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REGULATORY IMPACT ASSESSMENT OF THE EFFECTS ON THE EDITORIAL FREEDOM CREATED BY THE EXISTING LEGISLATION ON AUDIO AND AUDIOVISUAL SERVICES

2 Nov 2017

REGULATORY IMPACT ASSESSMENT OF THE EFFECTS ON THE EDITORIAL FREEDOM CREATED BY THE EXISTING LEGISLATION ON AUDIO AND AUDIOVISUAL SERVICES

INTRODUCTION (You can download the RIA on this link: Regulatory Impact Assessment of the Effects on the Editorial Freedom Created by the Existing Legislation on Audio and Audiovisual Services)

CONTENTS

THE AIM OF THIS EVALUATION … 2
PROBLEM DESCRIPTION … 2
DESCRIPTION OF LEGISLATIVE MEASURES … 3
DESCRIPTION OF THE PRESENT STUDY … 4
ANALYSIS OF THE EFFECTS OF APPLYING THE LAW ON AUDIO AND AUDIOVISUAL MEDIA SERVICES ON EDITORIAL/MEDIA FREEDOM … 5
INDEPENDENCE AND IMPARTIALITY OF THE REGULATORY BODY … 5
OBLIGATIONS OF THE REGULATORY BODY RELATED TO MEDIA FREEDOMS … 7
PROGRAMATIC ASPECTS – PROGRAM STANDARDS AND PRINCIPLES … 10
PROGRAM MONITORING AND SANCTIONS … 16
PUBLIC BROADCASTING SERVICE … 19
RECOMMENDATIONS … 21

THE AIM OF THIS EVALUATION

The aim of this evaluation is to figure out the legislative effects onto editorial/media freedom and creating conditions for the development of the media domain.

PROBLEM DESCRIPTION

The context analysis reveals that the decline in media freedom is a continuing evaluation in the past few years, and for a second year Macedonia is given the status “unfree” according to Freedom House’s Media Freedom Index.[1] The European Parliament’s 2016 Report on Macedonia’s progress and the 2017 Macedonia Senior Experts’ Group [SEG] recommendations[2] explain the phenomena deemed threat to media freedom: systematic political involvement and pressure on editorial policy, imbalanced reporting, extremely low self-regulation degree and lack of trust in the public broadcasting service.

The existing media freedom situation is the result of the “state capture” phenomenon whereby via excessive legal regulation the executive power is able to hold excessive control over the media, followed by sanctioning measures. Despite the formal independence of the Regulatory body, the fact that each and every detail in the work of the media has been previously envisaged and regulated by law (suggested by the executive branch) as well as administrative fine makes it possible for the executive powers to have almost full control over the work processes. The elaborateness in regulating program standards of work, which includes the matter of duration of program contents on a daily basis, “chronological schedule” of broadcasting and the like is such that no approximate European legislative measure can be set for comparison. The disrespecting of such legislative articles is punished by fines. Thus, the excessive regulation of technical issues related to programming broadcasting represents an indirect control on program contents, accompanied by the continued air of threat. The previously defined technical details of this kind curtail also the autonomy of the Regulator which is reduced to a routine box-thicking of breaching norms, which should not be part of legislative norms.

In its essence, such legislation has the aim to control and discipline by using measures of strict and elaborate rules and excessive number of punishments inscribed in the material law.[3]

In this way a system is set up which represents a threat to the freedom of expression and which makes possible self-censorship and censorship in the media, i.e., it influences the determining and the choice of program contents in media.

The peculiarity of the Macedonian “state capture” case consists in the almost absolute subjugation of the legislative (and judicial) branch by the executive one, as, indeed, the SEG led by Reinhard Priebe states in its second Macedonia report.[4]

The Law on Audio and Audiovisual Media Services regulates in details the program structure and program contents (genres and types of program) which broadcasters have to produce and broadcast in the regulated time with regulated duration. The elected regulatory body, the Agency for audio and audiovisual media services, regulates in an even more detailed manner the rules for carrying out program standards, and sanctions the exceptions. The comparative desk research analysis of the overall legislation and the relevant media policy documents from EU member states, as well as strategic documents of regulatory bodies and monitoring reports carried out by elected agencies, i.e., regulatory bodies, shows that such a degree of control on the side of the central authorities does not exist in the slightest in any of the EU member states.

The European directive (article 4) imposes an obligation for self-regulation and/or co-regulation on the national level in the areas it encompasses and to the degree to which the national legislation allows it in each member state.[5] All the more, it is indicated that such systems of self-regulation and/or co-regulation have to be widely accepted by the main agents affected, and to make possible its effective carrying out. In order to make possible media autonomy and for it to be effective, the program principles and philosophy, as well as procedures, have to be acquired by the media themselves as by-laws (rulebooks, guidelines, work schedules and the like) or another type of documents laying out the policies of work, the in-house standards and professional values. In this direction self-regulation does not imply the inexistence of rules for functioning, but on the contrary, their creation and implementation has to aim making possible the freedom in the media’s workings and the development of the media sphere.

The regulatory body has to create the framework and the rules which make possible the freedom and development of media by tracking and analyzing the conditions, and by implementing policies targeting development, not control. As Priebe and the SEG mention in their second Macedonia report, the “capture” in the Macedonian state consists primarily in the “captured Parliament” on the side of the executive power, and with it the rest of society.[6] The Law, which in too much detail regulates means control on the side of the executive power, especially if punishing measures are also regulated in detail by virtue of the very same material law.

DESCRIPTION OF LEGISLATIVE MEASURES

This evaluation is carried in several areas from the Law on Audio and Audiovisual Media Services which influence editorial freedom – program standards, program principles and obligations, punishing measures, protection of pluralism and the public broadcasting service. As the bearer of a legislative obligation for the implementation of the Law, what is overseen is the setting up and the functioning of the elected body, the Agency for audio and audiovisual media services.

The evaluation of the effects of applying the law relates to several aspects:

• standards and principles;
• target groups (level of information, understanding, feasibility, use/damage);
•financial return – for the regulatory body, for the target group;
•what is not covered by the law but could contribute to making possible the freedom of expression.

DESCRIPTION OF THE PRESENT STUDY

In the period June-August 2017, field research was carried out by way of interviews, focus groups and electronic questionnaires with representatives of local, regional and national audio and audiovisual media, as well as employees in the regulatory body. The interviews with fifteen editors from national/cable tv and radio stations, as well as five directors of various sectors in the Agency for audio and audiovisual media services, provided in-depth data on the implementation and the effects of the now existing Law on audio and audiovisual media services. The focus groups provided a chance for 30 representatives of local and regional media from five different Macedonian towns to describe insights and experiences from the application of the existing regulations.

In the table below, we will summarize the results from the field research and will illustrate the general conclusions from the interviews and the focus groups.
This research is carried out with the support of the European delegation in Macedonia in the framework of the IPA program for the support of civil society (2015 Civil Society Facility Programme) and in cooperation with our project partners, the Union of Journalists in Macedonia (UJM).

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[1] Freedom of the Press 2017, Macedonia profile, available at: https://freedomhouse.org/report/freedom-press/2017/macedonia, accessed on 21 September 2017.

[2] European Commission, “The Former Yugoslav Republic of Macedonia 2016 Progress Report” (Brussels, 9 November 2016), but also “The former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts’ Group on systemic Rule of Law issues 2017” (Brussels, 14 September 2017).

[3] Ana Blazheva et al, Freedom of expression, association and entrepreneurship in a captured state: Macedonia in 2015 [Слобода на изразување, здружување и претприемништво во заробена држава: Македонија во 2015], Institute of Social Sciences and Humanities – Skopje (Skopje, 2015).

[4] “The former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts’ Group on systemic Rule of Law issues 2017” (Brussels, 14 September 2017), p. 5.

[5] “Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)” (Articles 4, 9).

[6] “The Former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts’ Group on systemic Rule of Law issues 2017” (14 September 2017), available at https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/2017.09.14_seg_report_on_systemic_rol_issues_for_publication.pdf, accessed on 21 September 2017.

 

YOU CAN DOWNLOD THE RIA ON THIS LINKRegulatory Impact Assessment of the Effects on the Editorial Freedom Created by the Existing Legislation on Audio and Audiovisual Services