In contrast to the introduction of commercial television from Western Europe - heavily influenced by the Constitutional Court - the shift to digital broadcasting is not primarily directed by constitutional considerations. It seems that economic advantage - perceived or real - relating to the shift, pressure emanating from the European Union, together with the obligations of the international management of broadcasting frequencies proved sufficient for the digital media system to be developed.[1] However, the lack of conflict in matters of fundamental rights can also be explained by the fact that the decisions passed by the constitutional court and basically accepted in the 1980s (which created the interpretational-dogmatic foundations of media freedom) provided a suitable framework for the development of the digital media system - in spite of their having been born in a completely different technical and economic environment. At the centre of the discussion on the regulation of digital media there remain such old issues as ensuring pluralism, problems of access, the constitutional position of the civil service, the liberalisation of advertising regulations and the evolution of effective means of child protection.
Digitalisation and all future technical and economic processes based on this (convergence) exercise, with no conceptual change, will strongly influence the whole constitutional regulation of the media and the extent of state intrusion into the operation of the media. The multiplication of available services and increasing interactive potential particularly affect the framework of constitutional accountability. The task of the legislator is primarily to find answers to the old questions which fit into the new, digital environment. This study examines, based on West European examples, the tasks and opportunities related to the development of the media system. It attempts to place specific regulatory issues into an integral interpretation framework relating to the freedom of the media, and it also attempts to evaluate the principles and solutions related (or, in many cases, defined) by European Community Law from the point of view of the freedom of the media. In many cases this leads to a reconsideration of the interpretational framework.
Digitalisation has accelerated the process which can be described as the liberalisation of the media market and has made it more noticeable, a process which had already, in practice, begun much earlier with the spread of cable and satellite broadcasting. The first step in the process is, perhaps, also the most important one from the constitutional point of view: the disappearance of the state's media monopoly gives an opportunity to private (commercial and civic) broadcasting companies to enter the market. This step was implemented by the constitutional court in the majority of West European states, and these judgements create, at the same time, a framework for commercial broadcasting.[2] The multi-channel broadcasting model involving real competition from the media market and with higher audience numbers with more choice evolved in the 1990s, mainly with the development of cable and satellite technology, further tightened the ability of both the state's legislators and controllers to create a media system and constitutional space. Digitalisation basically develops the multi-channel broadcasting model still further, and, as a result of these, there will appear even more multi-channels. Interactive digital content can considerably modify the media habits of the audience in the longer term but digitalisation will probably not change at all "the structure nor the conditions of ownership of the television branch"[3]. The European Union Committee summarised this in a consultative document in 2003 on Supervising Community Policy for Television to the effect that: "the main patterns of the audiovisual sector: business models, transmission modes, consumer, consumer electronic goods, etc., have remained largely constant in recent years after undergoing deep changes in the 1990s."[4] The digital shift has not questioned the basically dual structure of the media system in any of the countries which undertook media regulation reform.
It is widely accepted that the reason for detailed regulation of radio and television broadcasting is the result of a frequency shortage, but that this shortage will disappear with the digital shift. The frequency shortage, however, is not the basic reason for the need for media regulation and no more than one factor in its scope.[5] In addition, if the constantly growing frequency needs of the telecommunications sector are taken into consideration, the shortage would at most be eased and the importance of its regulating role would decrease. The reason for regulation is, rather, the constitutional obligation of the legislator to
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construct a framework for the operation of the media system which guarantees the effective presence of a variety of opinions and a choice of content, the broadest range of perspectives in society. Variety is very necessary if mature individual opinions and individual expressions of opinion are to thrive, and so, for "the normal process of progressive social changes"[6]; the freedom of the media operates as a function of the freedom of opinion.[7] The constitutional regulation of the media - which is basically related to the instrumental interpretation of the freedom of opinion[8] - will in time oblige the legislator to create a plural media system which guarantees members of society the opportunity to choose from among various opinions and values to form their own opinions.
The requirement of pluralism does not mean general authorisation for the legislator to interfere into the media system. What is needed is a regulatory aim which requires regular inspection of the regulatory tools appropriate to the current characteristics of the media system as well as to a given medium: "the specific obligation concerning the development of the media system depends on how endangered the processing ability is.[9] However, one consequence of establishing a plural media system is that controlling intervention into the operation of the media is more limited. State interference is only necessary if a plural media system and democratic public opinion - according to the Hungarian Constitutional Court - are absent. The measure of press freedom depends on the features of current mass communication, and the question of whether the regulation referring to a permission system providing the marketization of broadcasters can be regarded as necessary in a democratic society has been answered by the European Court of Human Rights (ECHR) according to the analysis of the precise technical and economic circumstances of media service published in Informatzionsverein Lentia.[10]
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