Case Law, Court of Human Rights: Centro Europa 7 Srl v. Italy, Grand Chamber on Media Plurality

10 07 2012

On 7 June 2012, in the case Centro Europa 7 S.r.l. and Di Stefano v. Italy (application no. 38433/09)([2012] ECHR 974), the Grand Chamber of the European Court of Human Rights re-affirmed the importance of media plurality under Article 10 of the Convention.   It held, by a majority, that the fact that an Italian TV company could not broadcast, having a license but no allocated broadcasting frequencies, was a breach of Article 10 (and of Article 1 of the First Protocol).

On 28 July 1999, the Italian authorities granted the applicant a licence for national terrestrial television broadcasting, authorising it to install and operate an analogue television network. The licence specified that Centro Europa was entitled to three frequencies covering 80% of the national territory. For the allocation of frequencies, the terms of the licence referred to a national frequency allocation plan of 1998, which specified that, within 24 months, the company had to bring its installations in line with the requirements of the “assignment plan” as well as with the “adjustment programme” drawn up by the Communications Regulatory Authority.

Starting in 2000, Centro Europa turned several times to the administrative courts complaining that no frequencies had been allocated to it. A first set of proceedings ended in May 2008 with the adoption of a judgment by the Consiglio di Stato. That judgment deferred the allocation of frequencies to Centro Europa until such time as the authorities
had adopted the adjustment programme.   However, the plan was not implemented until December 2008. Before that, a succession of transitional schemes was applied at national level, allowing existing TV channels, to extend their use of frequencies. The result was that, even though it had a licence, Centro Europa was unable to broadcast before 30 June 2009.

In November 2003, Centro Europa brought proceedings seeking compensation for the damage it claimed it had incurred as a result of the non-allocation of frequencies.  The Consiglio di Stato stayed those proceeding until the European Court of Justice had interpreted the relevant provisions of the European Union Treaty, several EU Directives and Article 10 of the European Convention on Human Rights. The Court of Justice delivered its judgment in January 2008. In particular, it found with regard to Article 10 of the Convention that the national legislation adopted during the period in question had favoured the existing TV channels to the detriment of new broadcasters which could not broadcast – despite having licences – because no frequencies had been allocated to them.

Following this judgment, the Consiglio di Stato held that it could not allocate frequencies instead of the Italian Government and ordered it to deal with that question. It also ordered the relevant Ministry to pay the company €1,041,418  in compensation calculated on the basis of the legitimate expectation of being allocated frequencies which, it found, Centro Europa had. The Consiglio di Stato finally concluded that Centro Europa had suffered damage as a result of the authorities’ negligence which had resulted in not allocating frequencies to the company. However, it held that the pecuniary damage was only due as from 1 January 2004, after which date – in accordance with a finding by the Italian Constitutional Court – legislation had to be adopted allowing licence holders to start broadcasting.

Judgment

After dealing with various procedural issues the Grand Chamber then considered whether or not there had been a breach of Article 10.  It began with a  recapitulation of the general principles established in its case-law concerning pluralism in the audiovisual media:

“there can be no democracy without pluralism. Democracy thrives on freedom of expression. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself” [129]

The Court went on to observe that,

“to ensure true pluralism in the audiovisual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary in addition to allow effective access to the market so as to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes are aimed” [130].

It emphasised that

“A situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their editorial freedom undermines the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive …  This is true also where the position of dominance is held by a State or public broadcaster. Thus, the Court has held that, because of its restrictive nature, a licensing regime which allows the public broadcaster a monopoly over the available frequencies cannot be justified unless it can be demonstrated that there is a pressing need for it” [133]

In addition to its negative duties of non-interference, the “State has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism” [134].

The failure by the Italian government to make frequencies available to Centro Europa constituted an interference with its Article 10 rights [136] to [138]).  The question was, therefore, whether this interference was justified under Article 10(2).

The Italian government fell at the first hurdle – the interference was not “prescribed by law”

“the domestic legislative framework lacked clarity and precision and did not enable the applicant company to foresee, with sufficient certainty, the point at which it might be allocated the frequencies and be able to start performing the activity for which it had been granted a licence …  It follows that the laws in question did not satisfy the foreseeability requirements established by the Court in its case-law“. [154]

As a result, Centro Europa was “deprived … of the measure of protection against arbitrariness required by the rule of law in a democratic society“. This reduced competition in the audiovisual sector and, as a result,

“amounted to a failure by the State to comply with its positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism” [156]

The lack of a proper legal framework also meant that there was a violation of Article 1 of the First Protocol.

The Grand Chamber went on to awared pecuniary and non-pecuniary “just satisfaction” of €10,000,000. ([214] to [221]).

There was a concurring opinion from Judge Vajić and a number of partial dissents.  Judge Steiner, the Austrian judge, dissented on both the findings of violation.

Comment

This is another example of the “positive obligations” which the Court of Human Rights has developed out of the traditional “negative obligations” in the Convention.  In addition to the State’s negative obligation not to interfere with freedom of expresssion it has positive obligations to ensure freedom of expression by, in this case, guaranteeing effective media pluralism.

The case emphasises, once again, the importance which the Court of Human Rights attaches to pluralism in radio and television and its concerns to ensure that no one broadcast is dominant. The Court’s warning about the dangers of a “situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance” over the media and, as a result, exercise pressure and eventually curtail their editorial freedom has an interesting resonance in the context of current domestic debates about the dominance of a small number of newspaper groups.


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