Dear Mr. President,
Our organization is Whiting with regards to the recent proposed legislation regarding the national public broadcasting station. This legislation, passed by the Polish parliament on 24 Jun 2009 regarding the National Public Broadcasting, necessitates a comment from the Observatory for Freedom of Media of the Helsinki Foundation for Human Rights. We request that you read over our concerns and either veto the law as it is, and send it back to the Parliament for revision.
After examining the draft legislation for the Public Activity within the Sphere of Media Services Act (Ustawa o zadaniach publicznych w dziedzinach mediów), we have come to the conclusion that the adopted legislation should be re-examined and certain sections be broadened or altered.
The initial reasoning behind the new legislation, as detailed in its motivation section, focused on two intentions: decreasing the domination of particular political views and improving funding for the public stations. However, while the legislation succeeds in some regards, it achieved neither of these goals. We have examined various models for public broadcasting laws as well as other successful models (i.e. BBC and PBS) and have compared their structures, language, and purposes with the new law. There are three areas that we would recommend altering: Chapter 2 (Purposes), Chapter 5, Article 16 (Financing), and the hierarchical structure detailed by the responsibilities assigned to the National Council of Radio and Television (Krajowa Rada Radiofonii i Telewizji further referred as "National Council").
The draft legislation does not provide a general public mission of public media. It does however focus on various specific goals of public media. One of the key benefits of a public broadcasting company is that it can serve as a forum to support a variety of thoughts of general citizens. While this station is primarily funded by the government, it is not a platform to support the government ideals, rather it is meant to serve the public interest, as well as a balanced array of varying perspectives that can represent and inform the general public in both majority and minority views.
The newly passed legislation does an excellent job of detailing the goals and purposes of the public company. It details the importance of supporting national identity while also voicing the importance of including ethnic and regional minority language and perspectives. Articles 3 through 18 echo the model principles voiced in other very successful legislation. However, this section begins by limiting the programming to "Christian Ideals" and "Family Values." Both of these specifications necessarily exclude many members of Poland. Both of those details would fall under "national identity," so they will not be excluded, however by beginning with such specific language, the law limits the principles of open debate and opportunity to discuss diverse ideas.
The new legislation disposes of the previous system of funding, which depended on a fee paid by citizens who used a television, and replaced the funding source for the public service network with a very nonspecific reference to "portion of government funds". This leaves the service very vulnerable to fluctuations in budgetary practice. Beginning in January 2010, the Public Media Network’s funding will become exclusively dependent on an unsure amount of public funds of the national budget. There is not a minimum amount or percentage promised to the national public broadcast service. This minimum would assist in guaranteeing the continuous functioning of the national public broadcast network, and prevent a shift in government expenditure from causing its demise.
Funding for this service can come from a variety of different systems. One example that has been very successful in different states, particularly Great Britain, would be a licensing fee paid by every citizen who receives television broadcasts. The fee is collected by an independent agency. This is similar to the current methods used in Poland, but due to the lack of proper registration or control proceedings, many citizens never paid the fee. Other options include a mandatory tax paid by anyone (both businesses and individuals) who pays an electric bill (e.g. Czech Republic) or land tax (e.g. France). It should be noted that while public subsidies are an attractive option, their use should be restricted as to reduce the risk that access to the subsidy could be manipulated to influence programming and content. Without a specified limitation on funding sources, the network could find itself dependent on government subsidies, which would need complex justification under EU law regarding competition rules.
The new legislation does not provide any provisions regarding alternative funding, such as advertising. A limitation should be placed on the extent to which funding is dependent on advertisers. Dependency on advertisers and their attached demands regarding content limitation and preferences could significantly impair the station’s ability to provide a variety of perspectives that can often be overlooked on other corporate stations. If the amount of advertising revenue is not limited, the public broadcasting network runs the risk of focusing on revenues rather than the public interest.
We would recommend providing an alternate source of funding such as a television license fee or electric bill levy, or including a guaranteed amount or percent of the public government funds to be allocated to maintaining this public service. The present language is noticeably vague. The draft regulation should not focus on changing the source of funding, rather it should explore other procedural approaches that allow better identification process and execution of the currently existing obligation.
The structural and establishment provisions are the most disconcerting short coming of the new law. In the present structure, the network is headed by the National Council. This structure is identical to the previous arrangement. Ideally, the public broadcasting network should function as an independent corporation with its own legal identity. This organ is charged with directly nominating the Program Council (Rada Programowa) as well as determining which programs will receive licenses. The Program Council is a new body that is responsible for evaluating the level and quality of programs, however this organ has only the ability to provide advisory opinions and its decisions are only enforceable if the National Council so chooses. The draft law is vague with regards to the impact that the Program Council could have on management decisions. The positive amendment introduced by the draft is the nomination of the members of the Program Council from NGOs experts, academics and culture activists.
Presently, the same authority oversees the licensing, financing plans, funding distribution, program control, funding withdrawal, etc. In effect, one government body oversees the entire public network.
Under this structure the entity in charge of the network is directly elected by the Parliament and President which makes them politically dependent on the governing force. We would recommend creating a greater distance between direct government influence a bit broader by arranging nominations and elections for a separate board of directors that would handle the strategy, planning, annual reports, and management board elections. The BBC, PBS, and multiple model ideals for public broadcasting laws, reiterate the importance of allowing the public service station to function as an independent entity separate from direct government control. For example, the BBC Trust, an independent body that distributes licenses for programs, acts independently from direct government and BBC management influences. This trust is comprised of industry specialists and experts that work to support the goals and values of public broadcasting, while ensuring that the station maintains the public interest goals, as well as quality. This separation reinforces the importance that that public broadcasting not be unduly influenced by a particular party or political power. The station should be a public service and not a political tool. To avoid this misuse, this legislation should be very specific in its details of the establishment and structure of the mechanics of the national public station.
This legislation was initially intended to address recent controversies surrounding the present structure and management of the national public broadcasting network. Recently we saw numerous political nominees acting in powerful positions within the public networks structure, thus leaving the network vulnerable to unjustified dismissals of journalists for their views and opinions that the public network is designed to support and encourage. As a result, other media professionals left their posts at the network. A dominant political force as such has a negative effect on the quality of programming and goes against the public interest mission of public media. However, this new draft does not provide the ideological, financial, and structural remedies necessary to address these emerging political dependencies and vulnerabilities, and should thus be re-examined.
Taking into account this analysis, we request that you veto the law, as it is in need of revisions. We request that Parliament re-examine the law and its purposes while considering our listed concerns. Thank you very much for your time.
Sincerely,
Adam Bodnar, Helsinki Foundation for Human Rights
