The key question is structure and the resolution of competing pressures. Again, the language of independence and accountability has different meanings from one society to another. But everywhere, there is this tension: how to demonstrate accountability while striving for independence.
As indicated throughout, “independence” is one of the most important attributes of public service broadcasting. But independence from whom? And how does one have accountability consistent with independence? Most important for this section, how does one establish a structure that has “independence” and accountability. There is no clear answer to this problem. Almost every society has had difficulties approaching this question.
World Radio and Television Council,
Public Broadcasting, Why? How?, 2000
Reconciling Freedom and Responsibility
How can the necessary independence of public broadcasting from government and its equally necessary accountability be reconciled? The question is complex. British researcher Nicholas Garnham sums up the matter as follows:
The search for an answer to the paradox of how to combine freedom for broadcasters from undesirable state control, while at the same time ensuring the necessary level of desirable political accountability. [...] In practice, of course, this circle cannot be squared, so that any structure and practice of accountability has to be a balance between the two.1
It is in this context that the arm’s-length principle comes into its own and should serve as a guide for organizing the public broadcasting and its relationship with government.
1Nicolas Garnham, quoted in UNESCO,
Public Service Broadcasting: The Challenge of the Twenty-first Century, Paris, UNESCO (Reports and Papers on Mass Communication, No. 111), 1997, p. 64.
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(1) Organization of Public Broadcasting
The first way of ensuring that public broadcasting has enough autonomy is to distinguish, in its administrative structure, between two levels of management: day-to-day business, on the one hand, and general policies and long-term decisions, on the other hand.
The board of directors is usually responsible for general policies. For example, it approves the budget and policies of the public broadcaster, and appoints its executive officers. The chief executive officer is responsible for the management of day-to-day business, whether it relates to human or material resources or programming decisions. To avoid political interference with the day-to-day affairs of public broadcasting, the CEO is accountable only to the board of directors. The latter usually reports on general activities to political authorities. In a certain way, the board of directors and its chairman act as a buffer between the CEO and the government. In Australia, the Board of Directors of the Australian Broadcasting Corporation (ABC) even has an obligation to preserve the independence and integrity of the public broadcaster.
(2) Accountability
While it is difficult to conceive an ideal system applicable everywhere, because of the difference in political culture from one country to another, there are a various means to provide public broadcasting with a degree of independence from government, while ensuring that it accounts for its actions. The goal is to make the relationship between public broadcasting and government as transparent as possible and discourage any attempt by government to interfere.
In theory, the public broadcaster should be accountable only to Parliament, not to the executive branch, at regular—usually annual—intervals. Public representatives should be able to evaluate, in the light of the annual report submitted by the public broadcaster, its general performance and use of public funds over that period. In practice, we know that in most cases, public broadcasting officials maintain contact with the executive branch, if only through representatives of the department responsible to Parliament for the public broadcaster. However, if these informal contacts become too frequent, they are contrary to the spirit of “arm’s-length management” and liable to undermine the credibility of public broadcasting.
Many countries also have a body responsible for regulating and supervising broadcasting activities. Given a mandate by the legislator to manage and supervise all or part of the broadcasting and telecommunications system, this body can also be another buffer between government and the public broadcaster. Indeed, it may be responsible for evaluating the public broadcaster's fulfilment of its mandate. Such is the case in Canada, where the regulating body issues the public broadcaster's licences and peppers its decisions with various comments on the way the public broadcaster should discharge its functions. Such is also the case in France, where the Conseil supérieur de l’audiovisuel evaluates, in its annual report, how the public networks have fulfilled the obligations incumbent upon them under the law or their terms of reference.
Some public broadcasters have also innovated these past few years to try and create closer bonds with their publics. In Canada, for example, the Canadian Broadcasting Corporation (CBC) has created the position of ombudsman. Citizens can thus make their viewpoints known to the ombudsman and submit their criticisms of the public broadcaster, in the journalistic field. It is a particularly interesting means for the public broadcaster to discharge its responsibility to the public.
A final remark is called for. We must avoid, above all, making the public broadcaster accountable to too many bodies. This could become embarrassing—instructions might contradict each other—and prompt the public broadcaster, in trying to satisfy everyone, to no longer account for anything.
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I. 6
A Model Public Service Broadcasting Law
The following portion of a “model statute” drafted for the European Broadcasting Union is included to highlight the problem of the” model” statute which is usually helpful, but can rarely claim to be applicable in all circumstances. Each aspect of a model statute on independence and structure (who appoints a Board, who appoints a Director, who can remove them, how representative should they be) is subject to inquiry and criticism.
“Model Public Service Broadcasting Law” by Dr. Werner Rumphorst, 1998
(Articles 10–14, Sections Dealing with Organization of Boards)*
Article 10 - The Organs of PSBO
The organs of PSBO shall be:
• The Broadcasting Council
• The Board of Administration
• The Director General.
Article 11 - The Broadcasting Council
§1 The Broadcasting Council shall represent the interests of the general public with regard to programming.
§2 The Broadcasting Council shall be composed of twelve members, coming as far as possible from different groups comprising the civil society.
§3 The Council members shall be elected by (the Lower Chamber of) Parliament, with a three-quarters majority, following a public hearing with potential nominees.
§4 Each member is appointed for a fixed period of six years. However, as regards the initial composition of the Council, four members shall be nominated for a period of two years, four members for a period of four years and four members for a period of six years.
§5 The starting point for the initial periods shall be the date of the constituent meeting of the Council. Re-appointment of a member of the Council at the end of his or her term of office is possible.
§6 Members of the Council may not belong to or work for the national government or the PSBO itself, or be members of parliament.
§7 Members of the Council may not be revoked during their term of office. However, if for whatever reason a member is incapable of performing his or her duties, or if he or she has not attended Council meetings for a period exceeding six months, the member in question shall be revoked and be replaced by another person who shall finish the revoked member's remaining term of office. The provisions of §§3 and 6 above shall apply.
§8 The Council shall elect its own Chairman.
§9 The Council shall set up its own Rules of Procedure.
§10 Except where otherwise provided herein, the Council shall take decisions on the basis of the majority of the votes of members present. Where voting is equal, the vote of the Chairman shall be decisive.
§11 The Council shall meet at least once every two months. It shall also meet in extraordinary session whenever at least three of its members request a meeting.
§12 The Director General and the Chairman of the Board of Administration shall be entitled to participate in Council meetings, except where the Council
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excludes them for particular reasons. Directors and other staff members or third parties may be invited to attend for particular reasons.
§13 Members of the Council shall not receive financial remuneration for their work. However, they shall be entitled to a free radio and TV set and yearly global compensation for their expenses amounting to one half-month's salary of the Director General.
§14 The Broadcasting Council shall
1. appoint the Director General, with the vote of at least eight of its members in favour,
2. approve the appointment of the Directors and the Editors-in- Chief for radio and for television proposed by the Director General. Unless at least six members of the Council vote against, or if no vote has been taken within three months of notification by the Director General, such appointments shall be taken as approved,
3. appoint the members of the Board of Administration, with the vote of at least seven of its members in favour,
4. adopt PSBO's Statutes, after consultation with the Director General and the Board of Administration. The Statutes shall, in particular, lay down the internal organization of PSBO in more detail. They should also define the responsibilities of the programming staff,
5. adopt PSBO's Bye-laws, after consultation with the Director General and the Board of Administration. The Bye-laws shall, in particular, regulate the matters expressly identified in this Law, as well as any other matters requiring detailed internal regulation of a binding nature,
6. advise the Director General on general programming matters and assist in carrying out programming responsibilities,
7. monitor observance of PSBO's programming responsibilities as laid down in this Law. It may declare, stating its reasons in writing, that certain broadcasts violate programming principles laid down in this Law, and may instruct the Director General, after hearing his or her position, to discontinue such violation or to ensure that no further violation occurs. The Council may not review individual programmes prior to their broadcast.
§15 The conclusion of contracts concerning programming which commit PSBO to a total payment exceeding ... shall require the Council's prior consent.
Article 12 - The Board of Administration
§1 The Board of Administration shall supervise the business affairs of PSBO, both internal and external, with the exception of matters relating to programming.
§2 It shall be composed of seven members. They shall be experts in matters of administration and finance and may not in the exercise of their function represent the interests of third parties.
§3 The Board members shall not belong to or work for the government or the PSBO itself, or be members of parliament or members of the Broadcasting Council.
§4 The Board members shall be appointed for a four-year period. Reappointment for a maximum of two further periods shall be possible.
§5 If for whatever reason a Board member is incapable of performing his or her duties, or if he or she has not attended Board meetings for a period exceeding three months and if at least seven members of the Broadcasting Council are convinced that he or she will not resume his or her activity within a reasonable period of time, the Broadcasting Council shall revoke him or her and replace him or her by another person who shall finish the revoked member's remaining term of office. The provisions of §2 above and of Article 11§14(c) shall apply. §6 The Board shall elect its own Chairman and set up its own Rules of Procedure.
§7 The Board shall lay down binding Rules on financial matters, in consultation with the Director General.
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§8 The Board shall take decisions with the majority of the members present. Where voting is equal, the vote of the Chairman shall be decisive.
§9 The Board shall meet in principle at least once per month. It shall also meet in extraordinary session whenever at least two of its members request a meeting.
§10 Members of the Board shall receive yearly global compensation of their expenses amounting to one month's salary of the Director General.
§11 The Board shall
1. represent PSBO in all dealings with the Director General 2. conclude the service contract with the Director General
3. advise the Director General on business matters not related to programming
4. approve PSBO's budgets and yearly accounts. §12 The Board's consent shall be necessary for
1. the conclusion of service contracts with the Directors and any other employees whose salary exceeds the highest class of the staff salary scale
2. the conclusion of trade union agreements
3. the acquisition and sale of companies or of shares therein 4. the acquisition, sale and mortgaging of property
5. the taking-up of bank credits and the granting of financial guarantees and securities
6. the conclusion of contracts concerning investments, other than in programming, if the total amount to be paid by PSBO exceeds ...
7. the expenditure of any money not provided for in the approved budgets.
Article 13 - The Director General
§1 The Director General shall have final responsibility for programming and shall ensure that programmes are consistent with the programming principles laid down in this Law and do not violate any other laws.
§2 The Director General shall manage PSBO independently and shall be responsible for all its operations and activities.
§3 The Director General shall represent PSBO both in court and out of court. §4 The Director General shall be appointed for a five-year term. Re- appointment is possible. As long as no successor has been appointed after the expiration of his or her term, the Director General shall continue in office if he or she is prepared to do so; otherwise, his or her functions shall be taken over by the Deputy.
§5 The Director General shall not be a member of parliament.
§6 The Director General may not be dismissed unless at least eight members of the Broadcasting Council decide to replace him or her by another person on whom they have agreed. In such a case, that other person shall finish the dismissed Director General's remaining term of office.
§7 The Director General shall appoint one of the Directors as his or her Deputy, for a period not exceeding his or her own mandate.
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