Two European Court of Human Rights' decisions on pluralism & political programmes on public service media

posted on 13 September, 2021   (public)

The Court recalls the crucial role of pluralism and takes the evolution of the Italian public broadcaster practice into account

On 31 August 2021, in two cases - Associazione Politica Nazionale Lista Marco Pannella v. Italy (application no. 66984/14) and in Associazione Politica Nazionale Lista Marco Pannella and Radicali Italiani v. Italy (application no. 20002/13) - the European Court of Human Rights was called upon to assess political pluralism and freedom of expression within the Italian public service broadcasting programmes.

Based on the Council of Europe's Recommendations Rec (2007)3 on the remit of public service media in the information society and Rec (2012)1 on public service media governance, the Court recalls that when private broadcasters are not in a position to offer a real alternative, the State, as the ultimate guarantor of pluralism, has the duty, for the sake of democracy, to provide a public forum of discussion allowing the broadest opinions to be expressed (Manole & others c. Moldova, no13936/02, § 101).

Emphasising the crucial role of pluralism, the Court also takes into account in the two cases the evolution of the format and concept of political debates in the audiovisual landscape to assess the obligation to provide public access to all political opinions and expressions.


The cases:
► The facts: Two political associations have lodged a complaint for a breach of their right to impart their ideas and opinions following the discontinuance of political communication programmes on the public service channels, outside of the electoral period.
► The Court's judgment: The Court noted that this discontinuance is the result of an inaction from the "oversight commission" to provide the applicable criteria to the public service broadcaster and had thus been a political choice from the Parliament.
The Court emphasised that this programme change is consistent with the general evolution of the public service channels which now afforded other possibilities for the expression of public political debates, such as current-affairs programmes, giving at the same time more editorial autonomy to the channel. Moreover, the applicant did not suffer from a specific damage as all political groups had been affected by this discontinuance.
► In conclusion, there had been no breach to the right to freedom of expression – Article 10 of the European Convention of Human Rights.
However, the Court pointed out the absence of effective legal remedy in the Italian framework to complain against the discontinuance of political communication programme and concluded that there had been a breach of Article 13 of the Convention – right to an effective remedy.

► The facts: The complaint concerned mainly three main talk shows broadcast between April and June 2010 on the three general-interest channels of the RAI where representatives of the applicant had not been invited, unlike other political movements. AGCOM first rejected the complaint after assessing the overall presence of the association across all current-affairs programmes broadcast by the channels during the named period. After a Court order, AGCOM finally requested RAI to invite the association to participate to two of the talk shows, the third being since then removed from the channel programme.
► The Court's judgment: Acknowledging the growing leading role played by current-affairs programmes in the national political debate, the Court pointed out that the internal practice applied by AGCOM demonstrated that the "political subjects" benefit from an increased protection of their access when it comes to specific current-affairs programmes, such as the ones concerned in the present case – namely, seasonal and periodic programmes identifiable by the public through a defined structure and concept.
As a consequence, the Court held that the absence of the association from three very popular television programmes had, if not excluded from, at least highly marginalised it in media coverage of political debate.
► In conclusion, the measures taken by the regulator were not enough to redress the imbalanced situation and there had therefore been a violation of Article 10 of the Convention.

  • *The Italian framework in a nutshell:
The Italian legislative framework distinguishes between two kinds of TV programmes:
► Political communication programmes: aimed at spreading opinions of political forces represented at the Parliament, strict equality of access and allocation of broadcasting time applies.
Current-affairs programmes: aimed at discussing news, societal or political issues, the channel has more autonomy regarding the choice of topics, guests and allocation of time.
On the one hand, the “oversight commission”, a political body, provides to the public service broadcaster - RAI - the criteria to apply for the organisation of the political communication programmes, outside of the electoral period. On the other hand, the national regulatory authority - AGCOM - has the duty, in both types of programme, to ensure the respect of pluralism and the equal access to these programmes for all "political subjects".

Source: The European Court of Human Rights