In line with the CDMC’s own thinking, the recommendation also signals new areas for Council of Europe work linked to the freedom of expression and information regardless of frontiers guaranteed by Article 10 of the European Convention on Human Rights.
The CDMC believes that the Parliamentary Assembly recommendations merit favourable consideration from various bodies concerned, having also regard to the observations set out below.
Against this background, it should be borne in mind that Council of Europe member states which are party to the European Convention on Transfrontier Television and that are also bound by European Union law must apply the latter in full compliance with the provisions of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights. The Standing Committee on Transfrontier Television (T-TT) must be especially attentive to these requirements during its subsequent interpretative work (including in respect of various recommendations made in paragraph 10 of the Parliamentary Assembly recommendation).
As already suggested by the Parliamentary Assembly itself (cf. paragraph 10.6 of the recommendation), decisions that may have a bearing on the exercise of the right to freedom of expression and information regardless of frontiers require significant procedural safeguards. In the CDMC’s view, this requirement applies mutatis mutandis to the use by the T-TT of the proposed reinforced powers (cf. paragraph 10, in particular sub-paragraphs 1, 3 and 6, of the recommendation).
Furthermore, a people-centred approach also requires that individuals are allowed to exercise their right to free expression and information and use new communication services to participate in social, political, cultural and economic life without undue restriction. Enabling them to exercise their rights without infringing the rights of others requires, as proposed by the Parliamentary Assembly, paying attention, inter alia, to media literacy.
The Standing Committee supports the view of the Assembly that the new Council of Europe convention, revising the European Convention on Transfrontier Television (draft revised convention, consolidated text in CM(2009)144 add3), should provide sufficient guidance to its Parties in interpreting and applying its provisions, and in particular in determining what is and what is not included within its scope. The Standing Committee is of the opinion that the explanations contained in the explanatory report to the draft revised convention (CM(2009)144 add4) fulfil this role in a satisfactory manner. Reference is made in particular to paragraphs 88 to 149 of this report. It is furthermore recalled that one of the principal functions of the Standing Committee is to make recommendations to the Parties concerning the application of the convention. It is also possible that questions concerning its interpretation will arise, all the more so since the convention deals with an area which is subject to rapid changes. Article 25 of the draft revised convention empowers the Standing Committee to examine any such question raised by a Party.
The Standing Committee recalls that the purpose of the convention is not to regulate the provision and activities of audiovisual media services as a whole, nor is it designed to harmonise the Parties’ rules on this issue. It aims to lay down basic standards by which audiovisual media services may enjoy unhindered transfrontier circulation. The Standing Committee concludes that this convention is not the appropriate legal instrument to give an answer to the questions surrounding the definition of “public service mission” of media services. It furthermore underlines that there is no common European definition of public service media and/or mission. The Standing Committee notes that the explanatory report to Article 12, paragraph 3, of the draft revised convention (paragraph 272) refers to the contents of Recommendation Rec(2007)3 of the Committee of Ministers on the remit of public service media in the information society which contains guidance on the key elements of the public service remit. Paragraph 273 of the explanatory report explains that “broadcasters who have a public service mission may include privately-owned broadcasters whose licences or other conditions of operation require them to transmit programming which is of benefit to cultural, educational, or other public objectives”.
It is recalled that the convention confers the Standing Committee functions related to the interpretation and application of the convention. They are listed in Article 25 of the draft revised convention and include the possibility to make recommendations to the Parties on the application of the convention, examine questions concerning the interpretation of the convention and secure friendly settlement of any difficulty referred to it in the context of the conciliation procedure foreseen under Article 30 of the draft. It is acknowledged that, with regard to alleged violation of the convention, the Standing Committee has until now had a purely advisory role, including in the conciliation procedure. This role of the Standing Committee seems still adequate in most cases, including in the case of alleged violations of the draft revised convention by broadcasting services (Article 28 of the draft). The Standing Committee shares however the viewpoint that it should be given an increased supervisory role with regard to possible measures against programmes in on-demand services (Article 29 of the draft) or against broadcasters who established themselves in the jurisdiction of another Party in order to circumvent the stricter rules, in the field covered by the convention, of the Party to the territory of which their television broadcast is wholly or mostly directed (Article 33 of the draft). The Standing Committee notes that measures in the context of Articles 29 and 33 leave a wider margin of interpretation to Parties, as compared to television broadcast (Article 28 of the draft). It underlines that the draft convention now foresees to introduce a procedure whereby Parties will notify any measures they envisage to take on the basis of Articles 29 or 33 to the Standing Committee in view of an opinion and that they will refrain from taking them if the Standing Committee comes to the conclusion that the measures are incompatible with the convention. In case of provisional and urgent measures foreseen under Article 29, paragraph 2, Parties will notify these measures to the Standing Committee in the shortest time possible and will urgently put an end to them if the Standing Committee concludes that they are incompatible with the convention.
The Standing Committee notes that, in the draft revised convention (as in the corresponding European Union Directive), regulation of transfrontier aspects of on-demand services is less strict, offering more flexibility to the Parties with regard to the duties of service providers and protection of the viewer. The reason for this distinction (as explained in paragraphs 72 and 414 of the explanatory report to the draft convention) is the fact that the viewer has more control over on-demand programmes since the viewer chooses what to see and at which moment. On-demand television is also less invasive, it does not operate at a schedule decided by the media provider and lacks the immediacy and suggestive power of (live) broadcasts. The provisions of draft Article 29 have partly been aligned with the corresponding AVMS Directive (Article 2a.4) and allow Parties to take measures not only in case of violation of the convention but also of stricter national law. The measures referred to have to be notified to the Standing Committee with a view to a previous opinion and may not be taken or pursued (in the case of emergency procedures) if the Standing Committee comes to the conclusion that the measure is incompatible with the convention.
The general objective of this convention, as defined in its draft Article 3, is to ensure freedom of expression and information via the free circulation of audiovisual media services which comply with the terms of the convention. Although draft Article 29 gives receiving Parties a wide margin of appreciation with regard to the restriction of on-demand audiovisual services from other state Parties, its paragraph 4 makes it clear that any measures which might be taken by the Parties under this Article must nevertheless comply with Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights. This implies that such measures respect the requirements laid down by the European Court of Human Rights to accept a restriction to freedom of expression and information. In this context, the proportionality requirement is particularly important and subject to careful examination. The explanatory report to the draft convention gives further guidance on this issue (paragraph 438).
For European Union member states and for transfrontier media providers, compatibility of the convention with the Audiovisual Media Services Directive is of paramount importance. In order to ensure the necessary coherence and to avoid inconsistency between these instruments, the terms employed (draft Article 2) and provisions on issues of common concern have been aligned with the AVMS Directive. This is also the case of this provision. Alignment has been realised to the extent possible taking into account the difference in nature between both instruments as well as the common interest of all the Parties to the convention, whether they are member states of the European Union or not.
The Standing Committee is of the opinion that the guidance provided in the explanatory report to the draft convention meets the needs of the Parties on this question (see in particular paragraphs 458 as well as 347 to 357). The report states that “The assessment of whether a television broadcast is wholly or mostly directed at the territory of another Party should be made on a case-by-case basis. Significant indicators might include the main language of the service, the origin of the television advertising or subscription revenues, and the existence of programmes or commercial communications targeted specifically at the public in the other Party.”
The Standing Committee supports this recommendation and observes that the draft convention now foresees to introduce in its draft Article 33 a procedure whereby Parties will refrain from taking such measures without a previous opinion by the Standing Committee. Reference is furthermore made to the comments on Recommendation 10.3 above.