|Steering Committee (CDMSI)|
|Bureau of the Committee (CDMSI-BU)|
|Former Steering Committee (CDMC)|
|Former Bureau of the Committee (CDMC-BU)|
|Rights of Internet Users|
|Legal and Human Rights Capacity Building|
|FORMER GROUPS OF SPECIALISTS|
|Public Service Media Governance|
|Protection Neighbouring Rights of Broadcasting Organisations|
|Public service Media|
hate speech - Living together on-line"
Reykjavik - Iceland
28-29 May 2009
|European Dialogue on Internet Governance (EuroDIG)|
|Committee of Ministers texts|
|Parliamentary Assembly texts|
6th European Ministerial Conference on Mass Media Policy
Cracow (Poland), 15-16 June 2000
A media policy for tomorrow
Historical document on the activities and achievements of the CDMM
prepared by Mr Bernd M÷wes,
Fifty years of media policy in the Council of Europe - a review
* * *
1. More than 40 declarations, recommendations and resolutions (see Appendix), as well as a number of conventions, are the tangible results of the activities of the Council of Europe in the field of media law and policy since its foundation in 1949. This report provides an overview of this work and focuses on the intergovernmental co-operation of the member States within the Council of Europe. By means of selected examples, it aims to illustrate how the Council of Europe has responded to the new challenges in the media field over the last 50 years and provided crucial impetus for the further development of European and national media policy, in pursuance of its objective to protect and foster freedom of information.
2. As in the member States, the mass media were not regarded as a policy field in its own right in the early years of the Council of Europe. Media policy issues were considered to be an appendix to established political fields such as culture, law, human rights or technology and were thus dealt with in the relevant committees. However, the Council of Europe recognised relatively early on the need for an integral approach to the problems affecting all media, regardless of the dividing lines between traditional political fields. As early as 1976, the Committee of Ministers introduced the mass media as a policy field in its own right and set up a Committee of Experts. In 1981, the Committee's status was raised to that of a Steering Committee on the Mass Media (CDMM). It is composed of representatives from member States and observers without voting rights from other interested countries, international organisations, the Parliamentary Assembly and the leading European organisations for public and private broadcasting. Working groups including representatives from other professional organisations are set up on a temporary basis to carry out work on specific problems.
At the same time, administrative responsibility for the CDMM was transferred from the Directorate of Legal Affairs to the Directorate of Human Rights. This made clear to the outside world that media policy did not consist solely of dealing with legal questions but also of carefully examining the role of the media in fostering democracy and human rights.
This decision coincided with the East/West and North/South debate on the new world information and communications order, which was particularly intense in UNESCO. For Western European countries, this debate highlighted the need to find a forum in which to formulate a common approach to the defence of freedom of expression and information.
3. In the early years of its work in the sphere of media law, the Council of Europe focused on copyright law and neighbouring rights. It drew up three treaties, parts of which were amended several times, to promote programme exchanges between broadcasting organisations and help combat piracy. Rapid technological developments mean that the framework conditions for copyright protection are constantly changing. To ensure copyright is maintained even in the age of satellite broadcasting and advancing digitalisation, work continues to this day and has resulted in a number of recommendations and a further Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite (1994).
4. In the 1970s, the threats caused by a wave of major mergers and business failures in the press sector were the focus of attention. The Committee of Ministers reacted to this development with a resolution to help endangered newspapers and the Parliamentary Assembly adopted a recommendation on the internal freedom of the press. The right of reply and journalists' privilege as witnesses to refuse to answer questions were further key discussion points. A recommendation on the latter issue was adopted only recently. In addition, the Council of Europe held an intensive debate on the public's right of access to information held by public authorities - an issue which is only starting to become a reality in Europe.
5. The growth in broadcasting capacities with the increased use of satellite and cable networks and the related enlargement of broadcasting areas brought the problems of transfrontier television into sharp focus in the 1980s. Such problems could no longer be resolved by national legal systems. The Council of Europe tried to bring about a very rapid voluntary harmonisation of the various European legal systems with a range of recommendations on television advertising, the use of satellite capacities and copyright questions, but this approach soon proved inadequate. On the initiative of the First European Ministerial Conference on Mass Media Policy, held in Vienna in 1986, the Council of Europe drew up the European Convention on Transfrontier Television (1989), a binding instrument under international law. With a view to fostering freedom of information, it aims to minimise barriers to the transmission of television programmes in the States Parties. It lays down minimum rules for the protection of minors, advertising, sponsorship and the right of reply, strives to promote the production and transmission of programmes with European content and establishes essential programming principles. Furthermore, it fixes criteria for establishing the legal responsibility of the States Parties for television programmes. Drawing up this Convention, which to some extent broke new ground legally-speaking, was extremely difficult initially and could only be completed following two Ministerial Conferences (Vienna in April 1988 and Stockholm in November 1988). These difficulties were largely due to the fact that the EC Commission simultaneously presented a proposal for a Directive to co-ordinate certain broadcasting laws on television activities in the member States, both legal instruments highlighting clear differences however in their fundamental philosophy. In one, emphasis was placed on the social, cultural and political function of broadcasting, while the other was geared more to the economic needs of the market. Moreover, the EC Commission claimed that the EC Directive should be adopted before the Council of Europe Convention. This political conflict was resolved by the Heads of State and Government of the EC countries, meeting in Rhodes in December 1988, who called upon the EC Commission to adapt their draft Directive to the draft Convention of the Council of Europe. The objective of creating an essentially uniform legal framework of conditions for transfrontier television in Europe was thus reached through this co-operation, which ultimately proved fruitful despite considerable tension along the way. This success is mainly to be attributed to the co-operation based on trust between the member States in the Council of Europe.
6. Alongside this regulatory work, the Council of Europe also made considerable efforts to promote audiovisual production in Europe. One fruit of its labours was the setting up in 1988 of the "Eurimages" sponsorship fund in which 25 countries are now involved. It has so far supported more than 700 co-productions with a total of FF 1.2 billion.
7. The media policy work of the Council of Europe has been shaped and transformed by two key processes of recent decades - the political sea change in Central and Eastern Europe and the transition to the Information Society. In the past, the Council of Europe acted as an important link between the "Europe of the Twelve" and the Western and Central European countries outside the European Community. With the accession of Sweden, Finland and Austria to the EU, this aspect became less important. Instead, the political change in Central and Eastern European countries brought the problems of fledgling democracies into sharper focus, which after decades of state-controlled media had first to establish a free media system and build up independent and pluralistic media. The Ministerial Conferences held in Nicosia in 1991, and in Prague in 1994, pledged political support to this process in their declarations. The Council of Europe provided practical help together with numerous professional organisations in the form of legislative expertises, workshops, training courses, scholarships and study visits - a total of more than 400 activities - under the Demosthenes Programme and subsequently as part of the Activities for the Development and Consolidation of Democratic Stability. The CDMM also geared its work and adapted its structure to these needs by organising similar seminars.
8. In discussing the problems raised by the increasing use of new information technologies, the Council of Europe attached particular importance to ensuring that due respect was paid to the protection of the rights enshrined in the European Convention on Human Rights (ECHR) and to the promotion of democratic, social and cultural values. As early as 1991, during their Conference in Nicosia, the European Ministers responsible for the media advocated granting access by broad segments of the population to the new communications technologies and services and declared their intention to promote their targeted use. The 5th Ministerial Conference held in Thessaloniki in 1997 dealt exclusively with the diverse challenges inherent in the new communications technologies and the convergence phenomenon for law and society. With a view to granting everyone access to the new technologies and services and preventing social divisions, the ministers proposed recognising the principle of universal community service. Implementing this principle and devising solutions to ward off potential dangers brought about by the new communications technologies, for example with regard to protecting minors and safeguarding a broad spectrum of opinion, were also focal points for the CDMM.
9. In the past, the Council of Europe has often led the efforts to formulate European media policy and law. It has ensured that due respect was paid in the European discussion to the values for which the Organisation stands and which are enshrined, in particular, in the ECHR. In spite of, and indeed precisely because of, the increasing convergence and growth in the number of actors, it is still necessary to call on the long and unequalled experience of the Council of Europe in this field as the debate continues.
* * *
Introductory remarks **
In the light of the fiftieth anniversary of the founding of the Council of Europe on 5 May 1999, the forthcoming fiftieth anniversary (4 November 2000) of the first signing of the European Convention on Human Rights and the fiftieth meeting of the Steering Committee on the Mass Media (CDMM), the latter has decided to take stock of the work done by the Council of Europe in the area of media policy. This report focuses on intergovernmental co-operation within the CDMM and its predecessors. The major contributions that the European Court and Commission of Human Rights and the Parliamentary Assembly, for example, have made towards the development of media freedom can only be touched upon. A closer look would go beyond the scope of this report. Nor is it possible to portray in detail the more than forty declarations, recommendations and resolutions in the media field, which have been adopted by the Committee of Ministers since 1958 on the initiative of the CDMM and its predecessors, or in close co-operation with it. We have chosen instead to use selected examples to try and illustrate how the Council of Europe and its bodies have reacted to new developments in the media field during the last fifty years, with the help of various instruments, within the framework of the tasks set out in the Statute of the Council of Europe and in pursuit of the objective laid down in Article 10 of the European Convention on Human Rights concerning the protection and promotion of freedom of information.
* * *
1. In 1981, the Committee of Ministers of the Council of Europe set up the Steering Committee on the Mass Media, but this year was by no means the start of the Organisation’s work on media policy issues, which goes back to the 1950s. As in most member States, mass media policy was not yet regarded as a policy field in its own right. Media policy issues were considered to be an appendix to established fields such as culture, law, human rights or technology and were thus dealt with in the relevant committees or sub-committees of the Council of Europe.
The basis and aim of this work was to "achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress" through intergovernmental co-operation, as expressed in Article 1 (a) of the Statute of the Council of Europe. Particular importance was (and still is) attached in this connection to the ideas laid down in the European Convention on Human Rights, especially Article 10, which aims at protecting freedom of expression and information. The organs of the European Convention on Human Rights at the time, the European Court and Commission of Human Rights, were limited by their mandates to the interpretation and application of the European Convention on Human Rights and its Protocols. The committees of the Council of Europe were not subject to such restrictions. From the very beginning, they were able to deal with all aspects of freedom of expression and information and the role of the mass media in society. Until the mid 1970s however, there was no cross-sectoral approach to this topic over and above the traditional fields of activity, which were also reflected in the structure of the Council of Europe.
2. The legal experts meeting at the Council of Europe turned their attention very early on to copyright and neighbouring rights, which are particularly important for the media. A committee of legal experts on radio and television, which remained separate from the Steering Committee on Legal Co-operation (CDCJ), drew up various legally-binding agreements to protect copyright in a field which, by nature, spills over national frontiers and in which national legal systems could not guarantee sufficient protection.
The first of these, the European Agreement concerning Programme Exchanges by means of Television Films (1958), facilitated in particular the exchange of programmes within the European Broadcasting Union (EBU). The European Agreement on the Protection of Television Broadcasts (1960) and its Protocol (1965) and Additional Protocols (1974, 1983 and 1989) have given television companies the option of authorising or prohibiting the re-broadcasting or diffusion of their broadcasts by wire or any other use of their programmes in the national territories of the States Parties. Finally, in 1965, the Council of Europe reacted to the appearance of so-called pirate stations with the European Agreement for the Prevention of Broadcasts transmitted from Stations outside National Territories. These pirate stations began to successfully undermine the existing monopoly of public radio broadcasters by operating radio stations financed by advertising on ships or oilrigs, particularly outside the national territory of the countries bordering on the North Sea. The protection of copyright remains a focus of the Council of Europe's media policy work.
3. The Committee of Experts on Human Rights also gave crucial momentum to the further development of the Council of Europe’s work in the media sector in the 1970s. In 1974, the Committee of Ministers adopted a Resolution (No. (74) 26) of the Committee of Experts which called upon member States to introduce, where this was not already the case, the individual's right of reply in the press, on radio or television, and laid down minimum rules to this end. These standards are now an integral part of legislation in many member States of the Council of Europe.
The protection of the individual's right to privacy from the media, which this Resolution aimed to provide, was also the reason for the intense discussion by the Committee of Experts on the establishment of press councils. Nevertheless, no recommendations were adopted on this subject. The understanding reached at that time that self-control mechanisms were often more effective than government intervention, in this sensitive field, to maintain the difficult balance between the right to privacy of the individual and freedom of the press has come to the forefront again recently in the Council of Europe, and in other fora, in the framework of the current discussion about regulating modern means of communication such as the Internet.
The question of the protection of journalists is another thorny problem where discussions have been rekindled. As early as 1974, the Committee of Experts had drafted an agreement, but the Committee of Ministers failed to reach a political consensus on it. Only in 2000 was Recommendation No. R (2000) 7 adopted on the right of journalists not to disclose their sources of information, after a similar Recommendation on the protection of journalists in situations of conflict and tension had been adopted in 1996.
The discussion of these issues was also motivated by the fact that major mergers and business failures occurred in the press sector in the late 60s and early 70s. Many daily newspapers had ceased publishing or were bought up by rival papers. There was a marked drop in the number of newsrooms. In the fear that this trend could seriously endanger freedom of expression and information, there were many calls for counter measures both from the public - sometimes violent as seen for example during the 1968 student protests, which also targeted the so-called monopoly papers - and from the parliaments of the member States. For example, the introduction of editorial statutes was designed to guarantee journalists greater independence from their publishers and thus "internal freedom of the press", while concrete financial support aimed to ensure the survival of papers threatened by closure or take-over.
The Parliamentary Assembly of the Council of Europe also recognised early on that the diversity of the press landscape was put at risk by this development, triggered in turn by a technical revolution in newspaper printing with considerable restructuring costs that many newspapers could no longer afford. Consequently, the Parliamentary Assembly adopted a Recommendation on press concentration (No. 747 (1975) in which it was proposed inter alia to:
- draw up a model statute to secure internal freedom of the press
- lay down criteria for a responsible information policy
- establish a Council of Europe information centre on mergers and business failures in the press sector.
Resolution (74) 43 of the Committee of Ministers had already contained key elements of this Recommendation since it proposed that member States should, where appropriate, counter the threat to newspapers by granting financial aid.
Finally, the Committee of Experts embarked on the issue of the public's right of access to information held by public authorities, which was triggered partly by the legal situation in northern European countries and the Freedom of Information Act in the USA. It took another few years, however, before the Committee of Ministers recommended, on the basis of the discussions within the Committee of Experts, that member States should grant everyone the right of access to information held by public authorities (Recommendation No. R (81) 19).
4. The cultural dimension of the media was primarily introduced into the media activities of the Council of Europe on the initiative of the Council for Cultural Co-operation (CDCC). Acting on its proposal, the Committee of Ministers adopted several texts:
- Cinema schools in Western Europe (Resolution (66) 37)
- The press and the protection of youth (Resolution (67) 13)
- Cinema and the protection of youth (Resolution (69) 6)
- Educational and cultural uses of radio and television in Europe (Resolution (70) 19).
The topic of "media and the protection of minors" was to remain on the agenda of the competent committees during the years to follow. Moreover, the invitation to member States in Resolution (70) 19 to supply schools with equipment to receive and record educational and cultural programmes differs only slightly from the recommendations and declarations adopted in the 90s concerning access to the Internet.
1. In 1976, the Committee of Ministers decided to make the whole sphere of mass media (press, radio and television) a field of activity of the Council of Europe in its own right. The Committee of Experts on the Mass Media was set up as a body directly answerable to the Committee of Ministers. In 1977, this committee was renamed the Ad hoc Committee on the Mass Media (CAHMM).
The following reasons were particularly relevant to this decision:
- It became clear that technological developments, which were expected to increase transmission possibilities through greater use of cable and satellite, would lead to greater interdependence between the mass media. The monopoly of public broadcasting stations, which still existed in most member States, was increasingly being called into question meaning that a new policy for broadcasting had to be devised.
- The examination of legal, cultural or political aspects affecting the individual media by different committees of the Council of Europe working in isolation was found to be ineffective. An organisational unit with an overall approach to the problems affecting all media was lacking.
- This shortfall was considered to be particularly serious in view of the debates on the media in other international organisations, in particular UNESCO. There was no forum in which the European countries of the Council of Europe could exchange information or define common positions on the intensive debate in UNESCO on the new world information and communication order. In this debate launched by the developing countries, the theory was put forward that the western news monopolies ignored the interests of developing countries. It was argued that the exchange of news on the international level had to be "balanced". For this purpose, the other countries would have to help the developing countries build up an information and communication infrastructure.
This debate was not limited to the framework of UNESCO. It also developed in the United Nations and in regional organisations such as the Conference on Security and Co-operation in Europe (CSCE), by the confrontation of the largely contradictory ideas of freedom and control: the western democracies felt that the best guarantee for freedom of expression and information was the absence of state influence on content and the free flow of information across borders whereas, for the former Soviet Union and its satellite countries, the legitimacy of information depended on the purpose for which it was to be used. The transfrontier circulation of information was permitted, provided that it served peace and did not infringe upon the sovereignty of the receiving State, which therefore had to give its "prior consent".
2. The CAHMM's task was to serve as a forum for reflection on the functioning of the media in a democratic and pluralistic society. By means of reports, studies and analyses, the Committee would help the governments of member States to formulate their media policies and draft legislation inspired by certain common European ideals in this field, as laid down for example in the European Convention on Human Rights.
3. In 1976, the Committee of Ministers also launched the Council of Europe's first medium-term plan (1976 to 1980). The mass media were incorporated as a sub-sector of the legal field and the secretariat was entrusted to the Directorate of Legal Affairs. This attachment to the legal sector was based, amongst other things, on the consideration that the CAHMM would propose to the member States principles or rules for their legislative policies. However, the CAHMM did not live up to this expectation as it saw a much wider role for itself: a brain trust for all aspects of the mass media and not just legal ones. Moreover, the CAHMM was aware that in the context of freedom of information, any regulatory intervention by the state required extreme caution.
On the proposal of the CAHMM, three subordinate committees of experts were set up to deal with the following questions:
- the functions and role of the media (MM-FR);
- the electronic media (MM-ME), and
- legal protection in the media field (MM-PJ).
These committees carried out a systematic survey of the problems encountered by the press, radio and television according to a work plan drawn up by the CAHMM.
1. In the light of the successful work of the CAHMM, the Committee of Ministers was led to raise the status of the Ad hoc Committee. In February 1981, the Steering Committee on the Mass Media (CDMM) was established as its successor.
Incorporating the CAHMM as a sub-sector of the legal field of the Council of Europe had turned out to be inappropriate since the work of the Committee covered all aspects of the media and not just their legal aspects. The second medium-term plan (1981-1985), which established close links between the mass media and the defence of democracy and human rights, also suggested incorporating the CDMM in the human rights field. Freedom of expression and information is not only one of the most important fundamental rights of the Human Rights Convention, but also a basic condition for the exercise of other rights laid down in the Convention.
In October 1981, the CDMM determined its work plan and set up two subordinate committees of experts to deal respectively with:
- media policy (MM-PO), and
- legal questions relating to the media (MM-JU).
2. Changing the name of the CAHMM to CDMM and officially raising its status to one of a steering committee did not initially change its structure. It continued to be composed of high-level experts from the member States and one representative each from the Holy See and the European Broadcasting Union having observer status without voting rights. Finland and the Nordic Council of Ministers were granted this status in 1983, followed by the European Commission in 1984. With the sea change in Central and Eastern Europe from 1989, the number of observers rose dramatically as countries aspiring to join the Council of Europe also took part in the CDMM’s work. The granting of observer status to Canada and the USA showed that technological developments had given the media not just a pan-European dimension but also even a worldwide one. Later on, the OSCE, which had demonstrated its interest in this field by nominating a Representative on Freedom of the Media, sent an observer, as did Audiovisual Eureka and the European Audiovisual Observatory, international bodies working in the audiovisual sector. The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe (CLRAE) are also represented.
Within the Council of Europe itself, representatives from other steering committees take part in the meetings or seminars as required to ensure adequate communication on issues of common interest and to avoid any duplication of work. Shared aspects and occasional overlaps are particularly common with regard to the work of the CDCC.
However, as a matter of principle, the CDMM refused to grant observer status to many professional bodies to take part in its meetings. Only the Association of Commercial Television in Europe (ACT) was granted this status after it was established as the counterpart to the EBU. This restrictive admission policy was motivated by the CDMM's wish to conduct its international co-operation on the basis of an open dialogue but free from the potential influence of economically-interested parties, and to involve only NGOs which covered as far as possible the whole range of issues and were representative both in their area of specialisation and geographically. This in no way meant that the CDMM had to forego the valuable contributions that the expertise of NGOs can make to its successful work. The submission of statements, hearings on specialist topics, participation in studies and seminars, as well as the granting of observer status in subordinate committees, particularly the MM-JU, ensured the efficient and constructive involvement of NGOs in their respective fields. This dialogue was institutionalised further with the creation, in 1991, of the Council of Europe - European Cinema and Television Office (ECTO) Liaison Bureau, which is a platform for the regular exchange of opinions between the various Council of Europe bodies dealing with media issues (CDMM, CDCC, EURIMAGES, European Audiovisual Observatory) and the professional bodies of the European film and television industry.
3. From 1982 onwards, the work of the CDMM was no longer guided solely by Article 10 of the ECHR but also by the Declaration on the Freedom of Expression and Information, adopted by the Committee of Ministers on 29 April 1982, which provided, at least partially, a European answer to the UNESCO debate. In this solemn “European Media Charter”, the Committee of Ministers did not just recall its firm attachment to the rights enshrined in Article 10 of the ECHR. It also formulated guidelines for the national and international media policy of the member States. Apart from the protection of those rights against any infringement - the essential goal of the ECHR - these guidelines aimed to create positive conditions for their promotion, especially by fostering access to information and telecommunications facilities as well as international co-operation and assistance.
4. The CDMM decided to streamline its work and concentrate on certain high-priority topical subjects.
One such highly topical issue was direct broadcasting by satellite - a subject touched upon also by the 1982 Declaration. The use of satellites for television broadcasting was already a day-to-day reality when the CDMM was established. Given their low transmitting power and the still underdeveloped reception technology, the reception of the television signals was only possible if large high-power aerials were used in the cable head stations. Signals received in this way were further transmitted using the cable network or the conventional terrestrial networks. However, all competent international organisations and a large number of States and private companies had already worked intensively towards opening up the way for the direct reception of television pictures transmitted by satellite, which is so widespread today.
It became apparent that the days would soon be over when existing technological limitations (frequency shortages and terrestrial broadcasting) meant that few television programmes were transmitted only within national territories. The expected frequency surplus - which to this day has not materialised - seemed to undermine the argument that state or publicly-controlled broadcasting monopolies must be upheld given frequency shortages. The invitation to private organisations to participate in broadcasting was accepted in many European countries, if not immediately taken up in effect.
It was obvious that there was no adequate legal framework to cover the emergence of this genuinely transfrontier television. While there were a number of co-operation agreements between individual countries, in particular those sharing a common language, and close co-operation between broadcasting organisations within the EBU, these agreements had very little effect on the underlying structure of the national broadcasting systems and laws which were still closely tied to the political, cultural and social circumstances of the individual countries. European broadcasting laws still lacked any specific European dimension. It was for this reason that the CDMM instructed the MM-PO to examine, as a matter of priority, the problems raised by direct broadcasting by satellite.
The MM-JU was given the task of examining first and foremost the legal aspects of cable television.
Copyright law and neighbouring rights were another focus of its work. On the one hand, the aim was to ensure that authors received due remuneration, thereby preserving their creative productivity as a whole and avoiding a weakening of their right of control over their own works in an age when it was becoming both quicker and easier to copy works using a wide range of technical methods and/or distribute them to a wider public, for example by satellite transmission. On the other hand, copyright laws needed to be further developed in such a way as to prevent them becoming an obstacle to using the new technologies.
Alongside numerous studies on these issues, this work also resulted in Recommendation No. R (88) 1 on sound and audiovisual private copying, which proposed for example introducing a fee on blank cassettes, Recommendation No. R (88) 2 on measures to combat piracy in the field of copyright and neighbouring rights, which called for sanctions under criminal and civil law, and Recommendation No. R (86) 2 on principles relating to copyright law questions in the field of television by satellite and cable.
In addition, the CDMM also launched studies on the new electronic media, on copyright questions raised by the new reproduction technology and on radio communication (notably on CB radio and on amateur transmitters). As a result of its new status as a "think tank", the CDMM was asked by other Council of Europe committees to give an opinion on a variety of media-related issues, for example the media and cultural industry, the media and terrorism, women in the media or the media and violence, the latter being a topic which the CDMM has worked on until very recently, particularly with regard to the protection of minors. In the 1980s, both the Parliamentary Assembly - in several Recommendations (963 (1983), 996 (1984), 1067 (1987)) - as well as the European Ministers of Culture, Youth and Justice - in the resolutions from their respective Conferences (1984, 1985, 1988) - called for less violence, brutality and pornography in programmes and videos.
The CDMM reacted to these concerns by drawing up a Recommendation on the distribution of such videos, which was adopted by the Committee of Ministers in 1989 (No. R (89) 7 concerning principles on the distribution of videograms having a violent, brutal or pornographic content). This Recommendation called upon member States to encourage the professions involved to develop codes of conduct and effective self-control mechanisms with regard to classification systems and distribution limitations and, if need be, to ensure compliance with these provisions by introducing sanctions. In response to the further development and spread of computer technology, the Committee of Ministers recommended, in 1992, including video games with a racist content (Recommendation No. R (92) 19) in the scope of Recommendation No. R (89) 7.
Not least because of countries' diminishing ability to reliably check modern communication networks for violations of the law, the notion of self-control contained in this text, and the appeal to the professions involved to act responsibly, have subsequently become even more important elements of the CDMM's relentless efforts (as well as those of other organisations) to strike a balance between the defence of public interests, such as the protection of minors, and the right laid down in Article 10 of the European Convention on Human Rights to unhindered freedom of information and expression. In keeping with this line of action is the latest recommendation on the problem of violence (Recommention No. R (97) 19 on the portrayal of violence in the electronic media), drawn up following a proposal made at the 4th European Ministerial Conference on Mass Media Policy in 1994, and covering the new electronic services and means of communication used by the public.
1. On 5 May 1989, the fortieth anniversary of the founding of the Council of Europe, the European Convention on Transfrontier Television was opened for signature. To date, 22 countries have ratified the Convention. Together with the EC Directive concluded only a few months later, on 3 October 1989, on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (the so-called “Television Directive”), this legally binding set of international rules has made a key contribution to the development and structure of today's European audiovisual area, in which the free and unimpeded reception of foreign television programmes has become to a great extent a smoothly functioning day-to-day reality.
2. The drawing up of the Television Convention is a typical example of the way in which the CDMM works (and probably also the Council of Europe as a whole). It shows how step-by-step problem identification and exchange of views, drawing up of studies, involvement of outside experts and development of non-binding recommendations on specific aspects of the problem areas finally evolve into a Convention. This example also demonstrates that the criticism sometimes voiced to the effect that the Council of Europe attaches too much importance to contemplation rather than action certainly does not apply to the work of the CDMM in the 1980s. The drafting of the Television Convention goes to show that parallel work by two organisations such as the Council of Europe and the European Community on comparable legal texts certainly does not have to be unnecessary duplication of work; on the contrary, it can mean a different approach to tasks and objectives resulting in an ultimately fruitful, if sometimes far from smooth, co-operation.
3. It took the CDMM almost a decade to devise the basic rules for transfrontier television and in the second half of the 1980s, in particular, this task absorbed almost all of its attention.
The first step was to clarify the fundamental aims. The various countries and institutions reacted very differently to the emergence of satellite television showing a mixture of concern and optimism: France, for example, was concerned primarily about preserving Europe's culture and preventing a possible invasion of mainly American English-language programmes. Germany, by contrast, was afraid that foreign commercial satellite stations would deprive the country of some advertising revenues, thus endangering the advertising resources of the press, which is an important factor for democratic stability.
Early reactions from both European parliaments - the European Parliament of the European Community and the Parliamentary Assembly of the Council of Europe - were typical of the differing approaches taken by the Council of Europe and the European Community. The work of the Council of Europe to achieve a greater unity between its member States is guided by the latter's moral and cultural values that make up its shared legacy. Its declared goal is to respect differences of opinion and culture. In 1981, in its Recommendation 926 on questions raised by cable and television and by direct satellite broadcasts, the Parliamentary Assembly voiced its concerns that the new communication technologies would simply water down the differences between the national media structures. It was concerned about the damaging influence of advertising via satellite and a lowering of cultural standards as broadcasting companies tried to target as wide an audience as possible. The Parliamentary Assembly therefore called on the Committee of Ministers to adopt measures to counter these detrimental effects.
The European Community, however, pursued primarily economic goals. It was guided by the political will to create a single economic area free of borders for the citizens of the member States. It was therefore no surprise that the European Parliament, in its Resolution of 12 March 1982 on Radio and Television in the European Community, warmly welcomed the new developments in the satellite field in the perspective of European unification as a key contribution to eliminating borders in Europe. "Television without frontiers" became the slogan for Community measures in this sphere. Differences in national broadcasting laws were declared to be an obstacle to creating a common European television market and there were calls for a single European legal framework to be set up. The Council of Europe, however, accepted the existence of borders between countries as a reality. It saw its task as making use of satellite television as a means of improving the free flow of information across borders.
4. In Recommendation 926 (1981), the Parliamentary Assembly asked the Committee of Ministers to instruct the CDMM to examine the problems identified. This study was to cover concrete co-operation in the legal sphere, possibly in the form of a convention. In April 1982, the Committee of Ministers took up this proposal as well as a similar request from Germany. The report presented by the CDMM in November 1982 considered a legally-binding convention to be premature. It recommended, however, that co-operation between member States be strengthened as a matter of urgency so as to promote the advantages of direct broadcasting by satellite and to avoid or reduce potential negative effects. The Committee of Ministers shared the CDMM’s opinion and instructed it to draw up recommendations for the governments as a matter of priority.
In response to this decision, the CDMM prepared in February 1983 an action plan on satellite broadcasting comprising sub-sections on television advertising, channel leasing for Direct Broadcasting Satellites (DBS) and Fixed Service Satellites (FSS), contacts and co-operation, protection of the rights of the individual, industrial co-operation, copyright law and neighbouring rights as well as cable distribution of foreign satellite programmes.
The work carried out by the CDMM and its subordinate committees on the basis of this action plan - in which organisations representing the economy, consumers, advertisers, the press and rights holders, as well as the social partners, participated by means of hearings - led to the adoption of the following Recommendations:
- No. R (84) 3 on principles on television advertising;
- No. R (84) 22 on the use of satellite capacity for television and sound radio;
- No. R (86) 2 on principles relating to copyright law questions in the field of television by satellite and cable;
- No. R (86) 3 on the promotion of audiovisual production in Europe.
The work on the Recommendation on television advertising was particularly difficult: the widely differing advertising rules in Europe, as well as the fact that some member States did not allow any television advertising, seemed to rule out anything even remotely resembling harmonisation. However, the CDMM succeeded in fixing some minimum rules, in particular on the respect for human rights and the dignity and equality of all people, the separation of advertising and programmes, the reduction of excessive advertising time, respect for the integrity of the programmes and restrictions on advertising for harmful substances.
The Recommendation on the use of satellite capacity aimed to fill a gap in applicable law due to the fact that, in the case of satellite television, the television company, the broadcasting operator (satellite or cable network) and the programme receiver could well be subject to different legal systems. The Recommendation proposed applying the law of the State in which the satellite capacity was made available to a service provider. Moreover, the Recommendation laid down programme standards with regard to the presentation of news, the restriction of violence, the protection of minors, a ban on pornography, etc. The right of reply was also called for. Finally, the Recommendation stipulated that the acquisition of exclusive rights to events of major importance to society should not result in depriving a large part of the public of the opportunity to follow such events on radio or television.
This aim of ensuring the greatest possible openness of public access to information is a fundamental concern of the Council of Europe. The CDMM and the Standing Committee have constantly taken this into account in their standard-setting work and endeavoured to translate this aim increasingly into reality. This can be seen in Article 9 of the Television Convention, which, initially, only called upon the Parties to examine this problem, as well as in Recommendation No. R (91) 5 on the right to short reporting and, finally, in the concrete legal obligations in Article 9a added to the Television Convention in 1998, which committed the other Parties to be actively involved in implementing the decision of one Party to make certain important events also available via free television.
Many other rules contained in the Recommendations were also integrated into the Television Convention, with or without modification.
5. Alongside the work of the Council of Europe, efforts to create a common legal area for broadcasting were continuing within the European Community. In March 1984, the European Parliament called upon the Commission and the Council to create a solid legal framework in which to implement the principles of the Treaty of Rome applicable to the broadcasting sphere. This was to ensure that "public broadcasting monopolies do not seek to prevent private broadcasters and programme makers from fully contributing to the future developments".
With the report "Television Without Frontiers - Green Paper on the establishment of a common market for broadcasting, especially by satellite and cable", the Commission presented for the first time, on 14 June 1984, a comprehensive study of broadcasting and developed guidelines for the European Community's future broadcasting policy.
In the Green Paper, the Commission recalled that it was mandated under the EEC Treaty to ensure the freedom of competition and trade at the community level and the free development of its considerable growth potential, including in the field of broadcasting. The following relevant conclusions were drawn:
- all restrictions discriminating against the free flow of services should be lifted;
- regulations in the member States regarding advertising and the protection of minors should be harmonised;
- in connection with copyright law, a legal licence that essentially reduces the copyright holder’s claim to remuneration should be introduced in order to facilitate the re-broadcasting of programmes within the European Community.
Backed by the largely positive reaction of the European Parliament during its intensive debates on the Green Paper, as well as the firm political will expressed by the European Council on 29/30 March 1985 to create a single European internal market by 1992, the Commission adopted a proposal for an EC Television Directive on 30 April 1986. This Directive was to harmonise broadcasting laws in the member States in certain fields such as advertising, sponsorship, the protection of minors, the right of reply and the promotion of audiovisual productions. Unlike the final version adopted in 1989, this proposal also covered radio and copyright issues.
6. The CDMM, some members of which took part in the discussion process in Brussels, followed the EC activities with great interest. A number of members from EC countries as well as non-EC countries voiced harsh criticism at what they considered to be the draft Directive's one-sided market orientation. They pointed to the neglect of the social, cultural and political aspects of broadcasting, as well as the special role attributed to public broadcasting. They were also concerned that the creation of a legal framework for EC countries alone would jeopardise the Council of Europe's efforts to enforce common standards - on which an agreement had just been reached in the various recommendations - for all member States of the Council of Europe and bring about two legal regimes in Europe. The CDMM therefore asked the Committee of Ministers to persuade the Commission to hold the debate on the future legal framework for broadcasting in Europe in the wider forum of the Council of Europe. At the same time, and also given their concern about developments within the EC, the CDMM took up the proposal made at the 1984 Conference of European Ministers of Culture to hold a conference of European Ministers responsible for the media to discuss the current fundamental issues of media policy.
In October 1985, the Committee of Ministers accepted this proposal and instructed the CDMM to prepare the 1st European Ministerial Conference on Mass Media Policy on the theme: "The Future of Television in Europe". This was to deal particularly with the promotion of European audiovisual productions as well as public and private broadcasting in Europe.
The Conference took place in Vienna on 9-10 December 1986 and gave a key impetus to the future work of the Council of Europe in the media field:
- the ministers decided to hold ministerial conferences on the media at regular intervals so as to ensure continuity in the work of the Council of Europe in the field of media policy;
- the ministers took note of the shortage of European audiovisual programmes. They therefore called for increased efforts to strengthen the production and distribution of films and audiovisual works, supporting in this way the aims set out in Recommendation No. R (86) 3 on the promotion of audiovisual production in Europe, adopted by the Committee of Ministers in February 1986. In this Recommendation, the Committee of Ministers made concrete proposals – including on fiscal and financial aspects - for promoting a common policy in the member States. This covered, for example, the opening up of national sponsorship schemes to foreign productions. A number of member States responded to this appeal from the Committee of Ministers and, on 26 October 1988, less than two years later, they set up the "Eurimages" fund in the form of a Partial Agreement of the Council of Europe, which provides financial support for the production and distribution of co-productions. There are now 25 countries involved in the fund, which has so far supported more than 700 projects for a total amount of FF 1,2 billion. As the first pan-European sponsorship fund, it has helped ensure that European audiovisual works are produced and can be seen by audiences outside their country of origin.
- finally, the Ministerial Conference on the media set the course for the preparation of legally-binding regulations for transfrontier television in Europe. In the run-up to the Conference, it was generally expected that the ministers would only speak out in favour of a further development of the principles - non-binding on the member States - contained in the various recommendations. Surprisingly, the Conference voted unanimously in favour of the motion tabled by the United Kingdom for "the rapid preparation within the Council of Europe framework of binding legal instruments on certain crucial aspects of transfrontier broadcasting".
8. In January 1987, the Committee of Ministers instructed the CDMM to draft a European Convention on Transfrontier Television as a matter of the highest priority. The existing Council of Europe recommendations in the media field were to be taken into account.
The framework for the substance of the future Convention was now in place. The representatives of the CDMM member States agreed very quickly that the foreseen Convention should not aim for a total harmonisation of broadcasting law in the member States but rather lay down minimal rules for transfrontier broadcasting in certain key areas. These were to include the protection of minors, the right of reply, the responsibility of broadcasting companies for their programmes, advertising and sponsorship and promoting programmes of European origin. The addition of further substance to this framework, however, proved very difficult: even the question of its scope was controversial. Several States advocated including transfrontier radio in its remit, as in the first proposal for an EC Television Directive. They eventually agreed to deal with radio at a later stage in a separate Protocol to the Convention. This Protocol has still not been drawn up. The problems raised by transfrontier radio have clearly not required pan-European regulations and have been satisfactorily resolved on a bilateral basis. Similarly, copyright was also sidelined, as it was in the EC Television Directive. It was later to become the subject of specific legal instruments.
Issues such as limits on advertising time, the introduction of advertising during programmes ("advertising breaks") and the question of whether a certain proportion of broadcasting time should be reserved for productions from member States of the Council of Europe ("quota system") proved to be particularly controversial. Another source of heated debate was the demand to protect the exploitation of feature films in cinemas by imposing a certain time lapse between their cinema exhibition and their television broadcast ("hierarchy"). Despite numerous special meetings of the CDMM and its working groups, several interventions on the part of the Committee of Ministers and even an informal Ministerial Conference in Vienna in April 1988, it was a long time before agreement was reached. The breakthrough came only at the 2nd European Ministerial Conference on Mass Media Policy, held in Stockholm on 23-24 November 1988, where a compromise package was successfully tied up. This was made possible because France was ready to forego a fixed quota for European programmes, and the United Kingdom and Germany, as the protagonists for both camps, had reached an agreement shortly before on a common position - Article 14 of the 1989 version - on the problem of advertising breaks.
9. The main political problem during the negotiations was how to proceed with the simultaneous drafting of a Convention in Strasbourg and a Directive in Brussels. The material differences between the draft Convention and the draft Directive were certainly not insurmountable. The question was whether the Directive should, as the Commission insisted, be adopted before the Council of Europe's Convention was finalised, or vice versa. The former position was based on the argument that, for members of the European Community, the law of the Community took precedence over treaty obligations. The Council of Europe however pointed out that the question of the relation between Community law and other treaty laws could be resolved by including in the Convention a "disconnecting clause", that is one which declares the Convention inapplicable to relations between EC member States in matters falling under Community regulations. With regard to priority, it was felt by many that moving European Community negotiations to the top of the agenda would prevent the non-member States of the Community from participating in the standard-setting process, thus presenting them with a fait accompli.
The 2nd European Ministerial Conference in Stockholm came out in favour of concluding the Council of Europe Convention before the adoption of the European Community Directive. The Committee of Ministers therefore invited the Commission of the European Community to take part in subsequent exchanges on the draft Convention. This was the first time that the Commission was represented at this level in the Council.
The Heads of State and Government of the European Community confirmed the Strasbourg option. They proposed that the Convention be concluded first and the Directive adapted to the Convention. This was outlined in the statement by the Presidency of the European Council of the European Communities held in Rhodes on 2 and 3 December 1988: "... The European Council considers it important that the Community's efforts should be deployed in a manner consistent with the Council of Europe Convention. The European Council requests the Council to speed up work on the "Television without frontiers" Directive. It notes that the Commission will adapt the proposal in the light of the Council of Europe Convention ....".
This adaptation process was carried out in the months to follow in what sometimes proved to be very difficult negotiations and a constant exchange of information between Strasbourg and Brussels. After attempts to undo the Stockholm compromise package were warded off and some of the problems of interpretation were resolved, the Committee of Ministers adopted the text of the Television Convention on 15 March 1989. It was opened for signature on 5 May 1989.
10. The regulations laid down in the Television Convention and the Television Directive, adopted shortly afterwards, cover the same subject matter and are identical in places. A primary objective of the Council of Europe, namely to prevent the development of divergent legal regimes in the EC countries and the other member States of the Council of Europe, had therefore largely been achieved. The differing goals guiding the two organisations as they started work on their respective sets of regulations - on the one side, the promotion and realisation of the values laid down in Article 10 of the European Convention on Human Rights and, on the other, the completion of the internal market - made it difficult initially for them to communicate and reach agreement. At times, this even led to the call for EC member States to stop working on the Television Convention. In the end, however, both organisations, both sets of regulations and, consequently, the entire European audiovisual sector and those working in it, benefited from this apparent competition. In the course of the negotiations, this competition increasingly gave way to co-operation that was partly due to the participation of many of the players in both Strasbourg and Brussels.
A key factor here was the fact that intergovernmental co-operation in the Council of Europe was free from the disputes over areas of competence which dogged negotiations in Brussels. Some member States there doubted that the EC Treaty allowed for the intended regulations in the broadcasting sphere. For them, broadcasting was first and foremost a cultural policy matter that was still the responsibility of the EC member States. Negotiators in Strasbourg were able to find swift solutions for these open questions without being weighed down by such problems. These solutions were later integrated into the Television Directive, particularly through the Rhodes decision, and made a key contribution to ensuring its adoption. Finally, the existence of the Television Convention made it easier for a member State such as Germany, in which EC competence was a source of much controversy at domestic level, to establish a domestic legal framework that was compatible with the Television Directive. In the domestic debate generated by the necessary integration of the Television Directive into the national law of the member States concerned, it could be pointed out that the implementation also fulfilled the voluntary international obligations contained in the Television Convention.
After the sea change in the Central and Eastern European countries, a further advantage of the Television Convention has become apparent: a number of States which aspire to join the European Union and are already members of the Council of Europe have already adopted the legal standards of the Television Convention. Given the parallel nature of the two legal instruments, they have therefore already done important groundwork for the adaptation of their respective legal systems to the “acquis communautaire” before the European Union requires them to do so.
11. The leadership provided by the Council of Europe and the CDMM in creating the European legal framework for transfrontier television with the drawing up of the Television Convention could unfortunately not be sustained in the years to follow - at least not in the eyes of the public. The revision of the Television Convention in 1997/98, which above all provided for a change in the regulations concerning jurisdiction, extended the scope for tele-shopping and ensured (television) access for wide sections of the population to events of major public interest, seems essentially to be little more than a catching up with the decisions taken within the European Union when amending the Television Directive in 1997. The preparation of the Convention on the legal protection of services based on, or consisting of, conditional access in 1999, which takes up the key elements of the corresponding EU Directive 98/84/EC of 20 November 1998, is a similar case. Both instruments were designed to guarantee the claim to remuneration by providers of encrypted services.
This is nevertheless an over-simplistic approach since it overlooks the fact that the CDMM and its working groups, as well as the Standing Committee on Transfrontier Television, accomplished major preparatory work early on in the process, which left its mark on activities in the member States as well as in Brussels.
For example, as early as 1991, the Committee of Ministers adopted Recommendation No. R (91) 14 on the legal protection of encrypted television services. It provided for measures similar to those in the EU Directive 98/84/EC but did not yet include the emerging "new services" of the Information Society. In Germany for example, this Recommendation served as the model for a draft bill on the subject. However, in the face of the ever-more pressing problems related to the "new services", work on this draft bill was eventually suspended.
Also in 1991, the CDMM, with its Recommendation No. R (91) 5 on the right to short reporting on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context, formulated principles for measures to be taken at the level of member States to guarantee the public's right to information. The Explanatory Memorandum to this Recommendation expressly states that legally-binding regulations may become necessary. This was then done at the pan-European level - albeit in a slightly modified fashion - by inserting Articles 3a and 9a into the Television Directive and the Television Convention respectively. The principles of the Recommendation were transformed into binding national law in Germany in 1992 by an amendment to the broadcasting laws.
The Council of Europe was the first body to address individual legal issues arising from new phenomena in the television sphere. Shortly after the completion of the Television Convention, a comprehensive study of programme sponsorship and new forms of commercial promotion such as product placement, barter and tele-shopping was carried out. After the Standing Committee had been set up, the problems of virtual advertising were tackled. In both cases, the Council of Europe took up problems long before these phenomena became a day-to-day reality on television screens and the focus of public attention.
Two key processes of the last decade - the political sea change in Central and Eastern Europe and the transition to the Information Society - have also determined and changed the Council of Europe's work on media policy to a considerable extent, in particular since new members acceding to the European Union were also members of the Council of Europe.
I. Co-operation and assistance programmes
1. In the past, the Council of Europe acted as an essential link between the "Europe of the Twelve" and the Western and Central European countries outside the European Community, especially the EFTA countries. With the conclusion of the EEA Treaty and the enlargement of the European Union by the accession of Sweden, Finland and Austria, this aspect of European media policy in the Council of Europe became less important. However, the democratisation of the former communist and/or socialist countries in Central and Eastern Europe and their subsequent accession to the Council of Europe, refocused the Council's media policy work. While in the past the member States of the Council of Europe could look back on similar, if not identical, traditions and experience in the field of freedom of the press and broadcasting, greater attention was now being directed to the problems of the fledgling democracies which, after decades of state-controlled media, had first to establish a free media system and build up independent and pluralistic media.
2. The establishment of a system of independent and pluralistic media that meets the requirements of a democratic society in Central and Eastern European countries became a prime objective of the Council of Europe's activities to promote democratic security at the pan-European level. The Declaration adopted by the Heads of State and Government of the Council of Europe at the Vienna Summit, in October 1993, underlined that guaranteed freedom of expression, particularly of the media, must constitute a decisive criterion for assessing any application for membership of the Council of Europe. With this in mind, some Central and Eastern European countries undertook specific commitments to guarantee media freedom at the time of their accession.
The importance which the Committee of Ministers attaches to the respect of media freedom is also reflected at a wider level in its decision to pay particular attention to freedom of expression and information in the framework of its procedure to monitor member States' compliance with commitments entered into when joining the Organisation.
In order to assist the Central and Eastern European countries with the democratic reform of their media systems, the Council of Europe has developed since 1989 a global strategy covering the various aspects of establishing free and independent media through the Demosthenes programme (for member States) and the Demosthenes-bis programme (for applicant countries). These programmes are based on forms of practical co-operation such as legislative expertises, seminars, workshops, training courses and study visits. The media make up one element of these programmes, which were integrated into the Council of Europe's Activities for the Development and Consolidation of Democratic Stability (ADCDS) in 1999.
The media component is designed to meet the needs expressed by both governments and media professionals in the Central and Eastern European countries benefiting from the programmes. The essential aim is to facilitate the setting-up and consolidation of independent and pluralistic media systems in these countries and to help those working in the media sector to adjust to the new demands stemming from the profound political, legal and economic changes which have taken place.
The core of the media initiatives consists of assistance for legislative reform designed to develop a legislative, administrative and regulatory framework for the media (both the written press and audiovisual media), which conforms to European standards. Particular attention is paid to the need to guarantee media independence and pluralism as well as journalistic freedoms and to avoid direct or indirect censorship. Further emphasis is placed on the transformation of state broadcasting into genuine public service institutions, independent of political power. Regarding the written press sector, the focus is on removing state monopolies on printing and the distribution of newspapers and other printed material. Legislative assistance takes the form of counselling and expert missions carried out in the country concerned in the presence of the authorities responsible for drafting the legislation. Counselling and advice is provided by independent European experts specialising in the field.
Information and awareness-raising activities are also undertaken, in particular in the form of seminars and workshops intended for the official circles concerned (policy makers, parliamentarians, civil servants, magistrates) in order to increase their awareness of the requirements of independent, pluralistic media systems in a democratic society. Training sessions for government spokespersons are also arranged in this context. These are designed to train officials to work with and through the media, while preserving the necessary political independence of the latter.
The translation of certain basic texts (the European Convention on Human Rights, the European Convention on Transfrontier Television, etc.) into non-official languages of the Council of Europe is another aspect of the awareness and information activities allowing policy makers and those working in the media sector to familiarise themselves with European standards.
The Council of Europe also acts as an intermediary to enable European media policy officials from national administrations or the newly established regulatory authorities to take part in practical study visits to national administrations or regulatory authorities in other countries.
Together with professional organisations such as the European Broadcasting Union, the Council of Europe has been able to satisfy the needs of media enterprises by providing the latter with practical in situ advice on problems relating to the new structures to be developed as well as their management. Experts could be seconded to the media undertakings concerned for a short period of time through such "flying consultancies".
In response to the request formulated at the 3rd European Ministerial Conference on Mass Media Policy, held in Cyprus in October 1991, a medium-term training Programme for media professionals in Central and Eastern European countries was set up. It is now open to professionals from all member States.
The medium-term training Programme is being implemented in co-operation with competent professional organisations, in particular the European Broadcasting Union (EBU), the World Association of Newspapers (WAN), the International Federation of Journalists (IFJ), Article 19, the European Journalism Centre, the Baltic Media Centre, CIRCOM Regional and the Alternative Information Network (AIM).
Diverse training activities corresponding to the wide range of training needs were offered in the early years of the programme, especially in the area of management which is essential for supporting the creation of new, sustainable media to replace the former state monopolies. Since then, new priorities have been added to the programme which include, in particular, the exercise of journalistic freedoms, the media's response to racism, xenophobia, anti-Semitism and all other forms of intolerance, the relationship between media and minorities, the media coverage of elections and more generally of events concerning society, as well as the relationship between the media and the administration of justice.
Through these support programmes, the Council of Europe has, over the last decade, carried out a total of almost 400 activities of all types, either alone or in collaboration with partner organisations. CDMM experts have also taken part in many of these activities. Some of the laws passed in recent years bear witness to the success of this support.
3. The CDMM itself and its working groups take particular account of the special situation of Central and Eastern European countries. The Committee of Experts on media concentrations and pluralism (MM-CM) closely monitors developments so as to counter as early as possible any excessive media concentrations, which have occurred for example in some of the "old" member States. In addition, the political texts drawn up by the CDMM for the 4th European Ministerial Conference on Mass Media Policy, held in Prague in December 1994, on the topics "Journalistic freedom and human rights" and "The future of public service broadcasting", specifically dealt with the problems emerging in this field in Central and Eastern European countries. Great attention was therefore paid by the experts in the countries concerned to the decisions taken at this Conference.
Immediately after the Conference, the CDMM set up a Group of Specialists on media in a pan-European perspective (MM-S-EP). On the basis of an analysis of the real needs of the new member States and the applicant countries in the area of media law and media policy, the Group was mandated to make proposals for measures to promote the further integration of these countries. Subsequently, the Group of Specialists organised practical training seminars on issues relating to media law. It also drew up Recommendation No. R (96) 10 on the guarantee of the independence of public service broadcasting, which lists basic principles to ensure editorial independence as well as institutional and financial autonomy, so as to avert where possible the danger of governmental or political influence. The Recommendation provides guidance for countries in which former state monopolies are being transformed into truly independent public broadcasting organisations.
4. The Recommendation therefore took up the commitments on shaping the public broadcasting system, which the European Ministers responsible for the media had entered into at the Prague Conference in their Resolution "The future of public service broadcasting", and provided further detailed information on how these commitments were to be fulfilled. The choice of conference location and topic was also designed to support the transformation process in Central and Eastern Europe. The strong reaction by the Czech media and broad coverage of the Conference proved that this goal had been fully achieved.
Nevertheless, it has to be pointed out that the Prague Conference did not just target Central and Eastern Europe, but also Western Europe: at that time efforts were already being made within the European Commission to play down the special socio-political role of public broadcasting, deny its specific mission and subject its activities and financing to uniform European competition regulations. The recognition by the European Ministers in Prague of the special role played by public service broadcasting - even in a world where the number of broadcasters and other information sources is constantly on the increase - was instrumental in ensuring the adoption of the 1997 Protocol on the system of public broadcasting to the Treaty of Amsterdam. In this debate, the Prague Resolution was often mentioned and it is still a reference document as shown, for example, by the current discussion in the Netherlands on the new draft media law.
5. The Group of Specialists is currently working on a Recommendation on the independence and functions of regulatory authorities for the broadcasting sector. As it will be the first international instrument in this field, the text is to pay particular attention to the needs of new member States or applicant countries.
6. The Council of Europe has also recently been involved in the implementation of the Stability Pact for South-Eastern Europe. The Council of Europe organises, co-ordinates and also partly finances many activities in the media field together with other organisations, especially the OSCE Representative on Freedom of the Media. These measures are designed to provide a regulatory framework for freedom of opinion and the media in line with Council of Europe standards. Steps to increase public awareness and provide training for professional groups and institutions concerned, such as judges, civil servants or regulatory authorities, aim to ensure that the day-to-day application of the legal framework does not deviate from Council of Europe standards and to assist the media in promoting a climate of tolerance and mutual understanding.
II. Emergence of new information and communications services
1. Since its creation, the CDMM has devoted much attention to new technological developments, such as satellite broadcasting, which could affect media law and policy. On the proposal of the CDMM, the European Ministers responsible for the media devoted their attention for the first time to the new communications technologies and their repercussions on law, society, the economy, education and culture during their 3rd Conference held in Cyprus in October 1991.
In their Resolution "New channels and means of mass communication in Europe", the ministers decided to promote the access of all European countries, including the less developed ones, and their populations to the new communications technologies. They advocated familiarising broad segments of the population with the use of new communications technologies and services. This early proposal has only materialised in recent years under the heading "media literacy".
Decisions taken at this Conference also provided renewed impetus to the work on the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite, with the result that it was finally opened for signature on 11 May 1994. It governs the copyright issues that were put aside during the work on the Television Convention. In particular, it stipulates which law applies to relations between television broadcasters and copyright holders in the case of transfrontier satellite broadcasting. Furthermore, the Convention provides for minimum harmonisation of the level of protection for the various categories of rights holders.
2. The increasing importance attached to the digital communications services, which have spread through global communications networks such as the Internet, led the CDMM to shift the focus of its work. It suggested that the 5th Ministerial Conference on Mass Media Policy, held in Thessaloniki in December 1997, deal exclusively with these issues. In particular, the effects of the new communications technologies on human rights and democratic values were to be discussed in this forum in order to examine the appropriateness of creating a new legal framework for the media. In preparation for this Conference, the CDMM set up in 1995 the Group of Specialists on the impact of new communications technologies on human rights and democratic values (MM-S-NT).
In the final texts, the Ministers responsible for the media welcomed the increased opportunities for freedom of opinion and information, artistic creation, cultural exchange and the involvement of individual citizens in public life brought about by the new communications technologies. At the same time, however, they stressed the potential dangers, including the possible misuse of these new technologies and communications and information services to disseminate information harmful to minors or detrimental to human dignity, the restriction of the circulation of information by "gatekeepers" or other obstacles to artistic creativity resulting from insufficient protection of rights holders in the new communications services. In particular, they expressed concern that some groups of the population might not be able to reap the benefits of the new services. In order to avoid a split in society into the information-rich and the information-poor, they proposed recognising and implementing the principle of universal community service: governments would have to ensure that all citizens, regardless of their place of residence, have access, at least at community level, to communications networks and new communications and information services at a reasonable cost. Furthermore, measures should be developed for training the public in the knowledge, understanding and actual use of these new services.
By further specifying the universal community service principle in Recommendation No. R (99) 14, the Council of Europe has continued its efforts to make this principle a reality.
3. Of course, the Council of Europe is not the only international organisation to deal with this issue. Given the omnipresence of the information technologies, it is an inescapable topic for almost all international organisations. A few months prior to the Thessaloniki Conference, Germany and the European Commission organised a European Ministerial Conference entitled "Global Information Networks: Realising the Potential". This conference focused primarily, however, on the opportunities for economic growth heralded by the wider use of information technologies. It is also to the Council of Europe's credit that it realised, even at a time of overwhelming Internet euphoria, that efforts to protect people and their rights and to promote democratic, social and cultural values had to remain in the forefront.
The results of the Thessaloniki Ministerial Conference, and the subsequent follow-up work of the CDMM, therefore met the expectations expressed by the Heads of State and Government of the member States of the Council of Europe in the Action Plan appended to their Declaration at the second Summit held in Strasbourg on 10-11 October 1997. They called for the development of "a European policy for the application of the new information technologies, with a view to ensuring respect for human rights and cultural diversity, fostering freedom of expression and information and maximising the educational and cultural potential of these technologies".
4. However, the work of the CDMM in the field of the new information and communications services has by no means come to an end with the adoption of Recommendation No. R (99) 14. The access of larger parts of the population to these services and the new communications technologies is only one, albeit very important, aspect of a host of problems brought about by the convergence of telecommunications, media and information technologies and the globalisation of networks. In its "Declaration on a European policy for new information technologies", issued on the 50th anniversary of the Council of Europe on 7 May 1999, the Committee of Ministers listed the many elements of European media policy which warrant particular attention at this time of change, bearing in mind the special tasks of the Council of Europe. The drawing-up of proposals to meet the challenges which the digitalisation of communications generate for media law and media policy will therefore continue to be a focus of the work of the CDMM and its Groups of Specialists.
III. Media concentrations – Promoting tolerance
It goes without saying that the CDMM continued its regular work alongside these two priority areas. Apart from the aforementioned activities in the fields of copyright and the protection of journalists, it is also worth mentioning achievements in the spheres of media concentrations and promoting tolerance through the media.
Preserving political and cultural pluralism and media diversity in Europe is a particular concern of the Council of Europe. As early as 1991, the CDMM set up a Committee of Experts on media concentrations and pluralism (MM-CM) that still exists, albeit in a slightly modified form. With the help of a network of correspondents, the Committee continually examined the development of the different facets of media concentrations and identified particularly serious problems that could warrant legal redress. The Committee ascertained that internationalisation and the trend towards ever-larger media units made it increasingly difficult to trace ownership and information sources. It therefore drew up guidelines designed to promote transparency in the media, which the Committee of Ministers adopted as Recommendation No. R (94) 13 on legal measures to be taken by member States. With the growth in digitalisation, the problems of maintaining fair access by all parties to the communications platforms owned by fewer and fewer companies are becoming prominent.
During their Vienna Summit held in October 1993, the Heads of State and Government adopted a Plan of Action on combating racism, xenophobia, anti-Semitism and intolerance. In accordance with this Plan of Action, one of the CDMM’s Groups of Specialists proposed measures aiming, on the one hand, to prevent racist and intolerant views being expressed in the media and, on the other, to promote a climate of tolerance through the media. This work generated two Recommendations (No. R (97) 20 on “hate speech” and No. R (97) 21 on the promotion of a culture of tolerance). They are addressed to the member States and/or the media organisations and contain proposals, in their respective areas of competence, on how to promote tolerance in society.
1. The Council of Europe can look back on fifty years of work in the field of media policy with satisfaction. There can be no doubt that it has made substantial progress, in this field too, towards its goal of achieving "greater unity" between member States. The many recommendations and conventions adopted by consensus are a clear sign. Not only through these instruments, but also by examining problems and organising fora in which to exchange information and opinions, the Council of Europe has led efforts in several sectors of European and global media policy and even contributed to making the media a European policy field in its own right. Outstanding examples of this leading role include the copyright agreements adopted as early as the 1960s and the Television Convention. The models for subsequent European instruments devised by the Council of Europe in the shape of Recommendations on exclusive rights or the protection of encrypted television services, also deserve a mention.
The indirect influence of the Council of Europe, although of course hard to quantify, through fruitful discussions between national experts in the CDMM and its working groups on the regulatory work in the member States, is also considerable. Alongside this successful work on regulatory policy, concrete practical measures, important for both the audiovisual sector and for European culture, such as the setting-up of the "Eurimages" fund and the European Audiovisual Observatory, are also among the positive achievements. Last but not least, particular political importance can be attached to the major contribution that the Council of Europe made in the 1990s to integrating new members through its co-operation and assistance programmes. Unfortunately, the Council of Europe has not always managed to make its pioneering successes sufficiently well known to the public.
2. Looking back over the last few decades, the focal points of its work are easy to identify: copyright issues in the sixties, the press in the seventies, transfrontier broadcasting in the eighties, while the last decade was marked by the new information and communications services and support for new members. The need for this support will probably become less pressing in the course of the current decade, whereas the issue of the new services will remain a priority area in terms of media policy. The Council of Europe is not the only player in this field. Convergence means that the media policy sector is becoming wider and the number of organisations involved, which are no longer exclusively European, is increasing. Despite its structural disadvantages in comparison to other organisations – it is limited to the drawing-up of international instruments requiring a consensus, a process that causes unwanted delays which, in turn, are aggravated by a lack of financial resources - the Council of Europe will have to hold its own in this broader field of players. If it is to do so, the Organisation will have to harness its strengths and concentrate on the key areas in which it has acquired a unique experience over the decades and in which other organisations, for reasons of mandate, will not be in such a strong position, at least in the foreseeable future.
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Council of Europe instruments prepared under the aegis of the CDMM
European Convention on Transfrontier Television
European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite
Resolution (74) 26 on the right of reply - position of the individual in relation to the press
Resolution (74) 43 on press concentrations
Declaration on the freedom of expression and information adopted on 29 April 1982
Recommendation No. R (84) 3 on principles on television advertising
Recommendation No. R (84) 17 on equality between women and men in the media
Recommendation No. R (84) 22 on the use of satellite capacity for television and sound radio
Recommendation No. R (86) 2 on principles relating to copyright law questions in the field of television by satellite and cable
Recommendation No. R (86) 9 on copyright and cultural policy
Recommendation No. R (86) 14 on the drawing up of strategies to combat smoking, alcohol and drug dependence in co-operation with opinion-makers and the media
Recommendation No. R (88) 1 on sound and audiovisual private copying
Recommendation No. R (88) 2 on measures to combat piracy in the field of copyright and neighbouring rights
Recommendation No. R (89) 7 concerning principles on the distribution of videograms having a violent, brutal or pornographic content
Recommendation No. R (90) 11 on principles relating to copyright law questions in the field of reprography
Recommendation No. R (91) 5 on the right to short reporting on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context
Recommendation No. R (91) 14 on the legal protection of encrypted television services
Recommendation No. R (93) 5 containing principles aimed at promoting the distribution and broadcasting of audiovisual works originating in countries or regions with a low audiovisual output or a limited geographic or linguistic coverage on the European television markets
Declaration on neighbouring rights adopted on 17 February 1994
Recommendation No. R (94) 3 on the promotion of education and awareness in the area of copyright and neighbouring rights concerning creativity
Recommendation No. R (94) 13 on measures to promote media transparency
Recommendation No. R (95) 1 on measures against sound and audiovisual piracy
Recommendation No. R (96) 4 on the protection of journalists in situations of conflict and tension
Declaration on the protection of journalists in situations of conflict and tension adopted on 3 May 1996
Recommendation No. R (96) 10 on the guarantee of the independence of public service broadcasting
Recommendation No. R (97) 19 on the portrayal of violence in the electronic media
Recommendation No. R (97) 20 on "hate speech"
Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance
Recommendation No. R (99) 1 on measures to promote media pluralism
Recommendation No. R (99) 14 on universal community service concerning new communication and information services
Recommendation No. R (99) 15 on measures concerning media coverage of election campaigns
Declaration on the exploitation of protected radio and television productions held in the archives of broadcasting organisations, adopted on 9 September 1999
Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information
* The author wishes to thank Dr. Frits Hondius, first Secretary to the CDMM, for his most valuable advice and contribution to this report.