Context
Writing about public service broadcasting (PSB) today presents a challenge, both as regards content and methodology because it is âa policy project under revision in Europeâ (Donders 2012, p. 1).
The transition from the âancient TVâ to the âmodern TVâ1 is being carried out through a series of significant policy initiatives enacted by PSB on online platforms (dubbed PSB 2.0: Brevini 2013). It has been noted that âjust as the radio was not wiped out by television, so there is no reason to suppose that television will be ousted by the Internet. As each of these tools offers different products, clearly one can be added to anotherâ (Sartori 1997, p. 29).2 However, in this new scenario, characterized by convergent media forms, the role of the state is in crisis and the existing legislative framework may not always be suitable in light of technological developments. This changing media landscape impacts not only on the mission of public broadcasters but also involves their organizational structure, the composition of their managing bodies and their relationship with the political institutions at a state and regional level, namely their governance.
Many states are engaged in a critical debate over the role of PSB that has generally led to limited reforms; one could almost talk of âlegal microsurgeryâ that regulates no more than the appointment of Board members or the nomination of the President or COE. There has been no attempt at an overall reform of the sector, as illustrated by the cases of Italy, France and Spain (Chapter 6).
At the same time, at a supranational level, the Council of Europe and the European Union have used both soft and hard law to different ends with the goal of strengthening the importance of PSB and to urge states to adopt a regulatory framework that is as far as possible homogeneous and complies with the principles of pluralism and media independence (Donders and Pauwels 2008). This also entails a transparent appointment process for the management bodies (Chapter 3).
As regards the mission and the remits, a prototype PSB that complies with these principles has now risen like a phoenix from the cultural model of the BBC, âsiftedâ from the ashes by the supranational organizations and based on a series of pan-European standards transposed by national legislatures (Pavani 2016, p. 29).
On the other hand, the structure of the public broadcasters is noticeably heterogeneous, as each state organizes its PSB according to its historical, legal, economic and social traditions. Thus, a broad range of organizational solutions has appeared, often with unique features. The social, political, cultural and legal structure has led to each public broadcaster emerging as an expression of the system to which it belongs, and as far as its organization is concerned, of which it is the result. At the end of the 1960s, Debbasch expressed this concept masterfully: âLes citoyens ont le droit de la radiodiffusion quâils mĂ©ritentâ and he urged the jurists to build a âdroit de la radio et de la televisionâ (Debbasch 1969, p. 5).
Aim of the Book
The aim of the book is to examine the various structural and organizational solutions of PSB in Europe during this transitional period, in order to:
- illustrate the similarities and differences in the governance of the single national public broadcasters that have evolved within a historical legal model (the European model);
- analyse the determinants of the model by tracing its historical development using a comparative approach and verify its validity in light of the new technological landscape and the homogenizing trends âimposedâ at a supranational level;
- highlight the common thread that links recent legislative reforms of governance (or more precisely, of internal organization) of public broadcasters in those European countries that are emblematic of this model (Italy, United Kingdom, Spain, France);
- finally, through a cross-sectional and comparative analysis of legislation, offer a complete picture of the various solutions adopted by states that could constitute a base of useful information for studies in other disciplines (communication sciences, communication sociology and political science, with particular emphasis on public communication, etc.) that will perforce consider the normative framework.
Terminology
In recent years, most public service broadcasters have started to employ the Internet and other digital platforms to relay their services: we are moving from a system of âlinearâ PSB to a system of new media, so, when referring to media systems, it is often more accurate to employ the term âpublic service mediaâ (PSM) rather than PSB, as the Council of Europe (CoE) suggests3 (Psychogiopoulou et al. 2017).
Nonetheless, this study focusses specifically on the public broadcasters, their organizational structure, their governance and the relationship between the political system and their internal organization. The vision that emerges from the study underlines the relevance of the public law approach in the broadcasting sphere, further emphasized by the constitutional context in a number of countries. Hence, when referring to public broadcasters I have chosen to use the term PSB. However, I do use the term PSMâas well as âaudiovisualâ4 or âmedium/mediaââwhen referring to broadcasting systems in general.
The term PSB includes both radio and television, but it is generally accepted by scholars of the subject that the protagonist in broadcasting is TV (the radio is treated separately only when its regulation differs from that of the TV, as in Barendt 1995, p. 3).
Academic Research
The field of media communication policy encompasses a variety of theoretical approaches derived from traditional disciplines, such as political science, sociology, economics and law. Hence, each of these fields has contributed to diverse theoretical accounts of how media policies are shaped and developed. (Brevini 2013, p. 19)
Instances of dialogue between the sciences have been rare, however. The same is true for the comparative approach: most of the literature on the media âis highly ethnocentric, in the sense that it refers only to the experience of a single country, yet is written in general terms, as though the model that prevailed in that country were universalâ (Hallin and Mancini 2004, p. 2).
This observation is equally valid for legal studies on broadcasting systems, as illustrated by a seminal work that focusses on the study of the national law of four European states in addition to that of the US (Barendt 1995).
The technical nature of this subject should not discourage jurists from undertaking comparative analyses that also consider the results achieved by other sciences. The new technological landscape invites us to experiment with new approaches of enquiry and push beyond the issues extensively researched by domestic public law studies that generally adopt a top-down approach. Research conducted hitherto has generally been limited to identifying the provider of the television service (public or private) and studying the division of legislative competences between the centre and local government, highlighting the organizational aspects or focussing on the link with freedom of expression, while completely ignoring the political and social context in which the public broadcasters operate.
An analytical approach, aimed at supporting an analysis based on normative texts is insufficient, and may even be misleading when explaining a complex phenomenon like that of PSB: an institution at the service of a fundamental freedom and inherently connected to a countryâs political environment. We cannot assume that the legal categories used to test the degree of independence of public bodies or subjects and/or independent Authorities can be applied to public broadcasters without adaptation. Any attempt to do so would fail to consider their particular mission and the inevitable two-way relationship with the political system in which they operate (PSB gives voice to political groups and is, at the same time, partly influenced by them).
This context can only be understood if the barriers between the legal sciences and the âotherâ sciences are overcome and studies on the link between media and politics are not considered as mere decoration for the comparatist inquiry, but rather the key to interpreting certain nuances (and sometimes more besides) in the operation of broadcasting systems. This approach, previously tested with success in public law as well as in private law, makes it possible to highlight some forms of circulation of organizational models of PSB that would be difficult to explain through a positive law analysis alone.
It is, therefore, necessary to draw on data derived from studies in other sciences, such as sociology and the communication studies, and use them as a tool to place the topic under discussion within a legal framework.
The levels of interaction between the sciences, of course, depend on the sensitivity of the comparatist and the object of the research. Sometimes extrajudicial data can help in understanding the socio-political basis of a specific PSB system (e.g. the Dutch pillarization system). At other times, they can be used to reformulate classifications (as in the case of a decentralized organization, see Chapter 5) or to refute certain procedures (as in the case of the parliamentary appointment of members of management bodies, see Chapter 6).
Methodology
This study uses the legal methodology to study a segment of the European mod...