Satellite Broadcasting Regulation Philippe ACHILLEAS Director of the Institute of Space and Telecommunications Law (University Paris-Sud XI) OUTLINE I. Satellite broadcasting environment II. The DBS special legal framework III. The general legal framework applicable to communication via satellite I. Satellite broadcasting environment Technical environment B. Economic environment C. Political environment 1
A. Technical environment Three categories of satellites are used for TV transmissions: Low-powered telecommunications satellites Direct broadcasting satellites Medium-powered telecommunications satellites B. Economic environment Broadcasting is the application that supports the development of space commerce Satellite broadcasting market includes: - satellite operators - TV networks - Providers of digital packages - Programmes C. The political environment In the 70 s The free flow of information vs. The prior consent rule Nowadays The ultra-liberal theory vs. The cultural theory 2
1. The American doctrine The doctrine: free communication without governmental interference Ideological basis: free flow of information theory (Information in a neutral technique. Free information brings democracy) Legal and official justification: freedom of Outer Space and freedom of information Political and secret justification: world-wide dissemination of US ideology and goods; isolation of USSR by propaganda 2. The Socialist doctrine The doctrine: No direct communication without prior consent of the receiving State Ideological basis: Leninist theory of information (information is a governmental tool) - imperialism theory Legal and official justification: non-interference in internal affairs and propaganda prohibition Political and secret justification: avoid any contact between populations and foreign governments in order to maintain the socialist dictatorship 3.The Developing Countries doctrine The doctrine: No direct communication without prior consent of the receiving State and without a bi-directional communication obligation Ideological basis: New information and Communication Order Legal and official justification: Right to communicate (each country has a right to develop international communication networks) Political and secret justification: ensure national development and/or keep national dictatorships 3
4. The Euro-Canadian doctrine The doctrine: free flow of information with rules aimed to ensure cultural preservation and development Ideological basis: Cultural exception theory (cultural works are not commercial goods and cultural industries / institutions must be protected Legal and official justification: Freedom of information and pluralism of information Political and secret justification: avoid an Americanisation of medias and develop strong local and regional audio-visual industries II. The specific DBS legal framework A. The ITU technical regulation B. The UN political principles A. The ITU technical regulation Geneva 1977 plan & 1983 plan amended by Istanbul 2000 Conference National Service Rule : DBS frequencies must be used for national coverage only In case of spillover : no protection against interferences (the Receiving State can jam) Protection of technical sovereignty over networks 4
B.The UN political principles Principles governing the use by states of artificial earth satellites for international direct television broadcasting (Resolution 37/92 by UN General Assembly 37st Session, adopted on December 10, 1982) Prior consent rule no direct broadcasting without prior authorization by Receiving States This non-binding text (recommendation) has no customary value III. The general legal framework applicable to communication via satellite A. Universal framework B. Regional framework A. Universal framework 1. Rules guaranteeing space communication 2. Rules protecting State sovereignty 5
1. Rules guaranteeing free communication via satellite Outer space freedom (Article I of the 1967 OST). Freedom of information (Article 19 of the 1948 Universal declaration of human rights and article 19 of the 1966 International covenant on civil and political rights) Freedom of information includes freedom of diffusion, reception and search. It protects all individuals, all information whatever its content, its nature or its support 2. Rules protecting sovereignty Constitutional autonomy right for each State to freely determine its political status and ensure its economic, social and cultural development (Article I of the 1966 International covenant on civil and political rights) Non-interference in internal affairs ( 1974 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation - resolution 2625 (XXV)) Prohibition of illegal content : - war and subversive propaganda (1936 International Convention concerning the Use of Broadcasting in the Cause of peace) - advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (1966 Covenant on Civil and Political Rights) - genocide propaganda or advocacy(1948 Convention on Prevention and Punishment of Crime of Genocide) -racial discrimination propaganda or advocacy (1965 Convention on the Elimination of All Forms of Racial Discrimination) 6
- apartheid propaganda or advocacy (1973 Convention on the Suppression and Punishment of the Crime of Apartheid) -discrimination against women propaganda or advocacy (1979 Convention on the Elimination of All Forms of Discrimination Against Women). - no decency regulation but promotion of selfregulation and parental control for violent and sexual content B. Regional framework 1. The European model 2. Can the European model be exported? 1. European law on satellite broadcasting a. Sources b. Freedom of information c. European works promotion d. Rules harmonization on Program content 7
a. Sources Council of Europe General source: European Convention on Human Rights 1950 freedom of information Special source : European Convention on Transborder TV 1989 amended in 1998 European Union General source : Rome Treaty 1957 Freedom of services Special source : European Directive on TV without frontiers 1989 amended in 1997. b. Freedom of information Free reception for all public intended programs Free reception even with non-commercial illegal decoder and/or card (1998 EU Decoder Directive) States can temporary suspend programs in special pre-determined cases The Broadcaster State verifies the conformity of the content of the programs with European law. Copyright law of the Broadcaster State is applicable (1993 EU Satellite directive) c. Promotion of European works Transmission quota: States shall ensure that broadcasters reserve at least 50 % of their transmission time for European works Production quota: States shall ensure that broadcasters reserve at least 10 % of their transmission time or at least 10 % of their programming budget for European works created by independent producers 8
d. Rules harmonization on program content Advertising, sponsorship and tele-shopping Free-to-air retransmission of major sport events Violent, pornographic programs and programs inciting to hatred Consequences of adoption of an European legal framework Growth of satellite operators Growth of transborder channels and digital platforms Growth of European film industry and re-balancing of American Vs European TV works B. Can the European model be exported? 1. Needs of legal norms 2. Economic and political difficulties to overcome 3. Conditions for the succes of a regional legal coopreation 9
1. Needs of legal norms Satellite broadcasting represents a paramount market ( e. g. the biggest potential market, namely China, remains closed to foreign operators) Satellite broadcasting represents a tool for regional polical cooperation (e. g. Arabsat) Development of the broadcasting market generates cultural and legal problems due to the lack of legal harmonization 2. Difficulties to overcome Political interests dominate broadcasting sectors The unbreakable link between broadcasting and sovereignty The satellite became a fundamental element of foreign policy (e. g. Nilesat Vs Arabsat) 2. Private interests dominate broadcasting sectors Commercial industries domination Political and/or military group domination 3. Conditions for the succes of the regional cooperation An action initiated by governments, private operators and potentially by associations (media and viewers) An initiative based on freedom of trade / space but not on freedom of information A political initiative based on code of conduct and not a legal initiative based on a binding text (treaty) 10
QUESTIONS? 11