IMC Recommendation regarding the powers of the National Council of Ukraine on Television and Radio Broadcasting on the audiovisual content

September 23, 2016

Television and radio are the most influential media, given their powerful visual and audio influence and their wide viewing and listening audience. In view of this, in international practice, regulators in the field of television and radio broadcasting have broad powers to regulate audiovisual content within the bounds of freedom of expression. These bounds ensure impartial journalistic coverage of events, respect for human rights, protecting society from the illegal dissemination of information.

At the same time, Ukrainian media do not pay proper attention to legislative restrictions on content, with the National Council on Television and Radio Broadcasting, for its part, avoidingto actively use the full range of its powers, facing ineffective prosecution mechanisms in some areas. This necessitates the need forexplaining the importance of regulating content by distinguishing it from censorship, as well asfor encouraging the National Council to actively use its powers under current legislation allowing it to greatly influence the quality of audiovisual content already today.

1. Regulating audiovisual content as a popular tool for improving quality

1.1. In this recommendation, the Independent Media Council proceeds from the premise that “the powers to regulate content on the part of national regulators is a necessary means in a democratic society in the context of permissible restrictions on freedom of expression,“as stipulated by Part 2of Article 10 of the European Convention on Human Rights [1]. Thus, the possibility to regulate content should also be provided by law, pursuing a legitimate aim.

1.2. The recommendations of the Committee of Ministers of the Council of Europe on the independence and functions of regulatory authorities for the broadcasting sector emphasize that “it is essential to provide for adequate and proportionate regulation of that sector [broadcasting], in order to guarantee the freedom of the media, whilst at the same time ensuring a balance between that freedom and other legitimate rights and interests”, and it is recommended that provisions be included in national legislation, and means in the policy, that would give regulatory authorities in the broadcasting sector the powers to carry out their tasks… effectively, independently and transparently“ [2].

Furthermore, the basic principles on which the regulators activity should rest are also emphasized. Paragraph 18 of the Council of Europe guidelines and activities to support the independence of media regulatory authorities (approved by the aforementioned Recommendations) says that regulators must ensure that broadcasters within their jurisdiction comply with the basic principles set out in the European Convention on Transfrontier Television, including Article 7. The latter stipulates that the broadcaster shall:

respect the dignity of the human being and the fundamental rights of others, when providing program services – they shall not be indecent and contain pornography, give undue prominence to violence or be likely to incite to racial hatred;
not schedule programme services which are likely to impair the physical, mental or moral development of children and adolescents, when they are likely to watch them;
ensure that news fairly presents facts and events and encourages the free formation of opinions. [3]

1.3. There is an opinion that such regulatory activities are a form of censorship, prohibited by the Constitution of Ukraine. However, censorship in the classical sense presupposes obtaining consent to publishing certain content prior to its being published, except in case s of internal editorial control (i.e. preliminary approval to publish certain content). Ukrainian law defines censorship as “any requirement, in particular, for a journalist, media, its founder (co-founder), publisher, manager, distributor, to receive approval regarding some information before it is disseminated or prohibited, or in any other way preventing information from being replicated or disseminated.” [4]

Therefore, being held liable for disseminating illegal content after its publication cannot be considered censorship in the classical sense, but a preventive measure to improve the quality of content in the first place, encourage journalists to adhere to journalistic standards, refraining from abusing human rights in the media.

Similarly, according the aforementioned Guidelines, broadcasts should always be monitored after being aired, and that if a “broadcaster does not comply with the law or the terms set out in the license, regulatory authorities should be authorized to impose sanctions in accordance with the law” [5]. Therefore, such control, on the contrary, is a necessary tool in the fight against disseminating illegal content.

1.4. International experience shows that content regulation is a common practice among European regulators. For example, the Radio and Television Board of Denmark reviewed complaints three times against the local ROJ television, which, according to the complainants, justified the actions and demands of the Kurdistan Workers’ Party, recognized as a terrorist organization by the European Union. In none of the cases did the regulator find any illegal propaganda of violence or racial hatred, and so no sanctions were imposed on the television channel [6].

The UK Office of Communications identified three violations committed by a radio station broadcasting music content with obscene language in a radio program, Children’s Hour. The regulator not only recognized this content as likely to impair the physical, mental or moral development of children, but also explained what measures should be taken by the radio station to avoid such offenses [7].

The Broadcasting Authority of Ireland found a breach of journalistic principles of fairness, objectivity and impartiality in the Ray D’Arcy Show, where a guest openly advocated for changes in abortion law. Because the other views presented in the program did not hold water, and an alternative point of view was presented by the radio station only 11 weeks later, the regulator concluded that the radio station did not provide objective coverage of the facts [8].

1.5. From the examples and standards cited above, it can be concluded that content regulation by authorized, competent bodies in European legal systems is a well-established practice, at times including not only action toward prohibiting content, but also analysis of broadcasts’ compliance with journalistic standards, in particular ensuring objective coverage of facts and events and promoting the free formation of opinions.

2. Powers of the National Council under the current legislation of Ukraine and their proactive application

2.1. Despite the debate over the need to either grant more or remove powers from the regulator in Ukraine, which is partly taking place, becoming more intense in the context of discussing new legislation on audiovisual media services, it should be borne in mind that current Ukrainian legislation provides for mechanisms for regulatory intervention in content. To ensure the quality of Ukrainian media content that is quite often the mouthpiece of the owners covering their views, including those on political life, the regulator should take proactive actions, playing a preventive role and not justifying inaction by a lack of appeals from concerned citizens. Such regulation should apply to all types of content, dissemination of which is limited by legislation.

2.2. The powers of the National Council are set forth in legislation on television and radio broadcasting, as well as in other laws, in particular those regarding advertising and elections. In regulations on advertising and elections, the scope of powers differs significantly, since in these areas, the National Council is authorized to exclusively identify violations, while perpetrators are to be brought to justice through the mediation of other bodies.

2.3. The main part of the powers of the National Council of Ukraine on Television and Radio Broadcasting, the Ukrainian regulator in the field of television and radio broadcasting, is provided for under the laws of Ukraine On Television and Radio Broadcasting and On the National Council of Ukraine on Television and Radio Broadcasting. Article 13 of the law On the National Council [9] provides that, inter alia, the National Council shall:

supervise the observance by television and radio organizations, and program service providers of the requirements of the laws on television and radio broadcasting;
supervise the observance by licensees of the requirements of Ukraine’s legislation on advertising and sponsorship in television and radio broadcasting;
supervise the observance by licensees of the broadcasting procedure during election campaigns and referendums, as prescribed by law;
supervise the observance by television and radio organizations of Ukraine’s legislation on cinematography;
supervise the observance by television and radio organizations of the requirements of Ukraine’s legislation regarding the share of domestic product in their programs (broadcasts) and the use of languages in television and radio broadcasts;
supervise the observance by television and radio organizations of legislation on protecting public morality.

The Law on Television and Radio Broadcasting [10] to some extent duplicates the provisions. According to Article 70, the National Council monitors compliance and enforces the requirements of:

Ukraine’s legislation on television and radio broadcasting;
the Law of Ukraine On Advertising with regard to sponsorship and advertising on television and radio;
legislation on protection of public morals;
legislation on cinematography regarding the quota for domestic films and distribution or showing by broadcasting organizations of works, whose distribution and showing is prohibited by legislation on cinematography;
election legislation.

3. Regulation of audiovisual content and express provisions of the Law of Ukraine On Television and Radio Broadcasting

3.1. The Law on Television and Radio Broadcasting clearly provides for mechanisms for the regulator to respond to violations of “legislation on television and radio broadcasting, legislation on cinematography and legislation on protection of public morals.” Respective mechanisms are provided for in Articles 71, 72 and Part 6 of Article 70 of the Law on Television and Radio Broadcasting.

It should be noted that, in accordance with the provisions of Article 3 of the Law, legislation on television and radio broadcasting also comprises the Law of Ukraine On Information and international treaties whose binding nature was approved by the Verkhovna Rada of Ukraine.

Articles 71 and 72 of the Law on Television and Radio Broadcasting establishing liabilities and sanctions for violations of legislation on television and radio broadcasting, allow the National Council of Ukraine on Television and Radio Broadcasting to extend control activities to monitor compliance with the provisions of the European Convention on Transfrontier Television, including the requirements for ensuring objective coverage of facts and events. Importantly, the latter requirement is also set forth in Article 59 of the Law on Television and Radio Broadcasting, stipulating the broadcasters’ obligation to disseminate objective information. The regulator must therefore respond to the dissemination of biased information by broadcasters.

3.2. The provisions of Articles 71 and 72 of the Law on Television and Radio Broadcasting stipulate that the responsibility for a breach of the television and radio broadcasting legislation shall be established on the basis of documented testimonies, reports of the results of audits of broadcasting organizations(including official monitoring on the part of the National Council and citizens’ appeals), petitions of public authorities asset forth by this Law. It is also possible to impose the following sanctions for broadcasting illegal content:

admonition;
fine (in case the violation is eliminated following an admonition or if the television and radio organization has received at least three admonitions after the issuance (renewal) of the license);
initiation of broadcast license revocation in court (if the violation is not eliminated following an admonition and the imposition of a fine).

As for the competence in the field of cinematography legislation, in case of detecting signs of a breach of cinematography legislation by television and radio organizations regarding the quota of domestic films and distributing or showing works as prohibited by cinematography legislation, the regulator shall draw up a respective act to be passed to Ukraine State Film Agency to take measures, as provided by law.

3.3. Article 15 of the Law of Ukraine On Protection of Public Morals provides that the National Council of Ukraine on Television and Radio Broadcasting supervises compliance with the law within its competence [11]. As a licensing body in the field of television and radio broadcasting, it has the right to consider cases of violation of the Law on Public Morals and license conditions on the part of business entities and issue admonitions, apply fines, suspend or revoke licenses, and refer the cases of violations in this field to the prosecutor’s office and the court for consideration.

In addition, Article 62 of the Law on Television and Radio Broadcasting contains a provision stipulates that broadcasting organizations and programming service providers are obliged to respect the provisions of the Ukrainian legislation on protection of public moralsas they create, prepare and distribute television and radio programs and broadcasts. This, in turn, leads to the conclusion that violations will make it possible the application of sanctions, as mentioned in paragraph 3.2 of the Recommendation.

4. Powers of the National Council in the light of blanket provisions of the Law of Ukraine On Television and Radio Broadcasting (regarding advertising and elections)

4.1. In the context of the blanket provisions of Article 71 of the Law on Television and Radio Broadcasting, it is necessary to refer separately to the relevant legislation detailing the scope of the regulator’s powers in other areas, not specified in paragraph 3.1 of the Recommendation. Unlike television and radio legislation, the regulator’s mechanisms for bringing to justice for disseminating illegal content in other areas are more complex and less effective due to their being mediated by other authorities. However, in order to effectively ensure human rights, the National Council of Ukraine on Television and Radio Broadcasting must vigorously act within the limits of such powers.

4.2. Article 70 of the Law on Television and Radio Broadcasting contains a blanket norm stipulating the powers of the National Council to monitor implementation of and ensure compliance with the requirements of the Law of Ukraine On Advertising regarding sponsorship and advertising on television and radio. It is important to emphasize that such requirements are contained not only in the special provisions of Article 5 (“Sponsorship”) and Article 13 (“Advertising on Television and Radio”) of the Law of Ukraine On Advertising, but also in Article 8 (“General Requirements for Advertising“) governing some specific aspects of the content component.

Article 26 of the Law of Ukraine On Advertising defines the National Council of Ukraine on Television and Radio Broadcasting as a body “supervising the compliance with the law of Ukraine on advertising for television and radio organizations of all forms of ownership” [12]. Consequently, as stated in Part 2 of said article and article 27 of the Law on Advertising,the regulator is vested with the powerto:

demand that advertisers, advertising producers and distributors eliminate the identified violations of the law;
provide (send to) advertisers, advertising producers and distributors mandatory instruction on eliminating violations;
decide on stopping the distribution of advertising;
file a legal action to ban advertising and refute it in public, protecting the interests of society, the state, consumers of advertising and the advertising market participants;
make a submission to the central executive body implementing state policies in the field of state supervision of compliance with laws on consumer protection (currently, the State Service of Ukraine for Food Safety and Consumer Protection) to impose fines under the Law on Advertising (five times the cost of advertising for its distributors).

4.3. Possibilities to regulate audiovisual content in the context of election legislation are provided by the Law of Ukraine On Elections of the People’s Deputies of Ukraine (even though they are not mentioned in the legislation on local elections and elections of the President of Ukraine). However, we should not forget that during the election process, the requirements of general legislation on television and radio broadcasting remain valid for broadcasters. Therefore, “in case of biased coverage of the election process”, the National Council of Ukraine on Television and Radio Broadcasting “must respond on the basis of its powers set forth in Paragraphs 3.1-3.2 of the Recommendation“.

Part 6 of Article 66 of the Law on Elections of the People’s Deputies [13] provides for the possibility of the National Council of Ukraine on Television and Radio Broadcasting of supervising compliance with laws on information support of elections and campaigning for electronic (audiovisual) media. At the same time, in cases of violations, the regulator must inform the Central Election Commission or district election commissions about such violations. The latter rule actually gives the regulator the power to identify violations in this area, with prosecuting being the responsibility of relevant authorities.

4.4. It is worth mentioning the provisions of the Code of Ukraine on Administrative Offenses, regulating the powers of the regulator’s representatives in the context of drawing up protocols on commission of offenses. The National Council’s representatives may thus draw up protocols in cases of commission of offenses under Articles 212-19 for violating campaigning rules, campaigning in the course of preparing and conducting a referendum, the procedure for providing information support to elections using electronic (audiovisual) media and 212-11 on not providing the opportunity to publish an answer to information in relation to a subject of the election process disseminated by electronic (audiovisual) mass media. [14]

Based on the above, it can be argued that the National Council of Ukraine on Television and Radio Broadcasting has a significant range of powers in all areas of content distribution under the Law on Television and Radio Broadcasting, the Law on the National Council, and their blanket provisions. However, it should be noted that some provisions concerning the possibility of intervening with content and prosecuting are not clear enough needing additional refinement on the part of the regulator or clearer specification, as the law permits.

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The Independent Media Council, guided by Paragraph 4 of the Regulations on the Independent Media Council, and also for the purpose of encouraging and improving independent, proactive work of the regulator – the National Council of Ukraine on Television and Radio Broadcasting – in the field of television and radio broadcasting, recommends that:

the National Council of Ukraine on Television and Radio Broadcasting:
- make effective use of the powersto regulateaudiovisual content, vested in the regulator under current legislation in the field of television and radio broadcasting, and cinematography, in particular in the context of broadcaster’s compliance with the requirements for disseminating objective information;
- proactively respond to violations by broadcasters in the areas of advertising and elections, within the powers prescribed by advertising and election legislation;
- encourage the use of citizens’ appealsregarding audiovisual media content as an effective way to control its quality, establish a mechanism for reviewing such appeals within a reasonable time, taking into account a broad viewing and listening audience and their being greatly influenced by audiovisual content;
- improve internal procedures for monitoring content and responding to offenses, with greater involvement by NGOs in this area;
- make possible submitting electronic complaints.
the Verkhovna Rada of Ukraine:
- develop, with the participation of the expert community, proposals for necessary legislative changes regarding television and radio broadcasting, to optimize the mechanisms for prosecuting violations in all areas of audiovisual content regulation, in particular in the field of election legislation;
- consider the possibility of expanding and incorporating in one law the regulator’s powers to regulate audiovisual content, when adopting updated legislation on audiovisual media services.