License to Censor: The use of media regulation to restrict press freedom - Georgia

Population: 4,611,000
Press Freedom Status: Partly Free
Licensing for print outlets: No
Licensing of journalists: No
Independent Regulatory Body(s): No

Introduction

Ongoing political power struggles continue to color the environment for media freedom. While Georgia has the freest and most diverse media landscape in the region – with numerous private newspapers and dozens of private broadcast outlets that operate alongside the public broadcaster – its opaque ownership structure is a concern and the industry as a whole has become polarized politically, stifling independent news and shrinking the space for balanced views and opinion. As television is the medium with the broadest reach and audience within the country, efforts to influence these outlets have been a particular focus of the authorities. Because it is unclear who is in control – most importantly, of Imedi and Rustavi-2, the two private television outlets with national reach – authorities and the ruling party are able to leverage influence over content and staff, minimizing unflattering stories and discouraging investigative journalism.

Georgia enjoys a solid legal framework for freedom of expression. Article 19 of the 1995 constitution, as well as the Law on Freedom of Speech and Expression, explicitly protect freedom of speech, freedom of expression, and freedom from persecution. The constitution also contains provisions for free access to information, and protection against censorship. The government decriminalized libel in 2004 in an effort to bring Georgian media law in line with European standards. Furthermore, the country boasts one of the most progressive freedom of information laws in the former Soviet Union. Legal pressure is not commonly used to intimidate journalists. However, the regulatory framework is considerably more restrictive and is a primary method of influencing media content and operations. In particular, the 2004 Law on Broadcasting provides for sweeping regulations over the broadcast industry, and as interpreted by the Georgian National Communications Commission, is seen to operate in a biased manner.

Laws Relating to the Regulatory Framework

Licensing requirements are nonexistent for internet-based media and are a formality for print media. While all print outlets need to be officially registered with the Ministry of Justice, this process is not overly onerous and is not used selectively to control the types of newspapers and periodicals that can publish. Print media are therefore free in terms of ability to operate, but face constraints because of poor distribution networks, which limit their geographic reach and readership and therefore, their influence. No licensing or government authorization is required to enter the profession of journalism.

In contrast, the licensing regime for broadcast outlets, while not inherently excessively restrictive, is unevenly implemented and is subject to greater potential government influence. The primary piece of relevant legislation is the 2004 Law on Broadcasting, which sets out a broad array of details regarding licensing procedures as well as the role of the main regulatory body, the Georgian National Communications Commission (GNCC), which has overseen telecommunications and broadcasting since its establishment in 2000. According to the law, the GNCC is empowered to set license conditions; issue, suspend, renew, or revoke licenses; supervise licensees and recommend sanctions for those that breach the terms of their license; allocate radio frequencies; consider complaints and disputes between licensees and between a license holder and members of the public; and issue legally binding decisions as well as a code of conduct, among other duties.⁶⁹ Broadcast licenses are valid for 10 years, can be either for community or private outlets, and are designated for either general or specialized broadcasting. According to the framework, this could allow for suspension of broadcasts or withdrawal of a license, as well as decisions regarding licensing based on content of the proposed outlet. However, Article 44 of the law states that the commission's refusal to issue a license may be appealed through the court system.

Regarding media concentration and transparency – which are two key ongoing concerns in the overall broadcast media landscape – the broadcasting law does attempt to address these issues, with Article 60 stipulating that individuals or entities are prohibited from owning more than one television or radio license in any one area. However, a report by Transparency International-Georgia points out that the law does not prevent individuals from owning shares in companies that ostensibly own the licenses, thus allowing for potential loopholes in the spirit of the article.⁷⁰ Meanwhile, Article 61 requires that license holders disclose to the commission, on an annual basis, information regarding their partners, investors, shareholders with a greater than 5 percent stake, and managers, including information on any other print or broadcast media ownership. However, the GNCC does not have a sufficient mandate to investigate the validity of the information provided, or to investigate higher levels of ownership (for example, the ownership of shell companies that are listed as having stakes in media companies in official documents). There are no restrictions on foreign ownership.

The broadcasting law also details the membership and appointments structure of the GNCC, which is made up of five commissioners who are supposed to be appointed through open competition. However, the potential for some measure of built-in political influence is likely, given the president's role in the selection of nominees (he must offer a list of at least three nominees for each open position), coupled with a parliamentary vote to select the legislature's chosen appointees (the minority group in parliament nominated one member to the commission in 2009). There is no provision for civil society representation. On paper, the law does attempt to guard against potential conflict of interest by commissioners, by stipulating that commissioners may not hold administrative positions or be a member of a political party, and that they and their family members may not hold a financial interest or position in any entity that is subject to the regulator.⁷¹ In terms of financing, the GNCC garners the majority of its operating revenue from the licensing fees paid by outlets. The operations of the commission are also supposed to be free of political influence and it is stipulated that procedures and decisions be conducted with transparency. In 2007, the GNCC became a member of the European Conference of Postal and Telecommunications Administrations, and as such, its operations are required to be public and its decisions eligible for appeal.

After four years of deliberation, in March 2009, the GNCC issued a code of conduct for broadcasters, including editorial guidelines on balance, sourcing, privacy, and confidentiality. The code was drafted over several years with input from broadcast entities as well as interest groups including church officials, journalists, and civil society organizations; in addition, representatives from the Council of Europe were brought in to review and assist with the drafting of the code in 2008.⁷² Transparency International termed the effort an "obligatory system of self-regulation," as companies were supposed to enforce the code themselves by establishing in-house self-regulatory mechanisms, including systems to handle complaints, by September 2009 in the case of national broadcasters (the deadline was extended an additional year for local and regional broadcasters).⁷³ However, the GNCC reserved the right to take measures should an outlet fail to address violations or complaints in a timely or effective manner.⁷⁴

Positively, in 2010 efforts emerged – both on the part of civil society as well as within Parliament – to develop and introduce draft laws that would reform certain aspects of the broadcasting law, particularly those concerning improving transparency and reducing concentration of ownership, severely limiting offshore ownership, reducing potential conflict of interest among GNCC members, and improving access to official information. The civil society recommendations would ban offshore ownership altogether, and by December some legislators seem to have come around to this viewpoint during their discussions on the proposals.⁷⁵ A first reading of the draft bill, which contains provisions for a total ban on offshore ownership, was passed by Parliament on December 7, 2010, but voting was postponed until February 2011 to allow for additional time to examine recommendations submitted by civil society groups and media watchdogs.⁷⁶ The law was passed in April 2011, and requires broadcasting companies to "make public information about their owners and sources of finance and prohibits the offshore ownership of television stations."⁷⁷

The broadcasting law also covers the Georgian Public Broadcaster (GPB), which was transformed from state television into a publicly funded national broadcaster in 2004. By law, the GPB is supposed to provide accurate and diverse information free from political or commercial bias.⁷⁸ Amendments to the law in late 2008 required the GPB to air weekly political talk shows with officials, as well as to provide at least a quarter of its programming that was related to the enclaves of Abkhazia and South Ossetia.⁷⁹ Until 2009, the GPB was overseen by nine trustees (all political appointments), but in September, Parliament approved an increase in the board to 15 members, with seven nominated by the ruling party, seven by the opposition, and one by civil society. Although this measure provided for balance between political factions and does allow for input by civil society into its nominee, it still has the potential to leave the board membership heavily politicized. Though it is not fully evident that the board is politicized, there was a protest against its perceived bias in May 2011 in front of the GPB building. In an official GPB statement, the body declared that it resisted manipulation by any force that accused it of being prejudiced or biased, and reiterated its conviction that its coverage was balanced and that opposition parties were able to represent their views without being subject to editorial interference.⁸⁰

Impact of Regulation on Media Freedom

As noted above, laws concerning media regulation are not excessively restrictive on paper and some articles of the broadcasting law do attempt to provide for the regulatory body's independence and transparency of decision making. However, there is a considerable gap between law and practice, and most knowledgeable analysts and reports note that the GNCC is considered to be prone to political influence (particularly from the executive) and not apt to act in the public interest, with effective implementation of the broadcasting law lacking in a number of respects.⁸¹ Language intended to guard against potential conflicts of interest of commissioners does not seem to be adhered to. For example, the current chair of the GNCC was formerly a director and shareholder at Rustavi-2; although he sold his 30 percent stake in the television station several weeks before assuming his position, the appointment was seen by some as an inherent conflict of interest. Similarly, the provisions intended to promote transparency and guard against monopoly and conflict of interest in terms of license holders are not applied effectively. Particularly in the regions, a number of licenses are held by administrative authorities or individuals with direct connections to politics.⁸² Media ownership remains opaque, with shadowy holding companies registered overseas owning majority shares in several television outlets.

In addition to application of specific provisions of the broadcasting law, the decisions of the GNCC with regard to licensing and punitive action for violations are also seen to be biased. While GNCC representatives posit that they treat all applicants and license holders equally and that they follow their own procedures by issuing warnings before taking more drastic action, a number of reports allege that in practice, the body overlooks violations by progovernment stations while penalizing the more independent ones aggressively. One case cited in 2009 was that of Channel 25, a small independent television station in the Ajara Autonomous Republic, which was ordered to pay a $160,000 fine; the owners of the station claimed the penalty was part of an effort to close it down ahead of local elections. Some stations seen as being under government influence have even been able to broadcast without a license, in clear violation of the rules, while those seen as being pro-opposition have faced hurdles in being accredited.⁸³ While the GNCC's decisions can legally be appealed within 30 days either to the GNCC itself or to the Tbilisi city court, in practice its decisions are never overruled by the court. However, some politically sensitive cases, such as that of Maestro (detailed below), are decided by behind-the-scenes intervention rather than legal redress.⁸⁴ Most decisions or rulings of the GNCC regarding specific cases are not easily available to the public, though some information can be accessed through freedom of information requests.

In May 2008, the GNCC decided to delay issuing any new broadcast licenses, claiming that it needed to survey the existing media landscape and also set national broadcasting priorities given an extremely competitive application process. However, the review process seems to have stalled, with no further decisive action taken since then. Existing licenses can be bought or change hands, but no new ones have been issued. For instance, license requests from two community radio stations have been held up indefinitely. An effect of this decision is that there have been no new entrants in the broadcast market. A GNCC-commissioned public opinion poll (which is required by the Law on Broadcasting) was released in April 2011 and seemingly showed that the public wanted more entertainment programs. The local branch of Transparency International registered concern that these findings would be used to justify the exclusion of license applicants who intended to focus on news, current affairs, and public interest broadcasting.⁸⁵

With the taming of Imedi and Rustavi-2, the television station that has faced the most pressure from the regulator over the past two years has been Maestro TV, a pro-opposition channel that features talk shows critical of the government and the president. Maestro, which now operates as a satellite station, had been granted access in late 2008 to rebroadcast content via local cable affiliates, thus expanding its audience beyond the small number of Georgians who have access to satellite dishes. However, in early 2009, the GNCC reportedly pressured several of these affiliates to halt their rebroadcasts of Maestro programs, and then temporarily closed some of the stations for unspecified "technical reasons" when they did not comply.⁸⁶ In addition, unknown assailants attacked the station's offices with a grenade in May. However, after repeated delays, in July 2009 the GNCC issued a 10-year general satellite broadcast license to Maestro, which enabled it to continue broadcasting news programs. In 2010, Maestro dropped its satellite broadcasting capabilities, but resumed broadcasting in March 2011. This was seemingly a result of internal financial issues rather than outside pressure to shut down.⁸⁷

Adherence to the GNCC's code of conduct, through which broadcast outlets were obliged to set up internal self-regulatory mechanisms, has progressed, with all outlets submitting codes and mechanisms for redress. Several of these mechanisms have been tested; for example, the Georgian Young Lawyers' Association filed a complaint in December 2009 with Rustavi 2's complaints commission.⁸⁸ In March 2010, several complaints were made against the Imedi station regarding the broadcast of a simulated news report that depicted an outbreak of war with Russia; the GNCC ruled on March 15, 2010, that Imedi should make a public apology and also broadcast the commission's decision on air.⁸⁹ An apology was made, but no further action was taken against government-backed Imedi.⁹⁰

Efforts to transform the GPB into a truly neutral public broadcaster have also been less effective in practice. There is widespread belief that the GPB does not ultimately serve the public interest, and instead "operates more like a state broadcaster."⁹¹ Political disputes spilled over into a fight during 2009 for control over the GPB, which was seen by the opposition as biased toward the government.⁹² Opposition pressure led to the resignation of the GPB's general director in July, and to the expansion of the board in September. In August, a group of civil society and media members formed the Media Club, which together with the Open Society Georgia Foundation and other nongovernmental organizations was able to push through three nominations for the expanded board. Improvements in GPB programming, specifically coverage of opposition parties, came in February 2010, following the development of a new political channel featuring live coverage of the Georgian Parliament as well as daily opportunities for a wide range of political parties to air their viewpoints free from editorial interference.⁹³ Positively, a report issued by the UN Development Programme (UNDP) on media coverage prior to local government elections held in May 2010 noted that the GPB presented "more or less neutral and balanced" coverage of candidates prior to the elections.⁹⁴

Self-regulation has been a weak link in the Georgian media sector, due in part to the lack of strong tradition of local media freedom or professional journalists' organizations that could take a lead in organizing the sector to engage in self-regulatory efforts. Efforts by media houses to establish a Media Council in 2005 and an alternative press council were unsuccessful; the bodies were established but did not function effectively in practice. The GPB does have an internal code of conduct, and until the end of 2009 had an ombudsman to enforce it.⁹⁵ However, in December 2009, a nine-member press council was established. The council's primary responsibility was tracking adherence to a new Georgian Charter of Journalistic Ethics, a voluntary self-regulatory code written by journalists and lawyers with support from the Council of Europe and the European Commission that was initially signed by 137 journalists (more have signed since its introduction).⁹⁶ The industry-wide council does not have punitive powers, but hears cases and can issue public reprimands for breaches of the charter. The council operated in a promising fashion in 2010, hearing several cases concerning signatories to the charter.⁹⁷ However, its effectiveness in the longer term may be compromised by the fact that many of the less ethical media outlets are simply not interested in signing the charter, thus hindering its efficacy over the sector as a whole.

Conclusion and Recommendations

The legal framework for broadcast regulation in Georgia is ostensibly fairly progressive, but many aspects are not adhered to in practice and more stringent mechanisms need to be introduced to guarantee the implementation of existing laws. As a result, both the GNCC and the GPB are seen to be politicized and subject to influence from the government. GNCC decisions need to be more transparent, more information is required on media ownership structures – which remain extremely opaque – and rules that ban offshore companies need to be developed in order to close this loophole in terms of media ownership. The recent passage of an amended law in April 2011 is a very positive step in this regard, although efforts should be taken to ensure effective compliance. While self-regulatory structures have traditionally been weak, the recently constituted media council and charter of ethics is a promising development and further efforts should be taken to encourage more journalists to sign the charter and for cases to be brought to the council. Likewise, improvements in balance and opposition coverage at the GPB are a positive development, and should be strengthened.

69 Georgian National Communications Commission (GNCC), "Georgian Law on Broadcasting," December 2004, accessed at: http://www.gncc.ge/files/7050_3380_492233_mauwyebloba-eng.pdf

70 Transparency International-Georgia (TI), "Television in Georgia-Ownership, Control and Regulation," p.11, 20 November 2009, accessed at: http://transparency.ge/sites/default/files/Media%20Ownership%20November%202009%20Eng.pdf

71 GNCC, Georgian Law on Broadcasting Article 11, accessed at: http://www.gncc.ge/files/7050_3380_492233_mauwyebloba-eng.pdf

72 GNCC, "Code of Conduct for Broadcasters," 12 March 2009, accessed at: http://www.gncc.ge/index.php?lang_id=ENG&sec_id=7200&info_id=7176

73 TI 2009, p.14.

74 IREX, "Media Sustainability Index (MSI) 2010," p.145, accessed at: http://www.irex.org/system/files/EE_MSI_2010_Georgia.pdf

75 Civil.ge, "Ruling Party Agrees on Ban of Offshore Ownership of Broadcasters," 3 December 2010, accessed at: http://www.media.ge/en/node/39549

76 Civil.ge, "Second Reading Discussion of Draft on Media Ownership Postponed," 17 December 2010, accessed at: http://www.civil.ge/eng/article.php?id=22969

77 Doha Centre for Media Freedom, "Georgia passes law to make media ownership more transparent," 10 April 2011, accessed at: http://www.dc4mf.org/en/content/georgia-passes-law-make-media-ownership-more-transparent?page=11

78 European Journalism Centre, "Media Landscape: Georgia," 5 November 2010, accessed at: http://www.ejc.net/media_landscape/article/georgia/

79 IREX, MSI 2009, p.139.

80 Georgian Public Broadcaster, "Statement of the Georgian Public Broadcaster on recent protest actions," 23 May 2011, accessed at: http://www.gpb.ge/NewsView.aspx?Location=78&LangID=2

81 MSI 2010, p.143, and TI 2009, p.10.

82 TI 2009, p.7.

83 TI 2009, p.15-16.

84 TI Georgia, "Television in Georgia," p.17.

85 Transparency International Georgia, "TI Georgia Calls on Government to Ensure Diverse Media Market," 7 April 2011, accessed at: http://www.transparency.ge/en/post/press-release/ti-georgia-calls-government-ensure-diverse-media-market

86 CPJ, "Attacks on the Press 2009: Georgia," 16 February 2010, accessed at: http://cpj.org/2010/02/attacks-on-the-press-2009-georgia.php

87 Civil.ge, "Maestro TV Suspends Broadcast over 'Technical Problems'," 24 December 2010, accessed at: http://www.civil.ge/eng/article.php?id=22989

88 Georgian Young Lawyers Association, "GYLA Filed Complaint at Self Regulation Commission of Rustavi 2 TV Company," 22 December 2009, accessed at: http://www.gyla.ge/index.php?option=com_content&view=article&catid=45%3Anews-eng&id=667%3Agyla-filed-complaint-at-self-regulation-commission-of-rustavi-2-tv-company-&Itemid=1&lang=en

89 Molly Corso, "Georgia: Alleged Telephone Tapes Stir Controversy over Fake Russian Invasion Report," 15 March 2010, accessed at: http://www.eurasianet.org/departments/insightb/articles/eav031510b.shtml

90 IREX, MSI 2011, p.148, accessed at: http://www.irex.org/sites/default/files/EE_MSI_2011_Georgia.pdf

91 TI Georgia, "Television in Georgia."

92 EJC, "Media Landscape: Georgia."

93 Georgia Public Broadcasting Press Release, 23 February 2010, accessed at: http://www.google.com/url?sa=t&source=web&cd=5&ved=0CDQQFjAE&url=http%3A%2F%2Fwww.gpb.ge%2Fuploads%2Fdocuments%2F4e5d95e2-8938-4ab1-b702-7367e0ce15ccGPB_Pressrelease.doc&rct=j&q=GPB%20georgia%202010%20bias&ei=ulEGTYCMGtKjnQeD6p3lDQ&usg=AFQjCNEv5sd34t1NUDKWN6S9qCmTaA67XQ&cad=rja

94 UN Development Programme, "Pre-election Media Monitoring in Georgia," p.4, July 2010, accessed at: http://www.undp.org.ge/files/24_975_639258_MM-CRRC-report-201007.pdf

95 EJC, "Media Landscape: Georgia."

96 IREX, MSI 2010, p.145, and Nata Dzvelishvili, "Working Meeting on Media Ethics held in Tbilisi," 18 July 2010, accessed at: http://www.media.ge/en/node/38222 European Instrument for Democracy and Human Rights, "European Union-Georgia Civil Society Human Rights Seminar on Media Freedom," p.28, November 2009, accessed at: http://ec.europa.eu/delegations/georgia/documents/news/10_11dec2009_en.pdf The charter is available at: http://cdi.org.ge/eng/library/publications?info=165

97 Its first case, concerning Imedi journalist Natia Koberidze, can be found here: http://mediasabcho.blogspot.com/2010/05/decision-001.html