Introduction

National broadcasters funded out of the public purse have historically formed a vital component of the broadcasting sector in most countries and the rationale for these broadcasters - which can offer alternative programming to that provided by the commercial sector - remains strong. At the same time, two key issues continue to pose a threat to the success of publicly-funded broadcasters. The first is ongoing attempts in many countries by the governing authorities to exert control over such broadcasters, undermining their independence and the quality of their news and other programming. The other is the ever-present desire of governments to cut budgets, which has resulted in increased pressure on the level of public funding received by these broadcasters, and a consequent search for alternative sources of funding.

This study looks at the way in which national, publicly-funded broadcasters are organised and paid for in six countries where support for these broadcasters remains strong, namely Australia, Canada, France, Japan, South Africa and the United Kingdom. The focus is on the legal and practical arrangements under which these broadcasters operate,• including broadcasting obligations, governance structures and funding arrangements. The study pays particular attention to the ways in which these countries have dealt with the threats noted above, namely how they have guaranteed the editorial independence of these broadcasters, while at the same time ensuring their accountability to the public and providing them with public funds.

In the past, a central broadcasting organisation supported by public funding has often been the only national broadcast medium and such organisations continue to occupy a dominant position in much of the world. In many countries, the commitment to publicly, funded broadcasting remains strong and this is reflected in public support, government funding and viewing statistics. There are a number of good reasons for this. These broadcasters have the potential to ensure that quality programmes covering a wide range of interests, and responding to the needs of all sectors of the population, are broadcast. They can provide an effective complement to commercial services, satisfying informational needs and interests that the market does not respond to. At their best, they ensure diversity in programming and make an important contribution to satisfying the public's right to know. They also serve as a focal point for promoting a sense of national identity and fostering a democratic and rights-respecting culture.

In many countries, however, the government exerts a great deal of control over state-funded broadcasters, using them as a mouthpiece for government rather than as an independent source of information for the public. It is only when the independence of these broadcasters is guaranteed -in law and in practice - that they can truly operate as servants of the public interest, providing high quality information from a variety of sources to the public.

The rapid proliferation of commercial and other forms of broadcasting is posing a new and dynamic challenge to publicly funded broadcasters. Technological developments have completely altered the nature of broadcasting with households in many countries now having access to tens, if not hundreds, of channels Digital technology allows limited frequency ranges to accommodate far more signals, opening up the airwaves to ever increasing numbers of broadcasters. The ongoing development of satellite and cable networks has also had a significant impact on access to broadcasting all over the world. These developments are complemented by the rapidly falling costs of starting up a broadcasting enterprise. The Internet promises even more exciting and profound changes and virtually everyone who has access to fairly basic equipment will effectively be in a position to operate as a broadcaster in the near future.

These developments pose a particular threat to broadcasters, which remain under government control. Many citizens prefer to tune in to independent commercial broadcasters, where they are available, than to a national broadcaster, which is effectively a government mouthpiece. This can lead to a significant erosion of support for publicly funded broadcasting, to the longer-term detriment of the greater public interest. It is perhaps ironic that in these circumstances, declining viewing statistics mean that government control no longer delivers the desired result, so that ultimately, even government support for publicly-funded broadcasters wanes.

Publicly funded broadcasters are also facing new challenges as the dominant understanding of the role of government changes. Moves to downsize government and privatise or commercialise government-run industries have been very popular. These changes have affected even activities once deemed core public functions such as responsibility for roads and monopoly utilities. At the same time, demands on certain public functions, for example in relation to medical services and education, are increasing, putting further pressure on scarce resources.

Given these developments, it is natural that the question of the extent and nature of direct public support for national broadcasters is coming up increasingly frequently and some countries are exploring new ways of satisfying the need for an alternative to commercially-driven programming One approach is to impose public service obligations on private broadcasters. Many countries already impose some such obligations on all licensed broadcasters but the overall trend is towards relaxing regulation and it is becoming increasingly difficult for national governments to effectively impose regulatory conditions.

Another approach is to look for alternative ways of providing public funding for programming which serves various public needs and interests. In some countries, independent programme producers, who are not linked to a specific broadcaster, may receive public funding for individual programmes. Alternatively, private broadcasters may apply for funding for programmes, which fulfil a public service role. Community broadcasters are also playing an increasingly important role in satisfying needs, which other forms of broadcasting do not. It is increasingly common for publicly funded broadcasters to be required to include within their overall broadcasting, a certain proportion of programmes from independent producers.

Despite the growing importance of these alternative models, and the new challenges described above, the vast majority of countries world-wide still rely heavily on a national publicly-funded broadcaster or broadcasters to satisfy the public's needs in this area. Support for such broadcasters remains strong where they have managed to maintain their independence from government and other influences and where they are able to produce quality programming which complements that provided by the private sector.

Broadcasting organisations, which meet these conditions are frequently referred to as "public service broadcasting organisations" and a set of attributes has come to be associated with them. The first section of this study provides a brief overview of those attributes. The second section looks at a number of international standards relevant to public service broadcasting organisations, particularly as derived from the human right to freedom of expression as elaborated by various courts and official bodies.

These sections are followed by a series of country sections analysing the public service broadcasting organisation(s) in the relevant country. Each country section is organised under five main headings, Introduction, Services Provided, Public Service Mandate, Governing Structure (covering Internal Governance and Regulatory Mechanisms) and Financing. Under the section on Services Provided, the study describes the main services, including programme channels, offered by national public service broadcasting organisations. The section on Public Service Mandate includes an outline of the special legal and administrative obligations placed on public service broadcasting organisations. The section on Governing Structure is divided into two sub-sections, describing first the governing structure of the broadcasters themselves and second any external bodies, which exercise power over them. Finally, a brief description of the main sources of funding for these public service broadcasting organisations is provided.

The country sections are followed by a section containing two tables comparing the various arrangements regarding public service broadcasting organisations in the six countries studied. This is followed by a section assessing the goals of public service broadcasting organisations, and the pros and cons of the different arrangements in the various countries.

FEATURES OF PUBLIC SERVICE BROADCASTING ORGANISATIONS
State-funded broadcasters exist in almost every country in the world. Only some of these, however, conform to the standards commonly associated with public service broadcasting. This section outlines the attributes, which have come to be associated with public service broadcasting organisations.

Public service broadcasting organisations are generally associated with a number of features, derived in large part from the guarantee of freedom of expression, as outlined below. In addition, these features flow from the fact that public funds are being spent on broadcasting which engages certain general principles relating to public spending. Eric Barendt notes six key features of public service broadcasting organisations:

  1. general geographical availability;
  2. concern for national identity and culture;
  3. independence from both the State and commercial interests;
  4. impartiality of programmes;
  5. range and variety of programmes; and
  6. substantial financing by a general charge on users.'

These are largely reiterated in a White Paper on the future of the BBC, produced by the UK government in 1994.3

The first feature is a direct consequence of the public nature of the service. It would not be appropriate to offer a public service to only part of the population, for example those living in cities, although different regions will not necessarily receive identical services. It is also a significant justification for public service broadcasting organisations since it serves to ensure that the public's right to know is satisfied in equal measure throughout the whole territory

The second feature has been, and indeed remains, closely associated with public service broadcasting organisations, being an explicit obligation in many countries. It reflects the role of these broadcasters in building a sense of national identity, belonging and participation. To this extent, it can be seen as essential to the larger project of promoting a national democratic and rights respecting culture. At the same time, this feature is perhaps more controversial, both because it represents a restriction on editorial freedom and because it might lead to chauvinism. However, it is no longer understood in the narrow sense of promoting the dominant culture and in many States includes the idea of promoting multiculturalism as an aspect of nationhood.

A key goal of public service broadcasting organisations is to provide quality broadcasting which meets the informational, entertainment and educational needs of the population while respecting and promoting diversity. Satisfaction of this goal is impossible if public broadcasters are expected to compete for funds in the same way as commercial broadcasters. Commercial dependency would inevitably lead to public broadcasters subjecting programme production and scheduling decisions to popularity tests rather than making such decisions in the public interest. Although many public service broadcasting organisations now operate on a blend of public and commercial funding, relying entirely on private funding would clearly undermine the ability of such broadcasters to promote pluralism and other goals noted above. As a result, independence from commercial interests has always been an important justification for public service broadcasting organisations.

In many countries, the greatest threat to quality public broadcasting comes from attempts by government to control the state-funded broadcaster to achieve its own ends. State-funded broadcasters have often been accused of being mouthpieces of government, to the detriment of the public interest and the right of citizens to receive a diverse range of information. It seems clear that it is inappropriate for a particular government or branch of the State apparatus to exercise influence over a public service broadcasting organisation, given that the latter is funded through public monies, and this is now well-established as a matter of international and comparative law (see below). It may be noted that there is a tension between these two types of independence as freedom from commercial pressures necessarily leads to dependence on public funding with the attendant risk of State interference.

Impartiality is closely related to independence. If it is inappropriate for the government to use public funds to promote its particular viewpoint, it is equally inappropriate, given its public mandate, for a public service broadcasting organisation to promote a certain position or support a particular political party.

The fifth feature of public service broadcasting organisations is that they should provide a variety of programmes, including shows of an educational and informative nature. In this public service broadcasting organisations may be contrasted with private broadcasters in a number of countries, which are increasingly oriented towards low-cost options such as films and game shows. The obligation of diversity in programming derives from the public's right to know and serves to ensure that the public has access to information about a wide variety of issues and concerns.

Barendt posits a general fund on users as the sixth feature of public service broadcasting organisations. As is clear from the following analysis, not all jurisdictions fund public service broadcasting organisations through a general charge on users or a television license fee. Instead, in many countries the national legislative body, or parliament, directly votes funds for these broadcasters. A license fee has the advantage of being more stable and also less susceptible of government interference, although public bodies ultimately set the rate of the license fee and where relevant apportion it among public broadcasters. At the same time, license fees may be difficult and/or costly to collect and may be difficult to introduce for political reasons, where they are not already in place. In addition, a general charge may lead to the public broadcaster being forced to compete for ratings, in order to justify the general charge, rather than concentrate on quality and diversity.

INTERNATIONAL STANDARDS

The Guarantee of Freedom of Expression
The Universal Declaration of Human Rights (UDHR) is generally considered to be the flagship statement of international human rights, binding on all States as a matter of customary international law. It guarantees the right to freedom of expression in the following terms:

Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.'

The International Covenant on Civil and Political Rights (ICCPR) is an international treaty, ratified by over 145 States, which imposes legally binding obligations on States Parties to respect a number of the human rights set out in the UDHR.5 Article 19 of the ICCPR guarantees the right to freedom of opinion and expression in terms very similar to those found at Article 19 of the UDHR. Guarantees of freedom of expression are also found in all three major regional human rights systems, at Article 9 of the African Charter on Human and Peoples' Rights,6 Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms' and Article 13 of the American Convention on Human Rights.'

Freedom of expression is among the most important of the rights guaranteed by the ICCPR and other international human rights treaties, in particular because of its fundamental role in underpinning democracy. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which stated, "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." The European Court of Human Rights has stated:

Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man ... it is applicable not only to 'information' or `ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.94

The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and public service broadcasting organisations. The Inter-American Court of Human Rights, for example, has stated: "It is the mass media that make the exercise of freedom of expression a reality." 10 The European Court of Human Rights has referred to "the pre-eminent role of the press in a State governed by the rule of law."" The media as a whole merit special protection under freedom of expression in part because of their role in making public "information and ideas on matters of public interest. Not only does [the press] have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog' ."12

It may be noted that the obligation to respect freedom of expression lies with States, not with the media per se. However, these obligations do apply to state-funded broadcasters. Because of their link to the State, these broadcasters are directly bound by international guarantees of human rights. In addition, state-funded broadcasters are in a special position to satisfy the public's right to know and to guarantee pluralism and access and it is therefore particularly important that they promote these rights.

Pluralism
Article 2 of the ICCPR places an obligation on States to "adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant." This means that States are required not only to refrain from interfering with rights, but that they must take positive steps to ensure that rights, including freedom of expression, are respected. In effect, governments are under an obligation to create an environment in which a diverse, independent media can flourish, thereby satisfying the public's right to know.

An important aspect of States' positive obligations to promote freedom of expression and of the media is the need to promote pluralism within, and, to ensure equal access of all to, the media. As the European Court of Human Rights stated: "[Imparting] information and ideas of general interest ... cannot be successfully accomplished unless it is grounded in the principle of pluralism."13 The Inter-American Court has held that freedom of expression requires that "the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media.'

One of the key rationales behind public service broadcasting organisations is that they make an important contribution to pluralism. Indeed, the German Federal Constitutional Court has held that variety is a constitutional obligation for public service broadcasting organisations. 15 For this reason, a number of international instruments stress the importance of public service broadcasting organisations and their contribution to promoting diversity and pluralism. Although not all of these instruments are formally binding as a matter of law, they do provide valuable insight into the implications of freedom of expression and democracy for public service broadcasting.

For example, a Resolution of the Council and of the Representatives of the Governments of the Member States, passed by the European Union, recognises the important role played by public
service broadcasting organisations in ensuring a flow of information from a variety of sources to the public. The European Union includes 15 member States broadly committed to market integration and monetary union. The Protocol notes that public service broadcasters are of direct relevance to democracy, social and cultural needs, and the need to preserve media pluralism. As a result, funding by States to such broadcasters is exempted from the general provisions of the Treaty of Amsterdam 16 For the same reasons, the 1992 Declaration of AlmaAta, adopted under the auspices of UNESCO, calls on States to encourage the development of public service broadcasters."

Resolution No. 1: Future of Public Service Broadcasting of the 4th Council of Europe Ministerial Conference on Mass Media Policy, Prague 1994, promotes very similar principles. This resolution notes the importance of public service broadcasting to human rights and democracy generally and the role of public service broadcasting organisations in providing a forum for wide-ranging public debate, innovative programming not driven by market forces and promotion of local production. As a result of these vital roles, the resolution recommends that member States guarantee at least one comprehensive public service broadcasting organisation, accessible to all.

Independence and Funding
The State's obligation to promote pluralism and the free flow of information and ideas to the public, including through the media, does not permit it to interfere with broadcasters' freedom of expression. Although licensing of broadcasters is necessary to ensure the orderly use of the airwaves, licensing procedures are governed by the guarantee of freedom of expression and they may not, as a result, be used as a vehicle for government control over broadcasters, including state-funded broadcasters. This follows from a case before the European Court of Human Rights, which decided that any restriction on freedom of expression through licensing was subject to the strict test for such restrictions established under international law.18 In particular, any restrictions must be shown to serve one of a small number of legitimate interests and, in addition, be necessary to protect that interest. Similarly, in the preamble to the European Convention on Transfrontier Television, States: "[Reaffirm] their commitment to the principles of the free flow of information and ideas and the independence of broadcasters."19

An important implication of these guarantees is that bodies, which exercise regulatory or other powers over broadcasters, such as broadcast authorities or boards of state-funded broadcasters, must be independent. This principle has been explicitly endorsed in a number of international instruments.

Perhaps the most important of these is Recommendation No. R(96)10 on the Guarantee of the Independence of Public Service Broadcasting, passed by the Committee of Ministers of the Council of Europe, a body currently comprised of 41 States, committed to human rights and the social advancement of its members. The very name of this Recommendation clearly illustrates the importance to be attached to the independence of public service broadcasting organisations. The Recommendation notes that the powers of supervisory or governing bodies should be clearly set out in the legislation and these bodies should not have the right to interfere with programming matters. Governing bodies should be established in a manner which minimises the risk of interference in their operations, for example through an open appointments process designed to promote pluralism, guarantees against dismissal and rules on conflict of interest.20

Several Declarations adopted under the auspices of UNESCO also note the importance of independent public service broadcasting organisations. The 1996 Declaration of Sana' a calls on the international community to provide assistance to state-funded broadcasters only where they are independent and calls on individual States to guarantee such independence. The 1997 Declaration of Sofia notes the need for state-owned broadcasters to be transformed into proper public service broadcasting organisations with guaranteed editorial independence and independent supervisory bodies. 21

Resolution No. 1: Future of Public Service Broadcasting of the 4th Council of Europe Ministerial Conference on Mass Media Policy, noted above, reiterates these principles, including the need for independent governing bodies, and for editorial independence and adequate funding. These recommendations, particularly the requirement of effective independence from government -including financial independence - are reiterated in a number of resolutions and recommendations of the Parliamentary Assembly and other Ministerial Conferences on mass media policy of the Council of Europe. 22

ARTICLE 19, Global Campaign for Free Expression, an international human rights NGO focusing on freedom of expression, has adopted a set of recommendations drawn from international law and practice relating to broadcasting, entitled, Measures Necessary to Protect and Promote Broadcasting Freedom." Recommendation 1 reflects the principles noted above, stating: "The independence of the governing body of the public broadcaster should be guaranteed by law."

These same principles are also reflected in a number of cases decided by national courts. For example, a case decided by the Supreme Court of Sri Lanka held that a draft-broadcasting bill was incompatible with the constitutional guarantee of freedom of expression. Under the draft bill, the Minister had substantial power over appointments to the Board of Directors of the regulatory authority. The Court noted: "[T]he authority lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought"24

Similarly, the Supreme Court of Ghana noted: "[T]he state-owned media are national assets: they belong to the entire community, not to the abstraction known as the state; nor to the government in office, or to its party. If such national assets were to become the mouth-piece of any one or combination of the parties vying for power, democracy would be no more than a sham."" As regards the governing body, the National Media Commission, the Ghanaian Supreme Court stated that it was their role, "to breathe the air of independence into the state media to ensure that they are insulated from Governmental control."26

Many of the standards set out above reflect both the idea of independence of governing bodies and the related but slightly different idea that the editorial independence of public service broadcasting organisations should be guaranteed, both in law and in practice. Recommendation 2 of the ARTICLE 19 Measures states: "The principle of editorial independence should be guaranteed by law." In practice, editorial independence is often promoted by ensuring a clear separation between the governing body, with overall responsibility for the broadcasting organisation, and managers and editors, who have responsibility for day-to-day and editorial decision-making The governing body may set directions and policy but should not, except perhaps in very extreme situations, interfere with a particular programming decision.

This approach is reflected in Article 1 of Recommendation No. R(96)10 of the Council of Europe, which notes that the legal framework governing public service broadcasters should guarantee editorial independence and institutional autonomy as regards programme schedules, programmes, news and a number of other matters. The Recommendation goes on to state that management should be solely responsible for day-to-day operations and should be arranged in such a way as to minimise the risk of political interference, for example by restricting its lines of accountability to the supervisory body and the courts 27 In a related vein, Articles 20-22 of the same Recommendation note that news programmes should present the facts fairly and encourage the free formation of opinions. Public service broadcasting organisations should be compelled to broadcast messages only in exceptional circumstances.

Similarly, true independence is only possible if funding is secure from arbitrary government control and many of the international standards noted above reflect this idea. In addition, public service broadcasting organisations can only fulfil their mandates if they are guaranteed sufficient funds for that task. Articles 17-19 of Recommendation No. R(96)10 of the Council of Europe note that funding for public service broadcasting organisations should be appropriate to their tasks, secure and transparent. Funding arrangements should not render the broadcasters susceptible to interference, for example with editorial independence or institutional autonomy.

ARTICLE 19's Recommendation 3 deals with funding, stating: "Public service broadcasting should be adequately funded by a means that protects the broadcaster from arbitrary interference with its budgets." Similarly, the Italian Constitutional Court has held that the constitutional guarantee of freedom of expression obliges the government to provide sufficient resources to the public broadcaster to enable it to discharge its functions. 28


REFERENCE

  1.  I would like to extend my thanks to Charlotte Kreder and Nick Devlin, interns at ARTICLE 19 who assisted with the research for this study.
  2. Broadcasting Law: A Comparative Survey (1995, Oxford, Clarendon Press), p. 52.
  3. The Future of the BBC: Serving the nation, Competing world-wide, Cmnd. 2621, pp. 6-7.

  4. Article 19, UDHR, adopted by the UN General Assembly on 10 December 1948, Resolution 217A(III).
  5. UN General Assembly Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976.
  6. Adopted 26 June 1981, in force 21 October 1986.
  7. Adopted 4 November 1950, in force 3 September 1953.
  8. Adopted 22 November 1969, in force 18 July 1978.
  9. Handyside v. United Kingdom, 7 December 1976, 1 EHRR 737, para. 49. Statements of this nature abound in the jurisprudence of courts and other judicial bodies around the world
  10. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion 0C-5/85 of 13 November 1985, Series A, No. 5, para. 34.
  11. Thorgeir Thorgeirson v. Iceland, 25 June 1992, 14 EHRR 843, para. 63.
  12. European Court of Human Rights, Thorgeirson, note 11, para. 63.
  13. Informationsverein Lentia and Others V. Austria, 24 November 1993, 17 EHRR 93, para. 38.
  14. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, note 10, para. 34.
  15. See Fourth Television case, 87 BverfGE 181 (1992). In Barendt, op cit., p. 58.
  16. Official Journal C 030, 5 February 1999, clause 1.
  17. Clause 5.
  18. 18 Groppera Radio AG and Ors v. Switzerland, 28 March 1990, 12 EHRR 321, para. 61.
    19 5 May 1989, European Treaty Series No. 132.
  19. "Articles 9-13.
  20. "Clause 7.
  21. For the former, see Res. 428(1970), Rec. 748(1975) and Rec. 1147(1991) and for the latter see Res. No. 2 (V Conference, 1986) and Res. No. 2 (5th Conference, 1997).
  22. ARTICLE 19, Who Rules the Airwaves? Broadcasting in Africa (London: Article 19, 1995), pp. 133-140.
  23. Athokorale and Ors. v. Attorney-General, 5 May 1997, Supreme Court, S.D. No. 1/97-15/97.
  24. New Patriotic Party v. Ghana Broadcasting Corp., 30 November 1993, Writ No. 1/93, p. 17.26
  25. Ibid., p. 13.
  26. Articles 4-8.
  27. Decision 826/1998 [1998] Guir. cost. 3893.