Advertising on foreign TV stations will be broadcast legally. The obligation to exclude retransmitted advertising has been declared unconstitutional

The complaint was submitted in the context of the action initiated in 2020 by a group of cable operators (Moldtelecom, TV BOX, ARAX-IMPEX, Orange Moldova, and STV IT Company) against the sanctions applied by the Broadcasting Council for the retransmission of foreign advertising. According to the Code of Audiovisual Media Services, distributors were obliged to exclude this type of advertising, as well as teleshopping. The obligation was introduced at the end of 2019, at the proposal of socialist MP Adrian Lebedinschi. Representatives of media service distributors claimed that compliance with this provision requires considerable financial and human resources, invoking the risk that a large part of the television stations retransmitted in Moldova will disappear from the broadcasting schedule.

After lifting the exception of unconstitutionality, the High Court argued that it analyzed the issue through the prism of the right to freedom of expression, recalling that Moldova has ratified the European Convention on Transfrontier Television. According to the Convention, the signatories must ensure freedom of expression and information in accordance with the Convention for the Protection of Human Rights. “The parties shall guarantee freedom of reception and shall not object to the retransmission on their territory of program services complying with the provisions of the Convention. In other words, the Court held that the right to freedom of expression also includes the right to retransmit foreign programs that include advertising or teleshopping,” says the CC ruling.

“The legislator has established an absolute obligation and has not differentiated media service distributors that retransmit programs from states that have ratified the Convention from states that have not ratified it. This general measure applies to predetermined situations, regardless of the circumstances of each case,” the CC document says. “Therefore, given that the legislator set up an absolute obligation, without taking into account measures that are less intrusive into the freedom of expression of audiovisual media service distributors and without having to differentiate between the programs retransmitted from the states party to the European Convention on Transfrontier Television and the states that are not party to the Convention, the Court concluded that the challenged provisions of article 66 (7) of the Code of Audiovisual Media Services are unconstitutional,” the CC concluded.

Silvia Bojoga, lawyer of ARAX-IMPEX, one of the cable operators that referred the matter to the Court, welcomes this decision and finds it is fair. “We came back to a natural situation, because that measure was far too excessive for distributors. They excluded an obligation that was an enormous burden on our shoulders, involved very high costs and could not be technically implemented, because we had to monitor all 160 stations that we are currently retransmitting from abroad and fish out that advertising, cut it from the content. This requirement generated chaos in the retransmission activity,” Silvia Bojoga explained.

According to her, the legislator could have found other ways to solve the problem. “The Parliament explained that it somehow wanted to increase the revenue for domestic media service providers. But at what cost? At the expense of distributors.... We advocated for more logical or less invasive methods for the field of retransmission,” Silvia Bojoga said.