PORTUGAL

Expert assessment: Sanctions

The example was true until recently but not any longer in these exact terms. The Television Law referred to in the statement above was actually amended quite recently, in April 2011. Under that law, the Media Regulatory Authority (Entidade Reguladora para a Comunicação Social - ERC) could order the immediate interim suspension of a programme transmission or of a programme service for serious violations to terms of licensing and transmission-service agreements or various programming- and content-related regulations. 211 But with the recent revision of this law in order to implement the AVMS Directive, this specific article was revoked.212 According to the new legal framework, the interim suspension of a television programme, with immediate effect, is no longer possible. It should be added that under the previous law, no such suspension had ever been exercised on content-related grounds.213

However, there are still certain circumstances under the current law when the ERC may suspend a programme or revoke a broadcasting license on both technical and content-related grounds. But, in these cases a proceeding must be opened until a final decision is reached (only the possibility of an interim suspension, with immediate effect, was revoked when the Television Law was amended). As for print media, no such measures are defined in the law, since the launching of print media does not depend on a license or authorisation, but only on a simple registration. The eventual suspension of print media is only possible in the sequence of a decision by a court of law.

The ERC’s sanctioning powers are defined in three different laws: the ERC Statute,214 the (amended) Television Law, and the Radio Law.215 ERC’s power to ensure compliance with both content and technical requirements of these laws, and to suspend or revoke licenses and other qualifications necessary for media outlets to pursue of radio and broadcasting activities, is established in the ERC Statute.216 Both the Television Law and the Radio Law give ERC the power to grant, renew, alter or revoke licenses or authorizations for television or radio activity, respectively.217 These laws define levels of infringements—“minor,” “serious,” and “very serious” offenses—each with their own level of possible sanctions.218 Many of these offenses are related to technical regulations—such as violating terms of licenses or transmission service agreements. However there are a number of content-related regulations which, if breached, carry severe sanctions, such as suspensions and license revocations. The severity of sanctions, in general, correspond to the type of media under consideration—with terrestrial, commercial free-to-air television and public service broadcasting subject to stricter regulations, supervision and sanctions than cable and Internet TV channels, for instance. In the Portuguese system, television broadcasting is organised into three categories, each with different legal frameworks, responsibilities and levels of regulation: terrestrial free-to-air programmes (which are licensed); television stations, such as cable or satellite, which do not use the terrestrial spectrum (and are required to obtain authorisation); and broadcasting services via the Internet (which require registration only).219

Article 77 of the Television Law lists the “very serious breaches” that may allow ERC to revoke or suspend a license or authorization for television activity, together with the imposition of a fine that may vary between EUR 75,000 and EUR 375,000. Almost all breaches relate to technical or administrative issues, as well as to issues of non-concentration and transparency of ownership. Regarding content regulations, a programme may be suspended in the following situations: for free-to-air television programmes• that “cause an obvious and serious harm to the free personality development of children and adolescents, namely programmes that include pornography or gratuitous violence;”220 any programmes• that “incite hatred, racism or xenophobia” and are aired by a broadcaster that has committed such a breach at least twice in the course of the preceding 12 months;221 television operators• that “allow transmission time for political propaganda,” except for the cases previewed in the law, regarding either the right to broadcasting time and the right to political response (in what concerns the public service broadcaster), or the right of reply and right of rectification (in what concerns all television broadcasters).222

Under the Radio Law, radio broadcasters are bound by a set of “general obligations,” which include the “respect for the human dignity, especially the development of personality of children and adolescents,” to “ensure the broadcasting of a diversified programming, including regular information slots,” to “guarantee programming and information that are independent from political and economic powers,” to “guarantee information that observes pluralism, accurateness and independence;” to “guarantee the right of reply and of rectification as provided for in the Constitution and in the law.” 223

Radio broadcasters are also obliged to comply with a set of content-based restrictions: “Radio programmes shall respect the dignity of human beings as well as fundamental rights, freedoms and guarantees;” radio programmes must not broadcast materials which “incite, through broadcasted programme elements, hatred on grounds of a racial, religious or political nature, or based on colour, ethnic or national origin, sex or sexual orientation;” and “[r]adio operators shall not allow political propaganda airtime in any way, without prejudice to provisions in this law on the right to airtime.”224

Articles 69 and 70 in the Radio Law establish the amount of fines for breaches of this law (ranging from EUR 1,250 to EUR 100,000, according to the seriousness of the breach), as well as the conditions under which a programme may be suspended. Most of these conditions refer to administrative, technical or financial questions. As for content issues, the breach of the obligation not to broadcast materials which incite to “hatred on grounds of a racial, religious or political nature, or based on colour, ethnic or national origin, sex or sexual orientation,” as well as the obligation not to allow political propaganda airtime (except in the situations previewed in the law), also may lead to the suspension of a programme or of a license or authorisation.225

As for the revocation of radio licenses or authorisations, the law defines the cases when ERC may impose this sanction: (a) when licensed programme services “do not start within the time-limit set out” by the concession, or “in the absence of broadcasts for a period exceeding two months”; (b) when “the programme service is operated by a body other than the legitimate license or authorization holder;” or (c) in the case of “radio operator’s insolvency.”226 The ERC may also suspend or revoke a radio broadcasters’ license on additional technical grounds, such as failure to broadcast, failure to broadcast with an appropriately strong signal, or inability to meet basic administrative requirements. The suspension of radio programmes for a maximum of 30 days is also possible as a complimentary sanction to financial penalties, in the case of aggravated breaches to the operators’ obligations defined in their licenses and authorizations. Suspensions can be appealed in court, and the suspension of a broadcast license or authorisation can be delayed for a period of three-to-12 months if the operator has not been convicted for a similar breach in the year before.227 When the sanction of suspension of a programme is imposed to an operator for the third time in a three-year period, it turns to license revocation. 228

As mentioned previously, the only cases of revocation of a license under the previous law were for small radio broadcasters who could not meet the technical requirements of their licenses. To this author’s knowledge, a television license was never suspended or revoked. But in some cases—for example, in the interim evaluations of the major free-to-air national operators, RTP, SIC and TVI— the ERC has made suggestions and recommended changes so those operators can better meet the obligations of their concession contracts.

Suspension or revocation of broadcast licenses on content-related grounds however is most unusual in Portugal. One of the rare situations in which ERC decided to open a legal proceeding in order to impose a fine against a medium for reasons of content, was the primetime broadcast of the entire sequence of Saddam Hussein’s hanging in Iraq by commercial channel TVI. After a complaint by a viewer, ERC publicly criticised TVI and decided to open legal proceedings against the station on the ground of a “serious breach” of its ethical and legal duties, particularly the duty to respect the dignity of all human beings (Article 27 of the Television Law) and prohibiting broadcasting images of unnecessary violence. At the same time, ERC decided not to initiate infringement proceedings against the public channel RTP or the commercial channel SIC. On the contrary, they were praised because both stations dealt with the issue of Saddam Hussein’s hanging in a more careful way, with greater concern for the use of raw images.229 The TVI case is still being decided in the courts.

Any ERC decision concerning the imposition of a penalty or of a sanction leads to the opening of the necessary legal proceedings in a court, during which the operator can contest the charges and state its case. This process may last for years, as with the ongoing case of TVI. Appeals do not have a suspensive effect on the ERC’s decisions, unless a specific judicial order for it is asked and granted. The court’s decisions can be further appealed to a higher court, and on appeal, to the level of the Supreme Court.

210 This example was cited by the Hungarian Government under both “Criticism 1,” and “Criticism 18” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” 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 211 Television and Audiovisual Services On Demand Law (hereafter the “Television Law”). Law Nr. 27/2007, as amended by the Law Nr. 8/2011), unofficial English translation of the 2007 law available at: http://www.anacom.pt/render.jsp?contentId=979660). Amended law (Law Nr. 8/2011) available in Portuguese at; http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 212 Television Law (Law Nr. 8/2011) available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 213 The only situations where broadcast licenses were revoked were in the case of some small radio operators that could not meet the technical requirements of broadcasting. 214 ERC Statute (Law nr. 53/2005), available at:: http://apollo.atomicdns.com/~ercfront/documentos/lei53.pdf 215 The Radio Law (Law Nr. 54/2010), unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 216 ERC Statute (Law nr. 53/2005), Article 24(3)(c), 24(3)(f) and 24(3)(i), unofficial English translation available at: http://apollo.atomicdns.com/~ercfront/documentos/lei53.pdf; sanctioning powers are further specified in Article 67 of the ERC Statute. 217 Television Law (Law nr. 8/2011), Article 18, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf; Radio Law (Law Nr. 54/2010), Article 23, unofficial English translation http://www.anacom.pt/render.jsp?contentId=1074024. 218 Articles 77, 81 and 82 of the Television Law (Law nr. 8/2011) define a series of “very serious breaches” to the operators’ obligations (mainly technical, administrative and financial obligations) that may lead to fines and/or to suspension and revocation of the licenses, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf . 219 Television Law (Law nr. 8/2011), Article 13, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdfhttp://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 220 Television Law (Law nr. 8/2011), Article 27 (3), Article 77 and Article 86, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 221 Television Law (Law nr. 8/2011), Article 27 (2), Article 77 and Article 86, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 222 Television Law (Law nr. 8/2011), Article 31 and Articles 58-69, available in Portuguese at: http://www.gmcs.pt/download.php?dir=121.549&file=lei_tv.pdf. 223 Radio Law (Law Nr. 54/2010), Article 32, unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 224 Radio Law (Law Nr. 54/2010), Article 30, unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 225 Radio Law (Law Nr. 54/2010), Article 30 (2 and 3), Article 69 and Article 70, unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 226 Radio Law (Law Nr. 54/2010), Article 73, unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 227 Radio Law (Law Nr. 54/2010), Article 70 (3), unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 228 Radio Law (Law Nr. 54/2010), Article 70 (5), unofficial English translation available at: http://www.anacom.pt/render.jsp?contentId=1074024. 229 http://www.erc.pt/download/YToyOntzOjg6ImZpY2hlaXJvIjtzOjM5OiJtZWRpYS9kZWNpc29lcy9vYmplY3RvX29mZ mxpbmUvMTA2MC5wZGYiO3M6NjoidGl0dWxvIjtzOjI0OiJkZWxpYmVyYWNhby0xLWxsYy10djIwMDciO30=/deliberacao-1-llc-tv2007.