Council of Europe, OSCE formulate conclusions on legislative initiatives to amend Audiovisual Code

Chisinau, 11 September /MOLDPRES/- The Council of Europe (CoE) and OSCE Representative on Freedom of the Media have considered the legislative initiatives on the amendment of the Audiovisual Code of Moldova. The two draft laws were submitted by Parliament Speaker Andrian Candu for expert examination, the parliament’s communication and public relations department has reported.

The international institutions formulate a string of conclusions and recommendations on draft laws, meant to guarantee the observance of the freedom of expression and pluralism of opinions through the light of the provisions of the European Convention on Human Rights and other international standards.

COE experts said that the proposals seen in the draft laws must be better designed, in line with the principles referring to human rights. “Protection of freedom of expression and freedom of broadcasting must be unconditional. The restrictive and vague provisions can easily be equivalent to censorship, and language inciting to hatred and false statements can be most easily counteracted through more communication, pluralism of opinions, open debates and clear positions”, the note said.

The Council of Europe also recommends multiplying efforts on stimulation and developing the local audiovisual industry, mechanisms and measures, which from the systematic viewpoint, could be complementary to the provisions of the Audiovisual Code. As for the extension of the audience period between 18:00 and 24:00, the Council of Europe thinks that the audiovisual area meant for producers and advertising agencies from Moldova can be enlarged, in order to encourage the local audiovisual production.

The amendments on jurisdiction of broadcasters are not accepted by the Council of Europe. Under the legislative initiative, the broadcaster belongs to Moldova, if the residence is in Moldova, the license is issued by Audiovisual coordination Council (CCA), and editorial decisions are taken in Moldova. “The problem on jurisdiction is presently one of the most complicated issues, because of the new communication and information environment and the presence of more opportunities of setting different configurations of media companies' organisation. It is advisable that the initial version of the provision be kept,” it said.

The amendment banning broadcasters transmission and re-transmission of TV and radio channels containing programmes that are not produced in the EU countries, as well as in the states which did not ratify the European Convention on Transfrontier Television triggers concern of the EU experts. Under the note, the restrictions on freedom of broadcasting should have legitimate aims, necessary in a democratic society.

“If a reception or re-broadcasting ban is imposed, the grounds and conditions in which this can take place should be specified. A general prohibition for certain programmes leading to political debates,as it is formulated at present, can sound vaguely, and its application may lead to censorship. How effective such a ban may be, as there is now free access to Internet?” the experts said. The document also says that the propaganda must be counteracted by providing more information to create a public opinion without prejudices, with a developed critical thinking able to compare statements.

As for the amendment saying that the local product should represent at least 8 hours of the daily broadcasting, the Council of Europe believes that the approach does not contradict European standards and should be backed. “Local product can hugely contribute to the pluralism and balance of information and opinions within the public debates, to education and preserving cultural traditions. The measures are aimed at strengthening the use and proliferation of Moldova’s official language, which are not disproportionate, on condition that there is also space for using other languages by different communities”, the notice said.

The amendment on broadcasters having to broadcast local informative programmes at a level of 100 per cent, of which 80 per cent should be in Romanian, is described by the Council of Europe as unclear, given the specific provision on broadcasting language.

The amendment on withdrawal of broadcasting license for public incitement to national, racial or religious hatred, as well as terrorist actions, is considered by the Council of Europe as the one that may “create a problem for the freedom of expression”. These reasons can be applied by the media regulatory authorities arbitrarily and inconsistently , and this can lead to the withdrawal of licenses and closing of broadcasting stations, the programmes and commentaries of which are considered inconvenient or in opposition to the official stance. There should be additional guarantees against haziness, free interpretation, excessive intervention on behalf of the state and abuse,” the document says.

As for the amendments regarding the sanctions applied on broadcasters, the Council of Europe specifies that they should not be excessive, so as not to attempt against the freedom of expression, but should be proportionate to the offence. Experts said that, before being imposed a sanction, the broadcaster should receive a warning and must enjoy a reasonable period of time to revise its activity, and the withdrawal of the licence is the solution of last resort and may be applied only for the committing of serious offences. 

CoE experts welcome the provision on the measurement of the audience quotas, specifying that the draft’s authors properly foresaw the fact that the most important guarantee for the fairness of the tender due to serve the public interest is its transparency. 

In the end of the note, the Council of Europe proposes that the amendments contained in the two draft laws enter into force simultaneously with the amendments on the transparency of the media owners. 

For its part, OSCE considers that the newly proposed amendments meet the best international practices and recommend avoidance of restrictions on freedom of expression and press freedom. 

„There should not be attempts to ban the propaganda through legislation, as it is difficult to objectively define this notion and what is related to this. The propaganda should be counteracted by providing information, even if this is a slower and often frustrating instrument,” the OSCE’s note says.  

The prohibition for the broadcasters to broadcast and re-broadcast the TV and radio channels containing programmes which are not produced in EU member states, as well as in the states which did not ratify the European Convention on Trans-frontier Television is described by OSCE experts as excessive, which may be explained by political reasons and may be inefficient. “The proposed ban is a blunt and, at the same time, disproportionate instrument against the propaganda,” OSCE said.  

OSCE experts consider that the initiative that the broadcasters broadcast local information programmes at a level of 100 per cent, of which 80 per cent is to be in Romanian, represents a restriction that will negatively affect that pluralism of news. “Although no international commitment of Moldova is explicitly violated, this has serious consequences. This fact will significantly limit the spectrum of news from Russia, which is of interest for the Russian minority and the speakers of Russian from Moldova,” the document says.  

Also, OSCE deems as reasonable the legislative amendments, according to which the local product in the audiovisual area be broadcast in the official language at a minimum level of four hours. “The draft on amendments consolidates the position of the local content and protection of the official language. These norms are used in many European states and represent a restriction accepted for media, provided that they are proportionate,” OSCE experts say.  

As for the withdrawal of the broadcasting licence for inciting the public to national, racial and religious hatred, as well as to terrorist actions, OSCE recommends gradual application of sanctions on broadcasters.  

At the same time, the OSCE experts consider that the limiting of broadcasters that are under Moldova’s jurisdiction may have negative consequences, as this may impose limits for the actions the Chisinau authorities may undertake and recommend developing more general provisions on jurisdiction. 

The conclusions and recommendations by the Council of Europe were submitted to the commission for culture, education, research, youth, media for consideration. 

At present, there are two legislative initiatives on amendment and completion of the Audiovisual Code in the parliament: a draft No 125 from 2 April 2015 (signed by a group of Liberal Party MPs) and the draft No 218 from 22 May 2015 (signed by a group of Liberal Democratic and Democratic lawmakers). After the concerned draft laws had triggered more discussions, Parliament Speaker Andrian Candu ruled to submit the drafts to the Council of Europe, Venice Commission, Freedom House Human Rights Organisation, OSCE Representative on Freedom of the Media for consideration.  

(Editor A. Raileanu)