22 August, 2018
Submitting online media to audiovisual media regulation is not compliant with European practice
On 20 August 2018, the Media and Internet Division of the Council of Europe has published a study titled "Media regulatory framework and the online media - The Macedonian case". It has been prepared at the request of the Agency for Audio and Audio-visual Media Services (AAAMS), the audiovisual regulator based in Skopje, within the scope of the Joint Project “Reinforcing Judicial Expertise on Freedom of Expression and the Media in South-East Europe (JUFREX)” funded by the Council of Europe and the EU. The study was commissioned to independent expert Jean-François Furnémont, Founding Partner of (and Senior Consultant at) Wagner-Hatfield.
The study contains three chapters:
Context and objective: The audiovisual landscape in FYR Macedonia is governed by two laws: the Law on Audio and Audiovisual Media Services and the Law on Media, both adopted in 2013. These laws were criticised by several international organisations for opening up the possibility of regulating media which traditionally fall outside the scope of the applicable regulatory texts. Consequently, in January 2014 several amendments to the Media Act were adopted in order to exclude the concept of "electronic publication" - initially included in its material scope. The debate resurfaced in 2016 with the adoption of the Electoral Code, which imposes not only on audiovisual media service providers but also on "Internet portals” the obligation to provide a fair, balanced and impartial coverage of election campaign and imposes on the AAAMS to monitor this obligation. The regulator concluded that it was not in a position to fulfil this task, as neither the Electoral Code nor any other law defines what an “Internet portal” is. It is against this background that the Macedonian regulator requested the Council of Europe for an expert opinion in the matter, taking stock of the European standards in this field and formulating subsequent recommendations with a view to possible amendments to the existing Macedonian regulatory framework.
Benchmark: the report highlights that the material scope of the media regulatory framework in the EU Member States is limited to audiovisual media services as defined by the AVMS Directive and does not include content requirements applicable to online media when they are not mainly audiovisual media services. A comparative table listing the definitions of online media or similar concepts, the respective role of NRAs beyond audiovisual media services and the relevant case-law or guidelines on the scope of media regulation throughout the EU-28 demonstrates however that in a few Member States (Austria, Croatia, Finland, Hungary, Latvia, and Slovenia) some definitions of online media (or similar concepts) are provided. Yet, this does not indicate that there is some form of content regulation similar to the one which is applicable to audiovisual media services providers. The objective of such provisions is rather to prevent the emergence of sector-specific content regulation for print or online press and to safeguard freedom of expression. The study also details the EU (Article 1(1)(a) of the AVMSD and relevant case-law such as New Media Online and Peugeot Deutschland) and the Council of Europe standards in the field, both excluding online media from the material scope of the media regulation.
Recommendations: it appears from both the European and international benchmarks that the current material scope of the Law on Audio and Audiovisual Media Services and of the Law on Media is aligned with international practices and does not require any modification. Despite the existence of some regulatory instruments in a few EU Member States, which might be considered as creating a pre-condition for regulating online media, the only purpose of such laws would be to find the most appropriate way to guarantee freedom to receive and impart information while safeguarding basic public policy objectives such as the prohibition of hate speech, the uncontrolled dissemination of pornography or the management of specific threats to national security. In any case, such legal provisions do not tend to impose to online services obligations similar to those which traditionally apply to audiovisual media services.
Among the general recommendations formulated towards policy makers are the following: the need to keep freedom of media as the main public policy objective, the need to respect the case-law of the European Court of Human Rights, the need to keep administrative obligations imposed on the media to minimum requirements, and the need to support self-regulation.
Source: CoE Website