The Court Examined the Constitutionality of Certain Provisions of the Audiovisual Code on State Informational Security

On Monday, 4 June 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of the Law no. 257 of 22 December 2017 amending the Audiovisual Code.

Circumstances of the case
The application underlying this case was filed by the President of the Republic of Moldova, Mr. Igor Dodon, thus challenging the Law no. 257 of 22 December 2017 amending Audiovisual Code.

According to the applicant, the contested law that bans broadcasters and media service distributors from transmitting informational, analytical, military and political content programs produced in other countries than those of the European Union, United States of America, Canada and states that ratified the European Convention on Transfrontier Television, is contrary to Articles 31, 32, 34 and 54 of the Constitution.

Assessment of the Court:
The Court analyzed this application in light of Articles 32 and 34 of the Constitution.

From a general perspective, following an initial analysis of the contested law, the Court acknowledged that it complies with the standards of the quality of law, as it meets the clear, precise and predictable criteria. Nevertheless, with regard to its character, the Court observed that it is a rigid law, because it establishes a blanket ban for broadcasters and service distributors from transmitting informational, analytical, military and political content programs produced in other states than that of the European Union member states, United States of America, Canada and states that have ratified the European Convention on Transfrontier Television.

The Court undertook to determine whether the form chosen by the legislator in respect of the law challenged in the present case complies with the fundamental values provided by the Constitution. In this regard, the Court applied a proportionality test.

The Court noted that the disputed provisions may contribute to counter operations proliferating hostile information against the society of the Republic of Moldova, as well as to ensure that its citizens benefit from accurate information. The Court observed that these particular purposes may be subsumed at least into the following general legitimate aims established by Article 54 (2) of the Constitution: ensuring national security and protecting the rights of others.

With regard to the rational connection between the disputed measures and the above-mentioned legitimate aims, the Court observed within the contested law the presumption that the broadcasters from states which did not ratify the European Convention on Transfrontier Television might fail to comply with its requirements. The noted presumption is expressed by the ban on broadcasting television and radio programs produced in these states with informational, analytical, military and political content. Thus, the disputed legislative measure has a direct connection with the legitimate aim pursued.

Further, the Court noted that there are available alternative means to access such programs. It thus found that, since the Parliament refers to the issue of fighting foreign propaganda, there may emerge the question of the effectiveness of these restrictions provided by the challenged law, as long as there remains a free Internet access to broadcasted programs from the states in question. On the other hand, the Court held that it is not unreasonable to apply the ban only on radio and television programs, as such programs remain the most influential means to communicate ideas in the Republic of Moldova, in 2018. Moreover, despite a significant development in recent years, there is no evidence that the news spreading via Internet became more powerful than radio and television programs.

With regard to the existence of less intrusive alternatives, the Court held that a form of case-by-case supervision of every television and radio program broadcasting informational, analytical, military and political content that is not produced in the Member States of the European Union, in the United States of America, in Canada, or in states that have ratified the European Convention on Transfrontier Television could lead to uncertainties, to numerous litigations, costs and delays, which may give rise to arbitrariness. A contextual scheme would represent for the State an excessive burden, whose authorities should monitor the programs of all broadcasters that do not fall under the European Convention on Transfrontier Television. On the other hand, this scheme would give excessive discretion to the authorities in charge of overseeing the content of these programs. The Court therefore examined whether there a fair balance was struck between the contested blanket ban and the legitimate aims pursued.

The Court observed, on the one hand, that there appears to be a consensus among European states on the obligation to allow broadcasting of radio and television programs from the states that have ratified the European Convention on Transfrontier Television and, on the other hand, it noted that there is no European consensus among Council of Europe member states on how to regulate the broadcasting of radio or television programs produced abroad, that could jeopardize national security.

The Court gave weight to parliamentary debates on the need for such a blanket ban. The Court also considered it important that the ban is limited to the broadcasting of informational, analytical, military and political radio and television programs that are not produced in the Member States of the European Union, in the United States of America, in Canada or in states that have ratified the European Convention on Transfrontier Television. It does not cover other types of programs.

Moreover, the Court found that the ban does not cover other information sources than television or radio stations. The limits of a restriction are important factors in the analysis of its proportionality. Consequently, persons allegedly affected by the limitation of access to informational, analytical, military and political radio and television programs that are not produced in the Member States of the European Union, in the United States of America, in Canada or in the states that have ratified the European Convention on Transfrontier Television do have other sources of information available.

The Court had no reason to believe that the impact of the ban in question in the present case amounts to a disproportionate interference with the freedom of expression or the right of access to such information.

Conclusions of the Court
In view of the above, the Court rejected the constitutional complaint filed by President of the Republic of Moldova, Mr. Igor Dodon.

The Court declared constitutional the Law no. 257 of 22 December 2017 amending the Audiovisual Code.

This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of Moldova.

The Judgment of the Constitutional Court of Moldova will be soon available on its web-page www.constcourt.md.

This is an English language courtesy translation of the original press-release in Romanian language.