The marginalization of a political union by political debates on a state run channel violated the freedom of expression
JUDGMENT
Associazione Politica Nazionale Lista Marco Pannella v. Italy 31.08.2021 (app. no. 66984/14)
SUMMARY
A complaint from an Italian political union, represented in Parliament, that he had not been invited to participate in political debates scheduled during three major current affairs programs broadcast by the state-run broadcaster.
The applicant association had complained to the Communications Regulatory Authority about its discriminatory treatment resulting in its disadvantage, however no further action was taken in relation to its complaint. It was only when the union went to court for the second time, alleging a breach of the res judicata principle, that the Regulatory Authority finally ordered the State Broadcasting Corporation to redress the unjust imbalance which had harmed the applicant association’s interests.
It was therefore clear that the applicant association was absent from three very popular television programs – which had become the main means of presenting political debate and disseminating political ideas and opinions to the media – and had become, if not excluded, at least very marginalized in its coverage of political debates. from the media.
Unanimous violation of Article 10 (freedom of expression) of the ECHR.
The Court held that Italy should have paid the applicant EUR 12,000 in respect of non-pecuniary damage and EUR 5,000 in respect of costs and expenses.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Associazione Politica Nazionale Lista Marco Pannella, is an Italian political association
with its head office in Rome (Italy).
On 4 June 2010 the applicant association lodged a complaint with the Communications Regulatory
Authority (Autorità per le garanzie nelle comunicazioni – AGCOM), an independent administrative
authority performing regulatory and monitoring functions in the telecommunications and
broadcasting sectors – against RAI’s three general-interest channels for failure to comply, between 1
April and 3 June 2010, with the obligations stemming from the principles of impartiality and
pluralism in the provision of information. The association argued that the news programmes (TG1,
TG2 and TG3) broadcast by the three channels in question had not included sufficient reports on the
initiatives and awareness-raising campaigns it had launched. It also complained that its
representatives had not been invited to appear on the main talk shows broadcast on the three Staterun channels – Porta a porta, Annozero and Ballarò – whereas representatives of other political movements had taken part.
On 8 July 2010 AGCOM decided to take no further action on the complaint. After assessing the
screen time given to the applicant association as reflected by its overall presence across all the news and current-affairs programmes broadcast by each of the State-run channels (RaiUno, RaiDue and RaiTre) during the period under consideration, it concluded that the association had enjoyed a
sufficient presence, similar to that of other political movements that, like the applicant association,
did not have any members of parliament. AGCOM pointed out that, unlike “political communication”
programmes, current-affairs programmes were not subject to a rule requiring strict mathematical
distribution of the screen time devoted to each political force, and explained that during such
programmes, the expression of political views was governed by the rule of equal treatment, the aim
being to ensure fair representation of all strands of political opinion. It concluded that there was no
indication that the applicant association had been under-represented on screen during the period
under consideration.
On 9 November 2010 the applicant association challenged AGCOM’s decision in the Lazio Regional
Administrative Court (“the RAC”). On 9 June 2011 the RAC, after specifying that the applicant
association could be regarded as a “political subject” under domestic law, upheld the challenge and
set aside AGCOM’s decision. After reconsidering the matter, AGCOM maintained its previous
decision to take no further action on the applicant association’s complaint.
The association lodged a further application with the Lazio RAC, alleging a breach of the res judicata
principle, and sought to have AGCOM’s decision declared void and to have the RAC’s judgment of 9
June 2011 enforced.
On 14 March 2013 the RAC upheld the application. Observing that the applicant association was
represented in Parliament, it found that it could indeed be regarded as a “political subject”. It again
noted that AGCOM had not stated the reasons for changing its approach to the assessment of screen
time and for choosing to compare programmes that were extremely different in terms of their
popularity and the times at which they were screened. Lastly, it ordered AGCOM to enforce the
judgment of 9 June 2011 within thirty days.
On 25 May 2013 AGCOM ordered RAI to invite the applicant association to appear on two
programmes, Porta a porta and Ballarò, by the end of the 2013 programming schedule.
Relying on Article 10 (freedom of expression), the applicant association complained of a violation of
its freedom to impart political ideas and opinions via the public service broadcaster’s television
channels.
THE DECISION OF THE COURT…
Article 10
The Court observed that outside election periods, political views and opinions were disseminated via
“political communication programmes” and “current-affairs programmes”, both of which sought to
contribute to political debate at national level and ensured pluralism in the information received by
and serving the public. The planning and thematic choices of current-affairs programmes was a
matter falling within the editorial autonomy of each channel and each editorial board. Provisions of
statute law laid down the general principles applicable to radio and television, leaving it to the
parliamentary supervisory commission and AGCOM to adopt secondary regulations implementing
those principles. The task of monitoring compliance with these various rules fell to AGCOM.
In the present case, the applicant association had complained to AGCOM of an imbalance to its
disadvantage in the coverage provided by certain television programmes. On two occasions, no
further action had been taken on its complaints. On 9 June 2011 the Lazio RAC had declared
AGCOM’s initial decision void and had asked it to take into account the applicant association’s status
as a “political subject” that, as such, could not be compared to political movements that were not
represented in Parliament. It had noted that some political movements not represented in
Parliament had taken part in three programmes with a large audience. It had asked AGCOM to
provide reasons for having chosen to depart from its previous practice when supervising the
observance of the principle of pluralism.
The Court observed that it was only after the applicant association had lodged a second application
with the court, this time alleging a breach of the res judicata principle, that AGCOM had finally
ordered RAI to redress the imbalance that had harmed the applicant association’s interests.
The Court accordingly considered that AGCOM’s approach had been excessively formalistic. AGCOM
had carried out an overall assessment of the applicant association’s presence during all of the
current affairs programmes on the channels in question, without taking into account the time at
which the programmes were screened or their popularity. The Court observed that in general,
current-affairs programmes were not subject to a strict requirement of proportional representation
of the views of each political formation but simply to a duty to represent different political opinions
in a balanced manner. However, the internal practice employed by AGCOM and the TAR regarding
the application of the general principles on pluralism indicated that “political subjects” enjoyed
increased protection of their access to a specific category of current-affairs programmes, including
the ones to which the applicant association’s complaint had related.
It was therefore clear that the applicant association had been absent from three very popular
television programmes and had found itself, if not excluded from, at least highly marginalised in
media coverage of political debate.
There had therefore been a violation of Article 10 of the Convention.
Article 6
In view of its finding of a violation of Article 10 of the Convention, the Court did not consider it
necessary to carry out a separate examination of the complaint under Article 6.
Just satisfaction (Article 41)
The Court held that Italy was to pay the applicant association 12,000 euros (EUR) in respect of nonpecuniary damage and EUR 5,000 in respect of costs and expenses.
