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ARTICLE 19 OF UNIVERSAL DECLARATION OF HUMAN RIGHTS

PREFACE

Broadcasting is by far the most important source of information, as well as of entertainment, for most people in countries around the world. High levels of illiteracy along with the difficulty of distributing newspapers mean that broadcasting is the only media which is accessible for many people. For the poor, newspapers may be prohibitively expensive, and some people simply find it easier and more enjoyable to watch or listen to the news than to read it. Furthermore, broadcasting plays a very important role as a cheap, accessible form of entertainment.

As a result of its centrality as a source of information and news, and its growing profitability, governments and dominant commercial interests have historically sought to control broadcasting. All too frequently, the public broadcaster operates largely as a mouthpiece of government rather than serving the public interest. In many countries, broadcasting was until recently a State monopoly, a situation which still pertains in some States. In other countries, private broadcasting is becoming increasingly important and a variety of mechanisms have been used to try to control it. Governments have exerted control through the licensing process while commercial interests have sought to monopolise the broadcasting sector and to focus on lowquality but profitable programming.

These Principles elaborate a set of standards on how to promote and protect independent broadcasting and yet ensure that broadcasting serves the interests of the public. They address the complex issue of how to regulate in the public interest and yet prevent that regulation from becoming a means of government control. They also address the need for regulators to prevent commercial interests from becoming excessively dominant and to ensure that broadcasting serves the interests of the public as a whole.

These Principles are part of ARTICLE 19’s International Standards Series, an ongoing effort to elaborate in greater detail the implications of freedom of expression in different thematic areas. They are intended to be used by campaigners, broadcasters, lawyers, judges, elected representatives and public officials in their efforts to promote a vibrant, independent broadcasting sector that serves all regions and groups in society.

BACKGROUND

These Principles set out standards for broadcast freedom. They apply to specific regimes for the regulation of broadcasting but also apply more generally to State and even private action in this area and the overall legal framework for freedom of expression. They recognise both the need for independent broadcasting, free of government or commercial interference, and the need in some areas for positive action to ensure a vibrant, diverse broadcasting sector.

These Principles are based on international and regional law and standards, evolving state practice (as reflected, inter alia, in national laws and judgments of national courts) and the general principles of law recognised by the community of nations. They are the product of a long process of study, analysis and consultation overseen by ARTICLE 19, drawing on extensive experience and work with partner organisations in many countries around the world.

SECTION 1 General Principles

Principle 1: The Right to Freedom of Expression and Information 

1.1 Everyone has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, orally, in print, in the form of art, through the broadcast media or through any other media of his or her choice.

1.2 The right to freedom of expression includes both the right of broadcasters to be free of State, political or commercial interference and the right of the public to maximum diversity of information and ideas in broadcasting.

1.3 Broadcast content should never be subject to prior censorship either by the government or by regulatory bodies. Any sanctions for breach of regulatory rules relating to content should be applied only after the material in question has been broadcast.

Principle 2: Editorial Independence

2.1 The principle of editorial independence, whereby programming decisions are made by broadcasters on the basis of professional criteria and the public’s right to know, should be guaranteed by law and respected in practice. It should be up to broadcasters, not the government, regulatory bodies or commercial entities, to make decisions about what to broadcast, subject to Sections 6 (Content Issues) and 9 (Election Coverage).

2.2 This Principle protects both general editorial policy (it is not legitimate, for example, to prescribe how broadcasters should report on war or to require them to promote a certain economic model) and specific editorial decisions.

2.3 Broadcasters should never, subject to Principle 31 (Direct Access Political Broadcasts), be required to carry specific broadcasts on behalf of, or to allocate broadcasting time to, the government.

Principle 3: Promoting Diversity

3.1 Diversity implies pluralism of broadcasting organisations, of ownership of those organisations, and of voices, viewpoints and languages within broadcast programming as a whole. In particular, diversity implies the existence of a wide range of independent broadcasters and programming that represents and reflects society as a whole.

3.2 The State has an obligation to take positive measures to promote the growth and development of broadcasting, and to ensure that it takes place in a manner which ensures maximum diversity. It also has an obligation to refrain from imposing restrictions on broadcasters which unnecessarily limit the overall growth and development of the sector.

3.3 Effective measures should be put in place to prevent undue concentration, and to promote diversity, of ownership both within the broadcast sector and between broadcasting and other media sectors. Such measures should take into account the need for the broadcasting sector as a whole to develop and for broadcasting services to be economically viable.

Principle 4: Emergency Measures

The legal framework for broadcasting should not allow State actors to assume control of broadcasters – either over their equipment or their broadcasts – in an emergency. Should a genuine state of emergency arise which absolutely necessitates such measures, special legislation can be passed at that time, to the extent strictly required by the exigencies of the situation, in accordance with international law.

Principle 5: Liability for the Statements of Others

Broadcasters should be protected against liability for the statements of others in the following circumstances:


SECTION 2 The Broadcasting Environment

Principle 5: Liability for the Statements of Others

6.1 The State should promote universal and affordable access to the means of communication and reception of broadcasting services, including telephones, the Internet and electricity, regardless of whether such services are provided by the public or private sectors. One idea in this regard is communication centres in libraries and other places to which the public has access.

6.2 The State should take measures to ensure maximum geographical reach of broadcasting, including through the development of transmission systems. Access to publicly owned transmission systems should, subject to capacity limits, be provided to all broadcasters at reasonable rates and on a nondiscriminatory
basis.

Principle 7: Infrastructure

7.1 The State should promote the necessary infrastructure for broadcast development, such as sufficient and constant electricity supply and access to adequate telecommunications services.

7.2 A special effort should be made to ensure that broadcasters can take advantage of modern information technologies, such as the Internet, and satellite and digital broadcasting.

Principle 8: Economic Environment

The State should promote a general economic environment in which broadcasting can flourish. Whether or not specific measures are required will depend on the context but any measures adopted should be fair, transparent and non-discriminatory. Measures may include:


SECTION 3 Frequencies

Principle 9: Frequency Planning

9.1 Decision-making processes at all levels, international and national, about the allocation of the frequency spectrum between all frequency users should be open and participatory, should involve bodies responsible for broadcast regulation, and should ensure that a fair proportion of the spectrum is allocated to broadcasting uses.


9.2 A process should be put in place to develop a frequency plan for those frequencies allocated to broadcasting (broadcasting frequencies), in order to promote their optimal use as a means of ensuring diversity. The process should be open and participatory, and should be overseen by a body that is protected against political and commercial interference. The frequency plan, once adopted, should be published and widely disseminated.


9.3 The frequency plan should ensure that the broadcasting frequencies are shared equitably and in the public interest among the three tiers of broadcasting (public, commercial and community), the two types of broadcasters (radio and television) and broadcasters of different geographic reach (national, regional and local).


9.4 A frequency plan may provide that certain frequencies should be reserved for future use for specific categories of broadcasters in order to ensure diversity and equitable access to frequencies over time.

Principle 10: Independence

All public bodies which exercise powers in the areas of broadcast and/or telecommunications regulation, including bodies which receive complaints from the public, should be protected against interference, particularly of a political or commercial nature. The legal status of these bodies should be clearly defined in law. Their institutional autonomy and independence should be guaranteed and protected by law, including in the following ways:

Principle 11: Explicit Guarantee of Independence

The independence of regulatory bodies, as well as a prohibition on interference with their activities and members, should be specifically and explicitly provided for in the legislation which establishes them and, if possible, also in the constitution. While there is no particular form of words that must be used for this purpose, the following is one way of guaranteeing independence:

The [name of body] shall enjoy operational and administrative autonomy from any other person or entity, including the government and any of its agencies. This autonomy shall be respected at all times and no person or entity shall seek to influence the members or staff of the [name of body] in the discharge of their duties, or to interfere with the activities of the [name of body], except as specifically provided for by law.

Principle 12: Broadcast Policy

Legislation establishing regulatory bodies should set out clearly the policy objectives underpinning broadcast regulation, which should include promoting respect for freedom of expression, diversity, accuracy and impartiality, and the free flow of information and ideas. Regulatory bodies should be required to take into consideration and to promote these policies in all their work, and to act in the public interest at all times.

Principle 13: Membership

13.1 Members of the governing bodies (boards) of public entities which exercise powers in the areas of broadcast and/or telecommunications regulation should be appointed in a manner which minimises the risk of political or commercial interference. The process for appointing members should be set out clearly in law. Members should serve in their individual capacity and exercise their functions at all times in the public interest.

13.2 The process for appointing members should be open and democratic, should not be dominated by any particular political party or commercial interest, and should allow for public participation and consultation. Only individuals who have relevant expertise and/or experience should be eligible for appointment. Membership overall should be required to be reasonably representative of society as a whole.

13.3 The following exclusions or ‘rules of incompatibility’ should apply. No one should be appointed who:

13.4 Members should be appointed for a fixed term and be protected against dismissal prior to the end of this term. Only the appointing body should have the power to dismiss members and this power should be subject to judicial review. A member should not be subject to dismissal unless he or she:

13.5 The terms and conditions of membership, as well as the responsibilities of members, should be set out clearly in law. No other terms, conditions or responsibilities should apply. In particular, no minister or other government representative should have the power to impose terms, conditions or responsibilities on members. Neither individual members nor the body itself should receive instructions from any body other than the one that appointed the members.

13.6 The rules relating to payment and reimbursement of members should be set out clearly in law in a manner that does not allow for discretion in relation to individual members. Members should be prohibited from receiving any funds in connection with their functions as members other than those provided for by law.

13.7 The power to adopt internal rules, for example relating to meetings and quorum, should either be set out in law or vest in the regulatory body itself.

Principle 14: Remit

14.1 The powers and responsibilities of regulatory bodies, for example in relation to licensing or complaints, should be set out clearly in the legislation which establishes them, and these powers and responsibilities should not be subject to change other than through amendment of the relevant legislation. These powers and responsibilities should be framed in such a way that regulatory bodies have some scope to ensure that the broadcasting sector functions in a fair, pluralistic and smooth manner and to set standards and rules in their areas of competence, given the complexity of these tasks and the likelihood of unforeseen issues.

14.2 The law should provide explicitly for clear, transparent and fair processes in relation to all powers exercised by regulatory bodies which affect individual broadcasters, either existing or prospective. All decisions should be subject to the principles of administrative justice and be accompanied by written reasons.

Principle 15: Accountability

15.1 Regulatory bodies should be formally accountable to the public through a multi-party body, such as the legislature or a committee thereof, rather than a minister or other partisan individual or body. Regulatory bodies should be required by law to produce a detailed annual report on their activities and budgets, including audited accounts. This annual report should be published and widely disseminated.

15.2 All supervision of regulatory bodies should be exercised in relation to actions already taken (a posteriori) and should never have the purpose of trying to influence an individual decision.

Principle 16: Judicial Review

All decisions of regulatory bodies which affect individuals should be subject to judicial review.

Principle 17: Funding

17.1 Regulatory bodies should be adequately funded, taking into account their mandates, by a means that protects them from arbitrary interference with their budgets. The framework for funding and for decisions about funding should be set out clearly in law and follow a clearly defined plan rather than being dependent on ad hoc decision-making. Decisions about funding should be transparent and should be made only after consultation with the body affected.


17.2 Funding processes should never be used to influence decision-making by regulatory bodies.

SECTION 5 Licensing

Principle 18: Licence Requirement

Broadcasters should be required to obtain a licence to operate, subject to the principles set out in this Section. For purposes of this requirement, broadcasters may be defined to include terrestrial, satellite and/or cable broadcasting, but not the Internet.

Principle 19: Responsibility for Licensing

19.1 All licensing processes and decisions should be overseen by an independent regulatory body that meets the conditions of independence set out in Section 4.

19.2 The responsible regulatory body should be required to issue licences in accordance with the frequency plan and in a manner which promotes diversity in broadcasting. Licences should be issued to all three tiers of broadcasting and to both types of broadcasters.

Principle 20: Eligibility

20.1 There should be no blanket prohibitions on awarding broadcasting licences to applicants based on either their form or nature, except in relation to political parties, where a ban may be legitimate. In particular, applicants should not be required to have a particular legal form, such as incorporation. Nor should certain types of applicants, such as religious bodies, be subject to a blanket ban on receiving licences. Instead, the regulatory body should have the power to make licensing decisions on a case-by-case basis.

20.2 Restrictions may be imposed on the extent of foreign ownership and control over broadcasters but these restrictions should take into account the need for the broadcasting sector as a whole to develop and for broadcasting services to be economically viable.

Principle 21: Licensing Processes

21.1 The process for obtaining a broadcasting licence should be set out clearly and precisely in law. The process should be fair and transparent, include clear time limits within which decisions must be made and allow for effective public input and an opportunity for the applicant to be heard. It may involve either a call for tenders or ad hoc receipt by the licensing body of applications, depending on the situation, but where there is competition for limited frequencies, a tender process should be utilised.

21.2 Licence applications should be assessed according to clear criteria set out in advance in legal form (laws or regulations). The criteria should, as far as possible, be objective in nature, and should include promoting a wide range of viewpoints which fairly reflects the diversity of the population and preventing undue concentration of ownership, as well as an assessment of the financial and technical capacity of the applicant. No one should be required to pay in advance for a licence they have not yet received, although a reasonable administrative fee for processing applications may be charged.

21.3 Any refusal to issue a licence should be accompanied by written reasons and should be subject to judicial review.

21.4 Where licensees also need a broadcasting frequency, they should not have to go through a separate decision-making process to obtain this frequency; successful applicants should be guaranteed a frequency appropriate to their broadcasting licence.

21.5 Successful applicants should have the option of undertaking transmission themselves or of contracting transmission services.

Principle 22: Licence Conditions

22.1 Licences may contain certain terms and conditions. Terms and conditions may be general, set out in legal form (laws or regulations), or specific to an individual broadcaster. Normally, the information set out in the broadcasting application will form part of the licence terms and conditions. No terms and conditions should be imposed which are:

     Furthermore, any specific terms and conditions should be reasonable and realistic given the licensee.

22.2 Licensees should have the right to apply to amend their licence conditions. Any amendments imposed by the licensing body should be subject to the principles of administrative justice and meet the conditions of Principle 22.1.

22.3 Clear time limits on the duration of different types of broadcast licences should be set out in legal form. These time limits should be sufficient to give applicants a realistic opportunity to recoup their investment in both financial and human terms. The time limits for licences may differ depending on the tier and type of broadcaster.

22.4 Licensees may be charged a licence fee but this should not be excessive taking into account the development of the sector, the competition for licences and general considerations of commercial viability. Fees for different types of licences should be set out in advance, according to a schedule.

22.5 Licensees should benefit from a presumption of licence renewal, although this may be overcome for public interest reasons or where the licensee has substantially failed to comply with the licence terms and conditions. Licence renewal may also provide an opportunity for both the licensee and the regulator to review licence conditions. Any refusal to renew a licence should be accompanied by written reasons.

SECTION 6 Content Issues

Principle 23: Administrative Content Rules

23.1 Broadcasting laws should not impose content restrictions of a civil or criminal nature on broadcasters, over and above, or duplicating, those that apply to all forms of expression.

23.2 An administrative regime for the regulation of broadcast content, in accordance with the principles set out in this Section, may be legitimate. Where an effective self-regulatory system for addressing broadcasting content concerns is in place, an administrative system should not be imposed.

23.3 Any content rules should be developed in close consultation with broadcasters and other interested parties, and should be finalised only after public consultation. Agreed rules should be set out clearly and in detail in published form. The rules should take into account the different circumstances of the three tiers of broadcasting and the two types of broadcasters.

23.4 Responsibility for oversight of any content rules should be by a regulatory body that meets the conditions of independence set out in Section 4. It is preferable for a single body to apply content rules to all broadcasters.

Principle 24: Positive Content Obligations

24.1 Public broadcasters have a primary obligation to promote the public’s right to know through a diversity of voices and perspectives in broadcasting and a wide range of broadcast material, in accordance with Principle 37 (Public Service Remit).

24.2 Subject to this Section, positive content obligations may be placed on commercial and community broadcasters but only where their purpose and effect is to promote broadcast diversity by enhancing the range of material available to the public. Such obligations are not legitimate where they have the effect of undermining broadcast development, for example because they are unrealistic or excessively onerous. Furthermore, such obligations should be sufficiently general in nature that they are politically neutral, clearly define the type of material covered (so that there is no ambiguity), and not be excessively vague or general. Such obligations may be imposed, for example, in relation to local content and/or language(s), minority and children’s programming, and news.

Principle 25: Advertising

25.1 The amount of advertising may be subject to overall limits but these should not be so stringent as to undermine the development and growth of the broadcasting sector as a whole. Agreements in some regions, such as the European Convention on Transfrontier Television, establish regional limits on advertising (in that case of 20%).

25.2 Public service broadcasters should be subject to fair competition rules in relation to any advertising they carry. In particular, they should not be allowed to take advantage of public funding to offer advertising at below market rates.

25.3 A separate administrative regime for regulating the content of advertising, in accordance with the principles set out in this Section, may be developed.

SECTION 7 Sanctions

Principle 26: Process for Applying Sanctions

Sanctions should never be imposed on individual broadcasters except in case of a breach of a clear legal requirement or licence condition and after a fair and open process which ensures that the broadcaster has an adequate opportunity to make representations. Sanctions should be imposed only by a body which meets the conditions of independence set out in Section 4. Sanction decisions should be published and made widely available.

Principle 27: Proportionality

27.1 A range of sanctions should be available to regulatory bodies. Sanctions should always be strictly proportionate to the harm caused. In assessing the type of sanction to impose, regulatory bodies should keep in mind that the purpose of regulation is not primarily to ‘police’ broadcasters but rather to protect the public interest by ensuring that the sector operates smoothly and by promoting diverse, quality broadcasting.

27.2 In most cases sanctions, particularly for breach of a rule relating to content, should be applied in a graduated fashion. Normally, the sanction for an initial breach will be a warning stating the nature of the breach and not to repeat it. Conditions should be placed on the application of more serious sanctions – such as fines and suspension or revocation of a licence – for breach of a rule relating to content. In such cases fines should be imposed only after other measures have failed to redress the problem, and suspension and/or revocation of a licence should not be imposed unless the broadcaster has repeatedly been found to have committed gross abuses and other sanctions have proved inadequate to redress the problem.

27.3 Broadcasters should have a right to appeal to the courts for judicial review of the imposition of any serious sanctions.

SECTION 8 Access to State Resources

Principle 28: Non-discrimination

28.1 Access to State resources, including the placement of State advertisements, should always be provided in a fair and non-discriminatory manner, subject to Principle 36 (Funding Public Broadcasters).

28.2 The provision of information by officials to the media should not discriminate between public, commercial and community broadcasters.

28.3 Any public funding for commercial and/or community broadcasters should serve the goal of promoting diversity. Allocation of funds should be on the basis of clear criteria set out in advance, and should be undertaken by a regulatory body that meets the conditions of independence set out in Section 4.

SECTION 9 Election Coverage

Principle 29: Adequate Public Information

29.1 States have an obligation to ensure that the public receive adequate information during an election, including through broadcasting, about how to vote, the platforms of political parties and candidates, campaign issues and other matters of relevance to the election. Such information should be made available through news and current affairs programmes, special election programmes, direct access political broadcasts and, where allowed, commercial political advertisements.

29.2 Public broadcasters have a primary obligation in this regard but obligations may also be placed on commercial and/or community broadcasters, in accordance with this Section, provided that these obligations are not excessively onerous.

29.3 Broadcasters should be required to ensure that all election coverage is fair, equitable and non-discriminatory (see Principle 31.1).
29.4 Any obligations regarding election broadcasting should be overseen by a regulatory body that meets the conditions of independence set out in Section 4.

Principle 30: Voter Education

States are required to ensure that voters understand the technicalities of voting, including how, when and where to register and to vote, their right to choose candidates freely and by secret ballot, and the importance of voting. Where this is not already provided for in other ways, public broadcasters should carry voter education programmes. Commercial and/or community broadcasters may also be required to carry voter education programmes.

Principle 31: Direct Access Political Broadcasts

31.1 Public broadcasters should be required to grant political parties and/or candidates direct access airtime, on a fair, equitable and non-discriminatory basis, for political broadcasts. Commercial and/or community broadcasters may also be required to grant parties and/or candidates direct access airtime for political broadcasts. The term ‘fair, equitable and non-discriminatory’ applies to the amount of airtime granted, the scheduling of the broadcasts and any charges levied. Public broadcasters should, and commercial/community broadcasters may, be required to provide technical assistance to parties and candidates for purposes of production of direct access political broadcasts.

31.2 Broadcasters should not be allowed to refuse to carry obligatory direct access political broadcasts unless they clearly and seriously breach a legal obligation. At the same time, broadcasters should be protected against legal liability for direct access political broadcasts, in accordance with Principle 5.

Principle 32: Commercial Political Advertisements

Where parties and candidates are permitted to purchase broadcast time to air political advertisements, broadcasters should be required to make such time available on an equal, non-discriminatory basis to all parties and candidates.

Principle 33: Rapid Redress

The body responsible for overseeing election broadcast obligations should ensure that prompt redress is available to parties and candidates for electionrelated violations, including in response to complaints. The oversight body should, in this context, have the power to impose a range of remedies including requiring the offending broadcaster to carry a correction, retraction or reply. The decisions of this body should be subject to judicial review.

SECTION 10 Public Service Broadcasters

Principle 34: Transformation of State/Government Broadcasters

Where State or government broadcasters exist, they should be transformed into public service broadcasters, in accordance with this Section.

Principle 35: Independence

35.1 Public broadcasters should be overseen by an independent body, such as a Board of Governors. The institutional autonomy and independence of this body should be ensured in the same way as for regulatory bodies, in accordance with Section 4. In particular, independence should be guaranteed and protected by law in the following ways:

35.2 The governing body should be responsible for appointing the senior management of public broadcasters and management should be accountable only to this body which, in turn, should be accountable to an elected multiparty body. The appointments process for senior management should be open and fair, individuals should be required to have appropriate qualifications and/or experience, and the rules of incompatibility for regulatory bodies, as set out in Principle 13.3, should also apply to senior management. Individual members of management should have a right to written reasons for any serious disciplinary action against them, including dismissal, and to judicial review of such actions.

35.3 The role of the governing body should be set out clearly in law. The role of the governing body should include ensuring that the public broadcaster fulfils its public mandate in an efficient manner and protecting the broadcaster against interference. The independent governing body should not interfere in day-today decision-making, particularly in relation to broadcast content, should respect the principle of editorial independence and should never impose prior censorship. Management should be responsible for running the broadcaster on a day-to-day basis, including in relation to programming matters.

Principle 36: Funding Public Broadcasters

Public broadcasters should be adequately funded, taking into account their remit, by a means that protects them from arbitrary interference with their budgets, in accordance with Principle 17.

Principle 37: Public Service Remit

The remit of public broadcasters is closely linked to their public funding and should be defined clearly in law. Public broadcasters should be required to promote diversity in broadcasting in the overall public interest by providing a wide range of informational, educational, cultural and entertainment programming. Their remit should include, among other things, providing a service that: