Licensing of broadcasting - Transparance - Guarantees against arbitrarines

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2012-7/2European Court of Human Rights: Case Centro Europa 7 S.r.l. and Di Stefano v. ItalyIn 2009 Centro Europa 7 complained in Strasbourg that for a period of almost ten years the Italian Government hadnot allocated it any frequencies for analogue terrestrial television broadcasting, while the company had alreadyobtained a licence for TV broadcasting in 1999. The company submitted that the failure to apply the broadcastinglaw of 1997, the refusal to enforce the Constitutional Court’s judgments imposing the effective allocation of fre-quencies for new private TV stations and the duopoly existing in the Italian television market (RAI and Mediaset)were in breach of Article 10 of the Convention. In this regard Centro Europa 7 especially referred to the privatebroadcaster Mediaset - owned by the family of Prime Minister Silvio Berlusconi - being treated preferentially andbeing the reason for the years-long postponing of making frequencies available to other broadcasting companies.The Grand Chamber of the European Court of Human Rights reiterates that a situation whereby a powerful eco-nomic or political group in society is permitted to obtain a position of dominance over the audiovisual mediaand thereby exercise pressure on broadcasters and eventually curtail their editorial freedom undermines the fun-damental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, inparticular where it serves to impart information and ideas of general interest, which the public is moreover entitledto receive. It also clarifies that in such a sensitive sector as the audiovisual media, in addition to its negative dutyof non-interference the State has a positive obligation to put in place an appropriate legislative and administra-tive framework in order to guarantee effective pluralism. It recognises that the failure to allocate frequencies toCentro Europa 7 deprived the licence it obtained in 1999 of all practical purpose since the activity it authorisedwas de facto impossible to carry out for nearly ten years, until June 2009. This substantial obstacle amountedto an interference with Centro Europa 7’s exercise of its right to impart information and ideas. According to theEuropean Court this interference was not justified under the scope of Article 10 §2 of the Convention as it was not‘prescribed by law’.The Court indeed finds that the Italian legislative framework until 2009 lacked clarity and precision and did notenable Centro Europa 7 to foresee, with sufficient certainty, the point at which it might be allocated the frequenciesand be able to start performing the activity for which it had been granted a licence in 1999, notwithstanding thesuccessive findings of the Constitutional Court and the CJEU that the Italian law and practice was in breach ofconstitutional provisions and EU law. Furthermore the laws in question were couched in vague terms which did notdefine with sufficient precision and clarity the scope and duration of the transitional schemes for the allocationof frequencies. The Court also notes that the authorities did not observe the deadlines set in the licence, asresulting from Law no. 249/1997 and the judgments of the Constitutional Court, thereby frustrating Centro Europa7’s expectations. The Italian Government has not shown that the company had effective means at its disposalto compel the authorities to abide by the law and the Constitutional Court’s judgments. Accordingly, it was notafforded sufficient guarantees against arbitrariness. For these reasons the Court considers that the legislativeframework in Italy at the time did not satisfy the foreseeability requirement under the Convention and deprivedthe company of the measure of protection against arbitrariness required by the rule of law in a democratic society.This shortcoming resulted, among other things, in reduced competition in the audiovisual sector. It thereforeamounted to a failure by the State to comply with its positive obligation to put in place an appropriate legislativeand administrative framework to guarantee effective media pluralism.These findings were sufficient to conclude that there has been a violation of Centro Europa 7’s rights to thefreedom to express and impart ideas and information under Article 10 of the Convention. The Court reached thesame finding in relation to Article 1 of Protocol No. 1 (right of property) being violated, as the interference withthe Centro Europa 7 company’s property rights did not have a sufficiently foreseeable legal basis either within themeaning of the Courts case-law.Centro Europa 7’s claim of EUR 10,000,000 in respect of non-pecuniary damage was also awarded. The Courtconsidered it appropriate to award this lump sum in compensation for the losses sustained and the loss of earningsresulting from the impossibility of making use of the licence by Centro Europa 7. In addition, the Court consideredthat the violations it had found of Article 10 of the Convention and Article 1 of Protocol No. 1 in the instantcase must have caused Centro Europa 7 “prolonged uncertainty in the conduct of its business and feelings ofhelplessness and frustration”. The Court also took into account that Centro Europa 7 already has been awardedcompensation at domestic level, referring to the judgment of 20 January 2009 of the Consiglio di Stato awardingthe company the amount of EUR 1,041,418 in compensation.• Judgment by the European Court of Human Rights (Grand Chamber), 7 June 2012, Centro Europa 7 S.r.l. and Di Stefano v. Italy, nr. 38433/09IRIS 1http://merlin.obs.coe.int/redirect.php?id=15970ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Case of Centro Europa 7 S.r.l. and Di Stefano v. Italy

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European Court of Human Rights: Case of Centro Europa 7 S.r.l. and Di Stefano v. Italy

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