Model public service broadcasting law

Most countries around the world, with a few notable exceptions, have a national publicly funded broadcaster. These broadcasting organisations can make an important contribution to the public’s right to a diversity of information and viewpoints, and the free flow of information and ideas. However, the extent to which they in fact make this contribution depends on a number of factors, including the legal environment in which they exist. A Model Public Service Broadcasting Law seeks to provide guidance as to how the law may be used to help promote genuine public service broadcasting.

A Model Public Service Broadcasting Law envisages an independent national public service broadcaster, although other models for providing public interest broadcasting exist. It is based on best international practice, as reflected in the ARTICLE 19 publication, Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation, as well as in the decisions of both international and national courts, treaties and other authoritative statements of international law, and a number of public broadcasting laws from around the world.

These international standards have important implications for public broadcasters of which the most important, without a doubt, is that public broadcasters must be protected against political or commercial interference, that is to say that they must be independent and that their editorial independence must be respected. Furthermore, their programming should serve the public interest and, in particular, be balanced and impartial. Broadcasters which meet these conditions of independence and impartiality are often referred to as “public service broadcasters”.

A key purpose of the Model Law is to give legal form to some leading principles relating to public service broadcasting. Four central themes, each in tension with the other, define the key challenges for a public service broadcasting law: the types of programming to be provided; the means by which independence is guaranteed; the sources of funding; and promoting accountability to the public. These are addressed briefly in turn below.

Detailed guidelines are provided in the Model Law as to the type of programming that is expected from the public service broadcaster and provision is made for the purchase of material from independent producers to ensure that programming overall reflects a wide variety of views and perspectives. The precise number of public television and radio channels to be broadcast is left open, given that this is highly context dependent, although it is envisaged that these would be specified. At least one national free-to-air channel is envisaged for each of television and radio, and other regional and/or local channels may also be specified.

In terms of structure, the public service broadcaster is governed by a Board of Directors, appointed by the lower house of parliament (or its equivalent), upon nomination by civil society and professional organisations, in a process that is transparent and that allows for public participation. There is a specific guarantee of the independence of members of the Board and their tenure is protected, although narrow grounds for dismissal are provided for. Furthermore, individuals with strong political connections or with vested interests in broadcasting are prohibited from being appointed to the Board. The Board appoints, by a two-thirds majority vote, the Managing Director, and sets all of its own rules of procedure, other than those specified directly in the Model Law.

The primary source of funding for the public service broadcaster comes from public sources, primarily the Public Broadcasting Fee, levied on the electricity bill. The Model Law also envisages other sources of funding, including advertising, sponsorship and direct public subsidies, although the uses that may be made of the latter are restricted, to reduce the risk of this subsidy being abused to influence programming.

Accountability to the public is ensured primarily through the governing board. A key accountability mechanism is the provision of a public Annual Report, along with audited accounts, to the lower house of parliament, and some detail is provided as to what should be included in this Annual Report. The Model Law also, however, envisages direct public oversight through both ongoing public review and an internal complaints mechanism (in addition, of course, to any external complaints mechanisms that may be in place).

The Model Law does not address certain issues. For example, it does not address issues which are properly dealt with in laws of general application, such as copyright, the right of journalists to protect their confidential sources of information and broadcasting during elections. Certain issues – such as whether public service broadcasters should have privileged access to certain sporting events or whether they are covered by any code of conduct binding on other broadcasters – are also not included because, although they do directly affect public service broadcasting, they are more properly addressed in a general broadcasting law. The Model Law does not address the question of whether the new broadcaster establishes, replaces, or transforms an existing State broadcaster. Often, the establishment of a public service broadcaster does represent an attempt at transformation but the main goal of the Model Law, as noted, is to elaborate the principles which should guide public broadcasting, not to address technical details relating to transformation which, furthermore, may vary considerably from one context to another.

The term ‘model’ is not used here to suggest that all countries should take this as a fixed template for their own legislation, or even that the approach taken here is necessarily the best way to approach this issue in every country. Many issues concerning public service broadcasting, notably the appointment of the governing board and the funding structure, are quintessentially pragmatic in nature and admit of different approaches. What will work best in any particular country will depend on its history, political structures, development of civil society, the overall broadcasting and media environment and so on. Furthermore, it may be noted that formal legal implementation – for example, as regards the system by which laws come into force – will vary from country-to-country. Rather, the term ‘model’ signifies that this Law incorporates provisions that are designed to protect the principles noted above, namely by safeguarding the independence of the public broadcaster within a framework of accountability, and by encouraging programming that serves the public interest and promotes the free flow of information and ideas.

As noted above, a key issue for public service broadcasting is how to ensure independence and, in turn, how members of the governing board should be appointed. There are different models for this, the two key ones being a parliamentary appointments process with safeguards for independence and direct appointments or nominations by different sectors of civil society. The Model Law adopts a hybrid approach whereby parliament is responsible for appointments but civil society nominates members.

Both systems have their strengths and weaknesses; two points bear on the question of the choice of system in any particular context. First, laws do not work in a vacuum and even the finest public service broadcasting law will fail to achieve the desired objective of quality, impartial programming in the context of an undemocratic setting or where civil society is unable to hold government to account. On the other hand, there are examples of laws which do little to protect independence or promote quality programming but, due to other supportive conditions, there is an excellent public broadcaster. Second, while safeguarding independence is key, this must not be done at the expense of ensuring accountability to the public; a challenge for even leading public service broadcasters.