Revocation of a television station license in order to protect pluralism. Freedom of expression and the right to property were not violated
JUDGMENT
NIT S.R.L.v. the Republic of Moldova 05.04.2022 (app. no. 28470/12)
SUMMARY
The case concerned the applicant company’s allegation that its television channel was shut down for
being overly critical of the Government and, in particular, whether domestic law could impose an
obligation of neutrality and impartiality in the news bulletins of television stations broadcasting on
national public networks.
The Court recalled that the internal pluralism policy chosen by the Moldovan authorities and
embodied in the Audiovisual Code 2006 had received a positive assessment by Council of Europe
experts. While the policy chosen by the national authorities could be viewed as rather strict, the
case related to a period before Moldova transitioned to terrestrial digital television, when the
number of national frequencies was very limited and when the authorities had to put in place
broadcasting legislation ensuring the transmission of accurate and balanced news and information
reflecting the full range of political opinions.
With that in mind, the Court was satisfied that the reasons behind the decision to restrict the
applicant company’s freedom of expression had been relevant and sufficient and that the domestic
authorities had balanced the need to protect pluralism and the rights of others, on the one hand,
and the need to protect the applicant company’s right to freedom of expression on the other.
In addition, even though its loss of licence had eventually led to the demise of its analogue television
network, the applicant company could have reapplied for a broadcasting licence after a year. The
Court was satisfied that the respondent State had struck a fair balance between the general interest
of the community and the property rights of the television station.
In its judgment, the Court developed its case-law on pluralism in the media and clarified the
interrelationship between the internal and external aspects of media pluralism, the scope of the
margin of appreciation afforded to States, and the level of scrutiny applicable to restrictions in this
area. It also outlined the factors for assessing a regulatory framework and its application.
PROVISIONS
Article 10
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant company, Noile Idei Televizate (NIT) S.R.L., had a private television channel (NIT) in
Moldova. It started operating in 1997 and was issued with a licence to broadcast nationally from
2004. As of 2009, it was the main voice of the sole opposition party.
Between 2009 and 2011 the television station was sanctioned multiple times for breaching
legislation concerning protection of pluralism, namely duties of neutrality and impartiality, in its news bulletins. In particular, the audiovisual national authority accused the channel of a lack of pluralism, politically biased news bulletins, favouring the opposition political party and broadcasting distorted news items.
In 2012, after the television station failed again to comply with the law on pluralism as laid down in
Article 7 of the domestic Audiovisual Code of 2006, despite numerous milder sanctions imposed on
it, its licence to operate was withdrawn.
The applicant company challenged the decision before the national courts, but its action was
dismissed as ill-founded in 2013. The Court of Appeal found in particular that the audiovisual
authority had had no other option but to impose the harshest sanction of revoking the television
station’s licence, given that it had refused to comply with the domestic legislation on pluralism.
The applicant company complained in particular under Article 10 of the European Convention on
Human Rights and under Article 1 of Protocol No. 1 that the withdrawal of its licence for its
television station had amounted to a breach of its right to freedom of expression and of its property
rights. It also complained under Article 6 (right to a fair trial) that the proceedings concerning the
revocation of its licence had not been fair. It asked the Court to examine, in particular, whether
domestic law could impose an obligation of neutrality and impartiality in the news bulletins of
private television stations broadcasting on national public networks.
THE DECISION OF THE COURT…
Article 10
The Court noted that, unlike previous cases where existing standards on media pluralism had been
developed mainly in the context of complaints of unjustified State interference with an applicant’s
rights to freedom of expression and where the Court had relied, amongst other things, on the
principle of media pluralism in finding a violation, it was the other dimension of media pluralism that
was at stake in this case. The applicant company complained of restrictions on its freedom of
expression which were based on the grounds of ensuring political pluralism in the media, with the
aim of enabling diversity in the expression of political opinion and enhancing the protection of the
free-speech interests of others in audiovisual media. It was a question therefore of striking a proper
balance between the competing interests of the community in safeguarding political pluralism in the
media, and of respecting the principle of editorial freedom.
A further specific feature was the emphasis laid in the relevant national legal framework on internal
pluralism, namely the obligation on broadcasters to present different political views in a balanced
manner, without favouring a particular party or political movement. In contrast, earlier cases had
been more concerned with issues of external pluralism, which meant the existence of various media
outlets, each expressing a different point of view, and was basically achieved by ensuring that the
media were not concentrated in the hands of too few.
The Court had already acknowledged that, in such a sensitive sector as the audiovisual media, the
State was obliged to put in place an appropriate legislative and administrative framework to
guarantee true effective pluralism. Furthermore, when it came to audiovisual broadcasting, States
were under a duty to ensure, first, that the public were given access through television to impartial
and accurate information and a range of opinions and comments, reflecting, amongst other things,
the diversity of political outlook within the country, and, secondly, that journalists and other
professionals working in the audiovisual media were not prevented from imparting such information
and comments. The Court clarified in this respect that neither aspect, internal or external pluralism,
should be considered in isolation from each other; on the contrary, both aspects had to be
considered together. Thus, in a national licensing system involving a certain number of broadcasters
with national coverage, what might be regarded as a lack of internal pluralism in the programmes
offered by one broadcaster might be compensated for by the existence of effective external
pluralism. However, it was not sufficient to provide for the existence of several channels. What was
required was to guarantee diversity of overall programme content, reflecting as far as possible the
variety of opinions encountered in society.
The Court reiterated that there might be different approaches to achieving overall programme
diversity in the European space. A number of national licensing systems tended to rely on the
diversity of perspectives provided by the different licensed operators, coupled with structural
safeguards and general obligations of fair coverage, while other national systems required stricter
content-based duties of internal pluralism. As the choice of how to achieve overall programme
diversity varied according to local conditions, States should in principle enjoy wide discretion in how
to go about ensuring pluralism in the media.
In this case, the severity of the sanction was a factor that called for close scrutiny by the Court. The
Court recalled that the internal pluralism policy chosen by the Moldovan authorities and embodied
in the Audiovisual Code 2006 had received a positive assessment by Council of Europe experts.
While the policy could be viewed as rather strict, the case related to a period before Moldova
transitioned to terrestrial digital television, when the number of national frequencies was very
limited and when the authorities were under a strong obligation to put in place broadcasting
legislation ensuring the transmission of accurate and balanced news and information reflecting the
full range of political opinions. In that context, the legislative choices had been carefully considered and genuine efforts had been made at parliamentary level to strike a fair balance between the competing interests at stake. All broadcasters, whether public or private, had been subjected to the same rules, which had been applied not to the entire audiovisual content of licensed broadcasters
but only to their respective news bulletins. Implementation of the rules had been monitored by the
Audiovisual Coordinating Council (ACC), a specialist body established by law. Its meetings,
monitoring reports and decisions were accessible to the public and the broadcasters’
representatives were given an opportunity to attend and to submit comments. The ACC was
required to provide reasons for any decision to impose a sanction, which could be challenged before
the courts.
Regarding the application of the regulatory framework in NIT’s case, the Court determined that the
decision had been supported by relevant and sufficient reasons.
The Court was mindful of the fact that the severity of the sanction could have had a potentially
“chilling effect” on the freedom of expression of other licensed broadcasters in Moldova. However,
in the specific circumstances of the case, it felt that the domestic authorities had acted within their
margin of appreciation in achieving a reasonable relationship of proportionality between the
competing interests at stake:
As the applicant company had contended that the revocation, as well as the majority of the previous
sanctions, had been politically motivated, the Court had to scrutinise closely the safeguards against
arbitrariness and abuse. It found that NIT’s allegations had been duly examined by the courts and
there was no concrete evidence to support the allegation that the ACC had sought to hinder NIT from expressing critical views of the government, or had pursued any other ulterior purpose.
It also noted that the measure had not prevented the applicant company from using other means to
broadcast its news bulletins and programmes, and that the applicant company had not been
prevented from pursuing other income-generating activities. Indeed, it had continued to share
content through its Internet homepage and YouTube channel. Moreover, the applicant company
could have reapplied for a broadcasting licence after one year.
With the above considerations in mind, the Court was satisfied that the reasons behind the decision
to restrict the applicant company’s freedom of expression had been relevant and sufficient and that
the domestic authorities had balanced the need to protect pluralism and the rights of others, on the
one hand, and the need to protect the applicant company’s right to freedom of expression on the
other.
The interference had thus been “necessary in a democratic society” There had accordingly been no
violation of Article 10.
Article 1 of Protocol No. 1
As regards the revocation of the applicant company’s television broadcasting licence, the Court
observed that it was the result of the television company’s persistence in refusing to comply with
the relevant licence requirements but also down to the overall gravity, nature and accumulation of
its transgressions. The fact that it had not changed its behaviour to comply with the Audiovisual
Code despite twelve sanctions in three years had led the authorities to feel entitled to apply its most
serious sanction.
The Court noted that an expert report provided by the applicant company concluded that it had
operated at a loss even before the revocation of its licence. Consequently, the Court found that the
revocation of the licence had not affected the applicant company’s proprietary interests to an
excessive degree. In this connection, the Court noted, moreover, that even though the loss of licence
had eventually led to the demise of the applicant company’s analogue television network, that had
not been a forgone conclusion as the company could have reapplied for a broadcasting licence one
year later. It thus appeared that the applicant company’s pecuniary and other proprietary interests had been sufficiently taken into account in the relevant proceedings. The Court was therefore satisfied that the State, acting within its wide margin of appreciation in this area, had struck a fair balance between the general interest of the community and the property rights of the applicant
company. The Court concluded that there had been no violation of Article 1 of Protocol No. 1.
Article 6 § 1
The Court considered that most of the applicant company’s grievances under this Article covered
largely the same grounds as the complaints under Article 10 and Article 1 of Protocol No. 1. Given
the reasons already set out and the fact that the national courts had examined all the arguments
raised by the applicant company and dismissed them by providing reasons which were not arbitrary
or manifestly unreasonable, the Court did not find that the alleged shortcomings had affected the
fairness of the proceedings in any way.
As to the specific complaint concerning the allegedly unlawful amendment by the national
authorities of an article of the Audiovisual Code of 2006, the Court noted that the amendment had
come into effect shortly after NIT’s licence had been revoked and that the amendment had had no
influence or impact on the proceedings brought by the applicant company against that decision.
Therefore, the Court was not persuaded that the amendment in question had rendered the
proceedings unfair. It followed that this complaint was manifestly ill-founded and had to be rejected.
Separate opinion
Judges Lemmens, Jelić and Pavli expressed a joint dissenting opinion. This opinion is annexed to the
judgment.
