Freedom of expression as a fundamental political right protects not only the propagation of important messages in terms of ideas and thoughts. The right of every individual to express their opinions also includes the right to express them in a humorous form, with a reasonable degree of exaggeration or irony. This right also applies to public service media and, even more so, to private media.
Summary:
I. The Complainant was imposed a fine to the amount of CZK 200,000 from the Council for Radio and Television Broadcasting (hereinafter only as the “Council”) due to the fact that by means of the report entitled “A guidebook advises what to take to church”, broadcast within the TV news bulletin (“Televizní noviny”) on 24 August 2012, she violated the obligation to ensure that the principles of objectivity and balance be observed in news and political and current affairs programmes (Section 31 (3) of the Radio and Television Broadcasting Act). She unsuccessfully appealed this decision by filing an action with the Municipal Court in Prague and subsequently a cassation complaint with the Supreme Administrative Court.
II. The Constitutional Court did not agree with the procedural objections in which the Complainant contested that prior to imposition of the fine, she had been notified by the Council of having violated the obligations prescribed by the Radio and Television Broadcasting Act. As for the factual area of the objections, the Complainant particularly contested the assessment of the report as a biased and unbalanced report. In the Complainant’s opinion, the processing of the report corresponded to the topic and views of the persons interviewed in the report, thus constituting the protected manifestation of the freedom of expression. In this respect, the Constitutional Court found some of the objections to be justified.
The Constitutional Court has stated that the mass media represent an essential factor in the permanent process of creating opinions and the will of individuals, social groups, as well as political institutions. In this manner, they serve to fulfil the constitutive features of a democratic pluralistic society. These are the values of the constitutional order (in particular Art. 1 (1), 5 and 6 of the Constitution or Art. 2 (1) and Art. 22 of the Charter) whose protection legitimises the restriction of freedom of expression beyond the grounds set out in Art. 17 (4) of the Charter (the constitutionally immanent limits of constitutionally guaranteed rights). The requirements of truthfulness, objectivity, and balance of programmes broadcast find constitutional support for this very reason: the protection of the necessary requirements for conducting informed and democratic discussion on matters of public interest.
When assessing the broadcasting requirements, it should be taken into account that the purpose, method and processing of the theme may be fundamentally different in individual media, although generally all broadcasters are subject to the requirements of Section 31 (2) and (3) of the Act on Radio and Television Broadcasting and on the Amendment to Other Acts, i.e. adherence to the principles of objectivity, balance, and separation of providing information from its assessment.
Within the whole proceedings, the Complainant defended herself, alleging that the contested report was supposed to draw attention to the existence of a guidebook to church dressing rules in an entertaining manner at the time of the summer heat wave. This was crucial, in the view of the Constitutional Court. In essence, the Council based its objections directed against the report on the fact that the Complainant did not broadcast it (1) in association with the information that the mentioned rules do not exceed “experience from other cultural and social events or countries abroad”, (2) did not include the statements of the church representatives who could explain the need for such rules, and (3) instead, she included a statement of an expert on extremism, which was supposed to convey to the viewer the message that the church (its group) devised old-fashioned and unreasonable rules with respect to the current weather.
The Constitutional Court stated that if the objectivity requirement of the programme is to ensure the viewers’ ability to make their own conclusions and not simply take over the opinion of the editorial staff, it is necessary to provide the audience with substantiated, relevant and complete information, while avoiding hidden motives. However, the Council’s requirements concerning a particular report exceeded this minimum standard and did not attach sufficient importance to the commercial nature of the Complainant’s broadcasting.
As correctly stated by the Supreme Administrative Court, the intention of the report was not to inform about a significant event, but to fill the period of the so-called “silly season”. What thus gained importance was the nature of the broadcasting medium, which did not fulfil public service tasks but rather sought to attract its target audiences in a manner close to them.
Although the value of so-called infotainment can be journalistically and aesthetically controversial, it is primarily up to the private medium owner, while complying with the minimum content requirements, to search for their own place on the market (and to be potentially criticised for it by the market participants rather than the State).
The contested decisions were based solely on an assessment of the objectivity and balance of the content of the report. The administrative proceedings were not aimed at determining whether there were other unambiguous defects in informing viewers (e.g. the truthfulness of information, manipulating with the opinion of interviewees, providing the space for expressing the views of the clerical confraternity, etc.). Therefore, broadcasting the report in question did not result in the Complainant violating the broadcasting content requirements in such a manner that would jeopardise free, individual or public creation of public opinion, i.e. the value to which the freedom of expression of mass media serves. In such a situation, the fine imposed on the Complainant could not be considered as a constitutionally legitimate interference with her constitutionally guaranteed right under Art. 17 of the Charter.