Abstract
This chapter describes the legal framework of all the EU countries with an analytical-comparative approach and focusses on two important issues to evaluate the independence and pluralism of the public broadcasters (decentralized organization of the broadcaster and method of funding). The existing wide range of solutions offers interesting insights for comparison that, starting from the data on the internal organization of the public broadcasters of the EU member states (composition of the management bodies, appointment procedure, term of office, etc.), leads to considerations on the way they operate and their relationship with state and local political institutions, namely, their governance. The cross-sectional and comparative analysis of legislation on the organization of Public service broadcasters offers a complete picture of the various solutions adopted by states.
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Notes
- 1.
Thus, it seems clear that the presence in Hamburg (under British occupation) of Hugh Greene, future Director General of the BBC, as head of Nordwestdeutscher Rundfunk, influenced the strategic choices of German public television (Carleton Greene 1969, p. 144). The preference for the Reithian model demonstrated by Arturo Carlo Jemolo throughout his presidency of the Committee on Culture, explain the centralized structure of the Italian broadcasting system, despite the regional organization introduced with the new Constitution. Similarly, the choice in favour of monopoly in France was promptly confirmed (and strengthened) by the centralizing policies of de Gaulle in the early decades of the Fifth Republic. On historical events: Smith (1995).
- 2.
In the parliamentary proceedings on the proposed amendments of the Dutch system, a centralized organizational model was found to be inadvisable because of the risk of political interference so strong that it could lead to the “Berlusconian model” (Political debates about the future of public broadcasting, in Hilversummary, December 2004, 1–3).
- 3.
After a Government decision on 11 June 2013 to close the public broadcaster ERT, described by the Minister responsible for the Media as “a typical example of lack of transparency and incredible waste” (Statement by the Deputy Minister of the Prime Minister and Government Spokesperson, Simos Kedikoglou, 11 June 2013, see Alexandros Economou, Greek Public Broadcaster in Crisis, MMR-Aktuel l 2013, 347680—beck-online) and following a series of court appeals to contain the effects of this decision (in particular those related to employees), on 19 July 2013, the new Law N. 4173 on Radio, Television and the Internet was passed. The Law created the broadcaster NERIT that operated from May 2014 to June 2015.
- 4.
The Social Democratic Party (Dansk Folkparti), which dominated the political scene from the post-war period to the 1980s, used the PSB as a vehicle to spread its ideals of equality of social conditions and the creation of efficient public services. When foreign satellite TV broke into the national market in 1988, Denmark responded to the break-up of its monopoly by strengthening the public sector, creating more than a second channel, but what was a actually a further public body (TV2), partly funded through advertising (decidedly ahead of the other Nordic countries). The privatization procedure that started in 2003 was sanctioned by the European Commission due to state funding of the TV2 broadcaster.
- 5.
In April 2012, the Dutch government adopted an amendment to Art. 2139 of the Media Act of 2008 (that came into force on 1 January 2013) that abolished the monopoly held by the public broadcasters on television programming. A key role was played by the Commissariaat voor de Media (Dutch Media Authority) acting on the initiative of the Ministry of Education, Culture and Science. The monopoly on programming was a legacy of the traditional Dutch pillar system, whereby broadcasters linked to political parties, churches and social movements were responsible for their own programming. Now they must communicate it to the NPO. On 14 February 2013, the Minister of Education, Culture and Science proposed a further reform of the 2008 law to modernize the public broadcasting system. Since 2016, budget cuts have led to a downsizing of NOS to 8 operating broadcasters instead of the former 21. In addition to NOS and NTR there are to be three new cooperative broadcasters and three new independent broadcasters. The “depillarisation” of Dutch society is also the result of cultural factors: in the same period, the entry into the market of new broadcasting associations that aim primarily to provide entertainment (symbolized by Radio Veronica) has dismantled the foundations of the broadcasting system.
- 6.
This is the way it was until 1 January 2015, the date of entry into force of the amendment to the Hungarian Media Act by which a new subject, Médiaszolgáltató Részvénytársaság Dune (Dune Media Service), replaced Televízió Magyar (Hungarian Television), Duna Televízió (Duna TV), Magyar Rádió (Hungarian radio) and Magyar Távirati Iroda (Hungarian News Agency), and became the provider for all the television, public radio and online content services. In fact, the merger into a single provider did not change the previous structure of the media, because the main actor of the Hungarian public broadcasters remained the Médiaszolgáltatás-támogató és Vagyonkezelő Alap (MTVA, Media Services and Support Trust Fund).
- 7.
Examples of broadcasters having a public legal nature are: Eesti Rahvusringhääling (ERR) in Estonia; Latvian Radio and Latvian Television (defined in Art. 57, para. 2 of the first law on the broadcasting system in 1995 “State non-profit companies with limited liability”); Lietuvos ir nacionalinio radijo Televizijos (LRT) in Lithuania (“non-profit public broadcaster,” according to Law n. I-1571, 1996); Czech Television in the Czech Republic (for Art. 1, Law 83/1991 ‘is a legal person managing its own property whose principal part is the property transferred from Czechoslovak Television’; Art. 1 of the 2005 Regulations provides that “Czech Television is a legal entity established as of 1 January 1992 by Act No. 483/1991 Coll., on Czech Television. Czech Television is a public institution operating television broadcasting”); Slovak Television in the Slovak Republic (Art. 2, para. 1 of the 2004 law states that it “is a public, national, independent institution providing public television broadcasting services in the fields of information, culture and education. (2) Slovak Television is a legal entity registered in the commercial register”); the Slovenian RTV Slovenia (Art. 2, para. 1 law of 2005 “is an independent legal person of special cultural and national importance governed by public law” and para. 4 “the only founder and owner of RTV Slovenia is the Republic of Slovenia”) and Hungary (even after the 2015 amendments).
- 8.
It is necessary to specify that I here use the term “regional” for generic references to TV stations operating in a subnational level of government, intermediate between the state and local authorities (Regioni, Comunidades Autónomas, Länder, etc.). When referring to individual countries I will contextualize PSB in the respective territorial law, remaining faithful to the terminology proper to that Country (e.g. the term “state” may refer to the TV of the member states of a federal state). I will not discuss “local” TV stations (namely those operating in a territorial area corresponding to a Municipality or Province, where such exists) because these are generally private televisions and radio stations.
- 9.
The general principles concerning pluralism, participation, the media democracy of Art. 10 ECHR are also relevant for regional audiovisual media, as the European Court of Human Rights has stressed (Gorzelik and Others v. Poland [GC], no. 44158/98, §92, ECHR 2004-I). Documents devoted to the protection of minorities such as the Framework Convention for the Protection of National Minorities (FCNM) and the European Charter on Regional or Minority Language (ECRML) consider the regional media as forms of promotion and protection of minorities.
- 10.
The Media Pluralism Monitor (MPM) project is carried out by the Centre for Media Pluralism and Media Freedom (CMPF) at the European University Institute. As regards the role of PSM, the four standards considered are: the involvment of the local community in the production and distribution of content; national news available in local languages; local correspondents; a balance of journalists from different geographical areas (http://cmpf.eui.eu/media-pluralism-monitor/).
- 11.
The reform began with the amendment of the Media Act 2008 proposed by the Ministry of Education, Culture and Science (Regulation of the State Secretary for Education, Culture and Science, 11 June 2014, n. WJZ/634652 (10487).
- 12.
I will therefore use the categories of federal, regional and unitary states in a descriptive and non-prescriptive perspective.
- 13.
This made it possible to outline the following regional television models (of both public and private broadcasters): (1) “Deconcentrated television” (production output by regional TV stations dependent on central management decisions, e.g. ERT in Greece prior to its closure); (2) “Decentralized television” (regional television stations produce local news programmes and collaborate on the production of reports for central news programmes, e.g. RAI 3 in Italy, RTVE in Spain); (3) “Regional television” (production output by regional TV stations is greater than model 2 and includes cultural, entertainment and sports programmes, e.g. BBC Scotland or TVE Catalunya); (4) “Federal television” (regional stations that produce programmes for the national broadcasting system and extended programmes for their own regions, working or broadcasting as members of the national channel or central network, e.g. the German Länder); (5) “Autonomous television” (independent regional television stations that broadcast their own programmes across their respective regions, e.g. the Spanish autonomous channels); (6) “Supra-regional, national and/or international regional television” (regional TV stations that broadcast not only for their own region but also at a more extended level, be it national or international, via satellite, to other parts of Europe, e.g. the third channel of certain German Länder broadcast via the Astra satellite to other Länder and in Europe, as well as some Spanish autonomous channels broadcast via the Hispasat satellite or the channels RTBF e BRT of the Belgian communities); and (7) “Local regional TV” (regional television stations operating at a more “localized” level and generally private). This classification is still broadly viable, while certain parts have acquired historical value (due to the transition to digital terrestrial television). For further detail: Garitaonandía and Moragas (1995), based on the leading research of scholars of Communication studies such as: Stephane (1983), Musso (1991), Zimmerman (1990), and Garitaonandía (1993, pp. 277–294).
- 14.
In the research on regional public broadcasters (commissioned by Circom Regional at the Media and Journalism Institute of the Faculty of Communication Sciences of the University of Italian Switzerland), for each state the following were analysed: the regulatory framework; the territorial level of television coverage; the structure of the organization(s); the means of financing; audience results; the prospects of digitization. The results were processed on the basis of some parameters such as: (a) the independence of the regional broadcasters from the national television stations (as in Spain, Germany, Denmark, the Netherlands and Portugal) as opposed to decentralization (this is the case, among others, of Italy, the United Kingdom and France), to point out that there are “composite situations that vary from case to case”; (b) programming, namely “the degree to which regional offices are used for national activities” (this category includes experiences of federal states such as Switzerland, and “regional” states such as Spain and the United Kingdom, and tendentially centralized states like France and Sweden); (c) relations with regional institutions (the reference is to the interference and the degree of control exercised by the level of government corresponding to the television company (e.g. the power of appointment exercised by regional assemblies, as well as participation in the financing of public broadcasters); and (d) the breadth of regional activity (again, under other guises, the difference is present between television organizations that manage their own television channels and the regional offices of broadcasters).
- 15.
Elected pursuant to Titre II of Loi n. 83-675 of 26 July 1983 “relative à la démocratisation du secteur public”.
- 16.
One of the foremost innovations was the creation of a supervisory council to ensure the independence from the Government of the new public broadcaster, responsible for drawing up a five-year strategic plan, the adoption of a favourable opinion on the budget proposal and the final decision on the nominations of Board members. The members of the Supervisory Board are chosen as follows: the first step is the issue of a public call and the drafting of a list of candidates to be submitted to the Minister in charge, who then proposes the names of 7 members. The final decision is taken by simple majority in a parliamentary committee formed by the President and the Vice-Presidents of the Chamber, the President of the Commission itself and the leaders of the political parties. The Board and the Director-General of NERIT are selected among the candidates who responded to the call launched by the President of the Supervisory Council.
- 17.
Incompatibilities with office in constitutional bodies or membership of certain institutions directly or indirectly related to the broadcasting industry are precisely regulated (e.g. in the Czech Republic, the members of the Czech TV Board cannot concurrently be “members of Bank Council of the Czech National Bank, any public administration employee, member of the Council of the Czech Republic for Radio and Television Broadcasting, member of the Czech Radio Council, member of the Czech Press Agency Council, Director General of Czech Radio, member of the Supervisory Commission of Czech Television or Czech Radio”); shareholders/owners of any company or companies operating in the communication sector or persons with previous criminal convictions. Often, nationality requirements are specified (e.g. Bulgaria, Lithuania, Hungary).
- 18.
The principal constraints for the office of Director-General include membership of political parties, which must be suspended for the duration of tenure. Frequently there are also specific requirements for holding this position (degree, specialization) and a period of experience in agencies and organizations working in the field.
- 19.
Data are taken from the EBU Funding of Public Service Media Report 2016 e EBU Licence Fee Report 2017.
- 20.
Revenues are broken down as follows: licence fee 96%; other commercial revenue 2%; other revenue 2%.
- 21.
Act relating to broadcasting and audiovisual on-demand services (the Broadcasting Act), last amended by Act 2015-06-19-65. Revenues are as follows: licence fee 97.2% commercial activities 2.3%.
- 22.
Law n. 472/2012 modifying the Act on the State Television and Radio Fund.
- 23.
From January 2017, the fee is governed by the new Agreement which includes some changes, such as the removal of the licence fee for over 75s with an estimated cost of GBP 725 million for the BBC. The BBC estimates that at the end of 2021 the share of public funding will thus be reduced by 10% in real terms. Although the fee is the main source of funding for BBC, its commercial subsidiary BBC Worldwide contributed 20.5% of the total. It generated revenues of over GBP 1 billion and profits of GBP 133.8 million in 2015/2016 according to the BBC Worldwide Annual Review.
- 24.
The Government announced that a public consultation in October 2017 would gather comments from interested parties in order to simplify the rules for advertising on television.
- 25.
The legislation had a tricky passage through Parliament even before the law came into effect. In fact, President Sarkozy (through the Minister of Culture and Communication) asked the outgoing President of France Télévisions, Patrick de Carolis, to anticipate the application of the law by means of an extraordinary resolution of the Board of Directors (thus on 16 December 2008 the Board of Directors decided to abolish advertising between 20:00 and 06:00 on four of the group’s five networks, with the exception of France O).
- 26.
In fact, a paradoxical situation has occurred. Thanks also to the crisis, the estimates have proved inaccurate (of the €800 million of advertising, the lion’s share—€480 million—would go to private national networks Tf1 owned by Martin Bouygues, a personal friend of the President—and M6, of the German group Bertelsmann; €160 million to radio, print and billboard, €80 to the Internet and €80 on digital terrestrial channels). Furthermore, audience ratings on public networks have not increased.
- 27.
With the decision of 11 February 2010, the Council of State annulled the resolution of the Board of Directors on 16 December 2008 that had anticipated the abolition of advertising between 8 pm and 6 am. The clash between Government and Parliament was already apparent during the conversion process: the National Assembly, on 17 November 2010, approved an amendment against the Government’s proposal, ruling in favour of maintaining advertising during the day; on the contrary, the Senate, on 4 December 2010, approved an amendment that provided for the complete abolition of advertising starting from 1 January 2016 (a choice then confirmed by the Joint Committee). Article 167 of Finance Loi n. 2010-1657 of 29 December 2010 again amended Art. 53, para. 6 of Loi 86-1067.
- 28.
There are many variables: the Ministry of Culture with the approval of Parliament’s Finance Committee, in Denmark; the Ministry of Transport and Communications, in Finland. In France, Article 29 of Law 258/2009 amending Art. 1605 of the general tax code set a licence fee that is then indexed each year on the consumer price index (provided for in the economic, social and financial report annexed to the draft Finance Law). In Italy with Law 208/2015 (2016 Stability Law) the cost of the licence fee was set at €100. In the United Kingdom, the fee is negotiated with the Ministry of Culture, Sport and the Media for a six-year period but is deliberated annually by the Parliament in the Appropriation Act. In Sweden the cost of the licence fee value is decided every three years by Parliament on the basis of various inputs including: the Annual report provided by SVT; reports provided by academic experts on the needs of the public service broadcaster; Parliament’s working groups dedicated to ensuring funding for the television broadcaster that must be adequate but not disproportionate (according to EU rules).
- 29.
In Germany, the federal structure affects the structure of the funding system of PSB. The rate of the fee is established by the KEF, a Commission made up of 16 experts, through a complex procedure divided into three phases: (a) every 2 years the public state broadcasters notify the KEF of the estimated financial requirements; (b) the KEF verifies that they are in line with the principles of economic efficiency (Article 14 RstV) and makes a “recommendation” to the governments of the Länder about the level of the fee; and (c) the KEF determines the cost of the licence fee for the next period and proposes it to the Länder. Based on the inter-state agreement, the ultimate decision on the licence fee payable is up to the Parliaments of the Länder (Art. 7, para. 2 RfinStV). The Broadcasting Committee of the Land may disagree from the KEF proposal by advancing their reasoning. The new fee (Rundfunkbeitrag) was introduced on 1 January 2013. Germany was the first EU country to introduce a system for calculating the fee linked to residence (the so-called household charge). The reform was considered a success in generating more revenues for PSB, which allowed a reduction of the fee of EUR 17.50 per month from 1 April 2015. In April 2016, the KEF proposed a further decrease to EUR 17.20 monthly for the period 2017–2020, but in October 2016 was rejected by the Länder Government. The fee therefore remains unchanged at EUR 17.50 per month up to 2021.
- 30.
On 8 January 2016, an amendment to the Act on Radio and Television—a temporary solution awaiting an overall reform of PSB—has also regulated the public media financing system, modifying the licence fee rate.
- 31.
In Switzerland, in 2011 the Federal Council had entrusted the collection of the fee to the company Billag, a private company wholly owned by SWISSCOM, a Swiss telecommunications operator, 51% controlled by the state. Following a public tender, starting from 2019, Billag will be replaced by a private company called SERAFE to collect the property tax.
- 32.
For enterprises, the fee is based on turnover: companies with less than CHF 500,000 per year are exempt and account for around 75% of Swiss companies. This meant a reduction in the cost of the rent paid by residents: from CHF 462 to around CHF 400 per year.
- 33.
With the judgment of 30 January 2008, the Court rejected a petition of unconstitutionality of the application of the fee to the PCs and recognized the competence of the specialized Courts to rule for which devices the licence fee would be applicable (BvR 829/06). The early rulings of the state administrative Courts were conflicting: that of the Court of Wiesbaden of 19 November 2008 (case n. 5 K 243/08.WI) did not consider PCs as devices for receiving television signals while that of the Ausbach Court of 10 July 2008 (case n. AN 5 K 08.00348) believed that a PC capable of browsing is a device that allows the user to receive and watch TV programmes on the Internet.
- 34.
Public funding 68%—Advertising 23%—Other commercial activities 3%—Other revenue 6%.
- 35.
The tax is levied by the Finnish revenue agency then transferred to the State Fund for Radio and TV and finally turned over to YLE after deducting the VAT. The rate of the tax is frozen until 2019 is calculated on 0.68% of income and must not exceed €140.
- 36.
Ex Art. 70 L. 138/24 of 1998, the loan is made up as follows: (1) a special broadcasting fund in which the fees paid by the citizens are added to the electricity bill; (2) subsidies from the state budget; (3) revenues from commercial activities and sponsorships; (4) additional revenues related to additional broadcasting activities; (5) donations and legacies; and (6) interest and other revenues related to radio and television activities and of a private nature.
- 37.
The mass media Law of 2010 provides the following sources of funding (Article 70): state subsidy; revenues from economic activities; donations from natural and legal persons, including foreigners; other forms of funding provided for in regulatory agreements. In addition, there is advertising with some restrictions.
- 38.
Law I-1571 of 1996 envisaged a licence fee, but this method of funding has never been fully implemented because of the annual revisions that altered the part concerning funding. The Law of 22 December 2005 provides for a new system of mixed funding composed of various sources (Article 15): a “subsidy” coming out of the state budget (the amount of which is decided annually by the Parliament); publishing and programming activities; sponsorships; commercial and economic activities; advertising (with some limitations). The proportion of public funding is the most significant: 90.6%—Commercial 9.3%—Other sources 0.1%.
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Pavani, G. (2018). The Organization of the Public Broadcasters. In: The Structure and Governance of Public Service Broadcasting. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-319-96731-8_5
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