Broadcasters and Citizens in Europe: Trends in Media Accountability and Viewer Participation

Baldi / Hasebrink

Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation

This book presents the main results of an extensive programme of research that was financed by the European Commission. The study was conducted in 29 European countries and each author analyses European trends from different but complementary perspectives: from the broadcasters side (media accountability and responsibility, including the key role of Public Service Broadcasting); from the citizens’ side (viewers’ participation mechanisms) and from the regulatory side (legal instruments which protect viewer rights). Given the historical experience of the United Kingdom, the situation in this country is analysed in detail. A specific chapter also describes the instruments and procedures that TV viewers have at the European Union level in addition to those existing at national level.

Paolo Baldi is a Media Consultant established in Geneva (Switzerland). Formerly Head of Research (Strategic Information Service) at the European Broadcasting Union (EBU), he has also been Director of ACAMEDIA and lecturer at the Universities of Fribourg, Geneva and Florence.

Uwe Hasebrink is Director of the Hans Bredow Institute for Media Research and Professor for Empirical Communication Research at the University of Hamburg. His research interests are related to media audiences and European public spheres.

ISBN 978-1-84150-160-4

intellect PO Box 862 Bristol BS99 1DE UK / www.intellectbooks.com

Broadcasters and Citizens in Europe: Trends in Media Accountability and Viewer Participation

Broadcasting is arguably the most influential and powerful industry operating today. The media impose an inescapable presence in contemporary life and infuse all areas of public communication. But what is the quality of the relationship between ‘broadcaster’ and ‘citizen’? Do the media and media authorities take the audience’s interests seriously into account? Do audiences have real opportunities to express themselves? Are citizens well informed and educated about the social, the cultural and the civic role that media can play?

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Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation Edited by Paolo Baldi and Uwe Hasebrink

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Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation

Edited by Paolo Baldi and Uwe Hasebrink

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Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation

Edited by Paolo Baldi and Uwe Hasebrink

First Published in the UK in 2007 by Intellect Books, PO Box 862, Bristol BS99 1DE, UK First published in the USA in 2007 by Intellect Books, The University of Chicago Press, 1427 E. 60th Street, Chicago, IL 60637, USA Copyright © 2007 Intellect Ltd All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission. A catalogue record for this book is available from the British Library. Cover Design: Gabriel Solomons Copy Editor: Holly Spradling Typesetting: Mac Style, Nafferton, E. Yorkshire ISBN 9781841501604 / Electronic ISBN 978-1-84150-963-1 Printed and bound in Great Britain by Henry Ling.

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CONTENTS Introduction: overview of a European study Paolo Baldi and Uwe Hasebrink

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Media accountability in Europe: a fragmented picture Paolo Baldi

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1. Media accountability is entering into the political agenda 2. Europe: a highly fragmented picture 2.1. Most-advanced countries 2.2. Less-advanced countries 2.3. The “under construction” countries 3. Concluding remarks

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UK broadcasting policy: the “long wave” shift in conceptions of accountability Richard Collins and Zoe Sujon

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Introduction 1. Accountability: exit, voice and loyalty 2. Accountability: proposals for change at the BBC 3. UK broadcasting policy: the “long wave” shift in the dominant framework 4. Conceptions of the citizen and the consumer in broadcasting policy 4.1. Citizens’ “legitimate expectations” 4.2. Social capital and new thoughts on citizenship 4.3. Potter, consumer theory and evaluation of the accountability of UK broadcasters 5. The 2003 Communications Act: a new consumer and citizen consciousness 6. Conclusion

33 34 37 38 39 41 42 44 46 49

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The protection of viewer rights in Europe Bernd Holznagel and Christiane Jungfleisch

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Introduction 1. Basic general principles 1.1. Media law 1.2. Media authorities 2. Main instruments and obligations 2.1. Legal instruments for the viewers 2.2. Legal obligations for the broadcasters 3. Three types of countries 3.1. Homogeneous countries 3.2. Inhomogeneous countries 3.3. Countries in progress 4. Conclusion

53 54 54 54 55 55 57 58 58 64 69 72

Media users’ participation in Europe from a civil society perspective Uwe Hasebrink, Anja Herzog & Christiane Eilders

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Introduction 1. Viewers – not just consumers 2. Viewers – civil society actors? 3. Options provided for viewer participation in Europe 3.1. Representation in controlling bodies 3.2. Communication platforms 3.3. Complaints procedures 3.4. Audience research 4. Viewer associations 4.1. Main objectives 4.2. Types of activities 5. Conclusions 5.1. Viewer participation across Europe 5.2. Viewer participation as civil society activity 5.3. Viewer participation on the European level

75 76 78 79 80 80 81 82 82 83 86 88 88 89 90

Viewers’ rights in the European Union: policies and instruments Paolo Celot and Fausto Gualtieri

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Introduction 1. Access to the institutions: instruments and procedures 1.1. European Parliament, Committee on Petitions 1.2. European Commission: complaints concerning failure to comply with community law

93 94 94 95

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CONTENTS |

1.3. Actions brought to the Court of Justice of the European Communities (ECJ) 1.4. The European Ombudsman 1.5. European Court of Human Rights 1.6. Internal Market law problem-solving network (Solvit) 1.7. The European Consumer Centres and request for intervention to the European Extra-Judicial Network (EEJ-Net) 2. General principles on consumer protection 2.1. European Union 2.2. Council of Europe 3. Relevant EU policies and advisory bodies 3.1. EU Consumer Affairs policy 3.2. Audio-visual policy 4. Conclusions

99 100 100 101 102 102 103 104

Abbreviations and Acronyms References About the authors

107 109 115

96 97 98 99

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INTRODUCTION: OVERVIEW OF A EUROPEAN STUDY Paolo Baldi and Uwe Hasebrink

New technologies are certainly changing the way we communicate and the way we will have access to information or entertainment: and this is especially true for two of them, the Internet and the mobile phone. Nevertheless, television is still playing a central role in our lives as we are still spending an important part of our time – something between three and four hours a day depending on the countries – watching what few and increasingly concentrated media corporations produce and disseminate via the classic platforms (cable, satellite and terrestrial) but also the new ones (computers, mobiles, digital devices, etc.). As a matter of fact, the broadcasting output – in all its variety of genres (news, sports, movies, cartoons, events, etc.) – is still the “golden content” that all the platform operators in all the countries are fighting for.In short, television programming is and will be – regardless the platform that we will use or the “screen” we will watch – the primary source of information that people have at their disposal for shaping their opinions and for participating, therefore, to the democratic process. If in addition we look at the news coming from the United States, where newspapers are selling, year after year, fewer and fewer copies – all type of newspapers, both popular and elitist newspapers – the pivotal role of the broadcasting output in the overall media landscape is probably likely to grow and not certainly to diminish. This is the reason why so many scholars and politicians in so many countries have insisted – and are still insisting as we will see later in this book – on the special status of broadcasting not only in serving democracy but in “facilitating” the democratic process itself.In this perspective, broadcasting cannot be considered simply as “a” branch of our industry or just “a” sector of our society (like public health or education): broadcasting is an integral part of the very concept of “modern citizenship”. Beyond enforceable rights, citizens have also developed “legitimate

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expectations” regarding benefits or services, notably to providing the cultural resources required for full citizenship. Media and democracy: a strange paradox These statements might seem quite trivial as thousands of texts both at national or European level have restated – for decades – these concepts.All political parties would certainly agree on the importance of television in “facilitating the democratic process”. Let us take, for example, one famous quotation from a paper of the Commission of European Communities: DGIV (Competition Directorate General) is of the opinion that media pluralism and neutrality of information have to be considered as legitimate Community objectives, as highlighted in the Protocol. Given the current level of concentration in the sector, the level of fixed costs (e.g. for the acquisition of rights) and the dimensions of the media players in the market, such pluralism and neutrality of information can, nowadays, be ensured only by the presence of efficient and technologically advanced public service broadcasters. (Commission of the European Communities 1998) Nevertheless, if for a while we stop looking at declarations of principle and start watching the real screen – small or wide, digital or analogical, flat or mobile – the discrepancy between “words” and “images” is striking. Many experts denounce an increasing impoverishment and homogenization – in the majority of the European countries – of television programming, and many signals point to the broadcasting industry as one of the less-transparent and less-accountable sectors of our society. The deterioration of European television programming – in terms of provision of the “cultural resources” that citizens legitimately expect from their broadcasting system – is a fact that can hardly be contested.The most recent confirmation of this negative trend can be found in the Open Society Institute report of October 2005: The pivotal role of television in supporting democracy is under threat. Public service broadcasters are compromising quality to compete with commercial channels, and many of them depend on governments or political parties. Meanwhile, ever larger concentrations are developing in the commercial sectors, often with clear political affiliations. These developments jeopardize broadcasting pluralism and diversity, with the new democracies of Central and Eastern Europe most at risk. (Television Across Europe: Regulation, Policy and Independence, Open Society Institute, October 2005) As a matter of fact European viewers are increasingly conscious that multiplication of outlets or channels does not necessarily produce the much trumpeted diversity of programmes or pluralism of opinions. On the contrary – as viewers are experiencing – the digital revolution and platform convergence tend to divert funding from programming to technology and marketing.

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This deterioration happens at a very critical moment in European history. Citizens are constantly asked to express their views and opinions on increasingly complex issues. From the Iraq conflict to the European elections (including the vote on the EU Constitution); from the reforms of educational or pension funding systems to debate on the climate or nutrition changes, citizens need to be appropriately involved by the media. They need extensive coverage, accurate treatment and editorial independence. They need information and not trivialization or voyeurism. The very concepts of democracy and welfare are based on such simple but vital provision of civic services. In other words, inferior programming cannot be considered simply as a “bad show” that people are not obliged to watch. The growing presence of poor programming in the European schedules prevents any other type of programming reaching viewers, and this phenomenon has social costs. This is the reason why a growing number of European and/or international institutions are trying to strengthen civil society organizations in order to foster citizens’ participation with the aim of building a “people-centered information and knowledge society”. This is the case, for example, of UNESCO1 but also of the Council of Europe where a specific group of specialists has recently been created to examine how public service broadcasting can be strengthened and “ways of increasing transparency of public authorities and facilitating public scrutiny via the media” can be found.2 In other sectors of activity – like the financial one – social responsibility, corporate governance, accountability and transparency have recently acquired the status of “core issues” to be urgently addressed. And even if a prestigious news magazine like The Economist adopted, in January 2005, a “sceptical look” to this ideological trend,3 many institutions have been created with the aim of coordinating the numerous initiatives and promoting global and “ethical” awareness.4 In the media sector, on the contrary, awareness of such ethical issues is much lower and there is generally some difficulty in putting them at the top of the public agenda: both, at national or at European level. In conclusion, in the media sector, we face an “ethical apathy” that looks like a strange paradox given the fundamental importance – as everybody seems to agree – of the media in supporting the entire democratic process. Mapping media transparency This is the context in which a specific research project took shape with the financial support of the European Commission. The research was conducted in 2004 and aimed to map, at European level, the ways in which media and media authorities build their accountability systems, but also – looking at the other side of the screen – the ways in which they facilitate viewers’ participation in media governance.5 A second and more ambitious aim was also to evaluate the efficiency of the different institutional arrangements and the “health” of the relationship between citizens and broadcasters. The general premise was that media accountability and viewers’ participation are two sides of the same medal: the quality of the second one – viewers’ participation – is highly dependent on the quality of the first one (media accountability).

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The information gathered by the European network of researchers (21 experts) followed a common set of guidelines aiming to: n Identify the current procedures that European citizens have at their disposal in order to effectively participate in media governance and the legal basis for citizens to exercise this type of rights. n Give a clear picture of all the different forces engaged in the defence, the protection and the enhancement of the viewers’ interests with particular attention to viewers’ and consumers’ associations, campaign and special interest groups, professional associations, legal & controlling bodies and obviously broadcasters themselves. n Evaluate the efficiency of current procedures and – in general – the “forces” engaged in securing viewers’ rights and interests (associations, authorities, independent institutions, etc). n Identify the best and innovative practices including the role ICTs are playing in facilitating citizens’participation and media accountability. The aim of the present book is to extract the most significant results of this panEuropean research and directly address – from a plurality of points of view – the issues we have just described: basically the need – also and especially in the media sector – for an increased transparency, accountability and social responsibility. The country reports of the EC-sponsored research have already been published in 20056 but this is the first time that a comparative approach is adopted. Each author has analysed the European trends from a different but complementary perspective. Baldi has adopted the media perspective (broadcasters accountability and responsibility, including Public Service key role), as Hasebrink, Herzog and Eilders did for the citizens’ perspective (the options available to the viewers for participating to the media governance), while Holznagel and Jungfleisch have adopted the regulatory perspective (the legal instruments protecting viewer rights). Given the historical experience of the United Kingdom in this area, an entire chapter is devoted to this country (Collins and Sujon) and, in particular, to the intense debate that is now surrounding the role of both the BBC and the recently established media authority (Ofcom). A final chapter also describes the set of instruments and procedures that TV viewers have at their disposal at the European Union level in addition to those at national level (Celot and Gualtieri). The final picture is extremely complex – both at the thematic and the geographical level – and it is therefore worthwhile to highlight here, in the introduction, two general important features. a) First, at the conceptual level the authors provide an analysis of the institutional relationship between media and citizens and evaluate the quality of these institutional arrangements. The table gives an example of the dimensions we are talking about.

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Viewers’ Participation Media Accountability Institutional Options






Information publicly available on media activities (“right to know”) Formal/informal procedures used for listening to audiences’ interests Codes of conduct/selfregulation bodies Public Service Broadcasting Reviews Media Authorities’ range of competences (powers of sanction, programmes standards, etc.)










Representation in controlling bodies Communication platforms/Media Forum (articulation of concerns)

Self-initiated Options





Public Consultations




Audience research (qualitative)




Complaints procedures




Viewers’ organizations (political lobby, protection of minors, media pluralism, cultural diversity, etc.) Consumers’ Organizations Initiatives related to media education Awards for best (or worst) programming Initiating public debates by conferences, etc.

The evaluation of the quality or efficiency of the instruments, procedures and institutions that have been established in the various European countries is obviously a very delicate topic as analysts’ subjectivity or bias cannot be eliminated. Nevertheless, when a certain type of “problem” or “trouble” is registered in a significant number of countries, this is an interesting signal; it is also an implicit suggestion for building – in that specific and dangerous area – an “alerting system”. For example, when we discover that a number of media authorities in certain countries do not use their powers of sanctions they formally could or that the amount of the fines is so “low” – compared to the benefits generated by the violation of the law – that media conglomerates prefer paying them, here we patently have a critical area that should be seriously monitored.When many researchers underline that in many countries legislation is so convoluted or vague that its results are “unworkable” for everybody aiming to protect viewers’ rights, here again we receive another important signal.The same can be said when analysts discover that in too many countries media authorities are deliberately put in the position – since the beginning of their mandate – of not functioning properly as the range of competences and the number of tasks is disproportionate to the staffing levels allocated. In conclusion, the mere formal “existence” of a law, procedure, code, body or committee is not a guarantee of viewers’ rights being protected: we also need to verify the efficiency of these democratic tools by monitoring real performances. All the institutional players – regulatory bodies, viewers and consumer organizations, broadcasters and media conglomerates, industry self-regulated bodies, mediarelated professional associations, educational bodies, etc. – need this very specific type of information or indicators for their own country in order to compare their

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performance and formulate long-term policies. The acquisition of such knowledge is therefore a preliminary and obligatory step for all policy-makers aiming to improve media transparency.In the following pages, readers will find a solid basis for building such “analytical tools”. b) Secondly, all the authors emphasize that despite some legitimate scepticism concerning viewers’ and/or citizens’ participation to the media governance, many attempts have been made to reinforce, improve and promote it. As a matter of fact, from one side this EU-sponsored research has confirmed that options for viewers’ participation are few and – even worse – have diminished compared to the past. In half of the monitored countries (fourteen), there are no viewers’ associations, and, when they exist, their political relevance is often very low (with the exception of a few cases, like the British one where VLV – “Voice of the Listener and Viewer” – is highly respected and effective). Nevertheless, from another side, the pan-European research has also pointed out new and less direct forms of viewers’ participation that finally succeeded in obtaining quite significant results, at the European level at least. For example, the process of modernization of the “Television without Frontiers” directive has followed a comparative and inclusive approach as different levels of hearings and pluralistically composed focus groups have been organized. This is an attempt of creating – at a European level – discursive forms of governance and consequently increase the chances for the viewers’ voices to be heard. If we consider that in parallel there is also a tendency to develop self-regulation and to create specific self-regulatory bodies, audiences and civil society actors or platforms will increasingly have new opportunities for participation. Against this background it seems worthwhile to consider the chances of interconnecting and integrating viewers’ interests and fostering the development of civil society actors at the European level and in this way introduce the audience perspective into media politics on changing media in Europe. (Hasebrink et al., p. 90). A second example is provided by the development of Media Literacy programmes in many European countries. In fact, viewers’ participation should – theoretically – increase together with the creation and the sustainment of these educational programmes.Concrete examples are the evolution of the UK legislation, where “the promotion of media literacy” recently became, for the first time, a specific duty of Ofcom, the British regulator (Communications Act 2003), but also initiatives in many other countries (France, Germany, etc.). The future is encouraging. As a matter of fact, this research has shown that the existence of an independent and active public regulatory body for television is a pre-condition of public participation in the media at an institutional level. Nevertheless, some obstacles still remain. First of all, we need to define what skills constitute media literacy;secondly, the potential role of broadcasters and media authorities in promoting media literacy is still unclear. Last but not least we should also consider that all those instruments that viewers have at their disposal in their role as European citizens – that is, petitions to European

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Parliament, complaints to the European Commissions, appeals to the Court of Justice or the Court of Human Rights, etc. – are producing considerable results. Despite their scarce visibility and their presumed impracticability, the cases studies described in the last chapter (Celot and Gualtieri) prove that they are rather effective. Moreover, given the rapid development of the ICTs and their crucial role in facilitating media accountability in general, this is certainly a positive aspect – when we consider the future of viewers’ participation in Europe – which is not to be neglected. In conclusion, we have seen, as in the last decade, two dominant paradigms – the economic and the technological ones – have put in the shade a more substantial reflection about the improvement or the deterioration of the media offer, the quality of the relationship between citizens and media and – finally – the quality of the democratic process itself. Market liberalization, convergence and digital revolution have been considered de facto as modern and therefore positive trends that strategic research should only help in optimizing: financially and structurally. This knowledge diversion has practically contributed to the creation of a “climate of resignation” that we all experience in our respective countries.There is resignation in front of the impoverishment of the television programming (that in some extreme cases experts do not hesitate in naming as “bastardization”), and resignation in front of the distance or the discrepancy between declared political aims and real television programming.The aim of this book is to raise the urgency of this issue – the “ethical paradox” – by making an initial contribution to a debate that media policy-makers should not avoid or postpone. Notes 1. “Media Matter – Citizen Care”. Advocacy Brochure on Citizens and the Media, by Ammu Joseph, Unesco, 2005. 2. This is one of the themes of the Action Plan approved at the “7th European Ministerial Conference on Mass Media Policy” in March 2005 (Kyiv). 3. Cf. the special survey on “The Good Company. A sceptical look at corporate social responsibility”, The Economist, 22nd January 2005. 4. Two examples among the many: “AccountAbility”, the Institute of social and ethical accountability (www. accountability.org.uk) and “Eurosif”, the European Social Investment Forum (www.eurosif.org). 5. In January 2004 a team of media experts started – with the financial support of the European Commission, DG Education and Culture – a research programme in the framework of the EACTV Project. The study was conducted in 29 countries – including the 25 countries from the European Union with the addition of Bulgaria, Romania, Switzerland and Norway.The information gathered was mainly based on desk research, interviews with key people in the media sector and case studies. Within the same initiative – the EACTV Project – the “European Association for Viewers Interests” (EAVI) has also been created in March 2004 in Brussels. 6. The title of the report is “Broadcasting and Citizens. Viewers’ participation and media accountability in Europe”. It has been edited by Paolo Baldi and published by EURISPES in Rome in 2005 (360 pp). The report has been included into the 2005 Catalogue of the European Union Publishers’Forum.

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MEDIA ACCOUNTABILITY IN EUROPE: A FRAGMENTED PICTURE1 Paolo Baldi

Viewers’ interests have traditionally been defended and promoted by specific viewer associations or by more general consumer organizations as media do not have the tendency to adopt – spontaneously – transparent and open behaviours. As a BBC executive admitted during the EC-sponsored research programme: “broadcasters are rarely comfortable with being called to account”. Nevertheless, according to the results of the research, things are smoothly changing. Media “accountability”, “responsibility” and “responsiveness” are concepts that are entering in the political agenda of many European countries. Improving the formal and informal procedures used by broadcasters, regulators or self-regulated bodies for listening to audiences’interests and informing them about their activities – taking them into “account” – has recently become a more serious concern. 1. Media accountability is entering into the political agenda As we will see, the number of countries affected by this tendency is probably not so impressive, still, the tendency is undoubtedly there. The very basic ideas underlying this European process are the following: n Public/audiences must stress their sovereignty as consumers and citizens; n The processes of accountability are of fundamental importance in underpinning democratic values; n There is a legitimate public interest in public expenditure and true costs of publicly produced goods and services; n Media may have negative social effects and – consequently – they have to bear the social costs they generate.

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At the heart of any system of public accountability we always found the amount and quality of the information available to citizens or their agents. If this information is publicly available, citizens are able to participate more effectively in the decision making process and to monitor the performances of agencies. Such transparency also assists in locating responsibility when things go wrong. (J. Martin, “Changing Accountability Relations”, OECD, 1997) Broadcasters, in general, and Public Broadcasters, in particular, are not leading, unfortunately, this “transparency” process.Many national regulators, on the contrary, by undertaking public consultations, by conducting Public Service Broadcasters’ reviews or by publicizing relevant codes of conduct, are contributing – directly or indirectly – to the improvement of the accountability procedures of their media system. 2. Europe: a highly fragmented picture The European ‘picture’ is extremely fragmented and this is the reason why in the next pages we will illustrate the most significant examples of this transparency process dividing all the monitored countries in three broad and in some extent arbitrary categories: a) countries where efforts to improve the accountability system have always been concrete and tangible; b) countries where some accountability “tools” have been formally introduced but where their efficiency is seriously questioned; c) countries where these concepts – media transparency, responsibility or responsiveness – are still political and managerial aims. 2.1. Most-advanced countries Countries belonging to this category share – on different levels – one basic characteristic: they all benefit from a long tradition in building hierarchical accountability structures – in the media sector – usually capped by government political obligations to the legislature. Responsiveness to consumers, viewers and citizens is a well-established concern, managerial accountability mechanisms (internal and external) have been fine-tuned and ultimately political responsibility is historically embedded in the country regulatory system.To sum up, these countries have all succeeded in avoiding a brutal separation of the media system from the public opinion. This is the case, for example, of Nordic countries, where well-established public broadcasters, highly regulated commercial broadcasting and a long tradition in the “ombudsmann” practice (Sweden has been the first country, in 1809, to establish it) create – all together – a feeling of “communication welfare”. In the ranking of the public trust in institutions, YLE, in Finland, is trusted more than the judicial system, the state and the church. And it is certainly not a coincidence if during the EC Swedish Presidency (2001) there was an attempt to extend to all Europe the Swedish banning of TV advertisements directed at children.

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Another characteristic of these countries is that we also find – in many cases – a permanent political tension on all the media transparency issues.Whatever the reasons can be – desire of further improvement, resistance to further deregulation, change in the political power balance, etc. – many of these countries are witnessing quite a vivid public debate on media accountability and on how to improve it.This is the case, for example, in the United Kingdom, Ireland and Germany and to some extent in The Netherlands. So why can we consider these countries “more advanced”? There are three main reasons at least: a) they are often conducting authoritative public reviews of Public Service Broadcasting (PSB), and PSBs are generally quite available for improving their accountability systems; b) regulators and/or broadcasters are adopting more sophisticated tools for better understanding audience needs and for better representing them; c) they are facilitating the establishment of accountable selfregulatory bodies and/or structures. There is also a fourth reason: all these countries are developing Media Literacy programs as a pre-condition for audiences participation and involvement in the public debate, but these initiatives are certainly too recent to be fully evaluated. a) Authoritative and ongoing Public Service Broadcasting reviews This the case, for example, in the United Kingdom where Ofcom, the recently established regulator, has been charged to conduct PSB reviews, but also in Ireland where the creation by the Irish Government of “The Forum of Broadcasting” – a shortterm review body – has created opportunities to improve the RTE accountability system. In accordance with the UK Communication Act, Ofcom began its first review of Public Service Television in October 2003: this includes BBC, ITV, Channel 4, Five, S4C and new media (but not radio stations). The aims of the Ofcom review are extremely interesting for our purpose because they illustrate to what extent PSB role and efficiency, in UK, is still a serious political concern. These are the aims (Italics is ours): n Assess the effectiveness of the current delivery of PSB by the main terrestrial TV channels; n Provide recommendations on maintaining and strengthening the quality of PSB television in the future, taking intro account the costs of provision and the sources of income available to the main terrestrial TV channels; n Develop clear proposal for the definition, purpose, and the future regulation of PSB television, and to ensure that these are fit-for-purpose in a period of significant change and development; and n Provide a detailed and authoritative body of research and analysis to inform the BBC Charter review process. DCMS (Department of Culture, Media and Sports) has also undertaken an important review of the BBC Charter which expires in 2006. DCMS, as Ofcom, offers a forum for public consultation, outlining the key themes, links to summaries, etc. Moreover, the websites offer to send hard copies to anyone who requests one.

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In this sense, the charter renewal offers a practical example of how the BBC’s accountability to licence fee payers is maintained and ensured. (Collins and Sujon, 2005) Finally, the existence of an ongoing public debate or political tension on the media transparency issues produces a healthy pressure, in this category on countries, on broadcasters, especially the publicly funded ones. This is the case, for example, of BBC who has largely publicized the review – after the Hutton report – of its Programme Complaints Department (PCU), especially the complaints handling process considered as highly fragmented and not standardized. From the BBC website about Accountability (Italics is ours): The BBC, as an open and transparent organisation which is trusted by the public it serves, seeks to engage its audiences in dialogue, to learn from them and to respond honestly to what they have to say… The quality of our responses to audience concerns is audited annually to maintain quality. We are reviewing our processes to ensure that serious programme complaints are dealt with in the most appropriate way. (www.bbc.co.uk//info/statements2004/docs/commitments.htm) Similarly, in Ireland the recent debate about TV licence fee renewal (2000/2002) raised the issues of audience rights and viewer accountability. The report published by the “Forum on Broadcasting” (the government review body) has significantly influenced Irish media policy in general and RTE policy in particular. The “RTE Audience Council” and the “RTE Charter” – the two emerging ‘best practices’ in Ireland – are the results of this public debate. The RTE Charter will be a public contract reflecting RTE duties and commitments. The Audience Council (since January 2004) is an unpaid public body of citizens and nominated members which provides a mechanism for the audience to respond to RTE and interact with its programming agenda. Finally: The concept of “commitments” came from the licence fee debate and it was one of the things RTE proposed to do as part of its bid for increased licence funding… RTE from this period on described its audience as “share-holders” to continually reinforce its public funding and ownership. (Shaw 2005) b) Innovative and audience-oriented accountability instruments In these countries we can also observe, in some cases, an effort to create new and innovative instruments to ensure viewers’ rights and to also improve the relationships between viewers and broadcasters. In fact, two recent initiatives can be considered as two interesting ‘best practices’: the first one comes, once again, from the United Kingdom – with the establishment of a “Consumer Panel” in the Ofcom framework – and the other one comes from Germany – where a “Media Meeting” has been launched by the Media Authority of North Rhine-Westphalia for the first time in November 2003.

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The Ofcom Consumer Panel, in UK, includes consumer activists, union officials and competition experts. It started working in February 2004 and it is therefore too early to understand its real influence in the UK media debate: nevertheless the concept seems a promising one. The Panel will function as a “critical friend” to Ofcom to help inform its decisions. It will have access to a substantial research budget to ensure that the advice it provides to Ofcom is based on an accurate and independent understanding of the consumer interest…. The Panel is independent of Ofcom and operates at full arm’s length from it, setting its own agenda and making its views known publicly. (www.ofcomconsumerpanel.org.uk) The “Media Forum”, in Germany, is a completely different instrument from the UK Consumer Panel but it also has an advisory function. When it was established, the aim was to achieve a public discussion, in North Rhine-Westphalia, between viewers and media professional: now if we look at the interest raised by the first meeting on “Digital Broadcasting” (Nov. 2003) – 200 media users, journalists, academics and politicians – we can certainly say that the aim has been achieved. A second media meeting took place in June 2004 in Cologne (on DVB-T first experiences in the region of Cologne-Bonn) and another media meeting took place in Dortmund in September of the same year: the topic was “Bad programme, bad taste: where are the limits?” In summary, all these initiatives are testifying the same type of development: regulators – but also broadcasters – are experiencing more sophisticated tools to understand audience needs better and represent them better too. Another example can be found also in Denmark where Public Service Broadcasters meet regularly with representatives of viewer organizations in the framework of the “Programme Council”. The Council does not have any formal influence on broadcasters, but is a regular dialogue – they meet twice a year – and viewer organizations can choose representatives they want to send (employees, unions, etc.) The interest of these initiatives is tightly connected to another phenomenon:the progressive de-legitimization of other well-established but not very effective instrument that apparently failed (cf. above the case of Switzerland and Austria in paragraph 2.2, pp. 27–28) in representing viewers’ interests: the election and participation of social groups’ representatives into broadcasters’ official bodies. In the age of individualization, the commitment of people to their union, or religion, or party etc. is eroding – and with it the feeling to be represented in these bodies. As a consequence, from the viewers’ perspective these bodies are becoming a part of political-administrative sector which they believe to be less and less in the position to represent viewers’ interests. It is against this background that recent initiatives [..] – such as the Media Meetings – are so important and to be mentioned as “best practice”. (Uwe Hasebrink, cit. Holznagel/Jungfleish 2005a)

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Even in Ireland, the creation of the RTE Audience Council – based on the BBC concept of non-politically appointed citizens (like the BBC regional panels) – is finally an example of this same tendency and introduce a new important element: it creates a self-regulatory mechanism which ties broadcasters and authorities to its audiences and public. c) The creation of accountable self-regulated bodies Devolving regulatory powers to industry bodies and ensuring, at governmental level, that self-regulatory measures are actually observed is also another clear development in this category of countries. In The Netherlands the recently created “Institute for the Classification of Audiovisual Media” (NICAM) is a government-endorsed self-regulatory body and is a clear example of this general tendency. The government provides 75 per cent of NICAM funding, monitors and evaluates the scheme’s implementation through the industry and supervises it via the Dutch Media Authority. NICAM provides a classification system for the entire audio-visual sector (public and commercial broadcasters, distributors of films, videos, DVD and computer games, video stores and retailers, etc.) but the Institute is responsible also for complaints: any person who believes that a broadcasting association is breaking the rules can complain to NICAM. Fines may vary from euros 11.350 (films and videos industry) to euros 22.700 (broadcasters). In the future NICAM will be competent also for the Internet and the new media. In The United Kingdom devolving regulatory powers to industry bodies is one of the new Ofcom duties. The Communications Act 2003 clearly requires Ofcom “to have a regard to desirability of promoting and facilitating the development and use of effective forms of self-regulation”, and Ofcom issued a Consultation Document in October 2003 going in this direction: “Criteria for transferring functions to co-regulatory bodies”.

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Accountability structures and instruments – selected examples

In some countries the creation of self-regulatory or co-regulated bodies can also be a more spontaneous development. In Germany, for example, thirteen private broadcasters have founded, in 1993, the “Voluntary Self-Control Television” (FSF) that is financed by a membership fee. This association’s task is to check whether a certain film or programme conforms to the requirements of youth protection law. It does so upon request by a broadcaster or by a Media Authority. Members of the association are obliged to comply with its decision…. In case of non-compliance the broadcaster can be reprimanded publicly, the reprimand can be broadcasted in its own programme or it can be excluded from the association. (Holznagel and Jungfleish 2005a)

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Moreover, according to the new State Treaty on Youth Protection, today these kinds of self-regulatory bodies – another for multimedia content has been founded recently – have become a part of the new system of ‘regulated self-regulation’. Thus, the originally spontaneous creation of FSF led to a more systematic approach. In Belgium, also, self-regulation is a well-established reality: JEP (Jury d’Ethique Publicitaire) or ‘Raad voor de Journalistiek’ attract a relatively high number of complaints because they are very accessible and because, in some cases, they are better staffed than the official bodies. But compared to other countries these bodies’ lack of formal powers, both Raad and JEP, do not have any sanctioning power. 2.2. Less-advanced countries This category of countries is, by far, less homogeneous than the previous one. It is obvious, for example, that France and Greece are two quite distant countries as far as viewers’ interests protection is concerned. It is also obvious that the French audiovisual system is much more transparent than the Greek or the Italian ones. Nevertheless, a “fil rouge” can be found in all the countries belonging to this category. The efficiency of the mechanisms established for insuring viewer participation and media transparency are often considered – by our analysts – much more “formal” than substantial. Another difference – in this set of countries – is the lack of public debate or “political tension” on issues such as media accountability and how to improve it. Sector-specific authorities have been established, European community laws and directives have been introduced in national laws, but nobody feels an urgent need for “reviewing” them. Again, where does this judgement of formal (vs substantial) efficiency come from? Basically from the observation of the following four characteristics: a) Media authorities are often reduced to simply “supervise” the implementation of current legislation The most evident example comes from France where CSA is not entitled to intervene into mergers or takeovers such as the famous merger, ending 2000, between Vivendi-Universal and Canal+. In France, too, but also in Greece, national authorities are not even allowed to deal with complaints concerning TV programming: this is widely considered, even in France, as a serious regulatory anomaly. Spain is also a curious case. The Catalan Audiovisual Authority (CAC) cannot revoke or suspend licences and almost half of the Spanish regions have no authorities at all. At the national level, Spain has no “Audio-visual council” but the new socialist government finally appointed – under the viewers associations’ pressure – a special commission to create this new body. But in Switzerland, also, the attempt to establish an “independent media council” supervising the whole media area – in the framework of the recent revision of the Swiss Radio and TV Law – has been strongly opposed – by the SSR-SRG (the public service broadcaster).

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b) Authorities have a limited sanctionary power and fines are rarely enforced or applicable (and in some cases the amount is ridiculously low) This is one of the most recurrent weaknesses that analysts have pointed out. In Italy, for example, Mr. Bafile – the vice-president of the “National Council of Users” (CNU acting within Agcom, the national media authority) – has recently resigned for denouncing “an increasingly scarce firmness of action in those cases that require clear stances on the part of the Authority in protecting the citizens’ rights”. More concretely, Mr Bafile was referring to two types of “bad practices”: the practice of not starting sanctionary proceedings against the broadcasters or the frequent recourse to the “cash settlement” practice – when law violations has been ascertained – or the “oblazione”, the system that allows a drastic reduction of the sanction. I am personally convinced that, when more severe and persuasive sanctions (as for example the station’s blackout for a given number of days) are not applied, society suffers: indeed, in this way one ends up encouraging broadcasters to violate the laws and, ultimately, promoting the barbarization of our television which is unfortunately under the eyes of everyone. (Santori and Ferrigni 2005) It is very difficult to evaluate the extension and the intensity of this phenomenon in all the monitored countries.Nevertheless, many are signals coming, for example, from Spain, where some regional authorities (the Andalusia Superior Audiovisual Council) have no sanctionary power at all, or France where this power (limited at 3 per cent of the broadcaster turnover) is rarely used. In Luxembourg, also, the “Conseil National des Programmes” does not have enough power to sanction an infringement. In any case this type of weakness should not be overestimated or considered as the only indicator for evaluating Authorities’ performances. As pertinently noticed by the Greek analyst, an Authority whose efficiency would be limited only to the sanctionary aspect could probably reveal as weak as the more permissive ones: … The Council (ESR) is narrowly focused on imposing monetary fines – thereby operating in a legal court fashion. This means that the Council misses the opportunity to open up a dialogue with all the interested parties in a more farreaching and concerned way. As things stand, the ESR seems to be lacking a comprehensive policy scope and a vision for a dynamic and inclusive role. (Kaitatzi-Whitlock 2005) c) The existence of an extravagantly detailed normative framework producing a convoluted and “unworkable” legislation Here, again, Italy and Greece provide the best examples to illustrate this characteristic. According to Dr Rossi, the President of the Committee for the “Implementation of the self-regulatory code on TV and minors” there is an urgent need, in Italy, of a sole Code for TV and minors in order to make regulation more consistent and systematic:

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Regulation should be essential, neither dispersive – there are too many codes, charts, laws – nor over-analytical. It is important that regulation be both prestigious and effective. (Santori and Ferrigni 2005) The Greek situation is probably even more serious. The amount of Presidential Decrees, Ministerial Decisions and other Normative Acts has produced a sector regulation so dense and detailed that not surprisingly the legal norms are often severely violated, or plainly ignored, by most actors in the broadcasting system – the government included. Today the lack of implementation of adopted measures and the defying of regulation is still an ongoing problem. Besides, certain analysts even raise an issue of non-implementability of the Greek legislation in this area, which would certainly be to the advantage of the most prominent players in this field. (Kaitatzi-Whitlock 2005) d) The adoption, by some Public Service Broadcasters, of questionable accountability mechanisms This is the case, for example, of France TV who introduced, in 1998, the “Mediateur” function (an in-house ombudsman). Three well-respected employees (two for the news and one for the programmes) are appointed directly from the France TV President in order to directly deal with all types of audience request, information and, obviously, complaint. The intention was praiseworthy – improve the relationship between licence-fee payers and the publicly funded broadcaster – but the results are probably not so impressive. French viewers are not entirely convinced of the “pertinence of the concept” as the Mediateurs are administratively dependent (salary, renewal, etc.) on the broadcaster itself and their impact on programming and editorial policies are apparently minimum or inexistent. The same type of criticism is often raised as far as “Charts” – officially stating the broadcaster core set of principles, objectives and commitments – are concerned. France TV and RAI (Italy) are two good examples because they both have chosen this type of accountability tool: “Charte de l’Antenne” (France TV) and “Carta dell’Informazione e della programmazione” (RAI). Nevertheless, the uses of this tool are completely different. The France TV Chart is widely promoted and easily accessible (on the corporate websites) but this is not the case for the RAI Chart, because it has been elaborated for internal and managerial purposes only. The aim of the RAI Chart is to provide to the “Consulta Qualità” – established in 1996 – the basis for evaluating the “quality” of the public broadcaster output or the correspondence between objectives (detailed in the Chart) and the results or performance. But, again, this is a purely internal and managerial accountability tool: The Consulta is an advisory organ only for RAI’s top management and as such functions only as a consultant and has reduced powers, further weakened by the fact that the opinions expressed by the Consulta (2,368, from 1996 to date) are

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not made public but submitted to the Board of Directors and to the CEO of RAI.This means that the citizen has no way of measuring or controlling the quality and effectiveness of the action carried out by the Consulta…. (Santori and Ferrigni 2005) Accountability structures and instruments – selected examples Country
France

Regulators / Government

Broadcasters






Italy

France TV: “Charte de l’antenne” Mediateurs (3) “Baromètre Qualitatif” RAI: “Consulta qualità” (no public access)








Spain

Switzerland

Austria








SRG: “Viewing Audience Councils” (Regional Societies) ORF Audience Council

Luxembourg




RTP Advisory Council

CSA: no complaint procedure CLEMI: dealing with media education Agcom: limited sanctions CNU (Agcom): limited influence CAC: “Office for the defence of the Audience” Project: “Spanish Audiovisual Council” UBI (Bakom): Complaints Authority





Greece

Portugal




Self-regulation





ESR (no complaint procedures) National Communications Authority (ANACOM) Conseil National des Programmes (no sanctions)

In Switzerland, too, where individuals can – theoretically – participate directly within the management of the public broadcaster (SRG-SSR) by becoming a member of the “SRG member companies”, PSB accountability is – apparently – still an unresolved issue. The influence of these “regional societies” is, in practice, extremely limited because of the tasks – slightly contradictory – of the member companies. On the one hand as a part of the SRG their internal task is to promote the programmes of the SRG channels, on the other hand their external task is to represent the interests of the viewers and control and criticize the programmes. (Herzog, 2005d)

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The problem of the member companies – which should take into account the interests of different societal groups – is that they are a part of the SRG and one of their tasks is to represent the SRG programmes in the public (e.g. organizing guided tours through the companies’ buildings). In conclusion, even if SRG defines itself as “an association of societies open to all Swiss people” this kind of “democratic” structure is finally perceived as purely formal. The same type of problem can be found also in Austria. The interests of the listeners and the viewers are “formally” safeguarded by the ORF Audience Council – the controlling body of the Austrian public service broadcaster – as 6 of the 35 members of the Council can be elected directly by the viewers and the listeners. But this system has been labelled – by our local experts – as a “fig leaf election”. As a matter of fact, as the big proportion of the members of the Council is nominated by the Federal government not many people take part into these elections (only 2 per cent of the potential voters). In conclusion, this type of Council is perceived as a “seemingly democratic” way of making citizens participate to the Public Service governance and, also, the Council influence is quite low as ORF management often ignore the Council recommendations (especially in the area of the programme content). 2.3. The “under construction” countries In this third category of countries accountability structures are often described as “under construction” (Poland) and reports’ conclusions are quite similar: “there is a lot to be done” (Slovakia).As a matter of fact, the collapse of the communist system is certainly too recent, and the separation between media and society is still a very tangible feature. Four more specific characteristics help in understanding the distance separating this set of countries from the two previous ones: n An overall lack of money makes “viewers interests” probably not the most important issue; n The lack of democratic culture and the absence of a civil society tradition – e.g. there are no specific viewer associations – do not help in creating a “public demand” in this area; n A broadcasting system increasingly dominated by commercial and, in many cases, foreign interests is marginalizing public service organizations and values; n The last, but not the least, the media landscape is still highly politicized and the state influence is hardly declining. The lack of civil society culture is probably the most interesting and important issue, according to our analysts. It explains why media accountability – in these countries – is not very easy to implement. For example, all these countries have established official regulatory authorities or controlling bodies that supervise the compliance of the TV/Radio programmes with the law, but the reasons why their efficiency – and also prestige – is often very low is certainly outside these bodies. The main problem of NAC (National Audiovisual Council – Romania) is rather tied to the general context than to the functioning of the institution itself. Although

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the NAC is open to a formal-informal collaboration with TV consumers, the institution does not have a partner in that area, due to the lack of specific consumers’associations/NGOs. Most of the viewers who send complaint letters, emails, etc. do not have enough knowledge regarding the audio-visual law or the NAC attributions. We miss a proper consumer’s education: viewers do not know the legal audio-visual framework, as well as they are somehow lacking their conscience as both citizens and TV consumers. In France, on the contrary, the institutions entrusted with the protection of TV viewers benefit most from the collaboration with viewers themselves. (Santori and Baltasiu 2005) This is a widely common feature: the Authorities do not work in a context where a daily social pressure obliges to be accountable. Authorities do not even have the possibility – if they wish – to interact with representatives of civil societies, as viewer organizations do not exist. A second dominant feature is the general weakness of the media regulatory framework. In some countries EU Regulation is not fully implemented (e.g. Poland and Czech Republic), in other cases (Bulgaria) the national authority has no legal power to stop the broadcasting of unsuitable shows for children (e.g. Wrestling in daytime raised a public debate) and in some other cases – Czech Republic – laws are simply not good enough to be effective. An additional problem is that the law often is not concise enough and that the definitions provided are too weak. For example, there was a complaint about a children’s programme of the biggest private broadcaster TV Nova and the Council imposed a penalty of 1,000,000 Kronen (approx. 31.000 Euros). But the channel took the decision to court and argued that there was no definition of children’s programmes in the media law (from 2001) and TV Nova was granted a full discharge by the court. (Herzog 2005e) Legal provisions concerning viewers’ rights are largely missing also in Hungary – there is no “right to counterstatement” either in the Media Law or in the Hungarian Civil Code, and there is no definition of “viewer right” in the Media Act – and Authorities sanctionary power is also generally weak if not absent (e.g. Estonia). It should be stressed that even if the sanctionary efficiency of the national authorities is a general Europe-wide problem, in this category of countries – where commercial broadcasting is more aggressive then elsewhere – the strengthening of this type of power is felt certainly as a more urgent regulatory issue. In any case, there is another factor – independent from the quality of the legal and regulatory framework – that is often undermining the national authorities’ efficiency: the exaggerated number of competencies they receive, as the Bulgarian analyst reports:

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A general problem of the CEM (Council for Electronic Media) is that it has got too many indistinct competencies.The very long list of powers as stated in articles 32–34 of the Law on Radio and Television demonstrates that this organisation is responsible for almost everything related to radio and television. However this 29/5/06 10:53 pm Page 31as a disadvantage, because specific tasks – as the protection plenty of tasks is seen of viewers’ interests – cannot be a visible part of its activities. As a consequence there is a general lack of attention for these issues, and the CEM is not very influential in this field. (Herzog 2005h) Accountability structures and instruments – selected examples Country

Regulators / Government

Broadcasters TVP: Ombudsman in development

Poland

KRRiT (National Council for Media Council of Ethics Media Council of Ethics Radio and TV) prestige) (low (low prestige) (National AudioNAC NAC (National AudioCouncil) visualvisual Council)

Romania Romania




Czech Czech Rep.Rep.





CBC (Council CBC (Council for for and TV RadioRadio and TV Broadcasting) Broadcasting)
CTV (CTV ( TV Council): TV Council): PSB PSB only only

Hungary Hungary

(National ORTTORTT (National RadioRadio and and TV Commission) TV Commission)

Bulgaria Bulgaria

(Council for Electronic CEM CEM (Council for Electronic Media) Media)

Slovakia Slovakia




SVT:SVT: Discussion
SVT: Discussion Discussion Group Group Group

C (Council CBR (Council CBR for for Broadcasting Broadcasting and and Retransmission) Retransmission)


Lithuania Lithuania

Latvia Latvia Slovenia Slovenia

Estonia Estonia

Self-regulation





RTK (Radio RTK (Radio and TV and TV Commission) Commission)
Ethics Ethics Commission / Commission / Ombudsman Ombudsman

(National NRTPNRTP (National radioradio and and TV Council) TV Council) (Broadcasting SRDFSRDF (Broadcasting Council) Council)


EPC (Estonian EPC (Estonian PressPress
Broadcasting Broadcasting Council Council Council) Council) (for PSBs) (for PSBs)

If you consider that, in addition, the majority of these bodies do not have sufficient means and staff to monitor an increasing number of programmes or apply sanctions, the issue becomes even more relevant. This is certainly one of the reasons why selfregulation initiatives are becoming so popular – in these countries but also elsewhere.

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These institutional problems are nevertheless quite well known. They can be found also outside the audio-visual sector and this is the reason why European Union has established, in 1989, the PHARE programme. The aim of the programme was to assist applicant countries of Central and Eastern Europe, in a period of massive economic restructuring and political change, to achieve compliance with European Union requirements. Many of these countries have then benefited – or are benefiting – from the PHARE programme, in strengthening audio-visual institutions (as KRRiT in Poland or RTCL in Estonia). This is also the case, for example, of CEM in Bulgaria that is establishing – thanks to the PHARE initiative – the complaint procedures via the Internet.Another part of the project aims at establishing a complaints council for professional standards. The background for this initiative is the decline in standards of professional journalism due to the proliferation of new media and the lack of self-regulation. As this project is still running, it is too early to assess whether its ambitious aims will be reached. It can only be said, that at least the pure existence of this project has raised the attention for media-related issues like the viewers’ interests and professional standards. 3. Concluding remarks As we have already said, the European picture is highly fragmented. Nevertheless there are some common developments and some general policy issues that are worth raising when conclusions have to be drawn. a) The ICTs fast development is undoubtedly accelerating and facilitating the adoption of more innovative and well-performing accountability structures. This is a very common feature and is playing a crucial role in both ways: Although it may be too early to observe outcomes, it is clear that internet sites, chat rooms and new media tools are significantly affecting not only how viewers can interact with broadcasters, but also how broadcasters form relationships with their viewers. (Collins and Sujon, 2005) In Germany, the regulatory bodies decided to jointly run an online platform for programme complaints which has been launched in 2004 and in the United Kingdom the BBC has invested heavily in developing online services and websites associated with its traditional TV channels (BBCi). Generally speaking, in many countries, authorities and broadcasters are developing well-designed and cutting-edge websites because these are becoming key tools to open informal public consultations and for accessing policy documents, complaints procedures and feedback mechanisms. These new “civic platforms” are certainly expanding the notions of public space and media accountability. b) The proliferation of self-regulatory industry bodies and the tendency of adopting new forms of internal self-regulation (e.g. Ombudsman, Ethics Charts, Audience Councils, etc.) raise the very fundamental issue of their efficiency. In some countries

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these bodies or structures are government-endorsed and are seriously monitored in order to ensure that the self-regulatory measures are actually observed. But this is not always the case. Therefore the “model” is not necessarily a good or a bad one: its quality is highly dependent from its concrete implementation. c) In all the European countries where 40/60 per cent of the audience watch a foreign content (Ireland, Switzerland, Austria, Belgium, etc.), all efforts for adopting codes, self-regulation, ethics, etc., loose ground as they affect only nationally based (minority!) broadcasters. The recent children’s advertisement code initiative while welcome will only affect Irish based broadcasters. So broadcasters like RTE and TV3 may have to lose advertisement revenue while the advertisements will simply go the UTV or Sky who are not regulated in Ireland… It would make far easier if European audiences as an entity were treated the same. (Shaw 2005) These countries cannot regulate alone and there are obviously strong expectations – from both audiences and broadcasters – for a wider debate on issues like national sports rights and content codes and, ultimately, for panEuropean regulation in terms of audience rights. d) Even if many European authorities are still struggling to obtain more effective sanctionary power or to improve their complaints handling these are and will always be two ‘negatives’ approaches to the broadcasters’ behaviour or output: from both sides – from the authorities and from the viewers. The improvement of a media system is highly dependent on the quality of the dialogue between all the interested parties – broadcasters, viewers and authorities – and on the ‘vision’ they succeed in sharing. In Norway, for example, the recent media policy debate has raised an interesting ethical question (Italics is ours): There is a continuous struggle between the principle of media freedom and the wish to protect the population from undesired influences. In 1999, a state commission made a proposal to include a much stronger protection on freedom of expression and freedom of information into the Norwegian Constitution… An interesting proposition is that it is the state’s responsibility “to create conditions enabling an open enlightened public debate”. (Herzog 2005k) Notes 1. A first version of this paper has been presented at the EAVI founding conference (“Advancing the European Viewers’ Interests”, Lucca, 22nd–23rd October 2004) and is based on the results of the EC-sponsored research as described in the Introduction of this book. This is a revised and updated version and I apologize for any misunderstanding or errors in my analysis of the national reports. All the quotations, if not differently stated, come from the country reports already published: cf. Baldi (Ed), 2005.

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UK BROADCASTING POLICY: THE “LONG WAVE” SHIFT IN CONCEPTIONS OF ACCOUNTABILITY Richard Collins and Zoe Sujon

Contemporary discussion of broadcasting policy in the UK now focuses closely on the role and purpose of the BBC. This may seem obvious and unsurprising for not only is the BBC’s place in UK and world broadcasting history assured but the BBC remains the most salient element in the UK broadcasting ecology – accounting for c38% of television viewing, 53% of radio listening and a web site claimed to attract more hits than any other European site. However, the contemporary focus on the BBC is framed differently to earlier discussions and there are both immediate and long term reasons for this. Broadly, ideas about the BBC and PSB have shifted from a consensual view of the BBC as the single, or main, instrument, for achievement of public policy goals (and to which other institutions should be subordinated) to a contested vision. The contest is between visions of the BBC as the primary element in a broadcasting system dedicated to public service as and one in which the BBC is seen as a dependent variable, an institutional response to the historical failure of the broadcasting market, and as an awkward exceptional element in a broadcasting system organised through markets and competition. This shift in the dominant ideas or, to adopt the metaphor which informs the title of this paper, the ideas which hold the high ground, has resonated widely and has marked policy debate in specific sub-areas of public service broadcasting policy. Not least in the way in which the accountability of the BBC to viewers and listeners has been conceived. In immediate terms, both the expiry of the ten year period of the BBC’s Royal Charter in 2006 and publication of the Hutton Report1 (Hutton 2004) in early 2004 has made

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governance of the BBC the subject of intense public debate. And in a longer term perspective, the accountability of broadcasters to their users has changed as a consequence of the Government’s loss of control of entry to the UK broadcasting market. Both immediate and longer term considerations contributed to the House of Commons Select Committee on Culture Media and Sport’s judgement that, “there is a strong perception that the constitution of the BBC is unworkable and out-of-date” (House of Commons Select Committee on Culture Media and Sport 2004: 3). From the 1920s to the mid 1950s Government was able to maintain the BBC as a monopoly broadcaster. The monopoly came to an end in 1955 when the first UK based competition to the BBC, ITV,2 was established. But ITV, and all the UK terrestrial television broadcasters that followed it (Channel 4 in 1982 and Channel 5 in 1997 were established as public service broadcasters (PSB) and were charged with a range of public service responsibilities. But since the loss of government control of entry to UK broadcasting, which the start of Sky television’s services signalled in 1990, the terrestrial commercial television services, hitherto considered to be part of UK PSB, have experienced increasing competitive pressures and, in consequence, their PSB obligations have been reduced. Accordingly, as the last Chief Executive of the Independent Television Commission (ITC) stated, “if public service isn’t economic, it needn’t be provided by commercial channels. Clearly the buck will stop with the BBC” (Hodgson 2003: 7). Achievement of UK PSB objectives now focuses on the BBC – but on a BBC whose performance, ethos and organisation is under unprecedented scrutiny. The Hutton Report focused attention on the BBC’s handling of complaints and, more generally, on its governance and accountability both to its viewers and listeners and to the public as a whole. Hutton threw into clear public visibility the curious status of the BBC’s Governors who were (and are) simultaneously regulators of the BBC, advocates for the BBC and constitutionally and legally the embodiment of the BBC. Though time honoured, this system of governance has come to be seen as denying those who use and pay for the BBC an effective means of holding the BBC to account. Accordingly, the BBC devoted a section of its response to the Government’s proposals for its future (BBC 2005 section 3.3) to the question of accountability and how it might be improved. Whilst it seems likely that the short term outcome of the contemporary debate about the BBC’s role, status and governance will be something close to the status quo, the intense contemporary debate about the future of the BBC has focussed attention on more general concerns about broadcasting governance and accountability which have run through UK broadcasting history. They have thrown into relief an apparent change, a “long wave” shift in the dominant framework of ideas governing UK broadcasting policy, and particularly public service broadcasting policy. 1. Accountability: exit, voice and loyalty In 1970 Albert Hirschman published his influential book “Exit, Voice and Loyalty” (Hirschman 1970) in which he identifies three ways in which stakeholders can hold institutions to account – “exit”, “voice” and “loyalty”. Different governance systems

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provide different means for stakeholders to signal their preferences by exiting from the relationship (e.g. by ceasing to buy products and services), making their voice heard (e.g. by voting) or by demonstrating their loyalty (doing nothing in circumstances where the alternatives of exit and/or voice are available). UK broadcasting has three main governance regimes each of which differently blends exit, voice and loyalty. a) First, what the Communications Act 2003 calls “licenced content providers” – principally cable and satellite television broadcasters financed by subscription. This regime permits viewers to exit by ceasing to subscribe (and to remain loyal by continuing to subscribe) though their ability to exercise voice is limited. b) Second, the advertising funded terrestrial sector (Channels 3/ITV, 4 and 5). Viewers’ relationship to broadcasters in this sector is indirect. They are able to exit (by not watching services provided by broadcasters in this sector) – but the force of their exit, and loyalty, will depend on how far their actions are of significance to advertisers. Their ability to exercise voice is limited. c) Third, there is the publicly funded sector – effectively the BBC. Here, viewers are unable to exit (unless they are prepared to exit from consumption of all television services and not just the BBC’s), though their choice not to consume BBC services (whilst continuing to pay the licence fee) may, in theory, indirectly weaken the BBC’s legitimacy and therefore its ability to continue to command licence fee funding. But there is no sign that the BBC’s legitimacy with Government has been sufficiently weakened to put its licence fee funding in question. Viewers have weak powers to exercise voice (eg through participation in the BBC Governors’ virtual Annual General Meeting and to submit complaints to a more effective and attentive complaints handling system than obtains in either of the other two sectors) – but though voice is weak there are greater opportunities to exercise voice than in either of the other sectors. If the means – whether voice or exit – whereby viewers can represent their interests are incomplete, how might representation, whether by exit or voice, be improved? The philosopher Mary Warnock (when a Member of the Independent Broadcasting Authority, IBA)3 helpfully defined accountability as a combination of the right to know and to impose sanctions (Warnock 1974). In Hirschman’s terms the right to know might be seen as a precondition to exercising the (negative) sanction of exit, the positive sanction of loyalty or the, potentially either negative or positive, sanction of voice. Warnock further stated: A is accountable to B where B has entrusted to A some duty (especially in regard to the spending of money) and where, if A fails to fulfil this duty, B has some sanction which he may use against A. This is one necessary part of it. But it follows that B has a right to be exactly informed of what A has done towards fulfilling his duty. (Warnock 1974: 2)

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Table 1: Potential for Exit, Voice and Loyalty in three UK television regimes Exit

Voice

Loyalty

BSkyB (representative of subscription funded sector).

Strong (consumers can cease to subscribe).

Weak (qualitative audience research not much used and complaints, except when mediated via Ofcom on Tier One matters, not strongly linked to programming decisions).

Reasonably strong (“churn” rate strongly linked to business model – in this sense “exit” and “loyalty” closely linked – though “loyalty”, in the sense of being able to influence business practice, when considered in relation to “voice” is relatively weak).

ITV (representative of advertising funded sector).

Moderate (viewers can cease/reduce consumption and funders,advertisers, can respond to reduced consumption through exit).

Moderate (some attention to qualitative research and complaints, especially when mediated via Ofcom on Tier One, Two and Three matters, linked to programming decisions).

Moderate – some potential to “exit”, some potential to influence via “voice”.

BBC (representative of publicly funded sector).

Weak (no lawful means of ceasing to pay licence fee and watch television).

Relatively strong (highly developed audience research and new complaints system linked to programming decisions).

Moderate – weak potential for viewers and listeners to exercise financial sanctions via exit but some ability to exercise influence via voice and exit through qualitative and quantitative audience ratings.

Warnock made her argument to justify the IBA’s practice (and, doubtless, her own role in what was then the UK’s only broadcasting regulatory agency) and fend off contemporary pressure for a more direct accountability of broadcasters to viewers and listeners. Nonetheless, the two elements of accountability which she identified provide a useful yardstick for assessing and improving the accountability of UK broadcasting.

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2. Accountability: proposals for change at the BBC In neither subscription nor advertising funded broadcasting can the signalling systems of exit and voice be said to work well but in each there is, in different degrees, some possibility of signalling both by voice or exit. However, in the third sector, publicly financed broadcasting, there is no lawful exit for a viewer. Better ability to signal through voice may be thought to compensate somewhat for this deficiency but, in spite of the welcome significant recent improvements which the BBC has made to its governance, transparency of operation and complaints handling arrangements, these arrangements cannot be said to fully satisfy Warnock’s criteria of a right to know and to exercise sanctions. On the question of exit, Barry Cox4 has argued: “It [the BBC] is in effect a self-perpetuating department of state but without an elected politician at the head of it….. it is funded by tax payers’ money but…. Is granted more money than it needs to do the job….. I don’t mean that the BBC is part of the government… It’s worse than that. We can at least get rid of the government”. (Cox 2004: 60) Cox refers to the BBC’s chief source of finance, the licence fee, which must be paid by all lawful UK television viewers whether or not they actually watch BBC broadcasts. They cannot exit, for licence fee payer5 cannot lawfully terminate their financial commitment to the BBC if they retain any television receiving apparatus – which is defined to include not only conventional television receivers but also computers, mobile ‘phones and the like which are able to receive television signals. Nonpayment of the licence fee is a criminal offence. Moreover, as the BBC’s statements in its response to the Government’s 2005 Green Paper on the BBC’s future reveal, the BBC does not support democratic appointment to, and accountability of, the consultative institutions it has created (notably its three National Broadcasting Councils – for Northern Ireland, Scotland and Wales – and the English National Forum) to represent, in a manner which can best be described as ventriloquist, viewers and listeners’ views to itself. The BBC Governors’ statement that they “agree with the points made by the Broadcasting Councils that elections would not be an appropriate mechanism for selecting their members” (BBC 2005: 59) is a case in point. However, the BBC has proposed (BBC 2004: around 131) to strengthen the institutional forms through which viewers and listeners can express their “voice”. The BBC lacks the institutional forms of either joint stock companies (shareholders’ meetings, election of directors, reporting requirements defined by stock exchanges and financial regulators) or democratic politics (notably the election of representatives) through which, in other institutional contexts, “voice” can be expressed. In consequence, the BBC proposes to strengthen its advisory councils (but how this is to take place is not yet clear), to undertake a tri-annual public value survey (by polling a large representative sample of the UK population) and to improve complaints handling (this has now been implemented). The BBC also recently implemented new governance arrangements with a stricter separation between

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management and Governors, strengthened Governors’ secretariat and a mandate for the Governors to evaluate stringently and independently management proposals and performance (see BBC 2004). However none of these proposals appear likely to satisfy Warnock’s criterion of ability to exercise sanctions. The BBC’s reforms promise to improve on established arrangements: the Governors have been somewhat distanced from the BBC’s management (they now occupy a different building to the BBC’s senior management, have their own website and so on) and the new complaints procedure (which identifies target times for responses to complainants, improves communications between complaints, complaints handling and those responsible for the BBC services which are the subject of complaint, establishes transparent investigative and appeal procedures – see http://www.bbc.co.uk/complaints/complaints_process.shtml#how on 9.9.2005) clearly improves on the old. The current Chairman of the BBC’s Governors, Michael Grade (who took office in 2004 after the resignation of Gavyn Davies) has improved the BBC’s transparency in several important respects in the spirit of Warnock’s “right to know”. But, despite improvements in satisfying the “right to know” criterion Grade and the BBC have striven to ensure that the BBC is not made more accountable in Warnock’s other sense – of being subject to sanctions imposed by its users directly or by other bodies external to itself. 3. UK broadcasting policy: the “long wave” shift in the dominant framework It seems likely that, so far as can be foreseen, the outcome of the contemporary debate about the BBC’s role, status and governance will be a series of modest (and welcome) changes to the status quo: notably a greater measure of separation between the BBC governance body (whether named Board of Governors or, as the Government has proposed, the BBC Trust) and the BBC’s management, improved transparency of the BBC’s operations and greater consultation with viewers and listeners. But in a longer term perspective, the intense contemporary debate about the future of the BBC, may foreshadow some more significant changes. It has focussed attention on general concerns about broadcasting governance and accountability and has thrown into relief an apparent change, a “long wave” shift in the dominant framework of ideas governing UK broadcasting policy, and particularly public service broadcasting policy. The major official reports on broadcasting policy of the last sixty years (notably the Beveridge 1951, Pilkington 1962, Annan 1977 and Peacock 1986 Reports) advanced very different views on how far broadcasters (and the BBC in particular) should be accountable to users and what sort of governance regime should be used. To summarise, Beveridge began the slow, and as yet incomplete, process of devising a system of accountability of broadcasters to their viewers and listeners although its

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engagement with this matter could not be said to be either comprehensive or far reaching. But given the established frame of reference for such matters at the time, it’s striking that the Beveridge Committee considered the matter at all. For the Ullswater Report of 1936, the Government enquiry immediately preceding Beveridge, addressed accountability only as a matter of what it called “Control”. Accountability was conceived only as a matter of the relationship of broadcasting to government rather than of accountability of broadcasting to its users. The Beveridge Committee considered whether some form of market governance should replace or complement established hierarchical6 governance arrangements. The majority of the Beveridge Committee voted against the introduction of a broadcasting market, and thus to maintain the BBC’s monopoly, and thereby a system in which listeners and viewers had neither voice nor exit. However, the minority report of one member of the committee, Selwyn Lloyd, recommended the introduction of a commercial alternative to the BBC. In 1955 this recommendation was implemented with some consequential enhancement of consumer power. But, after Beveridge, the Pilkington Report in 1962 made plain the Pilkington Committee’s view that viewers and listeners were likely to be poor judges of their own interests and that accordingly neither their powers of voice or exit should be enhanced. Next, the Annan Committee in 1977 proposed improvements to viewers’ and listeners’ voice (though few of the Committee’s proposals to strengthen voice, and thus broadcasters’ accountability to users, were taken forward). However, in 1986 the Peacock Committee decisively shifted the terms of the UK broadcasting policy debate and introduced (see Coase 1950 and 1966 for some anticipatory engagement with these issues) the concept of “consumer sovereignty” as a touchstone of value and argued for strengthening audiences’ ability to exit. Hirschman contends plausibly that systems of governance and accountability that give primacy to exit tend (though not exclusively and absolutely) to be systems of market governance and that those which give primacy to voice tend to be political (or, in Thompson’s 2003 terms, hierarchical) systems. As Hirschman states, “voice is nothing but a basic portion and function of any political system” (Hirschman 1970: 30) and exit is “characteristic of ‘normal’ (non-perfect) competition” (Hirschman 1970: 21). Latterly, UK debate about the role of broadcasting and the relationship (including its accountability to users) to its viewers and listeners has been axed around the terms “consumer” and “citizen” each implying (with varying and uncertain degrees of precision) different normative values and prefiguring different institutional arrangements each loosely mapped onto market and hierarchical practices of governance. 4. Conceptions of the citizen and the consumer in broadcasting policy The notion of consumer sovereignty mobilised in the Peacock Report also grew in salience in other domains. An influential strain in media scholarship over the last two decades or so (see, inter alia, Ang 1985, Morley 1980, Radway 1987) has7 understood media consumption as an active and transformative process rather than the passive absorption of content. Indeed, to emphasise this (not so) new perspective,

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scholars refer to audiences producing meaning in their acts of consumption. This scholarly “emancipation” of the consumer has chimed with the growth in salience in the policy domain of the doctrine of consumer sovereignty. But the ideas of an active audience and the sovereign consumer have also been subjected to challenge by many media scholars. And it is from this critique that the concept of citizen has emerged. Critics have argued that the scholarly “emancipation” of the viewer (and listener) arises from a flawed epistemology, which pays insufficient attention to the material conditions and relations of power which structure decisively consumers’ encounters with texts (whether audio-visual or printed). And they contend that the Peacockian doctrine of a sovereign consumer of broadcasting is not only similarly epistemologically flawed but also both reduces viewers’ multi-faceted cultural and cognitive faculties to a simple consumption/ gratification nexus which camouflages the undemocratic accumulation of power by a few media proprietors under a veil of consumer sovereignty. These critiques customarily invoke citizenship as a positive alternative and conceptual category to that signified by the term consumer. Colin Leys’ book “Market-Driven Politics” (2001) provides both a general critique of the market paradigm and a discussion of broadcasting as a major instance supporting his general proposition that “politics everywhere are now market driven” (Leys 2001: 1) and are the worse for it. Leys8 argues that “market driven politics can lead to a remarkably rapid erosion of democratically-determined collective values and institutions” (Leys 2001: 4) and exemplifies this baleful tendency in discussion of the BBC and the NHS (National Health Service). For Leys, both the BBC and the NHS are public institutions exemplifying collective values and are paradigms of public, non-marketised, relationships: “Public sector activities”, Leys claims, like health services and broadcasting, “to which people are attached historically, and as citizens rather than consumers play an important role…..” (Leys 2001: 2). For broadcasting, this meant an idea “of broadcasting serving neither private interests nor the government of the day but the democratic process itself…… Indeed one can easily envisage a democratic constitution containing clauses providing for broadcasting understood in this way, in the same way that other clauses provide for elections” (Leys 2001: 108). The term “consumer” now thus distinguishes the doctrine of market governance whereas the rival term “citizen” is mobilised by by proponents of public service broadcasting and of hierarchical governance who are critics of market doctrines. The terms “citizen” and “consumer” have been articulated as rival and mutually exclusive categories though there is no necessary or intrinsic incompatibility between the systems of values they represent. Colin Scott and Julia Black, in their account of consumer law, helpfully describe the conception of consumers embedded in the dominant tradition of economic theory as:

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“sovereign economic actors, with stable preferences that have been formulated rationally and autonomously, and who have the potential to exercise power in the economic system by their purchasing choices”. (Scott and Black 2000: 1) Their normative formulation may be seen as complementing Graham Murdock’s proposition, (the leading UK proponent of citizen values in broadcasting policy), that: “the basic entitlement of citizenship [is] the right to participate fully in social life with dignity and without fear, and to help formulate the forms it might take in the future”. (Murdock 1999: 8) Whereas both the scholarly and policy domains have discussed and mobilised the term “consumer” more attention has been given to the category “citizen” in the scholarly than in the policy domain. Murdock’s proposition that “the core rationale for public service broadcasting lies in its commitment to providing the cultural resources required for full citizenship” (Murdock 2004: 2) succinctly states an argument made more widely (see, inter alia Calabrese and Burgelman 1999). At their most positive, such citizenship arguments construct broadcasting as a facilitator of democratic activity located elsewhere – notably in the domain of formal politics. But they leave unstated any notion of democratic control, of accountability to its viewers and listeners, of broadcasting itself. Rather, broadcasting is taken to be a site for viewers’ and listeners’ welfare claims on public service broadcasting and on the BBC in particular. These pro-citizenship arguments certainly redresses an important balance by foregrounding important considerations sometimes excluded in discussions framed by the concept “consumer” but the price for so doing has been a general silence about the concept of accountability. Whereas accountability, albeit a conception of accountability restricted to accountability through exit, has been central to the policy issues explored by Coase, Peacock and others operating within a market paradigm. The roots of this silence seem to lie in the work of the British social theorist T H Marshall whose conception of citizenship has little to say on accountability and voice but who, somewhat strangely, has been taken up as a source by scholars propounding citizenship rationales for public service broadcasting9. 4.1. Citizens’ “legitimate expectations” Marshall identified three elements to citizenship: “First comes the level of precisely defined and legally enforceable rights, which may be adjusted by interpretation but not by discretion. Next comes the right to have one’s claim assessed by exercise of discretion in accordance with current policy” (Marshall 1981b: 96) and third comes what Marshall (1981b: 97) called a third level of “legitimate expectations” of “benefits or services to be provided for the citizen”. Marshall refers to “welfare” as an “integral part of the whole apparatus that includes social security, education, public health, the medical services, factory legislation, the right to strike, and all the

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other rights and legitimate expectations which are attached to modern citizenship” (Marshall 1981a: 81). Marshall thus constructs citizenship passively, as a series of entitlements – or as he puts it “rights and legitimate expectations”, rather than as an active, participatory and creative practice. Citizenship is, in this version of things, a competence legitimately to make claims on others within a particular polity. Marshall’s triadic bundle of rights (civil, political and social) provides a template for several influential accounts of citizenship and the media. Murdock in another important essay on broadcasting and citizenship (1999a: 29–30) extends Marshall’s bundle to include a further putative type of right – information and cultural rights. Hartley (1999: 179), in an analogous move, further extends it to include both a different fourth form of citizenship, cultural citizenship, and a fifth which he names DIY – Do it Yourself – citizenship. Marshall and his successors thus advance a notion of citizenship as a kind of onion. Each bundle of citizenship entitlements/attributes surrounds the others concentrically and non-conflictually. These rights are conceived as complementary and non-rival but all layers of the onion must be present if the entitlements of citizenship are to be fully realised. However, almost nowhere does an active, deciding, dimension of citizenship enter the debate. Contrast, for example, Carl Brinkmann’s classic definition in the “Encyclopaedia of the Social Sciences” (1930: 471) where he identifies two components in citizenship: notably: “the notion of liberty… and membership of a political unit involving co-operation in public decisions as a right and sharing of public burdens…. as a duty”. Of these components of citizenship, liberty is to be found in the British political economy tradition represented by Coase and Peacock rather than in the media studies discourse represented by Murdock, Hartley and Calabrese and Burgelman’s (1999) collection. But Brinkmann’s notion of citizenship as “co-operation in public decisions as a right and sharing of public burdens…. as a duty” appears hardly at all in the media studies literature on broadcasting and citizenship. Here we may return to the continuing power of the Peacock Report. If a notion of citizenship as the power to hold authority to account is absent in the Marshallian conception of citizenship then, imperfect though it may be, it’s Peacock’s concept of the sovereign consumer which, thus far, has provided the best ground on which proponents of improved accountability of broadcasters to viewers and listeners can stand. True, “consumer” is not a notion where Brinckmann’s idea of “co-operation in public decisions as a right and sharing of public burdens…. as a duty” is to the fore but Peacock’s notion of consumer sovereignty mobilises a conception (albeit limited) of accountability in a way that the post Marshallian citizenship discourse has thus far left undone. 4.2. Social capital and new thoughts on citizenship The BBC has sponsored two interesting recent alternative approaches to building an account of citizenship as a rationale for non-market governance in broadcasting and for public service broadcasting in particular. First it funded a study by The Work

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Foundation “Watching Alone. Social Capital and Public Service Broadcasting” (Brookes 2004), which draws on Robert Putnam’s celebrated “Bowling Alone” (Putnam 2000), to argue that public service television could, and should, build social capital and enhance a sense of shared citizenship among viewers. However, Brookes’ argument is sometimes perverse: Putnam, the pope of social capital studies, did not argue that television built social capital but rather that it plays an important part in the hollowing out of contemporary societies and “Bowling Alone” (see Putnam 2000 and http://www.bowlingalone.com) Moreover, Brookes’ central argument, that television provides material for “water cooler” conversation and thus builds social capital, might be thought to have proven too much. For it applies as well (perhaps better) to commercial, mass consumed, television as it does to PSB. Second, Dieter Helm (2005), in an important essay published in a collection animated by the BBC has argued that the category “citizenship” is “a central organising concept for … wider political, cultural and social concerns” and at the core of citizenship is a notion of “equal status and treatment. Membership of … society is, in the citizen sense, not dependent on initial wealth or income. It accrues to each person on the same basis, and this in turn translates into the democratic ideal, which gives each member of the society an equal say. Much of the welfare state is designed on this principle of equal status: from health and education services, through to the nationwide definition of mass entitlements” (Helm 2005: 4–5). So far, so Marshallian. But, building on these notions of equality and entitlement, Helm makes the original and arresting argument that the relationship between public service broadcasting and viewers and listeners (including on-line users) should be conceived as akin to a club. Clubs, he states, “abound in a host of activities, from professional services (common standards) to sporting activities (common facilities), to Visa cards (common networks). Breakdown services (common back-up networks), journal subscriptions (fixed research costs), childcare clubs (common facilities), the RSPB (common reserves) and the National trust (common properties) are yet more examples”…. The relevance to public service broadcasting is obvious: the licence fee represents a membership fee for the services of the BBC” (Helm 2005: 10). Helm anticipates some of the obvious objection to his club analogy – that in most clubs membership is voluntary, there are a variety of clubs from which potential members can choose, members have an equal say in determining policy and elect those who implement it and non-payment of membership fees is not a crime – arguing that there might be “a direct link to trustees, who could be subject to members’ influence and even control” (Helm 2005: 16). Whether this form of accountability, however it might be institutionalised, is likely to be more representative of viewers’ and listeners’ preferences and a more effective way to hold broadcasters to account than would be an alternative, consumer based, model is a moot point. But Helm’s argument, brief though it may be, clearly acknowledges that citizenship involves not just equality of entitlement but also an equal say (see Helm 2005: 4–5) – it involves “voice” (if not “exit”).

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Murdock too, in a brief but cogent commentary (Murdock 1999) has also hinted at the importance of an active, deciding, dimension to broadcasting citizenship. He states: “the basic entitlement of citizenship [is] the right to participate fully in social life with dignity and without fear, and to help formulate the forms it might take in the future”. (Murdock 1999: 8) And though Murdock’s notion of a right to participate in decisions is an important break with Marshall, neither in his nor in others’ discussion of citizenship and the media has much attention been given to how this right is to be exercised. In some sense the consumer/citizen debates seem rather like a contemporary manifestation of the battles between the ancients and moderns that stalked eighteenth century intellectual life in that they are rather detached from the real world issues which attach to their notional object of study. Seen both from consumer and citizen perspectives, UK broadcasting is notably imperfect in its mechanisms for viewers and listeners either to “exercise power in the economic system by their purchasing choices” or to “help formulate the forms it [broadcasting] might take in the future”. Neither as citizens nor as consumers can viewers and listeners ensure their needs and desires are fully and fairly met. Neither voice nor exit alone can provide satisfactory means to hold broadcasters to account. There is thus no necessary incompatibility between the policies and practices required to further consumers’ interests and those required to realise citizens’ interests. Nor is it clear that either of the putative bearers of the respective interests of citizens – public service broadcasting, and consumers – commercial broadcasting, well discharge the roles and responsibilities respectively ascribed to them. 4.3. Potter, consumer theory and evaluation of the accountability of UK broadcasters Jenny Potter asks in her “Consumerism and the Public Sector” “how successfully have the basic principles of consumerism been absorbed by public sector managers?” (1988: 149). She finds that both the public and private sectors are imperfectly responsive to consumers. Potter observes that producers, rather than consumers, in both sectors hold power. Potter considers how far (and concludes that it’s often not very far) five basic principles of consumer interest are realised in public sector provision of goods and services. She discusses the extent to which people have access to public services, choice between different public services, information about services, redress if services are not properly provided and the means to represent their needs and interests to service providers.10 Potter acknowledges that the notion of “consumer as customer is clearly inadequate” and that there are differences between “issues that affect people as consumers, and those that affect them in other roles, notably as citizens” (Potter 1988: 156). She usefully points both towards the moral dimension of citizenship – notably by taking account of others’ preferences (she might also have said others’ interests), and

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towards citizens cooperation in decision making. Consumerism, she states (with regret), stops “short at representation instead of moving on to embrace participation” (Potter 1988: 157). UK television viewers can represent their interests to UK broadcasters a variety of ways (and broadcasters vary in their responsiveness to viewers). But these relationships remain within the realm of representation rather than moving into the realm of participation signalled by Potter. Together with Zoe Sujon, I have summarised established UK arrangements in a table using the five criteria identified by Potter (1988) to assess the adequacy of mechanisms for consumers to represent and realise their interests. These criteria are: n n n n n

Access Choice Information Redress Representation

Table 2: UK broadcasters’ performance against Potter’s (1988) five criteria of consumer interest.11 Access

Choice

Information

Redress

Representation

BBC

Poor

N/A12

Yes

Yes

Yes (eg “Five Live” radio feedback, BBC charter review process).

ITV (Channel 3)

Very poor

N/A

Poor

Poor

No

Channel 4

Middling

N/A

Yes

Yes

Some (eg “Russian Roulette”).

five (Channel 5)

Middling

N/A

Yes

Unclear

No

SKY (BSkyB)

Very poor

N/A

Poor

Not apparent

No

UK broadcasting governance does not satisfy Potter’s five criteria of consumer sovereignty. What of citizenship? It is less clear what entitlements a citizen-television viewer may reasonably expect to exercise (we know of no equivalent to Potter’s five consumer criteria) but, if we follow Brinkmann, participation in decision making, or stated in Hirschman’s terms, the exercise of voice, must surely be among them.

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Brinkmann identifies the “rights of the individual to participation – primarily as a voter, elector and representative – in democratic forms of government” as the quid pro quo for discharging “the multiplication of the claims which the state makes on the individual”. These claims by the state on the individual in respect of broadcasting are, surely, those of paying the licence fee. For this is the relevant cash nexus which Brinkmann (1930: 472) argues has come to replace personal service as chief among the duties of citizenship. Though personal service remains among the duties of citizenship (eg in liability to military and jury service) it has, Brinkmann plausibly claims, almost entirely been replaced by “the abstract ‘cash nexus’ of taxation”. Hirschman’s criteria of voice and exit are unevenly but always incompletely satisfied in UK broadcasting and nowhere can Warnock’s criteria of accountability as a right to know and to effectively exercise sanctions be seen to be fully satisfied. Moreover, the exclusions of the market - notably the orientation of advertising funded media to advertisers’ interests rather than viewers’ and listeners’ interests and the exclusion of those unable to pay from subscription funded services – and the exclusions of the public sector – notably broadcasters’ lack of accountability to those whom they are charged to serve, the regressive nature of the TV licence fee and the criminalisation (and in exceptional cases imprisonment) of those who do not pay – are all hostile to the principles proposed by Murdock. And it is here that the concept consumer appropriately returns. 5. The 2003 Communications Act: a new consumer and citizen consciousness In 1994, Jeremy Mitchell and Jay Blumler published their pioneering analysis of broadcasting accountability in Europe claiming that “no attempt has previously been made to examine the nature and implications of the several facets of the relationship between broadcasters and viewers in the round” (Mitchell and Blumler 1994: 3). Mitchell and Blumler scrutinised what they called the “three ‘parties’ to the television system” (ibid: 7) – ie government departments and regulators, broadcasters and viewer organisations – and identified (ibid: 5-6) eight formal mechanisms of accountability: 1. 2. 3. 4. 5. 6. 7. 8.

Political accountability through political and parliamentary systems. Administrative accountability eg through complaints handling. Advisory committees Audience research Responses to sponsors and advertisers Direct audience feedback eg through letters and telephone calls Press criticism Direct market relationships eg through subscription and pay per view.

They found enormous differences between the practices of the twelve countries which formed the subject of the research but concluded that nowhere was there “a system that is effectively responsive to viewers’ concerns” (Mitchell and Blumler 1994: 208). They also found, “A widespread feature” was “the almost complete lack of consumer consciousness in these regulatory structures…. regulatory bodies…. Are usually

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oriented to their legal obligations rather than the needs of viewers” (Mitchell and Blumler 1994: 212). Though they did not make the point explicitly, Mitchell and Blumler might also have observed a similar deficiency in citizen as well as consumer consciousness. However, in respect of consumer consciousness matters have changed significantly, at least in the UK, since Mitchell and Blumler’s study was published. The Communications Act 2003 requires Ofcom: to further the interests of consumers in relevant markets, where appropriate by promoting competition. (CA 2003 3.1) In the same article, the Act also charges Ofcom: to further the interests of citizens in relation to communications matters. (CA 2003 3.1) The Act points to a clear connection between consumer considerations and a particular kind of governance – market governance in the form of competition but it is silent about any connection between citizen considerations and a particular kind of governance. Perhaps for this reason, Ofcom has, in practice, leaned more towards its duty to consumers13. The term “citizen” was introduced at a late stage into the text of the Communications Bill and neither the concept of citizenship nor the term citizen were fully incorporated throughout the text of the Act (for example, Ofcom has a separately constituted Consumer Panel but no equivalent citizen panel exists). In foregrounding consumer rather than citizen matters Ofcom follows one of its five predecessors, Oftel, which was charged in the Telecommunications Act 1984 to “promote the interests of consumers, purchasers and other users” (TA 1984 I.2.a). Nowhere in the Telecommunications Act 1984 nor in the Broadcasting Acts 1990 and 1996 (which constitute the most important UK legislation defining the duties of regulators of electronic communications prior to the CA 2003) were duties towards the citizen defined. However, the Communications Act 2003 does define “citizen” as “all members of the public in the United Kingdom” (1.3.14). But “consumer” is nowhere defined in the Act (though the Act does attribute particular importance to consumers’ interests, notably “in respect of choice, price, quality of service and value for money” [1.3.5]). Because the CA 2003 does not define clearly the key terms consumer and citizen, in 2004 Ofcom began public consultation on the meaning of “citizen” and “consumer” in the context of broadcasting policy. Ed Richards, Ofcom’s Senior Partner for Strategy & Market Developments (on 25/5/2004 to the Westminster Media Forum), described Ofcom’s consumer rationale thus (all citations from Ofcom 2004):

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“As consumers, our concern is that we are supplied with what we as individuals, or perhaps on behalf of our families, want to watch or what we want to have an option to watch” Richards further proposed that “post analogue switch off we will see the evolution of something approaching a reasonably well functioning market in broadcasting……. consumers, through their own choices will be able to express their preferences through what they choose to watch, what they choose to subscribe to or what they choose to buy on a per view basis”. Richards argued that, though commercial broadcasting contributed to the achievement of citizenship goals, public service broadcasting was necessary if citizenship objectives were to be fully realised. “Now it is clear that the market can and does provide programmes that meet these core purposes – Sky News, channels such as Arts World and the History Channel are just some examples. So we are not saying that the market will not deliver, rather that it will not deliver enough. That even in a digital world, there will be under provision of programming that meets these purposes”. (Ofcom 2004) Richards’ statement succinctly exemplifies a pervasive tendency to map consumer interests and criteria onto commercial and citizen onto public service broadcasting. It’s also representative in not giving extensive explicit consideration to the problem of accountability though it’s clear that the possibility of “exit” is firmly embedded in the conception of consumer that Richards mobilises. But there are awkward empirical obstacles in the way of a neat correlation of “consumer” with commercial broadcasting and “citizen” with public service broadcasting. And, in spite of the linking of commercial and consumer, consumers are not sovereign in the commercial UK broadcasting market. Advertising finance skews programming on advertising funded channels towards the interests of advertisers, rather than viewers and listeners. It tends to produce a clustering of programme and service offer in a middle range (the “Hotelling” effect) rather than matching offer and demand effectively (see, inter alia, Peacock 1986, Collins, Garnham and Locksley 1988). Subscription services may tend, instead of enabling viewers (and listeners) to purchase what they want, to package a number of goods and services into a bundle so that, in order to secure what they want, viewers have to purchase what they don’t want: a strategy known as “full line forcing”. Moreover, dominant firms enjoying market power in any or all areas of a complex supply chain (including content, encryption, electronic programme guides, subscription management, platform control) have been able to chill and/or foreclose entry to subscription broadcasting markets to the detriment of viewers (see, inter alia, Cox 2004: 50–53). Consumers’ powers to hold commercial broadcasters to account through “exit” are highly imperfect.

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And no more do citizens’ interests always correspond to the interest and practice of public service bodies. Public service broadcasters do not of necessity serve the public (whether as consumer or citizen) effectively. Viewers and listeners are compelled to pay for PSB services independently of the extent to which they use or value them (indeed PSB funding is sometimes known as compulsory pay television) – they lack the power to “exit”. And much programming shows little of the “merit good” characteristics which normative theory attributes to the output of PSB (see, inter alia, Collins 2003, Cox 2004: 57-63).14 Indeed, the BBC has claimed that only 18% of the licence fee is devoted to “programmes and services that directly seek to inform citizens” (BBC 2004a: 3). And Robertson and Nichol, in a review of UK journalism standards and practice, argue that PSB is notably deficient in discharging its merit good remit and that “almost all the most important exercises in investigative journalism have been books and newspapers” and claim that “Today BBC and ITV ‘news’ is more often a beat up of what is in the newspapers, or what is covered at greater length by CNN or Sky” (Robertson and Nichol 2002: 775). Moreover, viewers and listeners have few, and those imperfect, means to hold public service broadcasters to account through “voice”. Conclusion In spite of the weak accountability of UK broadcasters to their users, whether conceived as citizens or consumers, the EC-sponsored research (cf. Introduction) found that the accountability of UK broadcasters to viewers and listeners was relatively good when compared to the practice of other countries under consideration. In the UK there is: n Independent regulation of broadcasting (though with an uncertain and contested boundary in respect of the BBC where some aspects of regulation are undertaken by the BBC’s Governors). n Extensive public consultation by Government, regulator and publicly funded broadcasters (though it remains uncertain how far such consultation actually influences key decision makers). n Relatively well developed formal systems of complaints handling (particularly by Ofcom and the BBC). However though these achievements are significant it seems that a full realisation of the proper entitlements of consumer and of citizens in broadcasting has yet to be realised adequately. These entitlements are better considered as non-rival and complementary rather than as rival and mutually exclusive. Accountability to consumers, normatively, is realised through consumers’ ability to make (or refrain from making) purchases from one or more of a number of providers competing in a single market – it is the ability to exit that counts. Within this sort of normative relationship public service broadcasting, and the BBC in particular, looks at best somewhat odd or, at worst, appears as a major obstacle to a well functioning

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market where consumers can effectively hold producers and providers accountable through the price system. Accountability to citizens, on the other hand, is more difficult to define. Theoretical discussion and elaboration of concepts have not been so fully developed, at least in the context of broadcasting policy, as they have in respect of consumer accountability. But central to this kind of accountability is the notion of voice. Voice articulated by citizens in whom sovereignty resides (or ought to reside) and exercised through a political/hierarchical (ie not a market) governance relationship. However, instead of such a conception of broadcasting citizenship – of broadcasting citizenship inhering in an ability to decide – a rather different notion has prevailed whereby the relationship between broadcaster on the one hand and viewer and listener on the other is thought to be to be one of mutual obligation rather than where one party holds the other to account. This notion of a reciprocal set of obligations prescribes an obligation for the broadcaster to provide to viewers and listeners the information and education (sweetened with entertainment) required for them to participate fully in social and political life; viewers and listeners are reciprocally bound, as one of the obligations of citizenship, to fund broadcasters so that the broadcaster may provide the information required for viewers and listeners to act as citizens. Broadcasting is a matter of reciprocal entitlement and obligations – it thereby echoes feudal not modern arrangements. And in feudalism neither voice nor exit counted for much. Viewers and listeners need information, and need be able to develop competencies, to exercise their rights as citizens. Broadcasters can, and do, make an enormous contribution to the achievement of these goals and the BBC clearly plays a particularly important role among UK broadcasters in this respect. But balancing the mutual obligations and entitlements which characterise this relationship, rather than the creation of effective accountability (through both voice and exit and by satisfying both a right to know and by endowing listeners and viewers with the power to exercise effective sanctions), has been uppermost in the unfolding of UK public service broadcasting policy and practice. Unfortunately, to pose questions about the BBC’s accountability often quickly polarises debate around a “for/against” attitude toward the BBC rather than around a discussion of the values which should inform and govern the institutional arrangements whereby viewers and listeners, both as consumers and citizens, can and should realise their interests. Acknowledgements Zoe Sujon undertook most of the interviewing, gathering and collating data on UK broadcasters’ responsiveness to their viewers and listeners which informs this account. We are grateful to Farida Vis for her help in identifying relevant literature and for her analyses of the Beveridge and Pilkington Reports and to Paolo Baldi and Tony Bennett for their comments on drafts. None of the opprobrium which this essay may stimulate should attach to those mentioned here.

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Notes 1. In 2003, a senior judge, Lord Hutton, was appointed to inquire into the death of a British civil servant, Dr David Kelly. Hutton found, among other things, that the BBC’s news report of 29th May 2003 (which asserted that that the Government had “sexed up” the threat posed by Iraq’s supposed weapons of mass destruction), revealed defective BBC editorial procedures and that the BBC management were “at fault”. Hutton’s findings prompted the resignation of both the BBC’s Director General and the Chairman of the BBC Governors. 2. Independent Television – a network of advertising financed commercial television stations. 3. I owe my discovery of Warnock’s argument to the late Caroline Heller’s excellent monograph “Broadcasting and Accountability” (Heller 1978). 4. Cox is currently a man of great influence but without commensurate formal position of authority. He was a senior programme maker and executive at one of the main commercial television companies, LWT, is deputy Chairman of Channel 4, chairs the Government appointed Digital Stakeholders Group, is the author of “Public service television in the digital age” and was News International Visiting Professor of Broadcast Media at the University of Oxford in 2003–4. 5. The licence fee is a charge on television viewers – currently there is no radio licence in the UK. 6. Here I draw on Thompson’s (2003) distinction between hierarchy and markets as distinct forms of governance. 7. We use the term “revert” because the study of the media is full of instances where analysts have acknowledged the active role of the user – uses and gratification research (see, inter alia, Blumler and Katz 1974) provides just one case in point. 8. Leys is editor of the “Socialist Register”. 9. In Calabrese and Burgelman’s (1999) influential collection of essays Marshall shares with Habermas the status of the most often indexed author. 10. Others have identified further consumer criteria such as safety (Naomi Sargant has drawn attention to this criterion – see Sargant 1993) and value for money (indeed Potter herself, 1988: 157, describes value for money as a “classic consumer demand”). 11. NB, assessment refers to complaints handling (access, information and redress) and responsiveness of broadcasters to viewer input (representation). Choice is only weakly relevant to these issues for, as argued above, financial exit is not lawfully possible from publicly funded television, exit is weakly linked (via advertisers) in the case of channels 3, 4 and 5 and, whilst exit is possible from BSkyB, there is a poor choice of alternative subscription television providers. 12. NA = not applicable. 13. Curiously, neither citizen nor consumer figures in the 6 goals Ofcom identifies for itself on a panel in the foyer of its offices. These are: n Ensuring the optimal use of the electro-magnetic spectrum. n Ensuring that a wide range of electronic communication services – including high speed data services – are available throughout the UK. n Ensuring a wide range of TV and radio services are of high quality and wide appeal.

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n Maintaining plurality in the provision of broadcasting. n Applying adequate protection for audiences against offensive or harmful material. n Applying adequate protection for audiences against unfairness or the infringement of privacy. 14. There is also room for debate about the boundary distinctions drawn by the BBC between programmes contributing to informed citizenship and other programmes. The BBC cites its programme “Liquid Assets” as a programme contributing to its informed citizenship mandate (2004a: 62). The BBC website trails this programme thus: “Just how rich is rich? Find out as we investigate the finances of the flush and famous. Series Two looks at the bank balances of Kylie, Keanu, Chris Evans, Justin & Britney, Brad and Jen, J Lo, Cameron Diaz, and the Governator himself, Arnold Schwarzenegger” http://www.bbc.co.uk/ bbcthree/tv/liquidassets.shtml

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THE PROTECTION OF VIEWER RIGHTS IN EUROPE Bernd Holznagel and Christiane Jungfleisch

Introduction The protection of viewer rights depends to a great extent on media law and specific legislation. Thus, legal provisions are the basis: On the one hand, they help viewers to enforce their rights in case of a violation. The more detailed the legal requirements are, the better are the viewers’ prospects. In some EU countries, for example, legal options such as a programme complaint or the right to reply are largely missing, whereas in other countries, a broad range of legal instruments is available. On the other hand, media law often provides official regulatory authorities, whose task is to promote and defend consumers’ and viewers’ interests. The aim of this chapter is to analyse the legal framework of 29 European countries.1 The chapter will start with an introduction of basic principles in all countries. The second part comprises a description of the different instruments viewers have to participate and viewers have to defend their rights as the programme complaint, the right to reply and the representation in official bodies. The next part focuses on content regulation broadcasters are subject to. Viewers’ claims can be based on positive and negative content regulation, such as establishing programme standards, the protection of minors and rules concerning advertisement. In general, the fulfilment of these standards is supervised by media authorities. Violations of these standards are, for example, often times the reason for a programme complaint. Because of different cultural, political and economical backgrounds, the situation in European countries varies extremely. Therefore, in a fourth part, the authors will develop specific categories to describe the existence, variety and conciseness of legal instruments as well as the role and the efficiency of regulatory bodies. As a result, “best practices” will be identified, and negative examples will be pointed out as well.

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1. Basic general principles 1.1. Media law The media market in the European countries is characterized by a sector specific regulation: specific media and broadcasting laws constitute a legal framework for the broadcasters’ activities. Their organization as a dual system is characteristic for television systems: Since the advantages and disadvantages of the various broadcasting models are located in different sectors, most Western European countries have created the dual broadcasting system so that both types – public and private – complement one another.The private and public pillars of the broadcasting system are each structured differently in order to combine the various benefits, thereby compensating as much as possible for the detriments in each subsystem. (Hoffmann-Riem 1996: 285) Coexistence of public and private broadcasting is often reflected in the legal framework: The regulation takes the different peculiarities and functions of public and private broadcasting into account. In some countries, there are separate legal foundations which apply to public and private broadcasting. The EU audio-visual policy, especially the “Television without Frontiers” directive (TVWF)2 from 1989 (revised in 1997), also exerts an important influence on broadcasting laws at the national level. The directive has established a legal framework and set minimum standards on TV programme content regulation, which have been transformed into the respective national broadcasting laws of the member states. Hence, certain programme standards are equivalent in all of the countries. Nevertheless, it is up to the member states to establish more strict provisions than prescribed by the TVWFdirective (Meise 1995: 295). In addition to content regulation, most media laws provide instruments such as the programme complaint or the right to reply in order to safeguard viewers’ rights. Besides media laws, some countries have other specific laws dealing with viewer rights. Personal rights, such as honour and human dignity as well as tort (in case of a violation) are often protected by the Civil Code. 1.2. Media authorities Insofar as there is a special regulation and legal framework for broadcasting systems in Europe, there can normally also be found special authorities for the supervision of this regulation. External regulatory bodies exist in all European countries for private and, to some extent, also for public broadcasters. The control is exercised by specific media authorities set up by the media law. They usually fulfil various functions. One of their main functions is the issuing of licences for private broadcasters. Once the licence is granted, their task is to check whether the broadcasters act in accordance with broadcasting law. For this reason, the regulatory bodies observe the content of the programmes concerning, e.g. youth protection regulation or the advertisement-rules (Hoffmann-Riem 1996: 287). They also develop several codes and guidance on programming, advertising, fairness and complaints as one can find it in Germany and the United Kingdom. In order to fulfil

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their tasks, the media authorities have different sanctions instruments at their disposal. They depend on the gravity of the infringement of the rules. In general, the authorities are also in charge of programme complaints by viewers. A crucial point concerning the legal construction of media authorities is their independence from the government: Supervisory bodies are more or less autonomous organizations usually severed from the governmental structure. Legal autonomy does not, however, necessarily ensure independence in day-to-day work. For instance, most governments and/or parliaments monitor supervisory activities, and they are often given the right to participate in the selection of top personnel and, in some cases, financial decisions. (Hoffmann-Riem 1996: 288) Aspects as the independence from government and the extent of sanctionary power are characteristics that can be used for the categorization of the countries (cf. below): they demonstrate which standards the countries have. 2. Main instruments and obligations 2.1. Legal instruments for the viewers 2.1.1. Programme complaint The programme complaint is the most established and well-known legal instrument for viewers to protect their rights. The complaints procedure is stipulated in the Media Law and very similar in all of the analysed countries. Most media laws grant media users the right to make complaints and suggestions concerning the programme to the broadcaster or the media authority within a prescribed time period that differs from country to country (Hesse 2003: 153). In general, the complaint must refer to an alleged violation of programming principles as human dignity or the protection of minors. Also an infringement of the separation between content and advertising may be reason for a complaint. Normally, broadcasters or the authority are committed to answer to the complaint within a fixed period of time. If the programme complaint is justified and concerns an infringement of the broadcasting law, the authorities can issue sanctions against the broadcaster. This varies from an obligation for the broadcaster to broadcast the complaint and publicize the decision to an obligation to make corrections in the programme. “Such obligations to broadcast complaints serve to make violations public and to introduce the complaints into the public debate on ethical standards in the media” (Holznagel/Jungfleisch 2005a: 107). The concrete possibility for viewers to make a complaint varies from country to country. Via the broadcasters’ homepages, the viewer can find e-mail or postal addresses for complaints. Some broadcasters provide a “Viewers Line”, where viewers can ask questions and give suggestions. In well-developed countries, online complaint forms are available on the media authorities’3 or the broadcasters’

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homepages.4 The analysis has shown that possibilities to complain are rarely used by the viewers. The bodies receive only few complaints. One reason could be that the complaints procedure is complicated and not consumer-friendly in some countries. In Germany, for example, the federal structure and thus fifteen different State Media Authorities make complaints complicated. Another reason could be that the viewers do not know about their right to complain and how to complain. 2.1.2. Right to reply Another viewer right dealt within the media law or the Civil Code is the right to reply. The right to reply was introduced by the “Television without Frontiers” directive (Article 23). If a viewer is objectively affected by a statement of facts in a programme, he has the right to claim factual correction. This right obliges the concerned broadcaster to release counterstatements of a person or institution. No right to reply exists as far as mere opinions and value judgements are concerned. This is due to the fact that media have a great influence on the formation of opinion. The right to a counterstatement is intended to reduce the structural inequality with regard to the publicity effect of statements between individuals and media companies.Thus it is also irrelevant whether they are true or not. The fact that the right to a counterstatement is both independent of the truth of the initial statement and the truth of the counterstatement is a consequence of the duty to ensure equal publicity effects which follows from the state’s obligation to protect the personal rights of its citizen. (Holznagel/Jungfleisch 2005a: 107) In general, the broadcaster has to release the counterstatement on the same channel and in the same section of the programme as the arraigned statement.In general, the broadcasting of counterstatements is free of charge (see § 9 WDR-G). 2.1.3. Representation in the supervisory bodies of public service broadcasting Public service broadcasting represents an important element of democracy in Western and Northern European countries. One reason for this is the possibility to participate in the internal supervisory boards of public service broadcasting. These boards are assigned to represent the interests of the public. They are meant to make sure that the program is not dominated by singular interests (Hoffmann-Riem 1996: 123). Certain social groups have the right to send representatives to these pluralistic supervisory bodies, in order to limit state influence on them as far as possible. Basically, every member of such a group can be elected to be part of these bodies. The groups entitled to nominate a representative for the internal boards are enumerated in the media law. In general, these boards include representatives from religious, cultural and educational organizations, political parties and the government (Gersdorf 2003: A46). Viewers can gain influence by swaying on the group that chooses one of its members (Holznagel/Jungfleisch 2005a: 105). Yet, one has to keep in mind that the influence of these boards is limited. Despite the many precautions to ensure the independence of board-members, political parties oftentimes achieve to exercise influence over public service broadcasters (Schreier 2001: 65).

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2.2. Legal obligations for the broadcasters 2.2.1. Positive and negative content regulation In European countries, broadcasting is seen as an important function of a democratic society. Mass media and especially broadcasting support viewers in the free formation of public opinion. This fact has often been confirmed by European courts (Hoffmann-Riem 1996: 297). Because of the fundamental importance of broadcasting, positive and negative programme standards are part of the media laws of most countries. As mentioned above, the European countries have established a dual broadcasting system. Most laws differ between general programming principles for all broadcasters (public service and private broadcasters) and higher standards set up especially for public service programmes. Common standards every broadcaster has to comply with are the principles of taste and decency, impartiality and accuracy, the respect of human dignity, fundamental rights, recognition of journalistic principles such as the guarantee of thoroughness, the independence of information as well as the protection of minors. The presentation of gratuitous violence, incitement of hatred, racism and xenophobia is not allowed. Some of these standards also are part of the TVWF-directive and came into force at national level (art. 22, 22a). In addition, there is a content regulation especially for public service programmes. Because of their protected position in the media market, they are required to offer programmes with higher quality than the private broadcasters have to. In general, public service broadcasters are seen as the main instrument of realizing viewers’ interests (EBU 2004: 16). Thus, the guidelines for public service broadcasters are more detailed and stringent. “Dual broadcasting systems close a kind of reinsurance policy with public broadcasting, which traditionally is under strong obligations” (Hoffmann-Riem 1996: 285). In Germany, France, Sweden, Denmark and the UK, for example, there are strict obligations in the licence of the public service broadcasters. 2.2.2. The protection of minors Also, the rules concerning the protection of minors, codified in the “Television without frontiers” directive (art. 22, 23), have come into force at European level. According to these rules, programmes are forbidden that may seriously harm the physical, psychological or moral development of minors, in particular programmes with pornographic scenes or needless violence and programmes which incite hatred based upon race, sex, religion or nationality. 2.2.3. Programming & Advertising There are furthermore detailed rules on the content of television advertising and sponsoring. Because of the European “Television without Frontiers” directive, these regulations are uniform in the European countries. The directive regulates the advertising time. In general, no more than 15 per cent of the daily transmission time and no more than 20 per cent of one hour are allowed to advertise (Article 18). It also regulates the separation between programme content and advertising and the

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clear identification of advertising. Finally, there are content restrictions for the advertisement: e.g., tobacco advertisement is forbidden by the directive (Article 13), the advertisement for alcoholic beverages and medicine is subject to restrictions (Article 14). The TWF-directive allows the countries to establish stricter or more detailed rules for their broadcasters. “In some instances the Swedish rules on advertising in television are stricter than those imposed by the EU-regulation” (Herzog 2005b: 276). 3. Three types of countries The European Union is composed of countries with different economic, political and social circumstances. This fact has great effects on the development of media systems in these countries. The media – and especially the broadcasting system extremely depend on the political circumstances in a country. In Eastern European countries, such as Hungary, for example, one will find a completely different level of media legislature than in northern or western countries such as Germany or the United Kingdom.The following scheme will help to build categories for the countries: From viewers’perspective: n n n n

Viewer rights established by law Complaints and Audience Council Authorities’ Responsibility for viewer complaints Representation in official bodies

From broadcasters’perspective: n Independence of the Authority n Authorities’ Responsibility for programme standards n Sanctionary power of the Authority In accordance with the extent of the schemes’ fulfilment we have created three categories: Homogeneous countries, inhomogeneous countries and countries in progress. Whereas within the homogeneous countries most of the aspects of the scheme are fulfilled, there are only some of these characteristics within the inhomogeneous countries. A lack of these aspects predominates in the third category. 3.1. Homogeneous countries All “homogeneous” countries have very similar characteristics.There are only minor differences between the countries. They all have a dual broadcasting system, composed of strong public service broadcasting with a long tradition and also highly regulated commercial broadcasters. Even commercial broadcasters have to accomplish public service obligations in their programme (EBU 2004: 16). Their broadcasting system is well regulated in the media law. They are called homogeneous countries because they accomplish in a great extent the aspects of the taxonomy scheme from the viewers’ perspective as well as from the broadcasters’

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perspective. This category includes all northern countries and also Western European countries such as the United Kingdom, Ireland, Germany and Belgium. In the following, one will find the main reasons for the classification of these countries as homogeneous. 3.1.1. Viewer rights established by law A characteristic of the homogeneous countries is a wide range of legal instruments. The programme complaint, as well as the right to reply, is provided by the media law with a detailed description of the complaints procedure. The public service broadcasters or the media authority have developed their own codes of conduct and guidelines for complaints. In the United Kingdom, for example, the BBC has written a Code of Practice on complaints.5 3.1.2. Complaints and audience council The homogeneous countries have developed innovative instruments to safeguard viewers’ interests and to give them the possibility to voice their opinions. A new and innovative instrument is the media meeting,6 established by the North RhineWestphalian Media Authority in Germany. It is intended to provide a forum for the exchange of thoughts and experiences concerning the situation and development of the media sector in North Rhine-Westphalia between approximately 200 media users, actors, politicians and academics. This way, viewers can voice their opinions. This has to be seen against the background that so far issues and content of the media have almost exclusively been set by the larger media companies. The influence of individual citizens in contrast is generally very limited. (Holznagel/Jungfleisch 2005a: 112) Lately, especially Audience and Complaints Councils have been established in some countries to be accountable to viewers. An innovative instrument is the Programme Complaints Unit (PCU) of the BBC, United Kingdom. It is a body of ten people that responds to written complaints. Another best practice of the BBC is the possibility to make complaints online via a complaints form on the BBC homepage.7 The complaints, feedback and participation procedures (...) may be comprehensive, they are not at all apparent to the casual observer or audience member. Although this may call into question the efficacy of these procedures, it does seem apparent that the BBC is well aware of its shortcomings and, as illustrated by the current complaints review, is attempting to improve its weaknesses. (Collins/Sujon 2005: 309) The British PCU was an archetype for the German public service broadcaster WDR: The new WDR-law from 2004 provides the creation of an “audience centre”, following the British model (§ 10 III WDR-G). The aim of the audience centre is to achieve a better involvement of the viewers and to increase transparency. Another novelty is that the manager of the WDR has to publish a report about complaints

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the WDR received and their results quarterly (§ 10 IV WDR-G). The same situation was found in Ireland. In addition, the RTE Charter, the legal basis of the Irish public service broadcaster RTE, has prescribed the creation of an Audience Council8 in 2004. Half of the members are publicly recruited, the other half is sent by public bodies in the field of industry, art, sports, language and children. They are supposed to ameliorate the discussion between viewers and programme makers about content, what viewers expect for their licence fee and how they get “value for money”: The Council has the ability to call programming editors and executives to its meeting to discuss programming content, development and how RTE is meeting its public obligations, particularly those articulated in RTE’s Statement of Commitments which is an annual ‘audience promise’ from RTE to the public saying what it will deliver for the licence fee. (Shaw 2005: 146) Also, in Denmark, complaints handling is seen as an important viewer service: For complaints, most Danish broadcasters have a 24-hour complaints department where complaints can be made via telephone, by mail or e-mail. In reality some of these departments are more active than others (Herzog 2005a: 60). 3.1.3. Authorities responsible for viewer complaints The protection of viewer rights depends to a great extent on the efficiency of regulatory bodies. In the analysed countries they are responsible for viewer complaints. The well-developed regulatory bodies are characterized by innovative and consumer-friendly complaints possibilities: the regulators’ homepages offer online-complaint forms. The Media Authority of the federal state Saarland in Germany has launched the homepage www.programmbeschwerde.de9 in 2004. This is the first electronic platform for viewer complaints. Viewers can complain about a television or radio programme by filling an online-complaint form. The provider of www.programmbeschwerde.de forwards the complaints to the responsible media authority. The underlying idea is very consumer-friendly. In times of e-government onlinebased offers render important services and facilitate viewer participation by using a simple manageable system. (Holznagel/Jungfleisch 2005a: 116) Since 2003, violations concerning youth protection are taken care of by the Commission of Youth Protection in the media (KJM).10 The KJM is a convergent supervisory body for all broadcasters – public as well as private – and providers of online media. Every complaint with regard to youth protection has to be made known to the KJM. Also in charge with youth protection is the Danish Media Council for Children and Young people.11 This body classifies films in regard to the protection of minors. The members of the Council are appointed by the Ministry of Culture (Herzog 2005a: 64).

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Besides handling complaints, the authorities are also in charge with the promotion of media competence and consumer interests. The new regulator in the UK, Ofcom, has the task to further the consumer interests. The installation of the Consumer Panel has to be seen in this context. On its website, Ofcom also publishes information about its handling with complaints. The regulatory body also has established guidelines about this subject: “Guidelines for the handling of standards complaints and cases”.12 Ofcom appears to have introduced a new category in reporting its handling of complaints about broadcasters. Formerly complaints were reported as a total number and as ‘upheld’ or ‘not upheld’ whereas latterly a third category, ‘resolved’ has been introduced. This seems a constructive move enabling broadcasters to respond constructively to complaints without the opprobrium of being held culpable for having a complaint against them upheld. (Collins/Sujon 2005: 314) In Germany, the State Media Authorities have the task to advance media consumers’ competencies. Thus, several projects concerning media criticism, media science and media design have been established. Furthermore, the North Rhine-Westphalian media law assigns their Media Authority to consult viewers on their rights and how to exercise them (§ 40 LMG-NRW).13 This task is connected with the promotion of media competence because the knowledge of the rights a media user has against a media provider is a central part of media competence. The media provider who can fulfil his responsibilities increasingly autonomously by self-control mechanisms has to face a media user who knows his rights, e.g. if programmes affect human dignity or rights of personality. (Holznagel/Jungfleisch 2005a: 108) 3.1.4. Representation in supervisory boards European public broadcasting has followed an approach which is called the internally pluralistic model. In this model, internal pluralism is reflected through pluralistically composed decision-making organs. The possibility to be representative in these supervisory boards of public service broadcasting means accountability to the public. In Germany, viewers can gain influence via the internal supervisory boards of public service broadcasters (Broadcasting Council). These Councils are meant to secure the independence of the broadcasters from the state and to guarantee a pluralistic program (Hesse 2003: 152). The members of the Councils come from various groups which are relevant in society, such as churches, political parties and other organizations, but also from the government and parliament. The structure is similar in the supervisory boards of the State Media Authorities. The socalled assembly is also pluralistic in its composition (Holznagel/Jungfleisch 2005a: 105). In Finland, viewers are represented in the administrative board of the public service broadcaster YLE. The members issue from the fields of science, education, art, and economics but also from different social and language groups. A problem of these boards is that political parties may exert influence. “As a matter of fact, the

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members of the Council represent the different political parties in the parliament” (Herzog 2005c: 78). In Germany, important decisions are often made in so-called “circles of friends” (Freundeskreise) of the respective political parties to which many members of the councils belong, even before the council meets (Hoffmann-Riem 1996: 124). Another approach was found in Sweden, where the parliament established a “Council on Media Violence” in 1990 committed to youth protection “as a result of the intense debate on violence in the media that followed the advent of home video” (Herzog 2005b: 277). The council controls all media: film, as well as television, video, computer games and Internet. They work especially in the field of media literacy and co-operate with schools, industry and non-governmental organizations. The experts meet five times a year. Members of the Council are representatives of different organizations. 3.1.5. Authorities’responsibility, power and independence In general, the authorities ensure that the broadcasters adhere to the relevant provisions of broadcasting law. These include provisions concerning advertising, sponsoring, youth protection and pluralism. In the most countries the law specifies that the media authorities have the task to establish several codes of conducts. In the UK, the new regulator Ofcom was given the task by the Communications Act to formulate and carry over guidance on programmes, sponsorships, fairness and privacy and to develop codes on these issues. The situation is similar in Denmark, where the regulatory body, Radio and Television Board, has installed some obligations concerning advertisement for private broadcasters. As far as the organization of the program is concerned, the German State Media Authorities are able to issue guidelines that further specify the provisions in the laws. Concerning the monitoring of the programme, broadcasters in Germany are obliged to tape their programming and to file it for a certain time. In case of a complaint or an inspection, the media authorities have the right to request the tape from the broadcasters (Hoffmann-Riem 1996: 293). To guarantee freedom of speech and in order to keep broadcasting regulation to some extent detached from political influence, media authorities have to be organized in a way that allows them to remain independent. In Germany, the State Media Authorities14 are entities of public law, but in order to keep broadcasting regulation to some extent separated from the state, they are not part of the ordinary hierarchy of administration. The authorities have the right to autonomously administer themselves (Hoffmann-Riem 1996: 125). They are financed from the 2 per cent share of the broadcasting fee of the public service broadcasters. Due to the mentioned separation of broadcasting from the state, the State Media Authorities do not exercise influence over specific composition and content of the programmes. Another example for the independence of regulatory bodies is the Danish Radio and Television Board. It is dealing with licences for broadcasters and also is in charge with viewer complaints. Its members are appointed by the Minister of Culture, but nevertheless the decisions taken by the Radio and Television Board can not be appealed to the Minister of Culture (Herzog 2005a: 59).

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Table “Homogeneous Countries” Table- – “Homogeneous Countries” Viewers’ Perspective

Broadcasters’/Media Perspective

Authority responsible for programme standards

Viewer rights established by law

Complaints & Audience Council

Authority responsible for viewer rights

Representation in official bodies

Authority independent from State

UK UK

BBC Royal Charter and Communictions Act 2003

BBC PCU, Ocom Consumer Panel

Ofcom, BBC Board of Governors

No

Yes

Ofcom deveops several codes on programming

Ireland reland

Broadcasting Act 2001

RTE Audience Council

BCI, RTE, BCC

Yes

RTE Guidelines Handbook

Germany Germany

State Treaties of PSB and Media Laws of the federal States

WDR audience centre, www.program mbeschwerde.de

State Media Authorities

Yes, financing by broadcasting fee of PSB

State Media Authorities develop several codes on programming

Denmark Denmark

Broadcasting Act

Audience research by public service broadcaster DR

Radio and Television Board

Yes, decisions of the Board can not be appealed to the Ministry

Yes, the board has installed programme obligations

Sweden Sweden

Radio and Television Act

Council on Media Violence

State authority

Supervision of the programme

Board of YLE

Ministry of Transport and Communication is granting licences

Supervision of the programme

SBC

YLE audience research

Broadcasting Councils of PSB, Boards of State Media Authorities

Authority with sanctionary power

Wide range of sanctions

Wide range of sanctions

Wide range of sanctions

Finland inland

Yes

Norway Norway

Broadcasting Act

Mass Media Authority

Supervision of the programme

Wide range of sanctions

Belgium Belgium

Radio and Television Decrees

CSA, VCM

Supervision of the programme

Wide range of sanctions

FICORA

In order to fulfil their tasks the authorities have various sanctions instruments at their disposal. They shall be in a position to flexibly and adequately react to any violations of the rules and obligations. Practice has shown that a subtle, graduated set of sanctions offers greater chances for effective control than if the supervisory body were limited to only a few, possibly quite drastic instruments (such as revocation of a license), which it would then ultimately be reluctant to use. (Hoffmann-Riem 1996: 294f.) So, the sanctions depend on the gravity of the infringement of the rules. They vary from warnings, fines to the revocation of a licence. The revocation is the most severe sanction for a broadcaster.

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3.2. Inhomogeneous countries This category includes countries where there is no recurrent theme. They fulfil some characteristics of the taxonomy scheme and have high standards in some aspects as well as the homogeneous countries, but they also have a lack of other important aspects. Less-advanced countries are the Netherlands, Luxembourg, France, Spain, Italy, Austria, Switzerland as well as Greece. These countries – as well as the homogeneous countries – also have established regulatory bodies and legal requirements to protect viewer rights. But the regulation, the instruments and the work of the authorities do not seem to be quite as efficient. The Netherlands are an exception. They can not be compared with countries as France, Spain, Italy or Greece, because the standards in the Netherlands are much higher and viewer interests are better secured than in the other countries. But because of historical process of “pillarization”, their situation is different and there is an absence of legal instruments.15 The possibility of participation in the Dutch broadcasting system is more factual than legal. 3.2.1. Viewers’ perspective: characteristics fulfilled Partly, the system of internal pluralism and public representation within public service broadcasting has also been realized in the inhomogeneous countries.In Austria, the ORF Act mentions the Audience Council of the public service broadcaster ORF whose task is the protection of viewer interests. This system is similar to the structure of other public service broadcasters in Europe such as, for example, the Broadcasting Councils in Germany. But the influence of the Audience Council of ORF is estimated very low: One main reason is the big proportion of members of the council, who are nominated by the Federal government and this is probably the reason why not many people take part in the election of the 6 members of the Council to be elected by the viewers and listeners. (Hasebrink/Herzog 2005: 6) Therefore the experts call it a “fig leaf election”. A similar approach exists within the public service broadcaster SRG SSR in Switzerland. The member companies of SRG SSR are open for every citizen and shall build a bridge between the viewer, the public and the broadcaster. They have the task to take into account the interests of different social groups. By becoming part of the member companies, viewers are able to participate. The problem with this system is that the members are a part of the SRG and their task also is to represent the SRG programmes in the public (Herzog 2005e: 285). Hence, the idea is good, but the concrete practice has to be criticized. The Luxembourgian CNP is comparable with the supervisory boards of the German State Media Authorities: The CNP consists of 25 members which are representatives of different organizations (Holznagel/Jungfleisch 2005b: 193). The system of “pillarized” broadcasting in the Netherlands is another example where viewers have the possibility to participate: It “intends to guarantee open access to and effective influence on public broadcasting for citizens” (Holznagel/

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Jungfleisch 2005c: 295). By becoming an active member of one of the broadcasting associations,16 viewers are able to exert influence on the composition of the programme. The more members an association has, the more broadcasting time is allocated to it.17 Several times a year broadcasting associations have meetings throughout the country, where they give members the opportunity to discuss programming matters with programme makers and their managers.18 But it has to be criticized that only the broadcasting association the viewer is a member of will take him seriously. Viewers can also gain influence by representation in the supervisory board of NOS. The NOS is the non-commercial Dutch Broadcasting Association, where the broadcasting associations are incorporated. Members of the supervisory board of NOS are appointed by the broadcasting associations and different social and religious groups (Holznagel/Jungfleisch 2005c: 295). 3.2.2. Viewers’ perspective: important aspects the countries lack In all the countries studied here, legal provisions lay down the duties and the instruments of the media authorities. A characteristic of the inhomogeneous countries is that neither viewer rights nor a complaints procedure have been established in the media law. That is the situation one can find in France: the French media law does not have a complaints procedure. In the Netherlands, the protection of viewer rights is more factual than legal: neither in the Dutch Media Act are specific rules as the programme complaint or the right to reply. Another weak spot may be seen in the fact that not every national media authority is in charge with viewers’ interests. This point depends on a great extent of the law. There are no viewer rights in the media law, that is the reason why there is no need for an authority charging with viewer rights. So, in France, there is no legally defined body that a complaint can be addressed to. Although viewers may write to the CSA,19 these messages are not all answered, nor do they initiate immediate intervention, but they are all read and therefore form the basis of most of its interventions, which can be consulted online in the yearly public report. That is why the associations representing French TV viewers demand the creation of a complaint bureau within the CSA. Modelled on the Complaint Committees existing in the UK, this bureau would be made up of professionals who would follow up TV viewers’ complaints and would publish a monthly newsletter detailing the nature of the complaints and their follow up. (Hulin 2005: 93) Also the Netherlands have a media authority, Commissariaat voor de Media,20 which is not responsible for viewer complaints. It refers viewers to the broadcasting associations and to NICAM, a co-regulatory body for the classification of programmes.21 The situation is similar in Greece, where the regulatory body ESR is not in charge with viewer complaints:

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Today the lack of implementation of adopted measures and the defying of regulation is still an ongoing problem. (...) this outcome has negative repercussions on the rights of viewers and of citizens. (...) It offers no open doors (accessibility, participation and accountability) to members of the public in any active and positive way. (Kaitatzi-Whitlock 2005: 123f.) 3.2.3. Broadcasters’perspective: important aspects the countries lack Even if there are media authorities established in the inhomogeneous countries, their independence from the state or from the broadcasters has questioned critically concerning the inhomogeneous countries. Most governments or parliaments have the right to select the personnel or to monitor the authorities’ activities as well as the financial decisions. In Austria, the government created a regulatory body for the media and telecommunications sector (RTR-GmbH) in 2001. But since this body is not organized as a public service organization, its independence has to be questioned. The financing is paid by the broadcasting companies (Hasebrink/Herzog 2005: 4). In France, the election of the CSA members can be criticized. The members of the CSA are designated by the President of the Republic, the President of the Senate and the President of the National Assembly (Meise 1995: 288). The independence of the CSA, however, is doubted as it cannot determine its own budget. The funding is given from the State’s general budget and has to be requested from the CSA. In addition, changes of government have led to the creation of new regulatory authorities by the new government in the past (Hulin 2005: 92). The situation is similar in Italy, where the board of AGCOM, consisting of the AGCOM’s president and eight commissioners, is elected by the Senate and by the House of Representatives (Pfeifer 1999: 152).22 This election mode leads to proportional representation of political groups on the Board and thus makes politicized decisions likely to some extent. Also, the fact that the president of AGCOM is chosen by the Italian President contradicts the principle of independence of the supervisory authority. Even the members of the Catalan Audiovisual Council (CAC), the regulatory body of the community of Catalonia in Spain, are elected by the parliamentary groups of the Parliament of Catalonia and represent the political parties. The president of CAC is appointed by the Catalan Government (Lacalle 2005: 255). In Greece, the regulatory body, ESR, is answerable to the Parliamentary Committee, and its members are nominated by the Parliament. Apart from the questionable independence, the media authorities oftentimes only have limited sanctionary power and competences. “The imposition of such sanctions suffers from the fact that the supervisory authority normally bears the burden of proving that norms have been violated” (Hoffmann-Riem 1996: 294). Some supervisory bodies are dependent on the intervention of the government/minister or the courts. That is the situation one can find in France: the CSA by far does not have comprehensive competence in broadcasting regulation. First, the body is not in charge with viewer complaints. Second, important competences such as the booklets of obligations for public service broadcasters remained with the government (Zander 1997: 168ff). But also in view of the private broadcasters the CSA has been criticized:

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Its inability to make the private channels implement these regulations has often been criticised, and most of the time, it merely warns the deviating companies. Caught between the power of economics and the regulations of the State Council, it finds it difficult to constitute a body of doctrines and many of the stakes in the Audio-visual sector still escape its grasp. (Hulin 2005: 92) The problem of limited power is also known in Luxembourg, Spain and Italy: The Luxembourgian “Conseil National des Programmes” and the Catalan Audiovisual Authority (CAC) in Spain, can not revoke a licence. The government is the only body that has the competence to revoke a licence. Another weakness in Spain can be seen in the different audio-visual councils. The autonomous communities have created their own authorities. But changes are planned: The new government after the general election in 2004 called for a ‘Knowledge Council’ that could study the convenience and, in this case, to determine the design of an audiovisual council whose aim would be to protect, on a state level, public television and radio. The creation of a Spanish Audiovisual Council is one of the continuous demands made by associations that are constantly pleading for this kind of organization to be set up. (Lacalle 2005: 255) In Italy, the AGCOM can suspend the license for up to ten days. A further suspension order can only be issued by the Minister for Communication. AGCOM can merely make suggestions in this direction. 3.2.4. Broadcasters’perspective: characteristics fulfilled The most important task of the regulatory bodies is to establish and to maintain pluralism and to guarantee broadcasting freedom. Therefore, the authorities have to safeguard that programme standards are fulfilled by the broadcasters. The sanctions described above mean a form of negative repressive control. Additionally, supervisory bodies try to establish positively preventive duties to take precautions against violations. In France, the CSA licenses private broadcasters and determines specific obligations in their licensing agreement. Special obligations for public service broadcasters whereas are determined by the Government (Zander 1997: 168f). It serves to specify the obligations which the aspirant broadcaster has undertaken to fulfil and to adjust its obligations to its capabilities. The content of the agreement concerns the duration and the essential characteristics of the program, quotas for French and European productions, the broadcasting of educational and cultural programs and the conditions for the broadcasting of adverts. The sanctions provided for in the agreement that apply in case of non-fulfilment of the obligations are intended to really make sure that the obligations are adhered to. After the licensing process the CSA monitors that the broadcasters observe the relevant laws. The Italian AGCOM makes sure that advertising regulation and rules dealing with the protection of minors are observed. Moreover, it can issue further administrative rules concerning the application of advertising regulation and concerning

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Table- – “Inhomogeneous Countries“ Table “Inhomogeneous Countries“ Viewers’ Perspective

Viewer rights established by law

Complaints & Audience Council

Authority responsible for viewer rights

Broadcasters’/Media Perspective

Authority responsible for programme standards

Authority with sanctionary power

Representation in official bodies

Authority independent from State

Yes, broadcasting associations and board of NOS

Yes

Monitoring of the programme

CSA sets obligations in the licensing agreements of the private broadcasters

Some competences remained with the government

No

CVDM is not in charge with viewer rights

No

No legally defined body responsible for viewer rights

No

No, budget given from State, members designated from President, etc.

Spain

Office of CAC

Yes, CAC

No

Members of CAC elected by parliament

Monitoring of programme

CAC can not revoke a licence

Italy

No

Yes, AGCOM

No

Members of AGCOM elected by Senate and House of Representatives

Supervision of programme

Limited sanctions

UBI

Yes

SRG SSR companies

Yes, UBI is not responsible to parliament

Supervision of programme

Yes, KommAustria and FCB

ORF Audience Council

Financing of RTR (Komm-Austria) is paid by broadcasters

RTR: Supervision of private broadcasting

ESR is answerable to Parliament

Supervision of programme

The Netherlands

France

No

No

Switzerland

RTVG

Austria

ORF Act, Private Television Act

Greece

No

No

ESR

Luxembourg

Luxembourg Media Law

No

Yes, CNP

CNP has representatives of different social groups

Cyprus

Television Law and additional Regulations

No

Cyprus RadioTelevisionAuthority

No

Monitoring of the programme

Fines

Malta

National Broadcasting Act

No

Broadcasting Authority Malta

No

Monitoring of the programme

Penalties, suspension of licence

Portugal

Television Law 2003

No

ANACOM, AACS

RTP Council

Monitoring of the programme

AACS

Power remained by the government

AACS budget from parliament

Monitoring of programme

No

Limited power

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tele-shopping. Furthermore, it ensures that the right to a counterstatement and the rules that grant equal opportunities to political parties in the media are respected. 3.3. Countries in progress Especially the Eastern European countries such as Poland, Slovakia, Romania, the Czech Republic, Estonia, Bulgaria, Slovenia, Latvia, Lithuania and Hungary may be described as “countries in progress”. These countries are linked by not fulfilling the scheme. The Eastern European countries are characterized by an underdevelopment of structures. This fact can be explained with the collapse of communism at the end of the eighties. After the breakdown, these countries have established dual broadcasting systems which replaced the former state monopoly. Hence, these have not been practiced for a long time yet, and public service broadcasting has therefore no tradition. There are still many fluctuations in the field of media and often highly fragmented media markets (Cseh/Halmai 2001: 915). In most countries the political influence on media and regulatory bodies is still high as described in Poland: “In general, the media landscape in Poland is still highly politicised, as the political parties try to influence the media and in fact do exert some influence” (Herzog 2005f: 209). Particularly the independence of public service broadcasting has been questioned critically. By selecting and discharging the top personnel government and parliament influence the current affairs on public service broadcasting. A characteristic of the former communist states is an overall lack of money for the media. Especially public service broadcasting in its existence is under threat (HahnCremer/Kleist/Scheuer 2004: 17). Consequently, viewer rights are not regarded as the most important issue. In the course of preparation for the acceptance into the EU some countries have discussed their media legislation and the insufficiency of structures and instruments. But as the situation in Bulgaria, there still is a lot to be done: “Although there are some features of an accountability system, its actual accomplishments are questionable as there is rarely any direct consumer participation” (Herzog 2005h: 37). 3.3.1. Lack of a detailed normative framework and instruments for viewers After the collapse of communism the countries had to evolve from state-owned systems to commercially oriented systems. The Eastern European countries are still in a process of learning and improvement. Until now, the European guidelines for broadcasting regulations as the TVWF-directive have not been completely implemented in these countries. In Hungary, for example, the first media law became effective in 1996. Legal provisions concerning viewer rights are largely missing. There is no right to reply either in the Media Law or in the Hungarian Civil Code. The Media Act includes no definition of viewer rights. Furthermore, the legal framework is not consumer-friendly: Many complaints in Hungary are rejected because of delay – they have to be made within 48 hours – or because they do not fit the reasons for a complaint laid down in the legal framework (Holznagel/ Jungfleisch 2005d: 133). The situation is similar in Estonia, where no complaints procedure has been codified. Concerning viewer rights, progress was made in the Czech Republic, Slovakia and Bulgaria: Their media authorities are in charge with viewer rights. But even if the authorities have the responsibility for complaints, they

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have not yet received many complaints as it was noticed in the Czech Republic and Slovakia: So far, the Council has not received many complaints, as there are only a few citizens, NGO’s and other organisations (e.g. political parties) who file complaints. The right to complain is not very well known among the public and people often complain directly to the broadcasters, which is not ideal, as the broadcasters do not have an ombudsman and it is therefore unclear how they deal with these complaints. (Herzog 2005j: 241) The same problem was described in Bulgaria. The Bulgarian media authority CEM is responsible for viewer complaints, but that does not make an important part of the CEM’s work: And up to now, it is not promoted very much. Via Internet there are no guidelines or online forms available, which would explain how to complain adequately or which would allow the viewers to directly file the complaint online.(...) Thus, viewers are not really encouraged to file a specific complaint or to learn about possible complaint procedures. (Herzog 2005h: 40) 3.3.2. Regulatory bodies: no independence and sanctionary power The media landscape is still characterized by a great influence of the state and quasi state-ruled broadcasters like in the Czech Republic (Kinclova/Rittler 2001:851) and Hungary. Even the independence of the media authorities has not yet been realized in every analysed country. The regulatory authorities are politicized, their presidents and members are often elected by the prime minister or the parliament and reflect the interests of the parties such as in Hungary (Cseh/Halmai 2001: 963) and the Czech Republic. An example is the Czech Republic where, according to the balances in the parliament, the members of the Czech Council for Radio and Television Broadcasting (CBC)23 often are changed. With respect to accountability, the councils consider themselves as independent but have not reached many conclusions or decisions yet. Furthermore, they do not have much regulatory power. In fact, the councils are directly accountable to Parliament. (Herzog 2005e: 53) No independence was also found in Estonia: The regulatory body is the Ministry of Culture (Herzog 2005h: 71). A great influence of the state is given in Poland, where the Media Authority, the National Radio and Television Council (KRRiT), is still a state organ. Today there are some critical voices concerning the work of the Council, some even argue for a termination of the Council. But as a general problem seems to

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Table - “Countries in progress” Table – “Countries in progress” Table - “Countries in progress” Viewers’ Perspective

Viewer rights established by law

Hungary

Yes, but not viewer-friendly

Czech Republic

Poland

Yes, in the Broadcasting Act

Slovakia

Act on Complaints, Civil Code

Romania

Broadcasters’/Media Perspective Authority responsible for programme standards

Authority responsible for viewer rights

Representation in official bodies

Complaints Committee of ORTT

ORTT

Board of Trustees of PSB

No, budget is given by parliament

Monitoring of the programme

No

CBC

Board of PSB, but members are nominated by political parties

No, members of CBC are elected by parliament

Yes, but standards are low

No, KRRiT is a state organ

Yes, but not all EU-standards have been implemented

Complaints & Audience Council

KRRiT

Authority independent from State

Authority with sanctionary power

Yes, but decisions often are appealed by broadcasters

No

CBR

No

CBR political dependent

Monitoring of programme

Warnings, fines

No

NAC

No

No, NAC is under control of parliament

Observance of the programme

Only warnings or fines

No

Bulgaria

Yes, Law on Radio and Television

No

CEM

No

No, still high influence of the state

Monitoring of the programme

Estonia

Right to reply

No

No

No

No, regulatory body is the Ministry of Culture

Supervision of the programme

Yes

No

Ethics Commission

Some of the RTCL members are appointed by social groups

RTCL is accountable to parliament

Monitoring of the programme

Wide range of sanctions but they are not efficient

No

SRDF

No

SRDF refers to the Ministry of Culture

Yes, but not all EU-standards have been implemented

Yes

No

NRTP

No

Yes

Monitoring of the programme

Yes, wide range of sanctions

Lithuania

Slovenia

Latvia

Right to reply

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be the lack of a democratic, civil society culture a change might be seen (...) after the so-called ‘Rywingate’. This was a corruption scandal in the media, where afterwards the discussion and the public opinion changed and the public paid more attention on press freedom and a democratic public sphere. (Herzog 2005f: 212) A critical point in the Czech Republic and Hungary is that the media laws are not accurate enough and have legal loopholes. Though the media authorities impose sanctions, the decisions are appealed by the broadcasters and taken to court. The decisions often are overruled by the courts because of legal loopholes (Herzog 2005e: 56). Another problem is that the media authorities do not have sufficient means in order to impose sanctions as it is found fault in Bulgaria. The Bulgarian media authority has no power to stop the broadcasting of shows even if they are able to damage the development of children and minors. The regulatory body CEM needs to be provided with better instruments to issue instructions to broadcasters. Apart from this (...) a general problem of the CEM is that it has got too many indistinct competencies. The very long list of powers (....) demonstrates that this organisation is responsible for almost everything related to radio and television. However this plenty of tasks is seen as a disadvantage, because specific tasks, as the protection of viewers’ interests, cannot be a visible part of its activities. (Herzog 2005h: 40) In Latvia, the instruments are too weak: the activities of the broadcasters may only be ceased by courts (Herzog 2005i: 182). Also the ORTT,24 the Hungarian Media Authority, has weak sanctionary power. Because of failings in the law, in some countries such as Hungary, Bulgaria, Latvia and Poland one can find a discussion about the passing of new legal frameworks with refined regulatory and accountability systems. “Due to those circumstances, the experts emphasize the importance of the current public discussion on media legislation” (Herzog 2005h: 40). A progress can be seen in the PHARE initiative of the European Union. It assists the Eastern and Central European countries in establishing complaints procedures via Internet. 4. Conclusion The present chapter analysed the legal framework for viewer rights throughout 29 European countries. What was conspicuous is that the situation in the 29 European countries varies extremely. On the one hand, this can be explained by different levels of political, social and economical development among the countries. The former communist states, for example, are still in a process of establishing an independent media system. They have only passed their first media laws that show many failings. On the other hand, regulation traditions differ from country to country. The northern countries have a system of strong public service broadcasting and a long tradition of self-regulation. In western countries as Germany and the UK the regulation given by state is in high gear. That means that there is a wide range of instruments established by law. The trust in self-regulation is not that high as in northern

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countries. Despite the differences, the analysis showed also some similarities among the countries, which were the basis to build three categories of countries: homogeneous countries, inhomogeneous countries and countries in progress. Countries falling under the first classification are the western and northern European countries. These countries showed detailed legal frameworks which lay down the duties of broadcasters. Furthermore, they have regulatory bodies with a broad range of responsibilities and sanctions at their disposal. The western and northern countries set a high value on accountability concerning viewer interests and viewer complaints. Innovative Complaints Councils have been installed or are actually planned in some countries. The inhomogeneous countries also have installed specific media laws and media authorities for regulating the broadcasters. In comparison with the regulation in western and northern countries, the inhomogeneous countries showed a tendency to have inefficient instruments and media authorities that can be described as “paper tigers”. Some regulatory bodies are not in charge with viewer rights. Some have no power reacting to violations of broadcasters. But especially in France and Spain, new regulatory bodies with more accountability to the public are planned. A lack of detailed legal framework and viewer rights are the characteristics of the Eastern European countries, also specified as countries in progress. After the Eastward enlargement they have to accept the challenge: to adapt the legal provisions to European standard and to ameliorate the efficiency and political independence of their media authorities. The high political influence on public broadcasting and media authorities has to be valued as negative. Until now, there has been no culture of public communication as well as no civil society tradition. The principles of democratic culture and participation are still in a process of development. So, viewer organizations as known in western or northern European countries often aren’t existent and no one seems to be really interested in viewers’ interests. Beyond it, the possibilities to complain are used quite rarely by viewers. That is why viewers often do not know about their rights and how to complain. But recently, in most Eastern European countries, public discussions about the demand of new legislation, powerful instruments and independent regulatory bodies were held. The fact that discussions have been started has to be seen as positive. So, the further development of viewer rights protection in Eastern European countries will be an exciting process. Notes 1. This chapter is based on the analysis of the 29 country reports that have been published in the EC-sponsored report “Broadcasting and Citizens. Viewers’ Participation and Media Accountability in Europe” (Edited by P. Baldi), Eurispes, Rome, 2005 (cf. also the Introduction in this book). 2. See the full text of the “Television without frontier” directive, available at http://europa.eu.int/eur-lex/en/consleg/pdf/1989/en_1989L0552_do_001.pdf [last visited: 25.4.2005]. 3. See for example http://www.programmbeschwerde.de/front_content.php, http://www.ofcom.org.uk/advice/contact/tv_radio/f_and_p [last visited: 25.4.2005]. 4. See http://www.bbc.co.uk/complaints/ [last visited: 25.4.2005]. 5. See http://www.bbc.co.uk/complaints/complaints_process.shtml#code [last visited: 25.04.2005].

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6. See the homepage of the media meeting http://www.medienversammlung.de/ [last visited: 25.04.2005]. 7. See http://www.bbc.co.uk/complaints/make_complaint.shtml [last visited: 25.04.2005]. 8. See http://www.rte.ie/about/organisation/audiencecouncil.html [last visited: 25.04.2005]. 9. See http://www.programmbeschwerde.de/front_content.php [last visited: 25.04.2005]. 10. See http://www.kjm-online.de/public/kjm/ [Stand: 25.4.2005]. 11. See the English site of the Danish Media Council http://www.medieraadet.dk/ html/gb/media_council_gb.htm [Stand: 25.4.2005]. 12. See http://www.ofcom.org.uk/tv/ifi/guidance/standards/?a=87101 [last visited: 25.04.2005]. 13. See the website of the Media Authority NRW http://www.lfm-nrw.de/index.php3 [last visited:25.4.2005]. 14. See the website of all State Media Authorities http://www.alm.de/index2.htm [last visited: 25.04.2005]. 15. In the historical process of pillarization associations emerged from different social stratifications of Dutch society. Pillarization is the name for a process that brought about parallel and self-contained groups of religions and weltanschauungs in the 19th century. The successors of the pillars began to use public radio and TV stations to reach their members. The development in the recent years indicates a continuous opening of the already existing pillars for other organizations (Bardoel/van Reenen 2004: 475ff.). 16. The broadcasting associations represent different religious, social or ideological schools of thought. For example, there are tight connections between AVRO and the Conservatives, KRO and NCRV and the Christian Democrats, as well as between VARA and the Social Democrats. For more information see http://portal.omroep.nl/ [last visited: 25.04.2005]. 17. To receive broadcasting time the associations must have at least 300.000 paying members (Section 31 Para.3b Media Act). 18. Ben van Reenen, NOS. 19. See http://www.csa.fr/index.php [last visited: 25.04.2005]. 20. See the website of the Media Authority: http://www.cvdm.nl/pages/home.asp? [last visited: 25.04.2005]. 21. See the homepage of NICAM: http://www.kijkwijzer.nl/engels/ekijkwijzer.html [last visited: 25.04.2005]. 22. See http://www.agcom.it [last visited: 25.04.2005]. 23. See http://www.rrtv.cz/en/ [last visited: 25.04.2005]. 24. See http://www.ortt.hu/index_angol.htm [last visited: 25.04.2005].

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MEDIA USERS’ PARTICIPATION IN EUROPE FROM A CIVIL SOCIETY PERSPECTIVE Uwe Hasebrink, Anja Herzog & Christiane Eilders

Introduction This book deals with the instruments that have been developed in order to secure the viewers’ or, more general, the media users’ interests. Most of these instruments refer to the legal and political framework, to the levels of media systems or of ethical rules governing the journalists’ work, while the perspective of the viewers themselves is only seldom in the focus of attention. This is surprising, though, since television viewers have got a stake in the media, which serve as a fundamental source of information on political, social and cultural issues, as well as of entertainment, orientation and education. However, viewers in many cases are not recognized and/or acting as stakeholders, they are rather treated and acting as recipients, as consumers and as such as members of specific target groups whose attention to the screen is sold to the advertising industry. According to this understanding the main aspect of viewers’ behaviour is whether they switch on or off, whether they select a certain programme or not. As a consequence, there seems to be no reason to claim that the viewers themselves should play a role in public debates on media qualities and in media accountability systems. This chapter will elaborate the opposite view, according to which viewer participation is a necessary element of media accountability systems. Moreover, models of participation which have been developed in several European countries and proved to be successful will be examined. In doing so, the overall results of the European research project which has been described in the introductory chapter of this book, will be analysed with regard to the question of how viewers themselves participate in media governance and in promoting viewers’ interests. Yet, prior to the analysis of these forms of participation two conceptual considerations are proposed in order to create a framework for understanding the conditions of viewer participation. In section 1, we will reconstruct the conceptual characteristics of audience research that are linked to

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an understanding of viewers as consumers. We argue that this understanding is not sufficient to describe the viewers’role; viewers also have to be regarded as citizens and as human beings who need to be protected against any harm caused by the media. Starting from this enhanced understanding of viewers, in section 2 we will discuss how far viewers can be regarded as civil society actors who meet specific criteria and fulfil specific functions that have been elaborated in the research on civil society. Against the background of these theoretical considerations an overview of different forms of viewer participation in Europe, as the result of the above mentioned European research project, will be provided in sections 3 and 4. The different forms that have been developed to guarantee and to foster viewer participation are presented and discussed referring to the characteristics of civil society. Whereas most of these forms can be seen as options for participation that are offered to viewers (section 3), section 4 deals with viewer organizations in the sense of self-initiated activities aiming at different more or less concrete objectives. The last section provides a summary and interpretation of the previous steps as well as some proposals for best practice options in fostering viewer participation. 1. Viewers – not just consumers In scholarly discussions today it seems to be common sense to understand the audience as “active” (Schenk 2002; Hasebrink 2003). However, this conceptualization merely focuses on the reception process of standardized media offers by selection, interpretation and understanding in contrast to the concept of the “passive” viewer simply exposed to media messages – a concept that is attributed to former eras of media effects research. Although the change of paradigms in research – the shift from perceiving the viewer as easy to manipulate towards an interpreting media user – has been an important step towards a more appropriate understanding of the viewer, the concept of the active media user includes an implicit presupposition: Viewers are exclusively regarded as individuals using the media for their individual needs, as consumers who select the media offers they like and who avoid the media offers they dislike. In consequence, audience research which measures the figures of different kinds of programmes is regarded as an appropriate indicator of what viewers want, so that in debates on media politics the respective figures serve as “the voice of the audience”. Effects of this conceptualization of the audience can be observed in debates on media quality where ambivalent roles are attributed to TV viewers. One position, starting from the observation that media offers, which attract the masses are presumed to be of low quality, argues that viewers should not be involved in quality discourses, because they do not seem to look for quality. The opposing view states that extensive audience research is able to reveal the interests of the viewers, who in this way are taken into account by the broadcasters. In this perspective highaudience shares are regarded as the best indicators for high quality. Both positions do not refer to the user as participating in decision processes in media politics, but promote a rather limited perspective of viewers as consumers expressing interests solely via their viewing choices.

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The corresponding theoretical basis is the uses and gratifications approach, which postulated that media use can be seen as the maximization of individual gratifications. Approaches that attempt to understand what quality means for recipients, e.g., Greenberg/Busselle (1992, 1994) or Gunter (1997) are theoretically as well as methodologically very much connected with this theory. The central objective is to identify dimensions of gratifications for different media offers. Even in more comprehensive approaches towards models of quality and accountability in the media, e.g., McQuail (1992, 1997) and Schatz/Schulz (1992), users are only taken into account regarding the satisfaction of their individual needs. These needs are usually contrasted with normative criteria extracted from theories on democracy and then taken as contradictory poles of these normative quality criteria. Accordingly, some studies showed that media offers which from a normative perspective are classified as high-quality offers do not usually get high-audience rates (Hasebrink 1997). In terms of democratic participation, this perception of the audience does not provide a complete picture of the viewer. Transferred into the sphere of political participation this would mean to merely take voting in elections as an expression of the interests of citizens, while crucial criteria for democratic participation, like participation in public debate or sensitivity for the interests of citizens or in this case: viewers in their everyday culture, are ignored. Critical reflections on the dominating market-oriented view on audiences were presented particularly with the aim of connecting media use closer to the context of lifeworlds (e.g. Ang 1991). Efforts to systematically develop concepts of the audience which include not only viewers’ interests as consumers, but also a broader range of participation up to now only exist in (rough) outlines. In the context of a study on instruments for the protection of viewers’ interests, Hasebrink (1994) pointed to at least three dimensions of viewers’ interests: 1. The viewers as consumers have an interest in programme offers that serve their individual needs and preferences. Their role in this respect is the role of a customer. The plainest forms of this case are the pay-per-view offers, but usually audience research measures customer interests by means of the number of contacts of specific offers. This dimension complies with the usual view of the audience as described above. 2. A second dimension of viewers’ interests refers to the viewers as owners of rights, respectively as individuals who need protection and the possibility to defend their rights. Viewers can become objects of television reporting. As such they need protection against false or offensive statements. In addition they have religious and moral feelings and values and therefore need protection against programmes that violate or exploit these feelings or restrict individual development. The latter point is particularly important for young people and children. 3. The viewers as citizens, as members of a democratic society, have an interest that television contributes to the general aims of society, e.g. the prevention of monopolistic power in the media market and of biased news coverage,

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guaranteeing the interests of minorities and the promotion of a greater understanding of the issues and problems facing society. The two latter dimensions are so far not being covered by audience research; in fact, they are rather in opposition to the consumers’ dimension. The argument here is that despite the tensions between them, the three dimensions actually go along with each other; i.e., each viewer has specific interests on all three dimensions. Viewers are aware of the contradiction that might exist between their consumer interests and the normative perspective, thus they know from experience that they have to create a personal balance between them. Regarding media politics and the viewers’ role in media accountability these considerations show that it is not sufficient to regard viewers as consumers of television products only. They have to be taken seriously as both human beings who have to be protected against harm and as citizens. This perspective of viewer participation, which goes beyond the actual viewing decisions but regards viewers as participants of a public discourse on media qualities and media accountability, is very close to the concept of civil society. Therefore, in order to provide a conceptual framework for the analysis of viewer participation in Europe, we shall shortly discuss how far viewers can be regarded as civil society actors. 2. Viewers – civil society actors? Political theories on democratic participation processes link legitimacy of democratic societies with broad inclusion of citizens in political processes, even under circumstances where large parts of society are scarcely organized and have only poor resources (Dahlgren 1995; Marx Feree et al. 2002). As a continuous, active participation of all citizens in current mass societies seems to be illusive, deliberation turns out to be the accepted mode for participation, i.e., public debate on political decisions. Inclusion in this perspective is realized by a principally open access to public debate for all society members (Gerhards, Neidhardt 1991; Neidhardt 1994). According to this model public spheres are the space for aggregation and articulation of competing interests and as such serve as a means of controlling governance. Decisions of authorities are confronted with the interests of citizens and become an issue of public criticism, meaning that authorities are made accountable for their politics. This mechanism gets all the more reliable as more actors participate in public debate. Following participatory liberal theory, the role of civil society is to identify upcoming problems (Barber 1984; Dahlgren 1995) and to introduce them into the political system. Beyond the important aspect of inclusion, the deliberative model of democracy emphasises further central criteria, such as proximity to the so-called “lifeworld”, and ideal requirements for public debate such as respect, fairness and rationality (Habermas 1992; Gutmann/Thompson 1996). Habermas introduced the important element of communication into deliberative theories. He stated that only by consideration of communication processes the logic of functioning and reproduction of modern societies will be understood correctly. With the concept of

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the “public sphere” Habermas directed attention to the mutual exchange of authority and citizens. Without a public sphere the interests of civil society actors can not be accomplished. While public sphere can be characterized as the link between authority and citizens, civil society is the link between individuals and public sphere. Regarding the regulation of the production and distribution of media supply, accountability is also (or should be) realized through critical public surveillance (Mitchell et al. 1994). Following the principle of comprehensive participation in the processes of media politics, media users – being at the periphery of power – also have to be part of the debates on relevant decisions. However, the audience in contrast to the established actors of political and economic spheres is hardly organized and has poor resources, so that in this respect it is a typical civil society actor. As outlined in current theories on democracy, these scarcely organized actors at the periphery of society have specific competencies regarding “problemsensitivity” (i.e., high sensitivity for concerns and interests of viewers). The advantages of these civil society actors are that they are less oriented towards gaining or staying in power and that they are quite close to the everyday practices of ordinary people, to the various different lifeworlds. The implementation of viewers’ interests needs presence in the public sphere. Regarding the question of how this presence and noticeable articulation of viewers’ interests can be fostered, communitarian approaches assume that viewers’ interests can be articulated and represented best by more or less formal associations (Newton 2001). All forms of organizations starting with punctual collective activities, informal networks and citizen initiatives on specific issues up to powerful NGOs can help to raise public attention for civil society interests, in this case for media users. Civil society actors are able to articulate latent or new risks, to place them on the public agenda and thus to make them an urgent issue that has to be dealt with by politics, regulators and media companies (Heming 2000, 67ff.). Thus, despite being scarcely organized and lacking resources, viewers’ interests can become powerful forces when viewers and their organizations succeed in raising public attention and support for their objectives. In summary, civil society in the media sphere can be characterized as an audience constellation, which is discursive, independent, pluralistic, bound to lifeworlds and oriented towards the common welfare. With these characteristics, civil society has got a special sensitivity for problems and concerns of viewers and can articulate them in the public sphere and introduce them into the political process (Dahlgren 1995). In this respect viewers’ organizations can be of special importance as they cover the different characteristics of civil society actors. With this theoretical framework in mind, the current situation of the viewers’ role as a civil society actor in Europe will be laid out in the following. 3. Options provided for viewer participation in Europe Throughout Europe several ways of viewer participation can be observed. According to the study on the instruments that have been developed in 29 European countries in order to secure and foster the interests of viewers (see the introductory chapter of

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this volume), we will firstly deal with models of viewer participation that are not selfinitiated but made available through politics, regulators or media companies themselves (section 3). Secondly, we will deal with the viewer organizations that represent the core types of civil society actors (section 4). 3.1. Representation in controlling bodies In some countries different societal groups are represented in controlling bodies of public service broadcasters and regulatory authorities (for this model see also the contributions of Baldi and Holznagel&Jungfleisch in this volume). This is the case e.g. in Austria, Germany, the Netherlands and Switzerland. By participating in the bodies of these institutions the representatives of different groups communicate their perspectives particularly in the fields of viewers’ protection and citizens’ interests and exert influence on the realization of their interests in the programmes of the respective broadcasters or the decisions of the regulatory authority. An example is the system of member organizations of the Swiss Broadcasting Corporation, SRG Idée Suisse. The company is an association of member organizations that are open to everyone interested, this means that every citizen could potentially engage in these member organizations. A similar system can be found in the Netherlands: The public service broadcaster NOS is based on associations that emerged from different social groups (like religious groups, political parties or educational institutions, etc.). The respective associations are very much interested in high numbers of members as this is directly translated into the amount of broadcasting time for each association. The chances for participation are twofold: members can defend their interests directly in the general meetings as well as indirectly via representatives in the bodies of NOS. A problem of this model turns out to be the double role of the members and their representatives; they act as stakeholders towards the company and at the same time as representatives of the company towards the public. Another problem of this model seems to be that the respective broadcasters or authorities are more likely to reject complaints or other initiatives by single viewers as illegitimate – referring to the fact that the public is sufficiently represented through these bodies. In general, there is a trend towards decreasing the influence of the viewers and their representatives in this model; as with growing competition on the market, the management gains autonomy. Regarding civil society criteria the factor closeness to everyday life and interests of viewers depends on the structure of the different groups of citizens represented in the organizations. Nowadays, the representatives in many cases are multioperatives of the respective groups and have lost the connection with their bases. What should also be mentioned here is that presence in the public sphere is restricted as well, as, for example, some of the respective bodies do not hold their meetings publicly. 3.2. Communication platforms In some European countries communication platforms for discussions on different issues of media policies have been established. In some cases broadcasters provide such offers for discussion on programmes, in other cases the regulatory authorities

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took the initiative to discuss current questions of media development with media users. The latter initiatives refer to both consumer and citizens’interests and to questions of viewers’protection. The so-called “media assembly” (Medienversammlung)1 of the regulatory authority for private broadcasting in North-Rhine Westphalia in Germany (LfM), to which viewers, representatives of the media, scientists and politicians are invited (see also the contribution of Holznagel&Jungfleisch in this volume) might serve as an example for this kind of participation. The assembly meets at least every six months and discusses topics like “digital broadcasting” or “new programme genres/formats”. The discussions are complemented by Internet panel discussions. An example of a communication platform initiated by a broadcaster is the Internet forum iCan2 of the BBC in the United Kingdom. Among other topics, media users can find information, discuss or initiate a campaign on questions like media ethics, television, advertising, etc. This kind of viewer participation tends to encourage the articulation of viewer concerns in a direct way and fulfils a central function of civil society control. A disadvantage might be the low level of commitment the initiators accept in this model. 3.3. Complaints procedures A widespread measure for protecting the viewers’ interests in Europe are the different kinds of complaints procedures existing in almost every European country. Among the institutions that provide the possibility to complain, are the broadcasters themselves, regulatory authorities and self-regulatory organs like, for example, press councils. A specific model is the Ombudsman system that is practiced in Sweden. Here the Ombudsman is an independent advocate or moderator, who tries to achieve a clarification in the respective case. In Sweden, most people know this possibility to complain quite well and it is well accepted. Usually complaints refer to single programme issues and therefore do not get a broader public relevance. Thus, most of the time the procedure and its outcome do not enter the public discussion. An example of how the procedures can be made transparent through publishing the results of the different steps and thereby possibly influencing public discourse can be found on the website of the Estonian Press Council.3 From the civil society perspective this option of viewers’participation reflects a high degree of sensitivity for viewers’concerns. However, the respective cases often do not become public and thus remain on the level of individual interests. This circumstance might also explain why broadcasters often regard people that do complain as grousers, who do not take into account that television is a mass medium. Nevertheless, as a basic right for media users an institutionalized complaints procedure seems to be indispensable. And in as far as they are accomplished by

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rules, which secure that the respective cases become public and transparent, they can contribute to civil society discourse and control in media politics. 3.4. Audience research From the perspective of the broadcasters, viewers’ interests are taken into account by their market research. This means consumer interests are in the focus of broadcasters; individual programme preferences in a generalized form become guidelines for programming and advertising presentation. This kind of observance of viewers’ interests can be found in every European country, but societal interests of citizens, or the need for viewer protection, are widely disregarded in this perspective. In exceptional cases the audience research of broadcasters include all three levels of viewers’ interests – consumer and citizen interests as well as protection needs. The Finnish public service broadcaster YLE conducts surveys, which include extensive parts on the viewers’ attitudes towards public service functions, towards different programme offers like children’s television, educational and minority programmes or questions on their perception of diversity issues in the programme offer of YLE, since 1997. The participants are asked explicitly to refer not just to their individual consumer interests but to take into account their interests as citizens.4 Furthermore these surveys fulfil a civil society function as they are published and may enter public discourse on public service performance. With regard to sensitivity for concerns of viewers these surveys, however, have just a limited effect, since standardized questionnaires do not provide enough space for individual perspectives. 4. Viewer associations Typical cases for civil society participation in the media sphere are viewer organizations, consumer organizations or citizen initiatives dealing with mediarelated issues. The general characteristics for civil society actors as outlined in section 2 fully apply to them: They are associations which promote non-profit aims related to media development; they are open for citizens from a broad range of societal groups and build on a strong sensitivity for the concerns of the viewers; finally they use different means of public communication in order to articulate and promote their position in the public discourse. Across Europe several different kinds of viewer organizations can be found, although in a number of European countries there are no viewer organizations at all. In Austria, the Czech Republic, Estonia, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Poland, Romania, Slovakia, Slovenia and Sweden no viewer organizations could be identified. Two remarks should be made on this phenomenon: First, the absence of viewer organizations does not mean that viewer participation is generally low in these countries, other features of the respective media system may ensure participation. Second, although viewer organizations were found in the remaining investigated countries, in some cases their relevance was very low. In the following, we will have a closer look at the different types of organizations, their aims and motives, types of activities, and their interconnectedness to several

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societal groups. Finally, we will provide some considerations on factors that influence the existence and success of viewer organizations. According to our broad understanding of the term viewer organization, this includes any organization, which pursues one of the following aims: representing viewers’ interests and needs; supporting certain media qualities, e.g. diversity or educational content; fighting against problematic content (e.g. violence, advertising). Furthermore, these organizations are independent from regulatory bodies and broadcasters themselves. In many countries there are different varieties of consumer organizations. Some of these, particularly in Northern Europe, built up substantial memberships and reach huge audiences with their publications, which provide tests on a wide range of consumer goods and services (see also Mitchell/Blumler 1994: 233). In some cases these tests include media or television, e.g. with regard to consumer electronics or new technical systems like set-top boxes for digital television. Occasionally, these organizations also comment on actual issues in media politics. 4.1. Main objectives In our research, we identified the following aims and motives of viewer organizations in Europe: n n n n n

General representation of viewers’ interests Protecting family/children/youth interests Defending pluralism and diversity Ensuring gender interests Safeguarding religious values

a) General representation of viewers’ interests Probably the most prominent example of a viewer organization aiming to represent viewers’ and listeners’ interests in general is the “Voice of the Listener and Viewer (VLV)” in the United Kingdom. Founded in 1983 in response to the threat to turn BBC Radio 4 into an all news and current affairs network, VLV today is a key lobbying organization in the UK, “because it has one of the largest memberships, is well organised and produces high quality research analyses, and maintains a high reputation with government” (Collins, Sujon 2005: 318). As far as membership is concerned VLV with its 2,500 individual members is comparatively small. In Spain, we find a large number of mostly regional viewer organizations, some of them with the general aim to defend the rights of the viewers: The “Association of Television Viewers and Radio Listeners” (ATR) (founded in 1985) encourages selfregulation as well as audience participation in broadcasting companies. The “Association of Users of Communication”(AUC)5 (founded in 1980) is dedicated to “defend the interests of citizens as users of mass media, receivers of the messages disseminated by them and possible ‘targets’ of their content” (Lacalle 2005: 259). The association has over 10,000 members. Even bigger, as it is a national

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association is the “Spectators Forum” with more than 150,000 members. Created in 2002 by a group of viewers who wanted to exercise their rights for freedom of expression towards the media, their aims today are to facilitate access to information for viewers, to defend television viewers’ rights, to promote channel self-regulation and to award programmes of high quality. As a consequence of the multitude of viewer organizations in Spain a “Federation of Television Viewers and Radio Listeners Associations” (FIATYR) was established in 1987 by seventeen associations from Spain and Portugal. In Portugal we found two viewer organizations aiming to protect the rights and interests of media consumers: ACMedia, the Portuguese Association of Media Consumers (founded in 1986) and ATV, the Television Viewers’ Association (established in 1991). The general approach to viewer participation is often linked with a strong support for public service principles in broadcasting, for example, the Finnish organization Pro Yleisö6 (Pro Public), founded in 2003, seeks to foster media quality and formulates the objective to strengthen public service broadcasting. A very active and widespread viewer organization acting in favour of a democratic dialogue and to abet public service functions in the media is the Danish “Arbejdernes Radio og Fjernsynsforbund”7 (ARF). ARF has 30,000 members and 150 local clubs. Further examples are the Swiss Arbus8 (founded in 1930 as a workers organization, formerly with the task to build and spread radio receivers) and the French association “Les Pieds dans le PAF”9 (PAF: Paysage Audiovisuel Français). b) Protection of family/children/youth’ interests Some viewer or consumer organizations dedicate their activities to a specific thematic focus. Many associations have been founded by activists who are concerned about the protection of children and young people and want to support parents and families in general. Examples of these kinds of organizations are the Belgian “Gezinsbond”10 and the “Ligues des Familles”11 in Flanders and Wallonia with the same roots in 1920. They are large organizations with 300,000 and 80,000 members, respectively, with the main objective to defend the interests of families in all spheres of society. As far as television programming is concerned, they focus on objectives like the protection of minors, promotion of diversity, regulation of advertising, etc. In France the biggest of all associations for the protection of TV viewers’ interests is the “Collectif Interassociatif Enfance Média” (CIEM). Founded in 2002 it brings together several associations with the aim to protect young viewers’ rights by bringing together parents, educators and associations. This group contains associations with relatively different tendencies and, therefore, common activities sometime prove to be difficult. Although these associations are rather active and engaged, they are still, to a large extent, unknown among the general public. The same problem prevails for the Association for the Protection of Television Viewers (APTV) in Greece, which was established in 1996. This organization has got the objective to protect viewers, especially minors, from violence and porn shows, vulgar programming like reality shows, etc. Until now, APTV seems to be rather unknown, which might be explained by the lack of funding for publicity campaigns.

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Examples of viewer associations that successfully combine the aims of protecting families and minors with the task to reach the public through information campaigns are the Italian parents’ movement MOIGE12 and the Norwegian associations “Familie & Medier” (F&M) and “BarneVakten”13. What is especially noteworthy in the case of MOIGE, founded in 1997, is the TV Watchdog to monitor TV schedules, while F&M, founded in the 1980s, among others actively employs the media to reach Norwegians with information and commentaries. Another example in this area is the organization Associated Television Viewers of Catalunya14 (TAC, founded 1985) in Spain, a group of parents who were worried about growing aggression and negative consequences of competition between the different television channels. With 15,000 members the association today acts as a bridge between the audience and the television stations. A rather long-standing and active viewer organization in this field is the Italian AIART15, which was founded in 1953. This association has got a relatively small number of members, but a broad national diffusion in 15 regions and 43 provinces. AIART addresses families in particular with the aim to enforce media competence and to protect minors. An interesting and, as far as we have seen, unique case is the Spanish Association of Young Television Viewers (AJT),16 which argues against censorship and defends young people’s rights; in doing this they criticize the actions taken by other viewer organizations, since they believe that the best answer to disliked programmes is to simply not watch them. This association is different from the other associations that primarily focus on family or children’s interests, because the members are involved with the protection of minors but defend their own rights as citizens and consumers. c) Defending pluralism and diversity Another group of organizations focuses on objectives related to pluralism, diversity, and freedom of information. Here, we have one of the very few examples of a small media-related, non-governmental organization in Central and Eastern Europe: The association “Media with the human face”,17 founded 1996 in Plovdiv, Bulgaria, tries to strengthen the civic relationships in Bulgaria, in order to find solutions to concrete social problems and to establish a dialogue between authorities and citizens. The influence of this organization seems to be limited to the regional sphere. In France we find two small and newly established associations with the aim to promote free and pluralist information: l’Observatoire français des Médias18 (founded in 2003) was created by professional newscasters, academics and media consumers and today has around 300 members. The association Acrimed19 (Action Critique Médias, founded in 1995) holds the same goals. Another example is the co-operative body “Mira Media”20 in the Netherlands, founded in 1986 by the major national migrant organizations in the Netherlands. The aims of Mira Media are to achieve more diversity and pluralism in the audiovisual and interactive media, to ensure that viewers learn to take a critical approach

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to media output and to improve the knowledge needed to work in the media; that is, Mira Media’s approach is an educational one focussed on the viewers on the one hand and journalists on the other. d) Ensuring gender interests Not a classical viewer organization, but an interesting initiative that reaches a lot of viewers is Zorra21 in Flanders. This project, which was started in 1996, serves as a watchdog with regard to gender questions, particularly in advertising. e) Safeguarding religious values In Denmark a viewer organization with 40,000 members, “Kirke & Medier”22 (KLF), focuses particularly on the representation of Christian topics in the media (predominantly in radio and TV). The main target group for their activities are the viewers, who can find a lot of information, for example, on the website of KLF. The previously mentioned Norwegian viewers’ association “Familie & Medier” also holds the furthering of quality programming based on religious values as one of their main objectives. 4.2. Types of activities The viewer organizations presented above show plenty of activities targeted at various groups of society. A general function that several viewer organizations fulfil is critical media monitoring; to act as a TV watchdog, in general, like the Osservatorio TV in Italy run by CODACONS,23 or with a focus on specific issues like Zorra in Flanders which deals with gender questions. An interesting initiative in this regard is the association of different groups in the Collectif Interassociatif Enfance Média (CIEM) in France, which established a monitoring network for the protection of young viewers. In several organizations the monitoring is complemented by research. This includes either conducting various individual studies or providing a study service like the Flemish Family League, which elaborates dossiers on broadcasting policy. The Italian AIART regularly carries out national surveys on viewers’ habits and behaviour. With regard to the aim of giving viewers a voice in media politics, several organizations do a lot of lobbying as well, as they represent the viewers in media councils and communicate their perspectives to the public via press releases and publications. Probably the most successful organization in the field of political lobbying is the British VLV, as it acts in a well-organized manner and maintains a high reputation and effective links with both government and broadcasters. Another example of the efficient representation of viewers’ interests is the Flemish Gezinsbond, which represents viewers in the Flemish media council. Some organizations initiate and foster public discourse on various issues of media politics by arranging public debates, seminars and workshops, like, for example, the “Grands Entretiens”, organized by the Ligue des Familles in Wallonia.

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Another important field of activity is to represent viewers’ interests within the media companies themselves. Some organizations stay in close contact with the broadcasters or are represented in the boards of TV companies. The Swiss viewers’ organization Arbus is an example for long-term representation of viewers in public service broadcasting boards, even though the influence of the board within the company has been decreasing in recent years. Several viewer organizations are more oriented towards the viewers as the target group of their activities, they provide, for example, complaints services by collecting complaints and forwarding them to the broadcasters. Different ways of communicating this service can be observed: some offer hotlines with toll-free numbers and/or e-mail addresses or the classical way via mail. The Spanish TAC acts in this way as a bridge between viewers and television stations, reporting complaints, suggestions, and opinions of viewers to the station directors. The Gezinsbond in Belgium offers a similar “Consumer service” where member families can get (legal and practical) advice and help in formulating complaints. Hotlines, chat rooms and other means of communication are used as well for a general service to provide information to the viewers and a discussion forum. Most of the viewer organizations run websites with information on complaints procedures, regulatory questions, etc. and provide feedback options. Some of these sites also provide a forum for discussions, like Zorra in Belgium or Barnevakten in Norway. Another kind of service several viewer organizations provide are radio and TV guides online as well as offline. Some of these magazines give orientation concerning the quality of programmes, some specifically focus on programmes for children and young people and rate/certify them. For example, the Catalan TAC offers information and commentaries on the current or upcoming TV programmes both on its website and through a print magazine. Some organizations want to enhance media education and media literacy and organize seminars or projects on this behalf. Organizations that initiate seminars and public discussion are Kansan Radioliiton and Pro Yleisö in Finland, as well as Barnevakten in Norway and FYATIR in Spain. An interesting instrument to try to encourage quality programming is used by several organizations in Europe through awards or prices for “best” or “worst” programmes. The French association Les Pieds dans le PAF, for instance, appoints the “Golden Zap award” for the worst TV programmes, while TAC and the Spectators Forum in Spain have awards for the best quality TV programmes. Even more practical ways to improve quality in the media are chosen by some associations that organize seminars with journalists or engage themselves in the production of TV programmes such as, for example, the Bulgarian Media with a human face, that produces programmes for viewers, whose interests are not met by the media, e.g. handicapped people or ethnic minorities.

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An important aspect of the organizations’ activities is networking between different kinds of organisations as well as on the local, regional and national level. Some national viewers’ organizations have a regional or even local basis as they are organized in local clubs.This is the case for AIART in Italy with groups in 15 regions and 43 provinces as well as for the Arbejdernes Radio og Fjernsynsforbund in Denmark with 150 local clubs and Kirke & Medier in Denmark, which is organized in local clubs as well. Through networking at least two advantages are gained: a very close connection to the citizens and a simple way of getting publicity. Another example is the Ligue des Familles in Wallonia. As European integration and globalization proceed, international connections become important for viewer organizations as well. That is also why the VLV initiated the European Alliance of Listener and Viewer Associations (EURALVA), with six members at present, which comments European media policy and encourages public service broadcasting. Another way to increase the influence in the public by networking is to develop a multitude of connections with other social groups and or ganizations, like teachers or journalists organizations, universities, etc. In addition, regular events with viewers, broadcasters, etc. in councils or public debates ensure a constant exchange of opinions. Crucial for the presence in the public sphere are obviously the channels of communication developed by the organizations, with elaborated websites or helpful TV guides being important instruments to achieve presence. A professional PR department and good connections to the media are important as well. 5. Conclusions 5.1. Viewer participation across Europe The overview of viewer organizations in Europe provides a colourful map of different kinds of activities advancing the viewers’ interests. On this map there are several empty spots, i.e. countries with no independent organizations in this field. This is the case for most of the Central and Eastern European (CEE) countries, indicating that in the so-called transformation countries the civil society sector is still in a developing stage. Furthermore, these countries have only a weak tradition of the public service concept of broadcasting and its core idea of accountability. So that instead of a flourishing civil society sector, broadcasting systems in CEE suffer from a two-fold pressure: On the one hand, compared to western traditions, there is still a strong influence of the state; on the other hand, since 1990, commercialization has been the dominant trend, which is in many cases dominated by western media conglomerates. Thus, in these countries, a lot of support is needed to encourage small civil society initiatives to gradually develop public attention for the needs and interests of the viewers. Among the remaining countries we find one group which is characterized by quite developed accountability systems and a strong position of public broadcasting organizations and almost no activities of independent viewer organizations (e.g. Germany, Austria, the Netherlands, Sweden). One reason might be that these

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countries have a particularly strong welfare state tradition, and the respective motto “the state cares for you” might have shaped the viewers’ attitude that it is not themselves who have to care for their needs and interests. However, due to the current social changes and the changing paradigms of media regulation (“from government to governance”), it becomes more and more evident even in these societies that there is a need for new and independent civil society actors which represent the viewers’ interests. Another group of countries, most of the southern European countries, is characterized by poorly developed accountability systems and – compared to the previous group – a weak position of public service broadcasting. People in these countries have taken the initiative quite early and founded quite a number of independent organizations. The efficiency of these activities is hard to evaluate; however, the actual situation of public broadcasting and quality programming in most of these countries points to the fact that the activities of these organizations are still very important. Finally, with regard to viewer activities and accountability systems, the UK seems to be in quite a unique position. This position is characterized by highly elaborated accountability systems and, at the same time, well-organized and influential viewer organizations. Even though a lesson learned from many comparative projects is that it is hard to transfer “best practice” models from one country to another, in this case, with regard to viewer participation, many European initiatives can learn from the British examples. 5.2. Viewer participation as civil society activity First of all, at this point it should be noted that some of the organizations although very active are unknown in the broad public. The overview of different kinds of activities of European viewer organizations points out how many ways there are to support the three levels of interest previously established in this chapter: consumer or citizens’ interests and the protection of viewers. Some associations support complaints, others provide information on highquality programmes and in this way deal with media consumers’ interests. Citizens’ interests are represented by some organizations in boards and councils or via lobbying (the government). Many associations have a special focus on the protection of minors and organize monitoring as well as research services. Thus, they build upon a broader understanding of “audience” and “viewers” as is prevalent in common audience research; instead viewers’ participation is interpreted as civil society activity. The criteria for civil society activities as outlined in paragraph 3 are met by many of the respective initiatives. They serve as means to achieve a broad sensitivity for the concerns of the viewers – complaints services, seminars, workshops or online forums as well as other feedback options for viewers. They aim at the inclusion of all parts of society in the process of media governance. Furthermore, they promote deliberation, i.e. the public and transparent discourse on all issues of media development.

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However, despite the large number of initiatives and activities, the overall impression is that viewers as civil society actors do not play a substantial role in European media systems. Hence, the prevailing perspective is the market model of audiences, which constructs viewers as consumers. In as far as accountability systems include elements of viewer participation, these do not get much attention or are even unknown to large parts of the population. Overall, the consciousness of being a potential actor within the process of media governance is so far rather poorly developed. 5.3. Viewer participation on the European level Facing similar developments and problems all over Europe with regard to programme offers as well as regulation (see e.g. Dörr 2004) and against the background of European integration, the most important question is whether there are chances for viewer participation at the European level. This might appear risky for two reasons though. First of all, in many countries viewer participation is seen sceptical, and, second of all, participation at the European level in general has to be characterized as deficient. On the one hand, one could argue that precisely in the European arena, with its complex political processes including the powerful representation of national interests by individual member states and supranational media industries, the chances for viewer participation are rather small. On the other hand, it is important to keep in mind that at the European level different attempts to systematically foster discursive forms of political decision-making processes can be found. An example for this is the comparatively discursive and inclusive process of decision-making for the modernization of the “Television without Frontiers” directive with different levels of hearings and pluralistically composed focus groups (see European Commission 2005a, b). The importance of discursive processes of governance can be observed for models of regulated self-regulation or coregulation, respectively, as investigated in a current European study (initiated by the European Commission, conducted by the Hans Bredow Institute and the Institute for European Media law). Thus, different platforms for civil society actors to represent the audience can be taken into account. Against this background it seems worthwhile to consider the chances of interconnecting and integrating viewers’ interests and fostering the development of civil society actors at the European level and in this way introduce the audience perspective into media politics on changing media in Europe. Facing the current challenges of media development, the voice of the viewers cannot be neglected – at least if one is willing to govern media developments based on democratic principles. The need to identify, articulate and promote viewers’ interests, even on the European level, goes back to two arguments: 1. There have to be legitimate representatives of viewers’ interests on the European level. Almost all actors of the media landscape are being present with European organizations in Brussels, so that they are able to promote their interests in the ongoing political process: public and private broadcasters, journalists, advertisers, cable and satellite companies, producers, etc., all but the viewers. 2. Facing small resources, viewer organizations on the national level need international cooperation in order to increase the efficiency and impact of their activities. The research in different countries has shown that the respective

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national initiatives and organizations are quite weak in terms of financing and organizational structures. An increased cooperation on the European level could allow for several advantages, e.g. the exchange of successful activities from other countries, increased knowledge of international activities and the European media politics as well as joint efforts to apply for funding on the international level. Approaches to promote media users’ interests even on the European level could at the same time contribute to the strengthening of civil society participation in Europe. Due to the close link between the role as audience of the media and the role as audience of politics, an increase in the consciousness that there is a need for civil society engagement in the area of media will also affect the respective attitude towards civil society engagement in the process of European integration. A European public sphere can only build upon the common attention to and the common knowledge of the communicative processes currently developing in Europe. Notes 1. http://www.medienversammlung.de 2. http://www.bbc.uk/dann/ican/ 3. http://asn.org.ee/english/in_general.html 4. See, for example, in annual report 2003: “YLE broadcasts radio and television programmes on a public service basis. These programmes are funded from television fees. How important do you regard the following programmes or functions to YLE’s operations as a public service broadcaster in general terms? You may not be interested in some programmes yourself, but you might still like YLE to broadcast them.” (http://www.yle.fi/fbc/annual.shtml, last access 14.10.2005) 5. www.auc.es 6. www.proyleiso.org 7. www.arfonline.dk 8. www.arbus.ch 9. www.piedsdanslepaf.com. 10. www.gezinsbond.be 11. www.liguedesfamilles.be 12. www.genitori.it 13. www.fom.no 14. www.taconline.net 15. www.aiart.org 16. http://lavender.fortunecity.com/tombstone/266/ajt 17. http://bmc.bulmedia.com/en/profiles/Human_Face.htm 18. www.observatoire-medias.info 19. www.acrimed.org 20. www.miramedia.nl 21. www.women.uia.ac.be/zorra 22. http://www.klf.dk 23. http://www.codacons.it/osservatorio_tv/osservatorio_tv.asp

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VIEWERS’ RIGHTS IN THE EUROPEAN UNION: POLICIES AND INSTRUMENTS Paolo Celot and Fausto Gualtieri

Introduction In addition to the instruments available at national level, European Media viewers have at their disposal a number of opportunities apt at protecting their interests and rights. This chapter identifies these instruments, together with case studies which help evaluate their effectiveness. It also gives an overview of the relevant community legislation which constitutes the legal framework on the basis of which they operate. The European Media viewers have at their disposal two sets of instruments, one corresponding to their nature of European citizens and the other to that of European consumers. The first set is the means provided by the European Community Law which are by their own nature institutional. Therefore, in order to promote actions and to defend their rights, all European citizens can apply to the institutional organs established by the treaties. Among this first set of instruments, which vary from one another for nature, grounds and effectiveness, we have dealt with petitions to the European Parliament, complaints addressed to the European Commission and claims to the Court of Justice and the Court of Human Rights. Moreover, we have mentioned the principles of participatory democracy established in the project of a European Constitution – which is on hold for the moment – and discussed the role of the European Ombudsman to initiate any of these actions. The applying procedures are more or less complex and imply different duration. These safeguards are meant to secure the rights and interests of citizens concerning the open field of democracy (fundamental rights of information, of participation, etc.)

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The second characteristic – the Media viewer as a consumer – provides for a second set of instruments conceived to facilitate their use and allowing a direct access for the citizen. Under this perspective, the rights and interests of the Media viewers are those typical of a purchaser of audio-visual services with their related economic aspects, this is under the regulations concerning the free circulation of goods. These brand new instruments are providing considerable results and have essential qualities such as fast resolution of the conflicts, free, non-mediated and extrajuridical use. They often provide for an active use of online modalities. In other words, they allow any one to take an initiative free of charge just following the very clear fixed procedures. It is worth noting that little use has been made of these instruments in the past, due to their presumed impracticability, or simply because people were not aware of their very existence. And yet, they are not that difficult to use, and most of them are rather effective as can be seen from the case studies reported. These tools have turned out to be particularly effective for the resolution of arguments of modest economic importance. The real issue is indeed their scarce visibility; citizens and European associations which should be the first users are not aware of their existence. 1. Access to the institutions: instruments and procedures 1.1. European Parliament, Committee on Petitions Any citizen of the European Union and any natural or legal person residing or having its registered office in a Member State shall have the right to address, individually or in association with other citizens or persons, a petition to Parliament on a matter which comes within the European Union’s fields of activity and which affects him, her or it directly1. The Committee on Petitions will then decide what type of action should be taken. Depending on the circumstances, the Committee may: 1) ask the European Commission to provide information regarding compliance with the relevant Community legislation, 2) refer the petition to other European Parliament committees for further action, 3) submit a report to Parliament to be voted on in plenary, 4) draw up an opinion and ask the President of the European Parliament to forward it to the Council and/or European Commission for action. Case study In September 2003 the Committee for the Petition of the European Parliament examined a petition on the Italian violation of the EU treaty concerning the freedom and pluralism of the media.2 Declaring it admissible, the commission decided to forward it to the Committee on Citizens’Freedoms and Rights, Justice and Home Affairs. This Committee decided to draw up a report on this subject which was consequently adopted by the European Parliament on 22nd April 2004.3 The Report on the media

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pluralism takes into consideration the suggestions expressed in this petition as well as those in two other petitions which have been submitted in the course of 2004.4 1.2. European Commission: complaints concerning failure to comply with community law Each Member State is responsible for the implementation of Community law (adoption of implementing measures before a specified deadline, conformity and correct application) within its own legal system. Under the treaties, the Commission is responsible for ensuring that Community law is correctly applied. Consequently, where a Member State fails to comply with Community law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, if necessary, may refer the case to the Court of Justice of the European Communities.Anyone may file a complaint with the Commission free of charge against a Member State about any measure (law, regulation or administrative action) or practice by a Member State which they consider incompatible with a provision or principle of Community law.5 The Secretariat-General of the Commission shall issue an initial acknowledgement of all correspondence within fifteen working days of receipt. The Commission’s services may decide whether or not further action should be taken on a complaint in the light of the rules and priorities laid do wn by the Commission for opening and pursuing infringement procedures. In its annual reports on monitoring the application of Community law, the Commission has regularly acknowledged the vital role played by the complainant in detecting infringements of Community law. The average number of complaints registered each year virtually doubled between 1983 and 1989 and 1990 to 1998.6 The Commission decided to follow up 1,028 of the 1,431 complaints submitted in 2002 and 1,158 of 1,290 in 2003.7 Complaints still form the bulk of infringement procedures initiated by the Commission against the Member States. Case study Following hundreds of complaints by individual citizens, on 3rd May 1999 the European Commission decided to send a reasoned opinion8 to Belgium concerning taxes imposed on satellite television dishes by some municipal authorities (“communes”). The Commission considered the taxes constitute an obstacle to the reception and to the distribution of television signals broadcast by satellite from other Member States, in violation of EC Treaty rules on the free movement of services within the Single Market. In the Commission’s view, the taxes act as a disincentive to receiving radio and television broadcasts via satellite and so constituted an obstacle to satellite broadcasts from other Member States. The effect of this was to handicap the economic and technological development of satellite radio and television in Belgium. Following the reasoned opinion, several communes repealed the tax. But the Commission received numerous complaints that it is still imposed in a large number

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of communes. Moreover, all requests for reimbursement of taxes already paid were systematically rejected by competent authorities, according to the complaints. On 9th March 2000, the Commission sent a new letter to Belgium urging the Government to respect Community law by ensuring the immediate and definitive repeal throughout the country of all taxes levied on satellite dishes and the refund of any taxes already paid.9 The “tax regulation” was definitively abolished with effect from 1st January 1999. 1.3. Actions brought to the Court of Justice of the European Communities (ECJ) The Court of Justice, along with the national courts, constitutes the judicial power of the European Communities. The essential task of the Court of Justice is the uniform interpretation of Community law. In particular, it answers questions which are referred to it by national courts whose role is fundamental as they are the first bodies to apply Community law. The national court may draft a preliminary reference and ask the Court of Justice to provide interpretation of the Community law in question or to decide upon the validity of a Community act. This means that the national court may suspend the national proceedings before it in order to wait for the interpretation or decision of the Court concerning the validity of an act. It is within this framework that the citizen can make known, through his lawyers or advisers, his or her point of view before the Court. However, the Court of Justice does not settle national disputes. It only provides interpretation or decides upon the validity of a Community act.It is for the national court, following the preliminary ruling, to resolve the case before it. Case study In consequence of a Belgian citizen’s dispute of the levy of the tax for 1998, the ECJ issued a preliminary ruling for the repayment of taxes on satellite dishes under request of the competent Belgian authority. The tax regulation, as mentioned above, was abolished with effect from 1st January 1999 after the European Commission had questioned its compliance with Community law. The Court held that although direct taxation does not fall within the scope of the Community, the Member States must nevertheless exercise their powers in a manner consistent with Community law and especially with the freedom to provide services.10 Besides, the tax regulation adopted by a Belgian municipality penalized programmes transmitted from other Member States and that barrier to trade cannot be justified by concern for the protection of the environment as argued by the municipality. Indeed, the introduction of such a tax imposed a levy on the reception of television programmes transmitted by satellite which does not apply to the reception of programmes transmitted by cable. Moreover, as the number of TV channels from other Member States that can be transmitted via cable is limited, the Court stated that the tax had the effect of dissuading the residents of that municipality from picking up programmes broadcast by satellite by other Member States; in the same way, satellite operators established in other Member States were at disadvantage compared to cable distributors operating in Belgium.

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Case study The ECJ issued a preliminary ruling for advertising which was broadcast via satellite by UK and Sweden broadcasters but prohibited by Swedish Marketing Practices Law. The competent Swedish authority asked the Court of Justice whether Article 30 (prohibiting quantitative restrictions on imports) or Article 59 (providing for free movement of services) of the EC Treaty or directive “Television without Frontiers”11 allow a Member State to prohibit television advertising broadcast from another Member State, and to prohibit television advertising designed to attract the attention of children less than twelve years of age. According to the case-law of the Court, the directive lays down certain principles concerning advertising and its contents; nothing therefore precludes a national rule protecting consumers, provided that this does not involve any secondary control as it is established in another directive, 84/450/EEC. This directive makes the Member States responsible for controlling misleading advertising in the interests of consumers and the public in general. The receiving Member State may not therefore be deprived of the possibility of taking measures against an advertiser in relation to such advertising, provided that those measures do not prevent the retransmission, as such, in its territory of television broadcasts coming from another Member State. Briefly, a Member State may penalize an advertiser on account of misleading advertising coming from another Member State but it cannot do simply on the ground that the advertisement is directed to children.12 1.4. The European Ombudsman The European Ombudsman13 investigates complaints about maladministration by the institutions and bodies of the European Community.Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it. Citizens of a Member State as well as businesses, associations or other bodies with a registered office in the Union can complain to the Ombudsman. The complaint may be written in any of the treaty languages of the Union and has to set out clearly who the citizen is, which institution within the European Community the complaint is about and the grounds for it. The European Ombudsman examines complaints against the Community institutions and bodies. If an institution fails to do something it should have done, if it does it in the wrong way or if it does something it should not have done, there may be reason to complain to the Ombudsman. Some of the most common problems he deals with are unnecessary delay, refusal of information, discrimination and abuse of power. He cannot investigate complaints against national, regional or local authorities, even when the complaints are about Community law. When the Ombudsman inform the relevant institution about a complaint he has received, further steps can be taken to resolve the problem and provide the remedy. If maladministration is found and the case is not settled during the inquiry, the Ombudsman tries to find a friendly solution to the breach of the right involved. If this fails, he can make a draft recommendation to the institution, calling on it to take

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the necessary steps to put the maladministration right. In case that the institution does not accept his recommendation, he is entitled to present a special report to the European Parliament. Case Study In 1998 a complaint was made to the Ombudsman regarding the Commission’s handling of an ongoing Article 169 (now Article 226) infringement procedure, investigating the Greek prohibition on television advertising of children’s toys:in 1994 TIE – Toys Industries of Europe – made a complaint to the Commission against the prohibition, imposed by Greek authorities, on television advertising of children’s toys, claiming that the prohibition on television advertising had a particular detrimental effect on non-Greek. The complainant expressed the view that the primary responsibility of the Commission in infringement cases was the enforcement of the single market by eliminating obstacles to free movement as swiftly as possible. The Greek authorities stated that the objective of the ban on television advertising children’s toys was to prevent children seeing advertisements which might cause them to suffer feeling of frustration, or to exert strong pressure on their parents to buy a toy that is beyond the family budget. The complaint to the Ombudsman alleged undue delay, lack of information about the ongoing infringement procedure and neglect by the Commission of its duty as guardian of the treaty. Inquiries asked by the Ombudsman to the Commission were carried out in order to respond to the complainant’s observations as regards the issues of undue delay and lack of information. A group of government experts in the field of commercial communication was also set up by the Commission to show the risk to which toy advertising may expose children and, if such risks are identified, the best means of combating them. In 1999 the Ombudsman closed the case concluding that it had been maladministered by the Commission but no evidence was found that the Commission acted outside the limit of its authority as the guardian of the treaty.14 1.5. European Court of Human Rights The European Court of Human Rights is an international institution which in certain circumstances can examine complaints from citizens claiming that their rights under the European Convention on Human Rights have been infringed. This Convention is an international treaty to which a large number of European States have agreed in order to secure certain fundamental rights. If a citizen considers himself to have been personally and directly the victim of a breach of one or more of these fundamental rights by one of the States, he/she may complain to the Court. The Court can only deal with complaints relating to infringements of one or more of the rights set forth in the Convention and Protocols.It is not a court of appeal vis-à-vis national courts and cannot annul or alter their decisions. Nor can it intervene directly on the behalf of the citizen with the authority he/she is complaining about. The Court can only examine complaints that are directed against States which have ratified the Convention or the Protocol in question and concern events after a given

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date. The complaints submitted to the Court must concern matters which are the responsibility of a public authority (legislature, administrative authority, court of law, etc.) of one of these States. The Court cannot deal with complaints against private individuals or private organizations. This tool has mainly been used for censorship cases often linked to the dismissal of journalists who have been prevented from doing their job. The European Court of Human Rights has never been used by the citizen-viewers to claim their rights. 1.6. Internal Market law problem-solving network (Solvit) Solvit is an online problem-solving network in which EU Member States work together to solve without legal proceedings problems caused by the misapplication of Internal Market law by public authorities. Solvit Centres can help with handling complaints from both citizens and businesses. When you submit a case to Solvit, your local Solvit Centre will first check the details of your application to make sure that it does indeed concern the misapplication of Internal Market rules and that all the necessary information has been made available. It will be forwarded automatically to the Solvit Centre in the other Member State where the problem has occurred. If the solution to a problem requires the repeal of a national rule – rather than simply applying it correctly – this sometimes requires formal legal action, though Solvit can sometimes help persuade a Member State to waive the offending rule pending its abolition. It works much more quickly than making a formal complaint. Nevertheless, if a problem goes unresolved, or you consider that the proposed solution is unacceptable, you can still pursue legal action through a national court or lodge a formal complaint with the European Commission. 1.7. The European Consumer Centres and request for intervention to the European Extra-Judicial Network (EEJ-Net) The European Consumer Centres Network (ECC-Net) is an important interface between the Commission and European consumers. The role of the network is to help European consumers understand better how to make the Internal Market work for them and to provide advise if the y encounter a problem. The aim is to ensure that they feel as confident when shopping in another country as they do at home. If a consumer has a problem after buying goods or services in his/her own country, they can seek help from an existing Ombudsman who can help resolve the dispute between the consumer and the trader. However, if the trader is based in a country other than the consumer’s own country, it is not always possible for the consumer to know who to approach to make a complaint and eventually to settle their dispute. This is likely to happen more and more with overseas holidays, cross-border financial services, teleshopping and distance selling such as by mail order or via the Internet.

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A network of Ombudsman or out-of-court national bodies can make access to justice much easier than it would be otherwise if the consumer were left to deal with the problem on their own. In essence, such a dispute settlement network is essential for practical access of the European Single Market for all EU citizens so that they can choose EU-wide offers of goods and services with increased trust and confidence. Case study The case has been dealt with between the Italian and the Spanish “Euroguichet”. It concerns a series of acquisitions by Spanish viewers through a teleshopping programme. The products, which were of Italian origin, were defective. The Spanish citizens put a request for intervention at the Clearing House in Madrid. The cases were brought to the Italian centre, which contacted the manufacturer. Thanks to the intermediation of a third party, the manufacturer could replace the products in brief delays. 2. General principles on consumer protection 2.1. European Union The treaty establishing the European Economic Community (Rome, 1957) aimed at the creation of a free economic area between ten adhesion countries, protected only the interests of the industry, the consumers’counterpart. The need to define a community policy for the protection and information of the consumer is recognized for the first time by the Heads of State and Government in 1972. With the Single European Act in 1987, the need to guarantee consumers a high level of protection when defining Single market rules is expressly recognized. This process is reinforced by the treaties of Maastricht (1992) and Amsterdam (1997), which legitimate consumers’ right to associate themselves in order to safeguard their own interests. Today, the Charter of Fundamental Rights of the European Union (Nice, 2000) guarantees to European citizens a high level of protection across all EU policies. With this charter, the European Union means to make clear that it is not only an economic community but also, and mainly, a community of shared values.The Charter is clearly steered into a European model, fosters a joint identification with the European project among citizens of the Union and reinforces the legal protection of citizens from European legislative organizations. Article 11, in the charter, states that everyone has the right to freedom of expression and to information. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The article also protects the plurality of the media. Within Chapter V (solidarity) Article 38 –

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Consumer protection, guarantees the consumers a high level of protection in the Union Policies. The Chart of the rights constitutes the first step towards the process to define a real European Constitution. The Consolidated Version of The Treaty on European Union revised in Nice lays down the principles on which Community policies and correspondent legislation are based. The main principles of interest to TV viewers can be summarized as follows: n In the section on Culture of this treaty, Article 151 includes provisions aimed at promoting and respecting the cultural diversity of the Member States as well as measures for safeguarding European cultural heritage, including the audio-visual sector; n In the section on Consumer protection, Article 153 states clearly that the interests of consumers include the promotion of their right to information, education and to organize themselves; n Furthermore, the treaty provides for Consumer protection requirements to be transversally taken into account in other relevant Community policies and activities. n In the sections on Rules applying to undertakings and Aids granted by States, Articles 87 to 89, whilst stating that undertakings entrusted with the operation of services of general economic interest are subject to the rules on competition as are contained in the treaty, provide for such services (for instance, promotion of culture and heritage conservation) to be able to receive aid and still be considered to be compatible with the common market, providing that such aid does not affect trading conditions and competition in the Community to an extent that is contrary to the common interest. Finally, the project of a European Constitution15 – which has been stopped after the French and Dutch referendum (2005) – stated expressly that consumers’ protection is one of the most important sectors in which the Union can exert its competence. Furthermore, the project of Constitution had taken into consideration the principle of participatory democracy and intended to introduce “the right of popular initiative in the EU’s legislative process” by which, when a legislative initiative is countersigned by at least one million citizens from the Member States, then the European Commission will have to undertake the necessary actions. 2.2. Council of Europe Since its establishment in 1949, the Council of Europe has promoted the protection and development of human rights. As a result of this effort, in 1953, The Convention for the Protection of Human Rights and Fundamental Freedoms entered into force. The Convention was to represent the first step for the collective enforcement of certain of the rights set out in the Universal Declaration. In Article 10 which is dedicated to the Freedom of expression it is stated that: “1. Everyone has the right of freedom of expression. This right shall include freedom to hold opinions

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and to receive and impart information and ideas without interference by public authority and regardless of frontiers…”.16 The objective pursued by the Member States in elaborating the Convention was to strengthen the free exchange of information and ideas by encouraging the transfrontier circulation of television programme services on the basis of a number of commonly agreed basic standards. The idea of a Convention on Transfrontier Television has been developed on this very basis: open for signature by the Member States of the Council of Europe and by the European Economic Community, on 5th May 1989, entered into force on 1st March 1993. This treaty is the first treaty creating a legal framework for the free circulation of transfrontier television programmes in Europe, through minimum common rules, in fields such as programming, advertising, sponsorship and the protection of certain individual rights. It entrusts the transmitting States with the task of ensuring that television programme services broadcast comply with its provisions. In return, freedom of reception of programme services is guaranteed as well as the retransmission of the programme services which comply with the minimum rules of the Convention that apply to all transfrontier programmes regardless of the technical means of transmission used (satellite, cable, terrestrial transmitters, etc.) The main objective pursued by the Convention, in accordance with Article 10 of the European Convention on Human Rights, is to encourage the free circulation of television programmes on the basis of a number of commonly agreed standards (linked to the fundamental values of the organization) and thus to promote the free exchange of information and ideas. A Standing Committee composed of representatives of each Party is responsible for monitoring the application of this Convention.Proceedings of conciliation and arbitration are also provided for. Since the adoption of the Convention in 1989, a number of important changes in the broadcasting market have taken place, in particular, as a result of technological developments. It was therefore considered that the Convention should be amended to take account of these developments, as well as to maintain a coherence with the “Television without Frontiers” directive, which has also been amended. The protocol amending the Transfrontier Television Convention was adopted by the Committee of Ministers of the Council of Europe on 9th September 1998.It has been amended by the provisions contained in its Protocol as of the day of its entry into force on 1st March 2002. 3. Relevant EU policies and advisory bodies 3.1. EU Consumer Affairs policy In this policy area, the main provisions of consumer protection are included in a directive on injunctions for the protection of consumers’ interests, the objective of which is to facilitate consumers’ access to the EU relevant judicial instruments and procedures through organizations representing the collective interests of consumers

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or independent public bodies responsible for protecting the collective interests of consumers. Other elements covered include: Misleading and Comparative Advertising, Unfair Terms in Consumer Contracts and Distance Contracts. The European Commission set up the Consumer Consultative Group,17 which can be consulted by the national associations on any problem associated with protecting the interests of consumers in the European Union. Comprising one member representing the National consumer organization of each Member State and one member from each European consumer organization, it represents European Union consumers. The Commission can seek its opinion on problems affecting consumers at Community level. It is regularly consulted not only from Health and Consumer Protection Directorate-General but also from other directors-general offices. The Consultative Group plays a vital role in the exchange of information between the Commission and the consumer organizations on the ground. It can be considered like an indirect opportunity for the European citizen. 3.2. Audio-visual policy The “Television without Frontiers” directive is the main piece of legislation in the EU audio-visual policy.The directive establishes the legal frame of reference for the free movement of television broadcasting services in the Union in order to promote the development of a European market in broadcasting and related activities, such as television advertising and the production of audio-visual programmes. Articles of particular relevance to TV viewers are those concerning advertising, the protection of minors and the right of reply. Currently the directive is under review. Among the actions foreseen by the review process figure an interpretative Communication on television advertising, which clarifies the way in which the directive applies to the new advertising techniques and which was issued in April 2004; and an update of the Recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audio-visual and information services industry (published on 30th April 2004). The Recommendation is a further step to ensure an effective cooperation between the Member States, the industry and other interested parties, notably viewers’ bodies, in the field of the protection of minors and human dignity and the right to reply. The proposal addresses questions of media literacy, the cooperation and the sharing of experience and good practices between self- and co-regulatory as well as regulatory bodies, which deal with the rating or classification of audio-visual content and action against discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in all media, and the right of reply in a cross-media approach.

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In the medium term, the review foresees that a number of issues need further thought and discussion, which could lead to amendments of the TVWF directive at a later stage. For these issues the Commission is taking the advice of experts (via focus groups which have been formed on regulation of audio-visual content, advertising and the right to information) or has commissioned/will commission independent studies (on the impact of advertising regulation, the impact of measures concerning the promotion of the distribution and production of TV programmes and on coregulation in the media). Systematic contact with the national bodies (ministries and/or independent regulatory authorities) has been maintained, particularly through the Contact Committee set up by the directive. This Committee, which is composed of representatives of Member States’ competent authorities, is chaired by a Commission representative and meets either on his initiative or at the request of the delegation of a Member State. The Committee has fulfilled the tasks conferred on it by the directive and has, in particular, facilitated effective implementation of the directive; it has delivered opinions, especially under the procedure laid down in Article 3a concerning events of major importance for society, and facilitated the exchange of information between Member States and the Commission on the situation and the development of regulatory activities regarding television broadcasting services, taking account of the Community’s audio-visual policy, as well as relevant developments in the technical field. 4. Conclusions In this chapter we have explored what general principles and what EU policies (audio-visual, consumers’ affairs) are of relevance to the interests and rights of TV viewers. It is now worth mentioning that the EU existing legislation has fully integrated the protection of consumers’ rights in the single market with its 465 million citizens who, given the current degree of pervasiveness of TV, correspond to almost the same number of TV viewers. All EU consumer protection rules apply therefore to the audiovisual sector as to any other sector.18 It is also worth mentioning that together with the development of policies intended to level audio-visual services to any other goods – to facilitate their circulation in the single market19 – another trend, based instead on the assumption that the cultural products need specific regulations for their own safeguard, has been developed. Such regulations can be found, for instance, in the ‘Television without Frontiers’ directive,20 where the underlying principle is that audio-visual products and services have both an economic and a cultural nature. Implications at community level of this principle are of difficult resolution and have traditionally generated ample debates which are still ongoing. The recent Commission’s proposal to provide a legal framework that will eliminate the obstacles to the freedom of establishment for service providers and the free

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movement of services between the Member States, for example, intends to include audio-visual services in its scope. As a result, that the proposed directive – directive on services in the internal market21 – should, in fact, not apply to audio-visual services is currently under discussion in the highest political spheres. In conclusion, besides the underlying principles, in order to effectively exercise their rights, European citizens have at their disposal appropriate instruments and procedures. It is important to note that most of these instruments allow, in practice, any citizen to address directly the European Institutions. Notes 1. www.europarl.eu.int/committees/peti_home.htm. 2. Petition n. 356/2003 presented on March 2003. 3. A5-0230/2003, Report on the risks of violation, in the EU and especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental Rights) 4. Petition n. 1256/2003 by Ms. Ornella Erminio and Petition n. 35/2004 by Marco Canepari and other 3286 signatories both presented on December 2003. 5. ‘Infringement proceedings’ shall mean the pre-litigation phase of the procedures for non-compliance lodged by the Commission on the basis of Article 226 of the treaty establishing the European Community (EC Treaty). 6. 20th Annual report on monitoring the application of community law (2002), COM (2003) 669 final, 21.11.2003. 7. 21st Annual report on monitoring the application of community law (2003), COM (2004) 839 final, 30.12.2004. 8. The second stage of a formal infringement procedure under ex Article 169 of the EC Treaty, Consolidated version Article 226. 9. European Commission, Information Press, IP/00/237, 9th March 2000. 10. Judgment of the Court of Justice in Case C-17/00, François De Coster v Collège des Bourgmestre et échevins de Watermael, 29 November 2001. 11. Council directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (89/552/EEC). 12. Judgment of the Court of Justice in Joined Cases C-34/95, C-35/95 and C-36/95. 13. www.euro-ombudsman.eu.int/home/en/default.htm 14. Decision of the European Ombudsman on complaint 715/98/IJH against the European Commission. http://europa.eu.int/solvit/site/index.htm. 15. European Union Consolidated Versions of The Treaty on European Union and Of The Treaty establishing The European Community (20022002/C 325/01 16. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11. 17. http://europa.eu.int/comm/consumers/cons_org/associations/committ/index_en.htm. 18. COM (2003) 784 final, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and

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the Committee of the Regions, “The future of European regulatory audiovisual policy”, 15.12.2003. 19. Court of Justice of the European Communities, Sacchi sentence, 30.04.1974, suit 155/73, Collection 1974, p.409. 20. Council directive of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (89/552/EEC). 21. COM (2004) 2 final/3 5.03.2004 (COD)

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ABBREVIATIONS AND ACRONYMS AGCOM AIART AJT APTV ARF ATR ATV AUC BBC BBCi CAC CBC CBR CEE CEM CIEM CNP CNU CODACONS CSA DCMS DVB-T EACTV EAVI EC ECC-Net ECJ EEJ-Net EPC ESR EU

(Autorità per le Garanzie nelle Communicazioni) (Associazione spettatori) (Association of Young Television Viewers) (Association for the Protection of Television Viewers) (Arbejdernes Radio og Fjernsynsforbund) (Association of Television Viewers and Radio Listeners) (Television Viewers’Association) (Association of Users of Communication) (British Broadcasting Corporation) (British Broadcasting Corporation interactive) (Catalan Audiovisual Council) (Council for Radio and Television Broadcasting) (Council for Broadcasting and Retransmission) (Central and Eastern European) (Council for Electronic Media) (Collectif Interassociatif Enfance Média) (Conseil National des Programmes) (National Council of Users) (Coordinamento della Associazioni per la difesa d’ambiente e la tutela dei diritti di utenti e dei consumatori) (Conseil Supérieur d’Audiovisuel) (Department of Culture, Media and Sports) (Digital Video Broadcasting-Terrestrial) (European Association for TV Consumers) (European Association for Viewers Interests) (European Commission) (European Consumer Centres Network) (Court of Justice of the European Communities) (European Extra-Judicial Network) (Estonian Press Council) (National Council for Radio and Television) (European Union)

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EURALVA F&M FIATYR FSF IBA iCan ICT JEP KJM KLF KRRiT LfM MOIGE NAC NAO NGO NHS NICAM NOS Ofcom ORF ORTT PAF PCU PHARE PSB RAI RTBF RTCL RTE RTR-GmbH SRG SSR TAC TVWF UNESCO VLV WDR YLE

(European Alliance of Listener and Viewer Associations) (Familie & Medier) (Federation of Television Viewers and Radio Listeners Associations) (Freiwillige Selbstkontrolle Fernsehen e.V.) (Independent Broadcasting Authority) (BBC Online Community) (Independent Television Commission) (Jury d’Ethique Publicitaire) (Kommission für Jugendmedienschutz) (Kirke & Medier) (Krajowa Rada Radiofonii I Telewizji) (Landesanstalt für Medien Nordrhein-Westfalen) (Movimento Italiano Genitori) (National Audiovisual Council) (National Audit Office) (Non-Governmental Organisation) (National Health Service) (Institute for the Classification of Audiovisual Media) (Nederlandse Omroep Stichting) (Office of Communications) (Österreichischer Rundfunk) (Országos Rádio és Televízi Testület) (Paysage Audiovisuel Français) (Programme Complaints Uit) (Programme of Community Aid to the Countries of Central and Eastern Europe) (public service broadcasters) (Radio Televisione Italiana) (Radio Télévision Belge Francophone) (Radio and Television Commission Lithuania) (Radio Telefis Eireann) (Rundfunk und Telekom Regulierungs-GmbH) (Schweizerische Radio- und Fernsehgesellschaft) (Associated Television Viewers of Catalunya) (Television without Frontiers) (United Nations Educational, Scientific, and Cultural Organizations) (Voice of the Listener and Viewer) (Westdeutscher Rundfunk) (Yleisradio Oy)

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ABOUT THE AUTHORS Paolo BALDI is a Media Consultant established in Geneva (Switzerland). Formerly Head of Research (Strategic Information Service) at the European Broadcasting Union (EBU), the world’s largest professional association of national broadcasters, he has also been Director of ACAMEDIA, a research company specialized in European media studies, and lecturer at the Universities of Fribourg, Geneva and Florence. Paolo CELOT is a European affairs advisor specializing in the audiovisual sector. Over the last fifteen years he has accumulated a considerable international experience working for long periods in London, Italy and Brussels, for both private and public broadcasters, TV advertising agencies and the European Commission. He has written various articles on media related issues and has a degree in Economics from the University of Pisa. Richard COLLINS is Professor of Media Studies at the UK’s Open University (the UK’s distance learning university). He has published extensively on broadcasting and communications policy and was research director of the media and communication programme at the UK’s leading “think tank” IPPR (Institute for Public Policy Research) from 1993-1996. He was also Specialist Advisor to the House of Lords’ Select Committee on BBC charter review 2005-2006. Christiane EILDERS is a Senior Researcher at the Hans Bredow Institute for Media Research at the University of Hamburg. Her main research interests are related to political communication and the role of the media in furthering the development of European public spheres. Fausto GUALTIERI works as European Affairs Consultant for Latimer Europa in Brussels. He has a Master degree in European Affairs from the Faculty of Political Science ‘ Cesare Alfieri ‘ of Florence, specializing in European Policies in the fields of Audiovisual and Information Society. He is an expert in European media legislation and new technologies for television and cinema.

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Uwe HASEBRINK is Director of the Hans Bredow Institute for Media research and Professor for Empirical Communication Research at the University of Hamburg. His research interests are related to media audiences and European public spheres. Anja HERZOG is a researcher at the Hans Bredow Institute for Media Research at the University of Hamburg. Main research interests are the media development and media use in Europe and especially in Eastern Europe. Bernd HOLZNAGEL is Professor at the law faculty at the University of Münster (Germany) and director of the public law section at the Institute for Information, Telecommunication and Media Law. He is also a co-initiator of the ‘International Journal of Communications Law and Policy’ which is a joint project of the Universities of Münster, Oxford, Warwick and Yale. Christiane JUNGFLEISCH studied Communication Science, Politics and Public Law and is a Ph.D. candidate at the Institute for Information, Telecommunication and Media Law (ITM) at the University of Münster in Germany. Zoetanya SUJON is a tutorial fellow and research fellow in the Media and Communications department at the London School of Economics and Political Science. Her doctoral work examines citizenship and new media and is supported by the ORS (Overseas Research Scholarship) and SSHRC (Social Sciences and Humanities Research Council).

Baldi / Hasebrink

Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation

This book presents the main results of an extensive programme of research that was financed by the European Commission. The study was conducted in 29 European countries and each author analyses European trends from different but complementary perspectives: from the broadcasters side (media accountability and responsibility, including the key role of Public Service Broadcasting); from the citizens’ side (viewers’ participation mechanisms) and from the regulatory side (legal instruments which protect viewer rights). Given the historical experience of the United Kingdom, the situation in this country is analysed in detail. A specific chapter also describes the instruments and procedures that TV viewers have at the European Union level in addition to those existing at national level.

Paolo Baldi is a Media Consultant established in Geneva (Switzerland). Formerly Head of Research (Strategic Information Service) at the European Broadcasting Union (EBU), he has also been Director of ACAMEDIA and lecturer at the Universities of Fribourg, Geneva and Florence.

Uwe Hasebrink is Director of the Hans Bredow Institute for Media Research and Professor for Empirical Communication Research at the University of Hamburg. His research interests are related to media audiences and European public spheres.

ISBN 978-1-84150-160-4

intellect PO Box 862 Bristol BS99 1DE UK / www.intellectbooks.com

Broadcasters and Citizens in Europe: Trends in Media Accountability and Viewer Participation

Broadcasting is arguably the most influential and powerful industry operating today. The media impose an inescapable presence in contemporary life and infuse all areas of public communication. But what is the quality of the relationship between ‘broadcaster’ and ‘citizen’? Do the media and media authorities take the audience’s interests seriously into account? Do audiences have real opportunities to express themselves? Are citizens well informed and educated about the social, the cultural and the civic role that media can play?

9 781841 501604

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Broadcasters and Citizens in Europe Trends in Media Accountability and Viewer Participation Edited by Paolo Baldi and Uwe Hasebrink