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Recommendation 1855 (2009)
The regulation of audio-visual media services
1. The Parliamentary
Assembly recalls that all media regulation in Europe must respect
the right to freedom of expression and information as guaranteed
by Article 10 of the European Convention on Human Rights (ETS No.
5). The freedom to receive and impart information and ideas applies
regardless of frontiers.
2. This freedom constitutes a necessary requirement for democracy
and the cultural and social progress of each individual and society
as a whole. Restrictions to this freedom are only admissible as
far as they are necessary in a democratic society.
3. Traditional audio-visual and print media are increasingly
converging into new forms of electronic media for images, sound
and text which are accessible via different fixed or mobile platforms
using analogue or digital terrestrial transmissions, satellite or
cable. Much of what is now considered broadcasting may in future
be delivered over the Internet, where the user controls his or her
access to countless sources of content which know no geographic
boundaries.
4. Article 10, paragraph 1, of the European Convention on Human
Rights permits states to require “the licensing of broadcasting,
television or cinema enterprises”. The Assembly believes that broadcasting
and television in this sense should not include Internet radio or
web television, which should not require national authorisations.
Internet radio and web television should be treated like Internet-based
newspapers or websites with text, images and sound.
5. Technological progress is increasing the number of channels,
programmes and services accessible through audio-visual media. This
provides viewers and listeners with a wide choice of programmes,
comprising linear and on-demand services. However, more audio-visual
content does not necessarily mean greater plurality, diversity and
quality of content, which remain priorities for audio-visual policies.
6. The viewer, listener or reader of new audio-visual media services
is having to bear greater responsibility for the content he or she
may select and potentially even contribute to, while content regulation
through national regulatory authorities is becoming less feasible.
National legislators are, therefore, compelled to review their existing
regulation and set up new means for achieving their objectives regarding
audio-visual media policy, with the latter objectives also remaining
valid in the new media environment.
7. The Assembly supports in this context the Committee of Ministers’
Declaration of 20 February 2008 on the allocation and management
of the digital dividend and the public interest. When deciding on
the allocation of the radio-frequency spectrum, member states should
also balance the spectrum needs of various technologies relating
to both broadcasting and telecommunications. It will be particularly
relevant to look at the availability of the spectrum for countries
outside the European Union and, for all countries, how spectrum resources
can be allocated to optimise opportunities for public-service broadcasting.
8. Referring to the European Convention on Transfrontier Television
(ECTT) (ETS No. 132), the Assembly notes that technological progress
of electronic audio-visual media requires the revision of the ECTT
and has led to legislative changes at national level, as well as
to the new Audiovisual Media Services Directive for the member states
of the European Union (AVMS Directive).
9. The Assembly notes that the European Union AVMS Directive
has the main objective of ensuring freedom of services within the
internal market of the European Union in accordance with primary
European Community law. This approach differs from the ECTT, which
has the aim of ensuring freedom of transmission and retransmission
of broadcasting in Europe, regardless of frontiers, in accordance
with Article 10 of the European Convention on Human Rights.
10. Having noted the current progress in drafting an amending
protocol to the ECTT in order to transform it into a new Council
of Europe convention, the Assembly believes that the following considerations
should be taken into account:
10.1. the
possibilities for guiding the interpretation and supervising the
application of this new convention should be reinforced;
10.2. the “public service mission” for audio-visual media services
should be defined and explained;
10.3. the role of the Standing Committee should be re-examined
with regard to its supervisory function over the compliance of conventional
obligations and arbitration;
10.4. the transmission of on-demand audio-visual media services
should be treated in a comparable way to television broadcast services
and should not be subjected to the more restrictive provisions taken from
the AVMS Directive of the European Union;
10.5. guidance should be provided regarding the requirement
of programme services of broadcasters being “wholly or mostly” directed
towards the territory of a party with the intention of circumventing
the national laws of that party;
10.6. procedural safeguards, such as a prior opinion from the
Standing Committee or arbitration, should be required before a party
can take measures directed against a broadcaster established abroad for
having allegedly circumvented the receiving party’s national laws,
as far as such measures restrict the right to freedom of information
through audio-visual media services.
11. The Assembly invites the Parties to the ECTT to take this
recommendation into account when revising the ECTT.
12. The Assembly recommends that the Committee of Ministers:
12.1. forward this recommendation
to competent ministries;
12.2. allocate sufficient resources to the Standing Committee
set up by the ECTT to fulfil the required supervisory function over
the compliance of states parties with their contractual obligations;
12.3. invite interested non-member states to accede to the revised
convention with a view to extending the scope of this convention
to other countries;
12.4. instruct the competent steering committee to analyse future
challenges to the enforceability of existing broadcasting regulation
in the increasingly converging audio-visual media sector and develop policy
guidelines for new means of content control, including through media
self- and co-regulation, content search and filtering tools for
users, media literacy of users, public support for content of cultural quality,
and international co-operation against illegal content, for instance
in the framework of and through consideration of a possible protocol
to, the Council of Europe Convention on Cybercrime (ETS No. 185);
12.5. instruct its competent steering committee to analyse the
feasibility of setting up common standards among the Council of
Europe member states for commercial audio-visual content falling outside
the revised convention, as well as for audio-visual content produced
and shared publicly by users.
13. The Assembly invites the ministers participating in the Council
of Europe’s Ministerial Conference on the Media and New Communication
Services (Reykjavik, May 2009) to express their continued support
for:
13.1. regulating their audio-visual
media policies nationally as part of their general cultural policies, while
ensuring international co-operation and respecting the right to
freedom of information through audio-visual media services under
Article 10 of the European Convention on Human Rights and Article 19
of the United Nations International Covenant on Civil and Political
Rights;
13.2. ensuring, through appropriate regulation and practice,
the independence of their national regulators for the audio-visual
media sector from undue party political, governmental or commercial influences;
13.3. preserving the principle of public-service broadcasting
in the changing media environment and extending it further to audio-visual
media services as a whole.
14. The Assembly invites member states of the International Telecommunication
Union of the United Nations to:
14.1. advance
international co-ordination of the technological standards necessary
for the technological convergence of audio-visual media, while ensuring
the right to freedom of information regardless of frontiers under
Article 19 of the International Covenant on Civil and Political
Rights;
14.2. prepare for the World Radiocommunication Conference in
2011 decisions on the allocation of radio-frequency spectrum following
the analogue switch-off of broadcasting in many countries.