JOINT DISSENTING OPINION OF JUDGES LEMMENS, JELIĆ AND PAVLI

1. The current case raises novel questions with fundamental implications for freedom and pluralism of broadcasting, as well as the openness of political discourse in our democracies. It touches on questions of the necessity and proportionality of severe sanctions imposed on a private broadcaster on grounds of internal pluralism, as well as the crucial procedural safeguards that must apply in such circumstances. While we agree with much of the majority analysis of the generally applicable principles and the possible grounds justifying the revocation of the applicant company’s broadcasting licence, we disagree with the conclusion that the decisions of the national authorities were accompanied by sufficient procedural safeguards. It is on this basis that we have voted to find a violation of Article 10 of the Convention.

2. This appears to be the first case in which the Court has been called upon to review the revocation of the licence of a national broadcaster on grounds of so-called internal pluralism, namely failure to provide balanced political coverage. This made it necessary for the Court to clarify the relationship between external pluralism – the overall pluralism of a country’s broadcasting sector, which has been at the centre of much of our broadcasting jurisprudence to date – and the requirements of internal pluralism, within individual operators, which is a relatively novel issue for our case-law. Today’s judgment seeks to address these general questions under the heading of “the need to develop the Court’s case-law on media pluralism” (see paragraphs 187-96 of the judgment). While we are generally in agreement with the elucidation of the principles in this part of the judgment, we wish that the Court had placed greater emphasis on the following key aspects.

3. First, any interferences with a broadcaster’s freedom of expression in the name of internal pluralism should necessarily take into account their implications for the overall pluralism of the country’s (or part of a country’s) broadcasting offer. Internal pluralism is merely a tool for achieving the ultimate goal of external pluralism, not necessarily an end in itself. In the context of the current case, for example, it is highly relevant that the NIT channel appeared to be the only national operator that gave prominence to the views of the country’s only opposition party at the time. With its disappearance from the broadcasting scene, it seems obvious that there was an adverse impact on overall pluralism. This argument cannot translate into a licence for minority voices to break the law with impunity, but it is nevertheless an important consideration.

4. It is also important to highlight, secondly, that there are different models of internal pluralism in the European legal space, as the judgment rightly notes in paragraph 190. Depending on each country’s tradition and political culture and the historical development of its broadcasting sector, softer or stricter versions of internal pluralism have been chosen, especially with respect to direct content-based requirements (see also the results of the comparative-law survey in paragraphs 110-12 of the judgment). A large part of the rationale behind these varying approaches – and this is what the judgment should have acknowledged more explicitly in our view – is the fact that stricter models of internal pluralism tend to be in significant tension with the principle of the editorial autonomy of each individual broadcaster, a cornerstone of media freedom (see the academic study commissioned by the European Commission on media pluralism indicators, cited in paragraph 108 of the judgment, which is much more explicit on this point). [2] Such models therefore need to be subjected to closer scrutiny than softer versions of internal pluralism, which rely on a combination of structural safeguards and less stringent duties on broadcasters to ensure overall balance in their public affairs programming.

5. Thirdly, we are in full agreement with the judgment’s emphasis on “the important role which regulatory authorities play in upholding and promoting media freedom and pluralism, and the need to ensure their independence given the delicate and complex nature of this role” (see paragraph 205 of the judgment). It is hard to overstate nowadays the importance of independent broadcasting regulatory authorities, with their formidable powers of licensing and oversight over a core sector of our political discourse, coupled with the deference they tend to be accorded in view of their specialised expertise, including by the judicial branches (see paragraphs 105 and 109 of the judgment). We consider, however, that while a solid regulatory framework is necessary to provide the conditions for the regulators’ independence and impartiality, it is not sufficient, by itself, to ensure that these cardinal principles are respected in practice. This is especially true for new democracies, though not only. As a result, it is essential that both this Court and domestic courts scrutinise quite carefully any interferences with media freedoms by such regulatory authorities, to ensure that their decision-making is not marred by any signs of bias or lack of fair treatment.

6. Fourthly, the judgment fails to provide in our view sufficient guidance as to the conditions for subjecting a national broadcaster to the ultimate sanction of delicensing – what can be referred to as the “nuclear option” – for supposed failures of internal pluralism, a consideration that will always retain a measure of subjective assessment by a regulator. In our view, delicensing on such grounds can be considered compatible with Article 10 only if the following minimum proportionality conditions are met: it should be based on findings of sustained bias in the broadcaster’s political coverage over an extended period of time; it should be preceded by a gradually increasing scale of sanctions, as well as a final warning prior to revocation of the licence; and it should not be implemented, in the absence of a demonstrated serious and imminent threat to major State interests (such as national security), without giving the broadcaster an opportunity to seek prompt judicial review and a stay of enforcement. After all, revocation of the licence is a form of prior restraint and it should be subject to similar safeguards (see, mutatis mutandis , RTBF v. Belgium , no. 50084/06, §§ 114-15, ECHR 2011).

7. Finally, we wish that the Grand Chamber had paid greater attention to the changing role of broadcasting in the digital era, and its implications for both external and internal pluralism. In some ways, the judgment reads as if it were oblivious to the epochal changes that have occurred in the past twenty years. There is no discussion, for example, as to how the analogue-to-digital transition within broadcasting itself, coupled with the transformational changes in the diversity of information and opinion that can be found in the online environment, may (or may not) have affected the traditional rationales for stricter regulation of broadcasting, such as spectrum scarcity or audience behaviour. We happen to agree that, despite the blessings (and flaws) of the digital era, the audiovisual media in Europe continue to be, at least for the time being, “a sensitive sector” that requires careful regulation (see paragraph 192 of the judgment). However, such a conclusion is far from obvious, especially in the longer term, and the judgment would have made a greater contribution to the field by engaging more seriously with these questions.

8. Turning to the applicable national framework in this case, we can only concur with the majority that the internal pluralism policy chosen by the Moldovan legislature at the relevant time was “rather strict” (see paragraph 202 of the judgment), but we cannot share the view that it was largely unproblematic or not “markedly different from that of many Council of Europe member States” (see paragraph 208 of the judgment). There are several aspects of the national legal framework, as in force at the relevant time, that we consider to be rather problematic.

9. The most significant concern is the requirement in Article 7 § 2 of the Audiovisual Code to “give airtime to other political parties and movements within the same type of programme and in the same time slot”, whenever “giving airtime to a political party or movement for the propagation of its position” (see paragraph 85 of the judgment). This requirement suffers from both vagueness and potential overbreadth, and it can be quite difficult to implement in practice without significantly undermining editorial independence. It appears to be based on the premise that the main function of a private television channel is to provide equal airtime to political movements that wish to “propagate their positions”; if taken too literally, it would turn private broadcasters into mere mouthpieces of political parties. While such requirements may not be uncommon within the short windows of electoral campaigns and as applicable to electoral programming alone, they would be very difficult to comply with in regular programming and especially within news editions. The latter need to be guided by the channel’s independent editorial judgment about the newsworthiness of the events and topics of the day, not the needs of political parties to advance their agendas. It is important to recall, in this connection, that it was exclusively on the basis of its news editions that the applicant company in the present case lost its licence. Lastly, it is noteworthy that the current Audiovisual Code of Moldova, adopted in 2018, does not include any provisions along the lines of the previous Article 7 § 2, and is generally much closer to the European norm in its formulation of the duties of fair and balanced coverage (see paragraph 96 of the judgment).

10. Secondly, in terms of the applicable principles under Article 10 of the Convention, we do not consider the majority’s references to “the right of reply” to be helpful in this context (see paragraph 200 of the judgment). To begin with, in those countries where a right of reply exists in some form, it typically offers persons targeted by media criticism an opportunity to respond to factually inaccurate and defamatory statements, subject to further qualifications (see, as a recent example, Gülen v. Turkey (dec.), nos. 38197/16 and 5 others, § 67, 8 September 2020). As such, it is not a suitable vehicle for ensuring overall political pluralism, especially in terms of diversity of opinion (it is simply impossible for a media outlet to grant a right of reply to everyone who disagrees with any and all opinions expressed in its pages or airtime). Conversely, a general duty to provide an “opportunity to comment” (see paragraph 200 of the judgment) to all the main sides to a particular debate or controversy seems a more reasonable basis. However, such a duty is still quite different from an obligation to “give airtime” to all political parties, whenever one of them is provided with an opportunity to comment. We note that the requirement in Article 7 § 4(c) of the Moldovan Audiovisual Code – to provide “multi-source information” in conflict situations and as applicable specifically to news editions – is better crafted than the sweeping obligations under Article 7 § 2.

11. Finally, we wish to underscore certain concerns related to the independence of the Audiovisual Coordinating Council (ACC), the regulatory authority that ordered the revocation of the applicant company’s licence. The judgment notes that the concerns expressed by the Council of Europe experts in relation to the structural safeguards for the ACC’s independence “were in the main accepted by the Moldovan legislature and included in the final text of the Code” (see paragraph 205 of the judgment). This is only partially correct, however. One of the key elements that led to the positive assessment of the draft Audiovisual Code by the Council of Europe experts involved a provision that required that ACC members be appointed through a two-thirds supermajority in Parliament. The experts specifically noted in their final assessment that this provision “is to be welcome”, [3] and it can be assumed that it was considered a significant safeguard in the overall institutional scheme in order to ensure the ACC’s insulation from single-party dominance. However, that provision was changed in the final stages of the parliamentary adoption of the Code to provide for appointment by simple majority (see Article 42 of the Code, as cited in paragraph 85 of the judgment). Moreover, the concerns about the ACC’s independence went beyond the legal framework: the European Commission’s country progress report 2012 for Moldova urged the national authorities to “ensure the full and effective independence” of the ACC as its primary recommendation in the field of media freedom for that year. [4] The fact that a majority of ACC members had been appointed before the change of government in 2009 (see paragraph 222 of the judgment) is not sufficient, in our view, to dispel those concerns, which were reiterated by the European Commission and other actors as late as 2013, that is, in the aftermath of the controversy triggered by the events of the current case.

12. It is important to note at this juncture that we are not oblivious to the general national context of the period, which was a challenging time in Moldova’s transition towards a modern European democracy (see paragraph 202 of the judgment). While such considerations might provide justification for a rather strict regulatory framework of internal pluralism (if not for its lack of clarity), any decisions taken pursuant to that framework still need to be defensible under the substantive and procedural criteria set by the Court in its Article 10 case-law.

13. In the light of the general considerations outlined above, we consider that there were at least five factors in the present case that called for strict scrutiny by the Court: the presence of a strict national model of internal pluralism, based on legislative provisions that were liable to open-ended and subjective enforcement; the imposition of the ultimate sanction on the broadcaster with immediate effect; the fact that this particular operator represented the main opposition voice in the country’s broadcasting scene; certain concerns about the ACC’s independence; and the obvious chilling effects that a licence revocation in these circumstances would have on other broadcasters and the national political discourse generally. The majority do in fact recognise that the Court “must scrutinise closely” the proportionality of the interference in view of at least some of the cited factors (see paragraph 222 of the judgment). We are not persuaded, however, that they have in fact applied such close scrutiny, especially with respect to the procedural safeguards against arbitrariness and abuse. Instead, the majority have placed a rather impossible burden on the applicant company to adduce “concrete evidence” that the ACC’s decision was motivated by political bias or pressure (ibid., in fine ).

14. We start by noting that we do not disagree with the core assessment of the national authorities, largely endorsed by the Grand Chamber, that NIT’s reporting was “clearly biased in favour of the activities” of a single party, without providing sufficient opportunities for other political players, especially the governing parties, to put across their viewpoints (see paragraph 213 of the judgment). This is notwithstanding the obvious point that it is unsurprising for the media in a democracy to be more critical of the government of the day than of opposition actors; yet even the government is entitled to fair treatment, broadly considered. We also agree that the applicant company showed a certain persistence in its biased coverage, despite the application of multiple sanctions over a number of years, which resulted in increasingly harsher sanctions, even if most of these were in the form of modest fines (see paragraph 224 of the judgment). That notwithstanding, we are unable to share the majority’s view that the delicensing decision was accompanied by adequate procedural safeguards against arbitrariness and bias, for the following reasons.

15. Firstly, with respect to the methodology used by the ACC for its monitoring of pluralism compliance, we note that it was based exclusively on the news editions and covered a period of only five days. We do not consider such a short period adequate or in line with relevant best practices, which tend to require longer periods of monitoring that are randomly selected and spaced out over several months. There is a significant risk that a single week of monitoring may produce biased results, based on the political developments of that particular week or the political temperature in the country, for example. Furthermore, we have already noted the difficulties of applying the standards of Article 7 § 2 of the Code to news editions (see paragraph 9 above).

16. Secondly, the extremely hasty manner in which the final ACC decision was taken raises serious questions about its procedural fairness and the applicant company’s ability to present an effective defence. The applicant company’s lawyer was presented with the findings of the monitoring exercise, without having prior knowledge of those findings, without a proper opportunity to prepare a defence or consult with the client, and without any warning that a revocation decision was being contemplated. The ACC decision was taken the very same day and the station was taken off the air within twenty-four hours. We simply cannot see how such a procedure can be considered a fair administrative process, especially in view of the gravity of its outcome.

17. Thirdly, the way the ACC organised this procedure and took its decision raises serious questions about its attitude towards the applicant company, and its own independence and impartiality in the process. As the Court has often noted, beyond the niceties of any legislative text or institutional arrangements, the independence of a decision-making body is, ultimately, “a state of mind” (see, with respect to judicial bodies, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 234, 1 December 2020). As such, it may be extremely difficult for any applicant to provide “concrete evidence” of bias or lack of independence, and we consider that the approach adopted by the majority in this respect is not only inconsistent with the notion of “close scrutiny” of government interferences with media freedom, but also problematic for potential future applicants raising similar Article 10 claims (as well as general discrimination claims more broadly).

18. The Court should be able to rely on the totality of the evidence before it and draw inferences from the actions and justifications, or lack thereof, provided by the relevant authorities. The proof of impartiality, in other words, ought to be in the “decision-making pudding” – which is in fact the approach followed by the Court when assessing the objective impartiality of judicial decision-makers under Article 6 of the Convention. The relevant standard is whether there are “ascertainable facts which may raise doubts as to the impartiality of the body itself” in the eyes of an objective observer (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 96, ECHR 2009). The majority’s approach in today’s judgment also stands in contrast to the broad contextual review undertaken by the Court in other Article 10 cases involving prima facie claims of bias, “ulterior motives” or punitive government motives in sanctioning a speaker because of his or her views (see, for example, Baka v. Hungary [GC], no. 20261/12, §§ 145-49, 23 June 2016). In the current case, the respondent Government have not put forward any convincing explanations for the extreme haste of the ACC in taking and enforcing its revocation decision. That failure weighs heavily in our assessment of the overall fairness of the process.

19. Finally, it is important to consider the role of the national courts. We are prepared to concede that the concerns about the fairness of the administrative process before the ACC could have been alleviated had the national courts exercised robust judicial review in order to remedy those shortcomings, especially in relation to the applicant company’s request for urgent interim relief. As the judgment recognises, “the immediate effect of a measure interfering with the right to freedom of expression may weigh heavily ... in circumstances where [relevant] procedural guarantees are lacking” (see paragraph 226 of the judgment). Regrettably, that was the case here with the national judicial review and therein lies one of our strongest disagreements with the majority’s conclusions on the merits of the case (see paragraph 227 of the judgment, finding that the national courts “in substance balanced the conflicting interests at stake”).

20. The national courts, including the Supreme Court, rejected the applicant’s request for a stay of enforcement on the grounds that granting the stay would expose the courts to the risk of “determining the merits of the case”; and that the applicant company’s contention that its free-speech rights were at risk of irreparable harm was merely “declaratory and unproven” (see paragraph 54 of the judgment). We find such arguments to be wholly unpersuasive, in view of what was at stake for the ability of a national broadcaster to continue to stay on the air, and quite apart from the significant financial implications for a television station that faced the prospect of being off the air for many months before a final decision on the merits could be reached. The flawed administrative procedure before the ACC – involving the immediate shutdown of the main opposition voice in the national broadcasting scene – should have raised obvious red flags for the national courts, which were not properly addressed or even acknowledged in their decisions, at both the interim and the final resolution stages. Such casual disregard for core media freedom values cannot be considered to be in line with the exacting standards of Article 10 in the arena of political speech. It is also impossible to ignore the broader “chilling effect” for other domestic broadcasters which were surely following the proceedings with keen attention.

21. In conclusion, we concur that the national authorities might have had good reasons to consider revoking the applicant company’s licence on grounds of sustained bias in its political coverage. We consider, however, that the actual revocation decision was marred by serious procedural shortcomings that not only undermined the applicant company’s ability to properly defend its interests but also raised substantial questions about the ACC’s impartiality in the process. As the national courts also failed in our view to promptly address and remedy these shortcomings, we conclude that there has been a violation of the applicant company’s rights under Article 10 of the Convention.

22. With respect to the applicant company’s claims under Article 1 of Protocol No. 1, Judges Lemmens and Pavli voted in favour of finding a violation of that provision on the basis that the serious procedural violations that marred the licence revocation decision are bound to have had a significant adverse impact on the licence-holder’s property rights, rendering the interference with such rights disproportionate in the circumstances.

1. Council of Europe Report ATCM(2006)004, “Analysis and Comments on the Draft Audiovisual Code of the Republic of Moldova”, p. 3.

1. In relation to “political pluralism” standards, referencing the Council of Europe Recommendation CM/Rec(2007)2, the study notes: “A careful balance should be struck between stimulating political pluralism and respecting the editorial independence of media outlets. Privately owned media are entitled to follow an editorial line which might show a specific political preference. Therefore, impartiality as a quality for political reporting cannot be required of this type of media. Nonetheless, political coverage, even that by privately owned broadcasters and newspapers, should at least be fair and accurate” (ibid.).

2. E Salomon and K. Jakubowicz, “Analysis and comments on the draft audiovisual Code of the Republic of Moldova,” 15 May 2006, Doc. ATCM(2006)004, p. 29; available at:

http://old.parlament.md/download/expertises/ATCM(2006)004_en%20Moldova.pdf

3. Available at:

https://eeas.europa.eu/archives/docs/enp/pdf/docs/2013_enp_pack/2013_memo_moldova_en.pdf