Letter to the Culture Committee: Vote on 21/04/2005 on the Report by Marielle De Sarnez MEP regarding the proposal for a Draft Recommendation on the protection of minors and human dignity
Vote on 21/04/2005 on the Report by Marielle De Sarnez MEP regarding the proposal for a Draft Recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry (COM(2004)0341 - C6-0029/2004 - 2004/0117 (COD))
18th April 2005
Dear Sir/Madam,
Members of the Culture and Education Committee,
VOTE on 21/04/2005 on the Report by Marielle De Sarnez MEP regarding the proposal for a Draft Recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry (COM(2004)0341 - C6-0029/2004 - 2004/0117 (COD))
Principal message:
We call upon MEPs to reject the report at the vote in the Committee on Education and Culture because the EU does not have the legal competence to regulate journalistic content in the written press (in print or online).
Supporting arguments:
We write to you concerning the Report by MEP Marielle De Sarnez on the above-mentioned draft Recommendation and the forthcoming vote on this Report in the Committee on Culture and Education on Thursday 21st April 2005 in Brussels.
The proposed Recommendation contains many useful aims - not least the protection of minors from harmful content. Nevertheless, it intervenes in matters relating to journalism and media content that are expressly reserved under the EC Treaties to Member State competence and on which we were not consulted by the Commission. In our view, the draft text needs wide-ranging amendment to ensure that it does not undermine the existing systems which operate at national level to offer readers a right of reply or similar remedies.
Furthermore we are concerned at the impact that media regulation will have on the competitiveness of the EU media (an ironic outcome, given the reference to competitiveness in the title of the draft).
However laudable the anti-discrimination aims might be with regard to media and advertising content, they are not in the competence of the EU. If Article I.3 remains in the text in its current form, further credence will be given to the inaccurate interpretation that the EU can intervene in matters relating to media content. Taste and decency are matters for journalists, editors and publishers and in any case are singularly unsuited to harmonisation across 25 countries, given the vast differences in cultural and social mores that obtain throughout Europe.
A free European media is an essential pillar of democracy. Great caution and vigilance must be exercised in enacting measures that constrain press content and interfere with editorial freedom and judgement.
Right of Reply and Discrimination in the Media:
More specifically, in the interest of maintaining editorial independence, we cannot support the fact that provisions regarding the way in which publishers should deal with the right of reply have been included in this proposal. Hence we support amendments such as Amendment 51 (Annex, title) presented by MEP Ruth Hieronymi which limit this recommendation to audiovisual services only.
Neither do we support the fact that the Committee on Culture and Education, through amendment 34 proposed by MEP Herrero-Tejedor, would support the tabling of a new "separate and urgent recommendation" addressing any type of discrimination in the content of "all media", or amendments 8, 9 or 30 by Marielle De Sarnez which would propose an analysis and introduction of specific new rules to regulate editorial content in terms of portrayal of men and women. Therefore, even though the proposal is only a recommendation to Member States, this Recommendation represents unfounded EU intervention in the freedom of the press as there is no legal basis for such action.
Self-Regulation of the media will be undermined:
The European media has a well-established self-regulatory framework which has been established on a national basis and which takes account of national differences. Any attempt to regulate (no matter how informally) on an EU basis goes against the basic principle of subsidiarity contained in the Treaties and undermines the work undertaken by individual national governments in conjunction with their own media. Self-regulation must be preserved for these reasons and therefore this is why we consider that Marielle De Sarnez's proposal in Amendment 21 (on Chapter IId new) which advocates putting forward binding legislation at the European level is unjustified.
Mandatory Right of Reply:
With regard to online media, there is insufficient understanding within the proposal for a Recommendation of how modern news services work and of the impracticalities a mandatory right of reply regime would create. Newspapers, periodicals, their online equivalents and online news services generally offer many opportunities for readers to seek redress. Technological advances mean news is not only received through print or via websites accessed via a PC. For example, the increasing use of SMS technologies means mobile phone users are receiving news via their handsets. Mobile delivery is set to develop yet further with the growth in PDA handsets and 3G networks. The current situation of course varies between Member States as to how a right of reply is delivered but we can find no example in any country where a right of reply is not offered and delivered willingly by the media.
Conclusion:
The vast majority of the printed press does not have any internal market characteristics in the EU: it is a local, regional or national "product". As such, regulation affecting the print media is within the sole competency of national cultural policies, as provided for by Article 151 of the EC Treaty. As Commissioner Reding, who of course has expanded her competence for media matters in the new Commission, confirmed in a speech in October 2002, the EU has no legislative powers to introduce regulation intervening in journalism and media content:
Under the Treaties, the Community has no independent mandate to shape the area of the media. […] Community regulation of content is therefore particularly subject to the requirement of proportionality. It must regulate those matters that are necessary for the completion of the internal market, but may not regulate anything else.
This measure is not "necessary for the completion of the internal market" and the EU therefore lacks the legal competence to intervene.
Moreover, the legal basis used by the Commission's proposal for the Recommendation - Article 157 - neither refers to liberty of expression or human dignity - therefore the recommendation cannot be founded on a competitiveness legal basis. It cannot be founded on the legal basis of the Charter of Fundamental Rights which is found in the Constitutional Treaty because the Constitutional Treaty has not yet been ratified by all Member States and is therefore not officially in force. Therefore, we reject the amendment 25 (Recital 1 bis new) to justify the legal basis through the Charter, which has been put forward by Mr Luis Francisco Herrero-Tejedor.
We therefore call upon MEPs to reject the report at the vote in the Culture and Education Committee because the EU does not have the right to regulate the journalistic content of the printed or electronic press.
We trust that you will take our concerns into account and we remain at your disposal for any further information that you may require.
Yours sincerely,
Angela Mills Wade
Executive Director,
European Publishers Council (EPC)
