265 / 300
263
. Licensing of Broadcasting
The insertion of the expressive right of States to require licenses for radio and TV
broadcasting into the body of Article 10 para 1 of the Convention corresponded
to the circumstances of the period of drafting of the Convention: At that time, the
majority of European States operated with State owned system of communications;
the high costs of investment prevented any significant appearance of private actors in
this area. Later on, the technical and legal developments, particularly the appearance of
cable transmission, have resulted in the abolition of State monopolies in the Western
European countries and in the establishment of private stations in addition to the
public services.
The requirement of licensing of broadcasting services both on European and national
level remained, however, unchanged: National licensing systems are required not only for
the orderly regulation of broadcasting enterprises but also to give effect to international
rules, including the ITU framework.
13
This framework, especially the binding Radio
Regulations (Article 4 of the ITU Constitution) and a clearly more ancient set of rules
than the Convention
14
expressly require that “no transmitting station may be established
or operated by a private person or by any enterprise without a license issued in an
appropriate form and in conformity with the provisions of these Regulations by or on
behalf of the Government of the country to which the station in question is subject”
(18.1 RR).
15
However, pursuing different aims and purposes, the system of the ITU differs from
the area of human rights in several aspects: It is substantially State-based; the rights of
States to restrict or even suspend certain services are formulated unconditionally, without
any test of proportionality: The regulation and control of national telecommunication
systems belongs (despite of integration and harmonization efforts of the European
Union in this sphere) still to the domestic jurisdiction of States – the fact that each
country has the sovereign right to regulate its telecommunication is recognized in the
Preamble of the ITU Constitution, para 1. International telecommunication provisions
leave a substantial margin of appreciation to the national authorities.
16
Member States retain their entire freedomin relation tomilitary and radio installations
[Article 48 (1) ITU Constitution]. Together with the rights derived from the ITU
Constitution – the right of the public to use the international telecommunication service
(Article 33 ITU Constitution) and the obligation not to cause harmful interference
to the radio services or communications of other Member States (Article 45 ITU
Constitution) – the Member States reserve the right to cut off, in accordance with
their national law, any private telecommunications which may appear dangerous to the
13
ECtHR,
Groperra Radio AG and Others v. Switzerland, op. cit
., para 60.
14
See 1906 Réglement de service annexé à la Convention radiotélégraphique internationale.
15
International Telecommunication Union, Radio Regulations, Version 2012.
16
ECtHR,
Autronic AG v. Switzerland, op. cit.,
para 57.