Monday, 13 June 2011

Towards a European media law?

The European Parliament has considered an academic paper on privacy and FoE, which concludes: "I strongly believe that it is imperative to initiate an international debate about the relationship between Articles 8 and 10 of the ECHR and it seems to me that the EU is the only forum in which such a debate can be meaningfully launched.
First of all, it would venture to say that, on the basis of the case-law of the Court of Justice on Article 114 TFEU (in particular the "tobacco advertising" case), there would seem to be at least an arguable case that a legal basis exists for a Media Law, in order to deal with what must be regarded as more than the "abstract risk of obstacles to the exercise of fundamental freedoms". Of course, this would be a complex and delicate exercise and would necessitate looking carefully at existing legislation including "television without frontiers" |(sic) and the E-Commerce Directive. Indeed, I consider that it is surely wrong that national legislators should be left trying to construe a piece of legislation, the E-Commerce Directive, that was not intended to deal with defamation in relation to the position of ISPs and blog hosters and the like.
Secondly, considering whether an EU media law is feasible would also require us to look at the whole issue of public policy and whether a common EU public policy could be constructed on the basis of the case-law of the Court of Human Rights, the Charter of Fundamental Rights and the constitutional traditions of the Member States.
Thirdly, even if harmonisation of the law of defamation is not possible, other avenues may exist whereby an EU media law could make life more comfortable and predictable for journalists and citizens. I would suggest that ADR is another and could form part of such a law.  One could conceive of a voluntary ADR system for cross-border defamation cases in the EU, backed up by incentives, or at least disincentives to litigating."

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