Table of Contents
Introduction 2
Media and Language Rights in the Latvian Legal Environment 5
The Latvian Case in the Light of International Standards on Language
Rights 9
International Organizations Positions on Broadcasting Legislation
in Latvia 24
Language Restrictions in Latvian Media Compared with Language
Policies in Other Countries 26
National Radio and Television Councils 34
Electronic Media and Integration of the Society of Latvia 41
Conclusions 47
Recommendations 51
Introduction
The share of minorities in the total population in Latvia is one of
the highest in Central and Eastern Europe. According to the
Latvian Board of Citizenship and Immigration, as of January 1, 2003,
ethnic non-Latvians constituted 41.6 percent of the
country’s population of 2.337 million. Ethnic Russians comprised 29
percent of the general population, followed by ethnic
Belarussians (3.9 percent), Ukrainians (2.6), Poles (2.5), Lithuanians
(1.4), and Jews (0.4). Minorities are dispersed
throughout the country, but their share is generally higher in urban
areas, and they are concentrated in some parts in the east of
the country. Ethnic minorities actually form majorities of population
in some towns, including the capital Riga (about 60%).
During the Soviet era, Latvia’s population has grown largely due to
a migration from other parts of the Soviet Union, thus
contributing to the rise of the share of non-Latvians to 48 percent
by 1989. This process caused ethnic Latvians to fear that
they would become minority within their own country. The tendency was
reversed after the declaration of Latvia’s
independence in May 1990, and from 1990 onwards the share of the ethnically
non-Latvian population has been steadily on
decline.
The specificity of the Latvian minority situation is in the fact that
minorities are politically constituted on a linguistic rather than
ethnic basis. Problems that have been subject to international scrutiny
as well as of domestic policy controversies in the area of
human rights and minority rights have been related chiefly to language.
From this perspective, the residents of Latvia fall into
two categories: a majority of Latvian-speakers (around 60 percent)
and a minority Russian-speakers (approximately 40
percent). Other minority languages, although also spoken in Latvia,
are of very limited usage.
The situation of linguistic minorities in Latvia, particularly of the
Russian language speakers, is compounded by the persisting
problem of citizenship. To date, over half of the Russian speakers
living in Latvia are non-citizens. This status is a general
impediment to their equal access to and exercise of their rights across
all spheres of social life.
After the restoration of independence, it was necessary to establish
a new public broadcasting system and ensure the
development of the commercial TV and radio channels. In 1992 the Supreme
Council of the Republic of Latvia adopted the
Law on Radio and Television. According to this law, broadcasting in
languages other Latvian shouldn’t exceed 1/3 of total
airtime and films on private TV channels as well as announcements and
commercials in foreign languages should be translated
or should have subtitles in Latvian. In 1995 the Saeima (the Parliament
of Latvia) adopted a new Radio and Television Law.
Amendments regarding language issues were adopted in October 1998.
Article 19 regulates the use of foreign languages:
"…
(3) Films demonstrated shall be dubbed in the Latvian language, or also
with the original soundtrack and sub-titles in the
Latvian language, but films intended for children shall be dubbed or
with voice-over in the Latvian language.
(4) Television broadcasts in foreign languages, except live broadcasts,
re-transmissions, broadcasts to foreign countries, news
and language instruction broadcasts, shall have sub-titles in the Latvian
language.
(5) The amount of broadcasting time in foreign languages in programs
produced by broadcasting organisations shall not
exceed 25 per cent of the total volume of the broadcasting time in
a twenty-four hour period. This provision is not applicable
to
Latvian Television, Latvian Radio, cable television, cable radio, satellite television, and satellite radio."
As regards advertising, a requirement that ads must be either in Latvian
language or in the language in which the program is
broadcast is found in Article 22.1 of the Law.
The Radio and Television Law further requires one of the two public
TV-channels and one of the two public radios to
broadcast solely and entirely in the state language, while the second
TV channel and the second public radio can allocate up to
20% of their airtime to programs in other languages.
At the beginning of 1990s a number of Riga-based TV programs such as
NTV-5, IGE, Picca-TV, KS- video, etc., were
owned by private broadcasters. Country-based television was developing
as well. Public television (Latvijas Televizija)
consisted of two public channels, LTV1 and LTV2 (which became LTV7
in 2003), and retained a monopoly position. In the
middle of 1990s, the situation on the TV market changed significantly
after LNT (Latvian Independent Television) began to
broadcast nationwide, and another private broadcaster, TV Riga, was
launched to cover the Riga area. For example,
according to a poll of February 1997, LNT was the most popular channel
with an audience of 38%. As of 2002 LNT still
preserves its leading position on the market. In February 2001, the
National Radio and Television Council issued a permit to
the private TV broadcaster "TV3 LATVIA" to function as a 4th national
network.
There are 5 public radio channels in Latvia and four of them have national
broadcasting coverage. Public radio channel "Doma
Laukums" broadcasts in non-Latvian languages, predominantly in Russian.
Commercial, private radios first appeared in 1993.
Since 1998 commercial radio station Radio SWH has national broadcasting
coverage, therefore its number of listeners is
potentially larger than other stations’ audience. Later, another two
broadcasters - Star FM and Christian Radio “Latvijas
Krist?gais Radio” received license to broadcast on the whole territory
of Latvia. Approximately a dozen commercial radios
broadcast for Riga and the Riga region, of which the most popular are
SWH, Radio Skonto, Super FM, Radio Mix FM, and
Radio PIK. The local radios have a transmission radius of 15 – 25 kilometers
and are focused on local audiences. Main
source of income for commercial radios is advertising. Between 80-90
percent of their time is devoted to music.
According to the National Radio and Television Council, as of January
2003, licenses have been issued to 31 commercial
radio broadcasters, 26 commercial TV broadcasters, and 37 cable TV
and cable radio broadcasters.
Media and Language Rights in the Latvian Legal Environment
A chapter on "Fundamental Human Rights" was incorporated in the Satversme
(the Constitution of Latvia) in 1998. Article
100 of the Satversme envisages that "Everyone has the right to freedom
of expression, which includes the right to freely
receive, keep and distribute information and to express his views.
Censorship is prohibited." Article 116 defines Article 100
as "subject to restrictions in circumstances provided for by law in
order to protect the rights of other people, the democratic
structure of the State, and public safety, welfare and morals".
The only constitutional provision directly related to persons belonging
to ethnic minorities is Article 114: "Persons belonging to
ethnic minorities have the right to preserve and develop their language
and their ethnic and cultural identity."
In the context of the above constitutional norms, Article 19(5) of the
Radio and Television Law prohibiting the broadcasting of
more than 25% of the time in non-Latvian languages by private channels
is, at minimum, questionable.
At the same time, language restrictions are considered legitimate and
necessary by the mainstream political community of
Latvia. For example, according to Ms Anta Rugate, member of the Latvian
parliament, the 25 percent limit has a positive
value because "monocommunity" society in Latvia must be built on the
basis of state (Latvian) language.
Only one owner of a private broadcasting company, Mr Vladimir Gurov,
has attempted to use legal instruments to challenge
language restrictions, and submitted a petition to the Constitutional
Court. In 2000 – 2001, the National Radio and Television
Council – the body entrusted with implementing the media law, several
times suspended the operation of the radio station
"Biznes & Baltia", which belonged to Mr Gurov. His company’s radio
broadcasts in Russian had allegedly exceeded the
legally permissible time. On August 9, 2001, Mr Gurov, on behalf of
the private media holding "Biznes & Baltia", brought a
lawsuit in the Constitutional Court of Latvia, asking the Court to
declare Article 19(5) of the Radio and Television Law
unconstitutional. The plaintiff claimed that Section 19(5) violates
a number of articles of the Latvian Constitution, in particular
Article 89 (human rights protection under to the Constitution, domestic
laws and international agreements), 91 (prohibition of
discrimination), 100 (freedom of speech) and 114 (the rights of national
minorities), as well as Article 10 and 14 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and Article 19 and 27 of the
International Covenant on Civil and Political Rights. On August 26,
2001 the complaint was declined on the grounds that
"other remedies are not exhausted". It should be emphasized that Article
19.2(3) of the Law on the Constitutional Court
allows reviewing a case before other remedies are exhausted: "If the
review of the constitutional claim is of general importance
or if legal protection of the rights with general legal means cannot
avert material injury to the applicant of the claim, the
Constitutional Court may reach a decision to review the claim (application)
before all the other legal means have been
exhausted". Since then, Mr Gurov has turned to the lower courts in
Latvia and has lost the case in the District, Regional and
Supreme Courts respectively. In April 2002, the Senate of the Supreme
Court declined his complaint.
On December 12, 2002 a group of 24 MPs from the oppositional faction
"For Human Rights in United Latvia" brought the
case before the Constitutional Court of Latvia asking to declare Article
19(5) of the Radio and Television Law
unconstitutional. The role of the Constitutional court in creating
a legal precedent on this issue may be of critical importance for
the minority integration process in Latvia.
It may be inscribed in the general European tendency, according to which,
"The primary achievement of constitutional courts
throughout Europe has been to give a clear signal that the audiovisual
media should not be treated as just another commodity:
radio and TV have become central mechanisms through which we gain an
understanding of ourselves and others".
The Radio and Television Law established an implementing body, the National
Radio and Television Council (further -
NRTC). Among its competencies, the NRTC examines broadcasting materials,
establishes violations of the law and,
depending on the seriousness, frequency and public danger of the violations
determined, may take one of the following
decisions:
i.issue a warning to the broadcasting organisation;
ii.prepare a report concerning an administrative violation
and send it to the Ministry of Justice for imposing an
administrative sanction (hasn't been enforced
at the moment of 28.02.2003);
iii.annul the broadcasting permit, the re-transmission
permit, the cable television permit or the special permit (license) for
cable radio (radio transmission) operation;
iv.suspend the operations of the broadcasting organisation;
v.file an action in court to terminate the operation of
the broadcasting organisation;
vi.forward materials to law enforcement institutions for
the bringing of a criminal action.
In the period 1996 – 2001, NRTC imposed 38 sanctions to private TV and
radio broadcasters for not observing language
norms, and 17 of them - for not observing the 25 percent "ceiling".
More than half of these sanctions were warnings. In 8
cases NRTC decided to suspend the operations of the broadcasting organization
for certain time periods, and in the case of
TV Riga (43rd channel) the decision was to file an action in court
aimed to terminate the operation of the broadcasting
organization (March 2000).
The conflict between NRTC and TV Riga began in November 1996, when NRTC
accused TV Riga that 80 percent of its
broadcasting had been in Russian language. TV Riga objected that films
in Russian with Latvian subtitles had to be considered
as programs in Latvian. Then, in July1999, the operation of TV Riga
was suspended for one week. In June 2000 the Zemgale
District Court instructed NRTC and TV Riga to conclude a friendly settlement.
The members of the NRTC didn’t accept the
friendly settlement proposed by Aleksandr Mirlins, the head of TV Riga.
Finally, after a year and a half TV Riga was renamed
TV5 - Riga, and new owners started to realize a new concept of the
channel.
Suspending of broadcasting, of course, caused material losses to private
broadcasters. However, they rarely proceeded to
calculate the exact value of those damages.
Broadcasting companies that want to broadcast in non-Latvian (mainly
in Russian) constantly need to take into account
language limitations prescribed by the law. This creates a number of
inconveniences and difficulties. Many non-Latvian
broadcasters consider these restrictions as an obstacle for normal
development of their businesses. However, they have not
attempted to organise to protect their rights to impart information
in non-Latvian language. According to journalist Alexandr
Gilman, member of Riga City Council, non-Latvian broadcasters lack
legal knowledge and their civic consciousness is limited.
The Latvian Case in the Light of International Standards on Language Rights
This section takes a look at international human rights standards in
the broad area of minority rights, with a focus on linguistic
rights, and explores the degree to which they are applied or applicable
to the Latvian case.
European Convention on Human Rights (ECHR)
Latvia ratified the European Convention on Human Rights in 1997. Article
10(1) of the Convention states: "Everyone has the
right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers".
As noted by Helen Darbishire, it is evident that the
freedom to ‘impart information and ideas’ included in the right to
freedom of expression under Article 10 of the Convention,
cannot be taken to include a general and unfettered right for any private
citizen or organization to have access to broadcasting
time on radio or television in order to forward its opinion.
Nonetheless, the denial of broadcasting time to one or more specific
groups or persons may, in particular circumstances, raise
an issue under Article 10 alone or in conjunction with Article 14 of
the ECHR, which prohibits discrimination on any basis in
exercising a right under the convention, including on the basis of
language.
Analysis of the case law under the Convention shows that the few cases
that have indirect bearing to the issue examined in this
paper confirm the possibility that the Latvian situation violates the
ECHR.
In Handyside v. United Kingdom (1976), the European Court of Human Rights
paid the utmost attention to the principles
characterizing a "democratic society". In particular, the Court stated
that, "Freedom of expression constitutes one of the
essential foundations of such a society, one of the basic conditions
for its progress and for the development of every man…
Such are the demands of … pluralism, tolerance and broadmindedness
without which there is no "democratic society". This
means, amongst other things, that every "formality", "condition", "restriction"
or "penalty" imposed in this sphere must be
proportionate to the legitimate aim pursued."
Apparently in the Latvian situation the support of the state language
is one of the "legitimate aims" for the language restrictions
on TV and radio. However, the possibility to receive information in
Latvian language is obviously ensured in Latvia, therefore
the usage of minority languages can’t significantly threaten the development
of the state language. Strengthening the position of
the state language should be supported by other means, such as broadcasting
important information in Latvian language on
both public and private channels; organizing Latvian language education
with the help of TV and radio programs, etc.
In the case "Informationsverein Lentia" v. Austria, the European Court
of Human Rights noted that the undertaking of
freedom of expression in democratic society "cannot be successfully
accomplished unless it is grounded in the principle of
pluralism, of which the State is the ultimate guarantor. This observation
is especially valid in relation to audio-visual media,
whose programs are often broadcast very widely."
A national survey held in November 2001 and in February 2002 found that
12% of the non-Latvians don’t know Latvian at
all, and 48% of the non-Latvians have an elementary level of Latvian
language knowledge. In view of the existing language
restrictions on both public and private broadcasting, it is obvious
that the principle of pluralism in Latvia is not properly
guaranteed by the state. Approximately 60 percent of the non-Latvians
are denied equal access to the right to receive
information, and to participate in public life. With reference to the
principles of interdependency and inter-relatedness of all
human rights, this disadvantage its turn has a more or less direct
negative impact on accessing a broad spectrum of
constitutional rights on part of language minority members.
Apart from stressing the role of the state in ensuring pluralism in
society, the Court stated in its judgment in
Informationsverein Lentia that "the grant or refusal of a license may
also be made conditional on other considerations,
including such matters as the nature and objectives of a proposed station,
its potential audience at national, regional or local
level, the rights and needs of a specific audience and the obligations
deriving from international legal instruments". The case
Verein Alternatives Lokalradio Bern v Switzerland confirms the importance
of meeting the needs of a specific audience, in
the following opinion of the European Commission on Human Rights: "The
Commission
nevertheless considers that refusal to
grant a broadcasting license may raise a problem under Article 10,
in conjunction with Article 14 of the Convention in specific
circumstances. Such a problem would arise, for example, if the refusal
to grant license resulted directly in a considerable
proportion of inhabitants of the area concerned being deprived of broadcasts
in their mother tongue".
Undoubtedly, minorities in some cities in Latvia, such as Riga and especially
Daugavpils, where about 60 and 86 percent of
the population respectively are native Russian-speakers, ought to be
considered as a "specific audience" when the State
regulates the language of broadcasting.
In the case Autronic AG v. Switzerland, the European Court of Human
Rights noted that Article 10 applies not only to the
content of information but also to the means of transmission or reception
since any restriction imposed on the means
necessarily interferes with the right to receive and impart information.
According to this interpretation, any restriction regarding
the means and forms of the distribution of information contradicts
the freedom to impart information.
In my view, this position can be interpreted to imply also language
as one of the main means or forms of distribution of
information. Language is, philosophically, even closer interrelated
with the content of information than the technical means of
information dissemination. If these means (as in the case above mentioned)
are seen as a part of the protected right, then
language should be seen as even more legitimate part of the protected
right. A similar argument is found in the Supreme Court
of Canada's reasoning, in the case of Ford v. Quebec, regarding the
interrelationship between language and freedom of
expression: "Language is so intimately related to the form and content
of expression that there cannot be true freedom of
expression by means of language if one is prohibited from using the
language of one's choice."
Article 10(2) of the Convention defines that freedom of expression may
be subject to restrictions or penalties if they "are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the
protection of the reputation or the rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the
judiciary." Taking these criteria one by one as a possible excuse for
language restrictions on broadcasting in Latvia, one could
argue that neither of the items of this exhaustive list is reasonably
applicable in the Latvian context. Indeed, it would be
unrealistic to fear that a radio station broadcasting in Riga in Russian
language may threaten national security only on account
of the fact that it broadcasts in Russian. Equally unrealistic is the
threat to territorial integrity presented by, for example, a TV
in Daugavpils transmitting in Russian, unless the content of the programs
itself is secessionist. The issues of protection of
morals, "reputation or rights of others", and "disclosure of information
received in confidence", are dependent on the content of
media messages but the language in which these messages get across
to an audience is hardly of any relevance.
International Covenant on Civil and Political Rights (ICCPR)
The Covenant came into force in Latvia on 14 May 1992. It protects freedom
of expression in Article 19: "Everyone shall
have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice".
The most basic international law provision on minority rights, Article
27, establishes negative obligation for states to abstain
from interfering with language use: "In those States in which ethnic,
religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the
other members of their group (…) to use their own
language."
In the case Ballantyne, Davidson and McIntyre v. Canada the Human Rights
Committee (the supervisory body to ICCPR)
stressed that the Quebec authorities’ prohibition of the use of any
language other than French for commercial signs in public
places was neither an appropriate nor a justifiable remedy against
threats to the French culture. The Committee held that the
commercial element in an expression taking the form of outdoor advertising
cannot have the effect of removing this expression
from the scope of protected freedom.
According to language rights expert Fernand de Varennes, to ban private
broadcasting in a minority language would in
addition constitute a form of discrimination and a violation of Article
27 of the ICCPR.
The Human Rights Committee under procedure of consideration of reports
submitted by state parties (Article 40 of the
Covenant) in its comments expressed concern over the inadequate protection
of the rights of ethnic, religious and linguistic
minorities in the Dominican Republic. In particular the Committee stated:
"In this regard, the Committee notes that the
prohibition of broadcasting in a language other than Spanish is not
in conformity with article 19 of the Covenant." The
Committee recommended that the Dominican Republic take further steps
for the elimination of discrimination concerning
ethnic, religious and linguistic minorities.
Framework Convention for the Protection of National Minorities (FCNM)
The Convention entered into force in February 1998. It represents the
most comprehensive multilateral instrument for the
protection of minorities in Europe. The Convention does not however
contain a definition of what constitutes a national
minority, nor does it actually grant rights to members of minority
groups, but rather imposes obligations on contracting parties.
It should be mentioned that the only legal act directly referring to
national minorities in Latvia is the Law "On Unrestricted
Development of National and Ethnic Groups of Latvia and the Rights
to Cultural Autonomy", adopted by the Supreme
Council of the Republic of Latvia in 1991. The major drawback of the
Law is its purely declarative nature and the absence of
a definition of national minority. No concrete mechanisms are provided
for the implementation of its principles and goals.
Latvia has signed FCNM in 1995 and still remains the only EU accession
country, which hasn’t ratified FCNM yet. Although
the Latvian parliament has not yet ratified the Convention, the current
situation is covered by the 1969 Vienna Convention on
the law of treaties, to which Latvia became a party on 4 May 1993.
According to Article 18 of the Vienna Convention, a
State is obliged to refrain from acts that would defeat the object
and purpose of a treaty prior to its entry into force, when it
has signed that treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval.
Former OSCE Commissioner on National Minorities Mr. Max van der Stoel
in a Note to Latvian Minister of Foreign Affairs
in 1999 underlined the necessary to observe the Vienna Convention.
Latvia arguably violated its treaty obligations under Art.
18 of the Vienna Convention when the Radio and Television Law was amended
so that the airtime for broadcasting in
non-Latvian language for private channels was reduced to 25% (down
from 30%) in October 1998, after signing the FCNM.
Resolution 1236 adopted by the Parliamentary Assembly of the Council
of Europe in January 2001 recommends the
ratification of the Framework Convention by Latvia "as a matter of
priority". Besides, on October 9, 2002 the Commission of
the European Communities made public its 2002 Regular Report on Latvia's
progress towards accession. In the field of
protection of minorities, the Commission noted that the Framework Convention
for the Protection of National Minorities has
not still been ratified: "Latvia is urged to ratify it".
Paragraph 1 of Article 9 of the FCNM states: "The Parties undertake
to recognize that the right to freedom of expression of
every person belonging to a national minority includes freedom to hold
opinions and to receive and impart information and
ideas in the minority language, without interference by public authorities
and regardless of frontiers. The Parties shall ensure,
within the framework of their legal systems, that persons belonging
to a national minority are not discriminated against in their
access to the media."
There are no obstacles for the press to impart information in minority
languages in Latvia. As regards broadcasting, Russian
speakers who have no good command of Latvian are limited in their access
to the media.
That this is has been more or less explicitly acknowledged by policy
makers. Olgerts Tipans, Adviser to the President of
Latvia, suggested that the introduction of language limitations had
been expected to motivate Russian speakers to improve
their Latvian language skills, but acknowledged that this has not happened.
Mr Uldis Grava, Director General of the National
TV, has admitted that it is hard to demand from elder non-Latvians
good Latvian language skills if they didn’t need it before.
Mr Janis Sikstulis, member of the National Radio and Television Council,
recognised that the language restrictions on TV and
radio don’t fulfil its role anymore and now it’s time to think about
abolishing these restrictions, in the first place in the districts
predominantly inhabited by national minorities.
Despite these attitudes, language restrictions remain to date and create
a situation that is in stark contrast with the standards of
the FCNM. Paragraph 3 of Article 9 of FCNM envisages that in the legal
framework of sound radio and television
broadcasting, states shall ensure, as far as possible, and taking into
account the provisions of paragraph 1, that persons
belonging to national minorities are granted the possibility of creating
and using their own media.
According to Article 25 of the Convention, within a period of one year
after the Convention entered in force, states shall
transmit to the Secretary General of the Council of Europe full information
on the legislative and other measures taken to give
effect to the principles set out in the Convention. This requirement
is the main concern of the Latvian politicians from the
present ruling coalition. They expect that significant changes in the
legal acts related to minority issues after FCNM ratification
would be required.
Taking into account that there are other complicated and sensitive minority
language problems for the society of Latvia,
including, for example, the right to receive instruction in one's native
language and some norms in the State Language Law,
which have to be solved in the transitional period of one year after
FCNM ratification, it should be recommended that
language restrictions in the Radio and Television Law be abolished
before FCNM ratification. The language issues in the area
of education and communication with administrative authorities seem
to be less likely to be resolved in the short term: political
dialogue over them will be more difficult, since they touch the patriotic
sensitivities of the ethnic Latvians deeper than the
private media issues which are associated rather with economic enterprise.
European Charter for Regional or Minority Languages
The Charter entered into force in March 1998. The charter does not establish
any individual or collective rights for the
speakers of regional or minority languages. Nevertheless, the obligations
of the parties with regard to the status of these
languages and the domestic legislation, which will have to be introduced
in compliance with the charter, will have an obvious
effect on the situation of the communities concerned and their individual
members.
Article 11 of
the Charter, in particular, envisages that " the Parties undertake, for
the users of the regional or
minority languages
within the territories in which those languages are spoken, according to
the situation of each
language, to
the extent that the public authorities, directly or indirectly, are competent,
have power or play a role
in this field,
and respecting the principle of the independence and autonomy of the media:
a.to the extent that radio and television carry out a public service mission:
i. to ensure the creation of
at least one radio station and one television channel in the regional or
minority languages; or ii. to
encourage and/or facilitate the creation of at least one radio station
and one television channel in the
regional or minority languages; or iii. to make adequate provision so that
broadcasters offer
programs in the regional or minority languages;"
The Parties also undertake to ensure that the interests of the users
of regional or minority languages are represented or taken
into account within such bodies as may be established in accordance
with the law with responsibility for guaranteeing the
freedom and pluralism of the media.
Latvia neither ratified, nor signed the Charter. As of January 20, 2003,
17 States have ratified and 12 States have signed the
Charter.
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities
UN General Assembly adopted the Declaration in 1992. The Declaration
was inspired by the provisions of article 27 of the
International Covenant on Civil and Political Rights. In its Article
2 the Declaration proclaims that persons belonging to
national or ethnic, religious and linguistic minorities have the right
"to use their own language, in private and in public, freely and
without interference or any form of discrimination." This document
established no special obligations for the states, however
Article 9 of the Declaration states that "the specialized agencies
and other organizations of the United Nations system shall
contribute to the full realization of the rights and principles set
forth in the present Declaration, within their respective fields of
competence."
Oslo Recommendations Regarding the Linguistic Rights of National Minorities
In the summer of 1996, the High Commissioner on National Minorities
requested the Foundation on Inter-Ethnic Relations to
consult a small group of internationally recognized experts with a
view to receiving their recommendation s on an appropriate
and coherent application of the linguistic rights of persons belonging
to national minorities in the OSCE region. The
Recommendations elaborated in 1998 on the request of OSCE High Commissioner
on National Minorities provide a useful
reference for the development of state policies and laws in the area
of implementing of the language rights of persons belonging
to national minorities, especially in the public sphere. The chapter
"Media" recommends to states to ensure that persons
belonging to national minorities have the right to establish and maintain
their own minority language media. It also recommends
that persons belonging to national minorities be guaranteed the right
to have a proportionate access to broadcasting in minority
languages. In particular, Article 9 of the Recommendations directly
refers to the issue of language restrictions in the law:
"Persons belonging to national minorities should have access to broadcast
time in their own language on publicly funded
media. At national, regional and local levels the amount and quality
of time allocated to broadcasting in the language of a given
minority should be commensurate with the numerical size and concentration
of the national minority and appropriate to its
situation and needs."
This recommendation is of critical relevance to the Latvian case. Despite
the fact that the Oslo recommendations create no
legal obligations for Latvian authorities, they are an indication of
how the international community sees the future in this area.
As long as the problem of access to broadcasting time in minority languages
on public media exists in Latvia, and language
restrictions for private broadcasters remain in force, responsible
authorities ought to consider authoritative recommendations
set out by independent bodies of experts such as the Oslo recommendations.
European Union’s standards
The EU political criteria for membership, defined by the European Council
in Copenhagen in 1993, include minority
protection: "Membership requires that the candidate country has achieved
stability of institutions guaranteeing democracy, the
rule of law, human rights and respect for and protection of minorities".
EU Treaties do not contain norms referring directly to minority rights
protection. Nevertheless, language rights, including the
rights to use minorities’ languages when providing services, can be
considered as a subject of protection under the EEC
Treaty. For example, in the case Ministere Public v. Mutsch, the European
Court of Justice stated "in the context of a
Community based on the principles of free movement of persons and freedom
of establishment, the protection of the linguistic
rights and privileges of individuals is of particular importance."
In particular, Article 59 of the EEC Treaty requires for member states
to observe the freedom of providing services: "within
the framework of the provisions set out below, restrictions on freedom
to provide services within the Community shall be
progressively abolished during the transitional period in respect of
nationals of Member States who are established in a State
of the Community other than that of the person for whom the services
are intended. The Council may, acting by a qualified
majority on a proposal from the Commission, extend the provisions of
the Chapter to nationals of a third country who provide
services and who are established within the Community".
The ruling of the European Court of Justice in the case of the Commission
of the European Communities v Kingdom of
Belgium, regarding the language of electronic media transmission, should
be invoked in this context. The Belgian
government’s regulations prohibiting cable television companies from
broadcasting on their network programs from radio or
television broadcasting stations in other EU Member States, where the
programs are not transmitted in the language or one of
the languages of the Member States in which the station is established,
was in breach of Article 59 of the Treaty. If a Flemish
language commercial radio station based outside Belgium and the Netherlands
claimed the rights to preserve and strengthen
Flemish language in Belgium, but were not allowed to broadcast in that
country, this would violate the freedom of service
provision of the EC. The Court recognized that "it is important to
note that the legislation in question constitutes a barrier to the
freedom to provide services in that it prevents broadcasting stations
established in other Member States from having programs
that are transmitted in a language other than that of the country in
which they are established …".
The ECJ, based on Art.59 of the Rome Treaty (protecting the free movement
in services) held the language (and other)
requirements discriminatory and illegal.
If the standards that have informed the above ruling are applied to
the Latvian context, the huge discrepancy in the level of
protection of the freedom of services will become evident. The ruling
protects services that come to an ethnic community from
abroad, from stations based in third countries in which their language
is not even spoken in any degree; whereas in Latvia, the
Russian speaking community is restricted in receiving electronic media
services in its own language even from within its own
country.
It is expected that private broadcasters will have a better opportunity
to protect their rights to broadcast in languages other
than Latvian after Latvia’s joining the European Union.
In the case of Commission of the European Communities v Kingdom of the
Netherlands, regarding limitation of the
re-transmission of advertising contained in radio or television programs
broadcast from other Member States, the European
Court of Justice ruled that "by prohibiting operators of cable networks
established in its territory from transmitting radio or
television programs containing advertisements intended specifically
for the Dutch public which are broadcast by broadcasting
bodies established in the territory of another Member State if certain
conditions relating to the structure of those bodies or
advertising contained in their programs which is intended for the Dutch
public are not fulfilled, the Kingdom of the Netherlands
has failed to fulfil its obligations under Article 59 of the EEC".
According to Dutch legislation, advertisements are deemed to
be intended specifically for the Dutch public if they were broadcast
during or immediately after a portion of a program or a
coherent group of programs containing Dutch sub-titles or a portion
of a program in Dutch. The European Court of Justice
concluded that restrictions on the broadcasting of advertisements may
be imposed for an aim relating to the general interest,
namely protection of consumers from excessive advertising or, in the
context of a cultural policy, maintaining a certain level of
program quality. However, these restrictions are not justified "since
they are designed to restrict the competition to which a
national body with a monopoly over the broadcasting of such advertising
may be exposed from foreign operators."
Latvian Law on Radio and Television establishes that advertisement
inserted into a broadcast shall be in the same language as
the broadcast itself or in the Latvian language. Taking into account
the existence of the 25 percent "ceiling" for broadcasting in
non-Latvian languages, it can be assumed that this provision essentially
narrows the access for advertising companies to
non-Latvian customers and, to some extent, decreases the potential
audience, especially in the case of radio broadcasting.
The provision about the language of advertisement aggregating with
language restriction for private broadcasters causes an
obstacle for advertising companies to develop their businesses.
European Council Directive 2000/43/EC on equal treatment irrespective of race or ethnicity
This Directive (widely known as the "race equality directive"), adopted
in June 2000, defines direct and indirect discrimination
based on racial or ethnic origin and introduces mandatory minimum standards
that the countries-candidates for EU
membership must internalize prior to accession. In particular, Article
2 defines indirect discrimination, which "shall be taken to
occur where an apparently neutral provision, criterion or practice
would put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that provision, criterion
or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary."
Analysis of this definition and of other directive
provisions suggests that at present there is a severe case of indirect
discrimination in Latvia against non-Latvian speaking
persons in accessing their rights to public services on an equal footing
with Latvian speakers. Since the Radio and Television
Law, which allows on the second public TV channel only 20% percent
to broadcast in languages other than Latvian, native
Russian speakers are deprived of their right to equality in access
to an important public service. This qualifies as indirect
discrimination under the directive, insofar as members of ethnic groups
such as Russians, Ukrainians, etc, are
disproportionately affected by the direct discriminatory regulations
based on language.
An impression of the EU as a purely economic entity is no longer an
accurate one, if indeed it ever was. As regards the right
of establishment and the freedom to provide services, the general principle
applies: Member States may still impose linguistic
competence conditions on the exercise of trades and professions. However,
such requirements must also comply with the
principle of proportionality (i.e. the measures adopted by a Member
State must be proportionate to the objectives of the
language policy pursued).
As Dr Niamh Nic Shuibhne concluded: "The recognition and realisation
of minority language rights are rooted in
considerations of equality and non-discrimination, effective participation
and cultural democracy. This holds true at both the
national and international level and applies equally to the EU as a
governing entity which creates both rights and duties for
those subject to its jurisdiction."
International Organizations Positions on Broadcasting Legislation in Latvia
One of the leading human rights organizations in the OSCE area – the
International Helsinki Federation for Human Rights
(IHF), in its annual reports expressed concerns about increased regulation
of language use in the private sphere, which can
lead to possible violations of free speech and the sanctity of private
life. The 1999 IHF Report concluded that the current
situation with language use in Latvia is beyond the limits established
by the Oslo Recommendations regarding the Linguistic
Rights of National Minorities. The 2001 IHF Report, for example, stated
that "as in previous years, language policy and its
effect on the rights of minorities, … and freedom of expression remained
a concern".
During a long period of elaboration of a new State Language Law, OSCE
High Commissioner on National Minorities Mr.
Max van der Stoel sent a number of letters with comments and recommendations
to the Latvian Minister of Foreign Affairs. In
particular, in the Note dated October5, 1999, the Commissioner stressed
that freedom of expression is a guarantee not only
to impart and receive information and ideas of all kinds, regardless
of frontiers, but also clearly guarantees the right to do it in
the form chosen by the individual.
In the EU Commission’s Regular Report 2000 on Latvia’s Progress towards
Accession, language restrictions were mentioned
among other factors limiting the integration of non-citizens.
In June 2001, the Parliamentary Assembly of the Council of Europe (PACE)
recommended to the Committee of Ministers of
the Council of Europe to take necessary measures to ensure full implementation
of the right of national minorities to create
their own media in Council of Europe member states. In its motion for
recommendation PACE expressed concerns that the
language limitations existing in several countries, including Latvia,
put disproportional burden on private media in minority
languages or even effectively prevent their establishment.
With regard to private media, in January 2003
PACE adopted Recommendation 1589 " Freedom of Expression
in the Media in Europe". In particular, PACE
asked the Committee of Ministers of the Council of Europe to urge
all European states where appropriate: "to
revise …their broadcasting legislation, to abolish restrictions on the
establishment and functioning of private media
broadcasting in minority languages…"
The European Commission against Racism and Intolerance (ECRI) published
its second report on Latvia in July 2002. As
regards public electronic media, ECRI mentioned the Law on Radio and
Television, which provides that one of the two public
TV channels must broadcast only in Latvian, while the second may allocate
only up to 20% of air time to programs in other
languages. In consideration of the large proportion of people whose
mother tongue is not Latvian, ECRI recommended that,
instead of a limit not to be exceeded for programs in languages other
than Latvian, 20% of time should be the share to be
compulsorily allocated to such programs. As regards the private electronic
media, ECRI noted that the National Council on
Radio and Television has frequently intervened to ensure compliance
of broadcasters with the provisions stipulating that no
more than 25% of airtime can be allocated to programs in languages
other than Latvian. ECRI noted that the constitutionality
of the provision limiting the time available for broadcasting in languages
other than Latvian to 25% of the total time has been
questioned, although the Constitutional Court has dismissed the application
on procedural grounds. ECRI was concerned that,
in practice, this provision contributes to perpetuating the situation
of separate access to media and information described
above, as members of non-Latvian speaking groups, and notably members
of the Russian-speaking population, tend to turn to
Russian-language channels originating from other countries.
Language Restrictions in Latvian Media Compared with Language Policies in Other Countries
In Europe, legal precedents regarding minorities and language usage
similar to the ones in Latvia are rare. It would be
interesting to look at the language law developments of Slovakia during
the 1990s. The Slovak Law on the State Language,
which went into effect in 1996, immediately sparked controversy not
only because of its human rights implications, but also
because of its constitutionality. The Law required strict use of Slovak
language, stating that Slovak is the exclusive official
language of the Slovak Republic, and cancelled a previous law, which
had guaranteed ethnic minorities the use of their
language in official and unofficial contacts. The Law also restricted
freedom of expression by partially banning the use of
languages other than Slovak in the electronic media. The Slovak Constitution
(Article 6) provided that "the use of other
languages than the state language in official contracts is guaranteed
by law", and Article 34 of the Constitution established that
"members of national minorities have the right to use their language
in official communication." Upholding an official complaint
lodged by a group of opposition politicians in reaction to the state
language law, the Constitutional Court ruled the Law
unconstitutional in 1997. Law "On the Use of Minority Languages" entered
into force in 1999.
In 2000, the Constitutional Court of Ukraine, resorting to procedural
grounds, ruled the ratification of the European Charter
for Minority or Regional languages by the Ukrainian parliament unconstitutional.
Apparently this decision had a political
background and was aimed at limiting the use of the second largest
language in Ukraine - Russian.
Research into existing broadcasting legislation in EU accession countries
and other states-members of the Council of Europe
reveals the specificity of modern approaches to the regulation of the
language of broadcasting. A few countries have
established restrictions for the broadcasting in languages others than
the state/official language. The establishing of percentage
limits of language use for broadcasting in non-official languages is
rare in European countries' legislation. Apart from Latvia,
analogous restrictions were or are still in place in very few countries,
such as Estonia, Moldova, and the Netherlands.
In Estonia, the only official language is Estonian. Non-Estonian speakers
comprise about 1/3 of the total population. Estonia
has no language restrictions for radio broadcasting. At the same time,
Article 25 of the Estonian Language Act restricts
broadcasting of TV programs in foreign languages without translation:
"(2) A translation
into Estonian is not required for programs which are immediately retransmitted,
or language
learning programs,
or in the case of the newsreader's text of originally produced foreign
language news programs
and of originally
produced live foreign language programs.
(…)(4) The volume
of foreign language news programs and live foreign language programs without
translations
into Estonian
specified in subsection (2) of this section shall not exceed 10 per cent
of the volume of weekly
original production."
Moldavia, where ethnic Moldovans make up 65% of the total population,
has imposed excessive restrictions on the
establishment and operation of private radio and television broadcasting
in minority languages. In the Law on Audiovisual
Broadcasting of 1995 the State obliged public and private broadcasters
to broadcast at least 65% of their audiovisual
programs in the state language. It should be mentioned that the implementation
of this provision was partially liberalized in
2000 after active involvement of the OSCE High Commissioner on National
Minorities. This provision was amended and the
limit of 65% is not applicable in areas compactly populated by ethnic
minorities.
Obligations on public service broadcasters established in the Dutch
Media Act seem to be more flexible. Article 54a of the
Act states: "Establishments which have obtained broadcasting time shall
devote at least fifty percent of their television
broadcasting time to programs originally produced in the Dutch or Frisian
language." At the same time, Media Decree
prescribes that public broadcasters shall devote at least 20% of airtime
on television and 25% of airtime on radio to ethnic and
cultural minorities.
Private broadcasters are subject to less restricted regulations: 40%
of television broadcast by them must be in Dutch or in
Frisian.
The power to minimize this restriction is given to the Media Authority
in Article 71g of the Act: "If requested, the Media
Authority may, in special cases and subject to certain conditions,
set the percentages …at a lower level for a specific
commercial broadcasting establishment."
No special protection of minority languages is envisaged by the Netherlands
Constitution. Recent proposals of some
parliamentarians to amend the Constitution to create an obligation
to promote the use of the Dutch language were rejected.
In Romania, the decision of the National Council for Audiovisual Broadcasting,
adopted in 1999, made it mandatory to supply
all broadcasts in minority languages, with few exceptions, with subtitles
or translation into Romanian. However, this regulation
was suspended very soon after it was adopted. State policy towards
minorities in the area of electronic media changed and
more attention was given to the needs of minorities. For example, a
new Law on Radio and Television Broadcasting, adopted
in 2002, requires for suppliers that retransmit program services by
telecommunication networks in localities where a national
minority is larger than 20% to ensure transmission services for the
programs free to retransmission, in the language of the
respective minority.
Until 2002 broadcasting in the Kurdish language (the language of the
largest minority) was forbidden in Turkey, except for
broadcasting of Kurdish music, which however was subject to arbitrary
restrictions. According to Article 4 of the Law on the
Establishment of Radio and Television Enterprises and Their Broadcasts,
as radically amended in 2002, "radio and television
programs in different languages and dialects traditionally used by
Turkish citizens in their daily lives may also be broadcast." In
other words, the liberty commonly known as "broadcasting in mother
tongue" was included in the Law. It goes without saying
that inclusion of this liberty in the legal system will not automatically
bring about an efficient use of this right. The regulation to
be issued and the stand to be taken by the government will play a determinant
role in this matter. Given Turkey's experience in
the past 20 years, however, "legal recognition" should certainly be
regarded as a crucial step.
The specific case of France should also be mentioned. As is well known,
French legislators traditionally don't recognize
minority languages, since they reject the concept of minority as applicable
to French society. This unique dissenting position
which runs counter to the European legal mainstream (for which the
existence of minorities is a matter of fact and not of law) is
based on a different understanding of citizens' equality. While we
cannot afford more detail on this controversy in the present
paper, we should note that, in addition to legal principle, the significant
influence of English language to some extent compels
French authorities to promote the exclusiveness of the French language
in the national legislation.
Having no definition of minority languages and a very specific position
with regard to the protection of minority rights, France
nevertheless signed the European Charter for Regional or Minority Languages
in 1999.
Many states have adopted broadcasting legislation which takes into account
the rights and interests of national minorities in the
media. In particular, the Bulgarian Law on Radio and Television allows
radio and television programs "to be transmitted in
languages other than the official language if the programs are intended
for Bulgarian nationals whose mother language is not
Bulgarian."
The same principle is formulated in the Lithuanian Law on the State Language:
"Article13. Audiovisual programs and motion pictures publicly shown
in Lithuania must be translated into the state language or
shown with subtitles in Lithuanian.
Paragraph 1 of this Article shall not be applied to teaching and special
programs and … programs … intended for ethnic
communities, and also to radio and television programs or texts of
musical works of foreign states, which are broadcasted in
Lithuania."
In July 2002, the Serbian Parliament adopted a new Public Broadcasting
Act, which was recognized by specialists as a
significant step forward in the reform of both public and privately
owned broadcast media. In its Article 73 the Act contains a
positive obligation for broadcasters intended to broadcast for national
minorities: "Broadcasters producing and broadcasting
programs for national minorities are obliged to broadcast at least
50% of their self-produced program in the total annual
broadcasting time in the languages of national minorities."
According to Article 25 of the 1996 Hungarian Act on Radio and Television
Broadcasting, programs presented in the native
languages of national and ethnic minorities, and programs presenting
the life and culture of national and ethnic minorities, may
be sponsored by the state in public service and public program broadcasting.
Article 26 prescribes for public service
broadcasters to foster the culture and native languages of national
and ethnic minorities living in Hungary, and provide
information in the native languages of such groups on a regular basis.
The Law especially underlines that: "This responsibility
shall be fulfilled through national broadcasting or, with regard to
the geographical location of the minority, through regional or
local broadcasting, by broadcasting programs satisfying the needs of
the minority, by providing subtitles in television
programming as required, or by multi-lingual broadcasting". It should
be mentioned here that 98.5 percent of Hungary's
present-day population speak Hungarian as their mother tongue. At the
same time, national and ethnic minorities comprise
about 11% from total population.
The Macedonian Broadcasting Act in its Article 45 states that the public
broadcasting enterprise, broadcasting programs on
the territory of the Republic of Macedonia, features programs in the
languages of the nationalities (in the Macedonian context,
the term "nationality" is used as synonymous to "national or ethnic
minority") in addition to programs in Macedonian. The same
article provides that in the areas where minority members are a majority,
the public broadcasting enterprises performing at a
local level broadcast features both in Macedonian and in the languages
of the "nationalities". As regards commercial
broadcasting, private companies can broadcast programs both in Macedonian
and in the languages of the "nationalities".
In Slovenia, special consideration for the Italian and Hungarian ethnic
minorities (accordingly 0.16% and 0.43% of total
population) for broadcasting purposes flows from the "special rights"
of these communities provided for in Article 64 of the
Constitution. The right of members of these two minorities to pursue
"activities associated with the mass media" is expressly
mentioned. Concretizing the constitutional provision, Article 52 of
the Slovenian Law on the Mass Media states explicitly that,
in the broadcasting licensing process, priority must be accorded to
applicant radio or television stations "in which the majority
of its programs are of its own production in the Slovene, or in the
Italian or Hungarian language, in the areas of communities
populated by Italian and Hungarian national minorities respectively."
In such a multicultural society as Switzerland, the freedom of language
use, as well as the freedom of the media are guaranteed
by the Swiss Federal Constitution. The independence of the radio and
television, and the independence of program design are
guaranteed by Article 93(3) of the Constitution. Accordingly no language
restrictions are established for private broadcasting.
Public broadcasting is realized by the Swiss Broadcasting Corporation
(SBC), which is responsible for performing a national
public-service task encompassing seven TV channels and 18 radio stations.
SBC charter defines the number of radio and TV
stations that SBC may operate in each language region. There are three
radio stations in each of the German, French and
Italian-speaking regions and one radio station for the Romansch-speaking
(Rheto-Roman) area, and one television channel for
each of the German, French and Italian-speaking regions, all of which
must broadcast programming in Romansch. It must be
complemented with one supplementary local language television channel
in each region. The charter also lays down a
programming mandate, which SBC must fulfill across all its radio and
television schedules:
- Promote understanding, cohesion and exchange between the different parts of the country;
- Consider the non-Swiss population and support contact with Swiss residents abroad, etc.
In Finland, Swedes, the largest minority, make up 5.8% of the total
population. However, despite the not very high
percentage of the Swedish population, there are two official languages:
Finnish and Swedish. TV programs that broadcast for
the Swedish-speaking population cover some 9% of the productions of
two different state-owned TV channels; part of the
TV programs is subtitled in Swedish. No special restrictions regarding
language usage in broadcasting are envisaged in the
legislation. The Act on the Finnish Broadcasting Company (national
public service broadcasting company, operating five
national television channels and thirteen radio channels) obliges public
broadcasters "to treat in its broadcasting Finnish and
Swedish speaking citizens on equal grounds and to produce services
in the Sami and Romany languages and in sign language
as well as, where applicable, also for other language groups in the
country".
In neighboring Sweden, by virtue of an agreement between the state and
the major public broadcasting service, television must
give special consideration to linguistic and ethnic minorities so as
to meet, "to the extent reasonable, in quality, accessibility and
variety, the differing needs and interests of the population".
It would be beyond the scope of this paper to provide a full overview
of language use in the electronic media even in
European countries. With respect to Italy and the United Kingdom, we
would limit our notes by referring to the general
evaluation provided in a Working Paper for the UN Sub-Committee on
the rights of minorities by Dr Fernan de Varennes:
summarizing the issue of public broadcasting and minority languages,
he observes that the public media in big countries, like
Italy and the United Kingdom, "include minority language broadcasting
to a degree that more or less adequately reflects the
demographic weight, needs and interests of their respective linguistic
populations". Compared with other European countries,
the Latvian legislation in the sphere of usage of languages other than
Latvian in broadcasting seems quite unique with its
restrictive character. Meanwhile, we see a tendency of a more democratic
approach for broadcasting in minority languages in
Europe. Latvia, however, reduced the possibility for non-Latvian languages
broadcasting in 1998. In the light of the EU
accession process, Latvia's current situation with the usage of minority
languages in broadcasting doesn't comply with the EU
requirement of respect for minorities.
National Radio and Television Councils
In Latvia, the procedure for establishing the National Radio and Television
Council is defined in Article 42 of the Law on
Radio and Television:
"(1) The Council shall be established by the Saeima, electing nine members to it.
(2) The members of the Council may comprise Latvian citizens who permanently
reside in Latvia. The members of the Council
shall be chosen from among persons known to the public."
The principal meaning of such an independent regulatory authority as
a national radio and television council is that the regulator
is independent from those it regulates, protected from direct political
influence, and given the full ability to regulate the market
by making policy and enforcement decisions.
The necessity of independence of the regulatory bodies is clearly stated
in the Recommendation Rec (2000) 23 of the
Committee of Ministers of the Council of Europe:
"…4. For this purpose, specific rules should be defined as regards incompatibilities in order to avoid that:
- regulatory authorities are under the influence of political power;
- members of regulatory authorities exercise functions or hold interests
in enterprises or other organizations in the media or
related sectors, which might lead to a conflict of interest in connection
with membership of the regulatory authority."
The principles of forming of the National Radio and Television Council
in Eastern European countries are different. In the
Latvian case, principle is based on the power of the ruling coalition
in parliament: in fact, all members of the Council in Latvia
are elected by the ruling coalition. This is not the case in most European
countries.
The composition of the Councils in Eastern Europe countries is influenced
by the principles of Councils' composition in
Western states. In particular, in France the right to appoint Council
members is shared between parliament and president; in
Germany, about 1/3 of the members of the Council are selected by political
parties and the rest are nominated by civil society.
For example, the Bulgarian Council is composed of 9 members, of whom
the National Assembly (Parliament) elects 5 and the
President of the Republic appoints 4. The National Council in Poland
consists of 9 members, of whom the Sejm appoints 4
members, the Senate appoints 2, and 3 are appointed by the President
from amongst persons with a distinguished record of
knowledge and experience in mass media. A more complicated composition
of the Council is found in Lithuania: "four council
members shall be appointed by the Republic President; four members
shall be appointed by the Seimas; and the following
organizations shall appoint four members as their own representatives:
the Lithuanian Science Council, the Lithuanian
Education Council, the Lithuanian Creative Artists Association and
the Lithuanian Bishops’ Conference".
Like in Lithuania, in some countries, the procedure envisages appointment
of a number of specialists from the so-called "third
sector". In this case non-governmental organisations acquire an opportunity
to influence directly the policy in the sphere of
broadcasting. For example, the Council of the Croatian National Radio
and Television consists of 25 members, out of whom
22 members shall be appointed into the HRT Council, by:
- Croatian Academy
of Science and Arts;
- Association
of Universities;
- Central Croatian
Cultural and Publishing Society;
- Croatian Emigration
Institute;
- Croatian Writers'
Guild;
- Croatian Journalists'
Association;
- Croatian Olympics
Committee;
- national minorities
in the Republic of Croatia;
- Catholic Church
in the Republic of Croatia;
- other religious
communities in the Republic of Croatia;
- trade union
associations;
- employers'
associations; etc.
Before a new legislation entered in force in
1995, the same principle of wide representation in the Council was
prescribed by the Latvian Law on Radio and
Television. In attempts to make the Council more responsible for
its decisions, in that year legislators changed
the principle of composition of the Council.
An important principle is the establishment of proportionality between
different political parties. In Lithuania, where four
members are appointed by the Seimas, two members are selected among
candidates of opposition parliamentary groups. The
same rule is observed in the Estonian Broadcasting Act - five members
out of nine are appointed by the Riigikogu
(Parliament) on the basis of the principle of political balance. In
Greece, 9 members of the Council are appointed by the
Minister of the Press and Mass Media on nominations received from political
parties represented in the parliament: the ruling
coalition nominates four members, oppositional parties – four members,
and the chairman of the parliament nominates the
President of the Council. The Slovenian Law on Radio and Television
especially notes that "five members are appointed by
the Parliament, mostly respecting the proportional representation of
the members of parliamentary parties".
The regulatory body can be an administrative unit under a Ministry.
For example, in Finland the Finnish Communications
Regulatory Authority (FICORA) is an agency in the administrative structure
of the Ministry of Transport and Communications.
In Sweden two administrative bodies, the Broadcasting Commission and
the Radio and TV Authority are appointed by the
government. In 1999, the Latvian government discussed a possibility
for the Ministry of Transport to take over a part of the
duties of the National Radio and Television Council (in particular
the right to issue licenses for broadcasters), but the idea did
not materialize.
A gender rule is included in the Irish Broadcasting Act, which requires
that out of 7 members of the regulatory body
(Broadcasting Commission of Ireland) not less than 3 shall be men and
not less than 3 shall be women. The observance of
gender equality in the composition of the Council is another indicator
of democracy and non-discrimination.
A very important principle of composition of the Radio and Television
Council is observing ethnic balance. According to the
Broadcasting Law in Macedonia, the Council consists of 9 members elected
by the parliament of the Republic of Macedonia
on the proposal of the Commission on election and appointment issues
at the parliament. The composition of the Council must
be proportionate to the nationality composition in the Republic of
Macedonia.
It has already been mentioned that in Latvia, only the Saeima’s ruling
coalition has the real though informal power to elect the
members of NRTC. Article 42 of the Latvian Radio and Television Law
defines political impartiality of the elected members
of the NRTC in a very limited way: it envisages merely that not more
than three members of the Council may be from the
same political party. In the Latvian political context, this arrangement
does not go a long way towards impartiality.
Latvian MPs have expressed their concern about the disproportionate
representation in the NRTC. According to Anton
Seiksts, Latvian MP, chairman of the Human Rights and Public Affairs
Committee, the leading political parties often pursue
partisan political interest during elections of the members of NRTC.
Another MP, Mr Miroslav Mitrofanov, hopes that
representation of minorities in the NRTC will help to take into account
minorities’ interests when distributing public funding for
the electronic media.
No political party from the ruling coalition has ever officially represented
minorities in the Saeima. Since the new principle of
composition of NRTC was established in 1995, 23 members have been elected.
Several times prominent minority
representatives were nominated to the NRTC; but no member of the Russian-speaking
minority was ever a member of the
Council.
The importance for minorities to be represented in the national radio
and television councils is emphasized in the Oslo
Recommendations Regarding the Linguistic Rights of National Minorities.
Article 10 of the Recommendations urges that
public media editorial boards overseeing the content and orientation
of programming should be independent and should
include persons belonging to national minorities serving in their independent
capacity.
Electing the Council members by parliament alone is problematic for
all the reasons, which make democracy, in the narrow
sense of majority rule, problematic if not dangerous unless it is limited
by the rule of law. Sharing the prerogative to
nominate/elect members of this body is good for all those well-known
reasons for which checks and balances are good in a
democratic society.
One of the primary functions of the NRTC is determining the basic principles
and preparing the draft state budget for financing
the National Remit (the totality of state-sponsored programs and broadcasts,
in compliance with the requirements of the
Radio and Television Law). Once the Saeima (parliament) has adopted
the budget, the Council decides on its fair allocation
and signs contracts to provide the National Remit. Until recently,
the distribution of the national remit was such that very few
programs in non-Latvian language were financed in its framework and
the amount of airtime of broadcasting in Russian was
insufficient.
In May 2002, Gundars Reders, Acting Director of National TV (LTV), stated
that in effect, the 20% allowed for
broadcasting in foreign languages on the 2nd National TV channel are
not utilised. Since the end of 2002, more programs in
Russian have been financed by the National Remit.
Democratic approaches for broadcasting in different languages are implemented
in Western European states and one of the
examples is the Swiss experience. The Swiss Broadcasting Corporation
(public broadcaster) is financed substantially by a
license fee. The Swiss have considered that the public broadcasting
programming budgets should be divided amongst the
three public broadcasting services (German, French, Italian). The license
fee is allocated as follows: 43% to broadcasts in
German, 33% to those in French and 23% to those in Italian. Taking
into account that Italian speakers comprise 12% of total
population, such distribution, to some extent, favors the smaller linguistic
populations.
The National Radio and Television Council plays an important role in
the development of electronic media in Latvia. Among
its other duties NRTC is obliged to formulate a national concept for
the development of electronic mass media, ensuring the
opportunity for high quality reception of several programs on the entire
territory of the country, and providing for the
development of both public and commercial broadcasting organizations.
In its National Concept (2000-2002), the Council
acknowledged that the volume of trans- frontier TV services had increased
significantly by using satellites and due to the new
technologies in this field the number of channels will become uncountable.
As a matter of policy, the Concept is committed to
restoring the ethnic identity of those minorities who have suffered
so-called "russification" in the Soviet period. At the same
time, in chapter 11.3 "Necessary changes in the legislation" there
were no proposals to change language policy in the
electronic media.
In January 2003 a newly adopted National Concept (2003-2005) devoted
more attention to the needs of national minorities.
It is one of the rare cases in Latvia when a governmental institution
stands openly for finding a way to abolish discriminative
restrictions. There is a recognition in the Concept that ratification
of the Framework Convention for the Protection of the
National Minorities will create contradictions between obligations
under FCNM and Article 19.5 of the Radio and Television
Law, therefore the process of language restrictions’ evaluation and
preparation of relevant amendments to the law is necessary
to start.
Electronic Media and Integration of the Society of Latvia
The National Program "The Integration of Society in Latvia" was adopted
in 2001 by the Latvian government. Many NGO
activists have criticized the National Program for its inconsistency
over the notion of "integration" across different chapters of
the Program itself. The chapter devoted to media issues doesn’t contain
any substantive and concrete ideas on how to
enhance the integrative potential of the media. The few proposals on
language issues on TV and radio broadcasting in Latvia
seem to be rather declarative. This is evident in the following statement:
"the time devoted to transmissions in Latvian and other
languages on the radio should be implemented with flexibility by taking
into account the situation with respect to language
usage in each particular region". According to researcher Svetlana
Diatchkova, "The Integration Program, and governmental
policy in general, do not pay sufficient attention to concerns of civil
society and minorities in the field of minority rights, such as
the need for greater access to education and electronic media in mother
tongue, greater promotion of minority languages, the
need for dialogue between minorities and the State, and the effective
participation of minorities in public life." At the same time
the National Program recognises the existence of two separate information
spaces for those people who commonly speak
Latvian and those who speak Russian as an important obstacle to integration.
According to Ms Vinnik, there was no TV programs for minorities and
only few TV pr ograms about minorities within the
framework of various projects, financed exclusively by foreign donors.
In the beginning of 2003, a new TV program about
minorities, "The Native Nest", financed by the national remit, was
launched. It should be mentioned that in Article 54 of the
Law on Radio and Television, one of the purposes of the national remit
is to promote the production of broadcasts concerning
the life and culture of ethnic minorities living in Latvia.
Recent practice in Macedonia, where ethnic minorities are one third
of the total population, is relevant here. Macedonian
national TV launched a multiethnic channel on 20 August 2002, featuring
programs in the languages of the Albanian, Turkish,
Serbian, Romani, Vlakh, and Bosnian Muslim minorities. The program
can be received on about 85 percent of Macedonia's
territory. Programs in minority languages had been broadcast previously
by the second channel of Macedonian National
Television five hours per day. After launching the multiethnic channel,
there are 12 hours of minority-language programs, 9
hours of which are in Albanian.
One of the obstacles preventing development of the integration process
is the shortage of broadcasting programs about
national laws and interethnic relations, as well as the shortage of
independent programs, which should be openly discussed by
Russian speakers in Russian language on the National TV and Radio,
as well as on commercial channels.
A number of experts expressed their concern about the shortage of non-Latvian
electronic media journalists and recognized
the steady decrease of qualified and well-experienced non-Latvian specialists
on public and private TV channels.
Governmental policy in the question of balanced representation of minority
journalists on TV and radio can be illustrated by
the example of Belgium. The Belgian Consultative Council for population
groups of foreign origin in the French-speaking
Community (part of the Ministry of French Culture) said the media should
allocate airtime to foreign communities. The Council
recognized that "if we believe that they are made up of individuals
and groups with their own symbols and messages that
should be more widely known." The Council also stated that this could
be achieved by "hiring journalists and presenters of
foreign origin. It would be desirable to include people of foreign
origin on programs in which members of the public take
part…It should become the rule for foreigners to be included in broadcasts
that mention important events and for cultural
groups of foreign origin to produce their own programs."
The importance of the participation of ethnic journalists in the press
and media is underlined in the special Policy Paper on
Media and Minorities, which was sent by the Dutch government to the
Parliament in 1999.
A number of surveys and polls in Latvia confirm that TV and radio have
not yet measured up to their potential to be key
factors of integration for the Latvian society; just the opposite,
communities are increasingly disintegrated and segregated on
the basis of their preferences of TV and radio channels.
In particular, statistical data on radio listeners illustrates strong preferences of the radio stations on the basis of language.
Latvijas Radio 2 Doma Laukums SWH SWH+
(in Latvian) (in Russian) (in Latvian) (in Russian)
All residents 10.4% 7.6% 9.6% 20.6%
Latvians 20.3% 1.5% 17.3% 5.5%
Non-Latvians 2.6% 12.4% 3.5% 32.6%
(summer - autumn 2002)
According to the law, restrictions of 25% for broadcasting in non-Latvian
languages were established for private broadcasting
companies, not for channels. If one broadcasting organization has several
channels it gives a possibility to use one channel for
broadcasting almost all the time in a non-Latvian language in a twenty-four
hour period. This scheme is employed by SWH, a
company with three radio channels: SWH, SWH+, SWH Rock, and by the
public broadcaster (for which language restriction
is 20%)"Latvijas Radio", with its channels "Latvijas Radio 2", "Klasika",
and "Doma Laukums".
The same situation with disintegrated audience still exists on the TV
market. LTV1 is more popular among citizens, watched
by 81%, but only 41% non-citizens watch it regularly - at least one
time a week (non-citizens still constitute approx. 22
percent of the total population of Latvia and all of them are minorities’
representatives). On the other hand, the leading Russian
Federation television channels ORT and RTR are more popular among non-citizens:
77% of non-citizens and only 35 % of
citizens watch Russian channels regularly. It should be emphasized
that compared with 1997, the audience of Russian
Federation TV channels has increased among both Russian speaking citizens
and, especially, non-citizens; this can be
explained by the fact that these channels are widely available through
cable television. Thus, the Latvian electronic media are
loosing many potential viewers and listeners, which is obviously contrary
to the public interest from the point of view of
societal integration, as well as damaging private business interests.
Since 1999, the number of Russian-speakers watching TV programs in Latvian
has decreased by 6%, and the number of
Russian-speakers listening to radio programs in Latvian has decreased
by 7%. The rating of the 1st national Latvian channel
(LTV1) significantly differs if we compare the polls in February 1997
and January 2002 – 22% and 13% respectively. It can
be assumed that the decrease is not related to language issues; rather,
this is a problem of the quality of the public channels.
On the other hand, Reinis Aboltinsh, Director of the Department of
the Integration of Society, admitted that the role of
language restrictions in media preferences is not clear, and expressed
doubt whether the restrictions help the integration
process. Contrary to the foregoing, it is my view that language competence
is the root cause of the opening gap in the media
space, with a tendency to a stronger segregation on the basis of language.
Understating the importance of the language in
which electronic media reach and constitute their audiences does not
help us contain this tendency and obstructs attempts to
build a policy of integration.
Another principle hampering the integration process is established directly
by the Law. Article 19(1) of the Radio and
Television Law states that, apart from a few specified exceptions,
each program shall be broadcast in one language, and
fragments of the program which are originally in other languages shall
be provided with a translation (by dubbing, voice-over
or sub-titling). The popular interactive TV programs, for example,
"Tema nedeli" ("The topic of the week") at TV5
channel, have met with difficulties when trying to observe Article
19(1) during live programs, because participants expressed
their opinions in either Latvian or Russian languages. Such TV programs
play an important role for the integration process and
facilitate mutual understanding. In a multicultural society such as
Latvia, rigid regulations of the type "one program – one
language" do not lead to improvement of interethnic relations.
One of specific measures to promote integration would be a public discussion
on possible amendments to the Law on Radio
and Television. A case of Switzerland, where society participates actively
in discussions on legislation drafts, could be
instructive in this context. In January 2000, the Swiss Federal Council
adopted a discussion paper on the main features of
future legislation on radio and television and instructed the Federal
Department for the Environment, Transport, Energy and
Communications (DETEC) to revise the law. At the end of 2000, DETEC
published an initial draft of the Law on Radio and
Television and initiated a public consultation procedure. Concerned
and interested parties had the opportunity to take part in
the consultation until the end of April 2001. Some 200 cantons, parties,
associations, radio and TV stations and other
organizations took the chance to express their opinions on the draft
law. In November 2001 the Federal Council discussed
the results of the consultation on the bill on the Radio and Television
and mandated DETEC to be informed by the public
views in finalizing the draft law.
Another form of cooperation between TV viewers, radio listeners and
regulatory authority was established by the Catalonia
Broadcasting Council. The Council has created a special institution,
an Office for the Defense of the Audience, in order to
provide a direct channel for TV viewers and radio listeners to express
their suggestions, observations and complaints to the
Council. Complaints can refer to all aspects concerning both programs
and advertising.
The Latvian National Radio and Television Council also may play the
role of mediator between public opinion and public and
private broadcasters.
Conclusions
In the last decade, since the beginning of restored independence, Latvian
politicians have implemented a number of norms,
which discriminated the Russian-speaking minority in Latvia. Policy
makers’ comments on it could be summarized as "Latvia
has a specific situation, with a huge percentage of minorities".
Now, in the light of the EU accession process, the problem with observation
of minorities’ rights remains one of the most
significant for Latvia. Besides education in secondary schools with
its lack of well-organized bilingual system and certain
difficulties with the implementation of the State Language Law, language
policy in the area of electronic media falls short of
modern and democratic principles. TV and radio in Latvia might play
an important role for the integration of Latvians and
non-Latvians. However, a number of obstacles stand in the way of dialogue,
through the media, between the two linguistically
separated segments of Latvian society.
Among the most important obstacles we should place language restrictions
(not more than 25% for broadcasting in the
languages others than Latvian) for private TV and radio broadcasting
companies. As Latvian MP, Mr Boris Tsilevich stated,
new forms of distribution of information – Internet, digital television,
etc., make language restrictions on private broadcasting
difficult to implement and even meaningless; additionally, the restrictions
contradict international human rights, which is a
second reason why they must be abolished.
Current language restrictions create a possibility to challenge the
Latvian law in different international institutions, such as the
European Court of Human Rights, the UN Human Rights Committee, and
– in the future, following Latvia's accession to the
EU – the European Court of Justice. A positive decision for the complainant
in the European Court of Human Rights will bring
significant fiscal losses. If in the same case the UN Human Rights
Committee recognizes a violation of Article 19 (and
probably Article 27 too) of the International Covenant on Civil and
Political Rights, a conclusion about the necessity of the
restrictions’ abolishment would have to be adopted accordingly.
The fear of Latvian politicians that after a possible abolishment of
these restrictions a number of non-Latvian broadcasters will
start to broadcast programs in Russian language only is groundless.
Each significant change in the legislation may bring
unpredictable consequences. For example, as a reaction to restrictions’
abolishment a number of comparatively cheap Russian
electronic media materials produced abroad might appear on radio channels.
At any case, non-Latvian broadcasters
understand clearly who is their audience and definitely take into account
the needs of ethnic Latvian listeners.
As far as Latvian legislators and some broadcasters are concerned, the
abolishment of the 25 percent restriction for private
broadcasters looks like a drastic measure. Meanwhile this restriction
violates international human rights standards, and
corresponding changes after restrictions are abolished will create
a better balance on the electronic media market in Latvia. In
the "triangle" of human rights values, political issues, and economic
interests, human rights standards must prevail.
Another problem is the situation with the 2nd public TV channel. It
was expected to serve as "integration" channel. However,
until recently, neither the National Radio and Television Council (NRTC),
nor the channel upper management, demonstrated a
strong political will to turn the channel to a real opportunity for
the integration of society. As already mentioned above, the
number of Russian speakers watching TV and listening to radio programs
in Latvian has been steadily decreasing since 1999.
It is obvious that the interests of integration dictate the need to
increase the number of non-Latvian viewers as a matter of
priority for the 2nd public channel, and some events, which happened
recently, including the launch of new programs like "The
Native Nest" and "The Process", could improve the situation.
Apparently the right to access to public media is based on the principle
of non-discrimination. De Varennes emphasized the
importance of the principle of proportionality in this case: " Minorities
have the right to have their language used by public
media when public authorities are involved in this area to the degree
that is justified and reasonable in light of the number of
speakers of a minority language in application of what I call the proportionality
approach. This involves all types of public
media, whether public authorities are involved in public radio or television
broadcasting, printed or electronic media."
It can be asserted that non-Latvians are disadvantaged and hence discriminated
due to the shortage of programs in
non-Latvian language on public TV. To compensate for this disadvantage,
the Russian speaking audience more and more
watches Russian TV channels, and young people often prefer channels
in English language. It will take a long-time to "turn
back" the Russian speakers to the national channels. No doubt, such
a turn would be of legitimate public interest in that it
would increase the confidence of non-Latvian speakers participating
in a common information space. And, needless to say, a
common information space is desirable from the point of view of social
cohesion.
Article 54(5) of the Radio and Television Law encourages the production
of broadcasts concerning the life and culture of
ethnic minorities living in Latvia. This provision, however, has a
merely declarative character, and doesn’t contain any
obligations vis a vis the members of minorities, who pay taxes and
therefore have the right to influence the development of
public broadcasting, including a fair balance of programs in Latvian
and non-Latvian, adequate representation during
street-interviews, etc.
The Latvian approach of electing members of the Council only by Parliament
without any reserved seats for the opposition
results in the ruling coalition single-handedly electing the members
of the Council. Within Europe, this approach is echoed only
in Slovak and Czech laws, while other countries try to distribute the
power to elect/appoint members of the media council
between different institutions or achieve some kind of political balance
in the council. Balance in Latvian National Radio and
Television Council is rather weak if at all present and as a result,
it is perceived by the public as a very politicized institution.
Since mid-2002, a proposal to introduce subscription fees for the reception
of public TV programs for all residents of Latvia
has been on the agenda several times. In case of adopting such a measure,
the changed relationship between public
broadcasting and customers would additionally necessitate the restructuring
of the National Radio and Television Council.
A number of international documents recommend including representatives
of the national minorities in governmental structures
with the purpose to balance the representation of different nationalities
in public life. The experience of Eastern European
countries shows clearly that Latvian legislators have acted upon a
biased view on the composition of the National Radio and
Television Council. Introducing the principle of ethnic/linguistic
proportionality, as well as wider political representation on the
NRTC, should be the main objectives in possible reforming the NRTC
procedure.
The national program on integration has been severely limited by the
current legislation; therefore, it does not yet enjoy a high
level of confidence and support among minorities in Latvia. Integration
projects on media implemented by the Society
Integration Foundation of Latvia can improve interethnic relations,
but they cannot influence legislators to change the law in the
direction of modern and democratic principles.
Recommendations
Recommendations to the Saeima:
To amend the Radio and Television Law by:
Removing Article 19 (1), reading:
"(1) Each broadcast shall take place in one language — the language
of the broadcast. Fragments of a broadcast which are in
other languages shall be provided with a translation (by dubbing, voice-over
or sub-titling). This provision is not applicable to
language instruction broadcasts or performances of musical works."
Removing Article 19 (5), reading:
"(5) The amount of broadcasting time in foreign languages in programs
produced by broadcasting organizations shall not
exceed 25 per cent of the total volume of the broadcasting time in
a twenty-four hour period. This provision is not applicable
to Latvian Television, Latvian Radio, cable television, cable radio,
satellite television, and satellite radio."
To adopt a new text of Article 62 of the Law to the effect of the ECRI
recommendation in its Second report on Latvia: "In
consideration of the large proportion of non-Latvian mother tongue
speakers in Latvia, ECRI considers that instead of a limit
not to be exceeded for programs in languages other than Latvian, 20%
of time could be considered as a share to be
compulsorily allocated to such programs".
To review Article 22(1) with its requirement for advertisements to be
broadcast only in the language of the respective
program, or in the Latvian language, and abolish this restriction.
To amend the procedure of electing the members of the National Radio
and Television Council to ensure the fair and
proportionate representation of minorities.
To amend the law by introducing clear criteria for the distribution
of the national remit on broadcasting to account for the
needs and interests of linguistic minorities.
To include NGOs and governmental institutions in the drafting and the
discussion of amendments to the Radio and Television
Law regarding minority issues.
To start the procedure of acceding to of European Charter for Regional or Minority Languages.
To ratify the Framework Convention for the Protection of National Minorities.
Recommendations for the Ministry for Special Assignments for Society Integration Affairs:
To develop media forums for the mayors and political leaders in the
cities with significant number of national
minorities aiming to raise awareness of minority members about the
importance of mastering Latvian language.
To work toward developing the public understanding of ethnic integration
through thematic programming of the public TV
channels.
Recommendations for the National Radio and Television Council:
To publicize regularly the Council’s activity in both Latvian and Russian languages.
To improve institutional venues for Latvian residents to express their suggestions and observations to the Council.
Recommendations for public broadcasting channels:
To broadcast TV programs that are expected to have significant impact on society with subtitles in Russian language.
To encourage ethnic minority journalists to be better represented in public broadcasting.
Recommendation to the Society Integration Foundation
To open a competition for project proposals for bilingual programs in the electronic media.