Post-Soviet Media Law & Policy Newsletter

Issue 30-31     Benjamin N. Cardozo School of Law     May 30, 1996 

Latvian Mass Media Act

    The authorship of any mass media law by any legislative body requires first that a philosophical question be resolved. The question represents a choice between market place regulation or formal structural regulation. In the case of the Latvian law it is apparent that the legislative body has opted for formal structural regulation.

    Many countries have made the same initial decision. The United States, for example, did just that with its 1934 Communication Act. Subsequent experience under that law and its underlying philosophy demonstrated that those selecting formal structural regulation must anticipate all potential regulatory contingencies and must also be prepared to micro-manage the industry they regulate. Experience also demonstrates that once such a regimen is adopted, the size of the bureaucracy and the quantity of regulation increases as predictability as a geometric progression. After forty-seven years of trying this approach, the United States abandoned it in 1981 in favor of marketplace regulation. That philosophical switch became law in 1996 with the overwhelming bipartisan passage of the Telecommunications Act.

    The Latvia law has some themes running through it which will generate considerable tension and will make its administration quite difficult. Because of the inherent conflicts the law will ultimately prove to be unworkable and some future Seima will be forced to rewrite it.

    One dominant theme in these law which will prove impossible to administer and which will occasion much litigation is its attempt to micro manage content. To be sure the law has an announced intention to protect freedom of expression but then gradually erodes the concept section by section. Examples: Article 3 Section 2 states in part: “Broadcasters shall support the idea of an independent, democratic and juristic country respecting diversity of opinions...” Maybe the diverse opinions which this law seeks to protect don’t support the idea of an “independent, democratic and juristic country.” This section reflects a society embracing the concept of freedom of expression, but uneasy with it at the same time. Some scholars, such as Professor Thomas Emerson in the United States, see freedom of expression as a “safety valve” for society. Repression of speech is what puts people in the streets. Is that not what happened in Eastern Europe in 1989?

    The law is replete with other sections which also attempt to put parameters on freedom of expression. Examples: Article 3 Section 3 requires news to be “objective and neutral”. Who will determine if it is; where are the definitions of the terms? Article 12 Section 3 proposes awarding licenses to broadcast to those whose proposed programs “are targeted to satisfy the demands of society in a wider sense.” What does that mean? Where are the standards which determine which programming is acceptable and which is not. Article 17 Section 2 says electronic mass media organization “shall ensure that facts and events be reflecting honestly, impartially.” Again that is a cloud on content determination and editorial discretion of the broadcasters: And so it is with many others: Article 17 Section 3 on violence, pornography and hate speech; Article 18 Section 4 on times for adult programming; Article 18 Section 5 on violence, homicide, horror, drugs and “impolite utterances.”

    What are the definitions to judge all the content restrictions? Who is going to do the monitoring and enforcement? Who is going to pay for it? And how are all these restrictions consistent with Article 3 Section 6 which prohibits censorship.

    As laudable as some of the public policy objectives behind these provisions might be, they are inconsistent with freedom of expression and will be a regulatory nightmare.

    Attempts at content regulation has been a disaster in the United States. Recent attempts to enforce an indecency standard and to deal with depiction of violence have led to regulatory paralysis and extensive costly litigation. Shows and content which the United States Federal Communication Commission has sought to restrict are highly rated. If the audience does not get what it wants from local broadcasting it will turn to cross border media, satellite channels, or the home video market. To succeed a free and independent media must have an audience which it can sell to advertisers.

    Once you get past all the content questions and the limitations they place on the broadcasters’ ability to satisfy the audience programming desires, it is time to examine the question of the law’s impact on the economic viability of Latvian broadcasters.

    Now we find a second dominant theme in the law. The Seima in drafting the commercial section of this law has obviously made a judgement that advertising lacks integrity, is not credible and that the institution which sells it are not trustworthy. If public policy places too many restrictions on the ability to generate revenue, private electronic media cannot succeed.

    The theme in this part of the Latvian law is clearly stated in Section 1 of Article 21: “Advertising must be truthful and honest.” Again where are the definitions? Who makes the judgement as to whether or not the standards are met. And who does the monitoring and who pays for the regulation?

    So advertising is inherently not trustworthy. What other limitations does the law place on generation of commercial revenue?

    Article 21 Section 5 limits certain product advertising such as alcohol but curiously not cigarettes. Article 21 Section 6 recognizes existing legal restrictions on commercial advertising of “medical and legal services, food, medicine, agricultural chemicals” and it seems financial institutions. That is a lot of exclusions of what are very significant electronic media advertisers in other countries. Will there be enough significant potential advertisers left to sustain an emerging market dependent on electronic media?

    A majority of electronic media advertising in the West comes from local businesses: food stores, pharmacies, banks, stock brokers; some of the very product categories limited by this law. Article 22 Section (2) (3) (4) (5) (6) (7) contain further limitations. Sections (2) (3) exclude advertising during official state ceremonies or religious events. That really is a question of taste which the audience can decide. Why do it with the law? Then Section 4 excludes advertising in news programs? Why? In the United States twenty-five percent of a local television station’s total advertising revenue comes from newscasts. Section 5 and 6 limit advertising time to 15 percent of the broadcast day and 12 minutes in any one hour. Again this is an appropriate audience function. If there are too many commercials the audience will tune out the station. The station will then discipline itself as to commercial content because you cannot sell and audience you don’t have. Finally there are the commercial content restrictions of Article 22, Section 7. This limits commercials in TV films or feature films to once every 45 minutes, limits repeat of the same spot and limits advertising in sport events to intervals. This is all obsessive micro managing of the mercantile function. It is counter productive to the public policy objective of an independent, financially viable electronic media.

    The law has other commercial limitations which are extensions of the theme that commercial media cannot be trusted to discipline itself.

    The Latvia law does attempt to ensure the integrity of the news gathering process in Article 35 on the rights of the broadcaster to receive information. What is missing is an enforcement mechanism for those situations in which “institutions of state power” refuse to provide the information. The American “Freedom of Information Act” has such an enforcement mechanism.

    Article 36 is a kind of personal attack rule for persons who may have been reported on falsely by the media. It is a laudable objective but it lacks adequate detail in its procedure and has no definitions. For example: who determines whether the broadcaster has “sufficient proof” or not?

    Now, some final observations on the mechanism of the law. The Latvian law creates excessive cross jurisdiction for electronic media regulation. For example: Article 27 Section (2) (3) splits responsibility for quality control and technical standards between the National Broadcasting Council and the State Telecommunication Inspectorate. Article 8 Section 9 gives the representative of the National Broadcasting Council a veto over actions of state radio and TV. Jurisdictional entities included in regulating electronic media include the National Broadcasting Council, the State Telecommunications Inspectorate, the Minister of Transport, the Ministry of Justice and the Committee for Monitoring of Monopolies. This shared responsibility will lead to jurisdictional disputes and the law has no procedure to resolve them.

    There are also procedural problems in the licensing process. For example see Article 12 Section 5. A disappointed license applicant can appeal a National Broadcasting Council decision. But what happens while the appeal is pending? Can the winning applicant build the facility while the appeal is pending? What if the disappointed applicant then wins the appeal?

    It would be very unfortunate if the predictable difficulties which will flow from this law would discredit the concept of an independent commercial electronic media. Care must be taken to ensure that this will not happen.

Michael Starr
Chair of Broadcasting Department
Southern Illinois University at Carbondale

Latvian Electronic Mass Media Act


Article 2.  The terms and definitions used for the purposes of this Act.

    (1) Broadcasting is program development (compilation) and  distribution (delivery for distribution) for reception by the public. Closed circuit program delivery within hotels, means of transportation, buildings is not understood as broadcasting.
    Program supply to adjacent buildings is not understood as broadcasting if the number of subscribers (cable terminals) is below twenty-five.
    (2) Electronic mass media in terms of this Act are radio, TV, cable radio, cable TV, computer TV, teletext, RDS and other broadcasting systems.
    (3) For the purposes of broadcasting an independent producer is a person engaged in production of films, commercials, separate radio or TV programs. Independent producers whose products are distributed by broadcasters shall have open sources of financing.
    (4) A program service is a program or a series of programs presented and distributed using electronic means. A program may  be distributed over a number of hours and networks.
    (5) Program distribution is delivery via link systems (conveying of programs from the source of the technical facilities of transmission) and broadcasting.
    (6) A program is an informative, analytical or other electronically presented material with a certain name and a certain volume. Programs may be periodic or non-periodic, or interrupted.
    (7) Broadcasting is program dissemination for reception by the public by means of terrestrial transmitters, cable networks and/or via satellites in an open or encrypted form using part of electromagnetic oscillations spectrum on internationally allocated frequencies (for radio) and channels (for TV).
    (8) Transmitter service zone is its territory of coverage.

Article 3.  Principles of electronic mass media operation.

    (1) Electronic mass media shall be operated by establishments or companies (hereinafter the broadcasters) holders of broadcasting licenses, rebroadcasting licenses, or cable TV (cable radio) licenses issued by the National Broadcasting Council.
    (2) Broadcasters shall support the idea of an independent democratic and juristic country respecting diversity of opinions, internationally recognized human rights and shall serve the interests of Latvia’s society.
    (3) News shall be objective, neutral.
    (4) Broadcasters shall be free and independent concerning program development and distribution as far as they are not regulated by Satversme (Constitution), this Act and other laws, technical standards of the state, such international agreements and conventions that are binding to Latvia.
    (5) Latvijas valsts radio un televizijas centers has no right to refuse broadcasting if a broadcasting or rebroadcasting license has been granted by the national Broadcasting Council.
    (6) No programs are subjected to censorship.
    (7) The producers determined by this Act shall ensure all broadcasters equal rights of access to use the electromagnetic frequency spectrum.
    (8) Foreign investments into enterprises and companies of electronic mass media are limited according to the Law “On Foreign Investments in the Republic of Latvia.”
    Such investments shall not exceed 20 % and are subject to control of the National Broadcasting Council.
    (9) The broadcasters’ programs shall be diverse. They shall reflect views and opinions existing in the society.
    (10) Ensuring the program exchange of Latvia’s broadcasters, records (fixations) of programs are exempted of customs duties on import and export.

Article 8.  Limitations of media concentration and monopolization.

    (1) No electronic mass media shall be monopolized to serve the interests of a party, an organization, an enterprise, a group or an individual.
    (2) No regional or local electronic mass media shall be connected into networks unless it is stipulated by the national concept of electronic mass media development.
    (3) Program development shall be independent. No synchronous or parallel broadcasting except children’s, cultural, scientific and sports programs or reports from events or venues shall be allowed without a rebroadcasting license.
    (4) No broadcasters other than public service broadcasters are allowed to establish more than three program services.
    (5) An individual or his/her spouse who is a sole founder of a broadcasting organization or owns a controlling stake in it, is not allowed to exceed 25 per cent of shares in other broadcasting organizations.
    (6) Political parties, establishments and companies founded and controlled by such parties are not allowed to form electronic mass media.
    (7) Any person holding and elected position in an administrative body of a party and owning, sharing or controlling and electronic mass media organization has no voting power at the boards of the latter organization.
    (8) An individual or entity inheriting or otherwise gaining control over a broadcasting organization as governed by paragraphs (5) and (6) of this Article shall alienate the illegal part within three months. Otherwise the part shall be confiscated.
    (9) Since Latvijas valsts radio un telev€zijas centers is a natural monopoly in broadcasting it shall operate as a non-profit state company. Its statutes shall be endorsed at the Ministry of Transportation.
    A representative of the National Broadcasting Council shall be incorporated into Latvijas valsts radio un telev€zijas centers’ board and given the veto power concerning broadcasting operations. The Council representative shall have the right to invite other broadcasters’ representatives as counsellors.

Article 11.  Competition for broadcasting license.

    (1) The National Broadcasting Council shall announce competition for vacant frequencies and channels according to the national platform of electronic mass media development.
    (2) The competition shall be announced in “Latvijas Valstnesis” bulletin and a local newspaper if the competition is opened for a local coverage frequency or channel. The announcement shall contain the following data:     (3) Individuals possessing legal power, legal entities or groups registered in Latvia may take part in the competition.
    (4) Every competitor shall file an application indicating the name, surname, citizenship (name of legal entities) and address, as well as the founder’s experience in mass media.     (6) The National Broadcasting Council shall publish the data on applicants, their general program concepts, their possible sources of financing in the “Latvijas V€stnesis” bulletin and regional media concerned no later that one month before the summary of the results of the competition is announced.

Article 17.  General conditions of program development.

    (1) The broadcaster’s program shall conform to the general program concept licensed by the national broadcasting Council.
    (2) Electronic mass media organizations shall ensure that facts and events be reflected honestly, impartially and comprehensively in its broadcasts according to the universally recognized principles of ethics and journalism. Any commentary shall be accurately separated from the news and the name of the author of commentaries shall be announced.
    (3) No program shall incorporate:     (4) Following the Acts “On Emergency” and “On Civil Defense of the Republic of Latvia” electronic mass media have the duty to broadcast the officials’ announcements to the population.
    Commercial broadcasters shall ensure distribution of education or informative material prepared by the Ministries according to the instructions of the Cabinet of Ministers, apportioning a 30 seconds air time within the period from 18.00 to 22.00 hours.
    (5) Election campaigning on electronic mass media are governed by separate rules.
    (6) An electronic  mass media organization may use other author’s programs, films, plots and other material observing the provisions of Latvia’s Act “On Copyright and Neighboring Rights” and the binding international agreements.
    (7) Broadcasters whose programs do not cover the whole territory of Latvia shall not acquire exclusive rights for such important social events as:
    Song Festivals, Baltica Festivals, Olympic Games, World Championships and European championships in Olympic sports, any other World and European championships taking place in the Republic of Latvia other events arousing special interest of Latvia’s audience.

Article 18.  Special conditions of program development.

    (1) The following proportions between Latvian and foreign programs shall be observed in Latvia’s visual programs, except cable TV and satellite TV; between 19 and 23 hours on weekdays, between 7 and 12 and between 19 and 23 on holidays, except news, sports, games, quizzes and advertising:     (2) Concerning the national subscription radio programmes produced in Latvia, the proportion of local author’s music shall prevail between 7 and 22 over 40% in duration of music, averaged over a period of one month.
    (3) The cooperation of electronic mass media with other  (independent) producers shall take place on the basis of mutual agreements determining the contributions and liabilities of the parties.
    (4) Electronic media shall not distribute programmes capable of inhibiting normal physical, mental or moral development of children or adolescents unless the broadcasting time is specially selected (between 22 and 7) or technical protection (encryption) is provided.Such broadcasts or programmes shall carry special warnings both on timetable and before transmission.
    (5) Between 7 and 22 hours programme containing violence (physical or psychological) in visual or textual form, homicidal, horror-inciting scenes, plots associated with the use of drugs are interdicted. The texts shall not contain taboo expressions, impolite utterances and refer to sexual proceedings. The provisions of this part shall not concern encrypted cable TV services.

Article 19.  The language of programme.

    (1) Every programme shall take place in one language only.  Programme fragments in other languages shall be provided with translations (subtitling, voice-over, overdubbing). This does not concern language teaching and music performances.
    (2) The language of the soundtrack, or voice-over shall be deemed the programme language. The programme language shall be named in the programme review unless it is the state language.
    (3) Films shall be dubbed or be provided with subtitles in Latvian. Films for children may be dubbed or carry voice-over translations into Latvian.
    (4) TV programmes prepared in foreign languages, except live transmissions, rebroadcasting, foreign service, news and language teaching programmes shall be provided with subtitles in Latvian.
    (5) The proportion of a broadcaster’s foreign languages programmes shall not exceed 30% of the total air time. These conditions are no concern of Latvijas telev€zija, Latvijas radio, cable TV, cable radio and satellite TV, satellite radio and crossborder radio and TV.

Article 21.  The contents of advertising.

    (1) Advertising shall be truthful and honest. It shall not misguide, carry false information or otherwise threaten the customers’ interests (health, security etc.). It shall conform to the requirements of the Act on Protection of the Customers.
    (2) Advertising shall observe the requirements of the Act “On Competition and Restrictions on Monopolies.”
    (3) Commercials targeted at children or featuring minors shall not threaten the children’s interests and shall take into account the special sensitivity of children.
    (4) Advertising shall not promote violence.
    (5) Advertising of wine and beer shall be allowed. Advertising of all other alcohol shall be banned. Commercials advertising alcohol shall not feature minors and:     (6) Limitations on commercial advertising of medical and legal services, food, medicine, agricultural chemicals, as well as of companies accepting monetary deposits or issuing bills, bonds are governed by respective laws and regulations of the Cabinet of Ministers.

Article 22.  Distribution of advertisements.

    (1) Advertising shall be readily recognizable as such and kept quite separate from other parts of the programme service by optical and/or acoustic means. The distributed advertising shall be in the language of the broadcast or the state language. The commercials shall be presented in blocks.
    (2) Distribution of advertisements during transmission of official state ceremonies shall take place exclusively by permission and shall be coordinated with the organizers of the events.
    (3) Distribution of advertisements during the transmission of religious ceremonies shall take place exclusively by permission and shall be coordinated with the respective confessions or the organizers of the events.
    (4) No advertising shall be allowed during the news programmes within national subscription.
    (5) Air time allowed for commercials in electronic mass media shall not exceed 15% on a daily basis.
    (6) advertising time shall not exceed 12 minutes within any hour.
    In the programmes of national subscription advertising time shall not exceed 6 minutes in any hour if the National broadcasting Council has not set a lower margin for separate programme services, programmes or parts.
    (7) distributing audiovisual works such as TV films and feature films (except serials, entertainment and documentaries) only one advertising unit is allowed in every 45 minute segment. A repeated commercial unit is admissible if the programme exceeds one or two 45 minute segments by 20 minutes. Within programme constituting transmissions of sports events, events related to sports or within performances with intermissions commercial advertising shall be placed exclusively between parts or during intervals.
    (8) Advertising may take the form of subtitles, logos or sliding texts on TV on the condition that it shall not occupy more than one fifth of the screen.
    (9) Advertising in the form of subtitles, logos or sliding texts on TV shall not occupy more than one fifth of the screen and shall not be present longer than 15 minutes of any hour in national subscription programmes, if the National Broadcasting Council has not set a lower limit for specific programmes or parts.

Article 25.  Responsibility for advertising.

    (1) The advertiser is responsible of the contents of advertisements.
    (2) Both the advertiser and the electronic mass media shall be responsible for distribution of illegal or prohibited advertisements.
    (3) Electronic mass media organization is responsible for legitimate distribution of advertising over the program.

Article 35.  The broadcasters’ rights to receive information.

    (1) The broadcasters shall enjoy the right to receive information from the institutions of state power and municipal authorities, from public organizations, state and municipal enterprises.
    (2) The broadcasters are guaranteed free access to produce up to 90 seconds of new reports at events of interest to the public and accessible to large masses of population

Article 36.  Refutation.

    (1) A person offended by a programme that has distributed false information may demand that the broadcaster should rectify the information.
    (2) The application to distribute a refutation shall be submitted to the broadcaster in writing within two weeks informing the National Broadcasting Council to that effect.
    (3) Refutations shall be perused within 7 days of receipt. If the broadcaster has no sufficient proof of the distributed information it shall be subject to immediate refutation.
    (4) Refutations shall be distributed in the broadcaster’s name and in an equally favourable position in programme and time as that given to the false information.
    (5) If the broadcaster refuses to the refutation it shall inform the applicant to that effect within 7 days. The applicant is competent to apply to courts of law within 14 days. Refutation if such is demanded by a verdict, shall comply to part (4) of this Article.

Article 37.  Right to reply.

    (1) Any individual or legal entity insulted in a programme has the right of reply from the same electronic mass media organization without regard whether an application for a refutation has been submitted or not. The reply may be a broadcast of the insulted person’s or his/her representative’s recorded speech or a presentation of a text the latter person has prepared.
    (2) The person wishing to benefit from the right of reply shall submit an application to the National Broadcasting Council and the broadcaster in writing within two weeks after the airing of the false data. The applicant’s reply shall be attached to the application.
    (7) The broadcaster may refuse to distribute the reply:     The refusal shall be given to the applicant in writing.
    (8) If the insulted person has received a refusal, it may appeal to courts of law within two weeks.