Centro Europa 7 s.r.l. v. Italy
Italy's Media Pluralism Gap
In 1999, Centro Europa 7 won a contract to broadcast a new TV station in Italy, but was prevented from going on the air as its allocated frequency was occupied by Mediaset, owned by the family of then Prime Minister Berlusconi, who also had indirect control over the national broadcaster RAI in his capacity as Head of Government. The Grand Chamber of the European Court of Human Rights found that the dominance of Mediaset failed to ensure pluralism in the media sector.
Facts
In mid-1999, Centro Europa 7 participated in an open bid for national television concessions organized by the Italian Ministry of Communications. It came sixth in the competition and won one of the licenses on offer. In October 1999, it received the actual title to the concession by the Ministry. However, in December 1999 it was notified by the Ministry that it could not be granted an operating frequency because of an "objective impossibility:" the lack of a free national frequency. In fact, the frequency was not available because the Mediaset Group, Italy's largest television company, had failed to comply with a 1997 anti-concentration law that required it to relinquish one of its three national terrestrial frequencies. Mediaset, which is controlled by the family of then Italian Prime Minister Silvio Berlusconi, has dominated the national private television sector since the early 1980s.
In November 2002, the Italian Constitutional Court held that the failure of the 1997 Act to set a strict deadline for the handover of the "over-quota" frequencies (including the one held by Mediaset) was unconstitutional. The Court said the transition should in no case continue beyond December 31, 2003.
On December 24, 2003, the Berlusconi Government adopted emergency legislation, later ratified by Parliament, postponing indefinitely the handover of over-quota frequencies. The reason provided by the Government was the need to obtain an opinion from the broadcasting regulatory authority, AGCOM.
A new broadcasting law adopted in May 2004 (the "Gasparri Act"), again under a Berlusconi government, formally extended the 1997 Act's transition (i.e., shedding of over-quota channels) until the completion of the digital migration nationally-in the face of AGCOM objections.
In late 2008, after years of domestic and supranational litigation, Centro Europa 7 was finally granted an operating frequency that was squeezed out of the frequencies held by RAI, the public broadcaster (not one of Mediaset's, as originally contemplated). Centro Europa 7 said that the frequency it finally received was inferior to the one contemplated by the 1999 concession, making it difficult to reach large parts of the national territory.
Open Society Justice Initiative Involvement
The Justice Initiative intervened in the case with written comments providing a comparative survey of European law and practice on general principles of media diversity, regulation of broadcast ownership, and political interference in broadcasting.
Arguments
Media pluralism. European standards require that states must guarantee the right of individuals and the public at large to have access to a pluralistic media sector, especially in broadcasting.
Diversity of ownership. States should ensure that a sufficient variety of outlets and perspectives, provided by a range of different owners, is available to the public.
Freedom from political control. Allowing senior politicians or government officials to control significant segments of the national broadcasting sector is incompatible with current European notions of freedom of expression.
On June 7, 2012, the Grand Chamber of the European Court of Human Rights delivered its judgment, finding that the European Convention had been violated. The court recalled that states have a duty “to ensure true pluralism in the audiovisual sector,” which assumes an obligation to prevent domination of the airwaves by all-powerful actors. The court held that “a situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media” which allows them to “eventually curtail the editorial freedom” of broadcasters, is incompatible with the fundamental role of free information in a democratic society.
The state must play an active role to preserve diversity of voices and content. It must adopt “an appropriate legislative and administrative framework to guarantee effective pluralism and it must ensure not just theoretical, but “effective access to the market” for new entrants “so as to guarantee diversity of overall program content.”
The court found that successive Italian governments had failed to meet these duties. The flawed legislative regulations of the last decade had “reduced competition in the sector.” In particular, they had privileged the incumbents (Mediaset and Rai), preventing other operators “from participating in the early stages of digital television.”
The court found a violation of Article 10 (freedom of expression) and Article 1 of Protocol No. 1 (right to property).
The Grand Chamber of the ECtHR finds a violation of Article 10 (freedom of expression) and Article 1 of Protocol No. 1 (right to property).
The Justice Initiative files written comments as a third-party intervener in the case.
The ECtHR communicates the case to the Italian Government.
The applicant files a complaint with the European Court of Human Rights.
The Consiglio di Stato awards limited damages of one million Euros, finding that Europa 7 had only a "legitimate expectation" for the future allocation of a frequency, not a right to the immediate exercise of broadcasting economic activity from 1999.
The government grants a frequency to Europa 7, but it is inadequate to broadcast, and is only available from June 30, 2009.
The ECJ finds a violation of EU law because Europa 7 cannot broadcast through lack of a frequency. The Consiglio di Stato orders that they are granted another frequency.
The Consiglio di Stato, Italy's highest administrative tribunal, refers the case to the European Court of Justice.
The Gasparri Act states that only existing analogue broadcasters will be eligible to start broadcasting in digital, excluding Europa 7.
Europa 7 files a legal claim against the Ministry of Communication (MinCom) and AGCOM for failing to provide an operating frequency.
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