[e-privacy] Monopolisation of the electronic media and possible abuse of power in Italy

[Avv.Barbara Gualtieri]

Consiglio d'Europa:  richiamo all'Italia

Assemblea parlamentare

Risoluzione 24 giugno 2004, n. 1387 (2004)

Monopolisation of the electronic media
and possible abuse of power in Italy


1. Italy is a founding member of the Council of Europe and strongly supports
the ideals for which it stands. The Assembly is therefore concerned by the
concentration of political, commercial and media power in the hands of one
person, Prime Minister Silvio Berlusconi.

2. The Parliamentary Assembly cannot accept that this anomaly be minimised
on the grounds that it only poses a potential problem. A democracy is judged
not only by its day-to-day operations but by the principles the country
upholds to its own citizens and internationally. The Assembly recalls that,
in accordance with Article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms and the case-law of the European Court of
Human Rights, states are under a duty to protect and, when necessary, take
positive measures to safeguard and promote media pluralism.

3. The Assembly deplores the fact that several consecutive Italian
governments since 1994 have failed to resolve the problem of conflict of
interest and that appropriate legislation has not yet been adopted by the
present Parliament. It disagrees that the leading principle of the Frattini
Bill currently under consideration - that only managers, not owners, should
be held responsible - provides a genuine and comprehensive solution of the
conflict of interest concerning Mr Berlusconi.

4. Through Mediaset, Italy's main commercial communications and broadcasting
group and one of the largest in the world, Mr Berlusconi owns about half of
the nation-wide broadcasting in the country. His role as Head of Government
puts him also in a position to influence indirectly the public broadcasting
organisation RAI which is Mediaset's main competitor. As Mediaset and RAI
command together about 90% of the television audience and over three
quarters of resources in the sector, Mr Berlusconi therefore has an
unprecedented control over the most powerful medium in Italy.

5. This "duopoly" in the television market is in itself an anomaly from an
anti-trust perspective. The status quo has been preserved even though
provisions affecting media pluralism in the legislation have twice been
declared anticonstitutional and the competent authorities have established
the dominant positions of RAI and the three TV commercial channels of
Mediaset. An illustration of this situation has been a recent decree of the
Prime Minister, approved by Parliament, which allowed the third channel of
RAI and Mediaset's Retequattro to continue their operation in violation of
the existing anti-trust limits until the adoption of new legislation.
Competition in the media sector is further distorted by the fact that the
advertising company of Mediaset, Publitalia '80, has a dominant position in
TV advertising. The Assembly deplores the continued exclusion of a potential
national broadcaster, Europa 7, winner of a 1999 government tender to
broadcast on frequencies occupied by Mediaset's Retequattro.

6. The Assembly believes that the newly adopted law on the reform of the
broadcasting sector ("Gasparri Law") may not effectively guarantee greater
pluralism simply through the multiplication of TV channels in the course of
digitalisation. At the same time it manifestly allows Mediaset to expand
even further as it leaves the possibility of market players to have monopoly
in a given sector without ever reaching the anti-trust limit in the overall
Integrated System of Communications (SIC). The Assembly notes that because
of these concerns, the previous version of the law was opposed by the
President of the Republic.

7. The Assembly is particularly concerned by the situation of RAI, which is
contrary to the principles of independence laid down in Assembly
Recommendation 1641 (2004) on public service broadcasting. RAI has always
been a mirror of the political system of the country and the internal
pluralism has moved from the proportionate representation of the dominant
political ideologies in the past to the "winner takes all" reflection of the
present political set up. The Assembly notes with concern the resignations
of the Chairperson of RAI and of one of the most popular journalists in
protest over the lack of balanced political representation in the Council of
Administration and over political influence on RAI's programming.

8. While the printed media in Italy has traditionally provided greater
pluralism and political balance than the broadcasting sector, most Italians
receive their news through the medium of television. The high cost of
newspaper advertising relative to TV advertising is having a damaging effect
on the printed media in Italy. However, the Assembly wishes to record its
approval of Government measures to help small- and medium-sized newspapers
and other measures to boost newspaper readership.

9. The Assembly is extremely concerned that the negative image that Italy is
portraying internationally because of the conflict of interest concerning Mr
Berlusconi could hamper the efforts of the Council of Europe in promoting
independent and unbiased media in the new democracies. It considers that
Italy, as one of the strongest contributors to the functioning of the
Organisation, has a particular responsibility in this respect.

10. The Assembly points out that several international bodies, such as the
OSCE representative on Freedom of the Media and, most recently, the European
Parliament, have expressed concerns similar to its own. It welcomes the
measures for safeguarding media pluralism proposed in the Resolution of the
European Parliament of 22 April 2004 on "risks of violation, in the EU and
especially in Italy, of freedom of expression and information (Article 11(2)
of the Charter of Fundamental Rights)", namely that the protection of media
diversity should become a priority of EU competition law.

11. The Assembly therefore calls on the Italian Parliament to:

i. pass as a matter of urgency a law resolving the conflict of interest
between ownership and control of companies and discharge of public office
and incorporating penalties for cases where there is a conflict of interest
with the discharge of public office at the highest level;

ii. ensure that legislation and other regulatory measures put an end to the
long-standing practice of political interference in the media, taking into
account in particular the Committee of Ministers' Declaration on freedom of
political debate in the media, adopted on 12 February 2004;

iii. amend the Gasparri law in line with the principles set out in Committee
of Ministers Recommendation No. R (99) 1 on measures to promote media
pluralism, in particular by:

a. avoiding the emergence of dominant positions in the relevant markets
within the SIC;

b. including specific measures to bring an end to the current RAI-Mediaset
duopoly;

c. including specific measure to ensure that digitalisation will guarantee
pluralism of content.

12. The Assembly calls on the Italian government to:

i. initiate measures to bring the functioning of RAI in line with Assembly
Recommendation 1641 (2004) on public service broadcasting, with the
declaration of the 4th European Ministerial Conference on Mass Media Policy
in Prague and with Committee of Ministers' Recommendations No. R(96) 10 on
the guarantee of the independence of public service broadcasting and
Rec(2003)9 on measures to promote the democratic and social contribution of
digital broadcasting;

ii. give a positive international example by proposing and supporting
initiatives within the Council of Europe and the European Union promoting
greater media pluralism at European level.

13. The Assembly asks the Venice Commission to provide an opinion on the
compatibility of the Gasparri Law and the Frattini Bill with the standards
of the Council of Europe in the field of freedom of expression and media
pluralism, especially in the light of the case-law of the European Court of
Human Rights.