Media Regulation: Effects and Deficiencies

12 март 2012, Автор: Georgi Lozanov
Публикувана в 2011 Media Monitoring Report

Media regulation (according to Bulgaria’s Law on Radio and Television) is a paradoxical process because it has requirements regarding content, yet at the same time, it must protect content from interference, including from its own interference. Generally speaking, media regulation is in the role of the girl from the fairytale who was told by the king to appear before him neither naked nor dressed. Such are the expectations of society towards it, especially of Bulgarian society which is dissatisfied with its own media ‘by default’ and wants the state, as represented by the authority regulating content (the Council for Electronic Media, CEM), to end the bad practices in them as soon as possible but, at the same time, suspects that the regulatory authority will thus impose censorship on them. Citizens complain about the media but only until someone heeds their complaints and reacts – then they begin to complain about him or her, too.

The way out, insofar as there is a way out, is of course in ‘weak regulation’ that circles around content and protects it only with framework principles, while the content within the framework depends only on editorial independence. In this sense, freedom of speech is much more a choice of the individual media outlet than a matter of regulation.

Fair regulation places, according to the requirements of the law, restrictions but in a way that ensures that they will gradually be interiorized in media behaviour, becoming intrinsic to the latter and being observed not because of the threat of punishment but as a professional necessity; that is to say, the statutory norms must ‘transcend themselves’ and include themselves into the complex value-repertoire called freedom of speech.

In this respect, in 2011 there were two relatively new (preceded by legal amendments) trends which regulation still needs to ‘nurse’ until they find their good media practices and professional motivations. The most frequent violations of the Law on Radio and Television established by the monitoring conducted by the CEM were precisely in their fields.

The first trend is the increased protection of children in radio and above all in television programmes – at the level of content and at the level of presence (in the programmes). This trend responded not only to the general European attitudes but also to the growing local public sentiments generated by a scandalous season of Big Brother, Big Brother Family, with the participation of children. The authority regulating content was called upon to stop the show or at least to remove the children from the show. But it had no such powers and this was recognized as an inadmissible statutory deficiency. After a series of discussions between the CEM, MPs and representatives of the State Agency for Child Protection (SACP), parliament adopted legal amendments (revising the Law on Radio and Television) which, in their turn, provide for the elaboration and adoption of ‘risk assessment criteria’ and the signing of an agreement on their observance by the CEM, the SACP, and media service providers. Thus, since 2011 the possibilities of regulation and co-regulation in the electronic media to protect children have been expanded. They statutorily reflect both the persistence of the patriarchal model in Bulgaria, in whose value-hierarchy children are above adults and are seen as a disadvantaged group, and the internal balances of a new liberalism in the media (the product also of the deregulated space of the internet): more regulation for children as opposed to more deregulation for adults.

The second trend is related to the statutory liberalization of the restrictions (mostly in terms of place) on advertising on television and the admission of product placement which allows commercial discourse to syncretically converge with its other forms – fiction, journalism, and so on. This is related to the interests of this market, especially in years of economic crisis, but also to greater trust in the viewer’s communicative competence as a result of the possibilities and stereotypes of the new media.

In this case, however, liberalization implies an expectation of greater discipline in spotting and avoiding surreptitious advertising, which previously took advantage of the ‘old-fashioned’ regulation on this issue. This was the direction – including in establishing a clear distinction between advertising and sponsor credits – of the regulatory authority’s efforts in 2011, both in its supervisory activity and in its dialogue with media service providers.

Although in 2011 they were re-actualized in a tense way, seeking new behavioural models, those two trends are long-term; they began in the past and will most likely continue in the future. What is telling of the relations in the Bulgarian media sector here and now and provides a ‘snapshot’ of the state of media regulation in Bulgaria, were the elections (for president and for local government), and more specifically, the election campaign.

Generally speaking, the ‘snapshot’ is sad and attests to an inevitable helplessness. That is because in Bulgaria it is an old political practice for parliament to pass, precisely during election campaigns, a law (Electoral Code) that takes away media regulation from the competent (again by law) body and entrusts it to the Central Electoral Commission as part of its various powers (the CEM becomes, at best, something like an assistant of the Commission). Thus, in the month before the elections, which is crucially important in terms of public communication, media regulation ‘by default’ loses specialization and its traditional role is suspended. In fact, the public-service media (Bulgarian National Television and Bulgarian National Radio) are placed in a similar situation as regards their editorial independence (their right to decide), having been turned into something like campaign ‘broadcast channels’.

The reason for this is that ever since the beginning of the transition, whenever the time for direct reproduction of power draws close Bulgarian politicians of all stripes begin to be more afraid of journalists and the media than of each other, despite their partisan hostilities. And they prefer to come to an agreement between themselves in a statutory text that is repeated (with minor edits) from election to election, in which they themselves apportion airtime and determine the forms of ‘political canvassing’ (politicheska agitatsia, or, literally ‘political agitation’ in Bulgarian). The very fact that the term agitatsia continues to be used shows that the election campaign is seen as one-way communication where the function of the media as mediator, as ‘the obligatory third party’ between politicians and the public, is weakened.

The result is that almost the entire 2011 election campaign in the media was paid for by the political parties, a practice which is essentially similar to vote-buying – the only difference being that it is legal and probably less effective. This has led to the following closed circle: taxpayers finance, through the national budget, political parties which in their turn finance the media, in exchange for which they dictate to the media the rules by which the latter must cover them, the bottom line being that taxpayers, now in their capacity as voters, influence and predetermine their own vote with their own money (here and there along the way, sponsors also come into play).

It is true that when the prices are equal, payment is to some extent a tool for equality (although it is a rather crude tool) insofar as political parties generate their revenues according to the already expressed trust in them. The downside, however, is obvious: this reduces the chances for new players to appear, but then, on the upside, it limits media access for ghost political formations which have no electoral support and which used to appear in public only during elections, wasting public resources (as was the case in the first years of the transition, when they appeared on Bulgarian National Radio and Bulgarian National Television free of charge). Besides wasting the time of listeners and viewers, they turned the whole electoral process into a grotesque parody, depriving it of seriousness and accountability. Back then ‘making them pay’ looked like a solution, unlike today when it is an anachronism – both from the point of view of our own history and in principle.

Of course, there are paid forms in election campaigns everywhere, but they must be clearly identified as such, and more importantly, they must be in a reasonable proportion to pay-free forms, where journalism can do its job according to its own professional standards and in defence of the right of voters to be informed objectively and impartially so that they can decide on their own how to vote.

In practice, this requires a revision of the law which:

1. Excludes the authoritarian-sounding term agitatsia which places the communicative interests of candidates above those of voters and refuses to make a distinction between the different programme forms in election campaigns (everything is ‘agitatsia’).

2. Returns to the types of discourse valid for programme content in general – the discourse of advertising and journalism, in this particular case, of political advertising and political journalism.

3. Introduces and defines the term ‘political advertising’ with the relevant specific restrictions (in terms of time and place) similar to those that are valid for commercial advertising.

4. Guarantees the role of independent political journalism in election campaigns, especially in the public-service media.

5. Keeps the regulatory authority’s powers to supervise the media during election campaigns, and even extends and specializes those powers.

6. Excludes from the general electoral law, which is adopted before all political elections, the requirements regarding the behaviour of the media and their regulation during election campaigns, and formulates (consistently) such requirements in the special media law, that is, ensures that the media campaign is not regulated on a campaign basis.

As a result also of the dialogue of OSCE observers of the 2011 elections in Bulgaria with CEM representatives, the recommendations concerning the media in the final report of the OSCE/ODIHR Limited Election Observation Mission are in the same vein:

  • The legal framework should include free airtime provisions on public broadcasters for contestants running in an election.
  • Consideration could be given to regulating the coverage of the election campaign in the broadcast media in detail in the Law on Radio and Television, with basic provisions remaining in the Electoral Code. The implementing body for the Law on Radio and Television, the Council for Electronic Media (CEM), could be tasked with overseeing the provisions, based on quantitative and qualitative media monitoring, and with power to provide remedies during the campaign period in a timely manner.
  • In order to disclose potential political and business interests and undue concentration in media ownership, a public register of broadcast media owners could be introduced. (OSCE/ODIHR Limited Election Observation Mission. Final Report)

From a certain point of view, the last recommendation may appear to have been fulfilled insofar as there is such a register at the level of legal entities. The problem is that legal entities can be easily used to hide invisible natural persons and relevant economic and political interests, which presupposes elaborating qualitatively new tools for guaranteeing transparency in the media. At that not (as one can see from the recommendation of the OSCE observers as well as from the long local debate on the subject) ‘for information purposes only’, but above all as a basis for specific thresholds of concentration in the media sector, that is, protection of media pluralism in the origins and movement of capital on the media market.

If this is not done, as I have ventured to warn for years, Bulgaria will continue its slide in the World Press Freedom Index (according to Reporters Without Borders, in 2011 Bulgaria dropped from 71st to 80th place). That is because freedom of speech is now restricted by the very structure of the public sphere, regardless of the personal will of its speakers.

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