Resolution CM/ ResDH (2011)234 [1]

Execution of the judgment of the European Court of Human Rights

TV Vest As and Rogaland Pensjonistparti against Norway

(Application No. 21132/05, judgment of 11/12/2008, final on 11/03/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the applicants ’ freedom of expression, in that a fine was on them imposed by the State Media Authority in 2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having noted that no award of just satisfaction was made by the Court as the applicants submitted their claims out of time (see details in the Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)234

Information about the measures to comply with the judgment in the case of

TV Vest As and Rogaland Pensjonistparti against Norway

Introductory case summary

This case concerns the violation of the freedom of expression of the applicants, TV Vest AS Ltd, a television broadcasting company, and the Rogaland Pensioners Party ( Rogaland Pensjionistparti ), on account of a fine imposed by the State Media Authority on 10/09/2003 for breaching legislation prohibiting television broadcasting of political advertisements (violation of Article 10).

The decision of the State Media Authority concerned advertisements aired in 2003 by TV Vest and was based on the prohibition of television broadcasting of political advertising under section 3-1(3) of the Broadcasting Act 1992. The prohibition was permanent and absolute and applied only to television, political advertising in other media being permitted.

The European Court noted that the rationale for the prohibition of television broadcasting of political advertising had been, as stated by the Supreme Court when rejecting the appeal of one of the applicants, the assumption that allowing the use of such a powerful and pervasive form and medium of expression had been likely to reduce the quality of political debate and to give richer parties and groups more scope for opportunities for marketing their opinions.

However, the European Court found that because the Pensioners Party received so little attention in edited TV coverage, that "paid advertising on television had been the sole means for the Pensioners Party to get its message across to the public through that type of medium" (§73). By denying this possibility, the law had put the Pensioners Party at a disadvantage in comparison with the major parties, which had obtained broader editorial broadcasting coverage. Moreover, the content of the advertising was not as such as to lower the level of public debate. Therefore the Court considered that "the fact that the audiovisual media has a more effective and powerful effect than other media could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertising at issue" (§76).

The Court accordingly concluded that there had not been a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition of political advertising and the means deployed to achieve that aim. The restriction could not therefore be regarded as having been necessary in a democratic society (§ 78).

I. Just satisfaction and individual measures

As regards the question of just satisfaction, no issue arose before the Committee of Ministers as the Court did not award the applicants any sum since they submitted their claim out of time.

As regards domestic measures to give effect to the judgment of the Court, the Norwegian authorities informed the Committee of Ministers that on 8/07/2009, the Media Authority annulled its decision of 10/09/2003 fining TV Vest under section 10-3 of the Broadcasting Act and section 10-2 of the Broadcasting Regulations. The fine was never collected due to the dispute concerning its legality.

The applicants requested the re-opening of the case in order to claim legal costs pertaining to the proceedings before the national courts and the Court.

On 5/10/2009, following a friendly settlement reached by the applicants and the Norwegian Ministry of Culture, the applicants withdrew their request for reopening of the case. On 12/10/2009, the Norwegian Supreme Court accepted the withdrawal of the request for reopening.

II. General measures

Section 3-1(3) of the Broadcasting Act 1992 reads: "Broadcasters may not transmit advertisements for life philosophy or political opinion through television. This applies also to teletext ".

The Court acknowledged that the absence of a European consensus with regard to the extent of the regulation of television broadcasting of political advertising could be viewed as emanating from the different perceptions regarding what is necessary for the proper functioning of the "democratic" system in the various states. However, on the basis of its assessment of the circumstances of the case (see above), it concluded that "the view expounded by the respondent government, supported by the third party intervening governments, that there was no viable alternative to a blanket ban must therefore be rejected" (§77).

In response to the Court ’ s judgment, the Norwegian authorities informed the Committee of Ministers (10/09/2009) that two general measures have been adopted to prevent similar violations. These were proposed in a white paper of the Ministry of Culture and Church Affairs and approved by the Norwegian Parliament on 29/05/2009.

Improved coverage of small political parties by the national public broadcaster (NRK)

First, the Statutes of the national public broadcaster (NRK) were amended. The NRK is now obliged to provide broad and balanced coverage of elections in accordance with the amended Section 12 (b) of the Statutes of the NRK, "The NRK shall provide a broad and balanced coverage of political elections. All parties and lists over a certain size shall normally be included in the editorial election coverage". According to the white paper, the objective behind this amendment is to provide that smaller political parties, such as the Pensioners Party, are included in the NRK ’ s editorial coverage.

The Media Authority monitors NRK ’ s respect of its obligations under the new provisions. Judicial review is available against the Media Authority ’ s decisions.

The NRK has given an account of the editorial principles that governed its election coverage during elections in 2009 (parliamentary elections) and 2011 (municipal elections) in a letter dated 10/03/2009 to the Ministry where it stated that: "Parties with eligible candidates in more than half of the Regions in the national elections or in more than one municipality in the local elections, will normally be included in the NRK ’ s election coverage." This included the Pensioners Party and other political parties of a similar size. Smaller parties may also be covered under NRK ’ s obligation to provide a broad and balanced coverage.

The Norwegian authorities reported that during the parliamentary elections in September 2009, the Pensioners Party and other political parties of similar size were included in the NRK ’ s election coverage. In any case, the authorities underline that the situation of smaller parties is also covered by the second general measure.

Access to a new TV channel “ Frikanalen ”

The second measure relates to the fact that all political parties have been able to use a new TV channel, “ Frikanalen ” (the Open Channel), since October 2008 as a means to communicate political messages to the public. This also includes political parties smaller than the Pensioners Party.

Frikanalen is an open channel in which organisations or individuals broadcast their own programmes . The channel is owned by more than 60 different non-profit organisations in Norway and is financed by support from the Ministry of Culture and Church Affairs and a membership fee. Frikanalen was started in October 2008 and is distributed through the digital terrestrial television network which today covers more than 95% of households. The OSCE ’ s assessment of 2009 that the coverage appeared to be only 30% is thus no longer relevant.

The terms of the license permit the editor of the Frikanalen to delegate editorial responsibility to organisations or individuals. The editor ’ s sole obligation is to divide broadcasting time between the different organisations and to schedule their broadcasts. The Channel as such does not produce or broadcast any programmes of its own. To facilitate party political broadcasts during elections, the Ministry of Culture and Church Affairs in May 2009 signed an agreement with Frikanalen which states:

"Reference is made to the objectives of the Frikanalen ‘ to strengthen the freedom of speech and democratic participation by enabling new groups the opportunity to communicate by way of the television medium ’ . Reference is furthermore made to the Ministry ’ s objectives concerning an open channel. In order to fulfill these aims Frikanalen is to facilitate freedom of speech for all political parties and lists. During the last three weeks before an election such political parties and lists shall be given priority. Frikanalen shall furthermore enable regionalisation of its signals in connection with Municipal and Regional Elections in order for local parties and lists to obtain television coverage through Frikanalen ."

The Norwegian authorities report that during the last parliamentary elections the Pensioners Party exercised the opportunity to broadcast programmes on Frikanalen . As of 2009 four political parties had broadcast their programmes on this channel, including smaller political parties. The Open Channel today operates 24h/24h, 7 days a week, and is designed also to be accessible via cable and internet.

Other

In addition, as particularly highlighted in the Court ’ s judgment and in the final resolution in the case of Bergens Tidende (See Resolution ResDH (2002)69), the direct effect of the European Court ’ s case-law is accepted by Norwegian courts and authorities.

A summary of the judgment in Norwegian, with a link to the original judgment, was published on the Internet site Lovdata ( www.lovd a ta.no/avg/emdn/ ). The Lovdata web site is widely used by all who practice law in Norway , civil servants, lawyers, prosecutors and judges alike. The Norwegian Centre for Human Rights (an independent national human rights institution) writes the summaries of the Court ’ s judgments for the database.

III. Conclusions of the respondent state

The government considers in the light of the above considerations that no other individual measure appears necessary in this case and that the general measures taken will prevent other, similar violations. Norway has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies