Resolution 1387 (2004)1
Monopolisation of the electronic media and possible abuse of power in Italy
1. Italy is a founding member of the Council of Europe and strongly supports
the ideals for which it stands. The Parliamentary Assembly is therefore concerned
by the concentration of political, commercial and media power in the hands
of one person, Prime Minister Silvio Berlusconi.
2. The Parliamentary Assembly cannot accept that this anomaly be minimised
on the grounds that it only poses a potential problem. A democracy is judged
not only by its day-to-day operations but by the principles the country upholds with
regard to its own citizens and internationally. The Assembly recalls
that, in accordance with Article 10 of the Convention for the Protection
of Human Rights and Fundamental Freedoms and the case-law of the European
Court of Human Rights, states have a duty to protect and, when necessary,
take positive measures to safeguard and promote media pluralism.
3. The Assembly deplores the fact that several consecutive Italian governments
since 1994 have failed to resolve the problem of conflict of interest and
that appropriate legislation has not yet been adopted by the present parliament.
It disagrees that the leading principle of the Frattini Bill currently under
consideration – that only managers, not owners, should be held responsible – provides
a genuine and comprehensive solution to the conflict of interest concerning
Mr Berlusconi.
4. Through Mediaset, Italy’s main commercial communications and broadcasting
group, and one of the largest in the world, Mr Berlusconi owns approximately
half of the nationwide broadcasting in the country. His role as head of government
also puts him in a position to influence indirectly the public broadcasting
organisation, RAI, which is Mediaset’s main competitor. As Mediaset
and RAI command together about 90% of the television audience and over three
quarters of the resources in this sector, Mr Berlusconi exercises unprecedented
control over the most powerful media in Italy.
5. This duopoly in the television market is in itself an anomaly from an
antitrust perspective. The status quo has been preserved even though legal
provisions affecting media pluralism have twice been declared anti-constitutional
and the competent authorities have established the dominant positions of
RAI and the three television channels of Mediaset. An illustration
of this situation was a recent decree of the Prime Minister, approved by
parliament, which allowed the third channel of RAI and Mediaset’s Retequattro
to continue their operations in violation of the existing antitrust limits
until the adoption of new legislation. Competition in the media sector is
further distorted by the fact that the advertising company of Mediaset, Publitalia ’80,
has a dominant position in television advertising. The Assembly deplores
the continued exclusion of a potential national broadcaster, Europa 7, winner
of a 1999 government tender to broadcast on frequencies occupied by Mediaset’s
channel, Retequattro.
6. The Assembly believes that the newly-adopted “Gasparri Law” on
the reform of the broadcasting sector may not effectively guarantee greater
pluralism simply through the multiplication of television channels in the
course of digitalisation. At the same time, it manifestly allows Mediaset
to expand even further, as it gives the market players the possibility to
have a monopoly in a given sector without ever reaching the antitrust limit
in the overall integrated system of communications (SIC). The Assembly notes
that these concerns led the President of the Republic to oppose the previous
version of the law.
7. The Assembly is particularly concerned by the situation of RAI, which
is contrary to the principles of independence laid down in Assembly Recommendation
1641 (2004) on public service broadcasting. RAI has always been a mirror
of the political system of the country and its internal pluralism has moved
from the proportionate representation of the dominant political ideologies
in the past to the winner takes all attitude reflecting the present political
system. The Assembly notes with concern the resignations of the president
of RAI and of one of the most popular journalists in the country in protest
against the lack of balanced political representation in the Council of Administration
and against the political influence over RAI’s programming.
8. While the printed media
in Italy has traditionally provided greater pluralism and political balance
than the broadcasting sector, most Italians receive their news through
the medium of television. The high cost of newspaper compared to television
advertising is having a damaging effect on the Italian printed media. However,
the Assembly wishes to record its approval of government measures to help
small- and medium-sized newspapers and other measures to boost newspaper
readership.
9. The Assembly is extremely concerned that the negative image that Italy
is portraying internationally because of the conflict of interest concerning
Mr Berlusconi, could hamper the efforts of the Council of Europe aimed at
promoting independent and unbiased media in the new democracies. It considers
that Italy, as one of the strongest contributors to the functioning of the
Organisation, has a particular responsibility in this respect.
10. The Assembly points out that several international bodies, such as the
OSCE representative on Freedom of the Media and, most recently, the European
Parliament, have expressed concerns similar to its own. It welcomes the measures
for safeguarding media pluralism proposed in the European Parliament resolution
on the risks of violation, in the European Union and especially in Italy,
of freedom of expression and information (Article 11 (2) of the Charter of
Fundamental Rights) of 22 April 2004, namely that the protection of media
diversity should become a priority of European Union competition law.
11. The Assembly therefore calls on the Italian Parliament:
i. to pass as a matter of urgency a law resolving
the conflict of interest between ownership and control of companies and
discharge of public office, and incorporating penalties for cases where
there is a conflict of interest with the discharge of public office at
the highest level;
ii. to ensure that legislation and other regulatory
measures put an end to the long-standing practice of political interference
in the media, taking into account in particular the Committee of Ministers’ Declaration
on freedom of political debate in the media, adopted on 12 February 2004;
iii. to amend the Gasparri Law in line with the principles set out in
Committee of Ministers’ Recommendation No. R (99) 1 on measures to
promote media pluralism, in particular:
a. by avoiding the emergence of dominant positions in the relevant
markets within the SIC;
b. by including specific measures to bring an end to the current
RAI-Mediaset duopoly;
c. by including specific measures to ensure that digitalisation
will guarantee pluralism of content.
12. The Assembly calls on the Italian Government:
i. to initiate measures to bring the functioning of RAI into line with
Assembly Recommendation 1641 (2004) on public service broadcasting, with
the declaration of the 4th European Ministerial Conference on Mass Media
Policy in Prague and with Committee of Ministers’ Recommendations
No. R (96) 10 on the guarantee of the independence of public service
broadcasting and Rec(2003)9 on measures to promote the democratic and social
contribution of digital broadcasting;
ii. to give a positive international example
by proposing and supporting initiatives within the Council of Europe and
the European Union aimed at promoting greater media pluralism at European
level.
13. The Assembly asks the Venice Commission to give an
opinion on the compatibility of the Gasparri Law and the Frattini Bill with
the standards of the Council of Europe in the field of freedom of expression
and media pluralism, especially in the light of the case-law of the European
Court of Human Rights.
1 Assembly
debate on 24 June 2004
(23rd Sitting) (see Doc.
10195, report of the Committee
on Culture, Science and Education, rapporteur: Mr Mooney; and Doc.
10228, opinion of the Committee
on Legal Affairs and Human Rights, rapporteur: Mr Ates).
Text adopted by the Assembly on 24 June 2004 (23rd Sitting).
