Italian media were quick to point out that this was the latest “gift” by Italian taxpayers to the preservation of Berlusconi’s media empire.
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Finding a violation of the applicant’s free speech and property rights, the Court awarded the Italian government to pay the company 10 million euros in damages. In the specific case of Europa 7, the Court found that the aspiring broadcaster had been a victim of the arbitrariness of the Italian legislator and regulators, who kept changing the rules of the game. The flawed (and one can add, transparently self-interested) legislative regulations of the last decade had “reduced competition in the sector.” In particular, they had privileged the incumbents (that is, Mediaset and the public channel, Rai), preventing other operators “from participating in the early stages of digital television.” An unfair advantage, whose distorting effects cannot be overstated in the race for market shares in the digital era The Court found that successive Italian governments had failed to meet these duties. Secondly, the government must ensure not just theoretical, but “effective access to the market” for new entrants “so as to guarantee diversity of overall program content.” To begin with, it must adopt “an appropriate legislative and administrative framework to guarantee effective pluralism.” This, said the Court, is especially important in countries, such as Italy, where control over electronic media is already concentrated in too few hands. The state must, in fact, play an active role to preserve diversity of voices and content. In its judgment, the Grand Chamber of the Strasbourg Court recalled that under Article 10 of the European Convention on Human Rights, which protects freedom of expression, states have a duty “to ensure true pluralism in the audiovisual sector.” This assumes an obligation to prevent domination of the airwaves by all-powerful actors: “A situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media,” which allows them to “eventually curtail the editorial freedom” of broadcasters, is incompatible with the fundamental role of free information in a democratic society. But being in power at the time, Berlusconi’s government engineered a messy web of legislative interventions that not only allowed Mediaset to keep all three channels (to this day), but also gave it a competitive head start in the race of digitalization. The Italian Court had held in 2002 that controlling three national channels gave Mediaset an impermissible dominating position over the Italian airwaves, and ordered the company to transfer the third over-the-air channel to a satellite-only platform. Europa 7’s misfortune was that their interests clashed with Berlusconi’s: the frequency that Europa 7 was supposed to use was occupied, in open defiance of a judgment by the Italian Constitutional Court, by one of the three channels owned by Mediaset, a Berlusconi family property.
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The Europa 7 case was brought by an Italian company that lawfully obtained a license to set up a national TV network in 1999, but was denied an actual operating frequency by the Italian authorities for almost 10 years (the Open Society Justice Initiative submitted a supporting brief in the case). While Italy’s former prime minister was not a party to the case, his policies, and his brazen use of public office to preserve the domination of his media empire, were nevertheless on trial. Italy, involved, if somewhat indirectly, another television mogul: Silvio Berlusconi. In the meantime, the European Court of Human Rights in Strasbourg decided last week a case that should be of interest to those in charge of diversity policing at Ofcom. The bid, which would for the first time allow a major print media holder to control a major national broadcaster, is now pending before the British telecom regulator Ofcom. The current culture secretary, Jeremy Hunt, who approved the BSkyB takeover, is facing resignation calls after disclosures by the Leveson inquiry on his uncomfortably close personal dealings with the Murdochs. The Murdochs have sought permission from the British authorities to obtain a majority stake in the network, a project that has been undermined by the media company’s self-inflicted phone tapping scandal. The recent controversy over the Murdoch family’s bid to fully control BSkyB, the British pay-TV network, is one of those cyclical moments that bring questions of media pluralism to the forefront of public debate. In our “Case Watch” series, lawyers of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions relating to their work to advance human rights law around the world.