THE NETHERLANDS

Expert assessment

The reference above to "the Dutch ruler" appears to be based on a provision that was part of the Dutch Media Act until 2008, which accorded the Queen a ceremonial role in appointing members of the Media Authority. The law as it stood before the adoption of the Media Act 2008 stipulated: "the Media Authority consists of a chairman and two or four other members. They are appointed and dismissed by royal decision upon nomination by [the] Minister."103 But the equivalent provision in the Media Act 2008 omits the second sentence. Instead, the Act merely notes that "the Framework Act Autonomous Administrative Authorities applies to the Media Authority."104 The Framework Act stipulates that members of an autonomous administrative authority are appointed, recalled and dismissed by the relevant Government minister.105 Therefore the main element of the Hungarian Government's statement is correct: that the Minister for Education, Culture and Science is responsible for selecting the chairperson and other members of the Dutch Media Authority.

Whether this, by itself, substantiates the Hungarian government's claim that "authorities with a much smaller degree of independence from government" than Hungary's Media Authority is a separate question. While some concerns have been expressed over the potential for political influence over the Dutch Media Authority, the body generally has a large degree of formal and de facto autonomy from the government, both as specified in the law and with regards to how Media Authority members are currently appointed in practice.

The Dutch Media Authority (Commissariaat voor de Media) was established in 1988 by the Dutch Media Act, which was amended several times.106 This law was replaced by the Media Act 2008, which re-established the structure and implementation of Dutch media policy and incorporated the EU Audiovisual Media Services Directive.107 The Media Authority is responsible for overseeing commercial and public broadcasting and audiovisual media for compliance with the Media Act 2008, as well as the Media Decree (Mediabesluit) and the Media Regulation (Mediaregeling), which further specifies the procedures and implementation of the Media Act's provisions.108 The Media Authority exercises some authority over audiovisual online services, including those of public service broadcasters, but has no competency over traditional print or their online content.

The Media Authority currently consists of a chairman and two members, appointed by the Minister for Education, Culture and Science for five-year terms, for a maximum of two terms.109 Members are accountable to the minister, and can be dismissed by the minister if found to be unfit for violating conflict-of-interest rules.

The Media Authority is a so-called "ZBO," a formally autonomous administrative authority of the central government. The Authority's formal independence is secured by a number of legal provisions, including conflict-of-interest rules that exclude members who are employed by a ministry or an affiliated institution, by Parliament or provincial or local government, or by public or private broadcasters, newspapers and/or magazines.110

However, a recent study on sustainable government indicators concluded that while the Media Authority is an "independent governmental authority [...] with its own, autonomous tasks and discretionary space," there is evidence that "politics do influence in particular public media outlets through the Commissariat in ways that may restrict their freedom."111 The examples the study listed, however, were limited to the following areas: the Media Authority's enforcement of the Media Act 2008's ban on alcohol advertising before 9 p.m.; efforts by the Government to encourage broadcasters to develop a code of conduct about "safe media-provision;" and a government bill aimed at imposing salary ceilings for executives of publicly funded organisations, including public broadcasters. The study, however, did not specify the Media Authority's role in these issues or provide evidence of how the Media Authority's decisions regarding these issues have been influenced by politics.112

Additional concerns have been raised by some experts over the lack of sufficiently clear appointment criteria for members of administrative bodies such as the Media Authority. For instance, a 2006 report by the Council for Public Administration (Rob), a governmental advisory body, concluded that many of the laws establishing these bodies do not specify the qualifications for appointments, which reduces the transparency of appointment procedures.113 While the report did not specifically mention the Media Authority, the criticism is relevant to this body, as the Media Act 2008 does not specify the required qualifications for appointed members, beyond the above-mentioned conflict-of-interest provisions.

In the past, there had been an informal practice in the Netherlands in which appointments to top public administrative positions like the Media Authority chairperson were given to individuals with political affiliations. From 1994 to 2001, for instance, the chairperson of the Media Authority was Helmer Koetje, a member of Parliament for the Christian Democratic party at the time of his appointment. However, as the above-mentioned government indicators study notes, the chairperson's political orientation appears to have become less important over the past several years. In current practice, appointments do not seem to be politically motivated. Appointed members generally do not have a background in politics, but rather they appear to have been selected on the basis of extensive management, legal and/or media experience. For instance, current Media Authority Chairperson Tineke Bahlmann is a professor of business administration at the University of Utrecht, and a member of the supervisory boards of a number of financial and banking institutions, including the ING Group and Deloitte Holding.114 Media Authority member Madeleine de Cock Buning is a professor of copyright and media law at Utrecht University and director of the Center for Intellectual Property law (CIER), as well as a judge (raadsheer plaatsvervanger) on the Court of Appeals in The Hague, and a former attorney-at-law specializing in intellectual property and ICT issues.115 Eric Eljon, prior to his appointment to the Media Authority in July 2011, was a manager at the commercial broadcaster SBS, and previously worked for the public service broadcasting organizations VARA (which has a center-left political orientation) and AVRO (which has a center-right political orientation).116 Hence, the use of the Dutch example do not sufficiently rebut the criticism to which the Hungarian government is responding—that "appointed members of the [Hungarian] Media Council were chosen among allies of the incumbent government"—as there is no indication that members of the Dutch Media Authority have any affiliation with the ruling party.

Finally, in evaluating the salience of the Dutch example to the Hungarian Government's claims, one should keep in mind the scope of authority of the respective regulatory bodies. While any level of government interference over media authority bodies is a threat to press freedom, this becomes increasingly problematic in accordance with the particular media authority's regulatory scope and powers. The regulatory scope of the Dutch Media Authority is extensive, but from this author's understanding, it is substantially more limited than the Hungarian Media Authority's and Media Council's. In this sense, the use of the Dutch example may not serve as an entirely adequate comparison.

102 "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.
103 Media Act, elapsed as of January 1, 2009, Article 10.1, text as valid on July 24, 2008, http://www.st-ab.nl/wetten/0199_ Mediawet.htm. In fact, the English-language FAQ on the Media Authority website still says that "the members of the Media Authority [..] are being appointed by Royal Decree, upon the recommendation of the Minister of Education, Culture and Science," which indicates that the current law has not been updated on the Media Authority's website.
104 Per Article 7(2) of the Act of 29 December 2008 to establish a new Media Act (hereafter: the "Media Act 2008"), available in Dutch at: http://wetten.overheid.nl/BWBR0025028/volledig/geldigheidsdatum_12-09-2011; translation by author.
105 Framework Act Autonomous Administrative Authorities (Kaderwet zelfstandige bestuursorganen), Article 12.1, available in Dutch at: http://wetten.overheid.nl/BWBR0020495/geldigheidsdatum_12-09-2011; translation by author.
106 Commissariaat voor de Media website, English-language section: http://www.cvdm.nl/content.jsp?objectid=7264.
107 Joost Gerritsen, "Netherlands Media Act 2008," IRIS Legal Observations of the European Audiovisual Observatory, 2009-3:18/29, http://merlin.obs.coe.int/iris/2009/3/article29.en.html.
108 Commissariaat voor de Media website, English-language section: http://www.cvdm.nl/content.jsp?objectid=7264, and Commissariaat voor de Media website, http://www.cvdm.nl/content.jsp?objectid=7294. For legislation, see: Media Act 2008: http://wetten.overheid.nl/BWBR0025028/volledig/geldigheidsdatum_12-09-2011; Mediabesluit 2008, http://wetten.overheid.nl/BWBR0025036/geldigheidsdatum_12-09-2011; Mediaregeling 2008, http://wetten.overheid.nl/BWBR0025040/geldigheidsdatum_12-09-2011.
109 Media Act 2008, available in Dutch at: http://wetten.overheid.nl/BWBR0025028/volledig/geldigheidsdatum_12-09-2011; translation by author.
110 "Is the Media Authority independent from the government?" Commissariaat voor de Media, http://www.cvdm.nl/content.jsp?objectid=5850.
111 Robert Hoppe, Thomas Hoppe, Jaap Woldendorp, Nils C. Bandelow, Sustainable Government Indicators 2011, Netherlands report, Bertelsmann Stiftung, p.8-9, available at: http://www.sgi-network.org/pdf/SGI11_Netherlands.pdf.
112 Robert Hoppe, Thomas Hoppe, Jaap Woldendorp, Nils C. Bandelow, Sustainable Government Indicators 2011, Netherlands report, Bertelsmann Stiftung, p.8-9, available at: http://www.sgi-network.org/pdf/SGI11_Netherlands.pdf.
113 Raad voor het openbaar bestuur (2006), Benoemingen in het openbaar bestuur: Transparant, onderbouwd en functioneel, p.55, 58, available at: http://www.rfv.nl/GetFile.aspx?id=95.
114 "Tineke Bahlmann," Commissariaat voor de Media, available at: http://www.cvdm.nl/content.jsp?objectid=CVDM:7308; See also "Bahlmann, Tineke," Reuters Finance, available at: http://www.reuters.com/finance/stocks/officerProfile?symbol=ISP&officerId=1309099.
115 "Madeleine de Cock Buning," Commissariaat voor de Media, available at: http://www.cvdm.nl/content.jsp?objectid=CVDM:9611 ; "Staff - Curriculum Vitae - Madeleine de Cock Buning," Center for Intellectual Property Law, available at: http://www2.law.uu.nl/priv/cier/eng/staff/mcockbuning.htm; Madeleine De Cock Buning, LinkedIn profile, available at: http://www.linkedin.com/pub/madeleine-de-cock-buning/5/88b/3a8.
116 "Eric Eljon," Commissariaat voor de Media, available at: http://www.cvdm.nl/content.jsp?objectid=CVDM:11953; "Eric Eljon nieuwe commissaris bij Commissariaat voor de Media," June 1, 2011, available at: http://www.rijksoverheid.nl/nieuws/2011/06/01/eric-eljon-nieuwe-commissaris-bij-commissariaat-voor-de-media.html.