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Draft law on public broadcasting – new proposals, old problems

19 October 2021
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Cristina Durnea,
legal adviser
Independent Journalism Center

After the adoption of the draft law that allows any Parliamentary majority to revoke the members of the Broadcasting Council (BC) for “defective performance”, determined according to some unclear and unpredictable criteria and procedure, on 14 October 2021, the Moldovan Parliament registered another draft law to amend the Code of Audiovisual Media Services (CAMS).

The document, based on the constitutional principle of Parliamentary control, establishes mechanisms for the accountability of the public media service provider, i.e. the company Teleradio-Moldova (TRM), and of the Broadcasting Council, the authority that acts as a guarantor of public interest in the audiovisual field.

Proposed by the Parliament, Government, President, and NGOs, appointed by the Parliament

Currently, the nine members of TRM’s Supervisory Board (SB) are appointed for a term of six years by the Broadcasting Council, with the vote of the majority of its members, following a competition-based selection process. The composition of the SB is based on the principle of rotation, with gradual renewal of the SB by three members at a time, when their mandates expire. The lack of clear and measurable criteria for evaluating and assessing SB members is one of the factors that gives the Broadcasting Council an enormous margin of discretion in the selection of candidates who participate in the competition, and does not necessarily reflect the appropriate indicators for the function.[1]

In addition to reducing the number of SB members from nine to seven people, the draft law provides for a substantial change in the process of shaping this supervisory body under the new name of “Supervisory and Development Board”.

Unlike the current formula, based on the principle of open competition, the mechanism proposed by the authors of the draft law involves delegating to the Parliament, Government, President, and civil society organizations the prerogative to nominate candidates for membership in the SB. Thus, Parliamentary factions, according to the proportional representation of the majority and the opposition, are entitled to nominate three people, the President and the Government – one person each, and media NGOs can nominate two members.

Based on proposals, the relevant parliamentary commission (Commission for Culture, Education, Research, Youth, Sport and the Media), following hearings, will select or reject candidates for membership in the SB, issuing a well-motivated decision. After the selection step, the parliamentary commission will present a report to the plenum of the Parliament, and the Parliamentary Commission for Legal Issues, Appointments and Immunities will present a co-report regarding compliance with eligibility criteria, which remained in the CAMS in the current formula. The process will end with the Parliament issuing a decision appointing members for a term of 6 years.

The authors of the draft law also put forward a proposal to give the Parliament the prerogative to appoint and dismiss the general director of TRM.

New proposals, old alarms

Ensuring the editorial and functional independence of TRM implies, first of all, the exclusion of any interference from political parties and public authorities in the activity of public media service providers. This goal has become a priority for Moldova, especially in the context of the country being convicted by the European Court of Human Rights (ECtHR) for violating Article 10 of the Convention.

The case of Manole and others v. Moldova was initiated at the ECtHR in 2002, after nine journalists, employees and former employees of the state-owned company Teleradio-Moldova, reported acts of censorship by the ruling political forces, through the company’s top leadership. The Court found that Moldova failed to provide sufficient guarantees to prevent interference with the right to free expression from the ruling political forces through the top leadership of TRM.

Since the establishment[2] of the audiovisual media service provider Teleradio-Moldova, its management and supervisory bodies have gone through a complex structural and functional metamorphosis.

The formula proposed by the authors of the draft law in question had worked for a long time. For example, the Law on broadcasting used to provide for the election of the 15 members of the Supervisory Board (“The Board of Observers”) by the Parliament, the President, and the Government, which could dismiss them before the expiration of the 5-year term in case they violated the Law on broadcasting or committed criminal acts, proven in court. The law also used to state that, “if the Board does not properly fulfill its obligations, the Parliament has the right to request written information on actions or inactions which, in the opinion of the Parliament, violate the law.”

This formula had been widely criticized for giving the ruling political forces the opportunity to politically subordinate the public media service provider through the management of the television station. According to the assessment carried out in 2002 by the expert Karol Jakubowicz, Head of Strategic Planning and Development at Polish Television[3], the granting to the Parliament, Government, and Presidency of the prerogative to appoint members to TRM’s governing bodies raises reasonable concerns that the appointed people will represent the political views and interests of those who appointed them. Also, in conditions of extreme politicization of public life, this mechanism may reduce the true representation in public broadcasting of the interests of civil society and/or the interests of society in general.

In conclusion, legal provisions for the selection of the members of TRM’s Supervisory Board and of the company’s general manager, under the conditions set out in the draft law, may lead to the political subordination of the top bodies of TRM and, subsequently, may allow interference in the editorial policy of the public audiovisual media service provider.
 

Return of the national public media service provider under parliamentary control

Like in the draft law that allows any parliamentary majority to dismiss the members of the Broadcasting Council, the authors of this draft law come up with a reason for dismissing the members of TRM’s Supervisory Board and general director. Thus, if the Parliament finds “defective activity” or improper performance or non-performance of duties, it will be able to withdraw the mandates of SB members or of the general director. At the same time, if the Parliament decides to “reject” the annual activity report of the Supervisory Board after its presentation, the members of the SB will be dismissed in corpore, by law.

It is imperative to emphasize that the wording of the proposed amendments to the law objectively allows any parliamentary majority to use the mechanism of dismissing members of the supervisory and management bodies of the public audiovisual media services provider.

The draft law delegates to the Parliament the prerogative to appoint the general director and members of the SB, as well as to withdraw their mandates, without specifying the facts that would be deemed “improper performance of duties” or “non-performance of duties”. At the same time, the finding of “defective activity”, in the absence of a legal definition of this phrase, leaves room for unlimited discretion in applying the mechanism that allows withdrawing the mandates of SB members and of the general director of TRM.

The procedure for initiating, conducting and completing parliamentary control, the limitation period for applying the sanction, and the nature of the sanction in the form of dismissal from office (whether it is a disciplinary or a special administrative sanction) also remain unregulated. Moreover, the lack of a clear differentiation of situations when the individual dismissal of an SB member occurs and when the collective dismissal of mandates occurs raises uncertainty regarding the applicability of the principle of collective responsibility or individualization of responsibility.

As for the grounds for the dismissal in corpore of SB members if the Parliament rejects the annual activity report, it is necessary to note that the draft law does not provide for any criteria that may be reason to “reject” the document. Therefore, this clause allows the Parliament to change the composition of the Supervisory Board regardless of the content of the report.

The process of validation of the public broadcasters’ performance in Moldova has had a difficult course, being marked by a long transition period, which involves, among other things, the harmonization of legislation to international standards in the media field. The creation, implementation and use of genuinely public audiovisual media services seems to be a goal that has not yet been achieved.

Indeed, the inefficiency of the management and supervisory bodies of the public provider of audiovisual media services may be one of the causes hindering the development of TRM and hampering its functionality. However, the establishment and regulation of former control and sanctioning mechanisms in the national public broadcaster can bring back the vicious practices of the ruling political forces interfering in the activity of TRM and may distance the provider from its primary goal – to serve the public interest.