Publicness revisited – a dialogue for a future media regulatory framework

Does it even make sense to talk about the potential directions of progress in terms of media regulations/policy when the decision-maker does not evince even the slightest hint of openness to engage in joint thinking about these changes; where the absence of chances for real change and the potential risks associated with taking a stand preclude from the very start a significant portion of stakeholders from participation? It does, at least insofar as we owe it to ourselves to show that it is possible to this differently. It is possible to draft a regulatory scheme by way of public debates and open discussions about professional documents on the subject matter. And it is possible to create solutions rooted in the rule of law, without ignoring the particularities of the Hungarian situation. That is the process we used to draw up the proposed regulatory scheme.

What kind of public sphere do we want?

The starting point of our regulatory scheme is that the objective of media regulations and the entire arsenal of media policies ought to be the creation of a media system framework that promotes public discourse. Our proposal suggests that public discourse means more than the constitutional requirement of a plural media selection. For one, it implies a media selection and media self-understanding that provides opportunities for debating various viewpoints, and which itself reacts critically and reflectively to messages emanating from the sphere of politics and business; which seeks to understand phenomena and render them intelligible to the public; and which overall assumes a proactive and stimulating role in overcoming the prevailing extreme levels of social and political division. At the same time, the notion of social discourse also has implications in terms of expectations of the audience. In order to match these expectations, the audience must be capable of relating openly, but at the same time also critically, to the media’s messages. We expect to realise this long-term objective through media education and the promotion of consumption media consumption.

What ought to be the limits of free speech and what content-related rules should apply to the media?

The proposal suggests that beyond applicable general civil and criminal law restrictions, specialised media law regulations or media law sanctions should only be proffered in instances when European community law unequivocally so demands. With regard to media law provisions, the question is not whether the print and online press have to be regulated – we are convinced that that is unnecessary – but today the question is obviously whether we need such provisions to regulate television and radio content. For all types of media, self-regulation is an adequate instrument for supplanting specialised media law provisions. Since regulations tend to react to fundamental social interests and problems, however, we find a state supervisory mechanism acceptable as long as its objective is not to apply sanctions but to monitor the media presence of those social phenomena that the regulations seek to address, to promote their public debate and keep them on the public agenda. Our position is that an ombudsman type of institution would be most suitable for such purposes. Beyond its application to public media, the requirement of balanced coverage may also be justified in the case of commercial media services that reach audiences who are less conscious about their media consumption; national general interest media fall into this category. A specific definition of balanced coverage must be arrived at, and its application must be realised, with the inclusion of the affected media providers in the framework of self-regulation schemes.

Is it possible to create a professionally independent media authority?

Our fundamental attitude towards the future of the media authority was its full abolition, primarily – though not exclusively – based on the appalling experiences gathered in the domestic context. In drafting our detailed proposal, however, we have concluded that this cannot be fully realised. It is possible, however, to create an institutional arrangement that – in contrast to the current media authority – is decentralised and works with a narrowly circumscribed margin of appreciation when taking official action. A significant portion of the functions currently discharged by the media authority could be transferred to other authorities, and in certain cases to a public media ombudsman who does not exercise public authority or to a self-regulation organisation. Decisions concerning the diversity of the media system, primarily issues involving market entry and market expansion, will continue to be made by an official body, whose composition must reflect the diversity of our society. Instead of a permanent body, these functions could also be carried out by an organisation similar to the election committee.

What elements must a media regulation scheme that is sensitive to the needs of the market and keen to reduce market distortions be built on?

In its ideas concerning the regulation of the media market, the draft proposal seeks to delineate the authorities’ margin of appreciation as narrowly as possible, as well as to create the most consistent and predictable regulatory framework conceivable. We suggest that radio frequency tenders be conducted in a procedure that is more rigid than the currently used system and provides both, the authority and market players, with less flexibility, but is at the same time also simpler and more consistent and predictable than the current procedural scheme. Frequencies should strictly be awarded pursuant to a long-term frequency management plan that is based exclusively on objective and measurable assessment criteria and provides very little leeway in terms of diverging from the conditions laid down in the tender procedure. The proposal would retain transmission obligations incumbent on broadcasters only in the case of specifically designated public media services and local community services. The document suggests to abolish the involvement of the media authority in tender procedures that result in decisions that are binding for the competition authority. Restrictions on media concentration would revert back to limitations on the number of concessions – though certain elements of the effective regulations would be retained.

Is there any chance of rebuilding public service media?

The draft proposal wishes to regulate public service media through a multi-tiered system in which the detailed definition of responsibilities and the associated budget planning process result from a transparent and professional decision-making process that takes place outside the public media organisations. The structure of public service content; the ratio of individual types of contents disseminated by the public media in the discharge of their public mandate; the number of platforms and channels needed to realise public service content provision; and the funds necessary for realising public service content provision must be determined in the framework of the public mandate. The public service institution structure presented in the draft proposal does not diverge significantly from previous Hungarian solutions and typical European models. No matter how complex an institutional structure may be, it cannot provide guarantees against one-sided partisan political influence. Thus ultimately the best safeguard against external influence is the commitment to public service of those working in public media, which we believe could be promoted by developing internal professional control mechanisms, both of the formal and informal kind.

On the whole, this regulatory proposal sees the state’s most vital function in disclosing and presenting social phenomena. It regards reducing the risk of arbitrary applications of the law as a pre-eminent objective; takes account of the long-term impact of media market distortions; does not give up on the institution of public media; and in shaping the media system it relies on media education and a renewed self-regulation framework. Ultimately, it imagines the future of the media system as a system that is once again subject to the rule of law and is capable of promoting social discourse.

Over the past year research projects carried out by Mertek Media Monitor have disclosed a considerable amount of information about the distortions of the public sphere, the destruction of the media market and journalists’ continuously narrowing professional latitude in the performance of their work. The results of these projects have served as a background for our efforts to rethink the framework of media regulations and media policies. Overall, seven draft proposals concerning a new regulatory scheme have been drawn up, five of which (the documents on the media authority, the regulation of the media market, self-regulation, media education, public service) were created in co-operation with the Független Médiaközpont (Center of Independent Journalism) and the EEA/Norway NGO Fund, as well as with the support of Ökotárs (Hungarian Environmental Partnership Foundation) and its partners. The operation of Mertek Media Monitor is supported by Open Society Foundations. We made the draft papers available online and gave the members of the public the possibility to submit comments. This opportunity was complemented by a public discussion of each draft proposal. Finally, we integrated the opinions we received into the original draft documents.

Publicness revisited