Suspending TV Licences during the State of Emergency. Clicking the CES Button Once Again

Cristina Durnea, lawyer

The ends never justifies the means; they have never justified and will never justify them, at least in democratic societies, the existence and development of which implies, among other things, the guarantees of fundamental human rights, compliance with the legal procedures, promoting social, economic, and political pluralism, as well as the guarantee of freedom of the press.

Before starting this text, I find it necessary to provide some preliminary clarifications to the readers.

1. The statements below are based on legal arguments resulting from the interpretation of legal standards and other information which represents the public authorities’ standpoint.

2. Apart from shared political and media preferences (repulsion or adoration towards representatives of various groups, some of which are exposed to any criticism), the cases of suspended broadcasting licenses of the 12 TV channels require an impartial, objective, or even impersonal approach, if you don’t mind me saying so.

3. Any derogation from the principles inherent in democracy committed by the authorities must be followed by healthy reactions from society in general and from civil society in particular. The theory of choosing the “lesser evil” perpetuates the general attitude of impunity (deeply rooted in the Republic of Moldova), as it could be noticed and felt. Silence fueled by intolerance towards “harmful” TV channels is not a solution either: let us consider the morality of Niemöller’s famous quote.

Suspension. Act II

On October 30, the Commission for Emergency Situations (CES) ordered to suspend the broadcasting licenses of the other six TV channels (Orizont TV, ITV, Prime TV, Publika TV, Canal 2, and Canal 3). This event was identical to the one dated December 16, 2022, when the CES ordered to suspend the broadcasting right of six other TV channels (Primul in Moldova, RTR Moldova, Accent TV, NTV Moldova, TV6, and Orhei TV). The CES’s orders were followed by some public reactions, though it would be true to say that they had a modest number of emblematic participants, and, until now, they seem to lack any sort of coherency. Basically, the authors of the public statements, just like in the previous case, demand to provide a clear explanation for what served as the basis of the decision which implies such intrusive steps.

Reasons for Suspension as Stated on Paper

Formally speaking, the suspension of October 30 is based on the same reasons as the one dated December 16, 2022. This is because the CES’s recent order merely completes the table in the document  issued last December which includes the names of six more TV channels. I would like to remind you that at that point, the CES explained its decision to suspend the licenses of the media service providers in question in the context of the following two distinct statements.

1. Certain natural and/or legal persons subject to the international sanctions exercise control over the restricted TV channels.

2. The Broadcasting Council (BC) monitored and sanctioned the TV channels for not providing correct information while covering the events of national importance, as well as the war in Ukraine.

Reasons for Suspension According to the Statements

At the briefing held on October 30, Alexandru Musteata, Director of the Information and Security Service (ISS), announced the suggestion of suspending TV licenses which was sent to the CES. The head of the ISS declared that the institution had some “operational information, as well as the evidence that the Russian Federation is influencing the local elections on November 5 and undermining the democratic process.” This was allegedly happening by means of using several methods, including “elaborate disinformation campaigns via certain TV channels, websites, and social networks.”

The ISS director also stated that the suspended TV channels had committed “multiple breaches of the legislation detected by the BC” and “threaten information security,” according to the “information held by the ISS.”

Some fragments from the specific explanations by the head of the ISS refer to the following issues.

• Content migration. The fictitious beneficiaries of the TV channels suspended last year transferred the content to the broadcasting grid of the recently suspended channels (e.g. from TV6 and Primul in Moldova to Orizont TV and ITV).
• Concerted actions. During the last months, “concerted actions between the Sor criminal group and the media holding managed by the Plahotniuc group were revealed.” Incessant efforts to financially support Prime and Publika TV were allegedly stated, especially during the election campaign.
• Suspected obscure financing. The Broadcasting Council (BC) allegedly notified the ISS because, after checking the way Orizont TV was complying with its program service general concept, “certain circumstances likely to cause reasonable suspicions related to financing the channel from the sources of obscure origin”, as well as the existence of Orizont TV’s association with the TV services whose license was suspended in 2022, were identified.
• Breaches stated by the BC. The TV channels in question had already been sanctioned by the BC on multiple occasions for breaching the audiovisual media legislation.

Accounting Balance of the Sanctions Applied by the BC

Because “multiple breaches of the legislation stated by the BC” were invoked by the authorities as one of the arguments in order to justify this suspension, it would be appropriate to consider some “glaring” figures resulting from the decisions issued by the BC during the year.

In 2023, Orizont TV had 20 sanctions applied by the BC based on eight monitoring reports. Out the total number, six sanctions were imposed for breaching Art. 13 of the Code of Audiovisual Media Services (CAMS), i.e. for failing to provide correct information. 11 fines were imposed on September 8 for broadcasting concealed advertising, and the other three were for non-compliance with the General Concept of the media service, because the TV channel had not kept a copy of a program and, respectively, for failing to bring the sound level to the standards during its broadcasts.

During the year, the ITV channel was not sanctioned for failing to provide correct information. The provider accumulated only five sanctions for breaching its own General Concept, for introducing non-compliant amendments to the documents and data regarding its shareholders, for broadcasting a program likely to negatively affect minors, for non-uniform sound levels, as well as for non-compliance with the orthographic rules of the Romanian language in a program.

Prime, out of the total of six breaches identified by the BC during the year, was publicly warned in three cases: for broadcasting a program without the mark saying “repeated broadcast,” for broadcasting a program without complying with the requirements on protecting minors, as well as for admitting a discriminatory message during a program. In the three other cases, two fines were imposed for the insufficient amount of local products broadcast, and another fine was imposed for covering the election campaign without notifying the BC.

Throughout the year, Publika TV had four sanctions for the insufficient amount of the local products, as well as for non-compliance with the broadcasting requirements concerning the product in question. At the same time, in one case, the TV channel was fined for covering the election campaign without notifying the BC.

As to Canal 2, the BC detected seven breaches of the legislation over the course of the year. Thus, the channel had six fines for insufficient amount of local products and non-compliance with the broadcasting requirements for that product, and another fine for covering the election campaign without notifying the BC.

Canal 3 had a total of nine sanctions from the BC. Seven of them were applied for insufficient amount of local products and neglecting the requirements for broadcasting that product. One fine was imposed for covering the election campaign without properly notifying the BC, and another one for non-compliance with the broadcasting license provisions.

I would like to cap off this review of the “multiple breaches of the legislation stated by the BC” and “justifying” the imposed restrictions with the following findings.

• None of the TV channels whose licenses were suspended was sanctioned by the BC in accordance with the provisions of Art. 17 para. (3) of the CAMS – the article introduced into the legislation by the authorities specifically as a sanction for disinformation.
• Among the six TV channels with suspended licenses, only Orizont TV was sanctioned for breaching the requirements related to the obligation to inform the public correctly. As to the other five media service providers, the BC found no such breaches.
• The total number (a modest one, I should say) of the breaches stated by the BC in relation to the six TV channels during one year (Canal 3 – nine sanctions; Canal 2 – seven sanctions; Publika TV – five sanctions; ITV – five sanctions; Prime – six sanctions; Orizont TV – 20 sanctions), as well as the nature of some violations (e.g. non-compliance with the grammar rules; insufficient amount of local products; non-compliant repeated broadcasting, etc.) raise the reasonable suspicion that the invocation of  the “breaches stated by the BC” is not a pertinent argument in the context of justifying the intrusive steps applied by the CES.

“While the State of Emergency Lasts”

According to the Venice Commission, experience demonstrates that the most serious violations of human rights tend to occur in the context of emergency situations, because the states are likely to use their power of derogation in other purposes or to a greater extent than the exigencies of the situation justify under the pretext of a state of emergency (Opinion No 359/2005 on the Protection of Human Rights in Emergency Situations, CDL-AD (2006) 015, para. 12; Opinion No 838/2016 on the Draft Constitutional Law on “Protection of the Nation” of France, CDL-AD (2016) 006, para. 51, 71).

The current state of emergency in the territory of the Republic of Moldova was declared on February 24, 2022, and successively prolonged ten times. According to the Parliament’s first decision in this regard, the established state of emergency was determined by “the situation related to regional security and the threat to national security” in the context of the war in Ukraine.

The authority which directly made the decision on suspension – the CES – exercises its activity pursuant to the Law on the Regime of the State of Emergency, Siege, and War. Art. 22 of this relevant regulatory act expressly lists the powers of the CES (e.g. it issues provisions regarding the steps for protecting the population, localizing and liquidating consequences of emergency situations; controls activity of the local public administration authorities’ commissions for emergency situations, etc.). This list does not include any attributions expressly referring to the CES’s competence to take any steps for ensuring the security of the information space.

This “issue” was solved in 2020, when the legislative authority completed the list of CES’s duties with the phrase “taking other necessary steps.” Hence, the restrictive measures in the information space are imposed by the CES pursuant to this provision.

The text which grants the CES the possibility of “taking other necessary steps” was previously subject to constitutionality control. According to the decision of the Constitutional Court (CC) of June 23, 2020, the CC provided some statements relevant to the subject discussed in this text.

More exactly, the Court considered the text which implies “other necessary steps” to be constitutional to the extent that:

(a) the authorities in charge of managing the state of emergency only perform the duties, steps, or actions necessary for achieving the goals which served as the basis for declaring the state of emergency; 

(b) the necessary duties, steps, or actions are not outside the purview of the executive authority; and

(c) the Parliament can exercise effective control over the steps in question.

In this case, the authorities’ inability to adequately motivate their decisions makes it impossible to find out whether suspending the licenses is a step implemented specifically for the sake of protecting national security, i.e. the goal that was the basis of declaring the state of emergency. In the context of the current parliamentary situation, it also remains uncertain whether the means of exercising parliamentary control (actions, interpellations, hearings, and reports) are equivalent to the possibility of exercising effective control.

Let’s Face This Harsh Truth

The CES’s order pursuant to which the licenses were suspended does not comply with the requirements for motivating an individual administrative act. This fact definitely deprives any observer of the possibility of figuring out what exactly served as the basis of this suspension or whether these reasons were sufficiently well-grounded. Still, I would like to suggest that we consider the arguments publicly expressed by the head of the ISS who invoked content migration, concerted actions, suspicions of obscure financing, and “multiple” breaches detected by the BC.

Currently, considering the “accounting balance of the BC sanctions” (as you can see above), it can be easily stated that at least one of the arguments provided by the ISS, as well as by the CES, rejects the idea of the existence of conclusive and well-grounded evidence or arguments justifying this restriction. Invoking disinformation actions in the context in which the BC did not apply any sanction for this sort of facts, and the few statements of failures to provide correct information concern only one TV channel out of the six channels in question, which disproves seriousness of the authorities’ decision from the very start. Moreover, the CES’s reluctance to allow the BC to exercise its attribution of the national audiovisual space protector and to use the opportunities stipulated by the audiovisual media legislation remains unclear. The CAMS provides for sanctions for disinformation, including the withdrawal of broadcasting licenses. Besides, the BC is empowered to withdraw broadcasting licenses in case if TV channels breach the legal regime of property in the sphere of audiovisual media services.

In the same context, it should be mentioned that the current legal framework empowers several public authorities to “deal” with media concentration or to counter “obscure financing” activities invoked by the ISS. Until now, no reason justifying the CES’s intervention has been provided, in the context in which the illegal facts reported by the ISS should have naturally been referred to the BC, the Competition Council, the Prosecutor’s Office, etc.

Facing this harsh truth and judging (I hope) fairly, we could predict two scenarios applicable to the case, an optimistic one and a realistic one.

1. The CES’s decision is based on pertinent evidence and serious well-grounded reasons. This suspension was absolutely necessary and pursues a legitimate goal of ensuring the state’s national security, and the restrictions applied are proportionate to the goals pursued. The only problematic aspect is related to the authorities’ omission to motivate their decisions and, subsequently, it deprives society of the possibility of assessing whether the suspension is actually an action required to achieve the goals which served as the basis for declaring the state of emergency.

2. The threats reported by the ISS are either inexistent or insufficiently grave to justify the existence of a real threat to national security and, implicitly, the restrictions applied. Suspending the TV licenses served as a convenient button at the CES’s fingertips, with the help of which the authorities could find a quick but temporary solution to some issues which could not be referred to the “classic” state authorities as they were rather weak and had reduced institutional capacities.

Sooner or later, the mysteries related to suspending TV licenses will be clarified, and, as a rule, especially if legal illiteracy is the main cause, anti-democratic missteps are expensive. In the meantime, I would like to reiterate my conviction that objectivity and impartiality have always been the key elements which allow civil society to cope with its social mission of protecting fundamental human rights, freedom of the press, and democracy in general.

Let those who are eager to hear it listen to it. Let those who can… speak about it.

* The opinions expressed are my own and do not necessarily reflect the views of the organization I represent.