October 2003
III. REGULATION
9)
Regulation of the broadcast media must be in conformity with the general
principles enumerated in these Guidelines, including freedom of expression,
the protection of cultural and linguistic diversity through minority language
broadcasting, and the protection of linguistic identity, without discrimination.
Regulations that interfere with the right to freedom of expression are subject to
the requirements of Article 19(3) of the ICCPR and Article 10(2) of the ECHR,
the latter of which stipulates in part that no restrictions shall be placed on the
exercise of these freedoms other than such “as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary”.
In accordance with Article 10(1) of the ECHR, licensing constitutes a possible
avenue for media regulation. Article 9(2) of the Framework Convention states
that with regard to freedom of expression and access by national minorities to
the media, States Parties may require “licensing, without discrimination and
based on objective criteria, of sound radio and television broadcasting, or
cinema enterprises.” Within the OSCE, in both the Cracow Document (para.
6.1) and the report of the Geneva Document (Chapter VII), participating
States have committed to regulating the broadcast media only as prescribed by
law and consistent with international standards.
10)
The OSCE participating States recognize the right of persons belonging to
national minorities to “disseminate, have access to and exchange information
in their mother tongue” (Vienna Document, Cooperation in Humanitarian and
Other Fields, Human Contacts, para. 45; Copenhagen Document, para. 32.5).
This right should not be impaired through licensing or other types of
regulation. The European Commission of Human Rights in its decision on
admissibility in the Case of Verein Alternatives Lokalradio Bern v. Switzerland
(16 October 1986, App. No. 10746/84), citing the Handyside judgment, stated
that a licensing system must respect the requirements of pluralism, tolerance
and broadmindedness. The Commission explained that this includes the
language of the broadcast:
[…] Refusal to grant a broadcasting licence may raise a problem
under Article 10, in conjunction with Article 14 of the [European]
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