Any Interference in the Work of the BCC is Regrettable

Recently, a decision of the BCC [Broadcasting Coordinating Council], whereby two broadcasters were sanctioned with a warning for failure to comply with the provisions of Article 6 (1) of the Broadcasting Code and Article 13 of the Broadcasters’ Code of Conduct, came to public attention. In addition, to exercise its duties, the BCC through this text also decided to conduct a general monitoring of the NTV Moldova television station, for a period of 7 days.
 
One of the broadcasters, who disagreed with this decision, challenged it in the administrative court and requested, among other things, application of measures to secure the claim by suspending the BCC decision in the part of “conducting a general monitoring of the NTV Moldova television station for a 7-day period.”
 
The first instance court suspended the above BCC decision in the part of general monitoring of the television station for a period of 7 days. In other words, the court, in order to secure the action, forbade the BCC to “conduct” the monitoring. A ruling to secure the action is executed immediately, in accordance with the procedure prescribed for the execution of judicial acts (Article 178 of the Code of Civil Procedure). Subsequently, the court of appeal maintained the ruling on partial suspension of the decision, invoking that by non-securing the action, the disputed BCC decision could already be enforced, so the legal effect of a court judgment would be null, as execution in the part of “monitoring the television station” would be impossible to reverse. The appeal court’s decision is irrevocable.
 
Broadcasting Code provisions regarding the duties of the BCC
 
In accordance with Article 40 of the Broadcasting Code, inter alia, the BCC has the following duties:
- to supervise the correctness of the content of programs provided by broadcasters, only after audiovisual communication of these programs (Article 40 (1) b));
- to monitor, in accordance with Article 40 (1) b), the content of program services provided by broadcasters and by service distributors, on a regular basis and whenever the Council deems it necessary or whenever it is notified about a broadcaster’s or a service distributor’s non-compliance with relevant legal provisions and regulations or with their obligations under the broadcast license (Article 40 (1) b)).
In exercising its duties, the Broadcasting Coordinating Council adopts binding decisions (Article 40 (3)). Thus, through a decision in the exercise of its duties, the BCC can order the monitoring of the correctness of the program content provided by broadcasters whenever it is necessary or whenever it receives a complaint. And BCC decisions may be challenged in administrative court by any person who considers him/herself prejudiced by them (Article 40 (5)), in order to obtain the annulment of the act, recognition of the right claimed and repair of the damage caused to him/her.
 
Why the courts’ motivation is disputed by media experts
 
Media experts were confused about the motivation given by courts, and pointed to the interference in the exclusive legal power of the BCC to monitor the correctness of the program content provided by broadcasters and by service distributors. Indeed, the decision to monitor a television station is not a sanction applied to the broadcaster under the Broadcasting Code, but a binding decision in the exercise of duties by the BCC under the law. Even if this ruling does not solve the substance of the case, and the court may subsequently issue a decision that will not find the disputed BCC decision illegal, such interference in the work of the BCC is regrettable.
 
It is certain that the ruling mentioned above is binding for all public authorities, public associations, officials, organizations and individuals, and it is enforced strictly throughout the Republic of Moldova. And unjustified non-enforcement of court acts, orders, requests, delegations, summonses or other legal appeals, as well as lack of consideration for the court, impose the liability prescribed by law (Article 16 of the Code of Civil Procedure).
 
How can the situation be solved?
 
This measure of securing the action can be annulled at the BCC’s request by the court that ordered the prohibition to monitor the television station until the substance of the case is examined, under Article 180 of the Code of Civil Procedure. Annulment of measures for securing the action is ordered by court through a decision rejecting the action at the time when it pronounces on the merits. The regulations regarding the final nature of the court act that settles the substance of the case are also fully applicable to the provisions regarding the measures for securing the action. If the action is dismissed, previous measures to secure the action remain in effect until the court judgment becomes final. If the action is admitted, previous measures to secure the action remain in effect until the judgment is enforced.
 
This dangerous precedent of prohibiting the monitoring of a television station, even for a short time, can only be removed by court under the rules of civil procedure. I hope that relevant legal rules will be applied correctly, as such practices are dangerous in a democratic society.
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The article was published within the Advocacy Campaigns Aimed at Improving Transparency of Media Ownership, Access to Information and promotion of EU values  and integration project, implemented by the IJC, which is, in its turn, part of the Moldova Partnerships for Sustainable Civil Society project, implemented by FHI 360.
This article is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The content are the responsibility of author and do not necessarily reflect the views of USAID or the United States Government.