In its judgment of April 5, 2022, NIT S.R.L. v. Republic of Moldova, the European Court of Human Rights (ECHR) clarifies the legal and administrative framework for guaranteeing media pluralism. States have a positive obligation to set up a legislative framework to protect pluralism in the audiovisual media, to preserve their editorial freedoms. Media pluralism can be defined as the independence of the media from control and interference by economic, social or political actors. This concept has two components, which will be presented later. This judgment takes a closer look at the specificities of the proportionality test as regards to freedom of expression.
The facts of the case
In this case, the Audiovisual Coordination Council, the body in charge of audiovisual regulation in the Republic of Moldova, withdrew the broadcasting license of a private audiovisual television channel called NIT S.R.L.
NIT was founded in 1997, six years after the end of the Soviet Union. It began broadcasting nationwide in 2004. It is very close to the Communist Party of the Republic of Moldova. However, the Moldovan Audiovisual Code imposes on the channel a strict obligation of impartiality and neutrality about political debates.
The channel was later accused of breaching this Code. The Audiovisual Coordination Council took several measures against the channel. These sanctions included warnings, fines, temporary withdrawal of the right to broadcast advertising, and temporary suspension of its broadcasting license, until pronouncing the definitive withdrawal of its license in 2012. This last decision was taken following « comparative and chronometric content measurements » demonstrating the breaches committed.
The channel is therefore accused of manipulating information, spreading false news, and inciting hatred and violence. These acts are contrary to the principle of access to complete, truthful, and useful information, imposed by Moldovan law.
The appeals lodged by the broadcasting company failed to obtain its license. In fact, the Supreme Court considered that “the Moldovan State has chosen to apply the principle of pluralism of opinions by obliging television and radio channels, beneficiaries of public broadcasting networks, to offer airtime to proponents of all points of view and ideas”. The Audiovisual Coordination Council’s decision was, therefore, justified, as the company had refused to apply the rules relating to pluralism of opinion, despite the numerous injunctions and sanctions previously issued.
Assessment by the European Court
The television company appealed to the European Court of Human Rights, claiming that the withdrawal of its broadcasting license infringed the principle of freedom of expression protected by article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to property enshrined in article 1 of Additional Protocol No. 1 to the Convention. The Court based its decision on these texts, as well as on the resolution and recommendation on journalism ethics and media pluralism adopted by the Council of Europe.
First, it recalls the definition of external pluralism, which corresponds to the positive obligation of the State to ensure the broadcasting and representation of several organs, thus allowing the wide circulation of various media expressing different points of view.
The Court then returned to the notion of internal pluralism, which “refers to pluralism within a single media outlet. It relates to the way in which socio-political diversity is reflected in the content of the media, i.e. the representation in the media of different cultural groups and divergent political or ideological views and opinions“. On this basis, the Court held that there had indeed been interference with the company’s right to freedom of expression as a result of the Moldovan government’s revocation of its license. However, this withdrawal was justified by “relevant and sufficient grounds“, so that the interference was necessary to preserve the equilibrium of a democratic society.
Concerning the sanction imposed by the national courts, the ECHR seemed more nuanced. Firstly, it affirmed that the channel was aware of the obligations laid down in the Audiovisual Code. What’s more, since the company was able to maintain an affinity with a political party, it was criticized for not giving airtime to other political groups. Nevertheless, the Court noted that the broadcasting company was the only one in the country to allow an opposing party to express itself. So the Court concluded, the impact of this sanction was necessarily negative for external pluralism.
The Court therefore performed a proportionality check to analyze the infringement of the company’s rights. To do so, it first checks that the interference is provided for by law, that it aims to protect the rights of others, and finally that it serves a legitimate purpose. The Court added that in matters of audiovisual pluralism, it was necessary to ensure that the principles of external pluralism (existence of several channels) and internal pluralism (difference of options and programs within the same channel) were respected.
This judgment recently provided the basis for a decision by the French Conseil d’Etat on February 13, 2024 (RSF v. ARCOM). In this case, Reporters sans frontières (RSF) had asked the Conseil d’Etat to overturn the decision of the French Audiovisual and Digital Communication Authority (ARCOM). According to the association, the CNEWS channel did not meet its obligations in terms of media pluralism. The Conseil d’Etat agreed, finding that the channel had failed to comply with its internal and external pluralism obligations, based on the decision of April 5, 2022.
Jeanne CASAMATTA
M2 Cyberjustice – Promotion 2023-2024
Sources :
http://libertescheries.blogspot.com/2022/04/le-pluralisme-des-courants-dopinion-en.html
