director of InterLex, Rome
Manlio Cammarata examined the European debates and the current regulatory situation. He began by pointing out how the sector of the media that we know as "public service broadcasting” is changing and that it no longer comprises only radio and television but also Internet and the first experiments of innovative services. It is no coincidence that we no longer talk of "television", but of the "cross-media service". Nonetheless talking about the cross media or television public service in Europe is particularly difficult, first of all due to the great differences between the approach of the various European States, and secondly due to the insufficient regulatory interventions by the European Community institutions. As we trace the evolution of European laws from the first timid steps with the "Television without Frontiers" Council Directive in 1989 until the Amsterdam protocol that focused on the thorny issues of funding for public service broadcasters, the Directive 65/2007 on “audiovisual media services” stands out. Within a completely changed telecommunications context this regulation introduced a new vision of "audiovisual media services", as shown by the substitution of the word "television" in the title and the text of the directive. But when one actually reads the text of this legislation, the logic it expresses is still that of television and added to this is the difficulty of distinguishing between linear and non-linear services, which unfortunately even today still tend to be seen as overlapping.
Ever since the post-war period Italy has experienced a sort of ballet of sporadic Government control over television. In recent years, for example, the Gasparri Law of 2004 provided for the privatization (never actually begun) of RAI and for the control of the public service to revert to the government during the period of transition . The implementation of the European Directive, with the formal transition from “television” to “audiovisual media services” provided an opportunity to increase control over Internet, by applying similar rules to those of traditional television to television services on the net , with the addition of suffocating obligations for many operators who cannot afford to comply with such rules , thereby definitively moving our country far from a European vision of public services.
Continuation of the real-time summary
Preliminary summary of Manlio Cammarata's intervention.
Current european debates and the european regulatory situation of Public Service Media
We are taking part in a major event dedicated to television and we are discussing public services. This is quite normal, but it may seem curious that the title of this seminar and the more general theme of our study does not involve the word “television”. We speak instead of “media” and use the unattractive (but effective) new adjective “cross-media”. This is the right approach if we consider the relatively near future and the situation that is emerging in the world of information and communications. Indeed, in the title of the most recent European directive the word “television” has been replaced by “digital media”.
The world of media is therefore changing and also that part of the media that we know as the “public broadcasting” is changing. For a few years now it no longer consists only of radio and television but also of internet and the first experiments of innovative services. So what interests us is the evolution of public services in the cross-media context. Its evolution, not its extinction, because the reasons that led to its birth, between the two world wars of the last century, have not disappeared. They have changed only to a certain extent.
But talking of a television (or cross-media) public service in Europe is not easy. There are two principal motivating factors involved: the first is the wide diversity between the public services of the various European states, and the second is the inadequate regulatory action of the institutions of the European Community, which have not yet systematically dealt with the definition and the tasks of European public broadcasting.
As regards the first point one only has to consider the distance that separates the concept of public broadcasting in two countries such as the United Kingdom and Italy. In the United Kingdom independence from politics is crucial and the public service system is regulated and designed so as to make this principle effective. In Italy on the other hand the public service was established and continues to operate under the control of the political sphere and by whichever governments happens to be in office at the time. There are of course many intermediate situations, such as in Germany, where the public service is under the control of the Länder and the federal government has a coordinating function.
2. The development of European legislation
The second point concerning developments in EU legislation from the italian point of view is the main theme of this intervention. The first significant act at a European level is not too remote in time. This is the “Television without Frontiers” Council Directive (89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities). It was not a particularly innovative measure, because it limited itself to classifying television broadcasting activities as “services” according to the EU treaty, providing for broadcasters to reserve the majority of transmission time for European productions (with a reserve of 10 percent for independent producers) and establishing various limitations on advertising. It also regulated the mutual relations between the broadcasters of different states, thereby justifying its title “television without frontiers”.
Eight years passed before the provisions of 89 were upgraded. Meanwhile some major changes had occurred: after Clinton and Gore's 1994 document on the “information superhighway” Europe tried to catch up with a series of initiatives on the “Information Society”, culminating in the “Bangemann Report” and the G7 at Brussels in 1995.
The Directive 97/36/EC, which amended the 89/552/EEC took the developments in technology takes into consideration and it concentrated on the competitiveness of the European audiovisual industry, free circulation and competition, the principles of jurisdiction and new rules on TV sales and advertising. It also considered the principle of free access to programs of great public interest and introduced rules for the protection of minors. There was nothing significant regarding public broadcasting.
This was dealt with a few months later however, by the “Protocol on the system of public broadcasting in the Member States”, annexed to the Treaty of Amsterdam. But the protocol was limited to establishing that the funding of public service broadcasters for the performance of their duties did not constitute “state aid”, which was prohibited by the Treaty, provided that it did not affect trading conditions and competition in the Community. The definition and the organization of public services were explicitly left to the individual European states and thus any European legislative reference to a public broadcasting service was absent.
In November 2001 the “Communication from the Commission on the application of State aid rules to public service broadcasting” (2001/C 320/04) was published, but it clearly affirmed that not even a comprehensive verification of the application of the rules on state aid for public broadcasting is possible without an official definition of “public service” in the context of Europe (paragraphs 32 and 33).
3. The Audiovisual Media Services Directive without borders of 2007 and the situation in Italy
Ten years after the Amsterdam protocol some new provisions were introduced in the wake of the “Television without Frontiers” directive. By now the context had changed radically, especially in the telecommunications sector, which was closely intertwined with that of television.
European regulation in the field of telecommunications had developed more extensively, progressing from Directives 90/387 and 90/388, which initiated the liberalization of the sector, to the “package” of four directives of 2002, which took account of “convergence” and redesigned the entire regulatory framework, with some aspects of the radio-television broadcasting market and some internet services included in the context of the telecommunications system.
The Directive 65/2007 on “audiovisual media services”, a further amendment of the original “mother law” of 1989, therefore introduced a new vision of audiovisual media services, which have now substituted the word “television” in the title and much of the text. Television nevertheless remained the focus of interest of this European Union legislation, although the new distinction between “linear” and “nonlinear” television services considered the second in the context of new digital media more than in that of traditional television.
This was a very important change of perspective, although it was not entirely satisfactory in some aspects, and perhaps it was still too cautious if we compare the speed of technological progress and its impact on the world of the media with the sluggishness of legislative innovation by the European Union . And in some cases the resistance of national legislators was also added to this. This was certainly the case of putting the Directive into force in Italy, which led to many changes to the Consolidated Law on Radio and Television ( Testo Unico della Radiotelevisione ), introduced in 2005. This was the descendant of the “Gasparri Law” of 2004 and it still bore the considerable burden of many provisions dating back to decades before. But in the aspect that interests us the most, that of the public broadcast, it made government control still more intrusive.
It is perhaps useful to recall that in Italy the radio was born as a concessionary firm in 1924, under the strict control of the fascist government, which made it an instrument of political propaganda in the ‘30s. After the war and the fall of fascism, the situation only changed slightly, with the control - and programming - of the system passing from the Ministry of Popular Culture to the Ministry of the Post Office and Telecommunications. The radio was no longer an instrument of propaganda of the regime, but in any case its guidance and supervision were in the hands of the government.
In the 1970s the situation changed with the emergence firstly of private radio and then, soon after, private TV stations, which were strongly opposed by the political majority of the time, with the support of some very conservative interpretations by the Constitutional Court. But in 1974 a fundamental ruling of the Court (No. 225) established that the control of radio and television broadcasting should pass from the government to Parliament, as being representative of the national community (while ruling No. 226 opened the way for private cable transmissions ). The reform of 1975 ensured that the requirements decreed by the Court were respected and the supervision and control of public radio and television were entrusted to the parliamentary committee established in 1947, duly renewed as regards its structure and tasks.
But in 2004, the Gasparri Law provided for the privatization (never actually begun) of RAI and for the control of the public service to revert to the government in the transitional phase. In fact in Article 20, paragraph 9 it states that two of the seven members of the board of administration of the state-owned concessionaire (including the chairman) are to be appointed by the majority shareholder, which is the Ministry of Economy and Finance, namely the government. As a result, even in the unlikely event of the parliamentary committee electing three representatives of the majority and four of the minority, the balance of the board of administration would still tend towards the Government's position.
In this context the implementation of the directive was on the one hand mandatory with the formal transition from “television” to “audiovisual media services.” But on the other hand it was the opportunity to increase control over Internet, by applying rules similar to those of traditional television to television services on the net. In fact the joint provision of the definition of “audiovisual media service” (Article 2) and Article 22 also submitted the Web-TVs to a regime of authorization, which seems contrary to the directive “whereas” No. 15 . This leads our country far from a European vision of a public service, whether it be of television or cross-media. The implementation of Directive 2009/140, which updates the 2002 Directives on telecommunications, will provide an opportunity to review the conformity of our regulations to the European context.