Media Governance and Industries Lab Blog

By Gabor Polyák[1] and Krisztina Rozgonyi[2]

Media regulators in Europe are key actors in safeguarding pluralism, and their independence is a crucial factor in this role. However, there have been recent cases in which these regulators are formally compliant with set legal requirements on independence, but in reality act very differently and enforce rather political agendas, thus not serving the public at large. Within the current European policy framework there are no safeguards and no entities to ensure independent operation of those regulators.

The preferred means to strength the European control mechanism is through the establishment of a monitoring system that evaluates independence on the basis of specific, evidence-based criteria. We offer new approaches, to re-focus on governance mechanism monitoring of regulators: a proper assessment of the authority’s work calls for investigating transparency, and reviewing how it conducts market entry proceedings and levies sanctions. The ongoing review process of the European audiovisual policies offers a great opportunity to take new directions.

The European Commission (EC) has been consulting since last summer on Directive 2010/13/EU on Audiovisual Media Services (AVMSD), first to check whether the Directive is currently fit for purpose as part of the Regulatory Fitness and Performance Programme (REFIT), and, second, to collect evidence and views on the future media services policy. The EC has published a first assessment on the preliminary trends observed in the public consultation, concluding in this regard that the respondents have shared “converging views on whether changes are necessary regarding the rules on the scope of application of the Directive as well as on the independence of national regulators”. A new legislative proposal amending the AVMSD was recently adopted and published by the EC..

In 2015 we already argued for necessary revision of Article 30 of the AVMSD – which currently only makes a vague reference to presumed independent regulatory bodies – in order to strengthen regulatory Independence based on performance outcome of National Media Regulators (NRAs). The objective of independence in regards of media pluralism is to ensure that all players of the market operate on equal ground: different opinions have equal chances of reaching an audience, and – as recent research has also highlighted – only independent regulators can guarantee equal treatment in terms of market access and potential sanctions.

There are already problematic cases, where the paradox is that a NRA could be formally compliant with currently existing requirements on formal indicators of independence, but actually operate in a manner exhibiting critical signs of de facto non-compliance. The Hungarian case is one of those that serves as an example of insufficiency with respect to those indicators (Gilardi and Maggetti 2011).

Our research on the operation of the Hungarian media regulator – with special regard to its market entry procedures and sanctioning practices – has shown serious anomalies in terms of plurality of market entrants and diversity of the voices they have represented as well as proportionate and non-discriminatory sanctions applied by the regulator. (For example, the Hungarian NRA has contributed to the increase of the coverage area of a single radio station by 13 frequencies between 2010 and 2013, and this radio has won in all cases in which it submitted any valid application. And all of the frequency tender decisions – and most of the NRA’s decisions – are unanimous, strongly signalling limited independence at the NRA’s work.) These anomalies can only be derived by a deep analysis of the NRA’s entire practice.

Therefore we have argued further to consider the ways in which accountability of these institutions could and should be improved. We have proposed complementing independence indicators with conclusions derived from reviewing the NRA’s actual work and decisions, focusing on transparency of decision-making (e.g. availability of detailed justification of decisions; frequency of public consultations and their impact), on market entry procedures (e.g. the intensity of competition in tender procedures) and on sanctioning practices (e.g. public availability of the criteria employed in applying sanctions and the consistency of their application).

With the introduction of regular monitoring of NRAs based on the suggested indicators along with effective enforcement mechanisms in the event of grave signs of non-independent operation, the accountability of EU media regulators will be significantly enhanced and thus their existence, operation and democratic legitimacy could also become more strongly justified (Irion and Radu 2013).

It is already clear which direction the EC is taking with its legislative proposal. The new AVMSD enshrines the independence of audiovisual regulators (new Article 30) by requiring MSs to designate their NRAs legally and functionally independently from the industry and government. According to the new rules MSs shall also ensure that regulators operate in a transparent and accountable manner and “in accordance with the objectives of this Directive, in particular media pluralism, cultural diversity, consumer protection, internal market and the promotion of fair competition”.

The proposed new rules are highly encouraging, offering the opportunity to the EC to enforce them with strict scrutiny and deploy even ‘hard’ regulatory means in case of breach of the rules, e.g. launch an infringement procedure in cases where the decisions of an NRA are non-compliant with media pluralism.  The main open question involves the ‘how’: how will the EC implement and enforce them? Who will oversee – and in what way – the operation of those regulators and evaluate whether they are complying with new EU law? In our input and answer to the EC during the consultation process we further explained our arguments on why the enforcement process must be ‘as close as possible’ to the EC. The Hungarian case has clearly underlined the need for EU-level assessments of monitoring reports delivered by designated institutions – potentially by the European Union Agency for Fundamental Rights (FRA) or by an independent monitoring center, as already suggested by the Freiberga report. This job has to be done strictly separate by the regulators or by their bodies, as the European Regulators Group for Audiovisual Media Services (ERGA).

Accountability – being accountable for one’s action towards others – is an issue of good governance, of ‘legitimacy’ and ‘credibility’, and multinational discourses on better regulation are also dependant on the need for independent capacity to oversee the execution of better regulation policies by regulators (OECD 2005, 2010, 2012).  ERGA, despite its strong agreement with the importance of independence and its issuing of statements on alarming developments in this regard – cannot and should not play this role as being them. ‘Independence’ as a matter of enforcing fundamental rights cannot be subject to self-regulation but requires well-grounded and democratic supervision mechanisms with proper checks and balances. Moreover, regular and optimal cooperation among NRAs – including personal contacts – might jeopardise any objective and independent mutual assessment of performance, and no formal procedure can eliminate this risk. Therefore, our proposed European level monitoring system for assessing the performance of NRAs based on new de facto and de iure indicators – as detailed above – is necessary.

Strengthening accountability structures enhances the necessary legitimacy of media regulators in a democratic state and a more active involvement of the EC in the enforcement of European fundamental rights. This could also support re-examination of media and cultural policies reflecting the factors of globalisation, of transnational flows of people and their integration as well as of the political will regarding Europe’s social making (Sarikakis 2007), offering a new role and direction of the European Union in the media sphere.

References

Gilardi, F. & Magetti, M. 2011. Formal and Informal Aspects of Independence. In: Levi-Faur, D. Handbook on Regulation.

Edward Elgar, Irion, K. & Radu, R. 2013. Delegation to independent regulatory authorities in the media sector: A paradigm shift through the lens of regulatory theory. In: Schulz, W. & Valcke P. & K. Irion, eds. The Independence of the Media and Its Regulatory Agencies. Shedding New Light on Formal and Actual Independence Against the National Context, Bristol UK/ Chicago USA: Intellect 2013, p. 15-54.

OECD (2005), ‘Designing independent and accountable regulatory authorities for high quality regulation’, OECD Working Party on Regulatory Management and Reform, http://www.oecd.org/regreform/regulatorypolicy/35028836.pdf. Accessed 05 May 2016.

—— (2010), ‘Better regulation in Europe: An OECD assessment of regulatory capacity in the 15 original member states of the EU’, http://www.oecd.org/gov/regulatory-policy/44952994.pdf. Accessed 05 May 2016.

—— (2012), ‘Recommendation of the Council on Regulatory Policy and Governance’, http://www.oecd.org/governance/regulatory-policy/49990817.pdf. Accessed 05 May 2016.

Sarikakis, K. (2007) The Place of Media and Cultural Policy in the EU. European Studies 24: 13-22.

[1] Associate professor at the University of Pécs; research fellow of the University of Münster; leader of the Hungarian NGO Mertek Media Monitor

[2] Media Governance and Research Lab, Department of Communication, University of Vienna