Hamburg, 14.12.2011. The independence of supervisory authorities can barely be calculated “mathematically”. However, there are indicators that can be identified, which can identify risks and dangerous constellations that enable an influence on the impartiality of media supervisory authorities. These indicators were identified in a research project carried out by the Hans-Bredow-Institut, as commissioned by the EU Commission, based on data from 43 countries.
With the help of a test that is online by now, the risks of influencing regulatory authorities can be examined.
When the EU Commission drew the attention to Hungarian media law in 2010, it became clear that the independence of the media in Europe has to be repeatedly secured. For this, the media authority and its independence play an important role. A supervisory authority is needed in broadcasting anyhow, also in order to enforce European requirements. However, such a supervisory authority can become a risk for the independence of the media, for example, if it becomes the extended arm of the government.
Against this backdrop, the European Commission has assigned the Hans-Bredow-Institut with the study INDIREG ("Indicators for Independence and Efficient Functioning of Audiovisual Media Services Regulatory Bodies") in the beginning of 2010. The objective was to develop a measurement method that makes the risks of external influence on media authorities visible.
The final report of INDIREG and the developed online test have been published. Important results of the project: although most of the national laws formally show little or no loopholes for influencing them, situations such as in Hungary could be repeated in other countries as well. “Besides the formal independence, we also examined the actual situation”, reports Prof. Wolfgang Schulz, who led the study at the Hans-Bredow-Institut. “Thereby it became clear that if you are using laws, you could only govern to a limited extent concerning how much independence – de facto – actually exists. For example, certain majorities – such as the two-third-majority of the Hungarian government – can be used to fill key positions in regulatory authorities with staff close to the government. Furthermore, every media authority depends on resources like money or knowledge and, thus, they are potentially influenceable.
Based on the analysis of 43 states, including all EU states, all EU candidate countries and potential candidates, the states of the European Free Trade Association as well as the four comparative countries USA, Japan, Singapore and Australia, the research team of the Hans-Bredow-Institut developed indicators to find potential levers of political influence. In addition, they found mechanisms that are able to push these influences back.
“Three factors are especially important for the independence of the authorities”, summarises Schulz. “Media authorities need two things: firstly, they need sufficient authority to exert power and, secondly, they need an appropriate own financial provision. Moreover, it is important that only independent courts – and not the government – repeal decisions of authorities. If these three criteria are fulfilled, then the independence is formally well-established.” Researchers see those cases critically, in which authorities can only make proposals but do not make decisions. “If a decision has to be confirmed or implemented by a government or another authority, then there is, in our opinion, no independence,” Schulz emphasises.
The indicators developed by the researchers should enable other actors in the individual countries to examine the independence of their regulation for audio-visual media. Therefore, the researchers developed an online test (“ranking tool”) that could be used by government agencies or NGOs to get an idea of it. It can also be useful for regulators themselves. The ranking tool considers, among other things, the organisational form of media authorities, the executive positions that are filled or the barriers for legislative amendments.
The background of this study is Article 30 of the Audiovisual Media Service Directive (AVMSD), which refers to “independent regulatory bodies” without defining the requirements for it. Thus, there was an interest in clarifying what “independence” means in this context. With its theoretical framework model on the basis of the insight from research into regulation, the study could theoretically deduce a variety of indicators for the independence of media authorities and, later, consolidate it empirically or relativise it partly.
The final report of the one-year examination includes – besides an overview of the state of the research on the independence of institutions – a detailed legal description and analysis of the responsible regulation authorities in the area of audio-visual media services as defined by the AVMS Directive. Therefore, the respective regulation authorities in 43 countries have been examined. Additionally, the report explains the results of an analysis of the actual implementation of legal requirements for regulators in each country. The report concludes with the identification of key characteristics for “independent regulatory authorities” according to the directive.
The research consortium consisted of the Hans-Bredow-Institut, Katholieke Universiteit Leuven, Central European University, Cullen International as well as Perspective Associates (as subcontractor). The consortium was supported in this research by an expert network in each of the 43 countries that were part of the study.
Hans-Bredow-Institut for Media Research; Interdisciplinary Centre for Law & ICT (ICRI), Katholieke Universiteit Leuven; Center for Media and Communication Studies (CMCS), Central European University; Cullen International/; Perspective Associates (eds., 2011): INDIREG. Indicators for independence and efficient functioning of audiovisual media services regulatory bodies for the purpose of enforcing the rules in the AVMS Directive. Study conducted on behalf of the European Commission. Final Report. February 2011. Available at http://ec.europa.eu/avpolicy/docs/library/studies/regulators/final_report.pdf