In March 2014, ARTICLE 19 analysed the Specifications on Private TV Station Standards for General Terms and Conditions for Licensing, Establishment and Utilisation (the Specifications) adopted by the Tunisian broadcast regulator, the High Independent Authority for Audiovisual Communication (HAICA). The Specifications on Private TV stations have been prepared along with the Specifications relating to private radio stations and community TV and radio stations.
ARTICLE 19 welcomes a number of positive features in the Specifications on private TV stations. These include, in particular, the setting of clear licensing conditions and criteria, the regulation of the right of reply, the regulation of broadcasting content aiming at protection of children and the inclusion of advertisement restrictions to protect the interests of viewers.
However, from the perspective of international human rights standards, the major problem of the regulation is the lack of safeguards for the right to freedom of expression. The Specifications do not recognise that licensing and content regulation affect freedom of expression; they also fail to ensure that all restrictions pursue legitimate aims and are necessary and proportionate to the aim as required by Article 19(3) of the International Covenant on Civil and Political Rights. The licensing process is not set out, including the time limits within which decisions must be made. Moreover, HAICA is not obliged to provide written motives of its decisions and consider the promotion of media pluralism and freedom of expression when deciding on licencing applications.
ARTICLE 19 hopes that the HAICA will address the shortcomings of the Specifications as soon as possible and bring them in full compliance with international law. We also remain at the disposition of the HAICA and other Tunisian authorities to offer advice on strengthening the protection of media freedom and freedom of expression in the broadcasting sector.
Summary of recommendations
- The Specifications should include provisions on cable licensing, ‘must carry’ rules for cable operators and content on cable and satellite broadcasting. Cable operators should be made responsible to ensure that all their services comply with national content standards.
- The Specifications should explicitly set out that the regulation does not apply for internet radio and web television.
- The Specifications should set out that the licence indicates the geographic area to be covered by the licensee. If the licence is for a national coverage, the regulation should require that the broadcaster ensures that its services cover the entire population (“universal service obligations”).
- The Specifications should set out that the licence includes technical specifications to prevent interference of transmission and ensure picture and sound quality.
- The Specifications should stipulate that HAICA will provide written reasons if it decides not to grant or to renew a license. Tunisian legislation should also guarantee that a refusal to issue a licence should be subject to judicial review.
- The licence term should be extended to minimum of 10 years.
- Consideration should be given as to whether the ban of TV ownership by high-ranking politicians is necessary for media pluralism in view of the current media context in Tunisia.
- The process for obtaining a broadcasting licence must be set out clearly and precisely in the Specifications or other legislation.
- The members of HAICA should be obliged to protect the confidentiality of the information contained in the application documents.
- HAICA should be required to promote media pluralism and freedom of expression as well as other broadcasting principles when deciding on licencing applications.
- When deciding on licences, HAICA should be obliged to consider diversity and plurality not only at national but also at local level.
- The content rules in the Specifications must be developed in close consultation with broadcasters and other interested parties, and should be finalised only after public consultation.
- The Specifications should strengthen the protection of minors by introducing a watershed and defining the material which can harm children. To avoid confusion the terms “content violence” or “pornographic violence” should be replaced with generic terms such as “obscene material” or “indecent material”. The Specifications should include a definition of the chosen generic term.
- The Specifications should include definitions of the different terms used, such as “commercial communications”, “publicity material”, “sponsorship”, “political publicity”, and “news programmes”.
- The Specifications should set out that the general content standards apply for commercial communications.
- The Specifications should protect editorial independence in cases of commercial communications by explicitly prohibiting the interference by sponsors and advertisers in editorial matters.
- The Specifications should set out how the standards on commercial communications can be enforced. The enforcement bodies should be given powers to monitor the implementation of the standards. In addition they should be able to examine complaints by viewers and listeners and impose sanctions. Sanctions should include orders for removal and fines, if a broadcaster has been negligent or has intentionally disregarded a ruling for removal.
- The Specifications should set out that broadcasters are responsible for the content of all commercial communications. If advertisement contains statements of quality, broadcasters should be able to prove their truthfulness. Broadcasters and advertisers should be able to dispute rulings of the enforcement body that they have violated the standards.
- The Specifications should set out a requirement for honesty prohibiting advertisers from unfairly comparing their products with those of competitors.