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Рy26 June 2018
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Eliminating proposals for banning programs that apologetically present the communist regime, restricting possibilities to dismiss the audiovisual public companies’ general manager, as well as specifying more precise criteria for BCC members appointment - these are some of the key proposals in the notices of the Council of Europe, Freedom House and the Organization for Security and Co-operation in Europe (OSCE) on the new draft Media Services Code, recently published on the Parliament's website.
The Council of Europe experts state that most of the draft text definitions are in line with European directives in this area and do not require great remarks on this part.
At the same time, one of the experts’ recommendations defines that the term ‘prime time’ is a general one and, based on analyzes of the internal audiovisual audience, parliamentarians should review if indeed the maximum audience hours range between 6:00 and 24:00 on Saturdays, Sundays and holidays.
With reference to chapter two, CoE experts recommend excluding the paragraph that prohibits ‘transmission and/or retransmission of audiovisual media services which have the freedom of expression restricting effect’ because it is unclear and can be misused. Moreover, other provisions contain requirements on content restrictions. The OSCE notice endorses this recommendation, because it ‘could lead to interpretations and arbitrary restrictions’.
The Council of Europe experts also state that provisions banning the audiovisual programs that apologetically present the communist regime could constitute a freedom of expression violation. Experts point out that communist governance forms exist in several countries and there is an active communist party in the Republic of Moldova, whilst banning programs that support communism would violate human rights. The OSCE notice gives a similar recommendation in this regard, stating that provisions banning programs that apologetically present totalitarian regimes are too broad and do not correspond to the current international legal norms.
For the chapter on linear audiovisual media services, the CoE experts suggest that prolongation of the broadcasting license should not be limited to one time. They believe that as long as license conditions are met, there should be no limit to the number of license extensions and that this can benefit both broadcasters and viewers.
The CoE experts argue that, as a rule, media services distributors do not need to obtain the retransmission authorization from the regulatory body, while sending a simple notification should be sufficient.
In regards to the Broadcasting Council, the CoE experts recommend that its financial activity report be published on the institution's website.
As for the national media service providers, the CoE experts drafted a series of recommendations to improve the operational efficiency and to ensure a proper separation of the Observers Council from the executive. These include restricting possibilities for the general director dismissal, reducing Parliament's role in selling company's assets and recommending being more transparent in the annual report.
Both CoE and OSCE notices recommend introduction of more professional requirements and qualifications for the Teleradio-Moldova Company general manager position, in order to guarantee a more professional performance and efficiency of the function. The OSCE also states that the provision establishing loss of support from the Observers Council members’ as one of the Teleradio Moldova general director dismissal causes is too vague and broad. It should therefore be excluded or replaced by more detailed and objective provisions on lack of professional performance.
The OSCE also writes that the draft Code requires a specific reference to the regulatory authority role, consisting in monitoring and guaranteeing the effective and independent functioning of the media in public service, in accordance with the objective, mission and activities set out in the law and in any other relevant instruments.
In addition, the OSCE recommends excluding the provision requiring all programs broadcast in other languages to be translated into Romanian, drawing attention of the legislators to the need of ensuring respect for the national minorities’ rights.
In the Freedom House notice most provisions are considered positive, underlining that the new draft Code brings a significant improvement compared to the current one. One of the first recommendations provided in this notice concerns the establishment of a clear and concrete measure that should be implemented to eliminate the dominant position in public opinion formation, followed by sanctions for non-observance of such measures by broadcasters. In particular, FH's notable recommendation on the new Code is the one requiring that media owners be ascertained up to the individual and final beneficiary.
Regarding the regulatory authority, the Freedom House believes that the draft Code complies with most international standards, including proposal and appointment of BCC members, as well as criteria designed to ensure the functional and financial independence of the Broadcasting Council.
The Freedom House also recommends to clearly and specifically stipulate the Council's right to adopt its own internal regulations, a recommendation otherwise provided by the other two international institutions mentioned above. In particular, the FH recommends considering the possibility of a special review on adopting additional regulations that would settle the jurisdiction limits between the Broadcasting Council and the Competition Council.
All three institutions that revised the new draft Code have agreed on the need to clarify, or even remove, the references to the Broadcasting Council's competence toward video sharing platforms.
Several television broadcasters, TV8, PRO TV Chisinau and Canal Regional, and two media NGOs, the Independent Journalism Center and the Association of Independent Press, have recently signed a letter addressed to the Council of Europe, complaining that the proposed daily quota of eight hours of local content per day, set out in the draft Media Services Code, is too large for the Moldovan market.
The draft Media Services Code was prepared by the parliamentary working group on improving the media legislation. The document was voted in the Parliament’s first reading on 20 April 2018 and is due to be debated and voted in the second reading.
The Council of Europe experts state that most of the draft text definitions are in line with European directives in this area and do not require great remarks on this part.
At the same time, one of the experts’ recommendations defines that the term ‘prime time’ is a general one and, based on analyzes of the internal audiovisual audience, parliamentarians should review if indeed the maximum audience hours range between 6:00 and 24:00 on Saturdays, Sundays and holidays.
With reference to chapter two, CoE experts recommend excluding the paragraph that prohibits ‘transmission and/or retransmission of audiovisual media services which have the freedom of expression restricting effect’ because it is unclear and can be misused. Moreover, other provisions contain requirements on content restrictions. The OSCE notice endorses this recommendation, because it ‘could lead to interpretations and arbitrary restrictions’.
The Council of Europe experts also state that provisions banning the audiovisual programs that apologetically present the communist regime could constitute a freedom of expression violation. Experts point out that communist governance forms exist in several countries and there is an active communist party in the Republic of Moldova, whilst banning programs that support communism would violate human rights. The OSCE notice gives a similar recommendation in this regard, stating that provisions banning programs that apologetically present totalitarian regimes are too broad and do not correspond to the current international legal norms.
For the chapter on linear audiovisual media services, the CoE experts suggest that prolongation of the broadcasting license should not be limited to one time. They believe that as long as license conditions are met, there should be no limit to the number of license extensions and that this can benefit both broadcasters and viewers.
The CoE experts argue that, as a rule, media services distributors do not need to obtain the retransmission authorization from the regulatory body, while sending a simple notification should be sufficient.
In regards to the Broadcasting Council, the CoE experts recommend that its financial activity report be published on the institution's website.
As for the national media service providers, the CoE experts drafted a series of recommendations to improve the operational efficiency and to ensure a proper separation of the Observers Council from the executive. These include restricting possibilities for the general director dismissal, reducing Parliament's role in selling company's assets and recommending being more transparent in the annual report.
Both CoE and OSCE notices recommend introduction of more professional requirements and qualifications for the Teleradio-Moldova Company general manager position, in order to guarantee a more professional performance and efficiency of the function. The OSCE also states that the provision establishing loss of support from the Observers Council members’ as one of the Teleradio Moldova general director dismissal causes is too vague and broad. It should therefore be excluded or replaced by more detailed and objective provisions on lack of professional performance.
The OSCE also writes that the draft Code requires a specific reference to the regulatory authority role, consisting in monitoring and guaranteeing the effective and independent functioning of the media in public service, in accordance with the objective, mission and activities set out in the law and in any other relevant instruments.
In addition, the OSCE recommends excluding the provision requiring all programs broadcast in other languages to be translated into Romanian, drawing attention of the legislators to the need of ensuring respect for the national minorities’ rights.
In the Freedom House notice most provisions are considered positive, underlining that the new draft Code brings a significant improvement compared to the current one. One of the first recommendations provided in this notice concerns the establishment of a clear and concrete measure that should be implemented to eliminate the dominant position in public opinion formation, followed by sanctions for non-observance of such measures by broadcasters. In particular, FH's notable recommendation on the new Code is the one requiring that media owners be ascertained up to the individual and final beneficiary.
Regarding the regulatory authority, the Freedom House believes that the draft Code complies with most international standards, including proposal and appointment of BCC members, as well as criteria designed to ensure the functional and financial independence of the Broadcasting Council.
The Freedom House also recommends to clearly and specifically stipulate the Council's right to adopt its own internal regulations, a recommendation otherwise provided by the other two international institutions mentioned above. In particular, the FH recommends considering the possibility of a special review on adopting additional regulations that would settle the jurisdiction limits between the Broadcasting Council and the Competition Council.
All three institutions that revised the new draft Code have agreed on the need to clarify, or even remove, the references to the Broadcasting Council's competence toward video sharing platforms.
Several television broadcasters, TV8, PRO TV Chisinau and Canal Regional, and two media NGOs, the Independent Journalism Center and the Association of Independent Press, have recently signed a letter addressed to the Council of Europe, complaining that the proposed daily quota of eight hours of local content per day, set out in the draft Media Services Code, is too large for the Moldovan market.
The draft Media Services Code was prepared by the parliamentary working group on improving the media legislation. The document was voted in the Parliament’s first reading on 20 April 2018 and is due to be debated and voted in the second reading.
