Findings: Media Authority independence

In response to the criticism of the Media Authority's independence, the Hungarian Government states that media authorities with a "much smaller degree of independence from the government are not uncommon across Europe,"37 and cites examples from the following countries: Austria, Belgium, Denmark, Ireland, Italy, Netherlands, Sweden, Switzerland and the UK.38

According to the expert analyses, the Hungarian Government's assertion that media authorities with less independence from the government than Hungary's Media Authority is not substantiated by the examples provided. The Government accurately cites examples from nine European and EU-member states in which the government is involved in appointing some or all members of the respective media regulatory bodies. However, in all nine cases, the expert assessments indicate that the Hungarian Government's examples inaccurately cite or omit key elements of the appointment and regulatory systems that influence how these appointments are made and which serve as "checks" against potential governmental influence. In addition, the expert assessments show that Hungarian Government's examples do not provide proportionate comparisons to Hungary's Media Authority, in terms of these bodies' regulatory scopes and positions within the respective country's media regulation landscape.

For instance, in all nine examples:
• the media authority referenced is responsible for regulating broadcasting and audiovisual media but does not exercise any content-related authority over print and online press;
• the media regulatory body cited is not the sole—or in some cases even the most powerful—media authority in that country.

The examples cited by the Hungarian Government instead highlight a single factor—the system of governmental and/or ministerial appointments—as a sole indicator that the cited regulatory bodies lack independence from the government. However the expert assessments indicate that the Government's examples exclude a range of additional factors, both formal and de facto, that provide a more complete description of the level of regulatory independence with which these bodies operate in practice. Formal factors of independence include: legal provisions establishing the regulatory body's tasks, scope and powers; method of nominations and appointments; membership term lengths; autonomy of decision-makers; professional criteria for membership; financial autonomy; transparency and accountability mechanisms.39 De facto independence is defined as: the relationship with other decisions makers which could influence the behaviour of the body's members; the autonomy of members in carrying out regulatory actions; and the general level of protection from political interference.40

Hence, in three of the nine examples (Austria, Italy, UK), the Government correctly cites that the members or chairperson of these media authorities are appointed by the government and/or ministries. However in all three cases, the expert reports indicate that the Hungarian Government's examples exclude key elements of the appointment processes and/or of the regulatory scope and powers of the media authority referenced. For example, in the Austrian example, the Government accurately states that the members of the Austrian Communications Authority (KommAustria) are appointed by the head of state, however the statement omits that all appointments are also preceded by a public tender and that KommAustria is not the sole or most powerful regulatory body in Austria. The Federal Communications Board (BKS), a majority of whose members are nominated by judicial authorities, oversees all of KommAustria's decisions and is the highest authority for audiovisual media in Austria. In the Italian example, the Hungarian Government accurately describes the appointment process for the chairperson of Italy's Communication Regulatory Authority (AGCOM) but omits to mention that the remaining members of the AGCOM Board are elected by Parliament. In addition, the Government accurately states that the members of the UK's Ofcom are appointed by the governmental ministries, but the example does not mention that these appointments are made following an open hearing which are designed to serve as a "check" against direct governmental influence. As the expert notes, the Ofcom Board, to which the Hungarian Government's example refers, has no power to directly sanction media but rather this is managed by the Content Board, a separate unit within Ofcom.

In six of the nine examples, the experts report that Hungarian Government cites an incorrect or former regulatory body and/or an inaccurate or outdated appointment procedure or law. When assessing the current and/or correct regulatory bodies and appointment procedures, these experts also conclude that the Government's example inaccurately describes the level of governmental influence over these bodies by excluding one or more formal or informal elements of the respective appointment processes. Examples of these inaccuracies include:

• Belgium: The Hungarian Government's example mixes the appointment procedures for two different bodies within the CSA, and omits the role of the French Community Parliament in electing some of these members;
• Denmark:The Hungarian Government's example refers to the "Medie- og tilskudssekretariatet" (MTS) which has not operated under that name since 2003. The media regulator in Denmark is the Radio and Television Board (RTB); members are appointed by the Minister of Culture and (one) by a civic group, however according to the expert membership criteria have served as an effective check against governmental influence over this body.
• Ireland: The Hungarian Government's example refers to the Broadcasting Commission of Ireland, which was replaced by the Broadcasting Authority of Ireland (BAI) in 2009, and omits to mention the role of Parliament in appointing four of the nine members of the BAI.
• Netherlands: The Hungarian Government's example is based on an outdated provision in the Media Act, which was amended in 2008. According to the expert, although the Media Authority is appointed by the government, the regulatory body operates with a high level of de facto independence.
• Sweden: The Hungarian Government's example appears to refer to the Radio and TV Bureau (Radio- och TV-verket), which was replaced by the Radio and Television Authority (RTB) in 2010, and the Swedish Broadcasting Commission, a separate body within the Radio and Television Authority that oversees content-related complaints against broadcasters. Both bodies are appointed by the government, but the expert reports that each body has a good deal of de facto independence and operates free from political influence. For instance, members of the Swedish Broadcasting Commission are not political appointees or political loyalists but rather senior judges and experts.
• Switzerland: The Hungarian Government's example inaccurately cites the Department of Environment, Transport, Energy and Communication (DETEC) as performing the "duties of the media authority" in Switzerland. DETEC is only responsible for awarding licenses to broadcasters. The regulator for broadcasting is the Federal Office of Communications (OFCOM). The example also omits to mention the Independent Complaints Commission, which is the body responsible for handling complaints against broadcasters.

With these examples, the Hungarian Government appears to suggests that government-appointed media bodies are less independent than those appointed by parliament, as with Hungary's Media Authority. However, the expert analyses demonstrate that assessments of independence are based on broader analyses of the regulatory frameworks and political systems in which these bodies operate. For instance, in Switzerland, although the media regulatory bodies are appointed directly by the government, the country's system of "concordance democracy" is such that all major parties are represented in the government and decisions are arrived at by consensus; this means that appointments are not politically oriented and these bodies exercise a large degree of de facto independence. In contrast, the system of parliamentary-style appointments in Hungary's case has not served as an effective safeguard against political-party influence over appointments to Hungary's new media regulatory body.

The expert analyses confirm that both systems of governmental and parliamentary appointments can be prone to political influence, even with formal safeguards in place. A majority of experts in this set of examples report that appointments to top positions of regulatory bodies are, or at some point have been, politically oriented. In the UK, for instance, at least two appointees to Ofcom's chairperson have been close allies of the sitting prime minister. In Italy, the expert reports that the system of parliamentary appointments often means the AGCOM Board can mirror the political composition of parliament. Yet as shown by the expert assessments, the impact of governmental influence over appointments to media regulatory bodies varies in accordance with each bodies' overall powers and regulatory scope.

These noted problems with independence highlight that the risk of "government capture" of media regulatory bodies is not unique to any specific system of appointments. However, the examples cited do not support the Hungarian Government's claim that media regulatory boards with a "much smaller degree of independence" from the government than Hungary's Media Authority are not uncommon in Europe. Rather, the expert analyses of these examples reveal that the majority of the Hungarian Government's examples do not sufficiently correspond to Hungary's new Media Authority, and these examples either inaccurately or inadequately characterise both the formal elements of the appointment processes and the de facto independence with which the respective regulatory bodies' operate in practice.

37 "Reply to the criticisms expressed by the international media against the Media Act," Ministry Of Public Administration And Justice, January 3, 2011, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/reply-to-the-criticism-of-the-international-media.
38 The Austrian example is cited under "Criticism 3," in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," The Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context; the remaining examples are found in "Reply to the criticisms expressed by the international media against the Media Act," Ministry Of Public Administration And Justice, January 3, 2011, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/reply-to-the-criticism-of-the-international-media.
39 "Indicators for independence and efficient functioning of audiovisual media regulatory bodies for the purpose of enforcing the rules in the AVMS Directive." INDIREG: Preliminary Final Report. Hans Bredow Institute for Media Research the Interdisciplinary Centre for Law & ICT (ICRI), Katholieke Universiteit Leuven, Center for Media and Communication Studies (CMCS), Cullen International. January 2011, available at: http://ec.europa.eu/avpolicy/docs/library/studies/regulators/preliminary_final_report.pdf; pp. 30 – 34.
40 "Indicators for independence and efficient functioning of audiovisual media regulatory bodies for the purpose of enforcing the rules in the AVMS Directive." INDIREG: Preliminary Final Report. Hans Bredow Institute for Media Research the Interdisciplinary Centre for Law & ICT (ICRI), Katholieke Universiteit Leuven, Center for Media and Communication Studies (CMCS), Cullen International. January 2011, available at: http://ec.europa.eu/avpolicy/docs/library/studies/regulators/preliminary_final_report.pdf; pp 37-38.