Policy Document concerning the Public Policy on the Effects of Existing Regulation of Editorial/Media Freedom

INTRODUCTION (You can download the document on this link: Policy Document concerning the Public Policy on the Effects of Existing Regulation of Editorial/Media Freedom

~CONTENTS~ 

1. Explaining the Problem (6)

2. A Comparative Analysis of the Existing Law and European Legislation and Practices (9)
2.1. Article 91 Defines the Programme Standards (10)
2.2. Article 92 of the Law Defines Broadcasters’ Responsibilities (11)

3. Analysis of Data from the regulatory impact assessment of the Effects of Existing Legislation on Editorial Freedom (14)
3.1 Breaching the Law’s Minutely Elaborated Programme Standards is Subject to Fines (18)

4. Self-regulation (19)
Public Broadcasting Service (21)
4.1. Funding Models in EU Countries (23)
4.2. Administrative and Legal Rules of the Public Service (23)
4.3. Audience Inclusivity (24)

5. Proposed Policies (25)

1. EXPLAINING THE PROBLEM

In the last few years the Institute of Social Sciences and Humanities – Skopje has been researching the phenomenon of “state capture” and the way this phenomenon influences the condition of media freedoms.[1] One of the main capture mechanisms takes place via increased legislative regulation and makes it possible for the executive power to control the media. Such control is being carried out via legislative regulation of programme aspects and via the right to sanction. The peculiarity of the Macedonian case of “state capture” is in the almost absolute subjugation of legislative (and judiciary) powers by the executive one, as, inter alia, has been concluded by the Priebe-led Senior Experts Group and their Second Report on Macedonia.

The establishing of legislative regulation that limits, disciplines and sanctions – aiming less in regulation than in control – can be explained through legal interpretation and forensic discourse analysis.

There is the legal interpretation, in line with which in law-making the technique or technology of the so-called “authoritarian proceduralism” is used, which entails excessive regulation of the domain as an attempt to instill control by the executive power in a sector which should be maximally independent.[2] Authoritarian proceduralism uses yet another mechanism for regulation-making, which is the inscribing of a network of self-contradicting decisions within the same law or in a series of laws affecting the domain. Such tendency results in the effective technique of controlling the legal subject, determining its transparency, prudence and the knowability of its legal position within the system.

The central position of such technology of governance is the negation of the legal presupposition of the lawful state and the rule of law in liberal democracies – the position of an “honest citizen.” As opposed to this, our laws are written from the position of the executive power’s control, serving the executive power and not the citizen/s. The power is in the hands of an authoritarian administration in a process of “mercy-giving” and day-to-day interpretation, which creates a corruption network and leads to the citizen’s subjugation by the system.[3]

This tendency is exposed by forensic discursive analysis through language used in the law’s contents.[4] The analysis reveals a high frequency of self-referential expressions, i.e., the focus of the law is the law itself. In this sense the over-regulation of contents too is reflected in focusing on the importance of the regulatory instrument as opposed to the domain being regulated, as is in other European laws used here for comparative analysis. In these laws the larger focus is put on the programme, services and broadcasting. Further, the language analysis reveals that the existing law’s focus is on the regulatory body as opposed to the regulated practices and their participants, as is in democratic European laws. I.e., the focus of the Macedonian law pertains to “what should [the law] be like” and “who oversees and controls the practice” (Agency of Audio and Audiovisual Media Services) instead of the practices (programmes, services, broadcasting), and who implements (the media), as is in those European laws used here for comparative analysis.

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[1]  Kalina Lechevska and Jordan Shishovski, Technology of State Capture: Overregulation in Macedonian Media and Academia (Skopje: Institute of Social Sciences and Humanities – Skopje, 2015), available at www.isshs.edu.mk/technology-of-state-capture-overregulation-in-macedonian-media-and-academia, accessed on 30.11.2017; Ana Blazheva et al., Freedom of Expression, Association and Entrepreneurship in a Captured State: Macedonia in 2015 [Слобода на изразување, здружување и претприемништво во заробена држава: Македонија во 2015] (Skopje: Institute of Social Sciences and Humanities – Skopje, 2015), available at www.isshs.edu.mk/freedom-of-expression-association-and-entrepreneurship-in-a-captured-state-macedonia-in-2015-2, accessed on 30.11.2017; “Vizualization: Fines in Macedonian Legislation Over the Years 1995-2014,” available at www.isshs.edu.mk/fines-in-macedonian-legislation-over-the-years-1995-2014, accessed on 30.11.2017; Webpage: www.zarobenadrzava.net, accessed on 30.11.2017.

[2]  Ljubomir Frchkovski, “Review of Policy Document ‘Media Policies and Editorial (Un)Freedom’“ [„Медиумските политики и уредувачката (не)слобода“] (Skopje: Institute of Social Sciences and Humanities – Skopje, 2017).

[3]  Ibid.

[4]  “Policy Brief: Discursive Forensics of the Macedonian Law on Audio and Audiovisual Services” (Skopje: Institute of Social Sciences and Humanities – Skopje, 2017), available at www.isshs.edu.mk/discursive-forensics-of-the-macedonian-law-on-audio-and-audio-visual-services, accessed on 29.11.2017.

YOU CAN DOWNLOAD THE DOCUMENT ON THIS LINK: Policy Document concerning the Public Policy on the Effects of Existing Regulation of Editorial/Media Freedom