Information Note on the Court’s case-law 254

August-September 2021

Associazione Politica Nazionale Lista Marco Pannella and Radicali Italiani v. Italy - 20002/13

Judgment 31.8.2021 [Section I]

Article 10

Article 10-1

Freedom of expression

Association classed as a “political subject” not denied the opportunity to disseminate its opinions following cancellation of a political communication programme on public television: no violation

[This summary also covers the judgment in the case of Associazione Politica Nazionale Lista Marco Pannella v. Italy , 66984/14, 31 August 2021]

Facts – The first applicant in case no. 20002/13, a political association, complained that the three television channels of the State broadcaster RAI had discontinued a type of programme devoted to political debate, known as “political platforms”.

In case no. 66984/14 the same association complained that its representatives had not been invited to appear on the most important news programmes broadcast by RAI, whereas representatives of other political formations had taken part.

The applicant political associations claimed to be the victims of a violation of their right to freedom to impart their political opinions and ideas in the media outside election periods.

Law – Article 10: Outside election periods, the Italian legal framework governing the dissemination of political views on television made a distinction between “political communication programmes”, including “political platforms”, and news programmes. The former were intended as a means of party political broadcasting, whereas the latter incorporated such broadcasting in a dynamic context linked to current affairs. The organisation of “political platforms” on State-run channels required an instruction from a parliamentary body known as the oversight commission, while the initiative for news programmes fell within the editorial autonomy of each channel and each television newsroom, subject to compliance with the general principles of impartiality and pluralism of information. Provisions of statute law laid down only the general principles governing the access of “political subjects” to radio and television, leaving it to the oversight commission and the Communications Regulatory Authority (AGCOM) to adopt secondary regulations implementing those principles. The task of monitoring compliance with these various rules fell to AGCOM, an independent administrative authority with the tasks of: (1) ensuring the observance of pluralism and guaranteeing equal access of all “political subjects” to news programmes, election broadcasts and political communication programmes, and the impartiality of such programmes; and (2) monitoring the observance of the guidelines issued to RAI by the oversight commission and laying down its own additional rules where appropriate in order to ensure compliance with domestic law. The State’s direct role in supervising public-service broadcasting had thus been gradually reduced, and the increased editorial autonomy enjoyed by each channel and the editors of news programmes meant, in principle, greater protection of the principles of impartiality and pluralism of information.

(a) Application no. 20002/13 – The interference alleged by the first applicant association was said to have resulted from inaction on the part of the oversight commission, leading to the cancellation of a programme broadcast on State-run television. If there had been any interference in the present case, it had been “prescribed by law” and had pursued the legitimate aim of protecting the “rights of others”.

The first applicant association was a “political subject” within the meaning of domestic law.

The facts of the present case were not comparable to those of the cases of VgT Verein gegen Tierfabriken v. Switzerland and TV Vest AS and Rogaland Pensjonistparti v. Norway , which had concerned an outright ban on the applicant associations’ access to television advertising to impart their views and ideas of a political or social nature. In the present case, the first applicant association complained that it had not had access to a specific kind of television programme, the “political platforms”. Although the association contended that these programmes were the most appropriate format for setting out and disseminating its opinions, the present case did not involve an outright ban on a political party’s access to political television programmes, which might have been incompatible with Article 10.

The discontinuation of the “political platforms” had been the result of inaction on the part of the oversight commission, which had stopped providing RAI with the necessary instructions for organising the programmes in question. The oversight commission was a political body expressing the wishes of the Italian Parliament as regards public-service broadcasting. The decision to no longer broadcast the political platforms was therefore a political choice, the reasons for which fell within the discretion of Parliament.

The format of the “political platform” programmes dated back to the early 1970s, when the societal context had been very different from that of today. Since then, the public had lost interest in programmes of this kind, and the broader range of news programmes now on offer gave political parties an opportunity to convey their opinions and ideas in a different way.

Furthermore, all political groups that had taken part in the political platforms had been indiscriminately affected by their cancellation. The situation would have been different if a particular party or group had been denied airtime while the views of other political formations had been broadcast, thus creating a disparity in treatment which might have raised an issue under Article 10.

In addition, the cancellation of the “political platforms” had to be seen in the context of the general trend in Italian public-service broadcasting towards greater autonomy for the channels.

In the light of the above considerations, the discontinuation of the “political platforms” had not deprived the first applicant association of the possibility of imparting its opinions, and could thus not be regarded as a disproportionate interference with its right to freedom of expression.

Conclusion : no violation (unanimously).

The Court also found, unanimously, that there had been a violation of Article 13 in conjunction with Article 10, in that the first applicant association had not had a remedy by which to complain to the national authorities about the discontinuation of the “political platforms” and the alleged violation of its right to freedom of expression.

Article 41: finding of a violation sufficient in respect of non-pecuniary damage.

(b) Application no. 66984/14 – The absence of any representatives of the applicant association on three particularly popular political news programmes broadcast on RAI amounted to an interference with the exercise of its right under Article 10. The interference had been “prescribed by law”, the law in question being aimed in particular at guaranteeing television channels editorial freedom in their choice of guests and the airtime they were given. It had also pursued the legitimate aim of protecting the “rights of others”, since the provisions of domestic law sought to guarantee impartiality and pluralism of information, and more specifically, freedom of political debate, for the benefit of citizens and democracy.

The applicant association had complained to AGCOM of an imbalance to its disadvantage in the news programmes in question. The issue raised by the complaint had been the association’s participation in debates on matters of general interest, and as a result the margin of appreciation afforded to the State had to be relatively limited.

On two occasions, AGCOM had taken no further action on the applicant association’s complaints. However, after the Regional Administrative Court (“the RAC”) had instructed AGCOM to execute its previous judgment, the regulatory authority had eventually ordered RAI to redress the imbalance that had harmed the applicant association’s interests.

The refusal by AGCOM to take into account the RAC’s conclusion that the applicant association was a “political subject” within the meaning of domestic regulations could not be justified by the association’s somewhat peculiar status. The Court found that AGCOM had been excessively formalistic, especially as the RAC had based its assessment on the actual situation of the applicant association, which had signed an agreement with a political party enabling it to put forward its own candidates in elections and subsequently to form an independent delegation within that party’s parliamentary group.

Furthermore, while it was true that, unlike political communication programmes, political news programmes were not subject to a strict requirement of proportional representation of the views of each political formation but simply to a duty to represent different political opinions in a balanced manner, the practice employed by AGCOM and the RAC regarding the application of the general principles on pluralism indicated that “political subjects” enjoyed increased protection of their access to a specific category of political news programmes, namely those characterised by a seasonal programming cycle and by a structure and format that were easily identifiable by the public. The programmes in that category, among which AGCOM included the three programmes in question, were subject to an “independent assessment” as regards their compliance with the principle of pluralism in respect of a particular “political subject”. That meant that similar situations had to be treated in a similar manner in accordance with the principle of equality, the aim being to ensure the proper conduct of political debate and hence pluralism of information.

However, without giving any reasons, AGCOM had abandoned that practice and had carried out an overall assessment of the airtime enjoyed by the applicant association during all news programmes on the channels in question, without taking into account the time at which the programmes were screened or their popularity.

When the applicant association had eventually obtained a decision from AGCOM ordering RAI to ensure that it was allocated speaking time, one of the three programmes had been cancelled from RAI’s schedule. Although it was common for programmes to be cancelled, the requirement to execute the decision should have resulted in airtime being granted to the applicant association to compensate for that development.

In addition to this, AGCOM’s decision had been only partially executed by RAI, which had been required to comply with it in order to observe the principle of pluralism of information. It transpired that the applicant association had indeed taken part on one of the two remaining programmes, but that none of its representatives had appeared on the second programme.

Lastly, the respondent Government had argued that RAI had encountered “a certain amount of difficulty” in executing AGCOM’s decision, which in their view had been due to the specific way in which the applicant association had developed since being set up in 1992. Although the political and electoral agreement that had enabled the election nine representatives of the applicant association had undoubtedly been novel in certain respects, the RAC had held in 2011 that the association was to be treated as a “political subject” within the meaning of domestic law. This should have made it possible for AGCOM to assess the association’s situation on the basis of that finding, and for RAI to resolve the difficulties referred to be the respondent Government.

The foregoing considerations were sufficient for the Court to conclude that in the present case, the measures taken by the domestic authorities to redress the imbalance that had resulted in the applicant association’s exclusion from political debate had been insufficient.

Conclusion : violation (unanimously).

Article 41: EUR 12,000 in respect of non-pecuniary damage.

(See VgT Verein gegen Tierfabriken v. Switzerland , 24699/94, 28 June 2001, Legal summary , and TV Vest AS and Rogaland Pensjonistparti v. Norway , 21132/05, 11 December 2008, Legal summary ; see also Manole and Others v. Moldova , 13936/02, 17 September 2009, Legal summary , and Animal Defenders International v. the United Kingdom [GC], 48876/08, 22 April 2013, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes