Information Note on the Court’s case-law 261
April 2022
NIT S.R.L. v. the Republic of Moldova [GC] - 28470/12
Judgment 5.4.2022 [GC]
Article 10
Article 10-1
Freedom of expression
Justified revocation of broadcasting licence of a TV channel after repeated and serious breach of the statutory requirement to ensure political balance and pluralism in news bulletins: no violation
Facts – The applicant company had a television channel (NIT) which it broadcast nationally from 2004. Their broadcasting licence was revoked by the Audiovisual Coordinating Council (“the ACC”) in 2012, for repeated failure to comply with the requirement that broadcasters ensure political and social balance and pluralism, as laid down in Article 7 of the domestic Audiovisual Code of 2006 (“the Code”). In particular, the channel was accused of politically biased programmes, favouring the Party of the Communists of the Republic of Moldova (PCRM - an opposition party at the material time) and broadcasting distorted news items. The applicant company challenged the ACC’s decision unsuccessfully before the national courts.
Law – Article 10: The licence revocation had amounted to an interference with the applicant company’s right to freedom of expression and had been prescribed by law. The relevant domestic law was formulated sufficiently clearly in order to fulfil the requirements of precision and foreseeability. Moldova’s licensing system was consistent with the third sentence of Article 10 § 1, as it was capable of contributing to the quality and balance of programmes; that constituted a sufficient legitimate aim under the third sentence of Article 10 § 1. The interference had also corresponded to the legitimate aim of protecting the “rights of others” under Article 10 § 2. The Court therefore had to determine whether the interference had been “necessary in a democratic society”:
(a) General principles: The need to develop the Court’s case-law on media pluralism
The existing standards on media pluralism had been developed chiefly or exclusively in the context of complaints of unjustified State interference with an applicant’s Article 10 rights and where the Court had relied, inter alia, on the principle of media pluralism in finding a violation. In the present case, however, it was the other dimension of media pluralism which was at stake, in that the applicant company had complained of restrictions on its freedom of expression which had been based on the grounds of ensuring political pluralism in the media, with the aim of enabling diversity in the expression of political opinion and enhancing the protection of the free-speech interests of others in audiovisual media. A question arose in the present case of striking a proper balance between the competing interests of the community in safeguarding political pluralism in the media, and of respecting the principle of editorial freedom.
A further specific feature was the emphasis laid in the relevant national legal framework on internal pluralism, namely the obligation on broadcasters to present different political views in a balanced manner, without favouring a particular party or political movement. In contrast, earlier cases had been more concerned with issues of external pluralism, which meant the existence of various media outlets, each expressing a different point of view, and was basically achieved by ensuring that the media were not concentrated in the hands of too few (monopoly, duopoly, other positions of dominance).
The Court clarified in this respect that neither aspect, internal or external pluralism, should be considered in isolation from each other; on the contrary, both aspects had to be considered in combination with each other. Thus, in a national licensing system involving a certain number of broadcasters with national coverage, what might be regarded as a lack of internal pluralism in the programmes offered by one broadcaster might be compensated for by the existence of effective external pluralism. However, it was not sufficient to provide for the existence of several channels. What was required was to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes were aimed.
There might be different approaches to achieving overall programme diversity in the European space. A number of national licensing systems tended to rely on the diversity of perspectives provided by the different licensed operators, coupled with structural safeguards and general obligations of fair coverage, while other national systems required stricter content-based duties of internal pluralism. Article 10 did not impose a particular model in that respect.
The Court further examined the issue of the privileged position of the freedom of the press to report on political issues and other matters of public interest in this context. In other words, it considered whether the strict scrutiny, traditionally applicable to any restrictions imposed by the Contracting States, ought to correspondingly limit States’ discretion in determining the means of ensuring political pluralism in the area of licensing audiovisual media. In principle, States should enjoy a wide discretion in their choice of the means to be deployed in order to ensure pluralism in the media; notably, the margin to be accorded in that regard should be wider than that normally afforded to restrictions on expression on matters of public interest or political opinion. However, their discretion in that respect would be narrower, depending on the nature and seriousness of any restriction on editorial freedom that the chosen means might entail.
At the same time, the Court had to be satisfied that the contents of the relevant national legal norms and their application in the concrete circumstances of a given case, seen as a whole, had produced effects compatible with the Article 10 guarantees and had been attended by effective safeguards against arbitrariness and abuse. The fairness of proceedings and procedural guarantees afforded were factors which in some circumstances might have to be taken into account when assessing the proportionality of an interference with freedom of expression.
The existence of procedural safeguards were of particular relevance to the examination of the proportionality of the impugned revocation of the applicant company’s broadcasting licence: it had constituted the most severe sanction under the relevant national legal provisions. In cases such as the one at hand, the severity of the sanction was a factor calling for closer scrutiny by the Court and for a narrower margin of appreciation.
(b) Application to the regulatory framework in place
The duty on a broadcaster, when giving airtime to one political party or movement, to do likewise in respect of other political parties or movements, could be considered from the angle of the preconditions for affording enhanced protection of journalistic freedom. The impugned provisions of the Code had not specified that a broadcaster had been under a duty to give an equal amount of airtime to all political parties. They had been under a duty to ensure political balance and pluralism. It appeared that that requirement could have been satisfied by offering an opportunity to comment or reply: the latter was an important element of freedom of expression and fell within the scope of Article 10.
The internal pluralism policy as embodied in the Code had received a positive assessment by Council of Europe experts. While that policy might be seen as rather strict, the present case related to a period before Moldova had transitioned to terrestrial digital television. At that time, the number of national frequencies had been very limited. Moreover, following the post-2001 election of the PCRM as the only governing party and the ensuing media situation, the authorities had been under a strong positive obligation to put in place broadcasting legislation ensuring the transmission of accurate and balanced news and information reflecting the full range of political opinions (see Manole and Others v. Moldova). In that context, the legislative choices underlying the adoption of the provisions in question had been carefully considered and genuine efforts had been made at parliamentary level to strike a fair balance between the competing interests at stake.
The degree of external pluralism, related to the existence of four other television broadcasters with nationwide coverage at the time, was not a reason for calling into question the requirement to observe the internal pluralism rules. All broadcasters, whether public or private, had been subjected to the same rules, which had been applied not to the entire audiovisual content of licensed broadcasters but only to their respective news bulletins.
Implementation of the impugned requirements had been monitored by the ACC, a specialist body established by law. The Code included safeguards to secure its independence and to protect its decision-making from undue government influence and political pressures. Its meetings, monitoring reports and decisions were accessible to the public and the broadcasters’ representatives were given an opportunity to attend and to submit comments. The ACC was required to provide reasons for any decision to impose a sanction, which could be challenged before the courts.
Finally, the internal pluralism governance practice put in place by the Moldovan authorities did not seem to be markedly different from that of many other Council of Europe member States. Overall, the respondent State had acted well within its margin of appreciation in the manner in which it had designed the national legal and administrative framework with a view to achieving pluralism in audiovisual media.
(c) Application of the regulatory framework in NIT’s case
The Court determined that the impugned decision had been supported by relevant and sufficient reasons:
The sanction had followed a five-day monitoring process. The Court saw no reason to call into question either the relevance or accuracy of the monitoring methodology used by the ACC, or its findings, which had been upheld by the national courts.
The ACC had found that: the time devoted to one political party (PCRM) had been positive or neutral, whilst the time devoted to its opponent had been mostly negative; persons, institutions or political parties referred to or mentioned in a negative light had not been given a platform to present their own points of view in response; the news bulletins had contained information promoting a unilateral point of view, sometimes not supported by evidence, and had made use of features capable of distorting reality; and they had promoted aggressive journalistic language.
In this connection, the national authorities had viewed as an aggravating factor the fact that the news bulletins had used very strong language to describe the government, the parties forming it and their leaders (comparing one leader to “Hitler”, and referring to all as “criminals, “bandits”, “crooks”, “swindlers”, “group of criminals” etc.).
It was true that there was little scope under Article 10 § 2 for restrictions on political speech or on debates of matters of public interest; that governments had to be subjected to close scrutiny also by public opinion; and that there were serious doubts, given the context, that the relevant news bulletin statements could be considered to have amounted to incitement to violence, hatred or xenophobia, or that they could have affected the country’s territorial integrity and national security, as the Government had argued. Nevertheless, taking into account the foregoing, and the fact that the exercise of freedom of expression carried with it duties and responsibilities, the news reporting at issue could hardly be said to have been of a kind calling for enhanced protection afforded to press freedom under Article 10. The Court was therefore not persuaded that, by conducting news reporting in the way it had done, the NIT had contributed to political pluralism in any meaningful way.
The Court was mindful of the fact that the severity of the impugned measure might have adversely affected the applicant company’s operations in a manner having a potentially “chilling effect” on the freedom of expression of other licensed broadcasters in Moldova. However, in the specific circumstances of the present case, the domestic authorities had acted within their margin of appreciation in achieving a reasonable relationship of proportionality between the competing interests at stake:
On the one hand, the licence revocation, the most severe of the sanctions, had entailed a shutdown of NIT’s broadcasting activities. On the other hand, the news bulletins, broadcast nationwide, had been capable of having a considerable impact.
In accordance with the Code, the revocation of NIT’s licence had occurred after a gradual and uninterrupted series of sanctions for the same or similar types of breaches (twelve sanctions over a period of three years: the issuing of a public warning, the withdrawal of the right to broadcast advertisements for a defined period, the imposition of a fine and then the suspension of the right to broadcast for a certain period). The seriousness of the actions imputed to NIT appeared to have resided not only in its persistence in refusing to comply with the requirements on internal pluralism but also in the nature and accumulation of the transgressions and their gravity when seen as a whole. That had entitled the authorities to consider that applying the most serious of sanctions had been warranted by the applicant company’s defiance.
The applicant company had contended that the revocation, as well as the majority of the sanctions, had been politically motivated: they had been imposed after a change in power, the PCRM becoming the only opposition party and NIT being a platform for its promotion and criticism of the governing forces. The Court therefore had to scrutinise closely the safeguards against arbitrariness and abuse: the Code contained detailed rules pertaining to the ACC’s structure and the selection, appointment and functioning of its members, designed to secure its independence and to safeguard against undue governmental influence. At the material time, six out of the nine ACC members had been appointed before the change of government. Even though some high-profile politicians had made public statements calling for the channel to be shut down, that could not alone be regarded as a sufficiently concrete and strong indication that the ACC had failed to act independently. NIT’s allegations had been duly examined by the courts. In sum, no concrete evidence had been adduced in the domestic proceedings and in turn before the Court to support the allegation that the ACC had sought to hinder NIT from expressing critical views of the government, or had pursued any other ulterior purpose.
It was of particular importance that the measure had not prevented NIT from using other means to broadcast its programmes, including news bulletins, and could not prevent the applicant company from pursuing other income-generating activities. Indeed, the applicant company had continued to share content through its Internet homepage and YouTube channel. Moreover, the impugned measure had not had a permanent effect: the applicant company could have reapplied for a broadcasting licence one year after the revocation.
The Court also examined the fairness of the proceedings and the procedural safeguards afforded in the present case, including: the public nature of the meeting in which ACC took its decision to monitor NIT’s news bulletins, and the representation of the NIT at that and previous meetings, as well as the possibility to adjourn such a meeting; the ability to challenge the ACC’s decision before the competent courts and ask for a stay of execution; and the provision of reasons by the competent courts when dismissing the applicant company’s request for a stay of execution. Such procedural safeguards played a particularly important role in situations where a measure as intrusive as the revocation of a broadcasting licence had immediate effect upon its publication.
Conclusion: no violation (fourteen votes to three).
The Court also held, by fifteen votes to two, that there had been no violation of Article 1 of Protocol No. 1 (control of the use of property). Noting that the applicant company’s pecuniary and other proprietary interests had been sufficiently taken into account in the relevant domestic proceedings, the Court found that the State, acting within its wide margin of appreciation in the area, had struck a fair balance between the general interest of the community and the property rights of the applicant company.
(See also Manole and Others v. Moldova, 13936/02, 17 September 2009, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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