The first newspapers were published in Europe in 1605: Nieuwe Tijdinghen in Antwerp and Relation in Strasbourg, both published as weeklies. Soon afterwards, more newspapers appeared in several European cities, until in 1650 the first daily newspaper was printed in Leipzig, Germany. Censorship and license were the key legal restraints on newspapers under the absolute monarchies of Europe. The 1662 Licensing of the Press Act in England was the first media regulation. In the nineteenth century, dynamic movements of ideas, the consequent political changes, and technological improvements contributed to the emergence of the European press as we know it today (Chapman 2005), with precedents such as the Daily Telegraph in Britain (1855), Le Petit Journal in France (1863), and the news agencies Havas in France (1835), Wolff in Germany (1849), and Reuters in Britain (1851).
Media Law: the Liberal and the Communist Systems
The present communication law and policy in Europe has been shaped by two historical events: the French Revolution and the Russian Revolution.
In the eighteenth century, the French Revolution gave rise to liberal ideas about freedom that questioned the state’s intervention in freedom of expression. The Declaration of the Rights of Man and of the Citizen was proclaimed in August 1789. Article 11 states: “The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, save [if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.” It exerted a strong influence on every liberal constitution and their provision of freedom of expression in Europe – Spain in 1812, Sicily in 1812, Belgium in 1831, Switzerland in 1848, and Piedmont in 1848 – and even in the new independent countries of Latin America, former colonies of Spain – Venezuela in 1819, Chile in 1833, and Mexico in 1857.
The English philosophers John Stuart Mill and John Locke prepared the basis for a liberal conception of the press. In Law of libel and liberty of the press, Mill (1985, 1st pub. 1825) spoke about the essential role of freedom of expression in a democracy: “The importance of free discussion . . . concerns equally every member of the Community. It is equal in value to good government, because without it good government cannot exist. Once remove it, and not only are all existing abuses perpetuated, but all which, in the course of successive ages it has overthrown, revive in a moment, along with that ignorance and imbecility, against which it is the only safeguard.” The Russian Communist Revolution created a system of censorship and control over the media, which rejected personal freedom of speech. The Decree on the Press of October 1917 included “temporary and extraordinary measures to stop the flow of dirt and slander.” In the 1950s, the eastern and central European countries under Soviet domination adopted the Soviet system of media censorship and control. The Soviet Communist Party’s Pravda (1912 –1991) and Izvestia (1917–) of the Supreme Soviet (the central government) were the main organs for propaganda. This state-controlled media system was repeated in every Soviet state (Richter 2002a).
The Universal Declaration of Human Rights and The European Union
A third crucial event in Europe was World War II (1939 –1945). The Universal Declaration of Human Rights was adopted by the United Nations in 1948 in response to World War II. Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The right to information and freedom of expression, as expressly enumerated by the UN human rights declaration, has been recognized by all the national constitutions, such as the Basic Law of Germany (1949), the Constitution of Portugal (1977), the Spanish Constitution, (1978), and the democratic constitutions of the ex-soviet and ex-Yugoslavian European countries, such as Poland (1997), Lithuania (1992), the Czech Republic (1992), Slovakia (1992), Croatia (1991), and Slovenia (1991). In every European media law system, the right to information and freedom of expression is weighed against an individual’s right of privacy and reputation. Illustrative are the French Law of Privacy (1970), the Spanish Law of Protection of the Right to Reputation, Privacy and Own Image (1982), and the UK Human Rights Act (1998).
At the end of World War II came the entity now known as the European Union, as a European plan of cooperation, which aimed at producing economic links among European countries. The definitive objective of the European Union has been to build strong cultural and political links among the member states. So, the European Convention on Human Rights provides for freedom of expression as a right.
New Media Law in Eastern and Central Europe
After the fall of the Berlin Wall in 1989, the perestroika movement, which Mikhail Gorbachev had introduced to the Soviet Union, took the Soviet economy to bankruptcy. Although perestroika was for social and economic renewal, it became the last step toward the collapse of the Soviet Union in the early 1990s.
The majority of the postcommunist countries in eastern and central Europe have begun on their own paths to democracy. Their new constitutions guarantee freedom of expression, the right to information, and the right of privacy, as do those of many western European countries. Given that the democratic tradition in the post-Soviet nations is still weak, the constitutional guarantees of freedom of expression in many former Soviet countries are more aspirational than operational (Richter 2002b).
Promotion of Freedom of Expression and Right to Information by The Council of Europe
The Council of Europe has been a watchdog on human rights around the continent since 1950. The European Court of Human Rights has promoted freedom of expression over the years, especially since the mid-1970s. Its jurisdiction affects European countries that have signed the European Convention on Human Rights. As of June 2007, the Court has ruled in more than 150 cases on freedom of expression. Its case law tackles a number of free speech issues: (1) special protection for children; (2) commercial speech; (3) hate speech; (4) the balance between reputation and criticism of politicians and institutions; (5) the balance between privacy of public individuals and freedom of expression; (6) the secrecy of journalistic sources; (7) separatist propaganda; (8) television licenses and transborder broadcasting; (9) independence of justice and journalistic reports on courts; and (10) access to public information. Both freedom of expression and the right to information are considered as fundamental pillars of a democratic society, as the Court reiterated in its case law on Article 10.
The European Union adopted its own Charter of Fundamental Rights of the European Union in January 2001. Article 11 of the EU Charter is similar to Article 10 of the European Convention on Human Rights: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . . The freedom and pluralism of the media shall be respected.”
European Union Media Law and Policy
Media law and policy in Europe revolves around the EU’s measures concerning the media and their policies in each individual European country. The EU took note of the media as a subject for regulation in the late 1980s, when the idea of Europe as a political union was one of its possible goals. In this light, the media would play a fundamental role in configuring European identity. As in other sectors of society, the media have a big impact, and hence are valuable both in the market and in the cultural-political context. The media’s influence on the EU centers on the audiovisual area. Meanwhile, there are other regulatory areas in European media and communication policies, such as competition, advertising, and the protection of minors.
The diversity of European countries is a crucial component of media law and policies in Europe. Indeed, the different backgrounds of each EU member nation in their history and socio-political heritage determine the particular implementation and formulation of EU media policies. Although EU nations share with each other the challenges of reforming public broadcasting and creating audiovisual authorities (Carey & Sanders 2004), diversity still remains. Examples of successful regulations include the UK’s BBC with a special regulatory frame, the Royal Charter, Poland’s broadcast regulation (1992), Belgium’s public broadcasting institutions in three different languages – Belgische Radio en Televisie (BRT), Radio Television Belge Francophone (RTBF), and Belgischer Rundfunk und Fernsehen (BRF) – and Italy, where the Constitutional Court plays an important role in media law (Caretti 2001).
Focus On Audiovisual Media
The EU views audiovisual media as essential to building a European identity among Europe’s multi-citizenship. The promotion of inter-European delivery of audiovisual contents throughout the “European Audiovisual Space” is the best support to the European multicultural identity. This started with the “Television without Frontiers” Directive of 1989. The main issues from the Directive are still relevant. Among them are advertising limits, the protection of minors and human dignity, cultural diversity, and access to information.
The EU audiovisual policy is related to public broadcasting in particular. The EU pays close attention to various controversies arising from public broadcasting services. In the early 1990s, for example, commercial broadcasters complained to the European Commission that privileging public broadcasters violates fair competition. The EU Protocol “The Public Broadcasting System,” together with the Amsterdam Treaty (1998), supported European public broadcasting. It asserts that public broadcasting services are indispensable to meeting the democratic, social, and cultural demands of each society. Insofar as its public funding does not violate fair competition among broadcasters, public broadcasting may be maintained. After the EU public broadcasting protocol was adopted, the European Commission urged Italy, France, Portugal, and Spain to reform their public broadcasting systems in compliance with the protocol.
Thus, broadcasting laws in France, Italy, Portugal, and Spain have been revised (France, Public Broadcasting Laws ; Italy, Law on Regulation and Principles Governing the Set-Up of the Broadcasting System and the RAI – Radiotelevisione Italiana ; Portugal, Public Broadcasting Law ; Spain, Public Broadcasting Law ). The interest in public broadcasting has been heightened throughout Europe by digitization and EU demands for fair competition in the audiovisual market. The BBC adopted a new Royal Charter in 2007, Germany amended its Law of Interstate Treaty on Broadcasting in 2005, and Ireland passed a new Broadcasting Act in 2001.
Fair Competition Measures
EU concern about media concentration issues has been addressed by the EU Parliament and Commission Resolutions, which are aware of decreased pluralism and the Commission’s executive actions. The EU’s focus is to preclude one particular communication enterprise from dominating the European market. But the necessity of being competitive in the global market has pressured the European Commission to compromise on its media concentration policy.
Regardless, the European Commission has devoted considerable efforts to fighting unfair competition through the European Registry of Mergers or by the DirectorateGeneral for Competition. The EU does not have specific rules on media ownership; the legal ground of any activity on this field is based on general competition regulation, mainly on the Council Regulation of January 2004 “on the control of concentrations between undertakings”. Its article 21 empowers member states to apply additional controls to protect media pluralism.
The latest significant actions by the European Commission include the merger procedure against the joint ventures of Time Warner Inc., worldwide provider of online services, film entertainment, operator of cable systems and television networks, and publisher, and CBS, the US mass media company engaged in the delivery of television, radio, and print publishing content; and the Commission’s investigation in May 2002 of contracts among European pay-TV companies and various content providers, including the Hollywood film studios NBC Universal, Paramount Pictures Corporation, Inc., Buena Vista International, Inc.; Warner Brothers Entertainment, Inc.; 20th Century Fox Film Corporation; Sony Pictures Entertainment, Inc.; MGM Studios, Inc., and Dreamworks LLC.
In the first case, in March 2006, after the examination in light of Council Regulation (EC) no. 139/2004 of the newly created company, the CW, and the control operated by TimeWarner and CBS, the Commission decided not to oppose the operation and to declare it compatible with the common market. Concerning the broadcasting rights’ contracts, the Commission’s investigation pressured in some way the withdrawal of the “most favoured nation” (MFN) clauses from the majority of the Hollywood film studios’ contracts, in October 2004. The only exemptions were Paramount and Universal. The Commission’s preliminary assessment considered these MFN clauses to produce “an alignment of the prices,” because they give the studios the right to implement the most favorable terms agreed between the TV companies and any of the Hollywood studios.
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- Carey, P., & Sanders, J. (2004). Media law, 3rd edn. London: Thomson, Sweet and Maxwell, pp. 230 –238.
- Chapman, J. (2005). Comparative media history: An introduction: 1789 to the present. Cambridge: Polity, pp. 20 –26.
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- European Institute for the Media (2004). Final report of the study on “The information of the citizen in the EU: Obligations for the media and institutions concerning the citizen’s right to be fully and objectively informed.” At http://www.europarl.europa.eu/RegData/etudes/etudes/join/2004/358896/IPOL-JOIN_ET(2004)358896_EN.pdf.
- Hans-Bredow-Institut for Media Research at the University of Hamburg (2006). Final report study on co-regulation measures in the media sector. Study for the European Commission, Directorate Information Society and Media. At www.hans-bredow-institut.de/forschung/recht/co-reg/ Co-Reg-Draft_Final_Report.pdf, accessed July 3, 2006.
- Mill, J. S. (1985). Law of libel and liberty of the press. In G. L. Williams (ed.), John Stuart Mill on politics and society. Glasgow: Fontana. (Original work published 1825).
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- Richter, A. (2002b). Local media legislation in Russian provinces: An old and winding road. In M. Price, A. Richter, & P. Yu (eds.), Russian media law and policy in the Yeltsin decade. The Hague: Kluwer, pp. 266 –267.
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