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The Unbearable Lightness

of Media Ownership

Transparency

Regional Conference

Transparency in Media Ownership and Preventing

Media Concentration

Skopje, 25-26 September 2014

Prof. Dr. Peggy Valcke

KU Leuven, Faculty of Law, iMinds-ICRI

& European University Institute, Florence

Why do we need

transparency?

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1° What we inherited from the ancient GreekIn the year 507 B.C., the Athenian leader Cleisthenes introduced a system of political reforms that he

called demokratia, or “rule by the people.”

This system was comprised of three separate institutions: the ekklesia, a sovereign governing body that wrote laws and dictated foreign policy; the boule, a council of representatives from the ten Athenian tribes; and the dikasteria, the popular courts in which citizens argued cases before a group of lottery-selected jurors. Although this Athenian democracy would survive for only two centuries, Cleisthenes’ invention was one of ancient Greece’s most enduring contributions to the modern world.

2° What we learned from wise men like Mandela

The view that the press is the fourth estate rests on the thought

that the media's role is to act as the custodian of the public

interest and as a watchdog on the actions of government.

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Media ownership rules:

A must to ensure free and diverse media which are

instrumental for a well functioning democracy!

Prevent media monopolies and/or excessive media

concentrations

Prevent conflicts of interest: disentangle media power

and political power

the minds of men are easily corrupted…

"Communication – understood as a lively and civilised debate among citizens – is

the lifeblood of democracy. The media are its veins and arteries. Information they

provide should be comprehensive, diverse, critical, reliable, fair and trustworthy.“(former Vice-President Margot Wallström; Jan. 2007)

Transparency of media

ownership is essential for

media pluralism, democracy

and the rule of law

“The key that unlocks the door of freedom of information and freedom of speech” (M. Haraszti)

Or, put differently:

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Towards the public

o to form an opinion on the value which they

should give to the information, ideas and

opinions disseminated by the media

Towards regulatory authorities

o to enforce anti-concentration rules in the

media (cf. presentation J.-F. Furnémont)

and other measures to promote media

pluralism

Broadly Recognised

COUNCIL OF EUROPE

• Article 6 ECTT

• Committee of Ministers Recommendation (94) 13 on Measures to Promote Media

Transparency (see also Recommendations on media pluralism, 1999 and 2007

and Parliamentary Assembly Resolution 1920 (13) on the state of media freedom

in Europe)

• Commissioner for Human Rights

EUROPEAN UNION

• Article 5 AVMS Directive; Article 5 E-Commerce Directive

• Eur. Parliament Resolution of 2008 on media concentration and pluralism; and

Resolution of 21 May 2013 on the EU Charter: standard settings for media

freedom across the EU

• EU Study on Indicators for Media Pluralism (2009)

• European Commission’s High-level Group on Media Freedom & Pluralism (2013)

OTHER

• OSCE Representative for Freedom of the Media

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ECHR, Centro Europa 7 v. Italy (2012)“As it has often noted, there can be no democracy without pluralism. Democracy thrives on freedom of expression. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself.”

“…to ensure true pluralism in the audiovisual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary in addition to allow effective access to the market so as to guarantee diversity of overall programmecontent, reflecting as far as possible the variety of opinions in the society at which the programmes are aimed.”

ECHR, Centro Europa 7 v. Italy (2012)“A situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their editorial freedom undermines the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive.”

“…in such a sensitive sector as the audiovisual media, in addition to its negative duty of non-interference the State has a positive obligation to put in place an appropriate legislative and administrative frameworkto guarantee effective pluralism.”

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N.B. Council of Europe members

Why do we need to

act?

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Recent reports and empirical studies stress:

• “Lack of media ownership transparency and opacity

of funding sources.”(EU High Level Expert Group on Media Pluralism, 2013; http://ec.europa.eu/digital-agenda/en/high-level-group-media-freedom-and-pluralism)

• “In the majority of countries studied the absence or

limited nature of media specific or general disclosure

provisions means that citizens are unable to

establish who owns or controls the media

operating in their country.” (Access Info Europe & Open Society Media Program, Report on

"Transparency of Media Ownership in Europe" (2012) and

Recommendations (2013); http://www.access-info.org/en/media-transparency)

2012 Study of 19

Council of Europe

countries (plus Marocco)

• Legal framework in most countries is insufficient to

guarantee transparency of media ownership.

• Disclosure to media regulators of beneficial owners of

media outlets is not currently required in most of the

countries.

• No unified or standard approach to collecting or

requiring disclosure to the public of media ownership

data, particularly with regard to print and online media.

• General company law does not suffice

• NGO or CSO initiatives, voluntary reporting or self-

regulation do not suffice

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FINDINGS Access Info Europe 2012 Study of 19

Council of Europe countries (plus Marocco)

“There is a need for clear international

standards on transparency of media

ownership and on the legal framework

required to achieve it. There is currently no

clear standard, despite the recognition that

transparency is important. Such

recommendations as do exist are non-

binding and have proved ineffective.”

http://www.access-info.org/en/media-transparency

Study on Media Democratization in the Western

Balkans: A Cross-National Comparison (2013)

K. Irion, “Follow the Money! Ownership & Financial

Transparency should be a Media Policy Standard”,

LSE Media Policy Blog, 30 April 2014

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Broadly Recognised ?COUNCIL OF EUROPE

• Article 6 ECTT

• Committee of Ministers Recommendation (94) 13 on Measures to Promote Media

Transparency (see also Recommendations on media pluralism, 1999 and 2007

and Parliamentary Assembly Resolution 1920 (13) on the state of media freedom

in Europe)

• Commissioner for Human Rights

EUROPEAN UNION

• Article 5 AVMS Directive; Article 5 E-Commerce Directive

• Eur. Parliament Resolution of 2008 on media concentration and pluralism; and

Resolution of 21 May 2013 on the EU Charter: standard settings for media

freedom across the EU

• EU Study on Indicators for Media Pluralism (2009)

• European Commission’s High-level Group on Media Freedom & Pluralism (2013)

OTHER

• OSCE Representative for Freedom of the Media

A clear case of

moral hypocrisy?*

At least some discrepancy between

statements and actions...

(*) cf. title of this presentation

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What do we need to

do?

ACTION POINT 1

Adopt clear and precise legal framework

with mandatory reporting obligations• That apply to broadcast, print, online media

• That allow to identify the beneficial and ultimate owners of

media outlets

Essential basic information• Name and contact details of media outlet; constitutional documents

• Size of shareholdings over a threshold of 5%

• Name and contact details of direct owners with over 5% shareholding

• Identity of those with indirect control or significant interest (> 5%)

• Citizenship/residence status of individuals with over 5% shareholding

• Country of domicile of company with over 5% shareholding

• Identity of beneficial owners where shares are held on behalf of another,

e.g. via brokerage or silent ownership

• Financial accounts / audit reports (sources of media revenue)

Regular updates! (report subsequent changes in ownership)

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ACTION POINT 1

Adopt clear and precise legal framework

with mandatory reporting obligations

Additional disclosure obligations (“transparency

of influence”)• Interests of owner in other media organisations

• Interests of owner in non-media organisations

• Positions held by any owner in a political party or employment as a

public official

• Family affiliations (including a definition of “affiliation”) between any

owners (N.B. again with 5% threshold)

• Senior management, for example directors (of a company), key

executive officers, managing editor

• Details of relative voting weights where these are not equally distributed

among shareholders, and minutes of annual general meetings including

records of voting.

Best practices – some examples

• Norway

• Austria (Federal Constitutional Act on the transparency of media

cooperation, advertising orders and support for owners of periodical media)

• Croatia (cf. presentation D. Hajduk)

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ACTION POINT 2

Enable (with resources) national media

authorities to collect, and make public,

information to identify beneficial and

ultimate owners of media outlets

• Powers to sanction non-compliance with

information obligations (also in case of incomplete

or inaccurate info)

• Make information available in open electronic

format (preferably online and searchable), at no

cost to the public.

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GERMANY

Cf. presentation B. Malzanini

TWO-PRONGED APPROACH

• Media-specific reporting rules (Art. 21 Rundfunkstaatsvertrag andequivalent provisions in broadcasting laws of Länder) => obligationfor broadcasters to report ownership structure to State Media Authority

• Systematic monitoring of media concentration => Kommission zurErmittlung der Konzentration im Medienbereich (KEK)

• http://www.kek-online.de

Netherlands• No media-specific reporting rules

• Systematic media concentration monitoring: Commissariaat

voor de Media: collects data from business records

provided by the Chamber of Commerce and makes this

information available to the public through its website,

Mediamonitor.nl.

• List of all electronic media service providers available on

website regulator

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Belgium

• Media-specific reporting rules for radio and TV providers

(including on-demand providers):

o When applying for a licence or notifying the service: need to provide

information on company statutes and financial structure;

o Afterwards inform the regulator of any changes

• Belgian media regulators (Vlaamse Regulator voor de

Media; Conseil Supérieur de l’Audiovisuel): based on own

data, as well as data from business records provided by the

Chamber of Commerce and annual accounts available from

Central Balance Sheet Office, they make available to the

public annual reports and/or online statistics (infra)

• List of all electronic media service providers available on

websites regulators

http://www.csa.be/pluralisme/

http://www.vlaamseregulatormedia.be/

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ACTION POINT 3

Consider / Improve complementary

measures

• Freedom of information acts

• Conflict of interest rules, disclosure of major

donors or sources of finance, explanation of the

organization’s editorial line (co/self-regulation)

• Media literacy

• International standardization and cooperation

ACTION POINT 4

Beware of chilling effects!

Media ownership rules should not

transform into a censorship

instrument!• Which media organizations are covered by

reporting requirements?

only professional media (though not necessarily

only companies); threshold

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ACTION POINT 4

Beware of chilling effects!

• To whom must disclosure be made?

independence of the media authorities from

sector and government (accountability to

Parliament; sufficiently resourced)

one-way reporting requirement which in no way

implies a requirement to register the media outlet

or obtain permission to operate

avoid duplication, not unduly burdensome

ACTION POINT 4

Beware of chilling effects!

• What is required to be disclosed?

Information should serve purpose

Indirect or beneficial interests!

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Article 29

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Semper fidelis et audax!

Thank you for your attention

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ANNEXES

• European Convention on Transfrontier

Television – Article 6: Provision of informationo 1 The responsibilities of the broadcaster shall be clearly and

adequately specified in the authorisation issued by, or contract

concluded with, the competent authority of each Party, or by any other

legal measure.

o 2 Information about the broadcaster shall be made available,

upon request, by the competent authority of transmitting Party.

Such information shall include, as a minimum, the *name or

denomination, *seat and *status of the broadcaster, the name of

the *legal representative, the *composition of the capital, the

nature, purpose and mode of *financing of the programme

service the broadcaster is providing or intends providing.

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Article 5 AVMS Directive

• Member States shall ensure that audiovisual media service

providers under their jurisdiction shall make easily, directly

and permanently accessible to the recipients of a service

at least the following information:

• (a) the name of the media service provider;

• (b) the geographical address at which the media service

provider is established;

• (c) the details of the media service provider, including its

electronic mail address or website, which allow it to be

contacted rapidly in a direct and effective manner;

• (d) where applicable, the competent regulatory or

supervisory bodies.

Article 5 E-Commerce Directive• 1. In addition to other information requirements established by Community

law, Member States shall ensure that the service provider shall render

easily, directly and permanently accessible to the recipients of the service

and competent authorities, at least the following information:

o (a) the name of the service provider;

o (b) the geographic address at which the service provider is established

o (c) the details of the service provider, including his electronic mail address,

which allow him to be contacted rapidly and communicated with in a direct and

effective manner;

o (d) where the service provider is registered in a trade or similar public register,

the trade register in which the service provider is entered and his registration

number, or equivalent means of identification in that register;

o (e) where the activity is subject to an authorisation scheme, the particulars of

the relevant supervisory authority;

o (f) as concerns the regulated professions: any professional body or similar

institution with which the service provider is registered […]

o (g) where the service provider undertakes an activity that is subject to VAT, the

identification number referred to in Article 22(1) of the sixth Council Directive

77/388/EEC

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Further Reading• Y. Stolte and R. Craufurd Smith, “The European Union and media ownership transparency:

the scope for regulatory intervention”, Open Society Foundations, 2010. 23 p. http://mediapolicy.org/wp-content/uploads/the-european-union-media-ownership-transparency.pdf

• Group of Specialists on Media Diversity, “Methodology for monitoring media concentrationand media content diversity”, 2009. 13p. http://www.coe.int/t/dghl/standardsetting/media/Doc/H-Inf(2009)9_en.pdf

• A. Harcourt, “Report on methodology for the monitoring of media concentration, pluralism and diversity”, Report for the Group of Specialists on Media Diversity, 2008. 82 p.

• IRIS Special, “Converged Markets - Converged Power? Regulation and Case Law”, European Audiovisual Observatory, Strasbourg, 2012, http://www.obs.coe.int/about/oea/pr/irisspecial2012-01.html

• MediaAct (Media accountability and transparency in Europe) http://www.mediaact.eu/project.html

• Media and Democracy in Central and Eastern Europe (MDCEE) reports http://mde.politics.ox.ac.uk/

• MEDIADEM reports (2011-2013); http://www.mediadem.eliamep.gr/

• Access Info Europe & Open Society Media Program "Transparency of Media

Ownership in Europe“; http://www.access-info.org/en/media-transparency

• Open Society Foundations, Mapping Digital Media Reports (2012-2013); http://www.opensocietyfoundations.org/projects/mapping-digital-media

• Independent study on indicators for media pluralism in the EU Member States (2008-2009); http://ec.europa.eu/information_society/media_taskforce/pluralism/study/index_en.htm

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