This document discusses the importance of transparency in media ownership for democracy. It argues that mandatory reporting requirements are needed to identify the beneficial and ultimate owners of media outlets. Such requirements should apply to broadcast, print, and online media and collect basic information on ownership structure, financial accounts, and interests in other organizations. Media regulators should collect this information and make it publicly available to ensure transparency and prevent undue concentration of media ownership and political influence. Adopting clear rules and standards on ownership transparency is crucial to guarantee media pluralism.

1. 19/09/2014
1
The UnbearableLightnessof Media OwnershipTransparencyRegional ConferenceTransparency in Media Ownership and Preventing Media Concentration Skopje, 25-26 September 2014
Prof. Dr. Peggy Valcke
KU Leuven, Facultyof Law, iMinds-ICRI
& European University Institute, Florence
Whydo we needtransparency?

2. 19/09/2014
2
1°Whatwe inheritedfromthe ancientGreek
In the year 507 B.C., the Athenian leader Cleisthenes introduced a system of political reforms that he called demokratia, or “rule by the people.” This system was comprised of three separate institutions: the ekklesia, a sovereign governing body that wrote laws and dictated foreign policy; the boule, a council of representatives from the ten Athenian tribes; and the dikasteria, the popular courts in which citizens argued cases before a group of lottery-selected jurors. Although this Athenian democracy would survive for only two centuries, Cleisthenes’ invention was one of ancient Greece’s most enduring contributions to the modern world.
2°Whatwe learnedfromwisemen likeMandela
The view that the press is the fourth estate rests on the thought that the media's role is to act as the custodian of the public interest and as a watchdogon the actions of government.

3. 19/09/2014
3
Media ownershiprules:
A must toensurefree anddiverse media whichare instrumentalfora well functioningdemocracy!
Preventmedia monopolies and/or excessivemedia concentrations
Preventconflictsof interest: disentanglemedia power andpoliticalpower
the mindsof men are easilycorrupted…
"Communication –understood as a lively and civiliseddebate among citizens –is the lifeblood of democracy. The media are its veins and arteries. Information they provide should be comprehensive, diverse, critical, reliable, fair and trustworthy.“
(former Vice-President Margot Wallström; Jan. 2007)
Transparency of media ownership is essential for media pluralism, democracy and the rule of law
“The key that unlocks the door of freedom of information and freedom of speech” (M. Haraszti)
Or, put differently:

4. 19/09/2014
4
Towardsthe public
oto form an opinion on the value which they should give to the information, ideas and opinions disseminated by the media
Towardsregulatoryauthorities
oto enforce anti-concentration rules in the media (cf. presentation J.-F. Furnémont) and other measures to promote media pluralism
BroadlyRecognised
COUNCIL OF EUROPE
•Article 6 ECTT
•Committee of Ministers Recommendation (94) 13 on Measures to Promote Media Transparency (see also Recommendations on media pluralism, 1999 and 2007and Parliamentary Assembly Resolution 1920 (13) on the state of media freedom in Europe)
•Commissioner forHuman Rights
EUROPEAN UNION
•Article 5AVMS Directive; Article 5 E-Commerce Directive
•Eur. Parliament Resolution of 2008 on media concentration and pluralism; and Resolutionof 21 May 2013 on the EU Charter: standard settingsformedia freedomacrossthe EU
•EU Study on Indicators for Media Pluralism (2009)
•European Commission’s High-level Group on Media Freedom & Pluralism (2013)
OTHER
•OSCE RepresentativeforFreedomof the Media

5. 19/09/2014
5
ECHR, CentroEuropa 7 v. Italy (2012)
“As it has often noted, there can be no democracy without pluralism. Democracy thrives on freedom of expression. It is of the essence of democracy to allow diverse political programmesto be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself.”
“…to ensure true pluralism in the audiovisual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary in addition to allow effective access to the market so as to guarantee diversity of overall programmecontent, reflecting as far as possible the variety of opinions in the society at which the programmesare aimed.”
ECHR, CentroEuropa 7 v. Italy (2012)
“A situation whereby a powerful economic or political groupin society is permitted to obtain a position of dominanceover the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their editorial freedom underminesthe fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive.”
“…in such a sensitive sector as the audiovisual media, in addition to its negative duty of non-interference the State has a positive obligation to put in place an appropriate legislative and administrative frameworkto guarantee effective pluralism.”

6. 19/09/2014
6
N.B. Council of Europe members
Whydo we needtoact?

7. 19/09/2014
7
Recent reportsandempiricalstudies stress:
•“Lack of media ownership transparency and opacity of funding sources.”
(EU High Level Expert Group on Media Pluralism, 2013; http://ec.europa.eu/digital-agenda/en/high-level-group-media-freedom-and-pluralism)
•“In the majority of countries studied the absence or limited nature of media specific or general disclosure provisions means that citizens are unable toestablish who owns or controls the media operating in their country.”
(Access Info Europe & Open Society Media Program, Report on "Transparency of Media Ownership in Europe" (2012) and Recommendations (2013); http://www.access-info.org/en/media-transparency)
2012 Studyof 19 Council of Europe countries(plus Marocco)
•Legal framework in most countries is insufficientto guarantee transparency of media ownership.
•Disclosure to media regulators of beneficialowners of media outlets is not currently required in most of the countries.
•No unified or standard approach to collecting or requiring disclosure to the public of media ownership data, particularly with regard to print and online media.
•General company law does not suffice
•NGO or CSO initiatives, voluntary reporting or self- regulation do not suffice

8. 19/09/2014
8
FINDINGS Access Info Europe 2012 Study of 19
Council of Europe countries (plus Marocco)
“There is a need for clear international
standards on transparency of media
ownership and on the legal framework
required to achieve it. There is currently no
clear standard, despite the recognition that
transparency is important. Such
recommendations as do exist are non-binding
and have proved ineffective.”
http://www.access-info.org/en/media-transparency
Study on Media Democratization in the Western
Balkans: A Cross-National Comparison (2013)
K. Irion, “Follow the Money! Ownership & Financial
Transparency should be a Media Policy Standard”,
LSE Media Policy Blog, 30 April 2014

9. 19/09/2014
9
BroadlyRecognised?
COUNCIL OF EUROPE
•Article 6 ECTT
•Committee of Ministers Recommendation (94) 13 on Measures to Promote Media Transparency (see also Recommendations on media pluralism, 1999 and 2007and Parliamentary Assembly Resolution 1920 (13) on the state of media freedom in Europe)
•Commissioner forHuman Rights
EUROPEAN UNION
•Article 5AVMS Directive; Article 5 E-Commerce Directive
•Eur. Parliament Resolution of 2008 on media concentration and pluralism; and Resolutionof 21 May 2013 on the EU Charter: standard settingsformedia freedomacrossthe EU
•EU Study on Indicators for Media Pluralism (2009)
•European Commission’s High-level Group on Media Freedom & Pluralism (2013)
OTHER
•OSCE RepresentativeforFreedomof the Media
A clearcase of
moralhypocrisy?*
At leastsomediscrepancybetweenstatements andactions... (*) cf. titleof thispresentation

10. 19/09/2014
10
Whatdo we needtodo?
ACTION POINT 1
Adopt clear and precise legal framework with mandatory reporting obligations
•That apply to broadcast, print, online media
•That allow to identify the beneficial and ultimate owners of media outlets
Essential basic information
•Name and contact details of media outlet; constitutional documents
•Size of shareholdings over a threshold of 5%
•Name and contact details of direct owners with over 5% shareholding
•Identity of those with indirect control or significant interest (> 5%)
•Citizenship/residence status of individuals with over 5% shareholding
•Country of domicile of company with over 5% shareholding
•Identity of beneficial owners where shares are held on behalf of another, e.g. via brokerage or silent ownership
•Financial accounts / audit reports(sources of media revenue)
Regular updates! (report subsequent changes in ownership)

11. 19/09/2014
11
ACTION POINT 1
Adopt clear and precise legal framework
with mandatory reporting obligations
 Additional disclosure obligations (“transparency
of influence”)
• Interests of owner in other media organisations
• Interests of owner in non-media organisations
• Positions held by any owner in a political party or employment as a
public official
• Family affiliations (including a definition of “affiliation”) between any
owners (N.B. again with 5% threshold)
• Senior management, for example directors (of a company), key
executive officers, managing editor
• Details of relative voting weights where these are not equally distributed
among shareholders, and minutes of annual general meetings including
records of voting.
Best practices – some examples
• Norway
• Austria (Federal Constitutional Act on the transparency of media
cooperation, advertising orders and support for owners of periodical media)
• Croatia (cf. presentation D. Hajduk)

12. 19/09/2014
12
ACTION POINT 2
Enable (with resources) national media authorities to collect, and make public, information to identify beneficial and ultimate owners of media outlets
•Powers to sanctionnon-compliance with information obligations (alsoin case of incomplete or inaccurate info)
•Make information available in open electronic format (preferably onlineand searchable), at no cost to the public.

13. 19/09/2014
13
25
GERMANYCf. presentationB. Malzanini
TWO-PRONGED APPROACH
•Media-specificreportingrules(Art. 21 Rundfunkstaatsvertragandequivalent provisionsin broadcastinglawsof Länder) => obligationforbroadcasterstoreport ownershipstructuretoState Media Authority
•Systematicmonitoring of media concentration=> Kommission zurErmittlungder KonzentrationimMedienbereich(KEK)
•http://www.kek-online.de
Netherlands
•No media-specificreportingrules
•Systematicmedia concentrationmonitoring: Commissariaat voor de Media: collectsdata frombusiness records provided by the Chamber of Commerce and makes this information available to the public throughitswebsite, Mediamonitor.nl.
•List of allelectronicmedia service providers availableon website regulator

14. 19/09/2014
14
Belgium
•Media-specificreportingrulesforradio andTV providers (includingon-demandproviders):
oWhenapplyingfora licenceor notifyingthe service: needtoprovideinformation on company statutesandfinancial structure;
oAfterwardsinformthe regulator of anychanges
•Belgianmedia regulators (Vlaamse Regulator voor de Media; ConseilSupérieurde l’Audiovisuel): basedon owndata, as well as data frombusiness records provided by the Chamber of Commerce and annual accounts available from Central Balance Sheet Office,they make available to the public annualreportsand/or online statistics(infra)
•List of allelectronicmedia service providers availableon websites regulators
http://www.csa.be/pluralisme/
http://www.vlaamseregulatormedia.be/

15. 19/09/2014
15
ACTION POINT 3
Consider / Improve complementary measures
•Freedom of information acts
•Conflict of interest rules, disclosure of major donors or sources of finance, explanation of the organization’s editorial line (co/self-regulation)
•Media literacy
•International standardization and cooperation
ACTION POINT 4
Beware of chilling effects!
Media ownership rules should not transform into a censorship instrument!
•Which media organizations are covered by reporting requirements?
only professional media (though not necessarily only companies); threshold

16. 19/09/2014
16
ACTION POINT 4
Beware of chilling effects!
•To whom must disclosure be made?
independenceof the media authorities from sector and government (accountability to Parliament; sufficiently resourced)
one-way reporting requirement which in no way implies a requirement to register the media outlet or obtain permission to operate
avoid duplication, not unduly burdensome
ACTION POINT 4
Beware of chilling effects!
•What is required to be disclosed?
Information should serve purpose
Indirect or beneficial interests!

17. 19/09/2014
17
Article 29

18. 19/09/2014
18
Semper fideliset audax!
Thankyouforyourattention

19. 19/09/2014
19
ANNEXES
•European Convention on TransfrontierTelevision –Article 6: Provision of information
o1The responsibilities of the broadcaster shall be clearly and adequately specified in the authorisationissued by, or contract concluded with, the competent authority of each Party, or by any other legal measure.
o2Information about the broadcaster shall be made available, upon request, by the competent authority of transmitting Party. Such information shall include, as a minimum, the *name or denomination, *seat and *status of the broadcaster, the name of the *legal representative, the *composition of the capital, the nature, purpose and mode of *financing of the programmeservice the broadcaster is providing or intends providing.

20. 19/09/2014
20
Article 5AVMS Directive
•Member States shall ensure that audiovisual media service providers under their jurisdiction shall make easily, directly and permanently accessible to the recipients of a service at least the following information:
•(a) the name of the media service provider;
•(b) the geographical address at which the media service provider is established;
•(c) the details of the media service provider, including its electronic mail address or website, which allow it to be contacted rapidly in a direct and effective manner;
•(d) where applicable, the competent regulatory or supervisory bodies.
Article 5 E-Commerce Directive
•1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
o(a) the name of the service provider;
o(b) the geographic address at which the service provider is established
o(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;
o(d) where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register;
o(e) where the activity is subject to an authorisationscheme,the particulars of the relevant supervisory authority;
o(f) as concerns the regulated professions: any professional body or similar institution with which the service provider is registered […]
o(g) where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC

21. 19/09/2014
21
FurtherReading
•Y. Stolte andR. CraufurdSmith, “The European Union andmedia ownershiptransparency: the scope forregulatoryintervention”, Open Society Foundations, 2010. 23 p. http://mediapolicy.org/wp-content/uploads/the-european-union-media-ownership-transparency.pdf
•Group of Specialistson Media Diversity, “Methodologyformonitoring media concentrationandmedia content diversity”, 2009. 13p. http://www.coe.int/t/dghl/standardsetting/media/Doc/H- Inf(2009)9_en.pdf
•A. Harcourt, “Report on methodologyforthe monitoring of media concentration, pluralismanddiversity”, Report forthe Group of Specialistson Media Diversity, 2008. 82 p.
•IRIS Special, “Converged Markets -Converged Power? Regulation and Case Law”, European Audiovisual Observatory, Strasbourg, 2012, http://www.obs.coe.int/about/oea/pr/irisspecial2012- 01.html
•MediaAct(Media accountability and transparency in Europe)http://www.mediaact.eu/project.html
•Media and Democracy in Central and Eastern Europe (MDCEE) reports http://mde.politics.ox.ac.uk/
•MEDIADEM reports(2011-2013); http://www.mediadem.eliamep.gr/
•Access Info Europe & Open Society Media Program "Transparency of Media Ownership in Europe“; http://www.access-info.org/en/media-transparency
•Open Society Foundations, MappingDigital Media Reports(2012-2013); http://www.opensocietyfoundations.org/projects/mapping-digital-media
•Independent studyon indicators for media pluralism in the EU Member States (2008- 2009); http://ec.europa.eu/information_society/media_taskforce/pluralism/study/index_en.htm

22. 19/09/2014
22