TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 254/2002,

11 of June of 2002

Headnotes:

The freedom of the press (Article 38.4 of the Constitution) presupposes the independence of the media, in general, in relation to the political power (in particular the government), i.e. equal treatment regardless of the editorial line taken, the prohibition of any discriminatory allocation of public aid, and the independence of the media in relation to the economic power. Article 38.4 of the Constitution indicates a number of ways of achieving that aim, which may be summarised in three principles: the principle of transparency, the principle of speciality and the principle of pluralism.

The constitutional requirement to have control mechanisms in respect to the media structure in the public sector may relate to both (i) the administrative and financial organisation of companies, in order to ensure the independence and absence of any functional subordination of the relevant administrative organs, and (ii) the internal structure of those media companies in order to prevent the government, public administration and all other public powers from interfering in the content and programming of the public service.

Summary:

The President of the Republic requested an anticipatory review of the constitutionality of a regulation approved by parliament to be promulgated in the form of a law. This regulation dispensed with the power of the "Advisory Council" to issue a binding opinion on the membership of the administrative body of the licensed public service television corporation (RTP). The power in question was replaced by one to issue an opinion of a non-binding nature on the appointment and dismissal of directors responsible for programming and information. The question at issue was whether this amendment violated the guarantee of the independence of the media in the public sector, established by Article 38.6 of the Constitution.

The arguments put forward by the President of the Republic were, first of all, the constitutional guarantee of the freedom and independence of the media in relation to the political and economic power; second, the fact that the independence of the public service media in relation to the government was an institutional guarantee to which the system of the protection of rights, freedoms and guarantees applied; third, the fact that the power in question of the "Advisory Council" was, if not exclusive, at least the primary regulatory expression of this institutional guarantee; and, finally, the fact that the reason behind the legislative initiative in question had been the political context, shaped by the circumstances, content, scope and consequences of a negative opinion recently issued by the "Advisory Council". In view of the fact that the said legislative initiative limited the institutional guarantee of the independence of the public sector media, it would be legitimate only if it were proportionate, appropriate, required and necessary for the pursuit of another interest protected by the Constitution.

Article 38.6 of the Constitution sets out specific requirements for the independence of the mass media in the public sector in addition to the requirements relating to mass media (referred to in Article 39.1 and 39.4) and the requirement explicitly concerns the public mass media (referred to in Article 39.5). The first specific requirement concerns independence from "the Government, the Public Service and other public bodies" (first part of Article 38.6). In this context, this means that a company must be so organised as to ensure that the public sector media can act independently of any of the aforementioned institutions. The second requirement is ideological pluralism expressed in the need to "guarantee opportunities for the expression of, and challenge to, different lines of opinion" (second part of Article 38.6).

The Constitution and the law rely on several legal arrangements to guarantee the independence of the media in the public sector; the procedure for appointing the independent authority responsible for ensuring the right to information and the freedom of the press; the drawing up of the rules concerning the membership of the managing bodies; the laying down of conditions of ineligibility and incompatibilities; limitation of the number of terms of office or inadmissibility of re-election; limitation of the power to dismiss members of the administrative body.

The Court found that the regulation in question dispensed with the power of the "Advisory Council" to issue a binding opinion on the membership of the RTP administrative body, replacing it with the power to issue a non-binding opinion on the appointment and dismissal of the directors responsible for programming and information. However, it had not inaugurated any other arrangement in the public service television structure to protect, either directly or indirectly, the latter's independence in relation to the government, the public service and other public bodies. Accordingly, the Court found that the regulation was contrary to the Constitution in that it violated the guarantee of the independence of the media in the public sector, established by Article 38.6 of the Constitution.

Supplementary information:

The "Advisory Council" is a body provided by the Broadcasting Act and the articles of association of RTP, the public television broadcaster. It comprises 34 representatives from different political, trade union and civil society backgrounds. Basically, its responsibility is to take a position on the licensing contract, the plans and general foundations of the RTP's activities and, in addition, to issue an ex-ante binding opinion on the membership of the RTP administrative body.

Six judges found that the regulation in question was contrary to the Constitution, whereas the other five found that it was in conformity with the Constitution. Moreover, this was a unique piece of case-law insofar as the Court, in ruling on a request for anticipatory review, was also ruling, without entering into details, on the value of legislative amendments accepted by the Constitution.