When law meets practice: EBU study on the legal regime of Article 10 ECHR and public service media

posted on 25 February, 2014   (public)

When law meets practice: EBU study on the legal regime of Article 10 ECHR and Public Service Media

The European Broadcasting Union (EBU) has recently entrusted a study concerning public service media under Article 10 of the European Convention on Human Rights (ECHR) to Professors Walter Berka of the University of Salzburg and Hannes Tretter of the University of Vienna. The background of this study was the Greek government's decision to shut down the public broadcaster Elliniki Radiofonia Tileorasi S.A. (ERT). This decision raised the question of its conformity with Article 10 which guarantees the exercise of freedom of expression in the media.

The study provides an in-depth analysis of the European legal instruments in the field, but concludes that they are insufficient to ensure to freedom of expression an adequate legal regime with regard of the importance of that liberty in a modern democracy. Media remain the most important instrument in the public sphere enabling citizens to exercise their right to information guaranteed firstly by national legal systems and additionally by Article 10.

Therefore, once a State decides to establish a system of public service broadcasting, it automatically benefits from the protective regime of Article 10 ECHR. If a government could at any moment decide to close down a public service broadcaster without appropriate procedure, journalists would find themselves without any effective protection and under constant threat. Such an interference would be an obvious violation of the freedom of expression.

State interference may however be justified, but only if based on the cumulative conditions set out in the second paragraph of Article 10. The latter protects public broadcasters from arbitrary or disproportionate interference by State authorities. Nevertheless, it is indispensable to verify whether the contested decision has a significant impact on media pluralism within the State in question. If this is not the case and the threatened media holds an insignificant market share, the interference may be justified as this shortcoming in terms of pluralism would not not jeopardise the overall balance of the media landscape.

The study concludes that Article 10 ECHR has a limited scope with regard to public service media, owing to its subsidiary character. It does compel States to guarantee a media landscape that is shaped according to the principles of pluralism as an ultimate expression of the right to information. However, its impact is not so important that it would oblige members of the Convention to establish a system of public service broadcasting.

Source: Website of the EBU