Independent media regulators: condition sine qua non for freedom of expression?

This chapter will explore the impact of the European Convention on Human Rights and Fundamental Freedoms (ECHR) on the characteristics and the functioning of independent regulatory bodies in the audiovisual media sector in Europe. Does states’ duty of care under Article 10 ECHR, which protects freedom of expression, entail an obligation to establish independent media regulators (IMRs)? Is independence of regulatory bodies a conditio sine qua non for freedom of expression and for the media to fulfil their important role in democratic societies? What standards have been put forward with regard to institutional and procedural requirements in relation to regulatory oversight of the media sector? The chapter will first discuss the so-called ‘soft law’-instruments developed by the Council of Europe on the independence and functions of regulatory authorities for the broadcasting sector: the Recommendation Rec(2000)23 of 20 December 2000 (Council of Europe 2000) and the Declaration of 26 March 2008 (Council of Europe 2008). Although from a legal perspective both documents, adopted by the Committee of Ministers, are not binding on the member states, they do have moral authority and are politically persuasive. They express principles and guidelines for a common policy in the 47 member states of the Council of Europe which the Committee of Ministers has agreed on and is actively promoting. The importance of the Declarations, Recommendations and Resolutions of the Council of Europe is also reflected in the jurisprudence of the European Court of Human Rights (ECtHR) applying Article 10 ECHR. The principles and guidelines on IMRs elaborated in Recommendation (2000)23 and Declaration 2008 are explicitly reflected in reports and opinions of the Commissioner for Human Rights of the Council of Europe, requesting or urging member states to review their legislation or transform their practices accordingly. The second part of the chapter will clarify how the ECHR is applied in cases where IMR are involved in, or interfered with, the right to freedom of expression of audiovisual media. Therefore the relevant jurisprudence of the ECtHR will be analysed: on the one hand, Article 10 ECHR guaranteeing the right to freedom of expression and information, and, on the other hand, Articles 6 and 13 ECHR safeguarding two procedural fundamental rights, i.e. the right to a fair trial and the right to an effective remedy. The case law of the Strasbourg Court has clarified that the right to freedom of expression and information or the right to a fair trial can be violated if structural or procedural requirements are not sufficiently guaranteed or applied by judicial or administrative authorities when they make decisions that interfere with the rights of (audiovisual) media. A fourth article also deserves attention in this context, namely Article 14 ECHR which prescribes that the enjoyment of the Convention’s rights shall be secured without discrimination on any ground