, it is impossible to specify a proportion below which a universal broadcasting fee would be unjustified. However, it is clear that if a majority of the potential audience never watches or listens to a particular programme service, the justification for the fee becomes tenuous.
16. Revenue from the broadcasting fee is stable and secure, predictable, less volatile than other means of funding; it reduces dependence on advertising revenue and on state allocations; the broadcasting fee establishes an additional link between public broadcasting organisations and viewers and listeners; in most countries, public acceptance of the broadcasting fee is relatively high. However, such revenue is also static (the number of radio/television households is no longer increasing significantly), with a very limited potential for growth; increases in the level of the broadcasting fee may be unpopular and politically difficult to achieve; the need to adapt the fees periodically may create dependency on state institutions, unless adequate procedures guarantee objective and independent decision-making; state-aid rules of the European Union may create complications and uncertainty; the collection may be difficult to organize, with an important evasion rate; political and social acceptance of the broadcasting fees may decrease over time. The collection of the broadcasting fee is usually linked to the possession of a receiver, but in some countries (e.g. Switzerland), this has been extended to the ability of receiving television programming whatever terminal (television set, computer screen etc.) a person may use.
17. As for advertising and sponsorship revenue, public broadcasters are often subject to restrictions which are tighter than the general rules. Restrictions may include the prohibition of sponsorship for certain programme categories (e.g. children's programmes, documentaries, religious programmes) and limitations on sponsorship credits (e.g. limited duration, no animation). Exceptionally, public broadcasters are even subject to a general ban with very limited exceptions (e.g. the British BBC, the Finnish YLE). Such commercial revenue helps maintain the competitiveness of public service broadcasting for all programme categories, in particular as far as the acquisition of programmes and transmission rights is concerned. The fact that such commercial revenue is derived from a broadcasting service, or is used to fund it, does not, however, mean that the broadcasting service itself is of a commercial nature.
18. There is a consensus in Europe that public service broadcasting needs an appropriate, secure funding framework, and that public funding is an integral part of public service broadcasting systems. This has been confirmed by political and legal texts from both the Council of Europe and the European Union. The reality, as we will see below, is often very different. Neglecting to ensure such a framework is one of the main sins of omission committed by policy-makers, with direct consequences for every aspect of public service broadcasting.
The Rationale for PSB
19. The rationale for the existence of PSB has so far grown and evolved over the years in three distinct stages. Originally, the role of the monopoly PSB broadcaster was to provide “communication welfare” by offering what the German Constitutional Court has called a “basic supply” („Grundversorgung”) of information and other broadcasting content to which the audience is entitled. In short – to provide all genres of programming for all groups of the audience, in order to satisfy every need.
20. With the emergence of the first generation of commercial broadcasters (typically offering generalist channels), this rationale was supplemented by the obligation to provide a quality alternative to commercial broadcasting and to redress market failure by providing content those broadcasters found commercially unrewarding. Incidentally, demonopolisation and competition had a salutary effect for PSB, leading to its modernisation. PSB broadcasters had to adapt to the social and cultural change and abandon their elitist and paternalistic approach to their audience.
21. With the emergence of multi-channel broadcasting and of second generation of commercial broadcasters (many of them offering thematic channels, or a wide range of radio formats), the situation changed again. At least on big markets (though this is certainly not true of many of the smaller Western European markets), commercial channels may now provide many elements of “basic supply” content which may also meet minority needs. However, this content is often available for additional payment or on thematic satellite channels, reaching minuscule audiences. Thus, the rationale for PSB – while retaining many elements from the first two stages – has had to be redefined and extended once again. The PSB’s function of correcting “market failure” need no longer mean only provision of genres and programme types which are not available elsewhere, but also the provision of such content as free-to-air universally accessible radio and television.
22. Although PSB today no longer defines the market by itself, it can play a vital role in influencing it. It can keep audience demand for high-quality programming alive in the market. This “virtuous circle”, by encouraging commercial broadcasters to emulate programme genres and formats successfully pioneered by public service broadcasters, enriches the diversity of overall supply of programming and raises quality. As the private sector expands, maintenance of PSB thus acquires growing importance as an instrument of State media policy designed to shape the broadcasting landscape as a whole.
23. As the situation - in media and generally – changes and evolves, so does the rationale for PSB and the role it is expected to play. We will see below that new elements are being added.
New Zealand: Experiencing the Lack of PSB
24. What happens when that mechanism is absent has been experienced by New Zealand. In 1989-1999, Television New Zealand was required to maximise profits and return substantial dividends to its primary shareholder, the government. During that time, there were no obligations on broadcasters in respect of quality thresholds or local content; no restraints on advertising levels and sponsorship deals; and no limits on foreign ownership of television. As a result, the mix of commercial and public service objectives shifted very much to favour commercial imperatives. The responsibility for residual “public service” elements of radio and televisions was given to New Zealand On Air, a funding agency which commissioned “PSB programming” from both commercial and public broadcasters.
25. New Zealand has come to regret the abandonment of public service objectives in television, and the neglect of the medium as a forum for national cultural and social debates. In its 1999 election manifesto, the Labour Party promised to shift TVNZ away from the commercial imperatives to clearer “public service” and “citizenship” purposes. As a result, a Television New Zealand Charter was adopted in May 2001.
26. In December 2001, the New Zealand Minister of Broadcasting stated: “New Zealand’s small population does not allow us to emulate other countries that enjoy fully subsidised public television. We can aim, though, to achieve as much as possible of the indigenous and diverse content and sense of public service that characterize public broadcasters at their best. We can look now to rejoining the mainstream of developed nations in recognizing the importance of publicly owned television as a cultural medium, and as a means by which we inform ourselves as citizens. We have for too long let purely commercial considerations dominate the fortunes of what should always have been a principal cultural asset. That time is coming to an end”.
Some Models of PSB
27. Different models of PSB can be distinguished, depending on the criteria applied. According to a structural criterion, three organizational models of PSB can be found to exist:
§ Integrated structures, as in the United Kingdom, Spain and Italy, where the BBC, RTVE and RAI control every area of public audiovisual activity;
§ Federated structures by region, such as the German system, which is derived from the integrated model and reflects the country’s political organisation, in which the Constitution delegates responsibility for cultural matters to the Länder;
§ Fragmented structures, as in France, where each branch of the audiovisual sector is controlled by one or more separate public operators.
28. In terms of the different forms of PSB links to the political world, we may distinguish:
§ Formally autonomous systems: Mechanisms exist for distancing broadcaster decision-making from political organs (as in Britain, but also Ireland and Sweden);
§ "Politics-in-broadcasting": Governing bodies of broadcasting organisations include representatives of the country's main political parties and social groups affiliated with them - as in Germany, Denmark, Belgium;
§ "Politics-over-broadcasting": State organs are authorised to intervene in broadcaster decisions - as in Greece and Italy, and France in the past.
29. According to an accountability criterion, the old “Autonomy Model” of PSB is being replaced in many countries by a new “Controlled Service Model”. As a result, self-regulation by public service broadcasters is being replaced by supervision of PSB performance by the regulator or other bodies, often within a system which ties financing to well-defined performance targets and strategic as well as business plans.
30. A report on PSB in Europe, published by the French Conseil Supėrieure d’Audiovisuel (CSA) in 1998 (“La télévision publique en Europe”, La Lettre, No. 111, December 1998) uses yet another set of criteria to distinguish two main models of public service broadcasting in the five countries under consideration:
§ “Anglo-Saxon” (the UK and Germany)
§ “Latin” (France, Italy and Spain).
31. The “Anglo-Saxon” model involves considerable independence of PSB broadcasters, rooted in tradition in the UK and in the Constitution in Germany. Moreover, in both countries PSB broadcasters have long received sufficient funding and were thus able to avoid being drawn into direct competition with commercial broadcasters. That allowed them to retain their distinctiveness and to remain the point of reference in the broadcasting landscape. Still, the application of the proporz-system in both Germany and Austria has long meant that also in those countries political parity between main parties had to be preserved in the appointment of top and middle management of public service broadcasting organisations.
32. In the “Latin” model, PSB had long been under political tutelage, as illustrated by the lottizzazione system in Italy (with the three television channels of RAI controlled by three major political parties), or by the fact that in Spain the Director-General of RTVE is still appointed directly by the Cabinet. Moreover, the funding of PSB in countries representing this model has long been insufficient, resulting in the permanent destabilisation of the public sector, once commercial broadcasting appeared. As an example, the accumulated debt of the Spanish RTVE will reach E 6.6 billion this year. Portuguese PSB has had a debt of nearly E 2 billion which it took the Portuguese State six years to repay. “Chronic underfinancing of the public sector has turned it [in the three countries] into a ward of the State – says the CSA - and one must ask whether in some cases this has not made it possible to preserve the old tutelage”. The coverage of the general strike in Spain in 2002 by public television TVE, seen as taking the government’s side, provoked huge public criticism and resulted in a court sentence against TVE for manipulation of information. The politisation of RAI in Italy was further aggravated under the Berlusconi government,
33. The “Anglo-Saxon” model could be extended to other Western European countries, including particularly Scandinavian ones. In turn, the “Latin” model could be extended to Greece and Portugal where, as in Italy and Spain, situations variously defined as “political clientelism”, “state paternalism” and partitocrazia have prevented the full emancipation of public service broadcasters from direct, “hands-on” political control. Central and Eastern Europe, another example of this, is discussed below.
III. THE TRANSITION FROM STATE MONOPOLY TO PSB IN THE NEW DEMOCRACIES
34. On the face of it, PSB has made considerable headway in post-Communist countries, having been introduced, at least formally, in 17 countries. 10 remaining ones (Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyz Republic, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan) seem to offer little prospect of the emergence of PSB in the foreseeable future.
35. One of the conditions for Azerbaijani membership in the Council of Europe was the transformation of State TV into an independent public service broadcasting organisation. A draft Law to this effect has been on the Parliament’s agenda for more than a year. The Azerbaijani authorities claim that for constitutional reasons, appointments to the Board of the public broadcasting organisation have to be made by the President himself. Nevertheless, the draft Law foresees an appointment procedure where candidates will be nominated by civil society and screened by a panel of experts which makes recommendations to the President. However, it still remains unclear whether the draft Law is intended to keep a State broadcasting organisation in parallel with the new public service structure. The situation of State broadcasting in Azerbaijan is all the more acute since gradually all commercial channels have been brought under government control, as evidenced by the campaign before the Presidential elections in October 2003.
36. In Georgia, the former President had announced that State Radio-TV was to be transformed into a public service organisation by the end of 2005, i.e. after the end of his term. However, the Broadcasting Law was not adopted as planned in previous legislation by the end of 2003. It is to be hoped that the new President and new Parliament will be committed to adopting the Broadcasting Law and supporting the transformation of the State TV into a real public service broadcaster.
37. No positive developments have occurred in Russia since the latest Assembly report on freedom of expression in the media in Europe (Doc. 9640) which regretted that “There is still no law on broadcasting in Russia, which exposes broadcasters to the whims of the authorities.”. The State Duma elections on 7 December failed to meet many international standards, according to the International Election Observation Mission, mainly because of lack of media independence. The control of the authorities over the national broadcasting media is also largely responsible for the information blackout in Chechnya.
38. Ukraine actually has a Law on Public Television and Radio Broadcasting, adopted in 1997, which provides for public radio and television to be established by a resolution passed by Parliament. It has never been adopted, however, and there seems little chance of that happening in the near future. Recently, the Parliament finally started working on amendments to the present broadcasting law which could grant greater independence of the governing bodies and chief executives of the State Radio and Television. These developments are to be encouraged, as long as they live up to Council of Europe standards. The State Radio and Television would also need serious restructuring as, according to some sources, they are left with hardly any more than 3% audience.
39. In Kosovo, the Establishment of Radio Television Kosovo (RTK), issued by the Special Representative of the UN Secretary-General, called into being “Radio Television Kosovo as the public service broadcaster in Kosovo”. However, progress towards adopting new legislation on the Independent Media Commission, and subsequently on PSB, has been extremely slow due to the inability of the international community to reach consensus concerning demands made by commercial broadcasters that RTK be deprived of advertising revenue and be financed by licence fee revenue and appropriations from the Kosovo Consolidated budget. Given the small population of Kosovo, that solution would certainly result in severely inadequate financing for RTK. As of December 2003, there have been some signs of progress. RTK signed a contract with KEK (the electric utility company) for the collection of licence fees together with the electricity bills. A new draft Law on the Independent Media Commission and broadcasting could be on its way.
40. In some cases, although legislation on PSB formally exists, it hardly complies with any Council of Europe standards. In Armenia, for instance, serious deficiencies in the legal framework hinder the development of the organisation towards independence. The Council of Europe has been pushing for amendments to the Radio and TV law but the Armenian authorities have responded that in order to change the current practice, according to which the President of the Republic appoints all 5 members of the Council of Public TV and Radio at his own gist (the current Chairman of the Council is the former head of the President’s office), the Constitution has to be changed first. A temporary solution, pending constitutional reform, might consist in laying down in law an obligation for the President to publicly advertise free places on the Council so that anybody can apply, which would make appointments more transparent. The Council of Europe has proposed that such a provision be incorporated into the draft amendments to the Law that are at present under discussion in the Armenian National Assembly.
41. In other cases, State authorities have failed to implement the provisions of newly adopted legislation,:
§ As in Moldova in 2002-2003, where there was inadequate follow-up to a 2002 law ostensibly transforming Radio-Television Moldova into a public service broadcaster, and separate legislation was needed at the end of 2003 (see para. 42)
§ As in Serbia in 2003, where the appointment of the broadcasting authority (whose job it is to appoint the governing board of the PSB organisation) was conducted in violation of the law;
§ Or as in Croatia in 2003, where Parliament delayed (conveniently in advance of a general election) the appointment of the supervisory body of the public service broadcaster under a new law (see para. 43).
42. These situations illustrate the need for stability of democratic institutions as a prerequisite of PSB emergence. They also sadly outline the limits of international persuasion and assistance with the drafting of new broadcasting legislation which may then be honoured more in the breach than in the observance. For instance, PSB in Bosnia and Herzegovina was enforced through decision of the office of the High Representative (OHR). However, the resistance within the broadcaster to the envisaged reform obliged the European Commission to temporarily suspend its support. It is now hoped that the appropriate legislation will be drafted promptly following an Agreement of main principles for PSB signed in November by the prime ministers of the three entities. Another example is Moldova, where the law on Tele-Radio Moldova was changed twice in 2003 but it still does not live up entirely to Council of Europe standards, especially as far as the designation of the Supervisory Council of RTM is concerned. The second change, which provided for the liquidation of the old State company replacing it by a public one, is also controversial as there are fears that this change could be used in order to get rid of unsuitable journalists. The recent suspension of the Buna Seara talk show is not an encouraging sign.
43. Moreover, broadcasting or PSB laws have been changed in post-Communist countries when they failed to guarantee political control over PSB organisations. One case in point is Croatia, where the PSB law of 2001 (which provided for the Broadcasting Council of Croatian Radio-Television to be made up mostly of people designated directly by civil society organisations) was replaced with a new law in 2003 in which the Broadcasting Council is, at least on paper, appointed by Parliament. Also in Bulgaria, a new broadcasting law presented by the ruling coalition was largely suspected to aim at replacing the Council for Electronic Media and the Directors of the national Radio and Television. The bill had to be withdrawn following severe criticism of certain of its provisions by Council of Europe and European Union experts. All this has delayed the adoption of a new law which is judged as necessary by the European institutions.
44. In many cases the introduction of PSB in post-Communist countries has produced a hybrid, an organisation structured like a public service broadcaster, but in reality serving as an extension of the current parliamentary majority (hence the term “parliamentary broadcasting” sometimes used to describe them). This has been called a veritable “re-nationalisation” of these broadcasting organisations. The International Federation of Journalists has devoted special reports to the situation in Hungary, Czech Republic and Bulgaria in 2001, and Serbia in 2003: “in all of these cases – states the organization - the IFJ found itself confronting governments and political groups that were reluctant to give-up influence over media that were supposed to be public according to the law”. Complaints about dominance of Polish TV by government (see Doc. 9640) persist despite improvements. In "the former Yugoslav Republic of Macedonia", according to a report on media in South-Eastern Europe prepared by the Media Task Force of the Stability Pact for South-Eastern Europe (November 2003), “The public broadcaster MRTV is even more under political control. The Director-general is elected by parliamentary majority and high
positions within MRTV are divided on the basis of agreements among the ruling coalition partners. The management changes after each election.” “The present legislation does not provide sufficient independence of the regulatory body, nor for the editorial, institutional and managerial independence of the public broadcaster”.
45. Still, it would be unfair to single out these countries alone: “media wars” for control of PSB have been so fierce practically everywhere (perhaps with the exception of Estonia) that little pretence of independence or impartiality remains. A Hungarian author, Mihaly Galik, has accordingly written that “introduction of public service broadcasting has failed” in his country – because the country’s political culture leaves no room for independent, apolitical public service broadcasting. A Slovenian scholar, Slavko Splichal, has coined a phrase “Italianization of the media” to describe the entire process.
46. Lack of independence of PSB organisations may result to some extent from the fact that in many post-Communist countries the legal system does not provide for independent public corporations, but at best for “public institutions” or “state companies”, directly or indirectly subordinated to parliament or the government, as their “founder”. Also, members of supervisory boards and directors-general/members of boards of management are usually political appointees (see the Appendix for some examples). However, also in Western countries members of supervisory boards are appointed by political bodies (parliaments or governments). By comparison, there are probably more cases in post-Communist countries than in Western European ones of at least a part of the composition of the supervisory body being designated by civil society organisations. Still, it could hardly have been expected that PSB organisations could in some way be detached from politics in in young democracies with inherently unstable political system.
47. In any case, most new public broadcasting organisations in post-Communist countries are in a state of crisis. It could be said that many of these organisations are empty shells, designed on paper to operate as PSB broadcasters but largely incapable of doing so. This can be ascribed to haphazard media legislation; political pressures; the weakness of civil society; traditional and badly designed organizational and management structures; frequent management and leadership crises, lack of funds and programming know-how; small television and advertising markets in most of the countries concerned; self-censorship of journalists and programme-makers; inadequate dedication of the staff to PSB values, including political impartiality and detachment, concern for the public interest, non-commercialism, high professionalism and high quality, etc.
48. In practically all post-Communist countries, commercial stations appeared before PSBs were created. Accordingly, the latter had to compete head on with commercial stations even as they were trying to reform themselves. In Hungary, the decision was taken in the Broadcasting Law of 1995 to shift one of MTV’s two terrestrial channels onto a satellite to make room for a commercial channel. Two strong commercial television channels, both with significant foreign involvement, were licensed in the first round of licensing. MTV, already the victim of bitter “media wars” (and of a system of governance which for long periods of time, as indeed in Hungarian public radio, proved incapable of appointing the President, leaving the organization rudderless), has never recovered from this change which left it powerless in the face of overwhelming competition.
49. Moreover, it has proved impossible to develop a managerial culture required to downsize the organisations, reduce staffing, cut costs and promote cost-effectiveness and efficiency. Labour laws prevent easy dismissal of personnel and in any case most attempts to carry through reform have become bogged down in political conflicts.
50. Another source of problems is inadequate funding. In many countries it has proved impossible to introduce a licence fee system; hence PSBs are financed from the state budget and advertising. In some countries, e.g. Hungary, the licence fee system has been eliminated (as an election promise which was kept when the party in question did win the election), leaving an already bankrupt public television and severely under-financed public radio almost completely at the mercy of the state budget. Elsewhere, as in Estonia, public television has already given up advertising and public radio is to follow suit under an arrangement, imposed by politicians under pressure from commercial broadcasters, whereby commercial stations are to contribute to their upkeep (via the State treasury) in return for a monopoly on advertising. With small populations and small advertising markets in most post-Communist countries where PSB has been introduced, the result is severe financial difficulties, as exemplified by the situation of Hungarian, Slovak or Czech PSB broadcasters, to name just a few. The only exception is Polish Television (with a 50% share of both the audience and of the television advertising market), but the fact that nearly 70% of its budget comes from advertising revenue means that its daytime and prime-time programming is strongly commercialized.
51. All in all, it has to be admitted that the introduction of PSB in post-Communist countries has amounted to an attempt to establish a media institution born in a completely different historical time and in altogether different social, political, cultural and technological circumstances. “Transplanted” media (or indeed social or democratic) institutions can hardly operate properly without the requisite social, political and cultural context. The overall result of this combination of circumstances could be called a lack of social embededness of public service broadcasting in post-Communist countries, depriving it of its natural social habitat and cultural context.
52. Civil society has on occasion taken to the streets in a number of post-Communist countries as a sign of protest against political control of, or interference into, broadcasting, as in the case of Rustavi-2, a private television station in Georgia in October 2001, that of the NTV station in Moscow in March , 2001, when between 10,000 to 20,000 Muscovites rallied in Pushkin Square holding signs that read “We want our NTV”, that of Czech public TV in 2000/2001, or of state radio and television in Moldova in 2002. However, what is really required is a long-term of consolidation of democracy and the emergence of the political culture of mature democracy, together with economic growth. All that will, some time in the future, create the conditions needed for PSB to come into its own in post-Communist countries.
53. That, however, also depends on what happens in Western Europe.
IV. PUBLIC SERVICE BROADCASTING IN WESTERN EUROPEAN COUNTRIES
54. Western European PSB is in the throes of a serious identity crisis for three main reasons:
§ None of the original social, cultural and technical circumstances in which PSB was born still remain; the chief original elements of the rationale for PSB existence (spectrum scarcity, etc.) are no longer valid today. PSB is further undermined by ideological change (circumstances are not favourable to suggesting measures that depend on involvement of the State), and socio-cultural ones (changing needs and expectations of the audiences and the individuals who compose them);
§ Demonopolisation of broadcasting and the emergence of multichannel radio and television first deprived PSB of its monopoly on the audience, and then on “PSB content”, at the same time forcing it into a competition for audiences and programming as well as, in many cases, advertising revenue;
§ With a change of focus and orientation of media policies (now more oriented to economic goals), and under pressure from the commercial sector, many governments are reorienting their policies vis-ŕ-vis PSB, failing to provide vital support and long-term security.
55. PSB has gone through a number of critical junctures in its history. The difference today is that it longer seems to be able to set, or seriously influence, the agenda or terms of the debate concerning its vital interests. More than that, it largely seems unable take part in this debate in a forceful, active, persuasive way.
Efforts by commercial broadcasters
56. It has to be admitted that the abolition of the State monopolies on broadcasting and the introduction of the present dual (public/commercial) system has had a beneficial effect on the media as a whole. Competition has stimulated innovation, allowed much greater variety and spurred the search for higher quality. This has been particularly obvious in Central and Eastern Europe. However, as the commercialisation of the media sector is reaching unprecedented levels under the effects of the global economy, PSB is increasingly becoming a rival in the eyes of those whose survival depends on profit.
57. A concise example of the position of commercial broadcasters can be seen in the memorandum “Broadcasting and Competition Rules in the Future EU Constitution - A View from the Private Media Sector”, submitted to the European Convention in May 2003 by a number of German and EU-wide associations and unions of private media. After pointing to the “Growing Similarity between Public and Commercial Broadcasters” (“Public and commercial broadcasters offer increasingly similar content”; “Public and commercial broadcasters fulfil increasingly similar social and market functions”), the memorandum claims that public broadcasters enjoy a number of privileges, which “can lead to considerable distortions of competition to the detriment of private broadcasters and other media players”, particularly when public broadcasters expand into the online sector and into e-commerce; the TV production business, or into cross-border digital satellite television. The memorandum concludes by calling for “fair competition between public and commercial media” and argues against introducing the 1997 Amsterdam Protocol No. 32 on the System of Public Broadcasting (the only EU legal document which expressly states that the existence of PSB is compatible with the Treaty) into the new Constitutional Treaty as unnecessary.
58. Another example concerns the plan of the VPRT, the association for German commercial broadcasters, to take their case against public broadcasters to Brussels. The VPRT believes that ARD - Germany’s biggest public broadcaster - should have its E55 million bid for top level football rights outlawed. The bid would see football back on a public channel for the first time in 14 years but the commercial channels say ARD should not be allowed to use licence fee money to outbid commercial rivals. Earlier the VPRT complained to Brussels that the public broadcasters - ARD and ZDF - should not be allowed to subsidise online ventures through the license fee. The VPRT seeks to reduce the licence fees, tighten taxation arrangements and block the Internet activities of the public service broadcasters.
59. ARD also had to abandon its plans to turn the Internet into “a third pillar”, alongside its traditional radio and television services. The KEF (the committee advising heads of governments of the German Länder who have control over national broadcasting fees paid by all radio and TV users) supported the point of view of commercial media and announced in 2002 that ARD should not spend its profits on additional web services that are not essential to support its core programming.
60. Similar developments have unfolded in the United Kingdom, among other countries, where commercial media companies were reported in September 2003 as planning to ask the Government for tough restrictions to be placed on the BBC’s internet activities, including a cost ceiling on its internet budget and a demand that it provide links to the news services of its competitors. This was in response to a BBC-commissioned report by KPMG, which argued that the corporation was not damaging its rivals’ internet services. The plan was to ask the Government to restrict the BBC’s use of its website to promote programmes, magazines and services.
61. Also in the UK, the Conservative Party announced in August 2003 that it party would switch off a swath of the BBC’s digital services, including its website and the youth channel BBC3, if it won the next general election. The party’s culture spokesman said he was “not persuaded” of the case for a public service website. The Conservative Party has also called for
divesting the BBC of its commercial arm, BBC Worldwide (whose profits account for close on 25% of the total revenue of the BBC), and believe the BBC should cut back on wide areas of its activities where it competes with commercial broadcasters.
62. Commercial broadcasters have for a long time tried to use EU competition law for their purposes. Over the years, they have lodged numerous complaints with the European Commission in connection with State aid provisions in the EU Treaty, relating either to financing schemes, or to thematic channels (Kinderkanal and Phoenix in Germany, BBC News 24 in the UK) launched by public broadcasters, claiming i.a. that use of licence fee money for such purposes was incompatible with the Treaty and that the launching of such channels amounted to foreclosure of markets. The Commission has rejected practically all such complaints, most recently those against Italy and Portugal.
63. The Amsterdam Protocol of 1997 and the European Commission’s subsequent Communication on the application of State aid rules to public service broadcasting of 2001 were designed to resolve the question of the compatibility of PSB with “the principles of fair competition and the operation of a free market”. However, they have only really opened the floodgates to further complaints and challenges to both public service broadcasting itself, and to the EU legislation on the subject.
64. However, a ruling of 24 July 2003 by the European Court of Justice in the Altmark case seems to offer hope of bringing more clarity to this EU competition law issue. According to this and other EJC rulings, public funding cannot be regarded as State aid under Article 87 of the EC Treaty where such funding compensates for the services provided by the recipient undertakings in order to discharge public service obligations. Only public funds granted to a PSB broadcaster above and beyond the cost of discharging the remit can recognized as State aid.
65. Following the Altmark decision, the European Commission suggested that it would have to be taken into account in the further refinement of the 2001 Communication on the application of State aid rules to public service broadcasting. This may help resolve a long-standing issue hanging over public service broadcasters in EU member states.
66. As a result of efforts by the private sector, it is no longer clear:
• whether PSB should be allowed to change and evolve beyond its traditional technologies and programme profiles or ways of delivering programming to the public;
• whether a special regulatory regime, in keeping with its special nature as a social, cultural and educational institution, should continue to be applied to it, or whether nothing but competition law is really needed;
• and indeed, whether one really needs public service broadcasting institutions in order to have public service broadcasting. This approach, promoting a “distributed public service” model of PSB, was once accepted also by the European Commission, seems now to be ruled out by its stress on the entrustment of clearly defined public service obligations to particular entities.
67. There is no question that the authorities, parliaments and European organisations are under considerable pressure from some quarters to answer “no” in each case. More than that, it is also bringing practical effects.
68. This points to a more profound reason for the growing opposition to PSB: the legitimacy of this typical product of the Welfare State is questioned also for purely ideological, one might even say dogmatic reasons. As a result, what is presented as an exception to the “normal” market arrangements today may easily be seen as an anomaly tomorrow, and a useless throwback to a long-gone era the day after tomorrow - all the more so if the evolution and modernization of PSB are prevented by the very people and bodies which are promoting this view of public service broadcasting. This would amount to a self-fulfilling prophecy: if PSB could be prevented from modernizing, it would become a relict of the past.
Media Policy and PSB
69. The following trends can be noted in current debates and action by governments and parliaments on public service broadcasting in European countries:
• There is a growing tendency to go beyond hitherto existing forms of PSB regulation and lay down the obligations of public service broadcasters also in other documents. There are initiatives to define PSB obligations more precisely, often by contracts, and follow up with accountability reports to Parliament and/or a regulatory agency. This is the situation in at least 13 countries (Finland, Norway, Turkey, Denmark, Luxembourg, Britain, Netherlands, Portugal, Switzerland and Italy). Considerations about a “Public Service contract” or the like are topical both in countries with long traditions for PSB and rather late introduction of private competition (like Norway, Denmark, Netherlands, Switzerland);
Public service broadcasters often see this as an additional burden, and an imposition, but it is also true that if the PSB regulatory framework is to form an exception to the general market- and competition-oriented media regulation, then there must be a clearly defined conception of such broadcasting.
• Basic discussions and structural decisions impacting on the very nature and indeed existence of PSB organisations.
70. “Contracts” take the form either of outright licences to broadcast, e.g. in the Netherlands, or as “programming licence”, or indeed of contracts or authorizations of some sort (e.g. France, the Flemish Community of Belgium). One can say that the more recent legislation concerning these “contracts” is, the more attention is paid to the financial aspects of the fulfilment of programming obligations and generally of the operation of the PSB broadcaster.71
71. For example, amendments to the French Freedom of Communication Act No. 86-1067 of 30 September 1986 adopted in 2000 provided for “agreements in respect of objectives and means” (contrats d’objectifs et de moyens) to be concluded by the government for 3 to 5 years with each PSB company. A financial accountability system has also been created as concerns observance of the agreement. Another case in point is the 5-year “management contract” concluded between the Flemish Community of Belgium and the Flemish Radio and Television Company (VRT).
72. We might also mention here the Application for Licence Fee Increase of the Irish public broadcaster RTE to the Minister for Communications, Marine and Natural Resources in 2002. It amounts to a full programme of activity and business plan. Its acceptance, and adoption of the proposed Public Service Broadcasting Charter, is designed in effect to supplement broadcasting legislation and constitute something coming close to a “service contract”. In addition, the Application contains a commitment to develop a new accountability system, involving very detailed reporting on programme and financial performance, as well as the establishment of an Audience Council, with effect from mid 2003, and the publication, on an annual basis, of a Statement of Commitments, promises to the audience that can be measured at year-end.
73. These solutions, while designed to offer PSB organisations financial stability and to end the debate on PSB by providing both a detailed definition of its obligations and precise accountability systems, can also – if and when used for this purpose – stifle PSB organisations or give governments strong instruments of affecting their situation. Such was the case in the Netherlands where the replacement of the licence fee system by financing via the State budget from a surcharge on the income tax was used by a subsequent government to cut funding for PSB (see para. 74). Also the finances of France Télévisions were seriously affected when the government of Prime Minister Raffarin decided not to implement the decision of the previous government to provide a sizeable grant out of the state budget to FT to develop new digital services, even though that grant had been included in the contrat d’objectifs et de moyens.
74. As for structural measures, it was announced in Portugal in May 2002 that public television would be liquated and replaced with a new entity, left with one domestic channel. It is also to launch a new regional channel and a RTP Memoria channel, drawing largely on RTP’s archives. A new “civic” channel is to be established, originally operated by RTP, but later by a consortium of various partners who would also have access to RTP’s production facilities. Also commercial broadcasters are to perform public service obligations. The effect of this new solution is uncertain. In Spain, draft legislation is being prepared according to which the concept of public service broadcasting as such is to be weakened. In April 2003, proposals were announced for privatisation of the news department of the regional Spanish public broadcaster in Valencia, Canal 9, and there were fears that the channel as a whole would be privatized. In the Netherlands, the government announced plans in 2003 for an annual cutback of 80 million Euros in four years. In Denmark, the liberal-conservative government has announced plans to privatise TV2. In Italy, the Berlusconi government has secured adoption by Parliament of a law on the privatization of RAI, though it was later vetoed by the President of Italy.
75. In the UK, the Labour government has seemed determined to maintain the licence fee system and the BBC in its present form at the time of the Royal Charter renewal in 2006. However, on January 15, 2003, Culture Secretary Tessa Jowell was reported as warning that the BBC would have to justify the licence fee when its charter comes up for renewal in 2006. Downing Street sources are now saying that a radically new funding arrangement had not been ruled out, and that Ms. Jowell’s remarks that scrapping the licence fee was improbable “have been misinterpreted”. Of course, one has to wait for the results of the charter renewal process itself to see how it will affect the BBC in practice.
76 No matter how all these measures and plans – especially of a structural nature - should be interpreted, their accumulation in a short period of time seems to indicate that a certain threshold may have been crossed in policy orientations vis-ŕ-vis public service broadcasting and that even the most radical moves, which once would have appeared unthinkable, can no longer be entirely be ruled out, now or in the foreseeable future.
V. PSB AND NEW TECHNOLOGIES
Three Stages of Technological Development
77. Here is one amongst many definitions given by different authors give to these stages:
§ (i) the “limited channel-flow world”, in which the viewer or listener is allowed a small number of programme streams or channels from which to 'catch' the programmes as they "flow" by; (ii) “the multiple channel flow world” in which the viewer or listener is allowed a much larger number of channels from which to catch media as they flow by. This world is enabled by the technologies of cable, satellite, and recently, digital compression, and assisted by electronic programme guides (EPGs); (iii) “the on-demand (neither channel, nor flow) world”, in which the viewer or listener is now able to choose from a range of individual media offers and when he wants. The viewer or listener becomes his/her own programme scheduler, though predetermined channel flows will still be present for those who want them. Some media content will need to be available at particular times, such as sports events, so we will still have available the power of the “shared moments”, but most will be there when and where we want them. The technology of the Internet, and super-versions of today's home Internet connections - broadband networks, will finally provide this world. Internet today is the fledgling version of this full service , no waiting, and on-demand world.
78. It is important to realize that the three stages are not consecutive in the sense that one will take abruptly over from the other. In fact, some European media consumers are already today using all three ways of consumption. Moreover, the precise timescales for the transitions between the different stages is impossible to predict, and will vary in different parts of Europe, due to differences in economic climates, tastes, population sizes, and existing infrastructures. Not all parts of Europe will enjoy the same kind of channel offer or timescale for the enlargement of services. There may also be different patterns for radio and television. Still, across the new eras, the content delivered will progressively include more “multimedia”. The services may also make more use of the technical capacity available for the viewer to interact with the programmes via his remote control.
PSB and Regulatory Responses to the New Technologies
79. Despite the objections of some (see paras. 57, 59, 61), it is usually accepted, though not always formally and in legal instruments, that no principle can be opposed to public channels conducting their activities in new types of broadcasting, digital technology, and the Internet, and in the creation of new content and interactive services. In fact, that they are needed to guarantee participation by everybody in the advantages of the digital revolution and to promote widespread take-up of that technology. It is also accepted that special attention must be paid to guaranteeing the presence and visibility of the public service in digital packages, programme guides or browsing systems.
80. Though wherever digital terrestrial broadcasting is introduced PSB organisations are usually given a multiplex of their own, in a large majority of countries digital (theme) channels are not defined in the legal remit (see Marcel Betzel, Programme performance of public service broadcasting and its mission in the digital age, presented at the 17th EPRA Meeting, Naples 8-9 May 2003). Besides the UK only in Spain (including Catalonia) digital programmes/activities are explicitly mentioned in the remit. In some countries digital channels can be regarded to be part of the PSB remit because reference is made to new technological developments in which PSB should take part if necessary or desired. This is the case for Finland, the Netherlands, Flanders, and Portugal. In France, three projects in the field of digital terrestrial TV will in near future become part of the cahier des charges. In Germany public service broadcasters are authorised to transmit their (analog) programme services digitally and are also authorised to create additional programme services using digital technology. There are two digital platforms (ARD DIGITAL and ZDF.VISION) which are run by public service broadcasters.
81. In all European countries, public service broadcasters are engaged in different Internet activities. Remarkably, there is a clear absence of legal provisions concerning Internet activities by PSB in most countries. Denmark, Spain and Austria are the only countries were the current remit states explicitly the role of PSB in Internet. In some countries Internet can be regarded to be part of the PSB remit because reference is made to new technological developments in which PSB should take part. This is the case for the Netherlands, Flanders, Catalonia, Portugal.
82. As already noted, the Internet services of PSB in Germany are surrounded by controversy. ARD and ZDF may legally offer media services primarily with programme-related content, but advertising and sponsoring are not allowed. Their activities go beyond these content restrictions, however. Believing they must prepare for the future convergence of television and Internet as part of their basic broadcasting services, they offer free-of-charge services such as live chats, E-commerce, SMS services as well as a news service financed by a commercial partner (T-Online). This development is viewed as distorting competition by those outside public service broadcasting.
83. The development of the new technologies faces PSB organisations with hard choices, also because of the costs involved. According to the EBU Digital Strategy Group, they need to make a conscious and planned move to become “multimedia”, rather than “single media” organisations, producing scalable media products that can be used for multiple delivery platforms. At the same time, public broadcasters must retain the basic feature of universality – of access and programming – in order to retain their relationship to the audience and to perform the cultural and social role of public broadcasting. Therefore, public service broadcasters must retain their generalist channels as their priority in the multimedia environment. Choice of media content will be greater in future, and generalist channels will inevitably have a smaller share audience. However, as already noted, willingness to continue serving the general public, including particularly late adopters of new technologies, is a fundamental test of the public service nature of PSB. Public broadcasters should, nonetheless, take advantage of new technologies to strengthen their existing programming - for example by adding new enhanced services to the existing channels and programmes.
84. For non-traditional delivery platforms (Internet, broadband, UMTS) public service broadcasters should decide which to support case by case. Some of these delivery mechanisms open useful opportunities for public service broadcasting, including for alliances.
85. In the future, media policy will face the issue of whether to reinvent PSB for the Internet age, for example as PSCP – “public service content provision”. This could take the form of “public service” Internet sites, or of EPGs/navigation systems creating “virtual channels” by offering access to “PSB content” on the great variety of programme offers.
VI. THE DEBATE ON THE FUTURE OF PSB
Three approaches
86. Three main schools of thought may be distinguished in this debate:
§ “Pure Public Service”, combining two approaches: (i) that of supporters of what they call true, unadulterated public service broadcasting, free from any admixture of commercialism and popular, mass-appeal programming, (ii) and that of the commercial sector and of some political forces;
The net effect of the implementation of both varieties of the “Pure Public Service” approach would be the positioning of PSB as a complement to commercial broadcasting, dedicated to redressing market failure by providing content commercial broadcasters cannot broadcast profitably.
§ “New Tasks for a New Age”; a number of new functions to be performed by PSB in the 21st century
§ The “Full Portfolio” model of PSB.
87. The “Full Portfolio” approach calls for extending the concept of public service broadcasting:
• in a technological sense (“presence on all platforms”, or “on all significant platforms”);
• in terms of its relationship to its audience (e.g. provision of a “personalized public service” via on-line delivery);
• in terms of content and types of activities: in addition to terrestrial free-to-air generalist mass-audience channels performing the basic public service and to free-to-air specialised channels complementing the generalist ones by offering a thematic service or serving a particular minority or social group, PSB organisations should offer Internet portals, web-sites and on-demand services offering free public service content. The law should also allow them to offer pay-TV channels and potentially engage in other commercial activities, serving as a source of additional revenue and fully regulated by competition law and fair trading rules.
88. Many elements of the “Full Portfolio” approach have won the support of international organisations, including the Council of Europe (see the Appendix), the European Broadcasting Union (e.g. in Media with a Purpose. Public Service Broadcasting in the Digital Era, a 2002 report of the EBU Digital Strategy Group), and of the European Union. A vision of PSB operating in conformity with EU competition law distilled from a number of documents (Tongue Report The Future of public service television in a multi-channel digital age, 1996; Resolution on the role of public service television in a multi-media society, European Parliament, 1996; Amsterdam Protocol, 1997; Report from the High Level Group on Audiovisual Policy, 1998; Resolution concerning PSB, Council and representatives of Member States, 1999; Communication on the Application of State Aid Rules to Public Service Broadcasting, 2001) can be summed up as follows:
§ PSB is directly related to the democratic, social and cultural needs of society and media pluralism;
§ Comprehensive mission of PSB: wide range of programming in order to address society as a whole;
§ Suitable balance of entertainment, culture, spectacles and education; natural overlap with commercial broadcasting in popular genres – sport, comedy, drama, news and current affairs;
§ PSB can legitimately seek to reach wide audiences;
§ PSB important in promoting new audiovisual and information services and the new technologies;
§ PSB organisations may legitimately compete on the market as long as public funding is not used to distort competition.
Quality and Distinctiveness
89. In a recent article in the UK “Observer” Magazine, the Chairman of the independent production company Endemol UK and Director of Channel 4 Peter Bazalgette whote: “There remain persuasive reasons for intervening with public service broadcasters such as the BBC and Channel 4 to ensure a range of interests are catered for. But technology is now putting power in the hands of viewers - they cannot and will not be dictated to ever again. Death to cultural totalitarianism. Let a thousand programmes bloom”.
90. Indeed, commercial broadcasters point at the fact that with digitalisation they are now able to offer an extraordinary range of programming and cater for all tastes and needs through specialised programmes and esrvices – in other words, there is “programme convergence” between the public and commercial sectors. An even more serious argument working against PSB is dumbing-down of quality. It is indeed justified to use public money in order to offer programmes of the sort of “Big Brother” and “Who wants to be a millionaire?”
91. The approach which defines PSB solely in terms of the programmes genres it offers is outdated. At issue is not the mere presence of “PSB genres” in the programme schedule, but also their quality, their availability at all times of the day, ease of access to them, lack of additional payment for their reception. Other aspects of distinctiveness include a high proportion of original and first-run production and a high proportion of domestic and European works. PSB must stand out as a broadcaster which offers works produced for its own audience, resonating with issues and references familiar to members of that audience and keeping them in touch with their own country, its culture, history and tradition. By the same token, it widens choice and complements the market through the pursuit of public service purposes.
92. In short, if the values, principles and ideals which PSB originates from, and which it stands for (including also non-commercialism, service to the civil society and democratic accountability), are represented in a very clear manner in its programming, in the way it is organised and operates, then its distinctiveness will be obvious for all to see.
93. Moreover, growing competition is most likely to change the present situation of a degree of “programme convergence” between PSB and the commercial sector. As noted by the British Independent Television Commission (in ITC Consultation on Public Service Broadcasting, 2000), “neither Channel 3 nor Channel 5 in the UK would probably be able to deliver PSB in the longer term, well beyond digital switchover": “If its market position erodes significantly, ITV's commitment to fund the less popular programmes in the PSB mix may diminish and some support from other sources may be necessary. ...”. Thus competitive pressures may leave the British audience, and even more so audiences in other countries, with a much narrower range of sources of “PSB content” than so far, at least as concerns generally accessible generalist channels.
VII. CONCLUSIONS AND RECOMMENDATIONS
Council of Europe
94. The Parliamentary Assembly of the Council of Europe has, over the years, adopted a number of recommendations which contained, among other things, important statements on public service broadcasting and the responsibility of the State for creating favourable legal, institutional and financial conditions needed for PSB to be able to perform its obligations. These are:
§ Recommendation 748 (1975) on the role and management of national broadcasting
§ Recommendation 1067 (1987) on the cultural dimension of broadcasting in Europe
§ recommendation 1147 (1991) on parliamentary responsibility for the democratic reform of broadcasting
§ Recommendation 1407 (1999) Media and democratic culture
§ Recommendation 1506 (2001) Freedom of expression and information in the media in Europe
§ Recommendation 1589 (2003) Freedom of expression in the media in Europe.
95. Various bodies of the Council of Europe have produced a variety of documents (see the Appendix) bearing on the subject of PSB in the digital era and in the Information Society.
96. 10 years after the 4th European Ministerial Conference on Mass Media Policy in Prague, it is time for the Council of Europe to produce a new major policy document on PSB, taking stock of developments since then and defining standards to apply in the coming years. The forthcoming Ministerial Conference on Mass Media Policy in Kiev could include the preparation of such a document in its Plan of Action.
97. Council of Europe bodies should closely monitor the situation of PSB in all member states and react at an appropriate level when principles of PSB independence, autonomy and impartiality are disregarded or violated.
98. The Council of Europe should continue to work closely with the European Union so that its freedom of expression standards and human rights approach are reflected in the EU’s activities. If the EU makes “stability of democratic institutions” a condition of entry, then it should specify what this means in practice in relation to PSB and require candidate and Member states to conform to this standard as closely as to any single market directive.
99. The Council of Europe should also support the ongoing work towards the preparation of an international instrument on cultural diversity, having regard to the unique contribution of PSB in promoting it. It should support the European stance in the WTO and GATS negotiations regarding audiovisual services which should not be considered purely as a commodity. Any liberalisation of the audiovisual market would intensify market pressure on PSB to a level which these organisations might not be able to withstand.
100. The Council of Europe should endeavour to ensure that the World Summit on the Information Society gives proper recognition to the issue of PSB as an important element of developing the Information Society and at the same time easing the shock of rapid change that it will involve.
Member States
101. Public service broadcasting in Europe needs a clear direction and a framework for the proper implementation of its remit. Policy and the legal, institutional and financial framework should be developed on the basis of extensive analysis of contemporary circumstances. Media policy concerning PSB should serve the public and national interest, and not any sectoral political or economic interests.
102. The situation of fledgling PSB organisations in Central and Eastern European countries requires special effort. It is not enough to expect them to conform to general European standards. For instance appointment of members of a PSB supervisory body by Parliament in an established democratic country with a highly developed political culture is a different process from the same procedure in an unconsolidated democracy. Appointment or nomination of members of broadcasting regulatory authorities and of supervisory and managerial bodies of PSB should, whenever possible, be taken out of the hands of politicians and entrusted to civil society and professional bodies. Though in highly politicized societies this procedure is not without its risks, it reduces the direct power of politicians over PSB. the development of civil society and rule of law as the only elements of a democratic system capable of driving forward the consolidation of democracy and maturation of political culture. This applies to PSB as much (or even more) as to any other field of life. Equally important are efforts to assist the professionalisation of journalists and other programme makers.
103. Digital technology magnifies the possibilities of PSB to perform its obligations. There is no justification for limitations on their use . The remit of PSB should come close to the “Full Portfolio” model, though commercial activities of PSB organisations may be unnecessary if funding is adequate to their needs. There must be clear realisation that PSB cannot perform its obligations properly without appropriate and secure funding.
104. It is no longer possible to isolate PSB from the market. Digital technology changes the value chain in the audiovisual sector and requires that PSB broadcaster become involved also in elements of the value chain other than programme production and channel assembly. Also, in the digital world, more and more delivery networks and digital gateways will be controlled by commercial entities. PSB organisations will have to enter into cooperation and alliances with such entities or they may find they are cut off from important segments of the audience. As long as core programme activities of PSB organisations are properly non-commercial and devoted to implementing the remit, additional commercial and economic activities are – assuming fair trading rules are observed – less likely to introduce the commercial logic into programming decisions than advertising or sponsorship. In order to operate on a global market dominated by a small number of global conglomerates, PSB organisations should be encouraged and facilitated in developing forms of international cooperation.
Public Service Broadcasters
105. There is no public service broadcasting without public service broadcasters – i.e. staff and management dedicated to the pursuit of PSB goals. It ultimately depends on programme makers whether a PSB organization will indeed perform a public service.
106. Public service broadcasters are overwhelmed by the speed of change and by the vicissitudes of broadcasting policy, as well as the pressure of the commercial sector and indeed by twists and turns of international (especially EU) policy vis-ŕ-vis PSB.
107. Present circumstances require them to be active: both in fighting off any attempts to impose political control on their organisations, and in developing and presenting a clear vision of how PSB should change to accommodate to new realities. This activity is less intense than it should be. As individuals and especially through their organisations and unions, broadcasters should by a very active partner in the current process of change.
108. Still, the primary responsibility rests with policy-makers and management: they cannot expect broadcasters to dedicate themselves to public service without creating conditions to make that possible and give real life to the values and principles of PSB.
Reporting committee: Committee on Culture, Science and Education
Reference to committee: Doc. 9514 and Reference No 2758 of 3.09.2002
Draft recommendation adopted by the committee on 9 January 2004 wit one abstention
Members of the committee: MM. de Puig (Chairman), Baronne Hooper MM. Prisacaru, Smorawinski (Vice-Persons), Apostoli, Banks (Alternate: Russell-Johnston) Barbieri (Alternate: Tirelli), Mrs Bemelmans-Videc, Berceanu Braga, Buzatu, Mrs Castro, MM. Chaklein (Alternate: Korobeynikov), Colombier, MM. Cubreacov, Dačic, Dalgaard, Mrs Damanaki, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Devinski, Mrs Domingues, Mrs Dromberg, Mrs Eymer, Mrs Fehr, Mrs Fernández-Capel, MM. Gadzinowski, Galchenko, Gentil, Mrs Glovacki-Bernardi, MM. Goutry, Gündüz I, Gündüz S, Gunnarsson, Mrs Hadziahmetoviċ, MM. Hegyi, Henry, Howlin (Alternate: Mooney), Huseynov R, Iannuzzi, Jakic, Jakovljev, Jarab, Jurgens, Mrs Katseli, Mr Kocharian, Mrs Labucka, MM. Legendre, Lengagne, Letzgus, Libicki, Livaneli, Mrs Lucyga, MM. Lydeka, Malgieri, Marxer, McNamara, Mrs Melandri, MM. Melnikov, Mestan, Mezihorak, Mrs Milotinova, Mrs Muttonen, Mr O’Hara, Mrs Ohlsson, MM. Podeschi, Rakhansky, Mrs Reps, MM. Rockenbauer, Rybak, Mrs Samoilovska-Cvetanova, MM. Schneider, Shybko, Sizopoulos, Mrs Skarbřvik, MM. Sudarenkov Tusek, Vakilov , Mrs Westerlund Panke, MM. Wodarg, ZZ (Andorra), ZZ (Georgia).
N.B. The names of those present at the meeting are printed in italics
Head of secretariat: Mr Grayson
Secretaries to the committee: Mr Ary, Mrs Theophilova-Permaul