ANDRÁS KOLTAY – ANDREJ ŠKOLKAY (EDS)

COMPARATIVE MEDIA
LAW PRACTICE
MEDIA REGULATORY AUTHORITIES
IN THE VISEGRAD COUNTRIES

VOLUME I
CZECH REPUBLIC AND SLOVAKIA
Comparative Media Law Practice
Comparative Media Law Practice

Media Regulatory Authorities

in the Visegrad Countries

Edited by
András Koltay and Andrej Školkay

Volume I
Czech Republic and Slovakia

Czech Republic
Ondřej Moravec

Slovakia
Andrej Školkay, Ľuboš Kukliš, Ondrej Jurišta
 Published in Hungary
by the Institute for Media Studies
of the Media Council
of the National Media and Infocommunications Authority
5 Reviczky utca, Budapest, 1088

© Szabina Berkényi, Ewa Galewska, Ondrej Jurišta, András Koltay, Ľuboš Kukliš,
Ondřej Moravec, Andrej Školkay 2016

All rights reserved. Except for the quotation of short passages for the purposes of
criticism and review, no part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of the publisher.

Media Studies Library 21

of the Institute for Media Studies
Series Editor – András Koltay and Levente Nyakas

ISBN 978-615-5302-17-6
Contents

Introduction ............................................................................................................. 13

CZECH REPUBLIC – Ondřej Moravec

I. General Introduction ............................................................................................ 19

II. Introduction to the Legal System ........................................................................ 21

III. Key Principles of Electronic Media Regulation ................................................. 23

A. Scope of Regulation .............................................................................................23
i. Technical Regulation .......................................................................................25
ii. Content Regulation .........................................................................................25
B. Media Types ........................................................................................................27
C. System of Authorisations and Licensing ..............................................................28
D. Characteristics of Media Legislation ....................................................................28
E. Characteristics of the Council for Radio and Television Broadcasting .................29

IV. Procedure before the Council for Radio and Television Broadcasting ............... 31
A. Overview of Administrative Proceedings before the Council for
Radio and Television Broadcasting ......................................................................31
B. Stages of Proceedings ...........................................................................................31
C. Proceedings Imposing Fines .................................................................................31
i. The Relationship between the Council and the Council Office ............................32
ii. Relation Between the Council and Parties to the Proceedings ............................ 34
iii. Self-Regulation ................................................................................................37
D. Other Proceedings Conducted by the Council for
Radio and Television Broadcasting ......................................................................37
E. Breach of the Law Notice in the System of Administrative Sanctions ..................38
i. Statutory Provisions .........................................................................................38
ii. General Characteristics of the Concept ..............................................................38
iii. Judicial Reviewability of the Notice ..................................................................40
iv. Applicability of Previous Notice—Summary of Case-Law Development .............41
v. Legal Opinion of Extended Panel of the Supreme Administrative Court .............43
vi. Reflection on the Extended Panel’s Legal Opinion .............................................45
vii. Breach of the Law Notice Viewed with the Broadcaster’s Eyes............................ 46

V. The Judicial System with Special Reference to Electronic Media Regulation ...... 47
A. The System of Administrative Courts ..................................................................47
B. Types of Judicial Procedures ................................................................................47
C. Remedies—Cassation Appeal ..............................................................................50
6 Comparative Media Law Practice

D. Consistency of the Case-Law of Administrative Courts .......................................51

E. Intervention of the Constitutional Court in the Decision-Making of
Administrative Courts .........................................................................................53
F. Application of the Case-Law of the European Court of Human Rights ...............55

VI. Protection of Human Dignity ............................................................................ 56

A. Legal Provision—Section 32(1)f of the Act on Radio and
Television Broadcasting .......................................................................................56
B. Statistics ..............................................................................................................56
C. Answers to Research Questions ...........................................................................56
D. General Trends ....................................................................................................58
E. Case Studies.........................................................................................................59
i. Kuřim Case—Czech Television and TV Nova..................................................59
ii. The Most Amazing Videos of the World ............................................................61
iii. Bullying in Velká nad Veličkou ........................................................................62

VII. Balanced Coverage............................................................................................ 63

A. Legal Basis ...........................................................................................................63
B. Statistics...............................................................................................................63
C. Detailed Information .......................................................................................... 64
D. Answers to Research Questions .......................................................................... 64
E. Tendencies and Trends ........................................................................................ 66
F. Case Studies.........................................................................................................67
i. 168 hodin—Church Restitutions .....................................................................67
a. Commentary—Agenda of the Judgment........................................................69
b. Additional Context ......................................................................................69
ii. Televizní noviny—Conflicts with Russian-Speaking Minority ...........................69
iii. Events—Godfathers ........................................................................................71
iv. Televizní noviny—Tram Drivers ....................................................................72

VIII. Hate Speech ..................................................................................................... 73

A. Definition ............................................................................................................73
B. Hate Speech in Constitutional Order and Constitutional Court Case-Law .........74
C. Hate Speech in the Case-Law of the European Court of Human Rights .............75
D. Hate Speech and Criminal Law ...........................................................................76
E. Hate Speech in Media Legislation....................................................................... 77
F. Agenda of the Council for Radio and Television Broadcasting............................ 77
G. Discussion ...........................................................................................................80

IX. Commercial Speech ............................................................................................ 81

A. Commercial Speech as Form of Freedom of Speech .............................................81
B. Constitutional Protection of Commercial Communications in the
Czech Republic ....................................................................................................82
C. Regulation of Broadcasting Act ...........................................................................85
D. Act on On-Demand Audiovisual Media Services .................................................87
 Contents 7

E. Agenda of the Council for Radio and Television Broadcasting.............................88

F. Statistics...............................................................................................................88
G. Answers to Research Questions ...........................................................................88
H. Case Studies........................................................................................................ 90
i. Judgment of the Supreme Administrative Court, 7 As 68/2011 ........................ 90
a. Facts of the Case ......................................................................................... 90
b. Appeal Brought by the Broadcaster and Assessment of the
Case by the Metropolitan Court in Prague ....................................................91
c. Case Assessment by the Supreme Administrative Court...................................91
d. Commentary and Comparison with Judgment 6 As 10/2011..........................93
ii. Judgment of the Supreme Administrative Court, 8 As 66/2013 ..........................94
a. Facts of the Case ..........................................................................................94
b. Case Assessment by the Metropolitan Court ...................................................94
c. Cassation Appeal of the Council for Radio and Television Broadcasting ..........94
d. Assessment by the Supreme Administrative Court...........................................95
e. Commentary ...............................................................................................95
iii. Judgment of the Supreme Administrative Court, 7 As 24/2010 ..........................96
a. Facts of the Case ..........................................................................................96
b. Applied Legal Regulation..............................................................................96
c. Judgment of the Metropolitan Court in Prague and Cassation
Appeal of the Council for Radio and Television Broadcasting .........................97
d. Assessment of the Case by the Supreme Administrative Court..........................97
e. Commentary ...............................................................................................99
iv. Judgment of the Supreme Administrative Court, 6 As 16/2010 ........................100
a. Facts of the Case ........................................................................................100
b. Broadcaster’s Arguments .............................................................................100
c. Assessment of the Case by the Metropolitan Court ........................................100
d. Assessment of the Case by the Supreme Administrative Court........................101
e. Commentary .............................................................................................102
v. Judgment of the Supreme Administrative Court, 8 As 28/2013 ........................103
a. Facts of the Case and Assessment of the Case by the Council for
Radio and Television Broadcasting .............................................................103
b. Broadcaster’s Arguments and Assessment of the
Case by the Metropolitan Court ..................................................................104
c. Assessment of the Case by the Supreme Administrative Court........................105
d. Commentary .............................................................................................105

X. Protection of Minors.......................................................................................... 106

A. Legal Definition.................................................................................................106
B. The EU Law.......................................................................................................107
C. Constitutional Basis ...........................................................................................107
D. Statistics............................................................................................................. 110
E. Answers to Research Questions ......................................................................... 111
F. Tendencies and Trends ....................................................................................... 113
G. Case Studies....................................................................................................... 115
8 Comparative Media Law Practice

i. Broadcasting of the News and Journalistic Programme Střepiny

on 15 March 2009 from 9:20 pm .................................................................. 115
ii. Broadcasting of an Episode of CSI Miami ....................................................... 117
iii. Broadcasting of the Film Kajínek on 14 October 2012 from 8:20 pm............... 119
iv. Broadcasting of an Episode of Californication on 9 March 2010 from 9:30 pm.............121
v. Broadcasting of Leo Night Show .....................................................................121

XI. Right of Reply .................................................................................................. 124

A. Legal Nature of the Right of Reply ....................................................................124
B. The Right of Reply in International Context......................................................126
C. Constitutional Aspects of the Right of Reply .....................................................126
D. Legal Provisions .................................................................................................130
E. Statistics ............................................................................................................131
F. Answers to Research Questions .........................................................................132
G. Case Studies.......................................................................................................133
i. Supreme Court Judgment 30 Cdo 4403/2009 of 26 October 2011 ..................133
ii. Supreme Court Judgment 30 Cdo 130/2010 of 30 November 2011 .................134
iii. Supreme Court Judgment 30 Cdo 520/2011 of 26 April 2012 ........................135
H. Tendencies and Trends .......................................................................................136
 Contents 9

SLOVAKIA – Andrej Školkay, Ľuboš Kukliš, Ondrej Jurišta

I. Introduction........................................................................................................ 141

II. The Legal-Judicial System ................................................................................. 143

III. Electronic and Digital Media Regulations....................................................... 150

A. Content Regulation ........................................................................................... 151
B. Protection of Human Dignity ............................................................................ 151
C. Objectivity and Internal Pluralism ..................................................................... 152
D. Protection of Minors .......................................................................................... 153
E. Advertising ........................................................................................................154
F. System of Authorisation .....................................................................................154
G. Electronic / Digital Media Regulator ................................................................. 155
H. Administrative Procedures .................................................................................156
I. Types of Sanctions ............................................................................................. 159
J. The System of the Judiciary in Relation to Electronic
Media Regulation .............................................................................................. 161

IV. The Electronic / Digital Media System ............................................................. 162

V. Rules of Procedure (Media Authority and Courts) ............................................ 166

A. Analytical Summary ..........................................................................................175

VI. Protection of Human Dignity .......................................................................... 176

A. Human Dignity and Broadcasting .....................................................................177
B. What is Human Dignity? ..................................................................................177
C. Three Levels of Human Dignity ........................................................................180
D. Slovak Media Regulation—Protecting the Human Dignity as a
Concept or the Human Dignity of Individuals?................................................. 181
E. Protection of the Human Dignity of Groups .....................................................182
F. Protection of Human Dignity—Public Regulation vs Civil Law Disputes .........183
G. Consent of the Aggrieved Person .......................................................................185
H. Identification of the Aggrieved Person ...............................................................189
I. Analysis of References in Case Law of the Supreme Court .................................190
J. Conclusion.........................................................................................................195

VII. Balanced Coverage.......................................................................................... 196

A. The European Court of Human Rights and Balanced Coverage ........................199
B. Discussion on Objectivity and Impartiality .......................................................201
C. The Case of International News Reporting ........................................................205
D. Slovak Cases ......................................................................................................207
i. Case No 1: 6 Sžo 527/2009 (final verdict 26 October 2010) ...........................207
ii. Case No 2: 2Sžo73/2010 (final verdict) ..........................................................208
iii. Case No 3: 3 Sž 200/2010 (final verdict of 8 October 2010) ........................... 211
10 Comparative Media Law Practice

iv. 2 in 1: Plurality of Opinions and Human Dignity: Case Cervanová ................212

E. The Case Study: Commentaries v Information in
News Reporting—Where does the Border Lie? .................................................. 217
i. Argumentation by the Media Regulator .......................................................... 218
ii. Public / Experts’ Reactions to this Case ............................................................220
iii. Argumentation by the Office of the Rada pre vysielanie a retransmisiu .............221
iv. Argumentation by the RTVS ..........................................................................222
v. Method of Analysis ........................................................................................222
vi. Fellows’ Judgment and/or Experts’ Judgment ...................................................225
a. Grave Problems .........................................................................................226
b. Some Doubts .............................................................................................227
c. No Problem ...............................................................................................229
d. No Answer / No Opinion ...........................................................................229
F. Conclusion.........................................................................................................229

VIII. Commercial Communications ...................................................................... 237

A. Media Commercial Communication .................................................................237
B. Subliminal Commercial Communication ..........................................................239
C. Surreptitious Commercial Communication .......................................................240
i. Surreptitious Advertising in the News Program—Case Study ..........................242
D. Definitions of Advertising and Teleshopping .....................................................243
i. Prize Games as Teleshopping—Case Study .................................................... 244
E. Content Requirements for the Advertising and Teleshopping ............................247
F. Formal Requirements for the Advertising and Teleshopping ..............................248
G. Insertion of Advertising and Teleshopping into the Television Broadcasting ......248
H. Insertion of Advertising into the Radio Broadcasting.........................................249
I. Advertising Time ...............................................................................................249
J. Sponsoring .........................................................................................................250
i. Sponsoring Announcements v Advertising—Case Study ...................................250
K. Legal Basis ......................................................................................................... 251
L. The Interpretation ..............................................................................................254
M. The Initial Case .................................................................................................254
N. Product Placement .............................................................................................258

IX. Hate Speech...................................................................................................... 266

A. Local Cultural Context ......................................................................................271
B. International and European Legislation and Norms ..........................................273
C. The Media and Hate Speech ..............................................................................276

X. Right of Reply .................................................................................................... 277

A. Analytical Summary ..........................................................................................283

XI. Protection of Minors ........................................................................................ 284

A. Case Study .........................................................................................................290
i. Case Study 1 (3 Sž 6/2011 SC, Decision RP 56/2010)
 Contents 11

ii. Case Study 2 (8 Sž 8/2010, 20 October 2010, RP 07/2010)............................295

iii. Case Study 3 (28 September 2010, 5 Sž 8/2010, verdict was confirmed) ..........296
iv. Case Study 4 (5 Sž 14/2011, RP 21/2011 of 24 May 2011)..............................296
v. Case Study 5 (6 Sž 5/2013, 19 March 2014) ..................................................297
vi. Case Study 6 .................................................................................................298
a. First Case ..................................................................................................298
b. Second Case .............................................................................................3299
vii. Case Study 7 (8 Sž 15/2010, RP 21/2010) ..................................................... 300
B. Analytical Summary ..........................................................................................303

About the Authors .................................................................................................. 307

 Introduction
This is the first comparative analytical report on how administrative judiciary-administrative
law courts or senates, higher regional courts, and partly constitutional courts deal with
regulatory challenges related to various, content-based types of administrative-legal
sanctions issued by the electronic / digital media regulators in the Czech Republic, Hun-
gary, Poland and Slovakia. The selection of these four countries and their electronic /
digital media regulatory systems stems from their recent and sometimes rather distant
common history combined with geographical factor (V-4 or Visegrad Group). It is
scientifically naturally very interesting to find similarities, but especially differences, in legal
argumentation and legal-regulatory development among such a group of countries. In fact,
even local administrative law judges themselves are very much interested in examples from
these neighbouring countries. The whole research project was enabled by funding from the
Hungarian Academy of Sciences.
As these studies document, these are actually rather challenging regulatory issues which
usually take years to come to conclusions or final verdicts. Yet there is no such country-
specific or comparative study. Sure, one can find many studies on electronic media law
and regulation, however, those studies mostly use civic or criminal law regulatory-judicial
examples, but rarely concentrate on more systematic or in-depth approach, and even less
often focus on administrative law content related aspects. Moreover, it is hard to find full
texts of controversial broadcast items—yet sometimes either media regulator or court(s), or
sometimes even civic organisations, or all three public legal and normative assessors can in
fact be wrong in their assessment of professionalism of work of journalists / media. Therefore,
in some cases, we included full transcript of the most arguable or the most interesting news
and current affairs in broadcasting. For similar reasons, we have included extensive, although
simplified transcripts of courts’ verdicts.
The authors focused on the regulatory areas of human dignity, balanced coverage,
commercial communication, hate speech, right of reply, and protection of minors. These are
arguably the key media regulatory issues. Already here we could find substantial differences
among four countries. For example, whilst the Hungarian case law covers each of the before
mentioned regulatory areas in Slovakia, we did not find any case that would deal directly
with hate speech related to electronic / digital media and administrative law. In the Czech
Republic, no hate speech case connected with media was found either (in administrative law
nor in criminal law). Cases related with right to reply in the Czech Republic and Slovakia
are decided by civil courts in civil proceedings. Thus, the manner of judicial review is quite
different in this area. In Poland, the right of reply was replaced by the right to disclaimer
that is out of competences of the National Broadcasting Council. Also there were no cases
concerning the balanced coverage.
Our ad hoc research group has been interested in finding the key normative and legal
values motivating judges (or rather administrative courts or administrative law senates) in
their regulatory rulings (usually in connection with appeals of broadcasters against decision
of the media regulators or lower regional courts) on broadcast (and maybe soon online media)
regulatory issues. However, appeals or media regulators’ rulings of technical nature, eg, not
granting licence or ones related to transfer of ownership, were out of our research scope.
14 Comparative Media Law Practice

Of course, by definition, fundamental rights are actually competing rights. Thus, can
we identify freedom of speech or other basic human rights (eg, personality rights or hu-
man dignity) as a key driving force behind rulings either media regulators or administrative
courts? If preference was given to fundamental human values other than freedom of speech,
which were these? What does ‘balanced coverage’ actually mean for media regulators on the
one hand, and for the courts on the other? What kind of moral and legal justification was
used for a given legal-normative preference? Have there actually been value-based conflicts
between courts and the regulator?
Another interesting question is that of the consistency of the rulings. Do courts refer in
their rulings to their previous ones, especially when there are two or three different specialised
senates? Were various senates / courts consistent in their rulings? This may seem to be a
useless research question, but in fact, it will be shown that various senates of the court, even
the same senate of the court, have been inconsistent in their rulings.
Which international legal sources have been used to support these rulings and verdicts, eg,
European Court of Human Rights (ECtHR), or also possibly Court of Justice of the Europe-
an Union (CJEU)? Which international legal sources were not used to support these rulings
and verdicts, and why? Have there been any common trait in rulings / verdicts? Could these
traits be seen as long-term, or rather short-term ones? If there are no similarities, why not? Is
there any known, important difference in key principles of media regulation in comparison
with other EU Member States, especially within V-4?
Which principles mentioned above bring the biggest regulatory challenges? Is the regulation
of the electronic / digital media too complicated, demanding or strict to broadcasters, or is
it OK, comparatively speaking? Do broadcasters complain, either officially or off the record,
with respect to principles of media regulation? Can their complaints be seen as legitimate in
some areas? What else could help in improving the current state of affairs? How could we
characterise the cooperation between the staff (office) and the Board of the media regulator?
Do the regulatory boards of the media authorities accept all regulatory suggestions of the
staffs (offices)? If not, in which area can one notice the biggest or most important divergences?
Which arguments of the office count usually? What is the role of the professional, ideological,
and education backgrounds of the members of the media regulator—does it have any impact
on how they see imposing a regulation? Is there any foreign impact or inspiration, either
from the European Platform of Regulatory Agencies (EPRA) or from other bodies? Do we
see any areas of administrative law procedures which could be improved? How? How can
we characterise or assess direct or indirect intervention of the Parliament and the Ministry
of Finance or other external bodies in the work of the media regulator? Do broadcasters
complain, either officially or off the record, with respect to the professional competences or
work of board members? Have the appeals of the broadcasters against sanctions usually been
well-argued? Is there any external professional or civic informal, at least ad hoc, supervision or
criticism of the work of the media regulator? If yes, how could we evaluate it, eg, commentaries
in the media, reports by NGOs)?
How professionally competent is judiciary seen in general, and in this area of administrative
law in particular? Have argumentation used in the administrative courts rulings been
persuasive enough? Which cases are seen as the most difficult ones to decide for the judiciary?
Is there any long-term, value-based difference / tendency between various levels of courts?
Indeed, it seems that the Constitutional Courts in Slovakia and Hungary show long-term,
 Introduction 15

more liberal values, following the ECtHR rulings. In Poland, courts focus above all on the
provisions of Polish law, and only in some of the cases refer to the judgments of the ECtHR.
In the majority of the judgments, courts merely state that the freedom of speech does not
have an absolute nature, and its limits are imposed by other freedoms. In the majority of the
judgments, courts share the view of the National Broadcasting Council.
In the Czech Republic, it is the Supreme Administrative Court that seems to be the
dominant player, because its decisions are very rarely revoked by the Constitutional Court in
media cases. The Czech Supreme Administrative Court seems to be more liberal in balanced
coverage cases, while more protective in cases dealing with protection of minors.
Further research questions we were interested: Is there any platform at which the courts
and the regulator could discuss issues of common interest? What is the annual percentage of
accepted / rejected rulings focused at content broadcast, issued by the media regulator in the
years 2010–2014? Can we see any areas of judiciary work which could be improved? If yes,
how? What else could help improve the current state of affairs?
Of course, some questions above were too ambitious to be answered in this research,
nevertheless, they show how interesting and important this type of research can be. We
focused our analysis primarily on the period between 2010 (or back to 2007, if there were
not enough cases) and 2014. It is a problem that many regulatory and court cases actually
last a few years until the final verdict is issued, therefore, it was impossible to follow strict
differentiation with respect to the time span. Finally, this report is certainly imperfect; yet
there is a hope that it will serve as a starting point for a more refined research in the future in
this increasingly important regulatory area. This follow-up research is needed, indeed.

The Editors
Bratislava–Budapest
July 2016
Czech Republic

Ondřej Moravec
 I. General Introduction

This study focuses on the analysis of decision-making practice of administrative courts

examining legitimacy and accuracy of decisions issued by the Council for Radio and
Television Broadcasting (Rada pro rozhlasové a televizní vysílání, RRTV) that is by law
authorised to supervise radio and television broadcasting. Particular attention will be given
to the question to what extent the human rights arguments are reflected in the decisions
of the RRTV and subsequently of administrative courts, and to what extent the Council
decisions are accepted by administrative courts.
To this end, the available decisions of administrative courts that examined legitimacy
and accuracy of the RRTV decisions have been analysed in detail. The analysis is structured
into particular thematic issues forming the subject matter of the content regulation of
the Act on Radio and Television Broadcasting (including human dignity, hate speech,
balanced news coverage, commercial communications, and protection of minors). As part
of these particular issues, the relevant legal provisions were confronted with the decision-
making practice of administrative courts, and the arguments applied in the review of the
decisions of the RRTV were observed as well as to what extent such arguments are applied.
It was observed in how many cases administrative courts accepted the RRTV decision,
and in how many cases they reversed it. Certain generalising tendencies were subsequently
identified and derived from the arguments used in administrative court decisions, with an
emphasis on the source of these arguments and the degree of their consistency. Conclusions
of an analysis of the particular themes are always accompanied with case studies that
present the RRTV arguments in detail, and confront them with judicial decisions as well
as with broadcasters’ arguments.
Since it turned out as early as during the initial stage of data collection that the RRTV
decisions were frequently cancelled for procedural and formal reasons, a fairly large part of
the study is devoted to procedural rules of administrative bodies and courts. The emphasis
placed on the strict adherence to procedural rules may be interpreted as undesirable
preference of form to content. But this may also be a legal reflection of the fact that Czech
laws vest extensive sanction powers in the RRTV. The Supreme Administrative Court (SAC)
repeatedly inferred (and not only in media cases) that this competence fell in the category
of sanctioning, which was why procedures on these sanctions should comply with the
standards laid down by Article 6(3) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR) with regard to criminal sanctioning as well as by the
rich case-law of European Court of Human Rights (ECtHR).
In our opinion, strong emphasis on form and compliance with procedural rules may
also be interpreted as respect to the right of an individual (here the broadcaster) to a
fair procedure. A high share of the RRTV decisions that was cancelled for formal and
procedural reasons may also be understood, in our opinion, as a consequence of several
parallel factors, viz, the method of the RRTV appointment that makes it a political body
of its sort; one-sided preference of content by the RRTV and suppression of the formal
aspect; and last, but not least, the complicated, disconnected and fairly non-transparent
regulation of administrative sanctioning in the Czech Republic whose (low) quality resulted
in a posteriori formulation of many procedural standards by the SAC. Consequently, the
procedural framework of the execution of powers of the RRTV in the Czech Republic forms
20 Comparative Media Law Practice – Czech Republic

a non-omissible part of media legislation. The legal doctrine also deals with institutional
issues relating to the administrative regulation.1
In our view, the high degree of observance of compliance with procedural rules by
administrative courts is closely connected with the question to what extent the RRTV’s
administrative discretion is replaced with respect to the actual content. The facts of the
administrative infringements that are sanctioned by the RRTV are characterised by a fairly
high frequency of use of vague terms (objective and balanced broadcasting, protection of
the proper physical, mental, and moral development of minors, etc.) and a large space for
administrative discretion when imposing sanctions (a great variance between the lower and
upper sanction limit).
Even though administrative courts are not subject to any restrictions as to the examination
of this RRTV discretion, we can observe a certain restraint with which they actually enter into
the RRTV’s administrative discretion. The degree of this restraint also largely depends on the
character of the issue concerned as well as on the extent in which freedom of expression has
been affected, and on the character of the colliding interest. While when interpreting the term
‘objective and balanced broadcasting’, the SAC requires an ad hoc assessment whether a sanction
cannot breach freedom of expression and the right to information guaranteed by the Constitution,
in the commercial speech and protection of minors, it basically accepts the general preference of
the protection of rights and interests that legitimise any restriction of freedom of expression.
It is namely the actual degree of interference of administrative courts in the decision-
making of the RRTV that may significantly help us find an answer to the question which of
the said institutions is a dominant actor when determining the content regulation of radio
and television broadcasting. Although the Constitutional Court (CC) is formally the ultimate
authority in the context of the national law, its actual intervention in media legislation as
well as in decisions of the RRTV and administrative courts on media content regulation is
absolutely minimal, as is shown in this study. But we also have to realise that the minimum
intervention by the CC is also conditioned by the degree at which argumentation with hu-
man rights is applied in decisions of administrative courts. We can articulate a hypothesis
that the more the human rights arguments are applied in procedures before general courts,
the fewer reasons there are for any intervention by the CC. Accordingly, the relation between
the RRTV and administrative courts may be defined as follows: If the RRTV respects the
boundaries created by older administrative court decisions in other cases when exercising
its powers, administrative courts have no reason to enter into the RRTV’s administrative
discretion in individual cases. The degree at which the RRTV can enforce its ideas regarding
the content regulation of radio and television broadcasting therefore depends on the degree
of its willingness to accept the boundaries created by the case-law of administrative courts.
To fully understand the functioning of the legal regulation of media content, it is therefore
necessary to understand the degree to which individual state authorities (the RRTV) may
affect the actual application of the law as well as the rules of interaction between these
authorities. With this analysis, we strive to contribute to the understanding of this issue.
Since this analysis is a part of a wider comparative study including all Visegrad Four
countries (Hungary, Poland, Slovakia, and Czech Republic), it also includes a part devoted
to the right of reply for the purpose of potential comparisons even though this statute is not

1 O Pouperová, Regulace médií. Prague, Leges, 2010.

 II. Introduction to the Legal System 21

included in the powers of the RRTV and the right of reply is resolved by civil courts. The
methodology used in examination of this theme was therefore adjusted accordingly. Identical
characteristics were also reviewed in this case (the degree and manner of application of human
rights arguments, the degree of consideration of older decisions and decisions of international
courts, case-law consistency), and case studies were presented, but judicial arguments could
not be confronted with the arguments of the RRTV. Instead, we dealt with the issue to what
extent a person seeking the publication of a reply could sue out the reply, and to what extent
broadcasters (or publishers) were able to defend their decision not to publish the reply. Hence,
we again examined (similarly to the other themes and topics) to what extent the judiciary
enters into the media content regulation with its decisions.

II. Introduction to the Legal System

The system of law (legal order) in the Czech Republic is arranged in a manner typical of other
countries in continental Europe. Its internal structure is based on the Roman law traditions.
Constitutional laws are of the ultimate legal force, together forming the constitutional order.
The key elements of the constitutional order include the Constitution of the Czech Republic
regulating the frame of government and the Chart of Fundamental Rights and Freedoms be-
ing the fundamental bill of rights.
Article 10 of the Constitution incorporates the promulgated international treaties in the legal
order whose ratification was approved by Parliament and that are binding for the Czech Republic.
Under this Article, if a treaty provides something other than that which a statute provides, the
international treaty will apply preferentially. This defined principle of the application preference
of international treaties draws in the national law namely the ECHR, including the related
case-law of the ECtHR in Strasbourg. That means that it no longer has a character of a mere
inspirational guideline in the interpretation of similar provisions of the Charter of Fundamental
Rights and Freedoms, and acquires a fairly high normative force. Therefore, also national courts
of general jurisdiction are forced to apply judgments of the ECtHR in their decisions, especially
if such judgments are claimed by a party to the proceedings.
According to Article 83 of the Constitution, the CC is the judicial body responsible
for the protection of constitutionality. The Czech Republic applies a model of specialised
concentrated protection of constitutionality. That means that the CC has exclusive powers to
assess conformity of laws and regulations of a lower legal force with the constitutional order.
If a conflict of any legal provision or a part thereof with the Constitution is established, the
CC has the right to cancel the colliding provision. If a general court finds a legal provision
unconstitutional, it must interrupt the proceedings and turn to the CC with an application
for cancellation of this provision. An individual has the right to seek cancellation of an
unconstitutional law solely in connection with a constitutional complaint against a specific
decision of a general court issued in his/her case. The majority of the CC agenda deals with
decisions on constitutional complaints of individuals against general court decisions.
However, in many of its decisions, the CC appeals to courts of general jurisdiction that
the protection of fundamental rights guaranteed by the Constitution is not its monopoly,
and that also general courts must interpret and construe legal provisions in conformity
with the Constitution, ie, in particular in compliance with the provisions of the Charter
22 Comparative Media Law Practice – Czech Republic

of Fundamental Rights and Freedoms protecting the fundamental rights of an individual

guaranteed by the Constitution. The requirement is based on Article 4 of the Constitution
under which the fundamental rights and freedoms enjoy the protection of judicial bodies.
General courts are arranged in a hierarchical structure with four levels. Judicial procedures
use two-tier or three-tier system. District courts are at the lowest level, issuing decisions as
courts of the first instance in most cases relating to the civil and criminal law. Regional courts
act as appellate courts in these cases. They also decide as courts of the first instance in certain
specific civil and criminal cases (serious crimes). In this case, high courts act as appellate
courts. The Supreme Court (SC) decides on appellate reviews in civil and criminal cases.
The system of administrative judiciary is excluded from the judicial system. It is a two-tier
system. An individual may seek protection with an administrative action against a decision of
an administrative body, against its inactivity and another interference not having a character
of an administrative decision. In the first instance, actions are resolved by specialised panels
of administrative courts. A cassation complaint is a remedy against their decisions, and this
complaint is submitted to the SAC. The Supreme Administrative Court should unify the
case-law of administrative courts in its decisions on cassation complaints.
Administrative courts decide in the full jurisdiction of the Czech Republic, ie, they examine
not only the lawfulness but also the objective accuracy of administrative body decisions, and
their reviews cover both legal issues and the facts as established by administrative bodies.
The key legal branches are mostly codified in comprehensive codes. The new Civil Code (Act
No 89/2012 Sb.) became effective on 1 January 2014. It is the central private-law regulation,
including the commercial law (business corporations are specially regulated by Act No
90/2012 Sb., on Business Corporations). The new Criminal Code (Act No 40/2009 Sb.) has
been in effect since 1 January 2010. Criminal liability of legal persons was introduced with
the adoption of Act No 418/2011 Sb. (effective since 1 January 2012).
On the contrary, procedural regulations (Criminal Procedure Code and Civil Procedure
Code) were enacted in the 1960s despite being amended several times over the past 25 years. The
administrative judiciary is governed by a relatively new law (Code of Administrative Procedure,
Act No 150/2002 Sb.) which satisfies the requirements based on Article 6 of the ECHR.
The administrative law is an absolutely fragmented branch lacking a comprehensive code.
Any introduction of a new code is not even considered with regard to the diversity of the
regulated issues and the traditional departmentalism resisting any codification. Decisions
of public administration bodies are governed by a relatively unified (except for tax issues)
regulation of the Rules of Administrative Procedure (Act No 500/2004 Sb.) that are
accompanied by many particular exceptions in special regulations.
Prosecution of administrative infringements is governed by Act No 200/1990 Sb.,
both with respect to the substantive and procedural aspects. Administrative liability is
strictly limited to natural persons (unlike criminal liability). Legal persons are liable for
so-called other administrative infringements. Sanctions (mostly fi nes) are imposed by
administrative bodies in accordance with the general rules of administrative procedure.
There is no comprehensive procedural regulation on administrative sanctioning which
would respect standards required by the ECHR, and it must be substituted by decisions
of the SAC in specific cases that partially fi ll in the gaps. The absence of a procedural
regulation of administrative sanctioning has been criticised for a long time and repeatedly,
but there is no suggestion that any legislative change would be introduced in this area.
 III. Key Principles of Electronic Media Regulation 23

Th is absence is also reflected in the decision-making of the RRTV whose numerous

decisions were cancelled by administrative courts for procedural reasons. Unclear and
incomplete rules of procedure on administrative sanctions are undoubtedly among the
reasons behind this fact.

III. Key Principles of Electronic Media Regulation

A. Scope of Regulation

The legal regulation of the mass media in Czech law comprises a system of laws and regulations
whose scope is defined by individual media types. Its key regulations include the Printing Act
(Act No 46/2000 Sb. (Coll.), as amended, which became effective on 14 March 2000, and
the Act on Radio and Television Broadcasting (Act No 231/2001 Sb. (Coll.), as amended,
which became effective on 4 July 2001. In 2010, these two statutes were supplemented with
the Act on On-Demand Audiovisual Media Services (Act No 132/2010 Sb. (Coll.), effective
from 1 June 2010; ODAMSA).
The Act on Radio and Television Broadcasting (the Broadcasting Act, BA) became
effective on 4 July 2001 when it superseded the previous Act No 468/1991 Sb. (Coll.)
effective between 22 November 1991 and 4 July 2001. The Broadcasting Act was amended
several times (28 amendments). Some of these amendments were rather technical in nature,
reflecting, eg, amendments to general legislation (Act on Civil Service, adoption of the Rules
of Administrative Procedure, amendments to the Criminal Act) or modifications of other
media laws (Act on Czech Television, Act on Electronic Communications, adoption of the
Audio-vision Act). The amendments implemented by the acts specified below can be regarded
as major amendments to the BA:
– 341/2004 Sb. (Coll.), effective from 2 June 2004;
– 235/2006 Sb. (Coll.), effective from 31 May 2006;
– 132/2010 Sb. (Coll.), effective from 1 June 2010.
These amendments repeatedly amended the scope of the BA, in particular to include
television broadcasting via the Internet or the provision of services which resemble television
broadcasting via the Internet (streaming, webcasting).
As of the date of this study, the scope of the BA was defined in its Section 3(1). Hence,
the Act applies to (1) broadcasters operating on the basis of special legislation (statutory
broadcaster);2 (2) broadcasters operating on the basis of a licence granted under the BA;3 (3)
re-broadcasters operating on the basis of authorisation under the BA.4
Under Section 2(1)a of the BA, radio and television broadcasting means the ‘provision
of programme units and other broadcasts—arranged within a programme, including
services directly related to the programme—by a broadcaster to the public via electronic
communications (1)a in a form protected or unprotected by conditional access; (1)b for the
purpose of simultaneous listening/viewing of the programme units and other broadcasts.’

2 This means Czech Television as the public service television.

3 This means private (commercial) broadcasters.
4 This means re-broadcasting service providers.
24 Comparative Media Law Practice – Czech Republic

The broadcaster is by law defined as ‘a legal or natural person that prepares a programme,
including services directly related to the programme, determines the method of organising
radio and television broadcasting, bears editorial responsibility for this broadcasting, and uses
a unique audio or visual identification which guarantees that there will be no confusion in
respect of the programme and services directly related thereto, to distribute the programme
and the services directly related thereto by their own means or through third persons.’
Section 2(3)a of the BA is also essential to define the scope of the BA, under which provision
of communication services focused on the delivery of information or other communications on the
basis of individual requests is not regarded as radio and television broadcasting. Provision of
non-linear media services is regulated by the ODAMSA. Pursuant to Section 2(1)a of the
ODAMSA, the audiovisual service is taken to mean an information society service which is
under the editorial responsibility of an on-demand audiovisual media service provider, the
principal objective of which is the provision of programmes to the public in order to inform,
entertain, or educate, which allows for the viewing of programmes at a moment chosen by
the user, and at his individual request, on the basis of a catalogue of programmes established
by the on-demand audiovisual media service provider.
It follows from the above that the BA regulates services based on the principle of
simultaneous viewing where a viewer watches a programme unit broadcast by the broadcaster
at the given moment. An on-demand audiovisual media service, in contrast, means that the
viewer (user) chooses a certain programme unit from a catalogue prepared by the service
provider, ie, the viewer chooses at what time he/she will watch the programme. The scope of
individual laws and regulations is based on the principle of technical neutrality where it is
important what service is provided as opposed to the technical means used to distribute the
information. A focus on content is the common characteristic of both services. This means
that content provision is (in conformity with European Union law) strictly separated from the
provision of electronic communications networks through which the content is distributed.5
The presence of editorial responsibility of the provider is another common element in
both services. It is the broadcaster or the provider of the non-linear service who ultimately
determines the programme offered (broadcast or made available in the catalogue of
programmes). All other services based on the creation of an environment filled with the
content delivered by service users do not fall within this regulation. They include various
network repositories, services such as YouTube or social networks whose providers are not
considered as content providers with editorial responsibility.
The position of providers of content which are not of purely audiovisual nature is thus
questionable. Such services include news portals as well as individual blogs or websites where
audiovisual elements intermingle with texts. Media services focusing on text (typically blogs)
fall outside the scope of the ODAMSA even though audiovisual sequences are used in them
as a complementary element. However, those services (typically news portals) that work with
audiovisual sequences to a significant extent are also disputable because of the development
of technology and the improved connection of users.
We can increasingly encounter the use of these elements in the Czech environment, even
in the form of live broadcasts, which makes these services undistinguishable for users from

5 Electronic communications networks are regulated by Act No 127/2005 Sb. (Coll.) on Electronic
Communications.
 III. Key Principles of Electronic Media Regulation 25

television broadcasting. It is difficult to qualify these services from a legal perspective because
individual hypertext links cannot be apparently regarded as a catalogue of programmes
within the meaning of the ODAMSA. Czech courts have not resolved this issue yet, and so
no clear answer can be given for the time being.

i. Technical Regulation

The Broadcasting Act creates a legal framework for the dual system of television broadcasting
in the Czech Republic as it also lays down the conditions under which private entities may be
granted a licence for radio and television broadcasting alongside (the state broadcaster) Czech
Television established by special law. The licence is granted by the RRTV in a licensing procedure.
Digitisation of television broadcasting has resulted in extension of the availability on the
frequency spectrum, and so at present the number of available licences, in the current social
and economic conditions, exceeds the number of potential broadcasters.
The licence is granted in an open licensing procedure. According to law, there is no legal
title to the licence. The television broadcasting licence authorises the broadcaster to television
broadcasting for a period of twelve years. Broadcasters have the authority to rebroadcast with
the proper authorisation. There is a legal title to authorisation if the authorisation terms and
conditions specified in Sections 27 and 28 of the BA are met. The provider of on-demand
audiovisual media services must register with the RRTV.

ii. Content Regulation

Content regulation of television broadcasting is specified in Section 31 et seq of the BA. The
fundamental principle is laid down in Section 31(1) of the BA under which the broadcaster is
entitled to broadcast programmes in a free and independent manner. Any intervention in the
contents of the programmes is only admissible on the basis of law and within the limits thereof.
The principle of objectivity and balance of the programmes broadcast is enshrined in
Sections 31(2)–(4) of the BA. The broadcaster must:
– provide objective and balanced information necessary for opinions to be freely formed.
Any opinions or evaluating commentaries shall be separated from information which
has the nature of news;
– ensure that principles of objectivity and balance are complied with in news and political
programme units and that, in particular, no one-sided advantage is—within the
broadcast programme as a whole—given to any political party or movement, or to their
views, or the views of any groups of the public, taking account of their real position
within political and social life; and
– prepare its programme structure so as to provide, in its broadcasting, a well-balanced
portfolio offered to all the population with respect to their age, gender, colour of the
skin, faith, religion, political or other opinions, ethnic, national or social origin, and
membership of a minority.
Other content-related limits of radio and television broadcasting are specified in Section
32 of the BA under which the broadcaster is required to:
26 Comparative Media Law Practice – Czech Republic

– ensure that the broadcast programme units do not promote war or show brutal or
otherwise inhumane behaviour in a manner which would involve its trivialisation,
apology, or approval;
– ensure that the broadcast programme units do not arouse hatred for reasons relating to gender,
race, colour of the skin, language, faith and religion, political or other opinions, national or
social origin, membership of a national or ethnic minority, property, birth or other status;
– ensure that the broadcast programme units do not contain subliminal communications;
– not include in the broadcasting any programme units that may seriously affect the
physical, mental, or moral development of minors in particular those involving
pornography and gross violence as an end itself;
– avoid showing, without justification, dying people or people exposed to severe physical
or mental suffering, in a manner detrimental to human dignity;
– avoid including in the programme during the period from 6 amto 10 pm any
programme units and announcements which might endanger the physical, mental, or
moral development of minors; this obligation shall not apply to broadcasters where
broadcasting to the end user is available under a written contract concluded with a
person aged over 18 years, and is accompanied by the provision of a technical measure
which allows that person to restrict minors’ access to broadcasting;
– ensure that its programmes do not include programme units that could promote
prejudicial stereotypes of ethnic, religious, or racial minorities;
– ensure that its programmes do not include programme units and advertisements that
contain vulgarisms or swearing, except for in arts programmes where it is justified in
the context; such programme units or advertisements may only be broadcast between
10 pm and 6 am of the following day.
The obligations of the broadcaster relating to the broadcasting of commercial
communications (advertising, sponsoring, teleshopping) are defined separately. The act
also restricts the broadcaster’s freedom of speech with respect to content (in particular
hidden advertising) and form (recognisable or duly separated advertising respectively).
The Broadcasting Act also prescribes the duty of television broadcasters to adhere to the
determined proportion of European production. Persons whose dignity, honour or privacy
could be affected by any announcement containing any factual information are granted the
right to a reply which can be applied in court (if the broadcaster does not react).
Any breach of the obligations relating to broadcasting content may in some cases be subject to a
fine which the RRTV is authorised to impose for an administrative infringement. In certain cases,
the RRTV is not authorised to impose a fine but only to notify the broadcaster of a breach of the law.
The ODAMSA contains a much more liberal definition of the provision of non-linear
media services. According to Section 6(2) of the ODAMSA, an on-demand audiovisual
media service provider shall ensure that the on-demand audiovisual media service does not
contain any communication intentionally manipulated in order to affect the subconscious
of a natural person without consciously being perceived by that person, and that it does not
incite hatred on grounds of sex, race, colour, language, faith and religion, political or other
opinion, national or social origin, nationality or ethnicity, property, birth, or other status.
According to Section 6(3) of the ODAMSA, an on-demand audiovisual media service
provider shall ensure that an on-demand audiovisual media service, the contents of which
might seriously impair the physical, mental, or moral development of minors, in particular
 III. Key Principles of Electronic Media Regulation 27

by containing pornography and gross gratuitous violence, is made available only in such
a way that it ensures that minors will not normally see or hear the content of such an on-
demand audiovisual media service.
The broadcasters’ obligations relating to the distribution of commercial communications
are defined separately where, analogically to the normal broadcasting, the principle of
easy recognisability of commercial communications is highlighted. Hidden commercial
communications are expressly prohibited. The right to a reply is not specified in the
ODAMSA, ie, the persons affected cannot sue the publication for denying them a reply.
In the light of the foregoing list, it is clear that the regulation of television broadcasting is
much stricter than that of non-linear media services. This difference is very hard to justify
considering the competitive relationship between the two media types. The historical argument
of a limited frequency spectrum can be used only to a very limited extent. Advocates of
stricter regulation of television broadcasting mostly point to the stronger and more persuasive
potential of television broadcasting6 whereas the author of this study previously expressed
scepticism as to sustainability of this model.7
According to a poll carried out among students of the Media Clinic taught at the Law
Faculty of Masaryk University in Brno,8 the hypothesis that the legitimacy of stricter
regulation of television broadcasting is weakened by the lost dominant position of television
broadcasting and arrival of the new media was confirmed only partially. Although the majority
of respondents said that television was a medium like any other medium, the opinion that the
stricter regulation of television broadcasting was justifiable clearly prevailed.

B. Media Types

Current legislation differentiates the following media types. Press is regulated by the relatively
liberal Printing Act based on the registration principle. As for the specific instruments of the
media law, the press is affected by the right to a reply and additional announcement, and
protection of sources is also expressly protected.
Radio and television broadcasting is subject to the strictest regulation both in terms of
market access and subsequent operation; relatively strict supervision is exercised by the
RRTV, and there is a developed mechanism of administrative sanctions.
On-demand audiovisual media services are somewhere on the borderline between press and
broadcasting; their access to the market is based on the registration principle; the catalogue of
obligations is narrower than for broadcasting, but the institutionalised administrative supervision
exercised by the RRTV is maintained. Until the law is applied in practice, it is difficult to determine
the extent to which the RRTV will reflect the established patterns in the new area of its competences.
The category of non-regulated publication activities in the online environment includes
blogs, e-zines, personal websites, etc. Only general regulations such as the Civil Code,
Criminal Code or the Act on Advertising are applied.

6 Pouperová, Regulace médií (n 1).

7 O Moravec, Mediální právo v informační společnosti (Prague, Leges, 2013).
8 This was really just a poll among a very low number of respondents. The poll did not have the ambition to
replace a questionnaire survey. Its results are solely used to illustrate the topics discussed in the given area.
28 Comparative Media Law Practice – Czech Republic

Although the strictly technical dividing criteria were abandoned with the adoption of the
ODAMSA, or additional criteria were provided (the existence of a catalogue of programmes
and subsequent programme selection by the service recipient, and the institution of editorial
responsibility), the existing regulation remains based on the idea that a certain service is
defined as press, broadcasting, or an on-demand media service, and is registered and operated
as such. The scope of rights and obligations of a service is determined by this status.
However, the varied nature of the new media is hardly compatible with this concept.
The same broadcaster may offer only text services in one and the same place on one day,
and include a series of live broadcasts from events of public interest on another day, and
subsequently store such recordings and offer them in a catalogue of programmes.

C. System of Authorisations and Licensing

The application of the licensing system (the granting of licences to broadcast or to provide a
service) persists in the Czech Republic for radio and television broadcasting. Although both
these media are subject to the same legal regulation, its practical application is different due to
technical distinctions. While television broadcasting is barely concerned with the problem of
limited frequency spectrum due to digitisation, the number of applicants for licences remains
higher than the number of available frequencies in the case of analogue radio broadcasting.
However, it remains valid that there is no legal title to a licence both for radio and television
broadcasting. When it is granted a licence, the broadcaster receives authorisation to broadcast,
and the broadcaster has the obligation to use the licence and do so. Any interruption in
broadcasting without prior notification or any long-lasting interruption in broadcasting
constitutes a reason for the licence to be withdrawn under the applicable legislation.
The registration principle is applied in re-broadcasting. The re-broadcaster compiles its own
programme offer (comprising programmes broadcast by other entities) which is distributed to service
recipients. Hence, although the re-broadcaster does not produce the programme itself, it is obliged
to ensure that the distributed programmes (or programme units broadcast within the programmes
distributed by the re-broadcaster) meet the requirements imposed by the content-related regulation. The
right to re-broadcast is established by registration. There is a legal title to this registration (authorisation).
The registration principle is applied in the case of on-demand audiovisual media services.
Under this principle, the service provider must register with the RRTV, but the right to
operate the service is not granted by the fulfilment of the duty to register. Any breach of the
duty to register is subject to sanctions as an administrative infringement.

D. Characteristics of Media Legislation

Media legislation of the Czech Republic is based on the principle of the particular regulation
of individual media types which complements general legislation (Civil Code, Criminal
Code). The publication of the periodical press, radio, and television broadcasting, and
provision of non-linear media services are each subject to separate regulation. This system
makes it possible to adapt the legal regulation to the given media type, and react to its
specifics accordingly. However, the absence of a general part of the media law which would
 III. Key Principles of Electronic Media Regulation 29

be common for all media types raises doubts as to the justifiability of the different degrees
of rigidity of individual legal provisions and regulations. In certain cases, there are question
marks over the constitutional conformity of these differences, in particular in cases where
individual media types compete with each other.
These doubts become even more pronounced with the ongoing convergence process where
the differences between individual media types are fading away. The digitisation of television
broadcasting, newly emerging media, and the availability of high-speed Internet enable Inter-
net broadcasting of both radio and television (IPTV) as well as text media which resembles
the press. It is in fact almost impossible to distinguish individual media types by technical
criteria. The Broadcasting Act has therefore essentially abandoned the technical criterion (by
defining the term ‘broadcasting’ on the basis of the simultaneity criterion only).
In contrast, the Printing Act continues using the technical criteria when it defines its
scope by stating that it applies to printed material. There has consequently been a discussion
as to whether the Printing Act can also be applied to websites (Internet magazines, blogs)
which are not printed materials from a technical point of view. These discussions mainly
revolved around the question of whether the right to a reply can be applied in the new media
environment. This discussion still remains open, but it seems that currently the prevalent
opinion is that websites cannot be regarded as printed material.
During the preparation of this study, the option of introducing more significant changes to
media legislation has been discussed. Such changes are expected to focus particularly on the public
service media (Czech Television, Czech Radio), their position and management, but a discussion
on modifying the regulation of radio and television broadcasting in general has also begun in
relation to these changes. These discussions have mainly focused on the basically different position
of television broadcasters as compared to other types of media. Nonetheless, commercial media
providers have voiced a relatively strong opinion that no new Broadcasting Act is needed, and
that an amendment to the existing statutory provision would be sufficient for practical purposes.9

E. Characteristics of the Council for Radio and Television Broadcasting

The Council for Radio and Television Broadcasting is an administrative body, ie, a body
exercising state administration within the scope of its competences. The position of the RRTV
10
in the system of state bodies of the Czech Republic, its establishment and appointment is
regulated by the Act on Radio and Television Broadcasting. The Council is an independent
administrative authority. It is placed outside the system of state administration bodies; it is
independent of the executive power, and reports to the Chamber of Deputies. Some authors
regard the phenomenon of independent administrative bodies as a promising path of legal
regulation as it enables impartial interventions by the state, and accentuates the expertise of
decision-making, thus strengthening the efficiency of state interventions.11

9 Presentation of Pavel Kubina, Head of Legal Department at FTV Prima, at the ‘Media Regulation II’
conference (2014).
10 For detailed information on the Council’s status, see, M Bartoň, ‘Postavení a charakteristika Rady pro
rozhlasové a televizní vysílání’ Správní právo 1–2 (2004) 14.
11 T Ježek, ‘Nezávislé správní orgány – žádoucí směr inovace Ústavy ČR’ J Kysela (ed), Deset let Ústavy ČR
(Prague, Eurolex Bohemia, 2003) 347–51.
30 Comparative Media Law Practice – Czech Republic

The independence of the RRTV has an institutional aspect (the RRTV is not subordinated
to any other administrative body), a personal aspect (Council members cannot receive any
instructions on how to perform their office), a creational aspect (Council members are
appointed by the Chamber of Deputies of the Parliament of the Czech Republic, and are not
dependent on the government), and a financial aspect (financial remuneration of Council
members is defined directly by the law).
The method of appointing the RRTV (election by the Chamber of Deputies) necessarily
means that Council members basically represent the political lines represented in the
Chamber of Deputies. Hence, the RRTV is not built on the principle of career officers. The
Council Office plays an irreplaceable role, with its task being to create the conditions for the
proper functioning of the RRTV. Despite the undisputable importance of the Council Of-
fice, we must consistently distinguish between the two bodies because the decision-making
powers are exclusively vested in the RRTV by law.
The Council for Radio and Television Broadcasting is a collegiate body where decisions are
adopted by a majority of votes. Even if sanctions are imposed, the wording of the resolution
adopted by the RRTV is decisive. The written counterpart of the decision executed by the
Council Office must be identical with this resolution. If there is any (even minor) deviation
in the content, the decision is not lawfully adopted. However, courts have to date not clearly
determined whether or not the entire decision (including the reasoning) or only its binding
part should be adopted as the RRTV decision.
This legal situation places great demands on each Council member to expertly perform
his/her office because he/she must ensure that the RRTV decisions accord both with the BA
and with the general legislation applicable to administrative proceedings. The failure to meet
these requirements has in many cases (see Point IV) been a reason for the invalidation of many
RRTV decisions. An analysis of the case-law of administrative courts has shown that many
administrative decisions issued by the RRTV have been overturned mainly for procedural
reasons. Many such decisions contained systemic errors, ie, they were issued on the basis of
an established practice which was subsequently found illegal. This reflects a certain habit:
When an established RRTV practice is branded as unlawful for formal reasons, this defect is
then reflected in all decisions which have the same procedural defect.
These statements can be evidenced by the fact that the extended panel of the SAC, whose
task is to unite the case-law of the individual panels of the SAC, has intervened in this area
solely for procedural reasons. Such interventions include the following cases:
– due identification of the action in the binding part of the decision;
– the moment of starting the time limit within which a sanction may be imposed;
– the obligation of the RRTV to produce evidence by watching a programme during an
oral hearing in the presence of the broadcaster;
– essentials of the notification of the breach of the law;
– applicability of the notification of the breach of the law in similar cases.
 IV. Procedure before the Council for Radio and Television Broadcasting 31

IV. Procedure before the Council for Radio and Television Broadcasting

A. Overview of Administrative Proceedings before the

Council for Radio and Television Broadcasting

The Council for Radio and Television Broadcasting is an independent administrative

authority. As such, it has the authority to exercise state powers within the scope of its
competence, which is currently defined by the BA, the ODAMSA, and partly also by the Act
on Advertising. Apart from being an independent administrative authority, and regardless of
the method of its appointment, the RRTV has the obligation to exercise the powers vested
within its competence only in cases defined by law and in the manner defined by law, just
like other public bodies. When exercising its powers, the RRTV proceeds in accordance with
the Rules of Administrative Procedure.12

B. Stages of Proceedings

The proceedings before the RRTV consist of one stage, which means that no appeal or
similar legal remedy is possible against an RRTV decision. If the broadcaster believes that
the final decision is illegal or incorrect, it can lodge a complaint against such a decision with
the administrative court. The Broadcasting Act expressly stipulates that an administrative
action has a suspensive effect. The court must decide on the complaint within ninety days.13
However, this is merely a disciplinary deadline which is not adhered to very strictly in
practice.14 Still, if the time period within which the administrative court is required to decide
is determined, it has a positive impact on the duration of the proceedings because this mainly
affects cases which must be dealt with preferentially, and not in the order in which they were
submitted to the court.
The form of the proceedings before the RRTV is materially influenced by the fact that the
proceedings to determine whether sanctions should be applied are regarded (based on the case-
law of the SAC) as proceedings on a criminal charge within the meaning of Article 6(3) of
the ECHR, ie, the broadcasters have all the rights specified in this article of the Convention.15

C. Proceedings Imposing Fines

The proceedings imposing fines represent the crucial part of the agenda relating to the
regulation of the television broadcasting content. By imposing fines for infringements
committed by radio and television broadcasters, the RRTV sanctions the inclusion of
programmes which are at variance with the BA.

12 Act No 500/2004 Sb. (Coll.).

13 Section 61(5) of the BA.
14 To be evidenced with statistics.
15 With reference to the judgment of the ECtHR: Engel and Others v the Netherlands, App No 5100/71,
judgment of 8 June 1976; judgment of the SAC 4 As 10/2006 of 18 April 2007. For details, see, P Molek, Právo
na spravedlivý proces (Prague, Wolters Kluwer, 2012) 60–62.
32 Comparative Media Law Practice – Czech Republic

i. The Relationship between the Council and the Council Office

The decision-making power is by law vested exclusively in the RRTV. The bureaucratic
apparatus is involved in the preparation of documents for decisions and written forms of
decisions, but not in the decision-making process as such. Therefore, the RRTV, whose
members are elected by the Chamber of Deputies of the Parliament of the Czech Republic,
has the same obligations as any other body, in particular with regard to the legal quality of
its decisions and regardless of the manner in which the Council is appointed (see Chapter 1).
Bureaucratic support for the RRTV’s operations is provided by the Council Office established
on the basis of Section 11(2) of the BA under which the tasks related to professional, organisational,
and technical support for the activities of the RRTV shall be carried out by the Council Office.
The Council Office is a body of the RRTV. The head of the Council Office is appointed and
removed by the RRTV. The head of the Office Council reports to the Council Chairperson.
Details of the Office’s operations are regulated by the organisational guidelines of the Office
which are not any generally binding regulations but an internal regulation of the RRTV.
The relation between the Council and the Council Office has subsequently been regulated
by case-law. The extended panel of the SAC accentuated the aspect of independence and
personal performance of the office of Council members:

The legislator clearly determined that Council members must perform their office in person and should
not receive any instructions for the performance thereof. Since the Council for Radio and Television
Broadcasting has the powers to decide on serious issues of a constitutional and legal character, and in
particular to restrict the freedom of speech with its decisions, it is absolutely crucial that Council members
make decisions in person within the Council for Radio and Television Broadcasting proceedings. After all,
this is also supported by the historical argument when the statements of reasons relating to the media laws
show that it is absolutely crucial that media members perform their mandate in person from the perspective
of state supervision of the mass media. After all, independence and autonomy in decision-making is one of
the reasons why there is a range of incompatibility of offices and other restrictions in the case of Council
members (see Sections 7(9), 7(11)–(13) of the BA). For instance, the need for personal decision-making
of Council members arises in connection the Council for Radio and Television Broadcasting’s power to
supervise the adherence to the principles of objectivity and balance in political-journalistic programmes.16

Based on the requirements for the personal and independent performance of office
of the Council member, the extended panel of the SAC has concluded that the Council
members deciding in administrative proceedings imposing a sanction on a broadcaster must
personally watch the programme concerned either during or outside an oral hearing, but in
the presence of the party to the proceedings. With this conclusion, the SAC turned away
from the clear tendency of its previous case-law under which the personal watching of the
programme by a Council member could be replaced with a programme analysis prepared
by the Council Office.17 Only the second panel held an opposite opinion to the extended

16 Resolution of the extended panel of the SAC 7 As 57/2010 of 3 April 2010, [27].
17 Cf judgments 4 As 36/2007-121 of 29 May 2008, 4 As 35/2007-120 of 30 May 2008, 4 As 37/2008 of 30
June 2008, or 4 As 38/2007-122 of 10 July 2008. The sixth panel used this case-law in judgments 6 As 16/2008
of 22 January 2009 or 6 As 20/2008-83 of 22 January 2009.
 IV. Procedure before the Council for Radio and Television Broadcasting 33

panel’s decision.18 Therefore, the extended panel regards the analytical report prepared by
the Council Office with respect to the administrative proceedings as a service summary
material ‘which is only mediated, and contains evaluating or critical elements’.19
Since the decision-making power is by law vested exclusively in Council members and not
in the Office, the decisions must be taken directly by the RRTV, which adopts resolutions
at its meetings. A written counterpart of the decision subsequently prepared by the Council
Office should not be different from the wording adopted in the RRTV resolution even in
insignificant details. In the past, the Office modified the wording of the binding part of
the decision in several cases so as to comply with the formal legal requirements. Both the
Metropolitan Court in Prague (MC)20 and the SAC21 branded this procedure as illegal. The
unlawfulness thus established resulted in the overturning of the RRTV decision without the
need to look into its material aspects.
Although the findings contained in the Council Office analysis are not binding for the RRTV
decisions, the RRTV regularly bases its administrative practice on these findings, and uses them.
The Metropolitan Court in Prague even concluded that with the requirement for the reviewability
of an administrative decision in mind, RRTV also has the obligation to justify its different
evaluation of a programme if it intends to deviate from the conclusions contained in the analysis.
Although the MC stated that

The Council for Radio and Television Broadcasting is not bound by the evaluation or
recommendation specified in the analysis submitted to the Council by the Council Office, it should
always (especially in cases where it declares that it has an absolutely opposite factual and legal
conclusion) completely specify in the conclusions of the grounds for the decision why the manner of
a programme’s preparation should not be regarded as legitimate subject-matter criticism of a certain
enforced intention because it collides with other interests protected in the given territory (it may
pose a negative impact from the perspective of environmental protection) but rather as a biased and
one-sided presentation of opinions which induces a negative approach of the viewer to the given
intention, hence the viewer is manipulated. The conclusion on the bias of the opinions evaluating
the impact of construction from the perspective of an intervention in the existing ecosystem in
the affected territory and their manipulative effects on the viewer should not be based only on
the fact that it mostly presents critical stances, but it must be recognisable from the consideration
regarding the accomplishment of the elements of an infringement pursuant to Section 31(2) of the
Act whether the expression of critical stances is evaluated as misleading for the viewer because they
were presented by absolutely unqualified persons, persons pretending such qualification, or because
their critical statements are at variance with other objectively evidenced findings and hence are
untrue and biased. The perspective of the focus of the type of the programme and the object of the
specific programme must also be considered as well as the particular view from which the planned
golf course construction was evaluated.22

18 Judgment 2 As 59/2008-80 of 26 November 2008.

19 Decision of the extended panel 7 As 57/2010, [25].
20 Decision 10 A 52/2010 of 28 June 2010.
21 Decision of the SAC 1 As 101/2012 of 7 February 2013.
22 Judgment of the MC 10 A 52/2010 of 28 June 2010.
34 Comparative Media Law Practice – Czech Republic

However, this does not mean that the Council and the Council Office have an absolutely
loose relation. For instance, courts regard the Council Office as an integral part of the
RRTV for the purposes of setting the start of the time limits within which the RRTV may
impose sanctions on broadcasters. Therefore, if the law connects the start of a time limit
within which a sanction may be imposed with the RRTV’s knowledge about a potential
law violation, the start of the time limit cannot be based on individual RRTV meetings.
According to the CC, the ‘Council for Radio and Television Broadcasting is primarily an
administrative body which issues collective decisions, but the duration of administrative
time limits cannot be based solely on its meetings. For such purposes, Council for Radio and
Television Broadcasting has an executive body (the Office of Council). Adherence to the time
limits would not be possible without its activities. However, it is impossible to neglect the acts
of the Council Office when determining the start of the time limits.’23
Administrative courts respect this conclusion of the CC without exception. The moment
when the Council Office as the executive body of the RRTV can become familiarised with
facts justifying the conclusion that an administrative infringement has been committed
is thus regarded as the moment when the RRTV becomes knowledgeable of such facts.
Typically, this includes cases of viewer initiatives processed by the Council Office and
subsequently submitted to the RRTV for an assessment. Hence, the duration of the time
limit for imposing a sanction cannot be linked to the moment when the material in question
is discussed by the RRTV alone. It also simultaneously applies that even for a collegiate
administrative body such as the RRTV, the adoption of a resolution at a council meeting is
not decisive, but it is only the delivery of a written counterpart of the decision to the party to
the proceedings pursuant to Section 19 of the Rules of Administrative Procedure.24
Therefore, the relationship between the Council and the Council Office is fairly precisely
described in case-law of administrative courts. There is no ignoring a certain tension with
regard to the RRTV’s position. On the one hand, the RRTV is an independent administrative
authority placed outside the system of administrative authorities subjected to the government.
This independence takes specific forms which makes the RRTV in some ways an extraordinary
body—its representative mandate, the ban on giving instructions to a Council member, and
the strict requirement for its members to performance their office in person. Its exclusive status
has been justified by the constitutional and legal character of the matter on which the RRTV
decides (restricting the freedom of speech). On the other hand, the element of professionalism
has been highlighted as it is applied in relation to the parties to the proceedings (see below),
which increases the requirements on the execution of state administration by the RRTV.

ii. Relation Between the Council and Parties to the Proceedings

The requirement for professionalism when exercising state administration is in particular

applied in respect of the parties to the proceedings who are constitutionally guaranteed the
fundamental right, by virtue of their procedural position, that the proceedings before the
RRTV be held in accordance with the principles of a fair hearing. An analysis of the case-law

23 Judgment of the MC, 4th CP 946/09 of 11 January 2010.

24 Judgment of the SAC 7 As 11/2010-134 of 16 April 2010.
 IV. Procedure before the Council for Radio and Television Broadcasting 35

of the administrative courts shows that the procedural steps of the RRTV regularly lead to
disputes between the RRTV and parties to the proceedings. In certain cases, arguments as
to the procedural aspects even overshadow the core of the matter, ie, the issues of content
regulation of the freedom of speech. It is worth emphasizing that the agenda of the extended
panel of the SAC which has the powers to unite legal opinions within the SAC (see the next
Point) consists almost entirely of procedural issues.25
First, there is the requirement for the reviewability of a decision or its reasoning. The Council
must state both the reasons for its decision regarding both the accomplishment of elements of an
administrative infringement and the sanctions imposed. In practice, the disputes between the
RRTV and broadcasters have particularly focused on the way in which the RRTV interprets
vague terms such as ‘objective and balanced broadcasting’, ‘endangering the moral development
of minors’ or ‘pornography’. It is not only about giving content to these vague terms but also
about which administrative body is competent to decide on the content of these terms.
The Supreme Administrative Court states the following in connection with the term
‘pornography’:

The Council for Radio and Television Broadcasting has the competence to define the content and
extent of the vague legal term ‘pornography’ in its decision-making practice pursuant to Sections
32(1)e and 60(3)c of Act No 231/2001 Sb. (Coll.) on Radio and Television Broadcasting, and to
clearly specify the criteria for distinguishing between a programme with erotic elements tolerated by
law and pornography which is inadmissible in television broadcasting. When making this definition,
the administrative body is given space for its own considerations which must be in conformity with
Article 22(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down
by Law, Regulation or Administrative Action in Member States concerning the pursuit of television
broadcasting activities (or Article 27(1) of Directive of the European Parliament and Council
2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative
action in Member States concerning the provision of audiovisual media services), Articles 56 and
62 of the Treaty on the Functioning of the European Union, Article 10 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (No 209/1992 Sb. (Coll.)), and Article
17 of the Charter of Fundamental Rights and Freedoms, to focus on establishing a fair balance
between the freedom of speech and free provision of services on the internal market of the Euro-
pean Union, and protection of the physical, mental and moral development of children and youth
(minors) in connection with watching such television programmes.26

Thus, the SAC ascribes a key role, when giving content to this vague term, to the RRTV.
The Council gives its own autonomous consideration to this term, and does not have to obtain
the opinions of experts from other non-legal fields for this purpose.27 The administrative
courts then play something of a supervisory role, with the powers to assess whether a decision
is reviewable:

25 An exception was indicated by the judicial reflection of the so-called Kuřim case where the proceedings
were commenced before the extended panel, but ended without any judgment on the merits because it involved
different cases which should be assessed by individual panels adjudicating on cassation appeals.
26 Judgment of the SAC 5 As 15/2011 of 29 March 2012.
27 And judgments of the SAC 6 As 14/2004 and 8 As 62/2005.
36 Comparative Media Law Practice – Czech Republic

Therefore, it is the task of the administrative body to interpret and construct the term ‘pornography’
used in the Broadcasting Act, and apply it in specific cases. By using this vague legal term, the
legislator created space for the applicant to closely define this term in its administrative practice with
regard to the specific circumstances of individual issues under assessment. But this does not mean
the use of administrative consideration, which is a situation where an administrative body has the
option of choice when applying a statutory provision with respect to multiple solutions prescribed
by the law, but it means the interpretation and application of a vague legal term which accomplishes
the element of an administrative infringement. However, the steps of the administrative body
in the interpretation of a vague legal term are, to a certain extent, analogical to administrative
considerations. First, the applicant must justify its decision including the interpretation of the term
pornography in a proper and logical manner. According to the established case-law of the Supreme
Administrative Court, the interpretation of a vague legal term made by the administrative body is
subject to a court review. An administrative court primarily assesses whether the action established
is sufficiently supported by the facts established, whether the administrative body correctly
subordinated it under a vague legal term, whether the interpretation and application of the vague
legal term by the administrative body is in conformity with the law and whether the administrative
body’s consideration is not at variance with logical principles. If the administrative body’s decision
lacks these attributes, it is not reviewable for a lack of reasons.

However, the SAC also determines its own content-related limits of the term ‘pornography’
when it says that

the term ‘pornography’ pursuant to Sections 32(1)e 60(3)c of Act No 231/2001 Sb. (Coll.) on
Radio and Television Broadcasting, cannot be on the one hand restricted only to programmes
containing child pornography or pornography displaying violence, manifestations of disrespect
to human beings, or a sexual intercourse with an animal, the broadcasting of which would be a
criminal offence in the case of specific natural persons (now Sections 191 and 192 of the Criminal
Code of 2009), but on the other hand it should not be such a wide category that would include
programmes which can only endanger, but not seriously interfere with the physical, mental, or
moral development of children and youth, and which can be broadcast at certain times or under
certain conditions specified in Section 32(1)g of the Act on Radio and Television Broadcasting.28

The requirement for reviewability can also be applied in decisions on sanctions. The
Council for Radio and Television Broadcasting imposes sanctions within the limit prescribed
by law which can be up to several orders of magnitude, but the BA does not contain any more
structured system of the facts of administrative infringements which would be internally
differentiated by the type of their social harmfulness. For instance, the RRTV may impose
a fine between 20,000 koruna and 10 million koruna for the breach of the broadcaster’s
obligations relating to the protection of children and youth. This is an extremely wide range.
It endangers not only the broadcaster (who faces proceedings when an extraordinarily high
sanction may be imposed for even less serious acts) but also is a burden for the RRTV because
it demands that the part of the decision which assesses the amount of the fine be especially
persuasive.

28 Judgment of the SAC 5 As 15/2011 (n 26).

 IV. Procedure before the Council for Radio and Television Broadcasting 37

iii. Self-Regulation

The power to impose sanctions for the breach of the obligations of the broadcaster is vested
exclusively in the RRTV, which is an administrative body. The amendment to the BA (No
132/2010 Sb. (Coll.), which is part of the ODAMSA, institutionalised certain self-regulating
mechanisms.
Pursuant to Section 5x of the BA, the

Council shall cooperate within the range of its competence with Czech legal persons whose
activities include self-regulation in any of the fields to which this Act or specific legislation apply,
such self-regulation involving active participation of broadcasters, re-broadcasters or on-demand
audiovisual media service providers (hereinafter referred to as self-regulatory bodies), provided that
such cooperation is requested in writing by such a self-regulatory body, especially in developing
effective self-regulatory systems and in implementing measures supporting media literacy; publish a
list of the cooperating self-regulatory bodies (hereinafter referred to as list of self-regulatory bodies),
using methods that facilitate remote access.

Pursuant to Section 61(3) of the BA, the RRTV has the obligation, when determining
the amount of the sanction for breaching the BA, to consider the opinion of a relevant self-
regulatory body held on the list of self-regulatory bodies, provided that such an opinion
is received by the Council within 10 working days from the date of commencement of
administrative offence proceedings.
Association of Television Organisations (Asociace televizních organizací, ATO)29 is the
self-regulatory body in television broadcasting. Its members include both state broadcasters
(Czech Television) and some commercial broadcasters (FTV Prima). The Association
has worked out its own Code of Ethics; it adopts standpoints on initiatives submitted by
broadcasters and communicates with the RRTV.
The case-law of administrative courts still does not contain any support for the potential
conclusion that any failure to take into account the opinion of a self-regulatory body or
deviation from its opinion would render a decision on imposing a sanction illegitimate.

D. Other Proceedings Conducted by the Council

for Radio and Television Broadcasting

In addition to the proceedings on imposing fines for administrative infringements, the RRTV
conducts proceedings relating to market access. These include proceedings connected with
licensing and registration (authorisation). In administrative proceedings, the RRTV decides
on awarding and withdrawing licences and on permitting any amendments thereto. The
proceedings on licences for analogue broadcasting30 are characterised by a higher number
of parties where a positive decision in favour of one party (ie, the granting of a licence)
automatically has a negative impact on other parties, whose application is subsequently

29 www.ato.cz.
30 This agenda virtually concerns solely radio broadcasting after digitisation of television broadcasting.
38 Comparative Media Law Practice – Czech Republic

dismissed. The licensing procedure is initiated by the RRTV or by the applicant for the licen-
ce with the announcement of the licensing procedure. The Council conducts joint licensing
procedures on all applications submitted. The programme structure proposed by licence
applicants is discussed during a public hearing (Section 16 of the BA).
The procedure for granting satellite and cable broadcasting licences and to broadcast
via special transmission systems and to grant terrestrial digital radio licenses or licenses to
broadcast television via transmitters is a standard administrative procedure in which the li-
cence applicant is the only party. The former licensing procedure, which was a competition of
several applicants for available frequencies, has now been abolished, as the previous limitation
arising from the relative lack of broadcasting frequencies no longer applies. Since television
broadcasting was digitised, the procedure has changed, and now only verifies whether the
applicant meets the statutory requirements, in particular the requirement for the licence
applicant not to have debts, and to be of good character.
The registration (authorisation) procedure is much easier as the RRTV only verifies
whether or not the registration / authorisation application of the rebroadcaster meets the
essential standards prescribed by law.

E. Breach of the Law Notice in the System of Administrative Sanctions

i. Statutory Provisions

The institute or concept of the notice of a breach of the law is defined in Part VII of the BA which
lays down the sanction provisions. However, it is marginal from the perspective of legal theory
whether this is a sanction in the strict sense of the word at all. This is apparent from Section 59
of the BA alone because this concept is entitled Corrective Action. This means that it stresses the
preventive rather than repressive nature of such notices. Section 59 of the BA reads as follows:

(1) If a broadcaster or rebroadcaster breaches any obligations set out herein or any conditions stipulated
in the licence granted to such a broadcaster or rebroadcaster, the Council shall warn such a (re)
broadcaster of the breach and shall grant such a (re)broadcaster a grace period to take corrective action.
(2) The length of the grace period for corrective action as referred to in the preceding paragraph
shall be adequate to the nature of the obligation so breached.
(3) If corrective action is taken within the prescribed period, the Council shall not impose any
penalty.
(4) Provisions of Paragraphs 1–3 above shall not apply if the broadcaster or rebroadcaster breaches
the obligations referred to in Sections 32(1)c, d, and e, Section 63(1), and Section 64(1) in a
particularly serious manner.

ii. General Characteristics of the Concept

This is a highly specific concept in the context of the Czech system of administrative sanctions,
and it can basically be found only in the media law. In our opinion, this unique character
is one of the reasons why its application has been connected with significant difficulties
 IV. Procedure before the Council for Radio and Television Broadcasting 39

in interpretation, accompanied by argumentation conflicts between the broadcasters and

the RRTV. The case-law of the SAC has been fairly ambivalent in the long term, which is
apparent from the fact that the extended panel of the SAC has been repeatedly activated to
unify the different opinions of the individual three-member panels of the SAC (judgments
of the SAC 8 As 85/2012 and 6 As 26/2010). The interpretation difficulties have been even
further intensified by the fact that the provision in question is a result of the initiative of an
MP (it was not part of the government bill), ie, it was not accompanied by an explanatory
memorandum during the legislative process (as noted by the sixth panel of the SAC in its
Resolution 6 As 26/2010-66 of 17 March 2011).
No matter how strongly the area of television broadcasting is harmonised with the EU
legislation, the concept of the breach of a law notice is not based on the EU legislation. It is a
purely Czech invention whose conformity with the EU law has even been subject to extensive
debates (see below).
According to the statutory provision on the breach of the law notice, it is a result of
administrative activities of the RRTV. Specifically, it is an individual administrative act
resulting from the decision-making process of an administrative authority on specific rights
or interests of a specific broadcaster protected by law (for general information on the concept
of an individual administrative act).31 However, this is not an administrative act with the
form of an administrative decision issued during an administrative procedure.
The breach of a law notice is not a sanction in the strict sense of the word, and is not even a
moral sanction. In this sense, it is different from the general concept of an admonition which
is a type of sanction regulated by the Act on Administrative Infringements. The admonition
is basically a ‘legally fixed means of moral compulsion’.32 A notice as such is not regarded as
a sanction by the case-law of administrative courts because by itself it does not lead to any
legal consequences for the addressee.

The Supreme Administrative Court believes that the meaning behind Section 59 of the Broadcasting
Act is undoubtedly to ensure that a broadcaster is not sanctioned for delict acts of which it was
not aware. Generally speaking, this concept embodies the preventive function of administrative
sanctions. The legislator gives space for a voluntary corrective action of the broadcaster’s wrongful
acts. The law does not specify the character of the ‘notice’ (or warning) nor does it determine to what
extent such notice should be specified. According to the Supreme Administrative Court, the ‘notice’
must be in such cases perceived in the material sense of the word, ie, as a delivery of information
on the broadcaster’s violation of the statutory duties and the risk of sanctions’ (judgment of the
Supreme Administrative Court 6 As 20/2008 of 22 January 2009).

The notice (as well as admonition) contains a strong element of prevention which does not,
however, reach the level of moral compulsion (unlike admonition). The Council for Radio and
Television Broadcasting is basically obliged (except for cases specified in Section 59(3) of the
BA) to notify (warn) the broadcaster of a breach of the law at first and to provide a grace period
for corrective actions, and then only impose a sanction if no corrective action is taken. The
necessity of the existence of the prior notice constitutes a strong motivation for the broadcasters

31 See, P Průcha, Správní právo – obecná část (Brno, Doplněk, 2012) 278–81.
32 ibid, 400.
40 Comparative Media Law Practice – Czech Republic

to seek a judicial review of the notice at two levels, viz, whether the notice was issued in
accordance with the law (ie, whether the broadcaster breached the law at all), and whether the
notice is relevant with respect to the acts for which the broadcaster has been sanctioned.

iii. Judicial Reviewability of the Notice

The older case-law of administrative courts clearly shows that the breach of the law notice
is not judicially reviewable as such. In its judgment 8 Ca 212/2008 of 4 September 2008,
the MC arrived at the conclusion that it is impossible to lodge a separate action against the
notice, not even pursuant to Section 65 of the Code of Administrative Justice because it is
not a decision, and not even pursuant to Section 82 of the Code of Administrative Justice
because it is not an interference, instruction or compulsion (enforcement). In the reasons
given for the cited judgment, the MC states, referring to Section 75(2), second sentence of the
Code of Administrative Justice, that the lawfulness of the notice may be subject to a review
in a subsequent procedure on a monetary sanction imposed by the RRTV because only the
awarded penalty constitutes an interference in the broadcaster’s legal sphere. If the notice
is not followed by a sanction imposed for a repeated breach of the same legal duty of the
broadcaster, the notice alone has no consequences for the broadcaster according to the MC.
In its judgment of 6 August 2009 (6 As 46/2008), the SAC agreed with the findings of the MC.

Therefore, the contested notice does not have the character of a judicially reviewable administrative
decision and is not even interference within the meaning of Section 82 of the Code of Administrative
Justice. Pursuant to Section 82 of the Code of Administrative Justice, only such a wrongful act is
subject to an administrative complaint which is directed against the complainant or as a result of
which direct interference was made against the complainant if such interference or its consequences
persist or if there is a risk that it will be repeated. Interference means an unlawful attack by an
authority on the complainant’s rights and such an attack as such cannot be the expression (result) of
the due decision-making powers of such authorities and must be beyond the usual review or another
procedure. . . . Hence, interference means a factual act, not a written notice or communication
prepared by administrative authorities.

The Supreme Administrative Court therefore refers the broadcaster seeking a judicial
review of the lawfulness of the breach of the law notice to later proceedings, in the course of
which an administrative court will review the decision to impose a fine, where the RRTV will
infer performance of its notification duty from the notice whose lawfulness the broadcaster
intends to challenge. The court will review the lawfulness of the previous notice of violation
of the law when reviewing the lawfulness of the decision imposing the fine.
In its judgment 4 As 17/2008-119 of 17 September 2008, the SAC took a stand almost
immediately after the judgment of the MC (8 Ca 212/2008-61), stating that ‘the lawfulness of
a previous notice cannot be additionally challenged in a procedure regarding an appeal against
a later decision with which the Council imposed a sanction on the broadcaster.’ According
to the SAC, the ‘notice is a product of an absolutely separate procedure independent of the
procedure where the sanction was imposed.’ Thus, the fourth panel of the SAC expressly
ruled out any review of the notice as a foundation for the later decision imposing the sanction
 IV. Procedure before the Council for Radio and Television Broadcasting 41

(mentioned by the sixth panel). This controversy in the legal opinion of the sixth and fourth
panels of the SAC has not been unambiguously resolved to date.

iv. Applicability of Previous Notice—Summary of Case-Law Development

The case-law relating to the conditions which must be fulfilled for a specific breach of the law
notice to be used as evidence of the fulfilment of the condition to impose a sanction pursuant
to Section 59(3) of the BA has evolved quite considerably.
The older case-law of the SAC shows that a breach of the law notice need not necessarily
be connected with identical facts relating to the broadcaster’s acts. With one-time violations
(typically the broadcasting of a programme unit violating the BA), it would in practice mean
that such violations would not be punishable if the broadcaster did not repeat the programme
whose unsoundness had been previously stressed by the RRTV. Thus the issue does not
concern identical facts but identical legal qualifications.
However, this opinion represents the opposite extreme because the function of the
previous notice would be exhausted at the moment when the broadcaster for the first time
accomplishes certain elements of an administrative infringement (delict) pursuant to the BA,
and any other breaches of the same duty would result in a sanction.
Such boundless effects of the notice were later corrected by the SAC which stated that the
notice of the breach of the law should be objective and to the point and must have a time
relation to the acts for which a fine is to be imposed:

the notification duty pursuant to Section 59(1) of the Broadcasting Act is rather connected with
the breach of the statutory duty than with a specific fact. It is up to the judicial review to determine
whether the administrative authority (defendant) did not depart from the limits of the prior
notification duty, ie, whether the relation between the notice and the specific sanctioned fact is not
too ‘subtle’ or whether there is any at all. The Supreme Administrative Court does not believe that
it would be possible to articulate a specific temporal (or even material) border beyond which there is
no connection between the notice and the fact. (Judgment of the SAC 6 As 20/2008 of 22 January
2009; the SAC took the same stand in its judgments of 14 May 2008 (6 As 43/2007-90), of 15 May
2008 (6 As 70/2007-104), and of 30 May 2008 (4 As 35/2007-120).)

In its judgment 3 As 12/2010 of 10 November 2010, the third panel of the SAC adopted
a different legal standpoint when it noted:

If the broadcaster failed to perform the duty imposed by Section 48(4)a of Act No 231/2001 Sb. (Coll.)
on Radio and Television Broadcasting, and committed a delict by broadcasting a sponsored message
which was subsequently assessed by the Council for Radio and Television Broadcasting as advertising, it
is necessary for the accomplishment of the purpose of Section 59(1) of the cited act that the broadcaster
be notified of the breach of its duty in any such event prior to imposition of a sanction pursuant to
Section 60(1)l of Act No 231/2001 Sb. (Coll.) even though otherwise the precedential notice is sufficient.

The reasons provided for this decision show that the third panel of the SAC was well
aware of the current case-law of the SAC under which a precedential notice was sufficient.
42 Comparative Media Law Practice – Czech Republic

The third panel expressly quotes judgments 6 As 21/2007 of 14 May 2008, 4 As 35/2007 of
30 May 2008, 6 As 30/2008 of 22 January 2009, 6 As 20/2008 of 22 January 2009, and 6
As 17/2009 of 10 February 2010. The third panel knowingly did not submit the case to an
extended panel because it noted that the facts of the dispute were of such a character that
the case under assessment could be distinguished from the cases where the SAC had issued
decisions in the past. This difference consisted in the character of the duty violated by the
broadcaster or in the manner of construction of the facts of an administrative infringement
pursuant to Section 48(4) of the BA:

While in the previous cases referred to above, the administrative infringement mostly concerned
aspects specified in Section 32(1)g of Act No 231/2001 Sb. (Coll.), ie, the broadcasting of a
programme unit which could endanger the physical, mental, or moral development of children and
young people (with the type of programmes such as VyVolení, Big Brother, etc.) and the Council
assessed the infringement so-to-speak ‘in one step’ (ie, the programme could/could not endanger the
development of children and young people), the Council will at first, in the heard case, assess it as
a prejudicial issue whether the stated sponsored message is or is not advertising within the meaning
of Section 2(1)n of Act No 231/2001 Sb. (Coll.), and only if it concludes that it is advertising, it may
decide that this advert (from the material perspective) was not appropriately separated from other
parts of the programme.
Thus, it may be presumed in the case of violations of Section 32(1)g of Act No 231/2001 Sb. (Coll.)
that the broadcaster was aware of (potential) unsoundness of the broadcast programme for the
development of children and young people (minors), and the previous notice made in relation to
another fact can therefore be assessed as sufficient for accomplishing the purpose of Section 59(1) of
Act No 231/2001 Sb. (Coll.) as interpreted above. However, if Section 48(4)a of Act No 231/2001
Sb. (Coll.) was violated through the broadcasting of a sponsored message, such a presumption is
impossible because the broadcaster cannot reliably foresee the manner in which the Council will
assess the sponsored message in question, ie, if it agrees with its designation as sponsoring or if it
qualifies it as advertising. It is precisely this ‘two-step’ character of the decision on liability for an
infringement pursuant to Section 48(4)a of Act No 231/2001 Sb. (Coll.) committed through the
broadcasting of a sponsored message that made the Supreme Administrative Court note that it
is necessary to accomplish the purpose of Section 59(1) of Act No 231/2001 Sb. (Coll.) that the
broadcaster is always notified (warned) of the breach of the duty enshrined in Section 48(4)a of Act
No 231/2001 Sb. (Coll.), ie, always in relation to each specific sponsored message. A sanction may
then be imposed only if the broadcaster fails to abandon the broadcasting of the sponsored message
despite being notified that the Council assesses such message as advertising.

This means that the third panel of the SAC did not argue with the legal opinion of the
sixth panel of the SAC but only concluded that a different legal assessment is necessary in
relation to the specific facts of an administrative infringement.
However, the sixth panel disputed the legal opinion of the third panel described above,
which came to the conclusion that it may even be marginal in many cases to assess the issue
of whether the broadcasting of a certain programme unit cannot pose a risk for the proper
mental, physical, or moral development of minors. On the other hand, the criteria under which
it is possible to distinguish a sponsored message from advertising are sufficiently specified in
the case-law of the SAC, so the sixth panel did not find any reason why the sanctioning of
 IV. Procedure before the Council for Radio and Television Broadcasting 43

non-separated advertising should be subject to different rules than the sanctioning of other
infringements of broadcasters (see the resolution referring the case to the extended panel,
6 As 26/2010-66 of 17 March 2011). The sixth panel branded the arguments used by the
third panel as being at variance with the EU legislation because it would result in a situation
where breaching the ban on non-separated advertising would not always be effectively and
efficiently sanctioned.

v. Legal Opinion of Extended Panel of the Supreme Administrative Court

In its Resolution 6 As 26/2010-101 of 3 April 2014, the extended panel carried out a comprehensive
analysis of the concept of the notice of the breach of the law in the context of constitutional
principles on which the legal regulation of radio and television broadcasting is based. According to
the extended panel, supervision of the execution of radio and television broadcasting also includes

supervision over the broadcasting content, ie, activities aimed at supervision to ensure that
broadcasters avoid broadcasting content which is prohibited by the law. It must be noted that the
Council here supervises an extraordinarily sensitive area affecting the crucial fundamental rights
and freedoms of individuals and certain crucial values protected by the Constitution, primarily the
freedom of expression, as well as privacy, family life, good name protection, etc. (Paragraph 26)

Issues covered by EU legislation were not neglected by the extended panel either. According
to the SAC, EU legislation establishes certain substantive limits of the freedom of expression
(specifically Directive of the European Parliament and of the Council 89/552/EEC of 3
October 1989 as amended by Directive of the European Parliament and of the Council of
30 June 1997, and Directive of the European Parliament and of the Council 2007/65/EC
of 11 December 2007 and replaced by Directive of the European Parliament and of the
Council 2007/65/ES of 11 December 2007). According to the SAC, procedural issues, rules
of administrative sanctioning and other issues not regulated by these directives are to be
resolved by the Member States. According to the extended panel, the Council’s duty to first
notify the broadcaster of violation of the law is not at variance with EU legislation.

The interpretation of the limitation of the freedom of expression conforming to the Constitution
must therefore be primarily based on the fact that there must always be a constitutionally legitimate
reason for any specific limitation which reflects the reasons strictly defined pursuant to Article 17(4)
of the Charter and that the given limitation is, in particular as to its content, extent and intensity,
proportionate to the law or the constitutional value protected by it. (Paragraph 27).

Using the provisions of Section 59(4) of the BA, the SAC also distinguished simple
breaches of the BA from qualified breaches (as specified in Section 59(4) of the BA) because
the legislator clearly determined that as for simple breaches, only a breach of the law which
continues despite the broadcaster being notified thereof should be sanctioned:

According to the laws of the Czech Republic, the general conditions of liability for an administrative
infringement related to television broadcasting also includes a condition (related to less serious
44 Comparative Media Law Practice – Czech Republic

cases) that liability for an administrative infringement in television broadcasting is established only
after the offender is given prior notice (warning) of the wrongful act.
It is at the legislator’s discretion to categorise violations of duties pursuant to the Broadcasting Act
into two categories and to sanction only ‘qualified’ breaches without the prior rectification attempt;
and furthermore, this regulation corresponds to the character, importance, and conditions of possible
limitations of the fundamental right which is mostly affected by this regulation (freedom of expression
or speech). With this regulation [in addition to ‘licence discipline’ as defined in the facts of Sections
63(1)a, 63(1)c, and 64(1)a of the Broadcasting Act], the legislator made it clear that the administrative
sanction imposed by the regulator (financial and non-financial sanction, as the case may be) for non-
permitted application of the freedom of expression is possible without the prior provision allowing
for a corrective action only in cases where other important rights guaranteed by the Constitution
or values protected by the Constitution are so seriously affected (and also repeatedly) that such a
severe intervention in the freedom of expression is justified even without the prior application of more
moderate means. The facts defined in Sections 32(1)c, 32(1)d, and 32(1)e as well as in Sections 63(1)
b and 64(1)b of the Broadcasting Act concern abuses of the freedom of expression which contravene
the most fundamental constitutional principles, use grossly unfair methods of affecting the viewer or
listener or can seriously deprave the development of minors, ie, commonly more vulnerable individuals.
With ‘simple’ breaches of duties pursuant to the Broadcasting Act, the legislator concluded that a
corrective action must be attempted first and only if it fails, should sanctions be imposed.

Using this basis, the SAC concluded that the precedential notice (ie, notice connected with
the breached legal duty and not directly with the specific acts of the broadcaster) will be
sufficient to meet the condition of the existence of the previous notice, but for the notice to
perform the intended preventive function, its text must clearly state the specific violation of the
law. On the one hand, the SAC (in agreement with its current case-law) reiterated the opinion
that it was not permissible that the broadcaster’s wrongful acts not be punishable unless they
are repeated, but on the other hand, the Court warned against a too restrictive approach:

A too restrictive approach would risk the preliminary self-censorship of broadcasters fearing the
regulator’s sanctions, ie, it would be at variance with the ban on censorship pursuant to Article
17(3) of the Charter. For instance, if a notice that erotic scenes [which should not be confused with
the broadcasting of pornography which can be sanctioned without prior notice if certain other
conditions are met under Section 32(1)e of the Broadcasting Act in combination with Section 59(4)]
broadcast in a specific film between 6 am and 10 pm could deprave the physical, mental, or moral
development of minors (eg, for being too explicit) should apply to any other erotic scenes in other
similar films, the broadcaster, fearing a sanction for breaching the duties pursuant to Section 32(1)
e of the Broadcasting Act, could be too self-restrictive. As a result, the broadcaster could limit
creative freedom in an undesirable manner because even the restriction of access to creative works
of a certain character (here those containing erotic scenes) on the market, also including television
broadcasting, is also a limitation, even though indirect.

Therefore, the extended panel of the SAC came to the conclusion that the

notice pursuant to Section 59(1) of Act No 231/2001 Sb. (Coll.), the Broadcasting Act, must contain
sufficiently specific description of the broadcaster’s acts and which duties have been breached and it
 IV. Procedure before the Council for Radio and Television Broadcasting 45

must give a specific time limit for a corrective action. Except for cases specified in Section 59(4) of
the Broadcasting Act, a prior notice pursuant to Section 59(1) of the Broadcasting Act is a necessary
precondition of sanctions imposed for any similar acts. Only if the broadcaster receives such a notice
may it be sanctioned for repeated acts displaying material elements of the acts of whose unlawfulness
it has been notified.

The said decision of the extended panel of the SAC shows that the interpretation of the
terms ‘similar acts’ and ‘repeated acts displaying material elements of the acts of whose
unlawfulness it has been notified’ is crucial here. However, the extended panel’s decision
does not give any clear answer to the disputed issue.

vi. Reflection on the Extended Panel’s Legal Opinion in the Current Case-Law of the
Supreme Administrative Court

The situation remains ambiguous even after the decision issued by the extended panel of
the SAC. Individual panels also had different opinions on how to apply the findings of the
extended panel. The eighth panel noted that the RRTV should always issue a breach of the
law notice, even if any further sanction is basically ruled out (one-time breaches):

In accordance with the resolution of the extended panel of 3 April 2012 (6 As 26/2010-101), the
Council for Radio and Television Broadcasting has the right to impose a fine for the violation
of Section 31 of Act No 231/2001 Sb. (Coll.), Broadcasting Act, only following a prior notice of
wrongful acts which are, in all material respects, similar to the acts for which a sanction should be
imposed, even though in relation to news programmes, this interpretation leads to the denial of
the meaning of the cited provision, and it will normally be impossible for the Council to perform
its duty to first notify the broadcaster of the unsoundness of a news programme, considering that
news reports are typically broadcast only once. (Judgment of Supreme Administrative Court 8 As
18/2011 of 30 May 2012).

The eighth panel based its opinion on the reasons contained in the decision of the extended
panel, referring to the clear wording of Section 59 of the BA which orders the RRTV to issue
a notice regardless of whether or not the character of the duty breached by the broadcaster
admitted a corrective action at all (typically one-time reports). The eighth panel reached the
same conclusion in other decisions (8 As 73/2010 of 30 May 2012, 8 As 78/2010 of 30 May
2012 and 8 As 26/2012 of 18 June 2012).
On the other hand, the sixth panel inferred from the decision of the extended panel that
a precedential notice was sufficient to perform the notification duty when it noted in its
judgment 6 As 26/2010 of 30 May 2012 that the notification duty had also been performed
in a situation where the RRTV had notified the broadcaster of a violation of the law which
was, in material respects, similar to acts for which the RRTV had been imposing a sanction.
The sixth panel reached the same conclusion in its other decisions (6 As 1/2012 of 30 May
2012, 6 As 24/2011 of 14 June 2012, and 6 As 25/2011 of 27 June 2012).
In quick succession, the extended panel of the SAC was activated and noted in its
Resolution 8 As 85/2012 of 14 July 2014 that the
46 Comparative Media Law Practice – Czech Republic

notice issued by the Council for Radio and Television Broadcasting pursuant to Section 59(1) of Act
No 231/2001 Sb. (Coll.), the Broadcasting Act, is a qualified foundation for imposing a sanction for
any subsequent breaches of the broadcaster’s duties laid down by this law or of the licence conditions
if it contains similar facts which would, on a subsequent occasion, constitute the same elements of
an administrative infringement as were present in the fact of whose unlawfulness the broadcaster
was notified.

In this decision, the extended panel reiterated that

the primary purpose of a notice is preventive. Therefore, the notice must be perceived in the material
sense of the word, ie, as the delivery of information that the broadcaster has breached a duty laid
down by the law in a certain specific manner and that the broadcaster faces sanctions for any
repeated breaches of this duty.

The decision described above states the requirements to be satisfied in a specific notice of the
breach of the law so it can be used as a foundation for any future establishment as to whether
or not the broadcaster has been notified of the violation of the law in a relevant manner:

The Council must always perform a careful ad hoc assessment as to whether the relation between
the notice and the specific sanctioned facts is too ‘subtle’ or whether there is any relation at all.
Considering the highly variable and little standardised content of television and radio broadcasting,
it is impossible to determine the border where there is any such relation and where it is insufficient
for all cases in general. This is why the notice in which the Council urges the broadcaster to a
corrective action must always sufficiently and specifically and irreplaceably describe the character of
the broadcaster’s wrongful acts and identify those specific elements of it which make the Council
conclude that a certain duty under the Broadcasting Act has been breached. The notice must also
contain reviewable considerations of which duty has been breached by the broadcaster.

The constitutional conformity of the interpretation of Section 59 of the BA has already

been reviewed by the CC. In its judgments I. ÚS 671/13 of 29 July 2013 and I. ÚS 1408/09
of 25 November 2009, the CC expressly noted that it found the legal conclusions of the SAC
to be convincing and to be in conformity with the Constitution.

vii. Breach of the Law Notice Viewed with the Broadcaster’s Eyes

Broadcasters alone regard the issuance of the breach of the law notice as an infringement
of their rights. The fact that the RRTV publishes a press release that it will notify a certain
broadcaster of violation of the law is perceived as a certain harm to their reputation. This is
also why the broadcasters want to have an option to express their view prior to the issuance
of the breach of the law notice as they do in the case of a procedure on imposing a sanction.
However, the concept of the breach of the law notice is generally perceived as an effective tool
of the RRTV’s preventive influence.33 It plays an important role in the specification of value

33 Kubina, Presentation (n 9).

 V. The Judicial System with Special Reference to Electronic Media Regulation 47

concepts used by the BA in the provisions regulating the broadcasting content. However,
the difficulties of interpretation connected with a specific solution contained in the BA are
an apparent minus. They have resulted in many RRTV decisions having to be cancelled for
procedural reasons without the courts dealing with the content aspects of the case at all.

V. The Judicial System with Special Reference to

Electronic Media Regulation
A. The System of Administrative Courts

The judicial review of administrative decisions issued by the Council for Radio and Television
Broadcasting in the Czech Republic is undertaken by specialised panels of normal courts of
general jurisdiction. No independent administrative courts have been established for this
purpose. In the first instance, the lawfulness of the acts made by state administration bodies
is reviewed by regional courts. The Metropolitan Court in Prague is the court competent to
review the decisions adopted by the RRTV (its jurisdiction is determined by the place of the
registered office of the RRTV, ie, Prague).
The decisions of the MC regarding actions against the decisions of the RRTV are further
reviewed by the SAC which is, unlike the Metropolitan Court, a fully specialised court in
the administrative judiciary.
Only individual constitutional complaints determined by the CC are admissible against
the judgments issued by the SAC. The Constitutional Court is set apart from the usual
system of general courts, and is not competent to review the lawfulness and correctness
of decisions issued by general courts. In procedures on constitutional complaints, the CC
examines whether the decision of a general court violated the claimant’s fundamental rights
guaranteed by the Constitution.
Relatively strong interventions of the CC in the decisions adopted by the RRTV or
by courts of general jurisdiction can be expected in the regulation of radio and television
broadcasting since these decisions by definition concern interventions in the broadcaster’s
freedom of expression, which is subject to constitutional protection. However, as we can
see in the analysed decisions issued in individual areas under study, the CC interferes with
the decision-making practice of general courts only in rare cases and if it does so, such
interventions are done rather for procedural reasons where the CC notes a violation of
the fundamental right to a fair hearing guaranteed by the Constitution. It is also worth
mentioning that in the monitored period, the CC did not issue a single decision noting the
violation of freedom of expression (see below).

B. Types of Judicial Procedures

Judicial reviews of the lawfulness of the execution of state administration are governed by
a separate procedural regulation contained in Act No 150/2002 Sb. (Coll.), the Code of
Administrative Justice. The rules regulate three types of action that are available to the
parties to a procedure before an administrative body if they believe that they have been
48 Comparative Media Law Practice – Czech Republic

negatively affected by the unlawful execution of public administration. The action against an
administrative decision34 is the most common type used in practice to seek judicial protection
by anyone who claims that their rights have been prejudiced directly or due to the violation of
their rights in the proceeding by an act of the administrative authority whereby the person’s
rights, or obligations are created, changed, nullified or bindingly determined.
An administrative decision is reviewed in the full jurisdiction, which means that the
court reviewing the administrative decision has the right to review even the facts of the
case (not only its legal aspect) and is thus not bound by the facts of the case as established
by the administrative body. The administrative court has the right to produce evidence in
the procedure on an action and reassess the facts established by the administrative body.
However, the court issues its decisions on the basis of the facts and the legal situation existing
at the time of the decision-making of the administrative body.35 In an action against the
decision, the claimant may seek that the court nullify the contested decision issued by the
administrative authority. Hence, the court is not entitled to amend the contested decision
of the administrative body. However, the administrative body to which the case is referred
back for further proceedings after the cancellation of the contested decision is bound by the
court’s legal opinion.36
The procedure on the decision against an administrative decision is bound by the disposition
principle. The court deals with the accuracy and lawfulness of the contested decision with
respect to the counts applied by the claimant within two months of the date on which the
contested decision is delivered. Therefore, the counts of the action largely predetermine the
judgment reviewing the decision of the administrative body. The court is not entitled to deal
with the aspects of the contested decision which are not challenged in the action even if the
court does not agree with the contested decision.
This approach to the judicial review of the contested decision, focusing solely on the review of
the reasons for unlawfulness stated by the claimant, consequently enables that even objectively
unlawful decisions or decisions suffering from faults for which another decision was annulled
can hold up in the judicial review. The requirement regarding professionalism of broadcasters
is accentuated in the area under study because it is up to the broadcasters to identify all of the
reasons for unlawfulness of a decision issued by the RRTV in a potential action.
At the same time, the said aspect must also be considered when assessing the unity
and consistency of judicial decisions. Differences in individual court decisions regarding
cases with similar facts and legal aspects do not have to be the result of what in a negative
assessment would be defined as the ambivalent judicial practice but of the different definition
of the counts of an action. In our opinion, such diversity cannot be viewed a priori negatively
because it does not indicate any dysfunction of the system of judicial review of administrative
decisions. We believe that the ideal aim is not to have absolutely consistent decision-making
but to create opportunities to seek an effective judicial protection-free decision.
Actions against administrative decisions are a means of protection against all decisions
issued by the RRTV including the decisions imposing sanctions. Such actions comprise a clear
majority of the court agenda regarding the regulation of radio and television broadcasting.

34 Section 65 of the Code of Administrative Justice (CAJ).

35 Section 75(1) of the CAJ.
36 Section 78(5) of the CAJ.
 V. The Judicial System with Special Reference to Electronic Media Regulation 49

Actions against unlawful interference are another type of action offered to broadcasters by
the Code of Administrative Justice.37 An action against unlawful interference may be used to
seek judicial protection by anyone who claims that he or she has been directly prejudiced in
their rights by unlawful interference, instruction or enforcement (hereinafter ‘interference’)
from an administrative authority which is not a decision and was aimed directly against the
person or as a consequence of it the person was directly acted against.
Hence, an action against unlawful interference is applied to seek protection against
interferences of public bodies which are not decisions (which can be contested by an action
against decision, see above) but which directly prejudice the claimant’s rights. The action
against unlawful interference was used by broadcasters to seek judicial review regarding the
notification of a violation of the law which the RRTV is authorised to issue if it establishes
that the broadcaster breached the obligations set out by law or any conditions stipulated by the
licence granted. The Council also sets a grace period to take corrective action.38
The notification of the violation of the law has no immediate negative consequences for
the broadcaster since it does not constitute any obligation, nor does it reduce the broadcaster’s
rights. For this reason, the SAC (and also the MC) steadily issues decisions that the
notification of the violation of the law is not an administrative decision within the meaning
of Section 65 of the Code of Administrative Justice, and it is therefore impossible to sue for
its cancellation. However, the notification of the violation of the law is also not a legally
insignificant act because the existence of a prior notification is a condition for imposing
sanctions for repeated violations of one and the same obligation. Therefore, broadcasters
have a legitimate and strongly manifested interest in seeking either the cancellation of the
notification of the violation of the law by the court or that the court note that the notification
was unlawful thus obliging the RRTV not to consider the notification in its subsequent
administrative activities.
The current practice of national courts is predetermined by a conclusion made by the MC
under which

the notification of the Council for Television and Radio Broadcasting regarding the violation of the
law pursuant to Section 59 of Act No 231/2001 Sb. (Coll.) (the Broadcasting Act) cannot be separately
contested by an action pursuant to the Code of Administrative Justice, not even pursuant to Section
65 of the Code of Administrative Justice (because it is not an administrative decision) or Section 82
of the Code of Administrative Justice (because it is not an intervention, instruction or enforcement).39

The correctness of this opinion of the MC was acknowledged by the SAC.40 The Supreme
Administrative Court reiterated similar conclusions in the monitored period in its judgment
6 Aps 3/2012 of 29 August 2012 where it summarised its own previous decisions, and
insisted on the conclusion that the notification of the violation of the law was not separately
reviewable. These conclusions of the SAC were also accepted by the CC (Resolution IV ÚS
1720/11 of 2 August 2011).

37 Section 82 ff of the CAJ.

38 Section 59(1) of the BA.
39 Judgment of the MC, 8 Ca 212/2008 of 4 September 2008.
40 Judgment of the SAC, 6 As 46/2008 of 6 August 2009.
50 Comparative Media Law Practice – Czech Republic

However, the MC also opened a way for the lawfulness of a prior notification of the
violation of the law to be reviewed in a procedure focusing on the judicial review of a RRTV
decision imposing a penalty, which considered the existence of this notification of the
violation of the law as the fulfilment of the previous notification duty of the RRTV: ‘Since
this is an act undertaken within a sanction procedure, only the procedure specified in Section
75(2), second sentence of the Code of Administrative Justice may be used as a defence, ie, in
the procedure on an action against the decision imposing sanctions.’41
However, this conclusion was disputed in a judgment of the SAC (4 As 17/2008 of 17
September 2008), which found that the lawfulness of the notification cannot be reviewed
in the procedure on imposing sanctions and regarding another fact. The said judgment has
yet to be displaced by another legal opinion. However, the arguments used in judgment 6
Aps 3/2012 cited above indicates that there is apparently room for the correction of this legal
opinion because the sixth panel obiter dictum

expresses the opinion that (as is also indicated by the recent case-law of the SAC) the notifications
of the violation of the law are reviewable in court within the meaning of Section 75(2) of the Code
of Administrative Justice in combination with the decision for which they were used as a basis.
However, the sixth panel of the SAC does not regard it as necessary to submit the case for assessment
to an extended panel of the SAC because this opinion is expressed only ‘obiter dictum’ without the
impact on the substantive assessment of the cassation appeal.

Therefore, the notification of the violation of the law is not reviewable even on the basis of
an action against an unlawful decision (Section 65 of the Code of Administrative Justice)
or action against unlawful interference (Section 82 of the Code of Administrative Justice).

C. Remedies—Cassation Appeal

The cassation appeal is a remedial measure against a judgment issued by the MC. The cassation
appeal is considered and determined by the SAC. In the Code of Justice, the cassation appeal
is intended as an extraordinary remedial measure which is admissible solely in the case of a
different assessment of a legal issue dealt with by a regional court (here the MC). The cassation
appeal may be lodged within two weeks of the delivery of the judgment of the MC. The cassation
appeal may be lodged either by the broadcaster (claimant) or by the RRTV (defendant).
As is apparent from its denomination, the cassation appeal, the SAC could originally only
revoke the judgment of the regional court contested by the cassation appeal and refer the case
back for further proceedings (cassation principle) or dismiss the cassation appeal. However,
effective from 1 January 2012 (amendment to the Code of Administrative Justice 303/2011
Sb.), the SAC has the right to cancel both the judgment issued by the regional court (the
MC) and the decision of the administrative body contested by the action.42 The cassation
appeal is always dealt with by a panel of three judges. The agenda assignment is governed by
the work plan.

41 Judgment of the MC, 8 Ca 212/2008.

42 Section 110(2) of the CAJ.
 V. The Judicial System with Special Reference to Electronic Media Regulation 51

D. Consistency of the Case-Law of Administrative Courts

The consistency of the case-law of administrative courts (not only in the monitored area)
is ensured by an institutionalised mechanism of case-law unification at the level of the
SAC. Under Section 17 of the Code of Administrative Justice, if a panel of the Supreme
Administrative Court has in its decision-making arrived at a legal opinion that is different
from the legal opinion expressed in a previous decision of the Supreme Administrative Court,
it will refer the case to an extended panel for a decision. When referring the case, the panel
must justify its different legal opinion.
The provision cited above constitutes a very strong precedential binding effect of decisions
of the SAC because if a Supreme Administrative Court panel wants to depart from the
previously expressed opinion of the SAC, it cannot do so without initiating a procedure aimed
at unifying the case-law of the SAC. The effectiveness of this mechanism is reinforced by the
fact that it is a directly enforceable right of parties to the judicial proceedings because if this
duty is not respected, the CC notes the violation of the right to a lawful judge, as guaranteed
by the Constitution.43 Hence, it is not a matter of the arbitrariness of the three-member panel
which decides on the cassation appeal if the case is submitted to the extended panel.
Case-law unification through the proceedings before the extended panel was initially a
tool of communication between individual panels of the SAC. It is also interesting to note
that even individual judges often perceive the proceedings before the extended panel as an
argumentation fight between individual panels and as a matter of prestige.44
At the end of the 2010s, this procedure was opened to the parties to the proceedings who
thus have the option to participate in the process of case-law unification.45 The process of
case-law unification also increases the effectiveness of argumentation using the older case-
law of the SAC. Although the legal system of the Czech Republic is not based on binding
precedents, the case-law of supreme courts has gained in importance because the panel of the
SAC deciding on a cassation appeal cannot ignore a different legal opinion expressed in an
older decision of the SAC or reject it by noting that it is not bound by it. The panel of three
judges is indeed not bound by this opinion, but if it arrives at a different opinion, it should
not do so on its own but refer the case to the extended panel. The three-member panel is
then bound by the decision of the extended panel. However, it can initiate a procedure before
the extended panel on a repeated basis if it concludes that there are arguments which were
neglected in the previous decision.
Not even regional courts (including the MC) deciding on administrative actions against
decisions of administrative bodies are formally bound by the decisions of the extended panel.
However, they are obliged to bear in mind the conclusions contained in the decision of the
extended panel (and in any other decision of the SAC) in the reasons for their decision. If
they do not do so, it is highly probable that their decision will be overturned by the SAC.

43 Judgments of the CC IV. ÚS 613/06 of 18 April 2007, IV. ÚS 2170/08 of 12 May 2009, or IV. ÚS 738/09
of 11 September 2009.
44 Personal interview with Filip Rigel, Assistant to the President of the SAC panel, and member of the
extended panel, as well as leading expert in the administrative judiciary.
45 M Bobek and Z Kühn Zdeněk (ed), Judikatura a právní argumentace (2nd edn, Prague, Auditorium,
2013) 128; O Moravec, ‘Sjednocování judikatury pohledem účastníka řízení – řízení před rozšířeným senátem
Nejvyššího správního soudu’ Jurisprudence 6 (2008) 11.
52 Comparative Media Law Practice – Czech Republic

However, the regional court must endeavour to persuade the SAC with its arguments about
the correctness of its opinion despite the older and different view of the SAC.
Therefore, the unification procedure is quite frequently used in practice. In the area under
study, it has been applied in the followed cases:

The interpretation and construction of the concept of 7 As 2/2010 of 26 Referred back without a meritorious decision (the issue
showing, without justification, persons exposed to severe July 2011 must be assessed by a three-member panel)
physical or mental suffering in a manner detrimental to
human dignity

Requirements as to the notification of the violation of 6 As 26/2010 of 3 No absolute and clear conclusion
the law April 2012

The duty of the RRTV to produce evidence by showing the 7 As 57/2010 of 3 Departure from the prevailing case-law (the panel
programme April 2012 submitting the case was allowed)

The start of the time limit for imposing sanctions 7 As 95/2011 of 25 Referred back without a meritorious decision (the alleged
June 2013 confl ict in the case-law of the SAC has been removed);

Effects of the notification of the violation of the law 8 As 85/2012 of 14 The current practice of the SAC was acknowledged
June 2014

Requirements for an administrative decision 8 As 141/2012 of 14 Departure from the prevailing case-law (the panel
June 2015 submitting the case was allowed)

The above table shows that all of the cases (but one: Resolution 7 As 2/2010 of 26 July
2011) involved procedural issues having no immediate relation to the exercise of freedom
of expression. The only case relating to a meritorious issue was referred back without any
response of the extended panel with the justification that every broadcast programme must
be assessed on an individual basis. Therefore, it seems (and we have to consider the limi-
ted number of cases) that the issues relating directly to the content of radio and television
broadcasting do not depend on the interpretation of individual legal provisions but rather on
the need to assess each case on an individual basis.
In the resolution of the extended panel (7 As 2/2010 of 26 July 2011) which was intended
to deal with the different views of the seventh and eighth panels, the SAC stated that

on the one hand, both panels applied the meaning of the freedom of expression as one of the
fundamental political freedoms, and recognized the irreplaceable role of the media in a democratic
society, but on the other hand, they also considered the option to limit this freedom in extraordinary
cases even if it collides with other fundamental rights, in this case the right to human dignity.
Hence, both panels applied the same test based particularly on the case-law of the ECtHR relating
to Article 10 of the Convention to assess the admissibility of a specific limitation of freedom of
expression. Therefore, both panels examined whether or not the specific facts relating to Czech
Television on the one hand, and to CET 21 spol. s r.o. on the other hand involved the limitation
of freedom of expression which is necessary in a democratic society, ie, whether this limitation
was based on an urgent social need, whether it was adequate to the goal pursued, and whether
the reasons given for this limitation were relevant and sufficient. When balancing thefreedom of
expression with the protection of human dignity when showing dying persons or persons exposed
to severe physical or mental suffering, both panels focused on the statutory condition under which
the broadcasting of such images may be limited only if such broadcasting is without justification.
Therefore, the seventh and eighth panels do not have different legal opinions as to the evaluation
of the specific facts in the case of Czech Television and CET 21 spol. s r. o. The only difference is
 V. The Judicial System with Special Reference to Electronic Media Regulation 53

in their final conclusion (Ref No 7 As 2/2010-118) resulting from the evaluation of these specific
facts. While the eighth panel assessed the specific acts of CET 21 spol. Section r. o. as constituting
all the elements of an administrative infringement according to Section 60(1)a of the Broadcasting
Act, the seventh panel believes that Czech Television did not commit any infringement by its acts.

This means that it is meta-legal factors that come into focus rather than the methods
of interpretation of the law, in particular the value system of specific judges and their
philosophical and world-view ideas. Although the mechanism of unification of the case-law
of the SAC through the extended panel is to a certain extent limited, it clearly becomes a tool
contributing to the internal consistency of the case-law of the SAC and administrative courts
in general. The case-law also becomes more foreseeable for the parties to the proceedings, and
more effective with respect to exercising judicial powers.

E. Intervention of the Constitutional Court in the

Decision-Making of Administrative Courts

In the legal environment of the Czech Republic, the CC stands out as a specialised judicial
body having the exclusive power to review the conformity of the acts of public bodies with
the constitutional order. The Constitutional Court has the authority to examine both the
constitutional conformity of the generally binding provisions (laws) and the acts of the
application of the law in individual cases (court decisions). Both natural and legal persons
have the right to submit a complaint to the CC if they believe that a decision taken by a state
body has violated their individual rights and freedoms guaranteed by the Constitution.
In the Czech Republic, freedom of expression is protected by the Charter of Fundamental
Rights and Freedoms (Article 17):

(1) The freedom of expression and the right to information are guaranteed.
(2) Everyone has the right to express his/her opinion in speech, in writing, in the press, in pictures,
or in any other form, as well as freely to seek, receive, and disseminate ideas and information
irrespective of the frontiers of the State.
(3) Censorship is not permitted.
(4) The freedom of expression and the right to seek and disseminate information may be limited by
law in the case of measures necessary in a democratic society for protecting the rights and freedoms
of others, security of the State, public security, public health, and morals.
(5) State bodies and territorial self-governing bodies are obliged, in an  appropriate manner, to
provide information on their activities. Conditions therefore and the implementation thereof shall
be provided for by law.

The constitutional protection of freedom of expression opens up a fairly wide space for the
intervention of the CC in the case-law of general courts because any imposition of a fine for
an administrative infringement committed through the content of television broadcasting is
basically an intervention in freedom of expression.
However, despite the information provided above, the CC intervenes in the decision-
making practice of administrative courts in rare cases only. Only one obliging judgment was
54 Comparative Media Law Practice – Czech Republic

reported in the monitored period in which the CC annulled a previous decision of the SAC.
The Constitutional Court’s judgment I. ÚS 671/13 of 29 July 2013 annulled the judgment of
the SAC when it concluded that the SAC had violated the claimant’s right to a fair hearing
when it had failed to deal with the claimant’s objection that the claimant’s procedural rights
had been prejudiced by the RRTV which had not ordered an oral hearing. According to the
CC, the SAC was incorrect in not considering the claimant’s objection that the members of
the RRTV had not watched the recording of the programme in question justifying it with a
statement that the objection had not been submitted within the limit for lodging an action.
The Constitutional Court agreed with the claimant that this objection had been part of a more
general objection that an oral hearing had not been ordered in the administrative procedure.

If the claimant objected against the absence of an oral hearing in a procedure before an administrative
body, and stated in this respect that such an oral hearing had been ordered in previous similar
proceedings where the claimant could comment on individual criticised violations, it does not mean
that it would not be able to later successfully claim within this objection that such an oral hearing
should have contained due production of evidence as understood by the case-law of the Supreme
Administrative Court or its extended panel. The opposite procedure must then be regarded as a strictly
formalistic approach interfering with the procedural rights of a party to an administrative procedure.

This means that not even the CC (and not even the claimant in the constitutional complaint)
used freedom of expression as an argument in this case.
In addition to the judgment cited above, the official database of decisions of the CC46 contains
one dismissing judgment relating to the granting of licences in connection with the digitisation
of television broadcasting,47 and ten more resolutions in which the CC rejects constitutional
complaints regarding the content of television broadcasting due to apparent groundlessness.
The case-law of administrative courts and the administrative practice of the RRTV in the
monitored period were also significantly influenced by a series of decisions relating to the
Act on Advertising (No 40/1995 Sb.). In its judgment IV. ÚS 946/09 of 11 January 2010,
the CC interpreted the provision regulating the start of the time limit within which the
RRTV has the right to impose a sanction. The Constitutional Court reiterated this opinion
in five other judgments issued during the course of 2010. The Supreme Administrative
Court subsequently accepted the CC’s legal opinion even in the proceedings regarding
administrative infringements pursuant to the BA (judgment of the SAC 7 As 11/2010 of 16
April 2010, 6 As 15/2011 of 27 July 2011, and the Resolution of the extended panel 7 As
95/2011 of 25 June 2013).
Since the CC had to face constitutional complaints against the judgments of the SAC
relating to radio and television broadcasting in the monitored period and as it did not correct
the opinion of the SAC in any of these cases from the perspective of freedom of expression, we
can assume that the CC does not feel the need to intervene and that it regards the protection
of the broadcasters’ freedom of expression provided by the general courts to be sufficient.
It should be noted that the SAC often uses constitutional argumentation in its key decisions
(see the individual case studies), in particular in the decisions issued by the extended panel.

46 http://nalus.usoud.cz.
47 Judgment Pl. ÚS 8/09 of 30 October 2012.
 V. The Judicial System with Special Reference to Electronic Media Regulation 55

It does so even where it does not decide on the merits of a case (7 As 2/2010 cited above)
or where it decides on procedural issues (see the detailed argumentation in Resolution 6 As
26/2010).

F. Application of the Case-Law of the European Court of Human Rights

The Convention for the Protection of Human Rights and Fundamental Freedoms48 has
recently gained in importance, namely the application of the case-law of the ECtHR.
Although this case-law does not represent any formally binding source of law in the Czech
Republic (unlike the Convention), national courts must take it into account in their decision-
making, ie, they must consider the conclusions contained in the ECtHR decisions.49
Article 10 of the Convention becomes a source of law in the Czech Republic via Article 10
of the Constitution of the Czech Republic:
1) Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions, and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television, or cinema enterprises.
2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions, or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
The case-law of the CC (judgment I. ÚS 310/05 of 15 November 2006) shows that national
courts must consider not only the wording of the Convention but also specific decisions
issued by the ECtHR:

The immediate applicability of international agreements also includes the duty of Czech courts
and other public bodies to take into their considerations the interpretation of these agreements by
the respective international tribunals as the bodies authoritatively designated to comment on the
interpretation of international agreements. This naturally applies also to the interpretation of the
European Convention by the European Court of Human Rights (ECtHR) where the relevance of
the ECtHR decisions in the Czech law is of constitutional quality. . . .
For the reasons specified above, public bodies have a general obligation to take into account the
ECtHR interpretation of the European Convention. The European Court of Human Rights
decisions are important interpretation guidance for the application of the Convention. Public
bodies, in particular courts, are therefore obligated to consider the ECtHR case-law both in the
cases against the Czech Republic and in the cases relating to another party to the Convention (state)
if such cases are by nature important for the interpretation of the Convention in the context of the
Czech Republic. This especially applies to the situations where this case-law is used as an argument

48 Published in the Collection of Laws under No 209/1992 Sb. (Coll.).

49 For details, see, Bobek and Kühn, Judikatura (n 45) 307–33.
56 Comparative Media Law Practice – Czech Republic

by a party to the proceedings before a Czech court of general jurisdiction. If the general court does
not express its view of this argumentation, it commits an error which may consequently result in the
violation of the fundamental right to judicial protection pursuant to Article 36(1) of the Charter,
Article 6(1) of the European Convention or the respective fundamental right of the Convention
concerned. In all cases, Article 1(2) of the Constitution is also affected.

It follows from the above that in situations where the ECtHR case-law is used as an
argument by the party to the proceedings, the court must duly take into account this
argumentation. Not only the CC, but also general courts are obliged to take the ECtHR case-
law into consideration. Reviewing the case-law of the SAC (see other chapters), it is apparent
that arguments using the ECtHR case-law are frequently used in the decisions of the SAC.

VI. Protection of Human Dignity

A. Legal Provision—Section 32(1)f of the Act on

Radio and Television Broadcasting

According to Section 32(1)f of the Act on Radio and Television Broadcasting, the broadcaster
must avoid showing, without justification, dying people, or people exposed to severe physical or
mental suff ering, doing so in a manner detrimental to human dignity.
Breaches of this obligation are classed as an administrative infringement for which the
broadcaster may face a fine ranging between 5,000 and 2.5 million koruna (Section 60(1)a of
the Act on Radio and Television Broadcasting).

B. Statistics

Confirmed Total Confirmed Reversed total Reversed

1 33 per cent 2 67 per cent

Note: During the reported period, the MC issued only three decisions on a judicial review of
the RRTV’s decision for breaches of Section 32(1)f of the BA.

C. Answers to Research Questions

Human dignity is the crucial value in determining the decision-making practice of administrative
courts. In addition, the courts also consider freedom of expression and the right of the public
to receive information. Freedom of expression is given preference where the violation of the
principle of human dignity is not without justification, ie, the representation of human suffering
and erosion of human dignity must be legitimised by the fulfilment of a higher goal. Thus, in
this case, freedom of expression is not protected per se, but has rather an instrumental character.
Hence, the right of the public to complete and true information has the strongest impact.
 VI. Protection of Human Dignity 57

This legal situation is determined by the legal and political decision of the legislator,
which gives broadcasters the option to publish even scenes showing dying persons or persons
exposed to suffering detrimental to human dignity. Nonetheless, such representation must
not be without justification. It may be concluded from the analysed case-law of the SAC
that to show a dying person or a person exposed to severe physical suffering is not without
justification in the event that the information of this type is necessary to provide true
information about an event and its context (causes, consequences, accompanying events,
etc.). This may include extreme information or information beyond the scope of normal
representation or in extraordinary situations. The manner of representation must not be
detrimental to human dignity, ie, it should endeavour to protect it as much as possible in
the light of the nature of the broadcast information.50 Also, it must be emphasised that the
protection of human dignity is not exhausted by the powers and competences of the RRTV.
On the contrary, the core of this value’s protection is in private law where the person affected
may seek judicial protection in an action for the protection of personal rights. The decision-
making powers are vested in courts.
The number of court decisions does not make it possible to draw a valid conclusion
regarding the consistency of the decision-making practice. Nonetheless, even the low number
of cases demonstrates the existence of plurality of opinions resulting from the character of
the case and the legislative technique applied. From a theoretical perspective, the term ‘avoid
showing, without justification’ used in Section 32(1)f of the BA in an ambiguous concept
whose content must be essentially drawn from the application practice.51 Assessments as
to whether the dying persons or persons exposed to severe physical or mental suffering in a
manner detrimental to human dignity were shown without justification, or whether there
were legitimate reasons for such representation depend on the specific facts of the given
case without the possibility to determine general rules. The test of proportionality generally
used by the CC of the Czech Republic to resolve a conflict of two fundamental rights or a
fundamental right and the right of a protected value may be an appropriate tool to resolve
the collision between freedom of expression and the right to the protection of human dignity
of the persons shown.52
Although the number of cases heard in court is very low, there was a clash of opinions
between two panels of the SAC. Both panels dealt with the broadcasting of information of an
extremely serious case of child abuse by close relatives (the so-called Kuřim case). However,
each panel dealt with different reports by different broadcasters. The extended panel addressed
by the seventh panel of the SAC concluded that it was not competent to resolve this clash
of opinions because each panel dealt with a different case (report), and because the different
opinion on whether or not the given report showed persons exposed to severe suffering in a
manner that is detrimental to human dignity without justification was a natural consequence
of this fact. One positive point worth emphasising is that a unification procedure was
developed to resolve the inconsistency which proved to be a functional tool inhibiting any

50 For details, see the judgment of the SAC.

51 For details on this issue, see, P Mates, Správní uvážení: analogie, neurčité pojmy a uvážená ve správním právu
(Pilsen, Aleš Čeněk, 2014) 56 ff.
52 For details, see, P Ondřejek, Princip proporcionality a jeho role při interpretaci základních práv a svobod
(Prague, Leges, 2012); P Holländer, Filosofie práva (2nd edn, Pilsen, Aleš Čeněk, 2012); D Kosař, ‘Kolize
základních práv v judicature Ústavního soudu ČR’ Jurisprudence 1 (2008) 3–19.
58 Comparative Media Law Practice – Czech Republic

arbitrary departure from the previously expressed legal opinion of the SAC. However, the
limits of this mechanism also became evident. It is clear, then, that the individual assessment
of the case depends not only on legal argumentation but also on the values adopted by the
judge resolving the specific case.53
This also evidences the existence of interaction between individual panels of the SAC.
The seventh panel which was the second to decide was aware of the existence of the previous
decision issued by the eighth panel, and even if it did not agree with its standpoints, it felt it
was necessary to settle its arguments and the panel submitted the cases for assessment to the
extended panel in the end.
International and supranational sources of law were used as a tool to deal with the conflict
between the broadcaster’s freedom of expression and the right to the protection of dignity
of the person affected. The Supreme Administrative Court acts within the limits created by
the case-law of the ECtHR. In this respect, it primarily used the general rules under which
freedom of expression can be limited within the meaning of the case-law of the ECtHR.
There are no references to sources in the EU law.

D. General Trends

From the quantitative perspective, this area does not represent the core of the agenda of the RRTV.
The protection of human dignity is secured by the statutory ban on showing, without justification,
dying persons or persons exposed to severe physical or mental suffering in a manner detrimental to hu-
man dignity. Therefore, the facts of the administrative infringement protect only a particular part
of the complex and wide concept of human dignity—the law expressly prohibits that broadcasters
benefit from the suffering of others. Human dignity is also indirectly protected by the statutory
ban on including pornographic content in broadcasting (Section 32(1)e of the BA).
The analysed case-law of administrative court is not sufficient to develop a coherent
doctrine. In addition to the core of the matter (which sometimes stays in the background),
administrative courts focus their attention rather on formal and procedural matters. They
were forced to deal, in greater detail, with the issue of the actual reviewability of the RRTV’s
administrative decisions or with the issue of the point when the broadcaster’s liability for the
infringement ceases to exist.
In particular, the decisions of the SAC regarding the Kuřim case strongly accentuate the
interest in the protection of human dignity of persons whose suffering is shown. In one of
its decisions, the SAC expressly rejected the broadcaster’s opinion that the RRTV was not
competent to protect the right to privacy, which should be applied instead in civil judicial
proceedings. However, the SAC does not have a unified view of this issue. Another panel of
the SAC finds it necessary to differentiate the protection of the general public interest from
the interests of private individuals. The sign of internal inconsistency of the case-law of the
SAC was the subject of the proceedings before an extended panel which, however, concluded
that this was about the assessment of specific cases with specific facts, and so it was up to the
individual three-member panels to assess which of the fundamental rights in collision should
be preferred.

53 Here the research will be complemented by an interview with SAC Judges.

 VI. Protection of Human Dignity 59

Not even academic legal sources are in agreement on this issue. Kateřina Šimáčková
(formerly a SAC Judge, now a CC Judge, and has taught constitutional law at the Law Faculty
of Masaryk University in Brno for many years) holds the view that even the administrative
judiciary must take these rights into account, and that they must be given adequate protection,
in particular if it concerns persons who cannot defend themselves (typically children as it was in
the Kuřim case or in the case of bullying in Veselí nad Veličkou).54 On the other hand, the author
of this report has, in the past, pointed to the risks connected with the procedure proposed by
Šimáčková—the procedure before the RRTV (or even before administrative courts) does not
resolve the procedural position of the injured person whose rights have been defended, without
giving the option to this person to take part in the procedure. There is also a risk of ‘usurpation
of the RRTV’s controlling power’, which is related to the manner of its appointment.55
However, regardless of this controversy, it is undisputable that Section 32(1)f of the BA
provides protection of human dignity of persons shown in broadcasting. The interest in the
protection of human dignity collides with the broadcaster’s freedom of expression and if the
scenes are broadcast without justification, the protection of human dignity must be preferred
to freedom of expression.
The analysed case-law indicates that the interest of the audience or the right of the public
to information regarding matters of rightful public interest may also be the decisive factor.
The interest of the audience is weighed on both sides of the balance. If the public interest is
served by true and accurate news, we cannot speak of the representation of a person exposed
to suffering without justification even if it is detrimental to human dignity (cf the above-cited
judgment of the SAC, 7 As 2/2010). On the other hand, if it is in the interest of the audience
that they not be exposed to certain scenes (in particular if the case simultaneously regards the
protection of minors), the broadcaster’s freedom of expression is eclipsed (cf the above-cited
judgment of the SAC, 6 As 3/2011).

E. Case Studies

i. Kuřim Case—Czech Television and TV Nova

– Report on Czech Television’s programme, Events, 10 January 2008 at 7 pm;

– Fine of 100,000 koruna;
– judgment of the MC of 2 June 2009, Ref No 10 Ca 312/2008-36; action dismissed;
– judgment of the SAC of 9 September 2011, 7 As 2/2010-126, judgment of the MC;
– judgment of the MC of 22 November 2011, A 318/20111-141-151.

The subject matter of the procedure involved a report broadcast on the main news
programme of the public television. The report focused on the Kuřim case. This concerned
an unprecedented case of the abuse of small boys by close relatives (their mother and her
sister). When revealed, the case received extraordinary attention in the media of all types.

54 K Šimáčková, ‘Voyeurismus ve veřejném zájmu. Televizní zpravodajství a ochrana soukromí dětí a

madistvých’ V Šimíček (ed), Právo na soukromí (Brno, Masarykova univerzita, 2011) 158–67.
55 Moravec, Mediální právo (n 7).
60 Comparative Media Law Practice – Czech Republic

The Council for Radio and Television Broadcasting imposed a fine of 100,000 koruna
on Czech Television. In the reasons of its administrative decision, the RRTV found that the
scenes showing the abused boy were included in the report without justification: ‘The party
to the proceeding abused the footage showing the boy at the moment of his suffering as a tool
to draw the attention of viewers to a specific programme even though it did not actually have
anything to do with his case. This repeated, redundant and absolutely purposeful presentation
expresses the absence of respect for a specific human being.’ The Council insisted on its
opinion even during the judicial proceeding stating that ‘the footage in question had no
informative value for the content of the reports concerned’ because the report did not focus
on the abuse as such but on the capture of one of the accomplices.
The Supreme Administrative Court dealt with the case on the basis of the cassation appeal
lodged by the broadcaster (judgment 7 As 2/2010-126 of 9 September 2011) in a situation
where another panel of the SAC considered a similar case shortly before, and dismissed the
television broadcaster’s cassation appeal in the judgment 8 As 33/2010-128 of 13 April 2010.
The eighth panel of the SAC (judgment 8 As 33/2010-128 of 13 April 2010) dismissed the
cassation appeal lodged by a private broadcaster against the judgment issued by the MC under
which the action brought against the administrative decision of the RRTV was dismissed.
According to the SAC, ‘one of the basic obligations of a broadcaster is to avoid showing
dying persons or persons exposed to severe physical or mental suffering in a manner that
is detrimental to human dignity.’ According to the Court, this is a legitimate limitation of
freedom of expression or the right to information guaranteed by Article 17 of the Charter
and Article 19 of the International Covenant on Civil and Political Rights or Article 10 of the
ECHR. The Supreme Administrative Court also pointed to the fact that the said obligation

represents the settlement of the conflict between freedom of speech and everyone’s fundamental
right to maintain human dignity guaranteed in the Czech Republic by Article 10(1) of the Char-
ter. Should the representation of a person exposed to severe physical or mental suffering in a
manner detrimental to human dignity be without justification, the legislator made it clear in the
Broadcasting Act that it legitimately preferred the provision of the right to maintain human dignity.

As far as the concept ‘without justification’ is concerned, the SAC stated that

as the Metropolitan Court rightly held, the justification for broadcasting sensitive scenes cannot be based
on the consideration of the broadcaster alone. Indeed, the concept ‘without justification’ must be assessed
strictly objectively. The inclusion of sensitive scenes in a broadcast can be justified in particular in cases
where, if not broadcast, they would exclude or significantly limit the informative value of a programme.

Specifically, the SAC agreed with the opinion of the MC which concluded that it was no
longer necessary to include the scenes presenting the abuse in the broadcast again to inform
the public about one of the persons involved in the child abuse case.
The Supreme Administrative Court did not agree with the broadcaster’s objection that
the protection of the personal rights of the persons affected should be secured by private law
pursuant to the Civil Code and not through the means of administrative sanctions. The Supreme
Administrative Court noted that ‘the Supreme Administrative Court did not have any doubts
regarding the legitimacy of the public regulation of unjustified broadcasting of scenes showing
 VI. Protection of Human Dignity 61

persons exposed to severe physical or mental suffering in a manner detrimental to human dignity
alongside their private law regulation.’ Consequently, the SAC noted that ‘any broadcasting of
such scenes, without justification, is not covered by freedom of expression, which in this specific
case should be subordinate to the fundamental right to maintaining human dignity.’
In the proceedings regarding the cassation appeal lodged by Czech Television, the seventh
panel arrived at another conclusion than the eighth panel. Pursuant to Section 17 of the
Rules of Administrative Procedure, the seventh panel submitted the case for assessment to
an extended panel which, however, concluded (in the resolution 7 As 2/2010-113 of 26 July
2011) that it should be the seventh panel alone which should issue a decision on the disputed
issue. The Supreme Administrative Court did not find that the individual panels had different
opinions on a general legal issue. The difference was in the assessment of specific facts, which
were different in each proceeding and which should be assessed by the panel deciding on
the specific cassation appeal. The extended panel also pointed to the fact that the seventh
and eighth panels based their decisions on a similar constitutional test of the collision of two
fundamental rights and considered the same procedures and that they shared the same view of
how the case-law of the ECtHR relating to Article 10 of the Convention should be reflected.
Hence, the eighth panel of the SAC concluded that the nature of the event reported by the
media must be considered in order to assess whether or not it was without justification. If it
is an extreme and extraordinary event and of an unexpected nature, the broadcaster is given
greater space to properly present the extremeness and extraordinariness of the situation. The
Supreme Administrative Court also used a comparison between a normal traffic accident
(which happen normally and are part of normal life) and the 11 September 2001 attack on
the World Trade Center in New York, which was an absolutely extraordinary and extreme
situation whose coverage required the use of extraordinary scenes.

Such presentations are necessary to depict the extreme, unique, extraordinary, horrifying, and
tragic nature of the reported event. Without publication, the information on this event would have
been significantly distorted because, if the event were true, the extraordinary frightfulness of the
said event must be represented. Without this drastic information content, the situation could be
disparaged or mitigated compared to what really happened.

Therefore, the eighth panel of the SAC annulled the decision of the MC which dismissed the
action brought by Czech Television against the decision issued by the RRTV. Consequently, the Met-
ropolitan Court cancelled the decision contested by the action in its judgment of 22 November 2011.

ii. The Most Amazing Videos of the World

The Council for Radio and Television Broadcasting imposed a 400,000 koruna fine on a
broadcaster for having broadcast the programme The Most Amazing Videos of the World II
which reportedly contained

drastic, detailed, repeated, and long-lasting scenes from real events which, without justification,
show primarily severe physical suffering of people in a manner detrimental to human dignity,
and which can endanger the mental development of minors, which represented a violation of the
62 Comparative Media Law Practice – Czech Republic

obligation to avoid showing, without justification, dying persons or persons exposed to physical or
mental suffering in a manner detrimental to human dignity.

The broadcast constituted two elements of an administrative infringement (also including

the protection of minors).
The Metropolitan Court in Prague which dealt with the broadcaster’s action (judgments 10A
5/2010-63 of 22 April 2010 and 10A 5/2010-152-160 of 13 December 2010) considered the issue
of the protection of human dignity when establishing whether scenes showing, without justification,
persons exposed to physical or mental suffering detrimental to human dignity had been broadcast.
Therefore, it initially dealt with the protection of the human dignity of the persons whose suffering
was presented. The protection of human dignity collides with the broadcaster’s freedom of
expression and the right of viewers to receive information on matters of legitimate public interest.
The broadcaster’s defence included (among other things) the objection that the programme
showed the biological essence of a man and that the scenes broadcast were not much different
from the situations one could encounter in normal life (eg, during traffic accidents). The
Metropolitan Court in Prague agreed with the RRTV’s conclusions, but did not provide any
detailed reasoning. The Supreme Administrative Court criticised this insufficient reasoning
and thus annulled the first judgment of the MC (in its judgment 6 As 3/2011-119 of 15 Dec-
ember 2012) and referred the case back to another procedure. The second decision of the MC
(of similar content, 10A 5/2010-152-160 of 13 December 2010) was accepted by the SAC.
The administrative courts did not deal with the broadcaster’s freedom of expression or the
content of the right of the public to information in detail. There are absolutely no references
to the case-law of the ECtHR or the Court of Justice of the European Union, nor was the
previous case-law of national courts applied. It follows from the summary parts of the court
decisions that the claimant had not included these aspects in the procedure at all.

iii. Bullying in Velká nad Veličkou

– Report on the Events programme about bullying in Velká nad Veličkou;

– Czech Television (ČT 1);
– fine of 100,000 koruna;
– judgment of the MC, 6 A 41/2011-140 of 6 September 2011;
– administrative decision annulled; no cassation appeal was lodged.

The Council for Radio and Television Broadcasting imposed a 100,000 koruna fine on Czech
Television for a report dealing with bullying in the municipality of Velká nad Veličkou. The
report contained naturalistic presentations of a boy who had faced drastic physical and verbal
attacks eroding his human dignity. The broadcaster defocused the presentations of the boy,
and the report contained statements by the boy’s grandmother. The Council for Radio and
Television Broadcasting arrived at the conclusion that the presentations of the humiliated
boy had been an end in itself, ie, they were aired without justification.
In an administrative action, the broadcaster objected that the report had to be broadcast in
this version because it had been necessary to capture a true picture of the degree of suffering
to which the bullied boy had been exposed.
 VII. Balanced Coverage 63

The Metropolitan Court in Prague concluded that the RRTV’s administrative decision
was not reviewable. Its reasons make it impossible to determine whether or not there had
been actual reasons for broadcasting the report in this form. The Council for Radio and
Television Broadcasting must deal with the broadcaster’s individual objections in more detail.
Although the administrative decision was cancelled rather for formal reasons (without
the Court taking its own stance as to whether the presentations in question were included
in the report without justification or not), nonetheless, one can conclude from the Court’s
reasoning that the RRTV should, in its decision-making practice, deal with the weight and
nature of the reasons for showing physical and mental suff ering in a manner detrimental to
human dignity in more detail. It may be presumed that if the broadcaster’s reasons are found
to be relevant and sufficient, the broadcaster’s liability for the administrative infringement
is excluded. It can also be assumed that the viewer’s interest in receiving complete and true
information must be taken into account because it was a news programme.
The human and legal argumentation and references to the existing case-law are not
included in the decision, which is attributable to the fact that the administrative decision was
cancelled due to lack of reviewability. Should there be any review on the merits, a parallel to
the Kuřim case would suggest itself.

VII. Balanced Coverage

A. Legal Basis

The broadcaster’s obligation to provide objective and balanced information is enshrined

in Sections 31(2) and 31(3) of Act No 231/2001 Sb. (Coll.), on Radio and Television
Broadcasting. Under this provision,
(1) a broadcaster shall provide objective and balanced information necessary for opinions
to be freely formed; any opinions or evaluating commentaries shall be separated from
information with the nature of news;
(2) broadcaster shall ensure that the principles of objectivity and balance are complied with
in news and political programme units and that, in particular, no one-sided advantage
is—within the broadcast programme as a whole—given to any political party or
movement, or to their views, or to the views of any groups of the public, taking account
of their real position within the political and social life of the country.

B. Statistics

Confirmed Total Confirmed Reversed total Reversed

2 11 per cent 16 89 per cent

The statistics relate to the system of judicial review. Only unique cases are included, ie, the
repeated decisions of the RRTV which were cancelled by the administrative court, while cases
that were returned for further proceedings are not counted. The time period includes all cases
64 Comparative Media Law Practice – Czech Republic

resolved by the MC during the period under consideration. However, no distinction has been
drawn as to whether the MC dealt with the case prior to the period under consideration. The
figures do not reflect the cases resolved by the MC prior to the period under consideration
but where the SAC issued a final judgment; the findings of the SAC are reflected in the
discussion below.
A cancelled (vacated) decision is a decision which was not upheld in the judicial review,
and where it is irrelevant whether it was cancelled by the MC or the SAC.

C. Detailed Information

The Metropolitan Court in Prague has annulled eleven out of 18 unique decisions of the
RRTV. The Council has lodged a cassation appeal in four cases, two of which were successful,
and the SAC referred the case back to another procedure. The Council decision was annulled
in the end in one of these cases and the case was referred back to another procedure whereas
the MC has not issued any verdict in the other case yet.
The broadcaster challenged six out of seven dismissing judgments of the MC with a
cassation appeal. The decision of the MC was annulled in three cases which were referred
back to another procedure within which the MC, bound by the legal opinion of the SAC,
cancelled the challenged decision. In two other cases, the SAC used its power to vacate the
decision of the MC as well as the challenged decision. The broadcaster’s cassation appeal
was dismissed in one case. The decision of the RRTV was upheld in two out of eighteen
reported cases.

D. Answers to Research Questions

Freedom of expression (speech) undoubtedly represents a very strong value whose importance
has been highlighted in particular by the case-law of the SAC. Freedom of expression is
applied both as an active component—the broadcaster’s freedom of expression; and as a
passive component—the right of the public to information regarding matters of general public
interest.56 This dimension of freedom of expression (the right of the public to information)
can also be applied on the other scale pan because the public interest in the broadcasting
of true, accurate and complete information is one of the reasons constituting the statutory
broadcaster’s obligation to provide objective and balanced information.
The wording of the BA does not clearly state which specific interests and values should
be protected by the obligation to provide objective and balanced information. ‘The concepts
“objective and balanced information” are ambiguous legal concepts. The content of an
ambiguous legal concept is so variable that it cannot be clearly and satisfactorily formulated
with simple linguistic means in all potential situations. Its content must always be re-
discovered and re-formulated considering all facts and acts.’57 In its older decisions, the SAC
concludes that

56 ibid, 30.
57 Pouperová, Regulace médií (n 1) 191.
 VII. Balanced Coverage 65

an ambiguous legal concept includes phenomena or facts which cannot be absolutely defined in
terms of law. Their content and scope can vary, eg, depending on the time and place where a
statutory provision is applied. Thus, the legislator provides space for the administrative body to
assess whether or not a specific case can be subordinated to the ambiguous legal concept. . . . The
ambiguous legal concept and its scope must be explained first, and only then can the evaluation
as to whether the facts of a specific concept can be included in the framework created by the
ambiguous legal concept be made.58

According to the SAC, the components of objectivity include truthfulness and accuracy,
completeness and the unbiasedness of information.59 It follows from the analysed decisions
of administrative courts issued in the reported period that the RRTV has also worked with
this definition of the concept of ‘objective and balanced’ in its decisions.
The decisions of administrative courts issued in the reported period define the concepts
of ‘objective and balanced’ using the knowledge of the theory of mass communication
and media studies. The Supreme Administrative Court established that the key aspects
of objectivity included correctness (accuracy of information), transparency (reference
to sources), and relevance (absence of the journalist’s own evaluation). Imbalance then
means a hidden form of party adherence where certain opinions are suppressed in a certain
controversial situation to the benefit of the opinions of others. The analysed decisions document
that the SAC is determined to require that this interpretation be respected by the RRTV.
Paradoxically enough, the definition of these concepts based on the knowledge of media
and communication studies was brought by the judgments of the SAC and not by the
RRTV decisions. The Council acts rather as a standard administrative authority than a
regulator of discussion on matters of general public interest. There are virtually no political
cases. This raises the question of whether there is any point in the RRTV’s independence
from the government.
The case-law of the SAC has not determined yet what the object of the administrative
infringement is. According to the theory of law, the object of an administrative infringement
is a social relation or legal value protected by a standard of criminal law.60 Determination
of an individual object (ie, a specific social relation, interest, or legal value whose protection
is defined by the respective statutory provision) is important for the correct qualification of
the facts.61 It also enables the correct assessment of the degree of social harmfulness of an act
because it corresponds to the degree to which the object of the administrative infringement
has been affected. Considering the broadcaster’s obligation to provide objective and balanced
information, it is also appropriate to clarify whether it is the information value (especially in
news) that is the object of quality or whether it is the democratic arrangement of the political
system which is the object of protection.
The objects of protection should not include the personality rights of persons affected
by the broadcast information. The persons affected may seek judicial protection by means
of a civil action for personality protection or publication of a reply in the event that the

58 Judgment of the SAC, 4 As 81/2006-108.

59 Judgment of the SAC, 5 As 11/2007-63 of 20 December 2007.
60 H Prášková, Základy odpovědnosti za správní delikty (Prague, CH Beck, 2013) 233–37.
61 ibid, 236.
66 Comparative Media Law Practice – Czech Republic

broadcast contained an announcement affecting the honour, dignity or privacy of a certain

individual or the good name or reputation of a certain legal entity (Section 35 et seq of the
BA). Even the SAC points to the mutual irreplaceability of these institutes. It is also worth
mentioning that on the other hand, the representatives of broadcasters point out that the
administrative proceeding before the RRTV creates in certain cases another line for the
provision of protection of personality rights of the persons affected.62
Hence, the broadcaster’s freedom of expression is protected if it is not expressed at variance
with the interests of the addressees of the announcement. However, the protectionist approach
is applied only moderately. The success rate of the RRTV when defending its decisions before
administrative courts is very low.
When dealing with the collision between the broadcaster’s freedom of expression and
the public interest protected by the legal obligation to provide objective and balanced
information, we need to consider the specific facts of each case. Hence, the method of ad hoc
balancing is applied. The Council for Radio and Television Broadcasting and administrative
courts respectively must examine in each and individual case whether the administrative
sanction imposed can interfere with the broadcaster’s freedom of expression.
The reasoning accompanying the judgments of the SAC displays a certain plurality of
values, or the different value-based views of individual panels. However, this plurality is not
to the detriment of the case-law consistency, which is reflected by the fact that individual
panels mutually refer to their previous decisions.
The panels use the arguments from the case-law of the CC and the ECtHR to a relatively
high degree, compared to in other areas. However, these arguments tend to be illustrative in
nature, which is attributable to the fact that the ECtHR deals with administrative regulation
only marginally. The Supreme Administrative Court expressly rejected the application of the
case-law developed in relation to private-law disputes to the public-law area.

E. Tendencies and Trends

The case-law of the SAC in the monitored area is based on relatively intensive protection of
freedom of expression. Both its active component (the broadcaster’s freedom of expression)
and its passive component (the right of the public to information) are considered. The
Supreme Administrative Court has gradually clarified in its case-law the ambiguous
concepts ‘objectivity and balance’, also considering the question of whether the given
programme unit is a journalistic or news programme, which is essential for fi lling these
concepts with a certain meaning. In its considerations, the SAC uses knowledge from
the theory of mass communication or media, in particularly when determining the
expectations imposed on the media (see the so-called normative theory of the media). The
Supreme Administrative Court regards accuracy, transparency, and relevance as the key
news-related values.
The Council for Radio and Television Broadcasting does not separately sanction any failure
to adhere to the statutory requirement to separate news coverage and journalistic reporting
programmes (or news and commentaries), but according to the case-law of the SAC, the

62 Kubina, Presentation (n 9).

 VII. Balanced Coverage 67

position of the broadcaster which erodes the differences between these genres worsens in
any potential judicial proceedings. The Supreme Administrative Court has expressly held
that freedom of expression cannot be regarded as a carte blanche for broadcasters to provide
any information. More leeway is given in print journalism where the SAC does not require
compliance with the requirement for relevance. In contrast, a broadcaster can violate its
obligations regarding news values solely by including an evaluating commentary without it
being an excess related to freedom of expression (see judgment 7 As 36/2012).
The case-law of the SAC emphasises that public regulation should not serve to protect
the personality rights of the persons affected. Public protection pursues the public interest,
highlighting the interest of the audience (see the news values formulated by the SAC) which
may in some cases be in a symbiotic relationship with the broadcaster’s freedom of expression
(plurality of information) while in other cases, it may be in conflict with freedom of expression
(protection of the public against manipulation). The principles of a legally consistent state
and the protection of an individual (the liberal component of the legally consistent state) are
linked to the principles of democracy (the concerns about the manipulative effects of the
media formulated by Vladimír Čermák).
Concerning the method of resolving the conflict between freedom of expression and news
values, the SAC refers to the need to examine the fulfilment of the requirement for the necessity
of restricting freedom of speech in each and every specific case.

F. Case Studies

i. 168 hodin—Church Restitutions

– Broadcaster: Czech Television;

– programme: 168 hodin;
– judgment of the SAC (7 As 23/2010) of 5 May 2010.

On 4 May 2008, Czech Television aired its journalistic reporting programme, 168 hours,
which contained a report on church restitutions. For this report, a fi ne of 400,000 koruna
was imposed on Czech Television for the breach of Section 31(3) of the BA. According to
the RRTV, the principles of objectivity and balance were violated by a one-sided report
on church restitutions which reportedly conveyed the impression that the restitutions
embodied an economic and political power rather than being reparations for damage
caused to churches in the past. According to the RRTV, the report was irrelevant, biased,
and slanted, detrimental to churches and taking a negative approach to them. The breach
of the statutory requirement was found in the editorial commentaries and overall approach
to the report concerned.
Following an action brought by the broadcaster, the MC annulled the RRTV decision in
a judgment of 3 December 2009. In addition to the formal reasoning referring to the non-
reviewability of the decision (because the written counterpart of the decision was different
from the resolution adopted by the RRTV), the Metropolitan Court reproached the RRTV
for breaching freedom of expression. According to the Court, the RRTV did not distinguish
between statements related to facts and value judgments, where only statements related
68 Comparative Media Law Practice – Czech Republic

to facts can be subjected to the evidence of truth. The Council for Radio and Television
Broadcasting lodged a cassation appeal against the judgment issued by the MC.
The Supreme Administrative Court dismissed the cassation appeal. In its reasoning, the
Court stated that Czech Television as a public service broadcaster may refer to freedom
of expression when exercising its mission. Freedom of expression also includes the right to
criticism where

not even the inappositeness of the critic’s opinion with respect to its logic and his/her bias allow
one to conclude that he/she has gone beyond ‘fair’ expression. Only if the criticism concerns
things or acts of persons active in governance-related matters and lacks any factual basis and
for which no reasoning can be found (sweeping criticism), must it be regarded as going beyond
fair expression. But the entire expression taking the form of a literary, journalistic or another
structure must be evaluated. A statement or sentence taken out of the context should never be
assessed. The media’s right to free speech protects not only the choice of subject matter but also
the type and manner of its preparation. Only if this notion of free speech (expression) comes
into confl ict with other legal values protected by the constitutional order or with laws issued
for the purpose for which freedom of speech can be limited within the meaning of Article
17(4) of the Charter (ie, the  rights and freedoms of others, the  security of the  State, public
security, public health, and morals), can the purpose of the specific programme, its manner
and preparation as well as the effects achieved or anticipated by the programme be examined.
However, all of the limits of free speech implemented by law should not relativize the freedom
of speech (expression). Indeed, these restricting laws must be interpreted with respect to the
freedom of speech and, if necessary, also in a restrictive manner in order to ensure reasonable
protection of the actual freedom of speech.
The legal regulation limiting freedom of expression requires that the presence of the condition
of the necessity to restrict this fundamental right should be examined in each and every specific
case. Should the claimant impose sanctions for failure to perform obligations pursuant to Section
31(3) of the Broadcasting Act, ie, for not respecting the principles of objectivity and balance, in
particular for one-sided favouring of political parties, movements or individual public groups, it
must do so with regard to the purpose and nature of the fundamental right to freedom of speech
(expression), which did not happen in this case.

The Supreme Administrative Court also dealt with the conditions of limiting the freedom
of speech (expression). The Supreme Administrative Court identified the following rights
or values as conflicting and where the broadcaster’s freedom of expression can be restricted
to ensure their protection: ‘rights and freedoms of others, in particular with regard to the
protection of efficient functioning of political democracy.’ Referring to its older judgment (4
As 81/2006-108 of 29 August 2007), the Court stated that

cautious steps must be taken when defining the line between outspoken and critical management
of a report and a biased and prejudiced approach on the one hand, and impermissible influencing
and confusion of the viewer on the other. The report must be assessed as a whole, ie, both in its
visual and audio aspects, and these must be evaluated together with the verbal announcement
without taking individual announcements out of context. It should provide all of the information
necessary for the viewer to form an objective and unbiased opinion. Here it does not matter
 VII. Balanced Coverage 69

whether the information is provided in a critical manner if all stakeholders are given space in the
report to express their opinions on its subject. It is also important that the report should not give
untruthful information.

The Council for Radio and Television Broadcasting was not authorised to evaluate the
quality of the report and its depth but only its conformity with the law. At the end of its
reasoning, the SAC stated, referring to the conclusions of the judgment 4 As 69/2007-65 of
22 May 2008, that ‘objectivity and balance of the communicated information is not identical
with the protection of entities prior to the intervention in their personality sphere or good
reputation which is protected by means of the private law.’

a. Commentary—Agenda of the Judgment

– Freedom of expression, right to criticism, public regulation;

– protection of rights of others in respect of the functioning of political democracy;
– bias, prejudice, confusing the viewer;
– requirement to collect all information;
– audiatur et altera pars;
– prohibition of untruthful information.

b. Additional Context

Collection judgment; the judgment of the SAC 7 As 56/2011 of 2 June 2011 (collision of
trains) refers to it. However, analogical argumentation was rejected in this case and the
RRTV’s decision was annulled due to the extinction of the right.

ii. Televizní noviny—Conflicts with Russian-Speaking Minority

The Radio for Radio and Television Broadcasting imposed a 50,000 koruna fine on the
television broadcaster for the breach of Section 31(3) of the BA due to a report entitled An
increasing number of people in Karlovy Vary district come into conflict with businessmen from
Russia. The report covered two unrelated disputes in the west of Bohemia. The Council for
Radio and Television Broadcasting concluded that the report had presented

incomplete, insufficient and unexplained information about two unrelated events from the Karlo-
vy Vary region aimed at illustrating and evidencing that the Russian minority was favoured by lo-
cal authorities; the report was prepared in a simplistic and manipulative manner which constitutes
a breach of the obligation to ensure the principles of objectivity and balance in news and political
journalism programmes.

In the judicial proceedings, the applicant argued that the RRTV’s decision had violated
freedom of expression—because the report’s mission was to inform the public about
70 Comparative Media Law Practice – Czech Republic

disputable steps of administrative bodies in cases where such conflicts arise—and that the
RRTV’s sanction competence should not be used to protect the personality rights of the
persons on whom the report focuses.
The Metropolitan Court in Prague concluded that the RRTV ‘has interpreted the concept
of “objectivity and balance” whose principles within the meaning of Section 31(3) of the
Media Act were found by the court to have been violated; and the court also considered the
existing case-law connected to the requirement to respect these principles in relation to news
and political journalism programmes.’ In the conclusion of its judgment, the MC states that
the RRTV ‘rightly did not deny the applicant’s rights guaranteed by the Constitution, but
stressed that even criticism should contain true information, which was not the case in the
report in question. If the applicant wants to point to serious social problems, it must be in an
objective way or else the reference cannot fulfil its purpose.’
The Supreme Administrative Court which decided upon the cassation appeal of the
broadcaster dealt extensively with the interpretation of the requirement for objectivity and
balance in news programmes. The Court based its assessment on work from the theory of
mass communication and theory of media.63
Above all, the SAC distinguished between news and journalistic programmes—news
should quickly bring factual information on a current event. On the other hand, journalistic
announcements should comment on and evaluate the information. Therefore, it is in the public
interest that the news and journalistic statements be separated from each other.

If the broadcaster does not differentiate between news reporting and journalism and gives the viewer
(listener) only some kind of hybrid commented news on the one hand and actual commentaries
on the other hand, it strongly reinforces the manipulative potential of its broadcasting and limits
space for qualified shaping of opinions on whose constructive conflict a democratic society is built
(see Vladimír Čermák, Otázka demokracie (Prague, Academia, 1992) 26). Commented news is
even more dangerous as it impacts stealthily and subtly, because the viewer (listener) does not
expect any opinion to be contained in such a statement and often accepts it automatically as
his/her own together with the given information (if there is any information contained in the
statement at all).

The Supreme Administrative Court identified correctness and accuracy (of information),
transparency (reference to sources) and relevance (absence of personal evaluation by the
journalist) as the key aspects. Imbalance means a hidden form of party adherence where
certain opinions are suppressed in a certain controversial situation for the benefit of the
opinions of others.
Using these standpoints, the SAC stated that the ‘applicant must be primarily reproached
for the selection of a topic which it was absolutely inappropriate to include in a news
programme.’ According to the SAC, it was basically impossible to treat this topic within
the defined space and provide the viewer with complete and complex information. ‘Hence,
the defence arguing with a limited stoppage cannot be successful because this topic should

63 J Bartošek, Žurnalistika (Olomouc, Filosofická fakulta Univerzity Palackého, 1997); M Kunczik, Základy
masové komunikace (Prague, Karolinum, 1995); W Schulz and I Reifová, Analýza obsahu mediálních sdělení
(Prague, Karolinum, 2004).
 VII. Balanced Coverage 71

not have been included in a news programme due to its complexity because it could not be
consistently mediated in a report which is 1:40 minutes long.’

iii. Events—Godfathers

The Council for Radio and Television Broadcasting imposed an 100,000 koruna fine on
Czech Television for airing a report in the main news programme, Události. According
to the RRTV, the report contained unfounded, defamatory and misleading designations
such as ‘grey eminence’ or ‘ODS godfathers’ and references to them in a report on a closely
unspecified case which were put in a context which cannot be argued.
The Metropolitan Court in Prague annulled the decision challenged by the action.
The Court agreed with the applicant’s opinion which argued on the basis of the freedom
of expression guaranteed by the Constitution and referred to the conclusions formulated
by the CC (IV. ÚS 23/05), under which the presumption of criticism’s constitutionality
should apply. The Metropolitan Court in Prague also worked with the case-law of the
ECtHR which describes differences between factual statements and value judgments,
primarily with regard to the requirement that the broadcaster should evidence
truthfulness of the statements broadcast (ECtHR judgments in the Lingens v Austria and
Oberschlick v Austria cases). According to the MC, the broadcaster cannot be sanctioned
for broadcasting value judgments. The Court also annulled the decision challenged by the
action because the facts were insufficiently defi ned in the operative part of the decision
which imposes sanctions.
The Supreme Administrative Court issued its decision on the basis of the cassation appeal
brought by the RRTV. It annulled the judgment of the MC and referred the case back
to another procedure because it did not agree with the conclusion that the facts were not
sufficiently described in the decision.
As far as the core of the issue is concerned, ie, the question of whether or not the broadcaster
violated its obligation to provide objective and balanced information by broadcasting the
report, the SAC agreed with the conclusions of the MC.
The Supreme Administrative Court referred to the findings formulated by the SAC in the
judgment 3 As 6/2010-71 of 26 May 2010 (case study 2), in particular with regard to the
difference between news reporting and journalistic coverage. According to the SAC, news
reporting should

exclusively inform the public in an unbiased manner and only journalism should aim at
influencing public opinion. Objectivity is the basic requirement imposed on news reporting
which seeks to differentiate a piece of news from a commentary in a relevant, impartial and
non-manipulating manner. Such a procedure is mainly characterised by verification of the
truthfulness of an announcement. Hence, the concept ‘objectivity’ includes correctness
(accuracy), transparency (reference to sources) and relevance (absence of personal evaluations).
Imbalance then means a hidden form of party adherence where certain opinions are suppressed
in a certain controversial situation to the benefit of the opinions of others. The principle of
balance consists in the requirement for even representation of political alternatives in terms of
their extent and arrangement of news reporting. News reporting will place noticeably greater
72 Comparative Media Law Practice – Czech Republic

emphasis on consistent adherence to the principles of objectivity and balance than journalistic
programmes. The aspect of relevance will not necessarily be, by definition, applied in journalism
at all. The degree of tolerance toward any transgressions of the statutory principles of objectivity
and balance will vary depending on whether the programme provides news reporting or is a
journalistic broadcast.

The Supreme Administrative Court also concluded that the case-law cited by the MC
(both the case-law of the CC and the ECtHR) could not be applied to the given case as it is
not a private law dispute.

Freedom of expression cannot be understood as carte blanche for broadcasters to submit any
information to the public regardless of the sub-constitutional public regulation of radio and
television broadcasting. Under the existing legal regulation, the applicant has the right to express
its opinion on social affairs but this right should be primarily exercised in journalistic programmes,
not in news reporting. In news reporting, relevance and the use of neutral expressions, if possible,
should be emphasised.

Thus, the SAC concluded that the use of value judgements in news reporting could
lead to the violation of the principle of objectivity because there is basically no space for
evaluations in news coverage. However, in the case subject to assessment, the SAC stated that
the expressions used were rather descriptive than evaluating which is why the obligation to
provide objective and balanced information was not violated.

iv. Televizní noviny—Tram Drivers

A television broadcaster was fined for broadcasting a report included in the main news
programme, Televizní noviny. The report stated that tram drivers in Prague often disrespected
control signalling and went through a red light. According to the RRTV, the principles of
objectivity and balance were violated because the report was based on one-sided criticism
of tram drivers while the issue in question was not sufficiently explained to the viewer, and the
viewer could not develop his/her own free opinion. According to the RRTV, the report did not
mention important aspects such as the weight of the tram and the related stopping distance, a
different system of traffic signalling, etc. The Council for Radio and Television Broadcasting
concluded that Section 31(2) of the BA had been breached.
The administrative courts dealt with this case repeatedly because the decision of the
RRTV was at first overturned for formal reasons (insufficient description of the fact in the
operative part of the decision, judgment of the SAC, 4 As 9/2009-68 of 12 August 2009). In
their decisions, administrative courts (both the MC and the SAC) also dealt with the relation
between the general obligation to provide objective and balanced information pursuant to
Section 31(2) of the BA and the obligation to seek to the fulfilment of the principles of
objectivity and balance in news and journalistic coverage and not to prefer the opinions of one
public group (Section 31(3) of the BA). While the broadcaster claimed that the provisions of
Section 31(3) of the BA were a special legal standard whose application to news and political
journalism programmes is excluded by applicability of Section 31(2) of the BA, the RRTV
 VIII. Hate Speech 73

held the opinion that both legal obligations should apply to the broadcasting of news and
political journalism programmes.
In its judgment 3 As 7/2011-118 of 30 May 2012, the SAC supported the conclusions of
the RRTV, and stated that ‘it is not sufficient to adhere to the principle of objectivity and
balance pursuant to para. 2 in news and political journalism programmes, but it must be
reflected in the preservation of free competition of political forces in the society.’ However,
in such a case it is necessary that the RRTV assess the relevant programme in a qualified and
reviewable manner and state why it believes that the given programme was news or political
journalism reporting.

VIII. Hate Speech

A. Definition

The term ‘hate speech’ is not directly defined by Czech laws, but it is used in the legal
doctrine. The doctrine understands this term as a disputable manner of effectuation of
the freedom of expression which requires certain public law regulation, even through the
standards of criminal law. For Michal Bartoň, hate speech is speech

containing ideas and opinions targeted against certain groups of people, usually racial, ethnic,
religious or sexual minorities (typically racism, anti-Semitism, xenophobia, homophobia, etc.).
Sanctions for hate speech are based on the philosophy that such speech affects the actual principle of
equality of individuals, here equality in dignity. The defence of the option to make hate speech is on
the other hand based on the concept of equality of speakers with regard to the right to communicate
one’s opinion or to equality of opinions as such.64

Štěpán Výborný regards the issue of hate speech as part of general hate crimes. In his opinion,
hate speech is

speech including the elements of hatred against a group which the speech addresses or which is
based on such hatred. Hate elements of such speech are based on negative stereotypes of the speaker
in respect of certain groups in society which are offended, attacked or humiliated in the speaker’s
expressions, which demand the limitation of their rights or appeal to violent acts toward them or
otherwise trample their human dignity. The words said do not affect only a specific addressee but
the entire group with which the victim identifies (or was—even wrongly—identified).65

The more general term ‘hate crime’ is understood by the legal doctrine as ‘an illegal act
accomplishing the elements of the facts of a crime which was motivated by the offender’s a
priori hatred arising from the victim’s belonging to a certain race, nationality, ethnic group,
religion, class, or social group.’66

64 M Bartoň, Svoboda projevu: principy, garance, meze (Prague, Leges, 2010) 221.
65 Š Výborný, Nenávistný internet versus právo (Prague, Wolters Kluwer, 2013) 22.
66 J Herczeg, Trestné činy z nenávisti (Prague, Aspi, 2008) 11.
74 Comparative Media Law Practice – Czech Republic

B. Hate Speech in Constitutional Order and

Constitutional Court Case-Law

At the constitutional level, the prohibition of hate speech constitutes a legitimate

limitation of the freedom of speech (expression). According to Article 17(4) of the Char-
ter of Fundamental Rights and Freedoms, the freedom of speech and the  right to seek
information may be limited by law ‘in the  case of measures necessary in a democratic
society for protecting the rights and freedoms of others, the security of the State, public
security, public health, and morals.’ Using this basis, hate speech may be limited solely for
the purpose of protecting the rights and freedoms of others (typically in cases of speech
whose content affects the human dignity of a member of a certain group) or public security
in the case of acts which do not remain only at the verbal level because they cause hatred
or even incite to violence against members of a certain group. Bartoň also points to the
protection of state security, specifically its democratic arrangement, against extremists:
‘What if they came to power and started effectuating their ideas.’67
In its decisions (cf in particular judgment IV. ÚS 2011/10 of 28 November 2011), the CC
openly advocates the principles of defending democracy

whose legal application is justified with regard to the historical experience with Nazi and Communist
totalitarianism not only in our country but also in the European context. If the opponents
of democracy and the values on which democracy is based are ready to attack, the democratic
regime must also be ready to defend itself against these attacks in necessary cases, even by limiting
fundamental rights.
The Constitutional Court emphasises that despite the undisputed guarantee of fundamental rights
for everyone, it is the democratic state’s right and duty to use reasonable means to defend itself
and the society it represents against destructive attacks by movements and individuals denying
and questioning the fundamental democratic values. A democracy which unconditionally rejected
the use of state power against its rivals would open the gate not only to anarchy but also to
totalitarianism. The right of a minority to express its political views should not be confused with
the right to propagate evil with any means; the duty of a democratic legal state (not bound by any
exclusive ideology) to apply state power within the limits and in a manner laid down by law should
not be confused with resignation from facing up to manifestations of evil and hatred even with
means which may seem to be harsh for the persons disseminating such expressions.
Necessity and adequacy are the most important factors when evaluating the defence mechanisms
which a legal state is entitled to use against those whose primary aim is to liquidate democracy. It
must also be emphasised that any limitation of fundamental rights may only be imposed in extreme
cases. The freedom of expression, as a matter of fact, does not relate only to the information and
thoughts which are accepted positively or are regarded as not offensive or unimportant, but also to
those which cause offence, shock or disturb.
Limitation or even criminal sanction of certain expressions will also be necessary in a democratic
society if they contain appeals to violence or to the denial, questioning, approval or justification of
crimes against humanity (cf the so-called Auschwitz lie) or to support and propagate movements
aimed at suppressing fundamental human rights and freedoms, in particular in relation to certain

67 Bartoň, Svoboda (n 64) 221.

 VIII. Hate Speech 75

minorities. As for hate speech, it is impossible to examine only their first-level content, since the
entire context needs to be considered.
However, at any rate, the speech (expression) in question must be beyond the border of this
protection, and not only hypothetically.

C. Hate Speech in the Case-Law of the European Court of Human Rights

The statutory limitation of hate speech is also accepted by the ECtHR. Its case-law even
defines the positive obligation of the state to intervene against hate speech because ‘negative
stereotypes from which hate speech arises can affect the perception of the group identity and
feelings of self-respect and self-confidence of group members, which is why they influence
their private life, as protected by Article 8 of the Convention’ (cf the ECtHR judgment in the
Aksu v Turkey case).68
The European Court of Human Rights absolutely excludes some forms of speech from the
regimen of Article 10 of the Convention of the Protection of Human Rights and Fundamental
Rights and Freedoms when it denies their protection by describing them as the abuse of the
right. The following forms of speech were thus excluded from the scope of the protection of
the freedom of speech (expression):
– anti-Semitic speech (Pavel Ivanov v Russia, decision of 20 February 2007, App No
35222/04;
– speech referring to National Socialism (Kühnen v Germany, decision of the European
Commission for Human Rights of 12 May 1988, No 12194/86);
– (Holocaust) revisionism (Witzsch v Germany, decision of 13 December 2005, App No
65831/01);
– racism (Nordwood v UK, decision of 16 November 2004, App No 23131/03);
– Communism (Communist Party of Germany, decision of 20 July 1957, App No 250/57).
However, the ECtHR has recently applied Article 17 of the Convention only exceptionally
and examines complaints relating even to very controversial statements through the prism
of Article 10, mostly noting that the freedom of speech (expression) has not been violated.
‘A certain reserved stance to the a priori rejection of speech which could be branded as
hate speech is undoubtedly also related to the difficulties associated with the actual first
assessment as to the extent to which the statements concerned are offensive and constitute a
serious attack on the rights of a certain group of people.’69
For instance, the ECtHR applied this view in the case Soulas and others v France
(judgment of 10 July 2008, App No 15948/03; civil war as the only solution of disputes
with immigrants), or Vejdeland and others v Sweden (judgment of 9 February 2012, App No
1813/07; homophobic statements).

68 App Nos 4149/04 and 41029/04. P Konůpka and J Wintr, ‘Svoboda projevu a postihování tzv. hate speech’
Jurisprudence 5 (2012) 33.
69 ibid.
76 Comparative Media Law Practice – Czech Republic

D. Hate Speech and Criminal Law

In the Czech Republic, hate speech is sanctioned by the means of the criminal law. The Criminal
Code (Act No 40/2009 Sb. (Coll.)) defines several offences sanctioned as hate speech. Section 355 of
the Criminal Code defines the defamation of a nation, race, ethnicity, or another group of people:
(1) Whoever who publicly defames
a) a nation, its language, a race or ethnic group, or
b) a group of persons for their actual or assumed race, affiliation to an ethnic group,
nationality, political conviction, religion or for being actually or presumably without
religion, shall be sentenced up to two years in prison.
(2) An offender shall be sentenced up to three years in prison if he commits the
crime specified in Paragraph (1)
a) at least with two other persons, or
b) through press, film, radio, television, a publicly accessible computer network or in
any other similarly effective manner.
The facts of the incitement to hatred against a group of people or the limitation of their rights
and freedoms are defined in Section 356 of the Criminal Code as follows:
(1) Whoever publicly incites hatred against another nation, race, ethnic group, religion,
class, or another group of persons or the limitation/restriction of the rights and freedoms
of their members will be sentenced to up to two years in prison.
(2) The same sentence will apply to anyone who abets or aids to commit the crime specified
in Paragraph (1).
(3) An offender will be sentenced to six to three years in prison
a) if he commits the crime specified in Paragraph (1) through press, film, radio, television,
a publicly accessible computer network, or another similarly effective manner, or
b) if he actively participates by such an act in the activities of a group, organisation, or
association propagating discrimination, violence or racial, ethnic, class, religious, or
other forms of hatred.
Verbal crimes related to the support and propagation of movements aimed at suppressing the
rights and freedoms of people are also closely connected with the issue of hate speech.
Establishment, support and propagation of a movement directed at suppressing the rights
and freedoms of the human (Section 403 of the Criminal Code):
(1) Whoever establishes, supports or propagates a movement which is demonstrably
directed at suppressing the rights and freedoms of man or propagates racial, ethnic,
national, religious, or class hatred or hatred against another group of people will be
sentenced to one to five years in prison.
(2) An offender will be sentenced to three to ten years in prison
a) if he commits the crime specified in Paragraph (1) through press, film, radio, television,
a publicly accessible computer network, or in another similarly effective manner,
b) if he commits such a crime as a member of an organised group;
c) if he commits such a crime as a soldier, or
d) if he commits such a crime in a situation where the state is in danger or in a state of war.
(3) Any preparation for such acts is a crime.
Expression of sympathy towards a movement aiming at the suppression of the rights and
liberties of the human (Section 404 of the Criminal Code): ‘A person who publicly expresses
 VIII. Hate Speech 77

sympathy towards a movement as introduced in Section 403(1) is liable to imprisonment for

a term of six months to three years.’
Denying, casting doubt on, advocating, and justifying genocide (Section 405 of the
Criminal Code): ‘A person who publicly denies, casts doubt on, advocates or attempts to
justify the Nazi, communist or other genocide or other crimes against humanity committed
by the Nazis and communists is liable to imprisonment for a term of six months to three years.’
There is a common element in the above facts of crime, ie, the committing of a verbal
crime from hatred through the mass media or in a similar manner (through press, film,
radio, television, a publicly accessible computer network, or in a similarly effective manner)
constitutes qualified facts of the said crimes. Hence, these facts increase the social harmfulness
of these crimes and the resulting sanctions are therefore stricter.
According to the SC case-law, ‘the existence of the material aspects of the cited crime is not
affected by the existence of intention on the part of the offender to cause discussion about the
said topic’ (resolution of the Supreme Court 3 Tdo 475/2012-25 of 16 May 2012).

E. Hate Speech in Media Legislation

The general regulation of hate speech contained in the Criminal Code is followed by special
regulation regarding the mass media contained in the BA. Other media acts (ODAMSA and
Press Act) do not contain any such regulation.
Pursuant to Section 32(1)b of the BA, a broadcaster must ensure that the broadcast
programme units do not promote war or show brutal or otherwise inhumane behaviour in a
manner which would involve its trivialisation, apology or approval. For breaching this duty,
the broadcaster faces a fine between 20,000 and 10 million koruna (Section 60(3)a of the BA).
Pursuant to Section 32(1)c of the BA, a broadcaster must ensure that the broadcast
programme units do not arouse hatred for reasons relating to gender, race, colour of the
skin, language, faith and religion, political or other opinions, national or social origin,
membership of a national or ethnic minority, property, birth, or other status. For breaching
this duty, the broadcaster faces a fine between 20,000 and 10 million koruna (Section 60(3)
a of the BA). This is one of the exceptions when the RRTV may impose a fine without
notifying the broadcaster thereof in advance (Section 59(4) of the BA). If the broadcaster
repeatedly commits a particularly serious breach, the RRTV is even entitled to withdraw its
broadcasting licence (Section 63 of the BA).
The hate speech issue is also related to the broadcaster’s obligation to ensure that its
programmes do not include programme units that could promote prejudicial stereotypes
of ethnic, religious or racial minorities (Section 32(1)i of the BA). However, the RRTV has
no right to impose a fine for the breach of this duty; it may only issue a notice (warning)
pursuant to Section 59 of the BA.

F. Agenda of the Council for Radio and Television Broadcasting

During the monitored period (but also beforehand), the RRTV did not issue any decision
imposing a fine on a broadcaster for the breach of any of the obligations specified above. It
78 Comparative Media Law Practice – Czech Republic

can therefore be noted that broadcasters can ensure on their own that broadcasting does
not contain such objectionable statements, ie, this is not an issue arousing any principal
controversies in Czech media legislation. The statements made by individual broadcasters
or their representatives or annual reports of the RRTV did not contain any facts to the
contrary either. This is the reason why it was impossible to make any analysis of the case-law
of administrative courts with respect to this issue.
However, in the years 2013 and 2014, the RRTV focused its attention on the issue of
stereotypes relating to minorities and specific groups, which it subjected to continuous moni-
toring and subsequent analysis. However, not even these steps showed any systematic breach
of duties by any of the broadcasters monitored.
In 2012, the media reported on a series of criminal events actually or artificially connected
to the Roma ethnic group, which raised the question of whether or not the mass media were
involved in shaping and maintaining stereotypes relating to the Roma minority. In reaction
to this issue, the RRTV focused its monitoring on the broadcasting of news on criminal acts
with identification of the Roma ethnicity.
In 2012, the RRTV was monitoring the news programme Televizní noviny broadcast by
CET 21, spol. s r.o. (the most watched news programme in the Czech Republic). Based on
this monitoring, the RRTV issued two warnings related to the breach of the duties set forth
by the BA in Section 32(1)i. The breach of the law was seen in the fact that

in the monitored period, the programme Televizní noviny presented virtually exclusively
negative information in connection with the Roma ethnic group, primarily in connection
with crimes, and identified the offenders with their ethnicity unlike the reports on the crimes
committed by the majority population. The news programme depicted the Roma exclusively as
a problematic minority from a criminal or social perspective; it branded the Roma as individuals
with darker skin regardless of whether they actually were Roma, or whether the persons affected
felt that they were Roma. They used verbal expressions invoking automatic associations with
the problematical situation and Roma locations (Roma neighbourhoods, etc.) regardless of the
actual state of affairs.70

The broadcaster was also warned about the breach of Section 32(1)c when it reported on a
crime and stated that it had been committed by the Roma.

They reported on the following demonstrations in Varnsdorf and branded the Roma as those who
were responsible for the tense situation in the north of Bohemia. It provided no space to the Roma
minority to express their views. The entire space given to the views of the locals was reserved for the
representatives of the majority who expressed their fears of the Roma ethnic group. The programme
unit repeatedly advertised information on the demonstrations which were branded as anti-Roma.
Authors of reports manipulatively and purposefully used the information on the death of a woman
who had been attacked by repeatedly associating it with the Roma attack while the fact was that the
woman had died several days after the attack and her death had been natural and a consequence of
a long-term serious illness.71

70 Annual Report of the RRTV for 2012, 47.

71 See above.
 VIII. Hate Speech 79

In its annual report for 2012, the RRTV notes that

it has long noted that certain parts of the media have taken an insensitive approach to minority
specifics, whether it be with regard to their ethnicity, race, handicap, or religion. The tendencies
of the media (especially in the commercial sector) to simplify coverage of the problems of certain
minorities, and to create prejudiced stereotypes of members of these minorities is a vice which
cannot be overlooked. This is why the Council will in 2013 focus on the monitoring of broadcasting
and the occurrence of the media content which contributes to the strengthening of prejudiced
stereotypes or even incitement to hatred of certain minority groups.

Since the notice of violation of the law is not subject to separate judicial review and no
monetary sanction was imposed, the lawfulness of these notices could not be assessed by
administrative courts.
In 2013, the RRTV carried out monitoring of the broadcasting of two other nationwide
broadcasters (Czech Television, FTV Prima, spol. s r.o.). The analysis noted that the Czech
Television broadcasting did not give any cause to suggest a possible breach of the law. As
far as the broadcasting of the private broadcaster FTV Prima, spol. s  r.o. is concerned,
the analysis stated that ‘there were certain ethical and professional faults but the material
evidence of an administrative infringement was not present from the Broadcasting Act’s
perspective.’ 72
Further monitoring (of all of the said broadcasters) was conducted in February and
March 2014. According to this analysis, ‘the Roma issue or issues of other ethnic or
national minorities are virtually not present in the broadcasting of Czech Television. This
is apparently the consequence of efforts not to add fuel to stereotypes such as associating
the Roma with crimes and social problems—instead these issues are completely omitted.’ 73
No disputable issues were found in the case of CET 21 spol. s  r.o. Although certain
information on criminal activities of members of the Roma ethnic group was reported by
FTV Prima, spol. s r.o., it was on a programme entitled Krimi zprávy which focuses on the
coverage of criminal activities. Only five out of more than 200 news items concerned the
Roma ethnic group.74
The cited analysis identifies the reports broadcast by TV NOVA (operated by CET 21
spol. s r.o.) on issues regarding the Catholic Church as disputable because they had a negative
tone. However, the analysis did not draw any specific conclusions with regard to a limited
number of news items (3 cases).
In 2012, the RRTV recorded an anecdote about the Roma which ‘drew on the stereotyped
prejudice against the Roma and could incite to hatred due to membership of a national or
ethnic minority.’75 The Council stated that ‘although this was a unique case, it was serious in
its character’, and issued a notice of violation of Section 32(1)c of the BA.76

72 Annual Report of the RRTV for 2013.

73 Broadcasting monitoring summary focused on the depiction of minorities and specific groups in February
and March 2014, 7.
74 ibid.
75 Annual Report (n 72) 75.
76 ibid.
80 Comparative Media Law Practice – Czech Republic

G. Discussion

The agenda analysed above shows that the issue of hate speech is given adequate attention
in the Czech Republic. The broadcasting of so-called hard-core hate speech is apparently not
defensible, ie, the broadcasting of manifestly extremist speech which would incite hatred
toward certain groups of inhabitants. Not even the issue of media responsibility for reporting
on activities of extremist groups was open to debate (eg, to what extent the media should
pay attention to extreme views in a political discussion, etc.). It is virtually impossible
to encounter the dissemination of hard-core hate speech in television broadcasting; the
broadcasters manifestly avoid it. Such speech is basically confined to the environment of the
internet media or social networks.
However, the issue of stereotypes relating to minority and specific group members
remains open to debate. FTV Prima, spol. s r.o. lawyer Pavel Kubina points out that it is
not admissible in a democratic legal state that the content regulator (RRTV) should enter a
political discussion by ‘deciding what should not be strengthened in the public because it is a
stereotyped prejudice.’77 On the other hand, the CC Judge Kateřina Šimáčková says that this
is one of the most important areas where the RRTV should intervene compared to, eg, the
sanctions for non-separated advertising (oral interview of 30 January 2015).
This controversy may be seen through a prism of a more general dispute regarding the
relationship between the regulator and the broadcasters. We must bear in mind that despite
its institutional independence, the RRTV is a state body and bearer of public authority
which authoritatively intervenes in the freedom of speech (expression). The Libertarian view
emphasising the protection of the freedom of speech as a negative freedom of an individual
compared to the state must necessarily lead to the conclusion that public authority should
not distinguish legitimate views from illegitimate stereotypes. From this perspective, law
(and not even public law) is the appropriate normative system for driving speech which
strengthens stereotypes out of the public space. In contrast, the view based on the concept
of the social responsibility of the media implies a more significant intervention of the state
(through its bodies) in the public discussion. This perspective is based on the persisting
specific characteristics of television broadcasting.
We must also note the diversity of the values behind the limitation of the freedom of
speech (expression). Any suppression of hate speech and hate crimes in general is commonly
associated with the concept of a militant democracy based on the knowledge that it is possible
to sustain a democratic system only if it is capable of effectively defending itself against efforts
to remove democracy as such. The requirement for the protection of individual rights of the
persons affected is only a second-level factor. Efforts to sanction statements strengthening
stereotypes and prejudices are apparently and dominantly driven by the second group of
values even though we can admit that statements based on prejudices and strengthening
stereotypes may develop into incitement to hatred. However, this statement does not cast
doubt on the strong emphasis on the protection of individual rights of the persons affected,
which must be taken into account when examining whether or not the intervention in the
freedom of speech is still proportionate to the goal pursued.

77 Kubina, Presentation (n 9).

 IX. Commercial Speech 81

IX. Commercial Speech

A. Commercial Speech as Form of Freedom of Speech

In media legislation, commercial speech is regulated by two laws. The Broadcasting Act
regulation is supplemented by general advertising regulation in the Act on Advertising
Regulation (No 40/1995 Sb. (Coll.) as amended). While the BA exclusively regulates the
rights and duties of radio and television broadcasters, the Advertising Act has a much wider
scope, and in its substance includes all forms and manners of advertising. The Advertising
Act also defines the powers of the RRTV with respect to advertising disseminated through
broadcasting.
Advertising and similar commercial speech represent a distinctive form of speech subject
to separate regulation with respect to the freedom of expression (speech) and the freedom
of the press. Even the dissemination of advertising can be regarded as a form of expression,
albeit one with a specific purpose and meaning. We must remember that its primary purpose
is not to enrich the debate on public goods, or the seeking of truth; it is not directly connected
with the control of power elites, and the self-realisation element may be seen (if there is any)
only at a secondary level.78 The purpose of commercial speech consists in the support of the
originator’s business activity; the speech originator wants to attract the consumer public,
present its business activities, and offer its products or services. Therefore, it is sometimes
difficult to find a close relation between commercial speech and a general reason for special
protection of the freedom of expression. There are therefore doubts as to whether commercial
speech is protected by the Constitution at all, or whether its constitutional protection is not
somewhat weakened.79
This differentiation is reflected even in the US which is normally perceived as a count-
ry with strong protection of the freedom of speech (expression). Commercial speech is,
to a certain extent, perceived as a low-level speech excluded from the reach of the First
Amendment.80
According to the SC, this is because certain utterances ‘are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality.’81 Even where a court awards protection to a commercial speech, such protection is
weakened compared to other types of expression. The otherwise traditionally strong Ame-
rican protection of freedom of speech is thus not applied in commercial communications at
all and the significantly weaker standard based on the rational-basis test is instead applied.82
Only an apparently irrational or arbitrary measure does not pass this test.
Commercial speech is not a form of speech which would give rise to influential
theories on freedom of speech (expression) whose authors pointed to the solid relation
between a democratic social organisation and freedom of speech (expression). Hence, the

78 P Jäger and P Molek, Svoboda projevu, demokracie rovnost a svoboda slova (Prague, Auditorium, 2007) 32.
79 Bartoň, Svoboda (n 64) 90.
80 CE Wells, ‘Právo svobody projevu ve Spojených státech amerických’ Časopis pro právní vědu a praxi 4
(2001) 354.
81 Chaplinski v New Hampshire, 315 US 568, 572 (1948), cited ibid.
82 M Bartoň, ‘K mezím svobody projevu v USA’ Právník 1 (2003) 61.
82 Comparative Media Law Practice – Czech Republic

constitutional protection of commercial speech may rather be regarded as a secondary

consequence of the generally strong protection of the freedom of speech (expression).
If there is any collision in the freedom of speech (expression) being commercial in
its character and another colliding right or public good, the colliding public good or
fundamental right will often prevail.83 Th is prevalence seems to be so apparent that it
is open to generalising regulation at the statutory level which is in confl ict with the
Constitution only in exceptional cases.
However, the absolute exclusion of commercial speech from the scope of freedom of
expression remains problematic. In this respect, Bartoň points to the questionable line
between protected and unprotected speech. It seems to be rather too convenient that some
speech can be automatically branded as unprotected (with no value for the society) and thus
it is deemed unnecessary to determine whether or not the disputed measure breaches the
freedom of expression.84 Moreover, the blending of private and public affairs raises a question
as to whether advertising automatically has no social impact (or maybe benefit) or whether
specific circumstances of each and every case are decisive also in this area. Modern marketing
often works with current social issues in advertising,85 and marketing methods penetrate
beyond purely commercial segments. Even political advertising is sometimes mentioned, ie,
advertising with no or weak constitutional protection paradoxically penetrates the sphere
where freedom of expression is almost unlimited. Social networks are also a good breeding
ground for viral marketing where a commercial communication attracts addressees to such
an extent that they disseminate it among themselves.86 Therefore, a commercial motive does
not deprive certain expressions of constitutional protection, but this aspect plays a role when
balancing freedom of expression and other colliding subjective rights and values protected
by the Constitution.

B. Constitutional Protection of Commercial

Communications in the Czech Republic

Article 17 of the Charter of Fundamental Rights and Freedoms does not expressly mention
expressions which are commercial in their character. Hence, it does not expressly establish
their protection, nor does it rule it out. The relevant case-law of the CC is not available either.
Therefore, the mechanism of constitutional protection of commercial communications
remains an open issue for the future. The systematic inclusion of freedom of expression
among the political rights and freedoms in the Charter might indicate strong protection
of politically engaged expressions compared to weakened or even no protection of purely
commercial expressions.

83 Chaplinski v New Hampshire (n 81).

84 Bartoň, Svoboda (n 64) 59.
85 In this connection, ad campaigns of Benneton are often mentioned (cf Bartoň, Svoboda (n 64) 93); in the
Czech environment, we can refer to the ad campaign of the Bernard Brewery (My Way) which often uses current
political and social issues.
86 M Rolková, ‘Marketingové využitie vzťahov na Facebooku’ R Bačuvčík (ed), Tradičně a nově v marketingové
komunikaci (Zlín, VeRBum, 2011) 209.
 IX. Commercial Speech 83

However, in one of the few decisions on this issue,87 the CC adopted a fairly different
approach. The dispute concerned the then popular commercial for the Fidorka biscuit where
a little blond girl, wanting to get hold of a biscuit, uses her doll to hit an airbag in a car
standing at the crossroad, and when the activated airbag pushes the fellow-passenger against
the seat, the girl plucks the biscuit from her hands. The scene was accompanied with the
slogan ‘If you have to, you just have to.’ The Council for Radio and Television Broadcasting
found that the broadcasting of this commercial had violated Section 2(3) of the Advertising
Regulation Act88 which bans commercials (adverts) intended for persons under 15 years of
age or which show persons under 15 years of age if they promote behaviour jeopardising
their health, mental, or moral development. The Supreme Administrative Court89 drew the
conclusion that this advertising slot had promoted aggressiveness because if a close relation
between the girl and her doll is presumed, the girl risked injury to the doll only in order to
grasp the sweets. Children viewing this advert may not notice and understand this apparent
hyperbole, the SAC concluded.
In the subsequent procedure on a constitutional complaint, the SAC objected that an
advertising slot, as an expression of commercial character was not covered by the freedom of
expression at all. Commenting on this objection, the CC noted that even an advertising slot
is information, which is why its dissemination is subject to Article 17 of the Charter. The
Constitutional Court also added that Article 17 of the Charter

provides a framework definition of the legitimate public interest in limiting the freedom of
disseminating information. According to the opinion of the Constitutional Court, the Act
on Advertising Regulation is a statutory implementation of Article 17(4) of the Charter. In the
case under assessment, it was about a conflict between the legitimate public interest in due and
proper education of minors and the fundamental rights of children as mentioned by the Supreme
Administrative Court on the one hand, and the freedom to disseminate information on the other
hand. Were this conflict resolved for the benefit of the rights of children and the legitimate public
interest in their due and proper education, then such a solution would be in conformity with the
Constitution, and the constitutional complaint is thus apparently unjustified in this respect.90

Thus, the CC did not make its own review of the decisions of general courts to test
whether freedom of expression was not side-lined without justification or even absolutely
neglected in the conflict with another constitutional value. The Supreme Administrative
Court did not deal with the constitutional level of the issue at all and even adopted a stance
that advertising messages were not covered by freedom of expression. Although the CC did
not agree with this view, it contented itself with the fact that the legislator had resolved the
existing collision at the customary law level. It is impossible to draw any clear conclusion
from the single CC decision which even has the character of a resolution. However, the
degree of constitutional protection of expressions of commercial character seems to be fairly

87 Constitutional Court Resolution II. ÚS 396/05 of 27 October 2005.

88 Act No 40/1995 Sb. (Coll.) on Advertising Regulation and Amendment and Supplementation to Act No
468/1991 Sb. (Coll.).
89 Judgment of the SAC 6 As 16/2004-90 of 23 March 2005, 604/2005 Sb. NSS.
90 Constitutional Court Resolution II. ÚS 396/05 of 27 October 2005.
84 Comparative Media Law Practice – Czech Republic

reduced. Even though this limitation does not exclude commercial speech from the scope of
Article 17 of the Charter, it opens up a wider space for the legislator’s political considerations
and the decision-making practice of general courts. If they interpret the customary law in the
correct manner,91 there will be relatively little space for any intervention by the CC.
In the absence of the CC case-law, the practice of the ECtHR may play an important role.
However, not even the ECtHR case-law is very rich and consistent. In its judgment in Markt
Intern and Beermann,92 the ECtHR admitted that commercial speech is protected by Article
10 of the Convention, but that the parties had a wide margin of appreciation as to whether this
concerned abuse of freedom of expression in competition. With a close ratio of 8:7 votes, the
ECtHR noted that the case under assessment had not breached Article 10 of the Convention.
The European Court of Human Rights also declared a wide margin of appreciation for
national authorities in the Krone (No 3) judgment93 where the findings made in the context
of the unfair competition law may also be fully applied to the area of advertising.94 However,
the Court also pointed to the importance of advertising for consumer awareness where
advertising is a form of obtaining information on product and service qualities. Even though
the ECtHR admitted that dissemination of true information might be legitimately limited
under certain circumstances, such measures are subject to strict examination by the Court.95
Likewise, the ECtHR pointed out in the Hertel96 judgment that the unfair competition
law cannot be applied as a universal magic formula justifying the restriction of open
communication about public goods. The judicial review focused on the activities of a Swiss
scientist who repeatedly pointed to health risks associated with the use of microwave ovens.97
His article aroused outrage among sellers of these appliances who believed the article was
unfairly discouraging consumers from buying the products. The European Court of Human
Rights found that the Swiss courts had breached freedom of expression because the topic
of the article had been an object of justified public interest. However, not even this Court
decision was adopted unambiguously; the dissenting judges pointing to the fact that national
authorities have a better position to adequately evaluate the conflict of individual rights.98
The fairly varying decision-making practice of the Strasbourg court suggests that for the
ECtHR, it is now crucial to decide on the distribution of competences between the Court and
national authorities. The Court is now apparently ready to leave a relatively wide degree of
assessment liberty to national courts. Any Court interventions are directed at the deviations
from this assessment liberty, but no creation of a comprehensive doctrine is assumed to be
created which could become a shared standard and be adopted as such by national authorities.
Therefore, the case-law of the ECtHR can serve rather as a source of inspiration in the
procedures before Czech courts and administrative authorities, which, however, does not set
clear limits for national courts as it does in some other issues relating to freedom of expression.

91 P Molek, Právo (n 15) 281.

92 Markt Intern Verlag GmbH and Klaus Beermann v Germany, App No 10572/83, judgment of 20 November 1989.
93 Krone Verlag GmbH & Co KG v Austria (No 3), App No 39069/97, judgment of 11 December 2003.
94 ibid, [30].
95 ibid, [31].
96 Hertel v Switzerland, App No 25181/94, judgment of 25 August 1998.
97 R Polčák, ‘Svoboda projevu při hospodářské soutěži – rozhodnutí ESLP ve věci Hertel proti Švýcarsku’
Jurisprudence 2 (2005) 52.
98 ibid.
 IX. Commercial Speech 85

In these cases, freedom of expression is limited under Article 17(4) of the Charter.
Advertising regulation focuses primarily on consumer protection against false advertising and
protection of competitors against advertising which may be regarded as unfair competition.
Although commercial speech enjoys a relatively low degree of constitutional protection, it
is impossible to admit absolute elimination of freedom of expression under the pretext of
maintaining a sterile competitive environment. Although the commercial aspect does not
disqualify certain speech from constitutional protection, the correct identification of the
character of this speech is a necessary prerequisite for correctly resolving the collision between
freedom of expression and another protected interest. Only then may the corresponding test
of constitutional conformity be applied.99

C. Regulation of Broadcasting Act

The Broadcasting Act differentiates three types of commercial communications:

– advertising;
– sponsored messages (sponsoring), and
– teleshopping.
In the BA, advertising is defined as any public announcement broadcast in return for
payment or a similar consideration, or broadcast for the broadcaster’s self-promotion, in
order to promote the supply of goods or provision of services, including immovable property,
rights, and obligations in return for payment.100
Teleshopping means the direct offer of goods, including real property, rights and duties,
or services, which offer is meant for the public and which is included in radio or television
broadcasting in return for payment or other consideration.101
Sponsoring means any contribution made by a natural or legal person not engaged in the
operation of television broadcasting, in the provision of an on-demand audiovisual media
service or the production of audiovisual works, to the direct or indirect financing of a radio
or television programme or programme unit with a view to promoting the sponsor’s personal
name or business name, trade mark, products, services, activities or public image.102
Under the BA, sponsoring is connected with the broadcaster’s statutory duty to identify
that a certain programme unit is sponsored. Typically, this duty is performed by broadcasting
a sponsored message which fulfils both the informative and promoting function.
Commercial communications share some common elements—they are originated by a
person different from the broadcaster, and they pursue other than editorial content. The
broadcaster is responsible for the content of commercial communications to a limited
extent: The veracity of information contained in a commercial communication shall be the
responsibility of the party commissioning the commercial communication; where the party
commissioning the commercial communication cannot be identified, responsibility shall lie

99 Otherwise, separation of commercial speech as speech enjoying weaker protection would have no sense. It
would be sufficient if the commercial motive of a communication is taken into consideration as a relevant aspect
of the proportionality test in its traditional form.
100 Section 2(1)n of the BA.
101 Section 2(1)r of the BA.
102 Section 2(1)s of the BA.
86 Comparative Media Law Practice – Czech Republic

with the broadcaster.103 Thus, the requirement for the broadcaster’s independence does not
apply to commercial communications, which is why such communications must be clearly
identified for the viewer to be able to approach such communication with a certain wariness.
The broadcaster’s duties applicable to the broadcasting of commercial communications are
defined under Sections 48–53a of the BA. The Act expressly prohibits the broadcasting of
certain types of commercial communications. Broadcasters are not allowed to broadcast:104
a) commercial communications that are not readily recognisable as such;
b) commercial communications that encourage behaviour prejudicial to health or to
safety, or behaviour seriously prejudicial to the protection of the environment;
c) commercial communications in which newscasters, moderators, or editors of news
and political programme units appear;
d) religious and atheist commercial communications;
e) political parties’ and movements’ commercial communications and those of
independent candidates standing for the posts of deputies, senators, or members of a
municipal or local council, or council of a higher-level self-government unit, unless
otherwise provided in specific legislation;
f) commercial communications concerning medicinal products or medical treatment
available only on medical prescription in the Czech Republic;
g) commercial communications about cigarettes and other tobacco products;
h) surreptitious commercial communications;
i) commercial communications containing subliminal messages;
j) commercial communications prejudicing respect for human dignity;
k) commercial communications attacking a faith or religion, or a political or other opinion;
l) commercial communications containing discrimination on grounds of sex, race,
colour, language, faith and religion, political or other opinion, national or social
origin, nationality or ethnicity, property, birth, or other status.
The broadcasters also have certain obligations as to the manner of including commercial
communications in the broadcasting. Under Section 49(1) of the BA, a broadcaster must ensure that
a) advertising and teleshopping are readily recognisable as such; with a radio broadcaster,
this shall be clearly distinguishable by audio means, and for a television broadcaster,
it shall be clearly distinguishable by audio, visual or audiovisual means or by spatial
means separated from other broadcasts;
b) isolated advertising and teleshopping spots are included in broadcasting only in
exceptional cases, except for live transmissions of sports events; this shall not apply
to radio broadcasting;
c) advertising and teleshopping for erotic services and erotic products is not included
in broadcasting in the period from 6.00 am to 10.00 pm; this obligation shall not
apply to broadcasters where broadcasting to the end user is available under a written
contract concluded with a person aged over 18 years, and is accompanied by the
provision of a technical measure which allows that person to restrict minors.
d) advertising and teleshopping is not included immediately prior to or immediately
after the broadcasting of religious services.

103 Section 48(3) of the BA.

104 Section 48 of the BA.
 IX. Commercial Speech 87

The rules for broadcasting sponsored programmes are defined in Section 53 of the BA.
Pursuant to Section 53 of the BA, the broadcaster of a sponsored programme must indicate
the existence of the sponsorship, clearly indicate the sponsor’s name and specify its principal
activity. Notification of sponsorship shall not be broadcast in trailers for the programme unit,
during the course of the programme unit, immediately before it or immediately after its end.
Separate regulation of product placement was introduced with effect from 1 June 2010.
Under Section 2(2)b of the Act, product placement means any form of the inclusion of a
product, a service, or the trade mark thereof, or reference to a product or service, so that it is
featured within a programme unit in return for payment or for similar consideration.
Pursuant to Section 53a of the BA, product placement in programmes is admissible only
in cinematographic works, films, and series made for television broadcasting or for on-
demand audiovisual media services, in sports and entertainment programmes, provided that
they are not children’s programmes, or
where there is no payment but only the provision of certain goods or services free of charge,
including, without limitation, production props and prizes for competitors, with a view to
their use in a programme.
Programme units containing product placement must meet the following requirements:
a) their content and scheduling shall not be influenced in such a way as to affect the editorial
responsibility and independence of the on-demand audiovisual media service provider,
b) they shall not directly encourage the purchase or rental of goods or services, in particular
by making special promotional references to those goods or services,
c) they shall not give undue prominence to the product in question.
Programme units containing product placement must also be identified as such in the
manner prescribed by the BA.

D. Act on On-Demand Audiovisual Media Services

Special regulation contained in the Act on On-demand Audiovisual Media Services (Act No 132/2010
Sb. (Coll.)) will apply to non-linear media services. The Act works with the general term, commercial
communication. The list of duties is shorter than in the case of radio and television broadcasting.
Pursuant to Section 8 of the ODAMSA, an on-demand audiovisual media service provider
must ensure that audiovisual commercial communications:
a) are readily recognisable as such;
b) do not prejudice respect for human dignity;
c) do not contain or do not promote discrimination on grounds of sex, race, colour,
language, faith and religion, political or other opinion, national or social origin, nationality
or ethnicity, property, birth, or other status;
d) do not encourage behaviour prejudicial to health or to safety;
e) do not encourage behaviour seriously prejudicial to the protection of the environment.
The following are absolutely prohibited:
a) surreptitious audiovisual commercial communications;
b) audiovisual commercial communications for cigarettes or other tobacco products;
c) audiovisual commercial communications for medicinal products or medical treatment
available only on prescription in the Czech Republic.
88 Comparative Media Law Practice – Czech Republic

E. Agenda of the Council for Radio and Television Broadcasting

From the quantitative perspective, the RRTV decisions regarding commercial communications
represent the most extensive agenda relating to the broadcasting content. However, if we take
a closer look, we can see that the case-law of administrative courts is fairly monothematic.
A clear majority of decisions applies to the issue of not separated advertising; there are only
a few decisions on covert advertising or exceeded time limits on advertising. There have also
been sanctions for product placement and for advertising which is difficult to recognise. The
fines imposed ranged between 50,000 and 100,000 koruna, but fines in excess of 1 million
koruna have also been imposed.

F. Statistics

Confi rmed Total Confi rmed Reversed total Reversed

6 18 per cent 28 82 per cent

The said data take into account only the cases also assessed by the SAC. Decisions of the
RRTV were cancelled by the MC in 71 cases, and the SAC did not review these judgments
because the cassation appeal was either not submitted at all or it was withdrawn by the RRTV.
The decision of the RRTV was upheld in six cases. The Council for Radio and Television
Broadcasting was successful with its cassation complaint in two cases. In fifteen cases, the
SAC cancelled the dismissing judgment issued by the MC (including two cancellations of the
RRTV decisions). The Council’s cassation complaint against a Metropolitan Court judgment
cancelling the RRTV’s decision was dismissed in thirteen cases.

G. Answers to Research Questions

Freedom of expression (speech), as the key value in media legislation, is somewhat side-lined
in the case of commercial communications. This may be due to the fact that in such cases,
broadcasters use the freedom of expression as their argument only to a limited extent, so
administrative courts do not usually even have an opportunity to deal with the constitutional
protection of the freedom of commercial speech in a comprehensive and complex manner.
It must be added that the crucial question as to the constitutional protection of commercial
speech was positively answered in the past both by the CC and the SAC, and their findings
have never been questioned in a relevant manner. Reduced protection of freedom of expression
is thus reflected in the greater protection of the values colliding with the freedom of expression.
When making a more detailed analysis, we can see that the cases resolved in this respect
are not absolutely homogenous and that the importance of the freedom of expression differs
from case to case. Freedom of expression is given stronger protection in the assessment of
covert advertising where the SAC points to the fact that it is impossible to insist on the absolute
sterility of the presented messages (communications), or that it is impossible to absolutely
force the identification of specific competitors and products out of the broadcasting without
 IX. Commercial Speech 89

causing harm to the information value and quality. This is not a surprising conclusion because
if covert advertising is sanctioned, the broadcaster is basically punished for the editorial
content or for the fact that there are elements of advertising present in the expression which
is not identified as advertising, and that the recipient of the communication has no chance to
discern it. This is primarily the view of the seventh panel of the SAC. The sixth panel of the
SAC was, on the other hand, more paternalistic with respect to viewers and consumers when
it also protected their rational consumer behaviour.
However, this scheme is no longer applied in the legal regulation of product placement
based on the regulation of covert advertising, and both the RRTV and the administrative
court based their decisions exclusively on the wording of the BA. Sanctioning for not
separated advertising absolutely abstracts away from this value framework. Both the RRTV
and the SAC did not react to the objections of the broadcasters who claimed that consumers
could not have been misled because the commercial communication where it was ambiguous
whether it was a sponsored message or advertising was clearly recognisable, and hence this
was not a case of so-called non-distinguished advertising.
As for rights and values which are in conflict with the freedom of expression, the SAC
expressly emphasises consumer rights where the consumer is misled by covert advertising or
may be undesirably influenced in his/her consumer behaviour. A similar approach is taken
to product placement where the ‘comfort’ of the viewer is considered (with regard to the
inappropriate emphasis on commercial speech), although this is somewhat controversial from
the perspective of constitutional conformity of such practice. Pursuant to Article 17 of the
Charter of Fundamental Rights and Freedoms and Article 10 of the ECHR, freedom of
expression may be limited only if it is necessary in a democratic society. From a constitutional
perspective, it is, to say the least, questionable to limit freedom of expression or freedom of
artistic production by examining whether or not a product was emphasised in an inappropriate
manner only because the viewer is bothered by excessive advertising effects. Nonetheless, this
issue has not been raised (in the only case subject to assessment, see the case study) yet, so the
judgment of the SAC or the CC is not available yet.
According to the resolution of the extended panel of the SAC (6 As 26/2010) of 3 April
2012, the

interpretation of any limitation of freedom of expression which would be in conformity with the
Constitution must be based on the fact that there must be a constitutionally legitimate reason for
any specific limitation reflecting the reasons strictly defined in accordance with Article 17(4) of the
Charter, and that the content, extent and intensity of such limitation is proportionate to the right
or constitutional value protected by it.

The sixth panel of the SAC is more open to interventions in the freedom of expression,
also referring to EU legislation. In its resolution on submitting the case to the extended
panel (6 As 26/2010), it points to the need to protect consumers against ‘unfair practices of
merchandisers, service providers, or electronic media operators. The ban on non-separated
advertising is one of the EU rules aimed at consumer protection. A public sanction is the
basic option used by the state to protect its consumers.’ The sixth panel also refers to EU law
when it states that ‘the EU legislator wanted to make propagation content clearly recognisable
for television viewers and to limit its broadcasting time.’
90 Comparative Media Law Practice – Czech Republic

With this context in mind, we regard the manner used in the Czech Republic to sanction
non-separated advertising as highly controversial. In these situations, the RRTV brands a
commercial communication by the broadcaster as advertising within the meaning of the
BA and subsequently imposes a sanction stating that said advert was not separated from the
remaining broadcasting by audiovisual means. However, the RRTV also refuses to deal with
the issue of whether or not this was advertising which was difficult to recognise (ie, whether or
not the viewer could be misled), or whether or not advertising time was extended. Therefore,
no matter how the SAC proclaims the need to review proportionality of intervention in the
freedom of expression in each individual case, it factually abandons this value base in its
decision-making practice.
The reported cases show relative consistency in the decision-making practice of the SAC
and that any differences in opinions are effectively resolved through a specific mechanism.
In the reasons for the decisions issued by administrative courts, we can see that the legal
argumentation is based on the case-law of the SAC which is frequently cited. Still, the form of
the final decisions largely depends on the assessment of specific commercial communications
by specific administrative court panels because even an opposite court verdict can be
convincingly justified in many cases. This is also apparent from several statements that a
certain situation is marginal (see the case studies).
With this in mind, we do not regard the following statement by the sixth panel as
convincing: ‘It is possible to more easily distinguish between a sponsored message and
advertising using the fairly clear decision-making practice of the Council and the Supreme
Administrative Court’ (compared to decisions regarding the protection of minors). The
case-law of the SAC is clear in that there are standing criteria which are applied, but the
fi nal assessment is subjective to a certain extent because none of these criteria can be
absolutized.
There are basically no arguments referring to the case-law of the ECtHR. Also, administrative
courts work with EU legislation and the case-law of the European Court of Justice only moderately,
in particular in decisions which have the aspiration to have stronger precedential effects.

H. Case Studies

i. Judgment of the Supreme Administrative Court, 7 As 68/2011 of 29 June 2011—

Czech Television, Non-Separated Advertising, CK Intact Travel Agency

a. Facts of the Case

The Council for Radio and Television Broadcasting imposed a sanction on the broadcaster
because of its broadcasting of a sponsorship message promoting the sponsor, travel agency CK
Intact Velké Meziříčí. In its reasoning on the administrative decision, the RRTV described
the spot in question as follows:

In the picture of a rotating and approaching globe, there was the Intact logo-type in the lower left
corner with a sub-text ‘Sponsor of the Programme’. A column is sticking in the centre of Europe
with direction signs in the form of flags. There was also a link to the website www.intact.cz. The
 IX. Commercial Speech 91

spot opens with the noise of a flying airplane and the following words: ‘Intact—Language Courses
Abroad for You and Your Children. In Thirty Countries! www.intact.cz.’

The Council for Radio and Television Broadcasting found that the spot under assessment
constituted the elements of advertising, ie, it was not a sponsored message as claimed by the
broadcaster. In its reasoning, the RRTV stated that the spot in question contained elements
of advertising in particular with respect to the presence of references to the quality of the
sponsor’s product and invitation to product consumption. The spot is dynamic (featuring the
rotating globe with direction signs sticking into the globe amid the sound of a flying airplane
and with flags instead of the individual signs presenting the high number of language courses
provided by the sponsor). This representation of the amount or extent of the product on
offer can be regarded as emphasising its quality. The viewers’ attention is further drawn by
the statement ‘Language Courses for You and Your Children’ and ‘in Thirty Countries.’
According to the RRTV, such a representation aims not only at the ‘mere’ creation of a good
name or its promotion, but particularly at capturing the viewer’s attention by presenting the
qualities of the product offered. The phrase ‘for You and Your Children’ can be regarded as
an invitation to product consumption, which is an element of advertising and not an element
permitted for sponsor identification.
Since the spot in question was not separated from the remaining broadcasting by audio-
visual means, the RRTV assessed the broadcaster’s acts as non-separated advertising and
imposed a fine on the broadcaster in the amount of 50,000 koruna.

b. Appeal Brought by the Broadcaster and Assessment of the

Case by the Metropolitan Court in Prague

The broadcaster filed an appeal against the decision on the fine, objecting that this case did
not concern advertising but sponsor identification. The Metropolitan Court in Prague did
not agree with the broadcaster’s objection, and dismissed the action. In the reasons for the
judgment (judgment 7 A 52/2010 of 19 January 2011), the Court stated that ‘in this case,
the communication did not exclusively target the provision of awareness of the sponsor’s
existence and of the services it renders but further specified the services as to their quantity
and quality. Indeed, the sponsor’s spot demonstrated a wide array of its marketing activities,
and although these efforts may have aimed at drawing the viewers’ attention to its existence
in an original and easy-to-remember manner, they did not result in a sponsored message but
in advertising.’ Referring to the case-law of the SAC (judgment 7 As 75/2005 of 9 November
2006 and judgment 7 As 85/2005 of 30 November 2006), the MC determined the ‘purpose
to be accomplished by the spot under assessment’ as the distinct criterion.

c. Case Assessment by the Supreme Administrative Court

The broadcaster lodged a cassation appeal against the judgment issued by the MC, reiterating
its emphasis that ‘the aim of the information contained in the spot was exclusively to raise
awareness about the sponsor’s existence through the information on the services provided
92 Comparative Media Law Practice – Czech Republic

within the admissible limits of the creative arrangement of the spot and the sponsor’s own
representation.’
The Supreme Administrative Court based its decision-making on its previous decisions
(in particular judgment 7 As 81/2005 of 9 November 2006), and consecutively dealt with
the individual criteria used by the SAC to differentiate advertising from sponsoring. The
Supreme Administrative Court identified the criterion of a distinct purpose of commercial
communications (informative versus persuasive) as a major factor in the reasoning of its
decision, adding that

however, the different basic purposes basically constitute a fairly broad range and not only one distinct
criterion, which cannot be used ipso iure to differentiate a sponsored message from advertising. The
sponsored message will normally aim to create or raise the viewer’s awareness about the sponsor’s
existence and its different qualities, skills or offers which are positive or useful for the viewer, while
advertising normally communicates the efforts to make the viewer buy a certain product or service.

The Supreme Administrative Court also points to the unclear borderline between the two
types of commercial communications:

However, the case-law of administrative courts has consecutively shown what is, after all, self-evident
after a closer examination of the advertising and marketing practice, ie, that the aforementioned
ideally typical categories of sponsoring on the one hand and advertising on the other hand usually
blend together. A representation broadcasted as advertising within the meaning of the definition set
out in Section 2(1)n of the Broadcasting Act can be constructed solely as a story creating or raising
the viewer’s awareness about a producer (eg, a car-manufacturing group), the brand it uses (a car
brand often partly or absolutely different from the manufacturer’s trade or business name) or another
characteristic designation, often protected by intellectual property law, under which the products
or product groups are sold (eg, furniture ranges, chocolate bars). Sometimes, advertising even only
points to certain life situations where it is appropriate to consider buying the goods or using the
services of the advertiser, eg, it highlights risks to be insured against or destinations to be visited.
On the other hand, the legal regulation of the sponsoring of radio or television programmes alone
admits that a sponsored contribution can be provided and a sponsored message can be broadcasted
next to the promotion of the name and surname of an individual or name of a legal entity, trade
or business name, visual symbol (logo) or the sponsor’s trademark or just the sponsor alone also
to promote the sponsor’s service, products or other outputs. Hence, this means (and the case-law
has repeatedly accepted it) that a sponsored message containing a reference to a service, product or
another output produced, directly or indirectly disseminated or commercialised by the sponsoring
entity, cannot be regarded as prohibited.’

Many decisions of the sixth and seventh panel of the SAC showed that a sponsor did not
necessarily have to be an enterprise (legal entity), but that it could also be a protected
designation or product.
The spot dynamics was another distinct criterion highlighted by the SAC. According to
the previous case-law of the SAC, such dynamics should show the inadmissibility of the
persuasive character of the sponsored message. But even this criterion was later further
specified, according to the reasoning of the SAC judgment, stating that the ‘spot dynamics
 IX. Commercial Speech 93

will be relevant in the event that it (co-)creates an advertising communication, ie, it entails
the persuasive process being a direct incentive for the viewer to buy a product. However,
even a dynamic spot can be a mere sponsored message, in particular if it does not mention
certain product qualities or characteristics or if the product is not mentioned at all next to the
dynamic representation.’ The Supreme Administrative Court subsequently gives an example
of three specific Supreme Administrative Court judgments where a spot has not been found
to be inadmissibly dynamic.
On the basis of the aforesaid, the SAC concluded that the given case had not been
advertising but a sponsored message because the spot had not departed from the limits set
forth by law with regard to sponsored messages.

d. Commentary and Comparison with Judgment 6 As 10/2011

The commented judgment is evidence of variability on the part of the SAC when determining
the exact borderline between a sponsored message and advertising. By referring to many
previous adjudications (not only of the seventh panel), the SAC convincingly points out that
the constantly applied criteria do not necessarily have to result in absolutely unambiguous
or at least foreseeable results because none of them is so prevailing that it produces a clear
qualification of the commercial communication in question. At the same time, the commen-
ted judgment unveils a certain development in the case-law going beyond, in our opinion,
the actual specification of the previous case-law. While the seventh panel relativizes the spot
dynamics criterion, referring to other Supreme Administrative Court judgments, a completely
different opinion can be found in older judgments.
For instance, this is the different view of a similar issue as expressed by the sixth panel of the
SAC and regarding the broadcaster’s objection that a dynamic character need not necessarily
mean advertising (judgment 6 As 10/2011 of 31 August 2011): ‘If the claimant points out
that the advertising character cannot be inferred from the actual story (‘a kind of a sci-fi
spot’), this conclusion is not manifestly correct with regard to the judgment of the Supreme
Administrative Court of 14 April 2010, Ref No 7 As 80/2009-96. It is quite the opposite: A
dynamic arrangement of a communication mostly points to the fact that it is advertising.’
The dispute concerned a spot broadcasted by another broadcaster. It was a brief jungle
scene presenting a biscuit producer. Child actors, acting as a child brotherhood, say that the
‘Child Brotherhood Brings Diskito.’ The Council for Radio and Television Broadcasting
assigned an advertising character to this spot and imposed a fine of 1.5 million koruna on
the broadcaster. The fine amount was determined by the frequency at which the sponsored
message appeared in the broadcasting.
The Supreme Administrative Court agreed with the spot assessment by the RRTV, and
dismissed the broadcaster’s cassation appeal (this was one of the few cases where the RRTV
has been successful in defending its decision before administrative courts). Also the sixth
panel based its decision-making on the conclusions of the seventh panel (judgment 7 As
80/2009 of 14 April 2010) under which ‘The spot dynamics will be relevant in the event
that it (co-)creates an advertising communication, ie, it entails the persuasive process being
a direct incentive for the viewer to buy a product. However, even a dynamic spot can be a
mere sponsored message, in particular if it does not mention certain product qualities or
94 Comparative Media Law Practice – Czech Republic

characteristics or if the product is not mentioned at all next to the dynamic representation.’
But judgments issued at about the same period (within two months) demonstrate the rather
different views of the sixth and the seventh panels as to the solidity of the borderline between
the two types of commercial communications (see below).
Neither of the two commented judgments uses the arguments from the case-law of the
European Court of Justice (or other sources of the EU law) even though this area has been
fully harmonised. There is also the absence of any value-oriented argumentation both on
the part of the court and on the part of the parties to the proceedings. Judicial decisions are
therefore made fully in the scope of the legal regulation covered by the BA without materially
reflecting its value-based enshrinement.

ii. Judgment of the Supreme Administrative Court, 8 As 66/2013 of 23 December

2013—CET 21, Non-Separated Advertising

a. Facts of the Case

The Council for Radio and Television Broadcasting imposed a fine of 50,000 koruna on the
broadcaster for not having separated advertising from editorial content by optical and/or acoustic
means. According to the RRTV, the sponsored message contained elements of advertising.
In the reasoning of the contested administrative decision, the claimant described the
commercial communication in question as follows:

The first shot shows a light blue screen with shapes symbolising ice. In the middle, there are four
products—cosmetic products. There is the Nova TV logo in the upper left corner and the Fa MEN
logo is right under it. A commentary to the commercial communication asks: ‘Do you want to
cool yourself?’ And the answer is: ‘With Fa MEN XTREME POLAR with air-conditioning effect,
you can enjoy your summer with a cool head even under extreme conditions. Fa MEN XTREME
POLAR. The sponsor of the programme.’ And the “sponsor of the programme” notice appears in
the lower left corner when the last sentence is said.

b. Case Assessment by the Metropolitan Court

In its judgment 9 A 71/2013-39 of 28 June 2013, the MC cancelled the RRTV decision
after it had come to a conclusion that the case in question had not been advertising but a
sponsored message to which the duty to separate it from the editorial content by optical and/
or acoustic means does not apply.

c. Cassation Appeal of the Council for Radio and Television Broadcasting

In its cassation appeal, the RRTV points out that the spot in question contained an incentive
to buy (‘Do you want to cool yourself?’) which is why it should be assessed as advertising. The
Council expressly pointed to the fact that the Metropolitan Court ‘ignores some basic media
 IX. Commercial Speech 95

knowledge, in particular the way the coding and de-coding of the media content by its recipient
works, how it works, what the content analysis of media products unveils, the rules of marketing
communication, etc. The Metropolitan Court focuses only on whether or not the spot contains
an express incentive to buy a product at a certain price. The court neglects to consider that such
content is not even part of duly separated advertising spots admitted by the broadcaster.’

d. Assessment by the Supreme Administrative Court

In the reasoning for its judgment, the SAC points to the previous judgments relating to this
issue (judgments 7 As 51/2011, 7 As 81/2005, 6 As 44/2006, 7 As 30/2010, 7 As 58/2011,
7 As 51/2011, 7 As 85/2011). The Supreme Administrative Court concluded that ‘the spot
under assessment must be regarded as a sponsored message even though it is on the border
between sponsoring and advertising.’ In this respect, the SAC noted that

the representation of Fa MEN XTREME POLAR products may be regarded as the central motif
and main purpose of the spot subject to assessment, not the efforts to persuade viewers to buy these
products. The quality or advantages of the products are not emphasised or highlighted to such a
degree that it would be possible to make a categorical conclusion on the advertising character of
the spot; there are not even any comparisons as to the quality or characteristics of other products.
The spot does not communicate that the product is new, where it is possible to buy it, and what
the price is. The spot does not contain any advertising story which would reinforce its dynamics.
The spot’s dynamics primarily focuses on reminding viewers of the existence of the sponsor, or the
Fa MEN XTREME POLAR products. The spot lasts only about ten seconds and is rather a brief
commercial communication.

The Supreme Administrative Court also states that the spot is on the border between a sponsored
message and advertising.

e. Commentary

The Supreme Administrative Court’s arguments are formally based on its previous
judgments, but it should be noted that the questioned issue depends on the assessment of a
specific dispute, ie, older judgments provide only a certain degree of guidance. The reiterated
emphasis that the spot is on the border between a sponsored message and advertising supports
the conclusion that there is no strict borderline between advertising and a sponsored message
and that any assessment of boundary cases is basically a matter of administrative discretion.
There is also an absence of any value-based or moral argumentation and the court does not
base its conclusions on the case-law of the European Court of Justice or European Court of
Human Rights.
96 Comparative Media Law Practice – Czech Republic

iii. Judgment of the Supreme Administrative Court, 7 As 24/2010, of 24 June 2010—

Covert advertising; Stanice O, a.s.

a. Facts of the Case

The Council for Radio and Television Broadcasting imposed a fine of 50,000 koruna on the
broadcaster for a violation of Section 2(1)d of the Advertising Act prohibiting covert (hidden,
surreptitious) advertising. According to the RRTV, the broadcaster reportedly committed
an administrative infringement by broadcasting a programme containing an interview with
a racing snowboarder who had a cap bearing the Red Bull sign, ie, the trademark of the
snowboarder’s sponsor. The Council for Radio and Television Broadcasting concluded that
this was advertising and that it had not been duly identified.

b. Applied Legal Regulation

When the administrative infringement was committed, the issue of covert advertising in
television broadcasting was regulated simultaneously by two regulations. According to
Section 2(1)q of the BA in the wording in effect until 30 June 2009, covert advertising means
a verbal or visual representation of goods, services, business or trade name, trademark or
activities of the producer of goods or service provider given by the broadcaster in a programme
which does not have the character of advertising and teleshopping if such representation
intentionally pursues a promotional purpose and can mislead the public with regard to the
character of this representation; such a representation is regarded as intentional if it is provided
for a consideration. Section 48(1)g unconditionally bans covert advertising. According to
Section 60(1)l, RRTV can impose a fine ranging between 5,000 and 2,5 million koruna if
the broadcaster fails to adhere to the duties set forth for the broadcasting of advertisements and
commercials, teleshopping, and sponsored programmes.
Furthermore, covert advertising is in general banned by Section 2(1)d of the Advertising
Act. Under this provision, covert advertising means advertising where it is difficult to diff erentiate
that it is advertising, in particular because it is not designated as such. The Council for Radio
and Television Broadcasting is the body authorised to exercise supervision over adherence to
the ban if it concerns advertising disseminated via radio or television broadcasting. The fine
for disseminating covert advertising can amount to up to 5 million koruna.
The issue of the legal consequences of the simultaneous effect of both regulations was not
addressed in the commented case because it was not raised by the RRTV which submitted
the cassation appeal. Since the SAC is bound by the reasons of the cassation appeal, it
based its decision on the assumption that if a broadcaster accomplishes the elements of
an administrative infringement as defined in the Act on Advertising, it is liable for this
infringement without any modifications arising from the BA.
 IX. Commercial Speech 97

c. Judgment of the Metropolitan Court in Prague and Cassation Appeal of the Council
for Radio and Television Broadcasting

The Metropolitan Court in Prague cancelled the administrative decision of the RRTV for
Radio and Television Broadcasting, stating that the reasons for which RRTV had drawn the
conclusion that this case concerned advertising had not been sufficient. The Metropolitan
Court in Prague noted that sportsmen normally gave interviews to the media in clothing
with sponsor trademarks and no fines had been imposed for such acts.
The Council for Radio and Television Broadcasting lodged a cassation appeal against the
judgment of the MC, objecting that it had sufficiently dealt with the issue of whether or not
the brand representation in the broadcasting had pursued a promotional purpose. According
to the RRTV, the ‘broadcasting of an interview with a sportsman in the clothing bearing the
sponsor’s trademark may be subordinated to the term “advertising”.’

d. Assessment of the Case by the Supreme Administrative Court

At first, the SAC reviewed the character of the sportsman’s performance in the broadcasting,
noting that

it is widely known that snowboarding is a winter sport whose fans are generally regarded as a part of a
certain informal community defined by certain characteristics, in particular a certain style of sports
clothing and that this community is viewed as a group of dynamic, independent and rather non-
conformist people. Hence, the image of a top-level snowboarder will often comply with the general
notions of the character of the snowboarding community, if we can speak about it. It is also widely
known that top-level snowboarders and individual races get financial support from producers of
various goods or service providers, including those producing sports goods (Quicksilver) or selling
goods with a certain specific image corresponding to the image of the snowboarding community.
The producer of the widely known energy drink, Red Bull, is one such producer. Therefore, a top-
level snowboarding racer with whom a broadcaster broadcasts an interview about the past race will
apparently be presented as a member of the snowboarding community in such an interview. Such
representation may certainly include the fact that he will wear clothing specific for this community
and a sports cap typically used in this sport which will bear a sign of his sponsor or designation of
a product sold by this sponsor.

Using these standpoints, the SAC formulated the general principles of interpreting the
ban on covert advertising, using the constitutional principle of freedom of expression in its
considerations when it pointed out that this was a fairly significant limitation of the freedom
of expression:

Any report in television broadcasting on a certain fact or event contains the possibility that a
stimulus of an advertising character will penetrate to the viewer through the news. It is especially
very likely in reports on sports or sportsmen, because sport, in particular at the top level, is currently
an important mediator of advertising messages from their originators to the addressees. However,
this fact as such cannot result in a strict interpretation of the provision banning covert advertising
98 Comparative Media Law Practice – Czech Republic

or covert sponsoring which would make broadcasters actively cover such designations or symbols on
the clothing of the persons on whom they report, eg, by broadcasting an interview or even by not
broadcasting the information at all not to risk the sanction due to an administrative infringement.
As a matter of fact, we must always keep in mind even when interpreting the provisions on covert
advertising that its ban is a limitation, and quite a significant limitation, of freedom of expression,
which is protected as one of the most significant fundamental rights in Article of the Charter of
Fundamental Rights and Freedoms. According to Paragraphs 1, 2, and 3, the freedom of expression
and the right to information are guaranteed. Everyone has the right to express their opinion in
speech, in writing, in the press, in pictures, or in any other form, as well as freely to seek, receive
and disseminate ideas and information irrespective of the frontiers of the state. Censorship is not
permitted. Paragraph 4 of the cited article sets forth very strict limits as to the possible limitations
of this fundamental right when it says that ‘the freedom of expression and the right to seek and
disseminate information may be limited by law in the case of measures necessary in a democratic
society for protecting the rights and freedoms of others, the security of the State, public security,
public health, and morals.’ Although the freedom of expression is included among fundamental
political rights, its material scope is absolutely universal. It includes the right to disseminate
information of a political character as well as commercial information published for the purpose of
generating profit. There is no need to discuss the reasons why the scope of the freedom of expression
should be as wide as possible here; it would be enough to note that freedom of expression in general
is one of the fundamental determinants of western civilisation and significantly contributed to
its cultural dominance by stimulating discussions, innovations, search for new solutions, general
awareness about reality and its various aspects. Even at the level of information of a commercial
character, the freedom of expression may be limited only if it is necessary, ie, if it is absolutely
needed to ensure certain values protected by the constitution and enumerated in Article 17(4)
of the Charter of Fundamental Rights and Freedoms. Hence, the interpretation of the limited
freedom of expression conforming to the Constitution must be based on the fact that there must be
a legitimate reason for any specific limitation which would be based on Article 17(4) of the Char-
ter of Fundamental Rights and Freedoms, and that the content, scope and intensity of the given
limitation must be proportional to the value protected by it.

The Supreme Administrative Court also dealt with legitimacy of the reasons why the
freedom of expression can be limited:

In the matter in hand, a legitimate reason for banning covert advertising may be found. Covert
advertising basically misleads the addressee of the advertising message with regard to the actual
content of this communication. It covertly recommends consumption of a certain article (to purchase
some goods or to use some service), but conceals the fact that the recommendation is given by those
who are actually interested in this consumption because it generates profit. The legislator had this
nature of covert advertising in mind when it is defined as a representation ‘aiming at’ supporting
business activities, ie, a representation having the target (purpose) of generating commercial success
of the entity in whose interest the advertising message is disseminated. Liability of legal entities for
administrative infringements is basically objective pursuant to the Advertising Regulation Act, stating
the grounds for liberation (see Section 8b(1) of the Advertising Regulation Act). However, this does
not apply to the case where the actual violation of the duty defined in the respective facts consists in
the acts caused. Whether or not this is true depends on the wording of the specific statutory provision.
 IX. Commercial Speech 99

In the case of the prohibition of covert advertising, the subjective aspect in the form of intention is
required. Advertising is covert (‘hidden’) within the meaning of the Advertising Regulation Act
only if the subjective aspect is fulfilled during its dissemination, ie, if the broadcaster disseminates a
certain communication and is aware that it has an advertising character. If the subjective aspect is not
proved, liability for the administrative infringement cannot be considered in this case.

This leads to a conclusion summarising the interpretation of the Advertising Act prohibiting
covert advertising in the manner conforming to the Constitution as follows:

At first, it must objectively be a communication which can motivate the addressee to consume
(purchase the goods or engage a service). If, during an interview with a top-level snowboarder, the
camera shows his cap with a clearly distinct sign, Red Bull, it may certainly objectively reinforce
the viewers’ motivation to consume this drink because an average consumer may connect the well-
known name of an energy drink to the community of dynamic, independent, and rather non-
conformist snowboarders where these characteristics are regarded as positive and desirable, which
is why he/she will buy the drink. It must also be a communication / message subjectively perceived
by the entity disseminating the broadcasted programme as an advertising, yet hidden message.
Hence, the disseminator must know that the message is, in the material extent, covert advertising
in character, and must want to broadcast it or must know that it may be covert advertising in
character and broadcast it even in the case that it is covert advertising in character. The condition
that a message must have the character of covert advertising is based on the view of the provision
banning covert advertising through the prism of Article 17 of the Charter of Fundamental Rights
and Freedoms. As has already been said, a significant proportion of the information that people
encounter in their normal life has or can have the character of advertising and this character is not
(it is virtually impossible in practice) ‘de-masked’ as an advertising message by being, for instance,
designated as such. However, dissemination of such information cannot be prohibited only due to
this quality (cf, similar conclusions regarding so-called indirect advertising, Point 27 of the judgment
of the European Court of Justice of 13 July 2004, Case C-492/02, application for preliminary
decision submitted by Cour de cassation (France), Bacardi France SAS vs Télévision française 1 SA
(TF1)). It is possible to prohibit only dissemination of such information where advertising content
significantly prevails but remains covert at the same time. In the heard case, it means that the party
to the proceedings may be sanctioned for an administrative infringement relating to the violation of
the ban on covert advertising only if it is proved that the advertising message (the Red Bull sign on
the cap) was consciously included in the programme ‘beyond’ the framework of the actual content
of the message, ie, beyond the framework of the interview’s content, absolutely without any context
and exclusively with the aim of asserting a commercial effect on viewers, and that it was not ‘de-
masked’ as advertising, eg, by mentioning that the sportsman is sponsored by the producer of Red
Bull drinks, which is why he is wearing a cap with the drink’s designation.

e. Commentary

The commented decision of the SAC is important especially due to the fact that a specific
case was used to formulate the generalising criteria under which the RRTV can assess future
cases, which also increases the legal certainty of broadcasters.
100 Comparative Media Law Practice – Czech Republic

If the application of the provisions regulating broadcasting content cannot be foreseen, it

raises legal uncertainty not only in broadcasters. This uncertainty may also lead to excessive
prudence on the part of editors who will over-scrupulously strive not to broadcast any message
which could be regarded as covert advertising for fear of potential sanctions. Such a situation
would undoubtedly be to the detriment of the quality of information.

iv. Judgment of the Supreme Administrative Court, 6 As 16/2010, of 30 September

2010—Covert Advertising, Product Placement; FTV Prima, spol. s r.o.

a. Facts of the Case

The Council for Radio and Television Broadcasting imposed a fine of 1.1 million koruna
on the broadcaster for broadcasting covert advertising for the Šíp daily newspaper in the
reality show Vyvolení. The law was allegedly violated in 22 parts of the reality show. Covert
advertising was seen in the representation of a copy of the newspaper whose designation and
format was reminiscent of a tabloid newspaper published in the Czech Republic at that time.
The Council for Radio and Television Broadcasting pointed to the fact that the newspaper’s
representation had not had any purpose other than advertising because the reality show
participants had not had any newspaper available to them at all.

b. Broadcaster’s Arguments

In its administrative appeal, the broadcaster voiced not only formal and procedural objections,
but also noted that this was a case of product placement which was not expressly regulated
by the BA in the decisive period from which the broadcaster inferred that product placement
was basically possible. The broadcaster also pointed to cases of other broadcasters where the
RRTV had not exercised its sanctioning power even though the cases had involved similar
situations.

c. Assessment of the Case by the Metropolitan Court

The Metropolitan Court in Prague did not agree with the broadcaster’s objections, noting that
the RRTV assessed the case correctly pursuant to Section 2(1)q of the BA which regulated
covert advertising. The Court upheld the RRTV’s conclusions that the advertising purpose
may also be pursued by brief shots lasting several seconds and by displaying a newspaper logo
without any connection with the programme’s action. According to the Court, the advertising
effect is intensified by the fact that the stage property, unlike the original, had comprised one
sheet only and that the logo had been displayed on both pages of the newspaper contrary to
the established practice.
 IX. Commercial Speech 101

d. Assessment of the Case by the Supreme Administrative Court

Following the broadcaster’s cassation appeal, the SAC attempted to determine whether or not
the broadcaster could have had legitimate expectations based on the current administrative
practice of the RRTV which had not sanctioned similar acts and whether the case involved
prohibited covert advertising or permitted product placement. In addition, the broadcaster
raised other procedural and formal objections. The Supreme Administrative Court dismissed
the broadcaster’s cassation appeal.
The Supreme Administrative Court found that the RRTV had been correct to assess the
case pursuant to the legal regulation decisive at the time of the administrative infringement
and to apply Section 2(1)q of the BA.

Czech laws did not know the term ‘product placement’ before 31 May 2010, ie, before the amendment
to the Broadcasting Act implemented through Act No 132/2010 Sb. (Coll.). They regulated only the
prohibition of covert advertising embodied in Section 48(1)g of the Broadcasting Act. Hence, the
defendant and the Metropolitan Court correctly assessed the facts pursuant to legislation valid at
the time of the decision and pursuant to the criteria applicable to covert advertising (cf Section 2(1)
q of the Broadcasting Act). The local court has already drawn the conclusion that it is possible to
impose a sanction on the broadcaster for covert advertising only if three cumulative conditions are
fulfilled: 1) the representation in the programme which does not have the character of advertising
pursues a promotional purpose; 2) the representation intentionally pursues a promotional purpose,
ie, the intentionality, intention or adequacy must be assessed; 3) the representation is capable of
misleading the public as to its character (cf judgment of the Supreme Administrative Court of 31
March 2010, Ref No 6 As 47/2009-49, published under No 2076/2010 Sb. NSS). The Metropolitan
Court dealt in detail with all of these criteria, and inferred that both the promotional purpose had
been fulfilled (the displayed newspaper logo is often the central point of perception), as well as the
advertising intent (inferred from the extensive frequency and systematic nature of the newspaper
logo shots and from excessiveness of the representations) and the capability to mislead the viewer
with regard to the character of the representation (based on the intensity of the effects on the viewer
and on regularity and the systematic nature of the effects and partly inconsistent with the action and
preparation; cf pp 28–29 of the judgment).

The Supreme Administrative Court subsequently dealt with the criteria used by the
RRTV to review whether or not this constituted prohibited covert advertising because
the broadcaster objected that these criteria were not directly based on law. The Supreme
Administrative Court provided the following commentary:

As far as the promotional purpose is concerned, the claimant objects that the defendant has, praeter
legem, fabricated auxiliary criteria which have no logical ties to the sale of the product. Specifically,
these are the extent of the representation, its context in the programme in question, the adequacy
and manner of performing the representation, the intensity of its effects on the viewer, the method
of preparing prerequisites, and the tools for the representations. In this respect, the Supreme
Administrative Court refers to the interpretative communication of the Commission No 2004/C
102/02 on certain aspects of the provisions of Directive 89/552/EEC. In this communication, the
Commission emphasises that the characteristics of covert advertising include the intention of the
102 Comparative Media Law Practice – Czech Republic

broadcaster of media services to provide a representation with a promotional purpose. Since it is fairly
difficult for national regulatory authorities to infer such an intention, the European Commission
considers it appropriate to apply the criterion of ‘undue prominence’ of the representation of the
good, service, brand, or company name. The undue nature of such a representation may result from
the ‘recurring presence’ of the brand, good or service in question or from the ‘manner in which
it is presented and appears’. The case-law of the Supreme Administrative Court also stresses that
the promotional purpose (advertising objective) pursuant to Section 2(1)q of the Broadcasting Act
may be, among other things, demonstrated by the ‘undue prominence of the representation of a
certain good, service, or brand.’ The undue prominence results, among things, from the recurring
representation or presence of the goods, services and brands or the method in which these goods,
services or brands were presented (cf the above-mentioned judgment of the Supreme Administrative
Court Ref No 6 As 47/2009-49). In the light of the foregoing, the criteria chosen by the defendant
to demonstrate the promotional purpose seem to be absolutely apt.

At the end of its argumentation, the SAC expressly states the purpose pursued by the
prohibition of covert advertising:

The Supreme Administrative Court also finds it necessary to rebut the legal opinion presented by
the claimant that only product placement supporting the sale of the product has the prohibited
promotional purpose, not mere marketing support of the brand image. In its previous case-law, the
Supreme Administrative Court already noted that visual covert advertising was a typical example of
prohibited covert advertising, consisting in ‘reinforcing or creating an emotional relationship of an
average consumer to the consumer goods brand hidden in a news or entertainment programme’ (cf
the aforementioned judgment of the Supreme Administrative Court, Ref No 6 As 47/2009-49, Point
32). Prohibited covert advertising interferes with consumer protection and due competition as it
usually creates or reinforces the consumer’s emotional relationship to a product used in everyday life
without the consumer being aware of it. The legal limitation of covert advertising aims at protecting
average consumers in a situation where their rational consumer behaviour would be influenced by
the emotional relationship developed without their knowing it through prohibited media promotion
of a product or its brand. Covert advertising works most effectively if consumers can choose a similar
product of everyday consumption differing from other products merely in the producer or brand.

e. Commentary

The commented judgment of the SAC evidences the relatively strong precedent effect of the
SAC decisions, in particular some of its decisions. Such decisions may be branded as leading
cases because they generally address a more complex issue which has not been addressed either
at all or only ad hoc in individual cases without any aspirations for the decision to become
general in the future.
In the commented decision, the SAC explicitly applied the conclusions of the seventh
panel as applied in judgment 7 As 24/2010 without being forced to justify the conclusions in
detail. And it also appears that different conclusions may be drawn even if the same starting
points and the same algorithms are applied, especially with regard to the different facts of
the cases concerned.
 IX. Commercial Speech 103

While in Case 7 As 24/2010, the sportsman was presented in an environment which is

natural for him, the SAC found in the commented judgment that the situation had been
arranged in order to present a certain brand, and the advertising effect of this representation
had been concealed to the consumer.
Compared to judgment 7 As 24/2010, the sixth panel places greater emphasis on the
good colliding with the freedom of expression, ie, protection of consumer rights. The
seventh panel has in this respect noted only the latency of the advertising effect, ie, that
covert advertising is in a way fraudulent misrepresentation: ‘The addressee is latently
recommended to consume a certain good (to buy the goods, draw services, etc.) but the
fact that the recommendation is given by someone who is interested in this consumption
because it generates profit is concealed.’ On the other hand, the sixth panel, referring to
its previous judgment (6 As 27/2009), claims that covert advertising also includes visual
covert advertising which

reinforces or creates an emotional relationship of the average consumer to the consumer goods
brand hidden in a news or entertainment programme. Prohibited covert advertising interferes
with consumer protection and due competition as it usually creates or reinforces the consumer’s
emotional relationship to a product used in everyday life without the consumer being aware of it.

While the first case protects the right to information and self-determination of the addressee
of the message (who does not have any objective option to learn about the advertising character
of the message and is therefore mislead), consumer protection acquires another dimension
in the other case because the consumer is basically protected from himself/herself or from
creating an emotional tie to a certain product through television broadcasting which would
subsequently influence his/her consumer behaviour.

v. Judgment of the Supreme Administrative Court, 8 As 28/2013, of 20 October

2014—Product Placement; CET 21, spol. s r.o.

a. Facts of the Case and Assessment of the Case by the Council for
Radio and Television Broadcasting

The broadcaster was fined 250,000 koruna for undue prominence of a product (a treatment
for prostate difficulties) in a television series. The broadcaster was blamed for having breached
Section 53a(2)c under which programme units containing product placement shall not give
undue prominence to the product in question. In its decision, the RRTV found that the product
had been presented in the programme unit forcedly, without any direct integration in the
action, and was thus given undue prominence.
In the reasons for its decision, the RRTV stated that

a scene without any dramaturgical and directorial justification (a dialogue about the product when
preparing Christmas decoration) where viewers are provided with complete information on the product
in question (the product helping mitigate urinating difficulties, a lamp as a gift) cannot be viewed
as normal product placement pursuant to law because the product was given undue prominence.
104 Comparative Media Law Practice – Czech Republic

The placed product was the central motif of the scene and it was given excessive attention, ie, the
scene did not mean to highlight Christmas preparations and wrapping of Christmas gifts.

According to the RRTV,

the pack with the Prostenal product (and its name was legible on the pack) was placed in a visible
place during the entire scene and expressly mentioned several times (‘I see that you are wrapping the
gifts’) and taken in hand and examined; its content was clearly mentioned and excessive attention
was also given to a small lamp which is part of the product’s Christmas pack, and the purpose
and quality of the product was verbally mentioned. The pack was being demonstrated even at the
moment when the dialogue turned to other topics; there were detailed shots of the speaking persons
as well as general shots over the room where the pack was visible. The enclosed lamp was used to
light up the room. There were also shots of an inflatable Santa Claus in the background and a
Prostenal pack in the foreground. The scene was centred on the placed product which constituted
the central motif of the scene, not Christmas preparations, which were used only as a supplement in
the background. The situation should have been the other way round had the product been placed
in accordance with law. Therefore, the scene lacks any dramaturgical and directorial justification
and provides viewers with clear information on the product in question.

b. Broadcaster’s Arguments and Assessment of the Case by the Metropolitan Court

The broadcaster referred to the newness of the regulation on product placement with which
television makers lack sufficient experience and to the lack of any guidance and support in
the case-law and established administrative practice of the RRTV. Although the broadcaster
admitted doubts regarding the rendering of the scene, it stated it was convinced that the
broadcaster’s duties had not been violated and that the scene had been included in a natural
and justifiable manner.
The Metropolitan Court in Prague dismissed the appeal. With regard to the broadcaster’s
objections, the Court pointed to judgment of the SAC 6 As 16/2010 of 30 September 2010
in which the SAC states that

the adoption of the On-Demand Audiovisual Media Services Act is the result of the transposition
of Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007,
amending Council Directive 89/552/EEC, on the coordination of certain provisions laid down
by law, regulation or administrative action in Member States concerning the pursuit of television
broadcasting activities. Directive 2007/65/EC of the European Parliament and of the Council
continues to prohibit covert (surreptitious) audiovisual commercial communications but this ban
should not apply to the so-called authorised product placement if the viewer is sufficiently informed
about the product placement. The cited directive has created a category of admissible audiovisual
communications in the form of product placement within the generally inadmissible surreptitious
advertising audiovisual communications.

As for the applicant’s objection that the consumer was not influenced by advertising, the MC
notes that the provisions of Section 53a(2)c do not require viewer to be influenced by the advertising.
 IX. Commercial Speech 105

c. Assessment of the Case by the Supreme Administrative Court

The Supreme Administrative Court dismissed the broadcaster’s cassation appeal.

The Supreme Administrative Court agreed with the defendant’s and Metropolitan Court’s
assessment. The description of the objectionable scene in the programme unit provided in the
defendant’s decision clearly shows that the placed product Prostenal was given undue prominence
both with optical and acoustic means. The scene also contained general shots of the room with a
visible product pack; there were also shots of an inflatable Santa Claus with a clearly visible pack
and a legible name of the product in the foreground together with the lamp. In the scene, the actor
also uses the lamp to light up the room. Attention is also drawn to the product in the conversation,
referring to its purpose (the solution of difficulties urinating; ‘This is for my brother so that he
does not have to rush to the toilet when he is here’) and the target user group (with the sentence:
‘You know, we men are now at an age when we have to look after ourselves’ said by an older man).
It follows from the above that the product was not depicted ‘naturally’, in a natural environment.
On the contrary, it was the central motif of the scene while Christmas preparations were only
supplementary. The scene lacked any dramaturgical and directorial justification; it was included
in the programme unit beyond the context of the story. Just like the defendant and the Metropo-
litan Court, the Supreme Administrative Court found that the programme unit had given undue
prominence to the product placed, ie, the claimant had committed an administrative infringement
pursuant to Section 53a(2)c of the Broadcasting Act.

d. Commentary

This was the first decision of Czech courts to apply the new legal regulation relating to
product placement. The Council Recommendation Relating to the Application of New
Product Placement Regulation was the only document specifying the relatively general legal
regulation. In this recommendation, the Council articulated what it regarded as the undue
prominence of a product, including in particular:
– unsubstantiated references to a product beyond the context of the story with the aim
of drawing attention to the product and awakening interest in the product in viewers;
– emphasising and highly praising the product qualities;
– unnatural accumulation of occurrence of a single product;
– providing contact details (address, website, telephone number) of the product seller or
service provider;
– emphasizing the product by visual means (product details without any apparent
dramaturgical and directorial justification).
The issue of product placement is related to the issue of covert advertising, which was
also used in the broadcaster’s argumentation. The Supreme Administrative Court (in its
judgment 6 As 16/2010) also applied the provisions on covert advertising in a situation where
it concerned product placement at a time when product placement had yet to be expressly
regulated. Nonetheless, the above judgment differs somewhat, in that it takes no account
of the value base of covert advertising regulation as defined in the judgment 7 As 24/2010.
In this judgment, the SAC explicitly avoided dealing with the issue of whether or not the
106 Comparative Media Law Practice – Czech Republic

message (communication) subject to review could have an advertising effect, justifying its
position by stating that this was not part of the facts of an administrative infringement. Thus,
the information autonomy of the recipient of the message is absolutely disappearing from the
view of the bodies of law application, which, however, raises the question of whether covert
advertising and the undue prominence of a product are at all comparable, in particular with
regard to the degree of their harmful effects on society.
Administrative courts rejected the broadcaster’s arguments as to inappropriacy of the size
of the fine. According to the SAC, the

determination of the fine amount for an administrative infringement is subject to review only with
respect to its adherence to the limits and aspects prescribed by law, its compliance with the rules of
logical inference and with respect to the question of whether the premises of such inference were
established in a due procedural manner (see, eg, judgment 5 Azs 47/2003-48 of 22 January 2004
and, by analogy, judgment 8 As 72/2009-114 of 13 April 2010). The Supreme Administrative Court
did not find that the defendant would not adhere to the described limits when imposing the fine.
The defendant considered all statutory criteria to determine the amount of the fine and described
their evaluation in a logical and comprehensible manner. The content of the administrative file did
not show any procedural errors or defects of the defendant either.

X. Protection of Minors

A. Legal Definition

In the valid legislation, the protection of minors against undesired media content is provided
by two facts of administrative infringements, hence by two provisions regulating the content
of radio and television broadcasting for this purpose.
Pursuant to Section 32(1)g of the BA, a broadcaster must avoid including in the
programme during the period of 6 am to 10 pm any programme units and announcements
which might endanger the physical, mental or moral development of minors; this obligation
shall not apply to broadcasters where broadcasting to the end user is available under a written
contract concluded with a person aged over 18 years, and is accompanied by the provision
of a technical measure which allows that person to restrict minors’ access to broadcasting.
Pursuant to Section 32(1)e of the BA, a broadcaster must not include in the broadcasting
any programme units that may seriously affect the physical, mental or moral development of
minors by, in particular, involving pornography and gross violence as an end itself.
Both the RRTV and the related case-law of administrative courts apply these two
provisions with different frequency. The sanctioning pursuant to Section 32(1)g of the BA is
clearly prevalent while the application of the stricter provisions of Section 32(1)e of the BA is
less frequent and is basically limited to the sanctioning of pornography.
 X. Protection of Minors 107

B. The EU Law

The protection of children and minors against harmful content is also regulated by the EU
law. The regulation has for a long time been concentrated in Directive 89/552/EEC of 3
October 1989, on the coordination of certain provisions laid down by Law, Regulation or
Administrative Action in Member States concerning the pursuit of television broadcasting
activities (Directive on Television without Frontiers). Article 22 of this Directive reads as
follows:

Member States shall take appropriate measures to ensure that television broadcasts by broadcasters
under their jurisdiction do not include programmes which might seriously impair the physical,
mental, or moral development of minors, in particular those that involve pornography or gratuitous
violence. This provision shall extend to other programmes which are likely to impair the physical,
mental, or moral development of minors, except where it is ensured, by selecting the time of the
broadcast or by any technical measure, that minors in the area of transmission will not normally
hear or see such broadcasts.

The current EU regulation is contained in Directive of the European Parliament and

Council 2010/13/EU (Audiovisual Media Services Directive). According to Article 12 of this
Directive,

Member States shall take appropriate measures to ensure that on-demand audiovisual media
services provided by media service providers under their jurisdiction which might seriously impair
the physical, mental or moral development of minors are only made available in such a way as to
ensure that minors will not normally hear or see such on-demand audiovisual media services.

C. Constitutional Basis

The interest in the proper development of minors is generally accepted as a legitimate reason
for limiting freedom of expression (speech) of a radio and television broadcaster and is also
strongly reflected in the legal regulation on the provision of on-demand audiovisual media
services. The explanatory report to the draft law on on-demand audiovisual media services
says minors are a vulnerable group and the protection of vulnerable groups is one of the main
motives behind the adoption of a new legal regulation.
The protection of children and childhood is a value to which society traditional ascribes
extraordinary importance. This fact is constitutionally reflected in Article 32(1) of the Char-
ter under which family and parenthood is protected by the law and that guarantees special
protection of minors. The wording of Article 32(1) of the Charter may be regarded as an
institutional guarantee underlining the importance of family and parenthood for the mo-
dern society.105 The entire Article 32(1) of the Charter creates a legislative framework for ‘a
consistent legal protection of family as one of the key foundation stones of a society.’106

105 J Filip, Vybrané kapitoly ke studiu ústavního práva (Brno, Masarykova univerzita, 2001) 162.
106 K Klíma, Komentář k Ústavě a Listině (Pilsen, Aleš Čeněk, 2006) 865.
108 Comparative Media Law Practice – Czech Republic

The Czech Republic must also yield special protection to minors under international
conventions by which it is bound. A special position is enjoyed by the Convention on the Rights
of the Child. Its Article 17 also mentions mass media and obliges States Parties to encourage:
– the mass media to disseminate information and material of social and cultural benefit
to the child and in accordance with the spirit of Article 29 of the Convention;
– the development of appropriate guidelines for the protection of the child from
information and material injurious to his or her well-being.
A particular regulation targeting television broadcasting is contained in the Convention
on Transfrontier Television where Article 7(2) stipulates that ‘All items of programme
services which are likely to impair the physical, mental or moral development of children and
adolescents shall not be scheduled when, because of the time of transmission and reception,
they are likely to watch them.’
However, despite the undisputable constitutional dimension of the interest in the special
protection of minors (meaning children and adolescents) and despite the existing international
commitments assumed by the Czech Republic, a point that cannot be overlooked is that the
interest in the protection of minors is not a separately protected purpose for which freedom
of expression may be limited under Article 17(4) of the Charter. Accordingly, the question
arises whether and under what circumstances the interest in the protection of minors may be
used as a limit to freedom of expression.
The Supreme Administrative Court thoroughly dealt with the relation between freedom
of expression of a television broadcaster and interest in the protection of minors with respect
to the fines imposed on broadcasters by the RRTV for reality TV shows broadcast at an
inappropriate time of the day. In its judgment 4 As 34/2007 of 30 April 2008, the SAC
formulated a general thesis that in this case, it is

a conflict of two values and legitimate interests protected by the law. On the one hand, it is the
‘freedom of speech and dissemination of ideas or information that is the fundamental human right
at the active level, hence in the dissemination of such ideas and information, and at the passive
level, hence in the right to acquire such information.’ On the other hand, there is the ‘interest
and wellbeing of the child protected by the law represented by the physical, mental and moral
development of the child’s personality, which should not be disturbed by exercising freedom of
speech and dissemination of information within a certain space defined by the law.

The Supreme Administrative Court based its thesis on Article 10 of the ECHR, Article 7(2)
of the European Convention on Transfrontier Television and Article 17(a) of the Convention
on the Rights of the Child. The Supreme Administrative Court sees a national collision of
two protected values and legitimate interests in Article 10(2) of the ECHR, and refers to the
Act on Radio and Television Broadcasting.
Similar arguments may be found in another judgment of the SAC (6 As 70/2007-104
of 15 May 2008) where the Court contrasts the freedom of expression of a television
broadcaster on the one hand with interest in the protection of minors on the other. The
Supreme Administrative Court acknowledges the constitutional dimension of the protection
of minors, referring both to Article 32(1) of the Charter and to the aforementioned sources
of the international law. The Supreme Administrative Court also refers to the Audiovisual
Media Services Directive, the EU Charter of Fundamental Rights (stating in Article 24(1)
 X. Protection of Minors 109

that children shall have the right to such protection and care as is necessary for their well-
being) and judgments of the ECtHR (Handyside107 and Müller108 cases). The Supreme
Administrative Court assessed the clash between freedom of expression on the one hand,
and the right of children to special protection on the other as a collision of two legal interests
of the same level; and it is up to the court to consider the significance of the colliding rights on the
proportionality principle. This consideration had the same result in both cases (and in many
others), ie, priority was given to the interest in the protection of minors.
According to the cited case-law, the interest in the protection of proper development of
minors is a legitimate reason to limit a television broadcaster’s freedom of expression, primarily
with regard to the wording of international conventions by which the Czech Republic
is bound. We can also infer from the cited decision of the SAC that the aforementioned
international documents may be used to bridge the fact that the interest in the protection
of minors is not expressly mentioned in the limitation clause of Article 17(4) of the Charter.
Hence, the SAC is implicitly responsive to the idea of immanent limits to freedom of
expression and admits the possible existence of reasons for the limitation of expression which
are not expressly referred to in Article 17(4) of the Charter at least in the cases that concern
rights and interests that have constitutional support in other parts of the Charter. These
conclusions of the SAC successfully underwent the review of constitutionality and were also
accepted by a part of the doctrine.109
Still, a prudent approach must be taken to such conclusions. Not even the undeniable
intensity of the interest to prove as strong and effective protection of children against undesired
effects as possible, and the importance of this interest for an individual and the society
can bridge the fact that the protection of children was not expressly included among the
legitimate reasons for limiting freedom of expression. Any expansion of the list of reasons in
Article 17(4) of the Charter and acknowledgment of the existence of immanent limitations to
freedom of expression significantly reduces the importance of the very existence of the special
limitation clause. Therefore, Article 31(2) of the Charter cannot be regarded as sufficient
constitutional support for admission of limited freedom of expression for the purpose of
protecting proper development of minors.
Expansion of the reasons for limiting the freedom of expression on the basis of international
conventions binding the Czech Republic is also very disputable. Paradoxically enough,
international conventions on human rights are here used to reduce the achieved (substantive)
standard of the human rights protection in the Czech Republic. In the decisions mentioned
above, the SAC did not fully realize that the provisions of international conventions
applied by the Court were self-enforceable. As such, these provisions do not even enjoy the
application preference to normal laws, because they need the implementation by the national
law in order to be applicable. That means that their statutory effect is reflected in Article 1(2)
of the Constitution under which national courts must prefer such an interpretation of the
national law that will be responsive to the obligations resulting for the Czech Republic from
international law. However, the constitutional order of the Czech Republic represents an
insurmountable limit to this responsiveness.

107 Handyside v UK, App No 5493/72, judgment of 7 December 1976.

108 Müller v Switzerland, App No 10737/84, judgment of 24 May 1998.
109 Šimáčková in J Kroupa, Jiří et al, Mediální právo (Brno, Masarykova univerzita, 2009) 49.
110 Comparative Media Law Practice – Czech Republic

The interest in the protection of proper development of minors may become a legitimate
reason to limit freedom of expression only if a specific limitation may be subordinated to
any of the constitutionally approved reasons to limit freedom of speech. A possible example
would primarily be the protection of morals.110 However, it seems to be disputable if these
measures are related to the rights and freedoms of others. Although one often speaks about
the rights of minors to undisturbed development, it is questionable whether these rights really
have the structure of a right, whether they really are tied to the persons of their bearers who
dispose of such rights and use them at their discretion, etc. It is rather an objective value, ie,
the society-wide interest to protect members of this potentially vulnerable group.
Therefore, the category of morality may be considered not only as moral standards that
are generally accepted by the majority society, but also (if Article 32(1) of the Charter of
Fundamental Rights and Freedoms is considered) in relation to the protection of childhood,
parenthood and family. In other words, one of the moral standards protected by the
Constitution includes the need to protect children as well as the right of parents to decide on
their education and upbringing. Strictly speaking, the protection of parenthood prevents the
shift of decision-making and responsibility for the development of children from parents to
the state, which also applies to the provision of adequate protection of children against such
programmes that are inappropriate with respect to their future development. Therefore, this
protection cannot be fully passed to broadcasters and providers of audiovisual media services.
The thesis that parents should have an option to reasonably rely on the fact that programmes
that could jeopardise the healthy development of their children will not be broadcast at a time
where their child may watch television broadcasting (on his/her own) seems to be adequate.

D. Statistics

Confi rmed Total Confi rmed Reversed total Reversed

17 36 per cent 30 64 per cent

A total of 47 RRTV decisions were reviewed. The broadcaster’s action was dismissed in 25
cases. The dismissing judgment of the Municipal Court in Prague was upheld by the SAC
in seventeen cases. The judgment of the Municipal Court in Prague was cancelled in eight
cases, including five cases cancelling also the contested the RRTV decision. The case was
referred to a further procedure at the Municipal Court in three cases (including one case
where this happened repeatedly). One administrative court judgment was cancelled by the
SAC. None of the cases where the SAC cancelled the judgment of the Municipal Court and
referred it to a further procedure ultimately resulted in the acknowledgement of the RRTV
decision. In one case, the broadcaster did not file a cassation complaint against the judgment
dismissing its action, but the SAC has already dealt with the RRTV’s cassation complaint
before when it cancelled the previous judgment of the Municipal Court which cancelled the
RRTV decision. Hence, this would be a repeated cassation complaint that is not admissible.

110 J Ukrow in O Castendyk, EJ Dommering, A Scheuer, European Media Law (Alphen aan den Rijn, Kluwer
Law International, 2008) 706.
 X. Protection of Minors 111

The Municipal Court in Prague cancelled the RRTV decision in 22 cases. The Council filed
a cassation complaint in two cases and was successful in one case. The Supreme Administrative
Court cancelled the contested Municipal Court judgment, and the Municipal Court dismissed
the broadcaster’s action in the next procedure. The Council did not succeed in one case.
It is also worth mentioning that no cassation intervention has been registered from the part
of the CC which would concern the administrative activities of the defendant. The only
intervention was invoked by a breach of the broadcaster’s right to a fair process from the
part of the SAC and the Municipal Court in Prague. In its judgment I. ÚS 671/13 of 29 July
2013, the CC cancelled both judgments of administrative courts, which ultimately resulted
in the cancellation of the RRTV decision. This was again for procedural reasons.

E. Answers to Research Questions

Although the broadcasters appealed to freedom of expression in some cases when they had
been sanctioned for a breach of the BA provisions whose objective is to protect the proper
development of minors, their arguments were not very successful. The decision of the RRTV
was not cancelled in any of the analysed cases for the reasons that the administrative court
would find that the broadcaster’s freedom of expression guaranteed by the Constitution
would have been infringed by the RRTV decision.
When the broadcasters used the argument of freedom of expression, the administrative
courts admitted on the one hand that the freedom of expression had been affected, but
had by no means found that the freedom of expression would have been infringed. They
always justified any intervention in the freedom of speech by the protection of another value
protected by the Constitution, ie, the protection of proper development of minors.
The public interest in the free flow of information was considered in the SAC’s judgment
11 As 247/2010 of 5 December 2011 that ruled over a sanction for the broadcasting of
disturbing images in the afternoon news programme, Odpolední televizní noviny. Here the
SAC pointed out that ‘This is a news programme that is not primarily intended for children
and minors. Although minors could have watched the programme due to the broadcasting
time, it is not a programme that would normally be attractive for this group of viewers
(compared to fairy tales, adventure or action films, commercials, etc.).’
In its other judgments, the SAC also admitted the relevance of the question whether the sanctioning
decision had affected the broadcasting of content related to the issues of public interest; but in no case
did this value prevail over the interest in the protection of the proper development of minors.
The arguments emphasising the freedom of expression is naturally related to the presence
(absence) of such arguments in the procedural filings of broadcasters. However, the reviewed
case-law makes it impossible to clearly determine the cause and the consequence. However,
having regard to the decision-making practice of administrative courts, it is possible to
formulate a hypothesis that these arguments were not mostly applied because the likeliness
that they would be successful was perceived as negligible.
Even though the interest in the protection of minors is not explicitly expressed as a
constitutionally acceptable limit to freedom of expression and even though it is reflected only
in one particular segment of the media market (radio and television broadcasting), the case
law of administrative courts clearly prefers this interest to freedom of expression.
112 Comparative Media Law Practice – Czech Republic

Furthermore, compared to the other monitored areas, the case-law of administrative

courts lacks an appeal to the RRTV to assess each case individually and consider thoroughly
whether the freedom of expression or the interest in the protection of minors should be
preferred in the given case. It is namely because the interest in the protection of minors is
considered to be a preferred value en bloc.
The reviewed case-law of the SAC thus seems to be very consistent with respect to values.
Consequently, the dominance of the eighth panel of the SAC deciding on the broadcasters’
cassation complaints is worth mentioning. It is because this panel decided on the cassation
complaints filed by CET 21, spol. s r.o.111 during the period under consideration. The eighth
panel issued decisions in 72 per cent of cases, which makes it a clear leader in the decision-
making in this area. Although this hegemony brings a high degree of consistency to the SAC’s
decision-making on the one hand (there has been no reported case of the need to initiate a
procedure before the extended panel of the SAC due to a disagreement on the core of the
issue), this also evokes doubts on the other as to whether it is appropriate that the case-law
development should be in fact determined by a single three-member panel of the SAC. After
the SAC changed its work plan and cancelled the principle of concentrating cases of one
complainant at one and the same panel, the need to resolve this problem was eliminated.112
In the period under consideration, the SAC acted as the supreme authority. There are
no references to the case-law of the CC that has never experienced the need to correct the
decisions of the SAC from the constitutional perspective. At the same time, the SAC does
not work with the case-law of the ECtHR or the EU Court of Justice either. These arguments
were only exceptionally included in the procedural filings of broadcasters, and therefore, it
is considered that the said international or supranational court institutions do not virtually
deal with these issues.
In the area under review, the SAC gave considerable discretion to the RRTV that should
mostly determine in what cases broadcasting content could have endangered the physical,
mental, or moral development of minors. The terms used in Section 32(1)g of the BA are
uncertain and vague. Definition of their specific content depends to a large extent on
the application practice. Procedural rules (the Code of Administrative Procedure) enable
administrative courts to adjust the process of filling the vague terms with content by an
administrative body, which means that it may be the case law of administrative courts that
will ultimately determine in which situations the essential elements of an administrative
infringement pursuant to Section 32(1)g of the BA have been met. Nonetheless, the SAC
consciously gives this discretion to the RRTV, and assumes this discretion only in cases that
it assesses as an excess.
The Supreme Administrative Court assumed this discretion only once during the period
under review when it in its judgment 3 As 12/2011-193 cancelled the judgment issued by
the MC which dismissed the broadcaster’s action against a decision imposing a fine of 1
million koruna for the broadcasting of the afternoon news programme Odpolední televizní
noviny that contained a report on murder. According to the reasoning given by the SAC, the
Court does not question the legal considerations of the RRTV in this case, but it did not
agree with the manner which the RRTV used to describe the given report in its decision to

111 Interview with Rigel.

112 Controlled interview with Rigel.
 X. Protection of Minors 113

impose a fine. ‘The Supreme Administrative Court considers that the description of the facts
contained in the contested administrative decision is not accurate because it significantly
exaggerates certain attributes of the actually broadcast audiovisual programme.’
Certain caution may be traced in the reasons to the judgment of the SAC, or the fact that
it does not intend to intervene in the actual considerations of the RRTV in the future and
only wants to determine the limits of such considerations.

The Supreme Administrative Court is aware that the perception of a broadcast programme will
always remain subjective to some extent, and different evaluators may take a different view to its
content. However, the Court considers that it is appropriate to provide as objective a view of the
programme under assessment as possible; it must be considered with proper distance and without
any emotional load. Any internal disenchantment from the content of the media communication
should not be reflected in the assessment of its form. The content of the report in question, ie, the
crime to which it referred, is definitely horrifying, but that in itself does not mean that the same
attributes may be automatically ascribed to any programme that will report on this crime or whose
content will relate to it.

F. Tendencies and Trends

The reviewed case-law is significantly characterised by the dispute to what extent it is the
responsibility of broadcasters to ensure the protection of children against inappropriate
content and to what extent this objective should be primarily pursued by parents who are
best to assess which programme is suitable for their children and which not. Broadcasters
often argue that although a programme (normally broadcast at evening hours but still in the
protected period) may not be appropriate for small children, their presence around television
screens cannot be anticipated during this broadcasting time. According to the broadcasters’
arguments, the development of teenagers (adolescents) cannot be affected by such
programmes. On the other hand, the RRTV emphasises that it is the broadcasters’ obligation
not to include programmes that could have a negative impact on the proper physical, mental,
or moral development of children in the time period defined by law, and that the essential
elements are met even if only potentiality of such an adverse effect is established. Therefore,
it is not necessary to prove whether or not the proper development of even a single member
of this protected group has been affected.
The case-law of administrative courts (see the Case Studies) categorically backed the
arguments of the RRTV. It works with the doctrine of fragmentary viewing under which
one must count even on incidental presence of a child viewer in front of the screen, and
such a viewer does not watch the programme in its overall context but may be incidentally
affected by any of the broadcast scenes. The case-law of administrative courts also developed
a concept of legitimate expectations of parents that children will not be exposed to the scenes
that could have an adverse impact on their development during the protected time periods.
This rule is applied on subscription channels where parents have an option to block their
children’s access to these channels.
The legal regulation of radio and television broadcasting is thus in a sharp contrast with
the (lack of) regulation of on-demand audiovisual media services and the Internet content as
114 Comparative Media Law Practice – Czech Republic

such. Pursuant to Section 6(3) of the ODAMSA, an on-demand audiovisual media service
provider shall ensure that an on-demand audiovisual media service, the contents of which
might seriously impair the physical, mental or moral development of minors, in particular
by containing pornography and gross gratuitous violence, is made available only in such a
way that ensures that minors will not normally see or hear the content of such an on-demand
audiovisual media service.
The regulation valid for non-linear media services is clearly more liberal than the regulation
of television broadcasting. Under the EU law, it is prohibited to provide such audiovisual
media services where there is a specific risk of serious impairment of the physical, mental,
or moral development of minors. On the other hand, there is a lack of any essential element
of the administrative infringement corresponding to the frequented elements or facts of the
administrative infringement pursuant to Section 32(1)g of the BA which works merely with
a theoretical possibility of impaired development of minors.
There is an important difference between the two mass media segments, ie, in the option of
the provider of non-linear services to avoid the occurrence of the liability for an administrative
infringement if it adopts measures that ensure that that minors will not normally see or hear
the potentially inappropriate service.
The relatively vague formulation used in Section 6(3) of the ODAMSA (in fine) was
specified in 2010 by the RRTV when it issued an explanatory position to this legal provision
under which ‘An on-demand audiovisual media service provider satisfies the obligation laid
down in Section 6(3) of Act No 132/2010 Sb. on On-Demand Audiovisual Media Services
by using a so-called qualified disclaimer that will limit the option that minors could normally
see or hear the harmful content of the provided service.’
The Council regards the so-called qualified disclaimer as a sufficiently effective solution
and a compromise between the traditional disclaimer and a difficult-to-implement version of
other technical equipment. According to the RRTV’s position, a qualified disclaimer must
contain a general notice (on potential harmfulness of the content) in the scheme of the
law and other provisions preventing that minors unwittingly get to the potentially harmful
content, and can normally see or hear it. According to the RRTV, such additional provisions
may include two yes/no buttons; the setting of a filter containing the duty to enter the date
of birth or a filter generating a password sent to an email box.
The required security measures do not include only measures that directly prevent
access of minors to the harmful content, but also measures that at least prevent easy and
unwitting access of small children to such content. This is a fairly realistic approach which
respects the pre-defined rules for availability of information on the internet. If we consider
television broadcasting, it is possible to absolutely exclude a certain type of content (typically
hard pornography) from broadcasting. However, any effort to achieve this objective in the
segment of online media is unfeasible. Therefore, the aim of the legal regulation contained
in the ODAMSA is to at least ensure that the protected group is not exposed to shocking or
harmful content without any previous warning or notice.
It may be concluded that compared to the regulation of television broadcasting, the legal
regulation of on-demand audiovidual media services makes a more straight difference whether
it is really the interest in the proper development of minors that is the subject of protection or
whether it is the protection of public morality in general. Although both categories logically
blend in many aspects, this is a meaningful and also desirable differentiation. The general
 X. Protection of Minors 115

protection of public morality (including the protection against dissemination of pornography)

is then addressed by the criminal law.
According to the SAC,

the essential elements (facts) of the administrative infringement pursuant to Section 32(1)g of the
Broadcasting Act are met by a mere ability of the programmes and trailers in question (that are a potential
bearer of the presentation of harmful behaviour) to impair the physical, mental, or moral development of
minors. The elements of the administrative infringement may be met regardless of the fact whether the
physical, mental, or moral development of a single child was actually impaired. In this case, the elements
of the administrative infringement represent potentiality, not the real impact of the broadcast programme
or trailer on the protected group of children or adolescents. These elements should be understood as
statutory implementation of the state’s obligation to protect children against the potentially harmful and
disturbing effects of mass media communication, which is a form of state interference in the fundamental
rights which is in accordance with the interest of the society as a whole and does not inadequately infringe
the rights of the broadcaster. The administrative authority having the competence to exercise control
over the broadcasting is not obligated to prove the real impairment of the physical, mental, or moral
development of minors, but only to persuasively, rationally, and duly justify why it considers a certain
presented conduct to be subordinate to the elements of an administrative infringement’ (4 As 38/2007).

The case-law of administrative courts is also very consistent in the conclusion that the
protected Section is basically homogenous, and in order to assess whether an administrative
infringement has been committed, it is not decisive when exactly the harmful programme
was broadcast. The broadcasters’ arguments that a difference must be made between children
and adolescents, and that the presence of small children at television screens cannot be
anticipated during evening hours have never held up. The corrective of material harmfulness
of a conduct has become a certain exclusion under which conduct that generally displays the
formal elements of an administrative infringement does not have to be sanctioned if there
are, in extraordinary cases, circumstances reducing harmfulness of the broadcaster’s conduct.
Nonetheless, this corrective has never been applied in practice.

G. Case Studies

i. Broadcasting of the News and Journalistic Programme Střepiny on 15 March 2009 from 9:20 pm

– Broadcaster: CET 21 spol. Section r.o.;

– sanction amount: 200,000 koruna;
– judgment of the Municipal Court in Prague, File No 10 A 55/2010-56 of 1 June 2010;
– judgment of the Supreme Administrative Court, File No 8 As 79/2010-84 of 15 March 2011.

On 15 March 2009 from 9:20 pm, the broadcaster broadcast the Střepiny programme on
TV Nova which contained a report on self-harm showing realistic images of individual self-
harm methods and hurt victims. According to the RRTV, the broadcasting of these scenes
breached Section 32(1)g of the BA, and the RRTV imposed a fine of 200,000 koruna.
116 Comparative Media Law Practice – Czech Republic

The broadcaster filed an administrative action against the RRTV decision, stating, among
other things, that the aim of the report was to draw the public attention to a not very known
problem. The Municipal Court dismissed the action. The Court found that

the scenes described in the decision depict situations where their actors cause major pain to
themselves. The assessment of these scenes as shocking and horrifying is a logical conclusion which
is not getting out of bounds of administrative discretion. The scenes could impair or jeopardise the
mental development of minors. Not even the fact that some of the disputable scenes were filtered
and adapted that no one could see the actor’s face will make any difference. The purpose of the
report could have been accomplished by using a significantly lower number of illustrative scenes. If
the claimant found that the report should contain the given number of illustrative scenes to meet its
dramaturgical plan, it should have broadcast the report after 10 pm.

The claimant filed a cassation complaint against the Municipal Court judgment,
emphasising that even though the essential elements of an administrative infringement could
have been met, the broadcaster’s conduct was not socially harmful in this case; ergo the
substance of the administrative infringement was not fulfilled.
Although the SAC did not question the broadcaster’s arguments, it dismissed the cassation
complaint. It stated that the Court

does not dispute that the purpose of the report was to point to a serious and less known problem in
the society. However, that does not make any difference in the assessment of the broadcast scenes. The
effort to point to the issue of self-harm, including the depiction of its consequences, does not deprive the
broadcaster of its liability for the impairment of the interest in the proper physical, mental and moral
development of children pursuant to Section 32(1)g of the Broadcasting Act. The Supreme Administrative
Court endorses the finding of the defendant and the Municipal Court that the purpose of the report could
have been accomplished by using significantly fewer illustrative scenes and photographs. The method
that the claimant chose to present the issue of self-harm must be described as shocking and disturbing.
Instead of warning and informing on a serious problem in the society, it could have caused a trauma,
and not only to persons from the protected group. The manner in which this topic was presented was
apparently inappropriate with regard to the given goal, broadcasting time, and composition of viewers
who could have been present in front of the TV screen at the time of broadcasting. One can but agree
with the Municipal Court that if the claimant found that the report should contain the given number of
illustrative scenes to meet its dramaturgical plan, it should have broadcast at another time.

In the reasoning to its judgment, the SAC also dealt with homogeneity of the protected group.
It rejected the broadcaster’s objection that the RRTV was inconsistent in its interpretation of the
term ‘children and adolescents (minors)’ when it said on the one hand that the term ‘children’
covered persons under 18 years of age while on the other hand, the RRTV used a separate term
‘minors’ (covering children and adolescents). According to the claimant, there is a difference
between the category of a child and an adolescent in terms of their protection.
The Supreme Administrative Court stated that

the defendant duly dealt with this term, and explained its meaning in the context of the case heard.
The term ‘minors’ means all persons under 18 years of age without any other differentiation. This
 X. Protection of Minors 117

is fully in conformity with laws and regulations. If the defendant uses these terms (children and
adolescents) separately in some parts, it is because of conclusiveness of its justification and due to
the need to react to the claimant’s statements. The defendant concluded that the entire protected
group was endangered by the said report, also pointing to which part of the protected group was
considered to be the most vulnerable one.

ii. Broadcasting of an Episode of CSI Miami

– Broadcaster: CET 21 spol. Section r.o.;

– sanction amount: 150,000 koruna;
– judgment of the Municipal Court in Prague, File No 9 A 74/2013 of 3 July 2013;
– judgment of the Supreme Administrative Court, File No 8 As 85/2013 of 20 October 2014.

The television broadcaster CET 21, spol. s r. o. aired an episode of the criminal series CSI
Miami on TV Nova on 18 September 2012 at 5:30 pm. Th is episode contained scenes
assessed by the RRTV as potentially impairing a child viewer. According to the RRTV,
the episode contained naturalistic explicit scenes of victims of violence and their special
treatment during a crime investigation. Their character was beyond the situations whose
viewing by non-professionals is generally accepted and these scenes were taken out of
context because they presented only a static result of violence isolated from the monstrous
course of violence and the victim’s suffering. Therefore, these scenes could have caused
a mental shock, especially to child viewers, and reduced sensitivity of smaller children
to their perception of violence and could have had a negative impact on their psyche or
encourage their own aggressiveness. The programme’s theme focused on bullying at school
that is topical for a child viewer.
The claimant objected that the scenes that the RRTV had found disturbing had always
been functional and supplemented the storyline. It pointed out that the time between 6 am
and 10 pm should not be mechanically regarded as the time section when no violence or any
other unwanted phenomena should be represented without considering the overall context of
the programme. The broadcaster also pointed to the parental responsibility:

The protection of the public interest cannot absolutely substitute family’s responsibility for the
education of their children. When assessing the potential impairment of the protected public in-
terest with respect to programmes broadcast late in the afternoon, one must assess the potential
negative impact in the sense of the cited legal provision that the programme could have on that
part of the protected group that is in front of TV screens at the given time and that should be there
with regard to responsibility of parents for education of their children. If the defendant claims that
the programme could have had a negative impact on children under 12 years of age, such children
should not be watching a detective story late in the afternoon, ie, from 5:32 pm, with regard to the
family’s regulation duty and without a family’s corrective.

The Municipal Court in Prague did not agree with the broadcaster’s objections and
dismissed the action. Commenting on the purpose and meaning of the protected period, the
Court stated:
118 Comparative Media Law Practice – Czech Republic

The time limit for the broadcasting when such programme presentations are prohibited was
determined because children may appear in front of television screens during this time, and
because such violent scenes could cause a mental shock, and result in emotional numbness in
children. The Court agrees with the defendant, also due to the fact that if such programmes
are watched by small children, it can reduce their sensitivity to the perception of violence,
have a negative impact on their psyche, or encourage their own aggressiveness, and create the
impression that one can get one’s own back for bullying only by using even greater violence.
When the claimant objected as to the statement on the unlawfulness by assessing the merits that
the programme was aired late in the afternoon, and that the provisions of Section 32(1)g cannot
be interpreted and construed that a programme that could impair groups of persons protected by
the law cannot be broadcast in this section of time, and that the protection of the public interest
cannot substitute a family’s responsibility for the education of their children, then the Court
states that the simple wording of Section 32(1)g defines the time section when it is prohibited to
broadcast such programmes regardless of when exactly the programme was broadcast during this
time period. The claimant’s efforts to point to the family’s obligation to adjust watching of such
programmes by minors are therefore absolutely impertinent because it is not realistic in normal
life to ensure permanent parental supervision of what broadcasters include in their programme in
the decisive period, and to be, as a parent, constantly ready to explain violent scenes and adjust
their meaning.

According to the Municipal Court in Prague, ‘the parental expectations that the law
protects these defined groups of persons, ie, minors, against broadcasting of such inappropriate
programmes during the time period defined by the law are absolutely legitimate.’
The broadcaster fi led a cassation complaint against the Municipal Court judgment
which was dismissed by the SAC. In the reasons to its decision, the SAC provided a detailed
statement regarding the temporal aspect and the issue whether it is legally significant when
exactly (within the protected time period) the programme with disturbing content was
broadcast.

In a specific case, the temporal aspect may play a role with respect to the fulfilment of the substantive
part of an administrative infringement. After all, this finding was formulated by the court in its
judgment 8 As 79/2010-84 to which the claimant referred. It should be borne in mind that despite
the broadcasting of a previously assessed programme shortly before 10 pm, the breach of Section
32(1)g of the Broadcasting Act was found in this case with regard to the quality and number of
disputable scenes. In its judgment 7 Ca 336/2008-34, the Municipal Court also stated that the
specific broadcasting time must be considered, ie, whether it was in the morning or early in the
afternoon when parents reasonably expect (even without knowing about the statutory prohibition)
that programmes containing scenes of a certain nature will not be included in the broadcasting. In
the case under assessment, the programme was broadcast from 5:30 pm, ie, late in the afternoon, and
this time is apparently not even close to 10 pm or early morning or morning hours. Therefore, the
Supreme Administrative Court finds that the broadcasting time of the programme under assessment
could not affect the conclusion regarding the fulfilment of the elements of the administrative
infringement in question in the content of the case currently under review (cf judgment 8 As
80/2011-82 of 16 August 2012 or 8 As 111/2011-89).
 X. Protection of Minors 119

iii. Broadcasting of the Film Kajínek on 14 October 2012 from 8:20 pm

– Broadcaster: CET 21 spol. Section r.o.;

– sanction amount: 250,000 koruna;
– judgment of the Municipal Court in Prague, File No 6 A 140/2013-50 of 14 November 2013;
– judgment of the Supreme Administrative Court, File No 8 As 113/2013 of 20 October 2014.

On 14 October 2012, the television broadcaster CET 21 spol. s.r.o. broadcast a feature
film, Kajínek, on the mostly watched television channel TV NOVA. The film was a thriller
inspired by real life of a man who received life sentence for being a hired killer. This case
was in the public gaze in the Czech Republic because various doubts appeared during the
criminal proceedings as to whether Jiří Kajínek actually committed the crime or whether
other persons put the blame on him. These discussions were further intensified by Kajínek’s
escape from a strongly guarded prison and his later capture by the police.
According to the RRTV, this film should not have been broadcast before 10 pm because
it contained frequent and realistic scenes showing persons exposed to severe physical and
mental suffering due to psychological abnormality, sadism, and avarice (torturing by a man,
torturing and raping of a woman, explicit violent scenes) that could cause a mental shock,
especially to child as well as to adolescent viewers whose presence in front of television screens
cannot be ruled out at this time, and they could contribute to their reduced sensitivity to
perception of violence.
In its action, the broadcaster objected that the provisions of Section 32(1)g of the BA
cannot be interpreted in a way that any content that could potentially impair any protected
group should be generally excluded from the protected broadcasting time. According to
the broadcaster, the protected group must be closely defined and the broadcasting time of
the programme should be considered. The claimant expressly argued with the freedom of
expression protected by Article 17 of the Charter of Fundamental Rights and Freedoms
when it pointed out that the interpretation used by the RRTV ‘would result in the fact
that no information on similar negative social phenomena could be provided to the public
such as corruption of politicians, clientelism, etc. before 10 pm, ie, at the time of the main
news programme, because even negative information on other groups who are vested with
powers for the benefit of the society could have a negative impact on the protected group
as claimed in the action.’ According to the broadcaster, such interpretation is in conflict
with the constitutional prohibition of censorship. That means that the claimant brought
the seriousness of the watched issue to the fore whose realistic depiction should not be
sanctioned to protect minor viewers. The other objections of the broadcaster were of a formal
and procedural character.
The Municipal Court in Prague did not agree with the objections of the broadcaster,
pointing out that the film had been broadcast in prime time that

is apparently not close to 10 pm. A major part of the programme was broadcast during the time limit
protected by the law, and individual scenes that resulted in the conclusion about the programme’s
potentiality to impair the development of minors were shown during the first thirty minutes of the film.
The broadcasting time from 8pm or 8:20pm in this case is the prime time when it cannot be assumed
that the target group of protected viewers is not normally present in front of a television screen. Hence,
120 Comparative Media Law Practice – Czech Republic

this programme’s broadcasting time could not have resulted in the finding that the administrative
infringement in question had not been committed in the context of the currently assessed case, ie, the
broadcasting time was a circumstance which the defendant did not forget to consider in its decision.

The Municipal Court in Prague neither agreed with the broadcaster’s arguments pointing
to the artistic value of the film.

As far as the artistic presentation of individual scenes is concerned, it may be noted that if the whole
film is taken into account, an adult viewer will apparently understand that it presents memories of
individual characters, ie, that it is a retrospective explaining what happened before the main topic
of the film. However, there were no other artistic stylisation means in the criticised scenes, perhaps
except the opening scene (that was also sufficiently naturalistic).

The Municipal Court absolutely sided with the arguments of the RRTV using the findings
of the case law of administrative courts under which

the primary purpose of protection as stated in the sited statutory provision is the interest in the
protection of minors. The Municipal Court in Prague (and the judgment mentioned by the defendant
may be emphasised here (judgment 9 Ca 184/2009-44 of 3 February 2010) repeatedly noted that
the so-called fragmentary watching of minors must be considered when assessing a programme, ie,
that minors may appear in front of a television screen when watching a programme at any stage, and
certain programme sequences are so dreadful that it is impossible to rely on a child’s background,
especially if the family and social background of children is considered.

According to the Municipal Court in Prague,

it is also possible to agree with the defendant that the film genre (a crime thriller) did not want to
provide any artistic reflection of socially serious issues (as was also mentioned in the official film
distribution text). It is therefore impossible to conclude that a child (or adolescent) viewer would
have any new historical or artistic knowledge after watching the film or individual scenes which
would enable him/her any extensive reflection of the scenes watched.

The broadcaster filed a cassation complaint against the Municipal Court judgment. In
addition to procedural objections (absence of prior notification of the breach of the law), the
broadcaster maintained its position that it had not breached the duty laid down by Section
32(1)g of the BA and objected that the substance of an administrative infringement had
not been fulfilled because the programme as a whole nor individual scenes were capable of
impairing the development of minors.
The Supreme Administrative Court completely accepted the findings of the Municipal
Court in Prague. In its reasons, the SAC explicitly distinguished this case from the case heard
under File No 8 As 79/2010 where the SAC found that the substance of an administrative
infringement had not been fulfilled. ‘The disturbing scenes in this programme contained
violent images of murders and raping that undoubtedly could, even in context of the entire
story, impair the mental and moral development of minors. That is why the substance of the
administrative infringement had been fulfilled.’
 X. Protection of Minors 121

iv. Broadcasting of an Episode of Californication on 9 March 2010 from 9:30 pm

– Broadcaster: HBO Česká republika, spol. s r.o.;

– sanction amount: 100,000 koruna;
– judgment of the Municipal Court in Prague, File No 5 A 277/2010-39 of 6 April 2012;
– judgment of the Supreme Administrative Court, File No 3 As 64/2012 of 29 May 2013.

The retransmission broadcaster HBO Česká republika, spol. s r.o. broadcast Californication
III (10) Dogtown on the HBO channel that contained ‘open sexual dialogues at the vulgar
level and in the form that can have a negative impact on the mental and moral development
of children,’ according to the RRTV. For this conduct, a penalty of 100,000 koruna was
imposed on the broadcaster for a breach of Section 32(1)g of the BA.
In its action and subsequent cassation complaint, the broadcaster used both formal
objections and an argument that since it operates a ‘subscription channel, parents logically
pay more attention to its content and may effectively control what their children watch.
Furthermore, a clear majority of subscribers could have limited access of minors to the HBO
channel at the time the given programme was broadcast.’
Commenting on this objection, the SAC stated that ‘one can agree with the broadcaster’s
objections to a certain extent, but this does not mean, in the Supreme Administrative
Court’s opinion, that the degree of the broadcasters’ responsibility for breaching the duty
not to include programmes and trailers that could impair the physical, mental, or moral
development of minors between 6 am and 10 pm is not diminished by this fact.’
The above arguments of the SAC complete the stable case-law doctrine under which the
protection of minors in television broadcasting in the protected time limit between 6am and
10pm should be ensured by broadcasters regardless of the possibilities of parents to ensure
that their children do not encounter disturbing content.

v. Broadcasting of Leo Night Show

– Broadcaster: PK 62, a.s.;

– sanction amount: 50,000 koruna;
– judgment of the Municipal Court in Prague, File No 11 Ca 139/2009 of 6 May 2010;
– judgment of the Supreme Administrative Court, File No 5 As 15/2011 of 29 March 2012.

Pursuant to the Act on Radio and Television Broadcasting, another fact of the administrative
infringement that focuses on the proper development of minors sanctions the broadcasting
of such programmes the watching of which impairs a minor viewer to such an extent that
the broadcasting of such programmes is absolutely prohibited. Pursuant to Section 32(1)
e of the BA, a broadcaster must not include in the broadcasting any programme units that
may seriously affect the physical, mental, or moral development of minors by, in particular,
involving pornography and gross violence as an end itself. Under Section 60(3)c of the BA,
any breach of this obligation is an administrative infringement for which a broadcaster may
face a fine between 20,000 and 10 million koruna.
Compared to the facts of an administrative infringement defined in Section 32(1)g of the
BA, the programmes above must seriously impair or aff ect the development of minors, and
122 Comparative Media Law Practice – Czech Republic

the law defines a typical manner of fulfilling these facts: The broadcasting of a programme
involving pornography and gross violence as an end itself. Jörg Ukrow states that the EU
regulation assumes that the broadcasting of pornography may always impair the development
of minors and the capability of seriously impairing the development of minors in each
individual case need not be proved.113
The practical application of these facts of an administrative infringement by the RRTV is
inadequately less frequent than the application of the facts under Section 32(1)g of the BA.
The last case involves a judgment of the Municipal Court in Prague (11 Ca 139/2009-76) of
6 May 2010 which cancelled the decision of the RRTV imposing a fine on the broadcaster
of a paid television programme, LEO TV, for broadcasting the programme LEO Night
Live, which ‘could have impaired the physical, mental and especially moral development of
children because they could have watched pornography’ (judgment of the Municipal Court
in Prague 11 Ca 139/2009). The broadcaster’s objections mostly referred to the issues in what
manner the settled case law of administrative court pursuant to Section 32(1)g of the BA can
be applied to these facts of an administrative infringement.
The Municipal Court in Prague accepted the objection that the finding on the fulfilment
of the facts of an administrative infringement pursuant to Section 32(1)e of the BA did not by
itself justify the conclusion that this was a breach of a broadcaster’s obligation is a particularly
material manner which justifies the imposition of a fine without the broadcaster being notified
of the breach of the law in advance. On the contrary, the Municipal Court in Prague did not
agree with the claimant’s position that objected that the RRTV abused the administrative
discretion when it considered only the issue whether the programme broadcast ‘could have
resulted in serious impairment of the development of minors’ without discovering whether
this consequence could have actually occurred. The Municipal Court in Prague found that
even with respect to these facts of an administrative infringement, it is ‘at the administrative
body’s discretion to assess whether or not the facts have been fulfilled and in what constitutes
the serious impairment with respect to specific conduct in this programme.’ As far as the
fulfilment of the term ‘pornography’ is concerned, the Municipal Court in Prague referred to
a resolution issued by the CC that gave a very general definition of pornography. According to
the Municipal Court in Prague, it cannot be ruled out that an administrative body acquires a
professional assessment as to whether the term pornography has been fulfilled:

This will happen at least in cases when a programme containing sexual issues does not contain
violence, humiliation, sex with minors, etc. at the same time. The Court finds that in these cases
where presentation of sexual behaviour is accompanied with violence, humiliation, or presentation
of sex with children, it is the discretion of the administrative body to assess whether or not this is
pornography. In other cases presenting sexual behaviour of adults and lacking the above elements,
it is appropriate to support considerations whether or not this is pornography by an expert opinion
of a sexologist because such cases may be assessed absolutely subjectively, also with regard to the
aforementioned definitions of this term expressed by the Constitutional Court. In the view of the
Court, when the broadcast programme did not contain the said elements in this case, it would be
appropriate to have an expert assessment of its content to make a clear conclusion whether it was
pornography or ‘merely’ an erotic programme.

113 Castendyk, Dommering, Scheuer, European Media Law (n 110) 708.

 X. Protection of Minors 123

The cited issue brings up a question of what is pornography within the meaning of Section
32(1)e of the BA and in what manner one should assess whether or not the scenes broadcast
by the broadcaster were pornography. The position of the Municipal Court in Prague may
be summarised as follows: It is necessary to use the understanding of the term ‘pornography’
by general laws and regulations (especially in the criminal law). While in extreme (qualified)
cases, the RRTV may assess this issue on its own, in other cases (apparently forming a major
part with respect to quantity), it is appropriate to invite a court expert. Hence, it seems that
the relation between an exception and a rule is the opposite compared to the facts pursuant
to Section 32(1)g of the BA. According to the settled case law of administrative courts,
the RRTV is basically entitled to assess these issues on its own and an expert opinion is
appropriate only in marginal cases.
From the perspective of the society-wide morality, publicly available pornography is
regarded as an unwanted phenomenon which must be resisted by the society. Dissemination
of pornography is currently a criminal offence and if it is child pornography its possession is
also sanctioned.
Pursuant to Section 191(1) of the Criminal Code, whoever produces, imports, exports,
smuggles, offers, or makes publicly available, circulates, sells, or provides for another in any
other manner photographic, film, computer, electronic, or another piece of pornography
demonstrating violence or disrespect to a human being or describing, showing or representing
a sexual intercourse with an animal in any other manner commits a criminal offence; and
pursuant to Section 191(2) of the Criminal Code, it is also a crime to offer (solicit), yield, or
provide access to a work of pornography to a child, or to exhibit or make a pornography work
available in a place that is accessible to children. Pursuant to Section 192 of the Criminal
Code, any management of child pornography starting with its production, over possession to
dissemination is prosecutable.
With regard to the protection against pornography, the issue of what pornography is and
why the society resists it is often raised. A work of pornography may be regarded as a work
that exceptionally intensively and intrusively incites the sexual instinct, and at the same time
goes beyond the recognised moral standards of the respective society, thus causing shame in
the majority of its members.114 According to a resolution of the CC (IV. ÚS 606/03) of 19
April 2004, the CC finds it constitutionally conformant that the actual term ‘pornography’
is not defined directly by the law but by the following case-law, and that the criminal
prosecution of dissemination of pornography is a legitimate method to protect the public
morality. The Constitutional Court also expressed its conviction that a work is pornography
‘if it offends the sense for sexual decency in a hardly acceptable manner.’ The Constitutional
Court concluded that ‘a test of the pornography nature of a work that should be applied by
a general court consists in the assessment whether or not the overall impression from the
work causes moral indignation to a person with normal feelings. If this perspective is taken,
potential expert opinions on the “artistic character” of a work or its “enlightenment and
socially beneficial nature” are indecisive for an assessment made by the general court.’
There are principally two reasons for the society’s protection against pornography. The
first group of arguments works with social morality while the other refers to rights and

114 Supreme Court judgment 7 Tdo 1077/2004 of 28 December 2004.

124 Comparative Media Law Practice – Czech Republic

interests of specific individuals affected by the pornographic industry.115 Both groups of

arguments lead to a conclusion that any communication containing pornography is not
only a matter of voluntary participation of both parties to the communication process, and
that there are sufficiently strong reasons to interfere with the freedom of the voluntarily
communicating parties (ie, the disseminator and recipient of pornography). The degree and
manners of regulating access to pornography differ by the specific reason that dominates in
the given argumentation.

XI. Right of Reply

A. Legal Nature of the Right of Reply

The right of reply enables natural and legal persons to seek gratuitous publication of a reaction
to the statements published in the press or broadcasting subject to the fulfilment of statutory
requirements, and to use the publisher’s means to disseminate information against the publisher’s
will. The right of reply consists in the option of a person mentioned in the press or broadcasting
to publish a reaction to the original statement subject to the fulfilment of statutory requirements
at the publisher’s expense. This is a private-law statute even though the Czech Press Act and the
BA primarily contain legal standards of a public-law nature. The legislatively technical solution
adopted by the legislator cannot change anything on the private-law character of the right of
reply. After all, it is also interesting to note that a proposal was voiced during the discussion of
the government bill that the right of reply be included in the Civil Code.116
Similarly to a corrigendum or an action for the protection of personal rights, the right of
reply is a tool that may be used by an individual to defend against mass media interference
in reputation, personal dignity or privacy. This is how Vladimír Plecitý understands the right
of reply who considers it to be a possible remedial measure ‘that is available to the person
affected in case of any intrusion on his/her general personal right committed by the press
or radio and television broadcasting.’117 Marta Rahim characterises the right of reply as a
‘specific press-related legal title sui generis of a non-financial character that may be asserted
via a civil court.’118 Ján Drgonec stresses the sanction element when he says: ‘The right of
reply is a legal statute of a sanction character; it is a reaction to a fault; a consequence of an
unlawful publication of a claim determined by the law.’119
However, in addition to the effective protection of rights of the person affected, the right of
reply contributes to plurality and credibility of information regarding issues of public interest
in the periodical press or broadcasting. That is why the right of reply is sometimes examined
in the context of the right of media access.120 The right of reply contains the entitlement of
the person affected to publish own statement free of charge and the corresponding obligation

115 Bartoň, Svoboda (n 64) 208.

116 Cf, presentation of MP Ivan Langer during the first reading of the draft Press Act held on 7 July 1999.
117 K Knap et al, Ochrana osobnosti podle občanského práva (Prague, Linde, 2004) 356.
118 M Rahim, ‘Německé tiskové právo – stručný přehled institutu odpovědi’ Právní rozhledy 6 (1999) 340.
119 J Drgonec, ‘Povinne uverejňované prejavy v masmediách a právo mlčať’ Justičná revue 10 (2008) 1317.
120 E Barendt, Freedom of Speech (Oxford, Oxford University Press, 2007) 425; or R Moon, ‘Freedom of
Expression and Property Rights’ 52 Saskatchewan Law Review (1988) 253.
 XI. Right of Reply 125

of the publisher to publish this statement subject to the fulfilment of statutory requirements.
If the publisher fails to perform its obligation voluntarily, the person affected may seek such
publication in court.
Despite the apparent similarity of the right of reply and the civil-law means for the
protection of personal rights, the specifics of this statute must be seen, as it supplements
the legal forms of remedies available to the person affected. Such person is often in the
position of a weaker party compared to the publisher who has a privileged position resulting
from the widely understood freedom of the press. Compared to the remedies offered to the
person affected for the protection of personal rights by the Civil Code, the right of reply has
a different mode of application. Unlike entitlements arising from the Civil Code (including
the entitlement to satisfaction, whether non-monetary or monetary compensation) that are
asserted by the person affected in court which should decide whether or not the right to the
protection of personal rights was infringed, the right of reply should be primarily exercised
at the publisher. If the publisher does not publish the reply, the person affected may seek his/
her right in court. If this is the case, the dispute does not concern the fact whether or not
personal rights of the person affected were infringed by the original statement, but the fact
whether the right of reply was established and whether the person affected asserted the right
of reply in accordance with the law.
We can track the historical roots of the right of reply in France in the nineteenth century.
The current form of the right of reply was established in 1881. The French concept of the right
of reply is fairly wide. It is possible to reply both to claims and value judgments affecting the
aggrieved person in any manner. For the right of reply to be established, it is sufficient if the
person affected is mentioned.121 The issue of truthfulness of original claims is not relevant. In
this form, the right of reply may also be asserted in case of artistic criticism, reviews, etc. The
French model of the right of reply is not primarily a tool to protect personal rights against
untrue accusations, but the right to express one’s opinion on any information on one’s own
person through the press.122
A slightly different model was developed in Germany. The most apparent limitation is the
restriction of the right of reply to claims. This excludes a reply to value judgments, including
criticism. Another restriction involves a requirement that the person seeking the publication
of a reply should be directly affected by the statement, not only mentioned.123 However, not
even in the Federal Republic of Germany, the right of reply is reduced to a simple tool for
the protection of personal rights, but is understood in a wider context as the right based on
the general right of an individual to self-determination.124 The applicable regulation is based
on the audiatur et altera pars principle in order to ensure equality of weapons and the same
publication effect of the original statement and the reply.125

121 J Hayes, ‘The Right to Reply: A Conflict of Fundamental Rights’ 37(4) Columbia Journal of Law and Social
Problems 573 (2004).
122 M Krivic and S Zatler, Freedom of Press and Personal Rights (Ljubljanja, The Peace Institute, 2000) 17–18.
123 ibid, 19.
124 Rahim, ‘Německé tiskové právo’ (n 118) 340.
125 P Wüllrich, Das Persönichkeitsrecht des Einzelnen im Internet (Jena, Jenaer Wissenschaftliche
Verlagsgesellschaft mbH, 2006) 157.
126 Comparative Media Law Practice – Czech Republic

B. The Right of Reply in International Context

In European countries, the right of reply may currently be considered as an integral part of
the media law. Documents on international and EU law also contain frequent attempts to
introduce at least a minimum standard. The first of these documents was the Resolution of
the Committee of Ministers to Member States of the Council of Europe (74) 26 of 2 July
1974. The Committee of Ministers of the Council of Europe recommended to member states
to adopt a legal regulation that would enable persons affected by statements published in the
newspapers, radio, or television to gratuitously publish their own opinion on the published
statement under equal terms. The right of reply, or a similar legal statute, is also assumed
in the European Convention on Transfrontier Television126 whose Article 8 imposes an
obligation on member states to adopt a legal regulation providing the persons affected with
the right of reply or a similar comparable instrument of protection.
For television broadcasting, Directive 89/552/EEC as amended by Directive 97/36/EC
was of crucial importance as it guaranteed the right of reply at the European level. The Czech
Republic implemented this directive in its national law in the Press Act of 2000127 which also
amended the BA. Under this directive, any natural or legal person whose legitimate rights,
in particular dignity or reputation, have been infringed by the publication of untrue facts
on a television programme, has the right to the publication of a reply or any similar remedy.
The United States of America took a much more half-hearted approach to the right of reply
than the EU. In 1974, the US Supreme Court repealed a law of the State of Florida which
imposed an obligation on a publisher to publish a reply.128 The main reasons included an
intrusion in the editing powers of the publisher consisting in the right to decide on content.
The space given to a publisher is not unlimited, which is why it is impossible to request that
the publisher publishes someone else’s content to the detriment of its own content. Compared
to broadcasting, the argument of a limited frequency spectrum which justifies a different
approach to radio and television broadcasting cannot be used.129

C. Constitutional Aspects of the Right of Reply

The majority of European countries protect the right of reply by a simple law. The right of reply
means an obligation of the publisher (or broadcaster) to publish a statement of the person affected
at the publisher’s (broadcaster’s) own expense. The establishment of the obligation to publish a
reply thus restricts freedom of the press, because the publisher must reserve a part of its funds to
someone else’s content, which intrudes upon its right to decide on the content of the published
title. That is why it is important to deal with the constitutional conformity of the right of reply.
For the statute of the right of reply to hold from the constitutional perspective, it must satisfy the
conditions imposed on any restriction of the freedom of expression or the freedom of the press.

126 In the Czech Republic, it is published under No 57/2004 Sb.m.s.

127 Act No 46/2000 Sb.
128 HeraldPublig Co. v Tornillo, 418 US 241 (1974).
129 The US Supreme Court admitted the right of reply, though in a limited version, in broadcasting, see Red
Lion Broadcasting Co. v FCC, 395 US 367 (1969).
 XI. Right of Reply 127

In the decision Ediciones Tiempo Section A v Spain,130 the then European Commission
for Human Rights dealt with the conformity of the statute of the right of reply with the
provisions of Article 10 of the ECHR. The Spanish magazine publisher believed its freedom
of expression protected by Article 10 of the Convention had been affected by the decision of
Spanish courts imposing a duty to publish a reply of a manager, Mr Garcia. The publisher
claimed its freedom of expression had been infringed because it had been forced to publish
information (ie, Garcia’s reply) of which it had known that it was untrue. The European
Commission for Human Rights noted that the purpose of the right of reply was to enable
everyone to defend his or her honour and dignity against certain allegations published in the
mass media. The Commission also characterised the right of reply as a guarantee of plurality
of information that must be respected in a democratic society. The publisher’s freedom of
expression was not affected because nothing inhibited the publisher’s possibility to dissociate
itself from the reply. The European Commission for Human Rights also noted that Article
10 of the Convention could not have been breached even by a summary proceeding that
preceded the issuance of the decision which examined whether the reply fulfilled formal
requirements, not whether the original claim or the reply were true. With respect to this
objection, the Commission replied to the claimant that a reply’s effectiveness depends on its
immediate publication, which is why the issue of its truthfulness could not be examined in
detail prior to the publication of the reply.
The European Court of Human Rights also dealt with a dispute between the publisher of
the Paris Match magazine and survivors of a French police prefect who had been shot dead
in Corsica.131 The weekly published photographs of a bloodied and mutilated body of the
prefect. The survivors sought withdrawal of all magazines that took over the photographs
from circulation. Instead, a national court of the first instance imposed a duty on the
publisher to publish an announcement stating that the photograph of prefect Erignac’s body
had caused serious anxiety in Ms Erignac and her children. An appellate court subsequently
reformulated this announcement and imposed a duty on the publisher to publish an
announcement stating, among other things, that the photograph had been taken without
the family’s consent and that the family believed that any such publication represented an
intrusion on their private life.
By a decision of five to two votes, the ECtHR stated that Article 10 of the Convention had
not been breached in this specific case. The European Court of Human Rights sought a fair
balance between two values protected by the Convention, ie, freedom of the press and the
protection of privacy.132 The Court found the sanction imposed on the publisher important
because sanctions which would ultimately subdue the debate on issues of public interest (the
‘chilling effect’) should be avoided. The European Court of Human Rights appreciated the
diligence that the French courts devoted to the adequacy of the sanction, in particular to the
changed formulation of the announcement by the appellate court. According to the majority
of panel members, the solution adopted by national courts was reasonable. On the contrary,
dissenting Judges Loucaides and Vajicová emphasised in their positions the risk of subdued
public discussion and loss of interest of the press in important and controversial issues. Judge

130 Ediciones Tiempo v Spain, App No 13010/87, decision of 12 July 1989.

131 Hachette Filipacchi v France, App No 71111/01, judgment of 14 June 2007.
132 [43] et seq of the cited decision.
128 Comparative Media Law Practice – Czech Republic

Louciades stressed that the publication of the announcement represented acknowledgement

of a mistake by the publisher while Judge Vajicová emphasised the risk of overburdening press
with apologies and announcements, and the related reduced space for the actual editorial work.
The European Court of Human Rights used similar arguments in another decision in
the Karsai case.133 The Court stated that Article 10 of the Convention had been breached by
Hungarian courts that imposed a duty on the claimant, a Hungarian historian, to publish
a reply of his opponent. The European Court of Human Rights noted there was no doubt
about an intrusion on the complainant’s freedom of expression because he had been obligated
to publish, at his own expense, a reply of a person whose personal dignity was affected in the
claims. Since this case was an issue of public interest at that time, the ECtHR regarded the
decisions of Hungarian courts as an unreasonable intrusion on the open debate on issues of
society-wide importance and found that Article 10 of the Convention had been breached.
The arguments raised in these decisions of the bodies of the European mechanism of
human rights protection reveal certain principal differences in the views of the right of reply
as such. We can use the audiatur et altera pars principle of the existing and indisputable
influence of the mass communication media on the public opinion and the persisting
monopoly of institutionalised media to the access of the mass communication media. In this
case, we will regard the right of reply as a remedy breaking through the ownership right of
a press publisher or broadcaster by using the mass communication means controlled by the
publisher / broadcaster against its will (or independently of this will) to disseminate third-
party content.
The other option is that the right of reply is considered to be a statute having a liability
character. If a press infringement is committed in the press publication or broadcasting, a
special liability statute is activated next to the general civil-law means of protection, and
the person affected may seek the publication of a reply on the basis of the original unlawful
conduct of the publisher.
These concepts are apparently different in many material elements.134 There will be a
difference both in the constitutional view of the conflict of the fundamental rights that the
right of reply embodies from the very beginning, and in the specific legal practice. When
assessing the impact of the Karsai decision, one should primarily bear in mind that the
obligation to publish a reply was imposed on a person who published his statements in the
press, but who does not control this press. If everyone who publishes a statement affecting
honour or reputation of another is the addressee of the right of reply, it is basically a different
regulation compared to the regulations where the addressees of the right of reply include solely
mass media providers. The findings of foreign courts as well as the findings of the ECtHR on
international legal regulations must then be taken with certain prudence and circumspection.
The concept of the right of reply assuming mass media providers as the only addressees
strongly emphasises the element of plurality of information135 in addition to the protection
of personal rights, as well as the public interest that the media publish information coming

133 Karsai v Hungary, App No 5380/07, judgment of 1 December 2009.

134 These differences are much deeper than the frequently mentioned difference between the German and the
French models where a crucial difference is seen in whether it is admissible to reply also to value judgments or
whether the right of reply was exclusively limited to claims.
135 See the Federal Constitutional Court in its decision BVerGE 125 (1998), cited according to Barendt,
Freedom of Speech (n 120) 426–27.
 XI. Right of Reply 129

from different sources.136 Freedom of the press (which the publisher claims) is here given as a
collision value against freedom of expression of the replying person.
If a person who is outside the institutionalised mass media137 can also be the addressee
of the right of reply, the connection of the right of reply with the right to the protection of
personal rights is emphasised. To put it simply, we may say that in this case, the right of reply
is a specific entitlement arising from the breach of the right to the protection of personal
rights. The sanction perception of this instrument is then close to this concept.138
Any prejudice to freedom of the press means a violation of the publisher’s editing authority.
Its character is therefore materially different from the imposition of the obligation to publish
an apology or to pay a monetary satisfaction for non-property harm caused in a dispute for
the protection of personal rights. Compared to the right to a press correction, which means
the publisher’s obligation to publish a correction of untrue statements on the person affected,
this is less intensive prejudice to freedom of the press because the establishment of the right
of reply does not ipso iure mean any fault of the publisher.139 The publication of a reply may
be understood as a description of reality from the view of the person affected.
The constitutional criteria for the creation of the right of reply should therefore be more
moderate than in case of claims resulting from the Civil Code provisions on the protection
of personal rights. In this respect, the principle of subsidiarity and proportionality of the state
intrusion in the debate on issues of public interest must be mentioned, which was formulated
in the judgment of the CC, I. ÚS 367/03 of 15 March 2005. The Constitutional Court
found it important that after the publication of an article by Jan Rejžek, Helena Vondráčková
was given space to express her position in an interview, and the provision of this space was
regarded as sufficient to eliminate the adverse consequences of this specific infringement of
personal rights.
Hence, it must be concluded that from the constitutional perspective, the relation between
the right of reply and the right to the protection of personal rights pursuant to Section 11 et
seq of the Civil Code does not mean that in case of any infringement of rights, the person
affected may choose one of the equal means, because not each statement that gives the rise to
the right of reply must necessarily be an unlawful infringement that must be defended with
an action for the protection of personal rights. Therefore, it can be presumed that the right
of reply may often be the more moderate (and hence reasonable) intrusion on freedom of the
press that can achieve the pursued goal. Availability of a less radical intrusion of the state on
the public debate may in certain cases justify denial of protection by more resolute means, ie,
instruments provided by the Civil Code (de lege lata), because such means may be considered
as unreasonable. Although the cited CC judgment did not deal directly with the statute of
the right of reply, the principles of subsidiarity and proportionality of the state intrusion on
the debate on issues of public interest, it is crucial to consider the guidance for the resolution
of the collision between freedom of expression and the right to personal dignity, reputation
and human dignity as early as at the level of a procedure before courts of general jurisdiction.

136 See the above-cited decision of the European Commission of Human Rights, Ediciones Tiempo v Spain (n
130).
137 As in the case Karsai v Hungary (n 133).
138 Drgonec, ‘Povinne uverejňované prejavy’ (n 119) 1317.
139 F Fechner (ed), Medienrecht (11th edn, Tübingen, Mohr Siebeck, 2006) 97.
130 Comparative Media Law Practice – Czech Republic

D. Legal Provisions

The applicable law regulates the statute of the right of reply in two laws. These are the Press
Act governing the periodical press (Act No 46/2000 Sb., the Press Act, as amended) and
the BA governing radio and television broadcasting (Act No 231/2001 Sb., on Radio and
Television Broadcasting, as amended).
Section 35(1) of the BA stipulates that: If any announcement containing any factual
information affecting the honour, dignity, or privacy of a natural person, or the good name
or reputation of any legal person was made public in radio or television broadcasting, then
such a natural person or legal person shall have the right to request that a reply be broadcast
by the radio or television broadcaster. The radio or television broadcaster shall broadcast such
a reply upon such a natural or legal person’s request.
The reply shall be limited to a factual assertion by which any assertion referred to in
Paragraph 1 above is rectified or by which any incomplete or otherwise distorting assertion
is complemented or put more precisely. The reply shall be adequate to the extent of the
announcement concerned; if the reply only applies to a part of such an announcement, the
reply shall be adequate to the extent of such a part. The reply shall also indicate by whom the
reply is made.
The application for the publication of a reply must be in writing. The application must clearly
state in what respect the claim contained in the published statement affects honour, dignity
or privacy of an individual, or good name or reputation of a legal person. The application
must also contain a proposed wording of the reply. The application must be delivered to the
broadcaster no later than thirty days from the date on which the contested statement was
published in radio or television broadcasting, or else the right to the publication of a reply
ceases to exist.
The broadcaster must publish the reply in the same programme in which the contested
statement was published, and, if this is not possible, in the same valuable broadcasting time
and in a manner so that the form of the new statement is equal and adequate to the contested
statement. The broadcaster must publish the reply or an additional statement within eight
days from the date on which it received the application for the publication of the reply.
If the broadcaster fails to publish the reply at all, or if it fails to adhere to the conditions
for the publication of a reply, the obligation to publish the reply will be imposed by a court
on application by the person that requested this publication. The application must be filed
in court within fifteen days from the date on which the time limit determined for the
publication of the reply expires, or else the right to seek the publication of a reply or an
additional statement in court ceases to exist.
The broadcaster is not obligated to publish a reply if the publication of the proposed text
constitutes a criminal offence or an administrative infringement, or if it is in conflict with
good morals, or if the contested statement or its contested part is a citation of a third person
intended for the public, or its true interpretation and was marked or presented as such.
The creation of the right of reply is initially conditioned with the publication of a statement
containing the claim affecting honour, dignity, or privacy of a certain individual or the
name or reputation of a certain legal entity. Hence, the legislator supported the German
modification enabling one to seek the right of reply only in case of claims. In addition,
such claims must affect honour, dignity, or privacy of an individual, or the good name or
 XI. Right of Reply 131

reputation of a legal entity. Only a verbal statement may be replied, according to the CC. The
publication of a photograph does not create the right of reply.140
When assessing the condition that a statement affects honour of an individual, the SC
applies the same criteria as to the assessment of the rightfulness of an infringement of the
right to the protection of personal rights.141 The Supreme Court held a similar position in
its judgment 30 Cdo 2711/2006 of 31 January 2007 when it noted that a press statement
(although inaccurate and simplifying) regarding the business cooperation of the marked
persons could not be in the given case regarded as a statement affecting honour or dignity
that would justify the request for a reply. If the affected person is given space to express
his/her opinion in the actual article where he/she dispels untrue claims, the purpose of the
reply is fulfilled and the right to a reply is not created.142 It may be inferred from the said
SC decisions that even in a dispute for the publication of a reply, it is necessary to examine
whether the original statement is true, and whether it is capable of adversely affecting the
personal sphere of the person affected that it justifies prejudice to freedom of expression.

E. Statistics

Confi rmed Total Confi rmed Reversed total Reversed

5 100 per cent 0 0 per cent

The statistics expresses the percentage at which the SC as a court dealing with appellate reviews
upheld the decision of the appellate court. During the reported period, the SC was deciding in five
cases of appellate reviews in a procedure concerning the action to impose an obligation to publish
a reply. In three cases, the claimant sought the publication of a reply in television broadcasting,
and in two cases, the reply concerned the periodical press. Since the regulation contained in the
Press Act is identical with the regulation in the BA, and since the SC case-law did not infer any
differences between the two regulations, all cases may be analysed without the need to make a
difference whether the reply should be published in the press or in the broadcasting.
In three cases, the defendant (always a broadcaster) appealed against the decision of an appellate
court that satisfied the action for publication of a reply (or upheld the judgment of the court of
the first instance that satisfied the action). None of these appeals was successful—one appeal was
dismissed, one was rejected, and one was partly dismissed and partly rejected (see the case studies).
The appellate review was lodged by the claimant in two cases (ie, the person seeking the
publication of a reply in an action). Not even these appellate reviews were successful—one
was dismissed, and one was partly dismissed and partly rejected.
This means that the SC accepted the contested decision of the High Court in Prague in
all cases. In three cases, its decision imposed an obligation on the television broadcaster to
publish a reply, and two cases were dismissing decisions, ie, approving the procedure of the
broadcaster (or the publisher of the periodical press) not to publish the reply.

140 Supreme Court decision of 19 February 2002, File No 28 Cdo 169/2002.

141 The Supreme Court said so for the first time in its judgment 30 Cdo 861/2005 of 25 May 2006.
142 Supreme Court Resolution 30 Cdo 996/2007 of 30 April 2007.
132 Comparative Media Law Practice – Czech Republic

F. Answers to Research Questions

The arguments of the SC are predetermined by the objections raised in the appellate review
because the SC is bound by its scope and reasons in its decision-making. In one case, the
SC was settling solely formal objections or the formal prerequisites for publishing a reply.
In other cases, objections also concerned the assessment of the issue of fact of whether a
statement creating the right of reply of the person affected was published.
Arguments with the fundamental rights (whether it is freedom of expression or another
fundamental right) were used rather marginally and had a more or less declarative character.
The Supreme Court decides on the majority of cases through a prism of the sub-constitutional
right (specifically pursuant to the Press Act, the BA, or the Civil Code).
All of the analysed decisions of the SC show that it predominantly works with its own
case-law to which it frequently refers. The Supreme Court also cites the decisions of the
CC, but such citations rather reflect the general constitutional foundations for the position
of the periodical press, or the collision between freedom of expression and the right to the
protection of personal honour or privacy of the person affected.
There are no references to the case-law of the ECtHR even though they could be relevant.
The EU law is applied only marginally (it must be emphasised that no relevant decisions of
the EU Court of Justice are known) and even incorrectly when the Court refers to Directive
89/552/EEC in connection with the assertion of the right of reply in the periodical press
even though the publication of the periodical press is not in the scope of the EU law at all.
The reference to the recommendations contained in Resolution (74) 26 of the Committee of
Ministers of the Council of Europe on the right of reply adopted on 2 July 1974 (judgment
of the SC 30 Cdo 2348/2012 of 21 December 2012) is apt on the other hand.
Outwardly, the SC case-law seems to be internally consistent. However, it must be said
that it is very hard to identify any stronger tendencies and trends with regard to the number
of decisions and their content. The actual legal argumentation of the SC is mostly very brief;
there are no arguments regarding human rights or are merely of a declarative character in the
form of general standpoints that are not related to specific facts of the case heard. There is a
clear difference in the argumentation consistency compared to the decisions of the SAC that
are analysed in other parts of this study. Even though the SC refers to the findings of the CC,
there is not even a sign of the proportionality test in individual cases in order to assess which
of the colliding rights should be preferred. The Supreme Court deals with this collision solely
using the means of the sub-constitutional law.
It is also worth mentioning that as a result of the work plan of the SC, all cases were heard
by the thirtieth panel of the Court in the identical personnel composition (Pavel Pavlík, Pavel
Vrcha, and Lubomír Ptáček). This agenda concentration reduces the risk of inconsistency of
the SC case-law, but also a bit preserves the case-law development, which is a bit treacherous
in the sensitive agenda such as the collision of freedom of expression and personal rights of
the persons affected.
 XI. Right of Reply 133

G. Case Studies

i. Supreme Court Judgment 30 Cdo 4403/2009 of 26 October 2011

– Reply in the periodical press;

– procedure on claimant’s appellate review;
– the SC partly dismissed and partly rejected the appellate review.

The claimant (an individual not having a status of a person of public interest) sought the
publication of a reply in reaction to a statement published in the tabloid daily Šíp. The article
dealt with a private-law dispute on the use of a cooperative flat, and the claimant (although
identified only with initials in the article) felt affected by the manner he was described in
the article. In addition to the publication of a reply, the claimant sought monetary damage.
A court of the first instance dismissed the action in that part in which the claimant sought
the publication of a reply while it partly satisfied the action for monetary damage (awarding
the claimant 200,000 out of the 2 million koruna required). The court justified its verdict
dismissing the action for the publication of a reply by stating that the proposed wording of
the reply had not contained a statement dispelling and correcting the original claim published
in the periodical press.
The High Court in Prague which decided on the appeal submitted by both parties to the
proceedings upheld the judgment of the court of the first instance as to the dismissal of the
action for the publication of a reply. The High Court in Prague completely agreed with the
arguments of the court of the first instance. As for the award of the damage, it changed the
original judgment, and dismissed the action in the full extent.
The claimant submitted an appellate review against the judgment of the appellate court.
As for the part seeking the publication of a reply, the claimant argued that

the content of the proposed reply was equal to what was contained in the article in question, and
was adequate to the contested statement within the meaning of Section 13(1)a of the Press Act.
If Sections 10 and 13 of the Press Act state that the affected person has the right of reply after
publication of information harming this person in the press, the claimant’s reply proposal was
capable of contributing to an apology that was precisely specified. Courts should have moderated
the content of the reply if they were not convinced that monetary compensation should be awarded
with regard to the non-proprietary damage caused.

The Supreme Court did not agree with this argumentation and rejected the appellate review
in this part because the claimant had not raised any issue of a material legal status.
In the reasoning of its decision, the SC basically paraphrased the text of the relevant
provisions of the Press Act:

Among other things, the court dealing with the appellate review points to the principle under
which if the periodical press publishes a statement containing a claim affecting honour, dignity, or
privacy of a certain individual, or the good name or reputation of a certain legal entity, this entity
has the right to seek the publication of a reply from the publisher. The publisher must publish
the reply upon this person’s request (Section 10(1) of the Press Act). The reply must contain only
134 Comparative Media Law Practice – Czech Republic

the claims correcting the statements under the previous provision or supplementing or specifying
an incomplete or distorting statement. The reply must be adequate to the extent of the contested
statement and only if a part is contested, then to this part. The person making the reply must also
be apparent from the reply (Section 10(2) of the Press Act).

The Court subsequently referred to the EU law (though a bit inappropriately because the
EU law does not regulate the publication of the periodical press):

The right of reply currently embedded in the Press Act was implemented in our laws in accordance
with the requirements arising from Article 23 of Directive 89/552/EHS as amended by Directive
97/36/ES. It also respects the recommendations contained in Resolution (74) 26 of the Committee
of Ministers of the Council of Europe on the right of reply adopted on 2 July 1974. The statute
of the right of reply assumes subjectively felt damage to honour, dignity or reputation of the
person affected. The assessment of the justness of the application for the publication of a reply
sets increased demands both on the publisher and on the potential decision-making by the state.
The right to seek the publication of a reply under the Press Act presupposes that: (a) a statement
containing a claim affecting honour, dignity or privacy of a certain natural person or a good name
or reputation of a certain legal person was published in the periodical press; (b) the requested
reply is limited only to the claims correcting and dispelling the statement under the previous
provision or supplementing or specifying an incomplete or distorting statement; (c) the reply must
be adequate to the extent of the contested statement or only to its part if only a part is contested;
(d) it must be apparent from the reply who makes it. (Evidence maintained.)

The Supreme Court concluded that the appellate court considered the above principles
and thus issued a correct decision. For completeness’ sake, the claimant’s appellate review was
not found reasonable even in the part seeking compensation for non-proprietary loss (here it
was dismissed for inadmissibility).

ii. Supreme Court Judgment 30 Cdo 130/2010 of 30 November 2011

– Reply in television broadcasting;

– procedure on defendant’s appellate review;
– the SC partly dismissed and partly rejected the appellate review.

In this action, the City of Ostrava was seeking the publication of a reply on the Czech
Television programme Reportéři ČT that aired a report on the implementation of development
projects in the City of Ostrava. In its proposed reply, the claimant reacted to the claims
broadcast in the programme under which the city had allegedly sold land to a selected investor
without any tender procedure and allowed construction of hypermarkets in the city and the
fate of the locality had been examined both by the police and the courts.
The court of the first instance dismissed the action in full. The court inferred that

the proposed reply is formulated in a manner that it is not a reply of the claimant, but a reply to
the claimant, and this fact as such makes it impossible to satisfy the action because it is at variance
 XI. Right of Reply 135

with Section 35 of the Act. The action was also dismissed because the requested text of the reply
that should have been sent to the defendant did not state clearly which programme was the subject
matter of the dispute. And if this was mentioned in the proposed statement of the judgment, it was
different from the previously requested reply, as well as the reply contains passages stating ‘the said
statement is not true’, and not even this was mentioned in the request for a reply. The Court did not
find it tried that the tender procedure would be announced by a Council resolution in 2005, and
it also considered the fact that the text of the requested reply is five times longer than the contested
part of the broadcast programme. By comparing the extent of the broadcast allegations and the
extent of the proposed reply, the Court inferred this reply was unreasonable and pointed out that
the proposed reply confirmed that commercial buildings should cover more than 36 per cent of K.,
and that a large part of the reply does not correspond to the contested information.

The claimant lodged an appeal against the judgment of the court of the first instance.
This appeal was partly satisfied and the appellate court ordered that Czech Television should
broadcast the claimant’s reply. The appellate court emphasised that the claimant’s reply was
formally consistent with the statutory requirements.

iii. Supreme Court Judgment 30 Cdo 520/2011 of 26 April 2012

– Reply in television broadcasting;

– procedure on defendant’s appellate review;
– the SC dismissed the appellate review.

The defendant (television broadcaster) published a report in its news programme in which
the claimant, a former ski jumping representative and current MP, was branded as a military
secret service agent under the Communist regime. The claimant sought the publication of
a reply in which he resisted this allegation and denied any collaboration with the military
secret service.
The court of the first instance dismissed the action. In the evidence procedure, the court
found that although the respective file of the military secret service was chaotic, the claimant
had been registered as a confidant, and the claimant did not even deny that after his trips
abroad, he had provided discrediting information about emigrants. According to the court
of the first instance, the defendant bore the burden of proof when it had proved truthfulness
of the statements in the report.
The appellate court changed the judgment of the court of the first instance, and imposed a
duty on the defendant to publish a reply in the proposed version. The appellate court found that

the disputed report published a statement on the claimant containing claims affecting his honour and
dignity whose truthfulness was not proved in the procedure. This regarded especially the dramatic
description of the content of the file maintained by the military secret service for the claimant’s
name where he was registered as a confidant with a cover name ‘P’. However, the report did not
distinctly mention that the so-called confidants had not been engaged in conscious collaboration.
In this respect, the Court referred to the judgment of the Constitutional Court of the Czech and
Slovak Federative Republic of 26 November 1992, File No Pl. ÚS 1/92. The report was distorting
136 Comparative Media Law Practice – Czech Republic

because it mentioned ‘discrediting information’ provided by the claimant without stating any
specific context. The file that was repeatedly shown on the screen did not contain any confidential
or discrediting information except for the description of accommodation of sportsmen, restaurants,
interpreters, and other persons catering for sportsmen at significant competitions. According to the
appellate court, this very distortion of the file content and its materials was unjustified, and must
be remedied through the publication of the reply proposed by the claimant. The appellate court
added that the file did not contain any discrediting statements, and it had not been proved that
the information on the emigrants mentioned in the file had been provided by the claimant because
it had been obtained from a wide array of persons that could not be specifically identified. Such
information was not even significant from the perspective of that time because it was rather a ‘social
gossip’, and had no value for intelligence service, and it could even be available in the normal daily
press published in the years 1984–1986.

The broadcaster submitted an appellate review against the appellate court’s decision,
referring to freedom of expression guaranteed by the Constitution. The broadcaster objected
that it ‘is authorised to inform the public about socially significant events such as collaboration
of an MP with the Communist secret service.’
The Supreme Court dismissed the appellate review. In its reasoning, the Court stated that

according to the contested decision, the appellate court factually based its decision on the principles
laid down by Section 35 et seq of the Broadcasting Act and clearly, even though briefly, explained
the reasons for its decision. This primarily regards the conclusion that the disputed report had
published a statement on the claimant containing claims affecting his honour and dignity, and this
report was distorting when it referred to ‘discrediting information’ provided by the claimant but did
not specify such information, and furthermore, the file maintained by the military secret service did
not contain any discrediting information at all. In the light of this, the Court finds this was clearly
an unjustified infringement, and it should be remedied through the publication of a reply proposed
by the claimant.

H. Tendencies and Trends

The cited decisions of the SC clearly show that the Court’s decision-making practice resulted
in a certain shift compared to the German model. The basic difference is in the assessment
of the fulfilment of the terms and conditions under which the right of reply is created. The
Supreme Court consistently applies the same criteria acquired for the assessment of disputes
for the protection of personal rights. It uses the arguments from the CC case-law on the
protection of personal rights and its own case-law. This eliminated the difference between the
creation of the right of reply and instruments for the protection of personal rights provided
by the Civil Code. The Supreme Court interprets the statutory condition of the creation of
the right of reply consisting in the publication of a statement affecting personal honour in
the same manner as the right for the protection of personal honour against unauthorised
interference. With its decisions, the SC implicitly widened the prerequisites for the creation
of the right of reply with another reason, ie, qualified untruthfulness of original statements
which means that it is so intensive that it justifies interference in freedom of expression by
 XI. Right of Reply 137

expressing unlawfulness of such execution of freedom of expression including reasonable

sanctions.143
The obligation to publish a reply is thus reduced to the sanction imposed on a publisher
for an administrative infringement described in the Press Act. The actual duration of the
procedure imposing the duty to publish a reply may be regarded as disputable because
it is adversely affected by the scope of the evidence procedure. Considering the case-law
mentioned above, it is also necessary to deal with the issue whether the published statements
were true. This reduces the effectiveness of the reply, and diminishes the difference between
the right of reply and the right for the protection of personal rights.

143 Fechner, Medienrecht (n 139) 97.

 Slovakia

Andrej Školkay, Ľuboš Kukliš, Ondrej Jurišta

 I. Introduction

This is the first analytical report on how administrative judiciary-administrative law senates of
the Supreme Court of Slovakia (SC), the regional courts (RC) and partly the Constitutional
Court (CC) deal with regulatory challenges related to various, content-based types of
administrative-legal sanctions issued by the electronic / digital media regulator Rada pre
vysielanie a retransmisiu (Council for Broadcasting and Retransmission, RVR) in Slovakia.
As far as we know, there is no such study available at local or international level. Yet, as this
study documents, these are actually rather challenging regulatory issues which usually take
years to come to conclusions or final verdicts. Sure, one can find many studies on electronic
media law and regulation, however, those studies mostly use civic or criminal law regulatory-
judicial examples, but rarely concentrate on more systematic or in-depth approach, and even
less often focus on administrative law content related aspects. Moreover, it is hard to find
full texts of controversial broadcast items—yet sometimes either media regulators or courts,
or both legal and normative assessors can in fact be wrong in their assessment of media /
journalistic professionalism. Therefore, in some cases, we included full transcript of the most
arguable or the most interesting news and current affairs in broadcasting. For similar reasons,
we have included extensive, although simplified transcripts of courts’ verdicts. Furthermore,
it is difficult to find international comparative studies of this type; there are some studies
covering telecommunications and similar fields,1 but studies produced both by lawyers and
non-lawyers are uncommon, while non-lawyers bring additional analytical perspective and
curiosity resulting from missing background in law.
We focused on the regulatory areas of human dignity, balanced coverage, commercial
communication, hate speech, right of reply, and protection of minors. Surprisingly, we did
not find any RVR, RC, or SC case that would deal directly with hate speech. Furthermore,
as a result of legislation, right of reply is out of scope of administrative senates. Nevertheless,
we included this regulatory area into our study for its importance as well as for comparative
reasons. It should be mentioned here that there are three areas in which Slovak regulation
goes significantly beyond the scope of the Audiovisual Media Services Directive (AVMSD)
of the European Union: regulation of objectivity and internal pluralism in broadcasting,
protection of minors, and protection of human dignity. Especially objectivity in news and
current affairs problems has become a key issue for the RVR as judiciary often returned
contradictory verdicts in this regard. Numerically, though, the majority of those sanctions
deals with commercial communications.
We have been interested in finding the key normative and legal values motivating judges
(or rather administrative law senates) in their regulatory rulings (usually in connection with
appeals of broadcasters against decision of the RVR or lower regional courts) on broadcast
(and maybe soon online media) regulatory issues, however, appeals or RVR’s rulings of
technical nature, eg, not awarding licence or ones related to transfer of ownership were out
of our scope. Of course, by definition, fundamental rights are actually competing rights.
Thus, can we identify freedom of speech or other basic human rights (eg, personality rights or

1 See, eg, P Larouche and X Taton, Enforcement and Judicial Review of Decisions of National Regulatory
Authorities. Identification of Best Practices. A CERRE Study. Brussels (21 April 2011), https://pure.uvt.nl/portal/
files/1375355/Larouche_Enforcement_and_judicial_review__111208_publ.
142 Comparative Media Law Practice – Slovakia

human dignity) as a key driving force behind rulings either the RVR or administrative courts?
If preference was given to fundamental human values other than freedom of speech, which
were these? What does ‘balanced coverage’ actually mean for the RVR on the one hand, and
for the courts on the other? What kind of moral and legal justification was used for a given
legal-normative preference? Have there actually been value-based conflicts between courts
and the regulator?
Another interesting question is that of the consistency of the rulings. Do courts refer
in their rulings to their previous ones, especially when there are two or three different
specialised senates? Were various senates/courts consistent in their rulings? This may seem
to be a useless research question, but in fact, it will be shown that various senates of the SC,
even the same senate of the SC, have been inconsistent in their rulings. Which international
legal sources have been used to support these rulings and verdicts, eg, European Court
of Human Rights (ECtHR), or also possibly Court of Justice of the EU (CJEU)? Which
international legal sources were not used to support these rulings and verdicts and why?
Have there been any common trait in rulings/verdicts? Could these traits be seen as long-
term, or rather short-term ones? If there are no similarities, why not? Is there any known,
important difference in key principles of media regulation in comparison with other EU
Member States, especially within V-4 (Visegrad Group)? Which principles mentioned above
bring the biggest regulatory challenges? Is the regulation of the electronic/digital media too
complicated, demanding or strict to broadcasters, or is it OK, comparatively speaking? Do
broadcasters complain, either officially or off the record, with respect to principles of media
regulation? Can their complaints be seen as legitimate in some areas? What else could help
in improving the current state of affairs? How could we characterise the cooperation between
the staff (office) and the Board of the media regulator? Does the regulatory Board of the RVR
accept all regulatory suggestions by the staff (office)? If not, in which area can one notice the
biggest or most important divergences? Which arguments of the office count usually? What
is the role of the professional, ideological, and education backgrounds of the members of the
RVR—does it have any impact on how they see imposing a regulation? Is there any foreign
impact or inspiration, either from the European Platform of Regulatory Agencies (EPRA)
or from other bodies? Do we see any areas of administrative law procedures which could be
improved? How? How can we characterise or assess direct or indirect intervention of the
Parliament and the Ministry of Finance or other external bodies in the work of the media
regulator? Do broadcasters complain, either officially or off the record, with respect to the
professional competences or work of board members? Have the appeals of the broadcasters
against sanctions usually been well-argued? Is there any external professional or civic
informal, at least ad hoc, supervision or criticism of the work of the RVR? If yes, how could
we evaluate it, eg, commentaries in the media, reports by NGOs)?
How professionally competent is judiciary seen in general, and in this area of administrative
law in particular? Have argumentation used in the SC rulings been persuasive enough?
Which cases are seen as the most difficult ones to decide for the judiciary? Is there any
long-term, value-based difference / tendency between various levels of courts? Indeed, it
seems that the CC in Slovakia shows long-term, more liberal values, following the ECtHR
rulings. Is there any platform at which the courts and the regulator could discuss issues of
common interest? What is the annual percentage of accepted/rejected rulings focused at
content broadcast, issued by the media regulator, in the years 2010–2014? Can we see any
 II. The Legal-Judicial System 143

areas of judiciary work which could be improved? If yes, how? What else could help improve
the current state of affairs?
Of course, some questions above may be too ambitious to be answered in this research,
nevertheless, they show how interesting and important this type of research can be. We
focused our analysis primarily on the period between 2010 (or back to 2007, if there were
not enough cases) and 2014. It is a problem that many regulatory and court cases actually
last a few years until the final verdict is issued, therefore, it was impossible to follow strict
differentiation with respect to the time span. Finally, this report is certainly imperfect; yet
there is a hope that it will serve as a starting point for a more refined research in the future
in this increasingly important regulatory area. This follow-up research is needed, indeed. As
the expert Slavomíra Salajová put it: ‘Only the staff of the RVR is able to follow consistently
all changing or developing regulatory issues.’2

II. The Legal-Judicial System

The Slovak legal system is based on the Roman civil law, with the historical influence of the
Austrian and Hungarian tradition of law. The major feature of civil law systems is that the laws
are organized into systematic written codes. Legislation is thus categorised by what is known
as ‘legal force’. Legal force refers to the properties of legal norms, one piece of legislation being
subordinate to another (ie, one with greater legal force) or derived from one having greater
legal force. In a situation involving legal norms with different legal force, the weaker norm
may not contradict the stronger one, and the latter may override the former one. In terms
of the levels of legal force, legislation may be hierarchically arranged as follows: Primary
legislation of the EU constitutional laws (always primary) and laws (primary or derived from
constitutional laws). Secondary legislation (also referred to as subordinate legislation) includes
government regulations—always secondary, legal norms of central government bodies—
always secondary, legal norms of bodies of self-governing units (authorities)—primary or
secondary, and finally, legal norms issued in exceptional circumstances by authorities other
than government bodies—always secondary.3 The country’s judicial branch consists of
‘standard’ courts (district-county courts, eight regional courts, and the SC), the CC, and
the Specialized Criminal (Penal) Court. At present, there is an ongoing, slow process of
emerging case law in Slovakia. This means that there is some presence of the application of
a system of precedents, at least in the decision-making of the SC and especially of the CC,
however, judges are officially independent. There is an explicit duty for general courts to take
the relevant case law of the ECtHR into account in their decision-making. This duty has
been re-affirmed in Finding IV. ÚS 107/2010 of the CC.
The role of the SC is significant as the most important arbiter in broadcast media regulatory
issues and, to an extent, libel / defamation cases. The Supreme Court is also important as
the final arbiter in the event of lower courts pass contradictory rulings, or rulings contrary to
earlier relevant case law. However, it is more an issue of accident than of a deliberate process
of seeking a unified framework for the relevant case law at the SC. This is despite the fact

2 At Bratislava Media and Protection of Minors Seminar, 10 December 2015.

3 https://e-justice.europa.eu/content_member_state_law-6-sk-en.do?member=1.
144 Comparative Media Law Practice – Slovakia

that in connection with the verdicts related to the RVR, the SC has a database which would
allow to check rulings of the last few years. The Supreme Court is obliged by law to balance
the quality of various rulings of lower courts. Therefore, it is surprising and, in fact, worrying
that sometimes even Senates of the SC do not respect each other’s rulings on regulatory
issues. More importantly, Senates of the SC do not explain their ignorance of other Senates’
rulings. It is also the case when an almost identical decision in a particular matter is available.
In fact, there have been several cases in which various Senates of the SC ruled differently
on almost identical media regulatory issues (8 Sžo 112/2010 and 3 Sžo 200/2010; 6 Sžo
55/2010 and 6 Sžo 112/2010; 3 Sž 15/2008 and 5 Sž 20/2010; 2Sž8 2010 and 3 Sž 6/2010; 3
Sž 18/2010 and 2 Sž 10/2010; 3 Sž 1/2010 and 8Sž2/2010), and at least in one case the same
Senate of the SC decided differently at different times on virtually the same regulatory issue.
Some of the above-mentioned inconsistencies can be explained by drawbacks in legislation
(eg, the lack of a transitional period between two acts), or by different demands of the
plaintiff (the courts take into account only the merit of the action in court, and there is no
consensus as to whether the courts should deal with issues ex officio). As expressed by the then
Chairperson of the Administrative Collegium of the SC Ida Hanzelová,

the issue of regulation of electronic media through the RVR decisions and court judgments is
relatively new and develops rapidly, thus different views on the part of these authorities on the
interpretation of certain terms can be expected. Inconsistent and ambiguous legislation has led to
particular difficulties for the RVR decision-making process and the courts, which raises the need
for partial interpretations of gradually evolving views and solutions. Although desirable, conditions
have not existed recently for such specialization of judges.

The Chairperson also offered a written explanation on the differences found in some of
the above-mentioned, seemingly contradictory rulings. However, the RVR offered its own
analysis of all three cases explained by the Senate of the SC and it argued that in general:

The Supreme Court statement focused on irrelevant differences in legal substance which do not in
themselves justify a different legal approach under current legislation. Should the Supreme Court
deem those differences to be of such significance to alter their ruling based on them, it would seem
necessary to provide guidance to the regulator on how to proceed in future administrative proce-
dures.4

The Constitutional Court stated that although the legal verdicts of general courts do not
have the status of precedence which would be binding on other judges to decide similar cases
identically, nevertheless, such contradictory conclusions in similar cases do not contribute to
the fulfilment of the main principle of legal certainty, nor works towards trust in a just court
process (Finding of the CC, 4 January 2007, III US 300/06; see also Finding of the CC 14
September 2006, No IV. US 49/06). Thus in Slovakia, relevant case law is not a source of
the law, but it is de facto binding. Direct legally binding effects are acknowledged only in the
findings of the CC.

4 A Školkay, M Hong, R Kutaš, ‘Does Media Policy Promote Media Freedom and Independence? The Case
of Slovakia’ Case Study Report (2012) 16–17, http://www.mediadem.eliamep.gr/findings/.
 II. The Legal-Judicial System 145

In general, deciding complaint on breaking the fundamental right to court’s protection,

the CC examines only compatibility of impacts of interpretations and applications of
legal documents with the Constitution (‘zlučiteľnosti účinkov interpretácie a aplikácie
zákonných predpisov s ústavou’) or the European Convention on Human Rights (ECHR).
The Constitutional Court especially focuses on whether conclusions of general courts are
sufficiently justified, or they are not arbitrary or without any logic (svojvoľné) with direct
impact on some of fundamental rights and freedoms (I. ÚS 19/02; I. ÚS 27/04; I. ÚS
74/05). The Constitutional Court decides on the conformity of laws, government regulations
issued by the Government and generally binding legal regulations issued by ministries and
other central bodies of state administration, territorial self-administration bodies, and lo-
cal state administration bodies with the Constitution, laws, and other generally binding
legal regulations, as well as on the compatibility of generally binding legal regulations with
international treaties promulgated in a manner established for the promulgation of laws.
The Constitutional Court also decides on complaints filed against legally valid decisions
of central or local state administration bodies, and territorial self-administration bodies
violating fundamental rights and liberties of citizens, unless decisions on the protection of
these rights and liberties are within the jurisdiction of another court. The Constitutional
Court provides an interpretation of the Constitution and constitutional laws in disputed
matters. It also has some other exclusive rights. The Constitutional Court is not part of the
general court system, thus cannot be seen as being institutionally the direct superior body
to the general lower court system. However, the CC can intervene in the decision-making
of the general judicial system if general courts contravene the basic rights and freedoms of
individuals as guaranteed by the Constitution, or international treaties on human rights and
fundamental freedoms, international treaties whose execution does not require a law, and
international treaties which directly establish rights or obligations of natural or legal persons
and which have been ratified and promulgated in a manner laid down by law (Article 7(5) of
the Constitution).
The Constitutional Court as a national court is obliged to apply international treaties
guaranteeing human rights and fundamental freedoms as well. This can be the case if, eg,
general courts do not maintain the principles of an orderly and just legal process, or if they
make decisions in ‘extreme contradiction to fact-findings or with the principles of justice or in
an arbitrary way’ (Finding of the CC I. ÚS 155/07 of 3 December 2008, Article 27). In such
cases, general courts are obliged by Article 56(6) of the Act on the Constitutional Court to
respect (and implement) the legal opinion of it. Due to ‘arbitrariness’, the CC cancelled 149
general court rulings (including many RC rulings and some SC rulings) in 2009 and 2010.
However, from time to time, a fundamental legal disagreement (or actually disobedience on
the part of the RC) was noted between the RC and the CC in one of the most controversial
cases on protection of personality with respect to the amount of reimbursement of non-
pecuniary damages.
In December 2011, the RC in Bratislava ignored a legally binding recommendation of the
CC from June 2011 (I. ÚS 408/2010), in which the CC considered the amount of 33,000
euros awarded for non-pecuniary damages to the former Minister of Justice (in 2011, the
Chairperson of the SC), Štefan Harabin, firstly by the lower court (19 C 139/2005), later
confirmed by the RC (6 Co 392/2007) as inappropriately high. It should be noted here
that the CC accepted that a public apology to Harabin on the part of the publisher was
146 Comparative Media Law Practice – Slovakia

legitimate. This case was also interesting from the point of view that Harabin objected to all
members of the previously originally selected Senate of the RC, and partially succeeded in
these objections (see SC 5 Nc 25/2008, 3 Nc 30/2008). We will discuss below a similar case
of formal attitude of the SC in regulatory matter. The Constitutional Court attempts to apply
constantly and consistently the most well-known findings and rulings of the ECtHR. The
impact of the ECtHR is more important for the liberal decision-making of the CC than any
other factor. However, the CC is also not fully consistent in its overall rulings and findings.
The Constitutional Court (but also sometimes general courts) produces partially unstable,
imbalanced, and arbitrary case law. It should be highlighted among findings of this study as
well as of previous study5 that the CC as well as the SC finds inspiration in the rulings and
decisions of Czech courts, due to their common history and linguistic similarity, especially
regarding the CC of the Czech Republic and Municipal Court of Prague.
The ECHR is a potential source of law with potential superiority over the law of Slovakia
if it guarantees a higher (broader) scope of freedom of speech, right to information, or other
basic rights. As mentioned, there is an explicit legal duty of general civic courts (interestingly,
not criminal courts) to take into account the relevant case law of the ECtHR in their decision-
making. This duty has been re-affirmed in Finding IV. ÚS 107/2010 of the CC. It should be
noted that in Slovakia, the ECHR has priority to the law but it is not above the Constitution.
It is true that the regional higher courts usually consider the case law of the ECtHR, but
sometimes their interpretation can be erroneous (for instance on the issue of the right to
privacy of politicians). In summary, the courts in Slovakia play an ambiguous role in issues
related (not only) to confirming or reversing the decisions of the broadcast media regulator.
Fortunately, at least the last internal resort—the CC—is progressive and follows the ECtHR
rulings, although there are occasional but fundamental problems with inconsistencies among
its various Senates’ rulings. This unique position of the CC has been recognised in recent
years by local lawyers. This is evidenced not only in the above analysis, but also in the
increased number of complaints the CC has received in recent years. The ECtHR has had a
relatively low but growing significance for media freedom in Slovakia.6
The general public and many legal experts share a critical view of the Slovak judiciary: The
quality and speed of decision-making by courts or judges is seen as unsatisfactory. For example,
the Chair of the SC Senate, Judge Darina Ličková summarized the well-known problems of
the Slovak judiciary including the courts’ decision-making delay (priet’ahy), the low quality
of judges and their rulings, the low quality execution of the post-court agenda, and the low
quality of administrative staff.7 As the then Head of the Department of the Civil Law of the
Ministry of Justice Marek Števček put it, ‘Today, when you find a lawyer, he would tell you even
before the court proceeding that the final result very much depends on which judge will decide
and at which court the case will be decided.’8 Serious concern about the quality of judges and
their rulings is rooted in the fact that only about 45 per cent of verdicts by lower courts were
confirmed by higher appellate courts in 2011–2012.9 The Supreme Court accepted twenty-

5 ibid, 17–18.
6 ibid.
7 D Ličková, ‘Zlá vymáhateľnosť práva na súdoch’ Pravda (20 February 2013).
8 In V Vavrová, ‘Niektorým sudcom bude treba vymeniť hlavy’ Pravda (19 December 2014) 4.
9 http://www.otvorenesudy.sk/hearings/search; Statistical Yearbooks of the Ministry of Justice, 2011, 2012.
 II. The Legal-Judicial System 147

three out of twenty-five extraordinary appeals by prosecutor general (92 per cent) in 2014.
In the case of extraordinary appeals submitted by the prosecutor general in 2013, the rate of
success was so far 83.5 per cent (Prosecutor General, Annual Report for 2014).
The first problem related to the narrow application of justice seems to be related to the
low importance given to education in ethics and logical reasoning of lawyers. This can be
seen in the importance given to these topics in the education of lawyers in the example of
Comenius University Faculty of Law.10 Law theory is usually taught in the first-year class.
For them, obligatory-facultative topics which include philosophy, sociology, legal theory, and
logic are included among a dozen of facultative subjects such as the history of law of the
Empire of Incas. Ethics and law is also among facultative topics for second-year law students.
One can understand the logic behind this approach—the higher level of study, the more
specialised study, which is correct, of course. However, perhaps the most crucial aspect—
logical thinking about justice in broader social and philosophical terms—slowly disappears
from the last years of study of law.
Radoslav Procházka finds deeper social causes of this unsatisfactory state of affairs not
only in the quality of the education of judges, but also in the process of their selection, the
official and unofficial rules governing their career, and what he calls the ‘autism of the Slovak
judiciary’.11 By this he means a ‘closed system’, namely a structure that is not open to external
or internal criticism, with a negative impact on the ethics of the profession.12 Since then, some
changes have been introduced which should lead to better selection of the aspirant judges.
There is a telling story to illustrate the problem of education of lawyers in Slovakia. The Czech
Constitutional Court has decided in  I. ÚS 110/14 (March 2014) that it is legal when the
Czech Chamber of Advocates rejects the application (ie, not even to evaluate it further) from a
lawyer who studied law at the Paneuropean University (previously Bratislava College of Law)
in Bratislava. The case started in 2010, and the University was established in 2004. In other
words, these were among the first graduates. It was interesting to read in the judgment that
the law graduates from this university had been accepted initially into the Czech Chamber
of Advocates by an administrative mistake. The Czech Chamber of Advocates defended its
decision based on the low quality of graduates from the Paneuropean University.
The second problem related to narrow execution of justice is related to the issue of general
attitude of perhaps majority of judges to justice as created by their peers. By this we mean fear
to pursue justice regardless of possible consequences, the capacity to ignore client networks
in judiciary and corruption offers or abuse of power.13 The low level of public trust in the

10 http://www.flaw.uniba.sk/fi leadmin/user_upload/editors/Pravnicka_fakulta/Studium/Studijny_program/
PRV.14_15.pdf.
11 R Procházka, ‘Autizmus slovenskej justície’ Výzvy slovenského súdnictva a možnosti zlepšenia existujúceho
stavu. Seminar Bulletin (Bratislava, Transparency International Slovensko, 2010) 18.
12 See, J Dubovcová, ‘Umožňuje súčasny stav súdnictva zneužívanie disciplinárneho konania voči sudcom,
zneužívanie výberovych konaní a dáva výkonnej moci oprávnenie zasiahnuť do súdnej moci?’ Výzvy slovenského
súdnictva (n 11).
13 See, Ľ Kostelanský, ‘Sudcovia si navzájom prisudzujú vysoké odškodné’ Pravda (6 February 2010); Ľ
Kostelanský, ‘Rozhodnutia súdu sa kupujú’ Hospodárske noviny (2 July 2012) 4; E Mihočková, ‘Šikanovanie v ta-
lári’ (12 December 2011) http://plus7dni.pluska.sk/plus7dni/vsimli-sme-si/sikanovanie-vtalari.html; Z Wienk,
‘In Case You Buy the State? NB: Courts, Prosecutors and Politics Included in the Price’ (21 April 2011) http://
slovakmatters.blogspot.sk/2011_04_01_archive.html; M Leško, ‘Najvyšší súd: vôľa nevidieť Trend 22 (26 July
2012) 30–31.
148 Comparative Media Law Practice – Slovakia

Slovak judicial system has been relatively consistent during the past few years, and confirmed
by various surveys. For example, according to the Special Eurobarometer 374, 60 per cent
of Slovaks exhibits distrust towards the judiciary, which is well above the EU average of 32
per cent.14 A research carried out in 2010 suggests that the courts were the most corrupt
institutions in Slovakia, with 45 per cent of the interviewees holding such an opinion.15 Earlier,
in 2009, the courts shared the second place with state ministries in regard to the perceived
level of corruption.16 Whereas under Mikuláš Dzurinda’s second government (2004–2006), a
decrease of perceived judicial corruption was noted, under the first Robert Fico’s government
(2006–2010), the level of perceived judicial corruption stabilised.17 Roman Džambazovič
found that it decreased from 60 per cent in 2002 to 48 per cent in 2010.18
Regarding the independence of the judiciary, there is a disagreement about its level. On the one
hand, Carlo Guarnieri and Daniela Piana19 claim that there is relatively strong independence of
the judiciary in Slovakia, on the other hand, the Global Competitiveness Report 2014 and the
World Economic Forum data20 suggest that the Slovak judiciary is both the least independent
and efficient one among the twenty-eight EU Member States.21 That being said, Slovak
experience suggest a professional group with strong groups’ independence from politician, but
with a serious lack of substantial internal or external pressure to follow professional ethics, can
actually have, in some cases at least, more negative impact on fair functioning of judiciary.22 In
late 2015, there was adopted a new binding internal self-regulator code of ethics—Principles of
Judges Ethics,23 which main difference with the previous one of 2011 is in enforceability of the
new ethical regulation,—the previous one was just formal, without any body that could enforce
it. In any case, it certainly should not be the case that inconsistency or even contradictions in
rulings of disciplinary senates for judges was the norm.24
According to the opinion polls carried out in Spring 2013, the majority of population
does not trust the judiciary. Some 30 per cent do not trust courts at all, and another 40 per
cent tend rather not to trust judiciary. The main reason of distrust is that judges are not seen
as impartial or independent (43 per cent). The length of courts’ proceedings was the reason

14 See also, R Džambazovič, ‘Verejné vnímanie korupcie v období po roku 1989’ Forum Historiae 5(2) (2011)
140–41;M Bobek (ed), Central European Judges Under the European Influence: The Transformative Power of
the EU Revisited, Bloomsbury Publishing, 2015.
15 G Šipoš, ‘Barometer korupcie 2010 – každá deviata domácnosť bola požiadaná o úplatok’ http://www.
transparency.sk/gbk2010.
16 G Šipoš, ‘Každý druhý Slovak vníma súdy ako skorumpované’ Výzvy slovenského súdnictva (n 11) 9.
17 E Sičáková-Beblavá, G Šípoš, M Kurian, ‘Korupcia a protikorupčná politika na Slovensku 1989–2010’
Forum Historiae 5(2) (2011) 161–62.
18 R Džambazovič, ‘Verejné vnímanie korupcie v období po roku 1989’ Forum Historiae 5(2) (2011) 144.
19 C Guarnieri and D Piana, ‘Judicial Independence and the Rule of Law: Exploring the European Experience’
J Gripsrud and H Moe (eds), The Culture of Judicial Independence (Leiden, Martinus Nijhoff, 2011) 113–24.
20 See also the 2015 EU Justice Scoreboard (2015 EUJS), http://ec.europa.eu/justice/effective-justice/files/
justice_scoreboard_2015_en.pdf, Figure 47.
21 S Spáč, ‘3 mýty o našom súdnictve: Sú naše súdy lepšie ako ich povesť?’ http://transparency.blog.sme.
sk/c/367746/3-myty-o-nasom-sudnictve-su-nase-sudy-lepsie-ako-ich-povest.html, Graph 1.
22 See V Prušová, ‘Potrestaná sudkyňa: Harabin mal mimoriadny termín’ http://www.sme.sk/c/4928869/
potrestana-sudkyna-harabin-mal-mimoriadny-termin.html; http://www.pluska.sk/slovensko/spolocnost/
sudkyna-benesova-zabranili-mi-rozhodnut.html.
23 See http://www.sudnarada.gov.sk/zasady-sudcovskej-etiky/.
24 See E Kováčechová and Z Čaputová, Vybrané aspekty disciplinárneho súdnictva (Pezinok, Via Iuris, 2012) 57.
 II. The Legal-Judicial System 149

of distrust for another 30 per cent. It is possible to identify the average length of courts’
proceedings. While in 2005 it took almost 17 months to reach a verdict in civil cases, in 2013
it took slightly over 11 months. However, there was stagnation in this parameter in the years
2010–2013. Furthermore, the situation was more complicated in the capital city than in the
rest of the country. A similar trend could be noticed in connection with business court cases.
It took 21 months to reach a verdict in 2005, but about 14 months in 2009–2013. Again, it
took much longer than average to get final verdict in the capital city than in the rest of the
country. The most problematic situation and most negative trend were noticed in criminal
cases when the Regional Court was a first instance court. In these cases, the average length
of criminal proceedings was five times longer in 2013 than in 2005 (from 23.5 months to
111.2 months).25
Yet, paradoxically, the total number of unfinished judicial cases (of all types, including
various administrative requests) increased in the same period in about half, from 440
unfinished cases per judge in 2010 to 613 unfinished cases in 2013. The major factor behind
this negative development was an increase in court cases, from 1,133,987 in 2010 to 1,485,747
in 2013. Considering that there was also a slight decrease of number of judges, from 875 in
2010 to 856 in 2013, this meant an increase of average load per judge from 1,296 cases
in 2010 to 1,736 in 2013.26 The number of pending (expresses the number of cases that
remains to be dealt with at the end of a period) civil, commercial, administrative, and other
cases (First instance/per 100 inhabitants) has actually increased in period 2010–2013.27 The
time needed to resolve administrative cases (first instance) was about 700 days in both 2012
and 2013. This put Slovakia among the worst achievers in the EU.28 The rate of resolving
administrative cases was slightly over 80 per cent in 2013.29 This was again below the EU
average. The Supreme Court complained that it was not able to cope with its agenda in 2014
either, facing 17,990 new cases. By the end of 2014, it finished 15,729 cases, and there were
12,085 unresolved cases remaining.30
About 20 per cent respondents identified causes of distrust in poor legislation.31 The low
quality that often characterises the Slovak legislation is exemplified by the low transparency
of the legislative process, the fact that changes in the law are commonly made as ‘minor
additions’ to acts and regulations that have a different subject matter than that addressed
by the actual changes made (eg, changes in media law happen to be introduced through
general safety legislation), as well as fuzzy terminology and the provision of contradictory
legal options in the legal framework.32 The fact that legislation is sometimes problematic
in itself leads to situations where courts become creators of new rules.33 Th is is actually

25 http://www.justice.gov.sk/Stranky/Sudy/Statistika-priemerna-dlzka-konania.aspx.
26 http://www.justice.gov.sk/Stranky/Sudy/Statistika-OS-2009-2012.aspx; http://www.justice.gov.sk/Stranky/
Sudy/Statistika-OS-2009-2012.aspx.
27 2015 EU Justice Scoreboard (n 20) Figure 10.
28 ibid, Figure 6.
29 ibid, Figure 9.
30 See, Sme, 20 January 2015, 2.
31 http://sudcovia.sk/sk/?option=com_content&view=article&id=1154:prieskum-pre-via-iuris-sudnictvo-na-
tom-este-nebolo-horsie&catid=31:externe&Itemid=175.
32 See, J Andacký, ‘Trikrát a vari aj dosť’ Trend, XXII (2012) 48.
33 S Capíková, ‘Medzi poriadkom a chaosom: právo v období post-komunistickej transformácie na Slovensku’
Czech Sociological Review 41(4) (2005) 630.
150 Comparative Media Law Practice – Slovakia

very typical in the case of administrative judiciary. In addition, the RVR must from time
to time provide guidance with respect to certain aspects of the regulation of audiovisual
media services, ordinarily during elections and referendum campaigns.34
In its 2012 Manifesto,35 the Government has pointed to the need of guaranteeing the
‘proper functionality’ of the judicial system, including by tackling delays in court rulings,
and included raising the quality of the rule of law among its ten key tasks for the next four
years. Increasing judges’ independence was identified as a key mechanism in this regard.
Indeed, the Parliament passed in 2014 a controversial Amendment to the Constitution which
should increase independence of judges via screening aspirant judges by National Security
Authority. However, despite all rhetoric, the results seem to be disappointing.

III. Electronic and Digital Media Regulations

The main body of regulation of electronic media in the Slovak legal system is contained in
two statutes—the Act on Broadcasting and Retransmission (BA) and the Digital Broadcasting
Act (DBA). The former entered into force in 2000 and replaced the older statute passed in
1991 as well as implemented the principles of the Council of Europe’s (CoE) Convention
on Transfrontier Television (CTT) and its EU’s counterpart (Television without Frontiers
Directive, TWFD) into Slovak legal system. The DBA entered into force in 2007 and its main
purpose was to lay down the rules for digital broadcasting and to regulate the process of digital
switchover. It also altered some of the basic provisions of the BA in the way that today there is
no clear line between scopes of these acts and both acts have to be perceived as complementary.
The regulation of electronic media is divided into two main parts—technical regulation
(or regulation of access) and content regulation. While both were initially conceived with
broadcasting in mind, the implementation of the AVMSD in 2007 introduced a layered
system with different extents of regulatory scope for different types of media. Technical part
of regulation deals mainly with systems of authorization for each type of electronic media. The
strictest authorization system is the licensing for terrestrial analogue broadcasting which now,
following the digital TV switchover, means only radio broadcasting (there also is digital radio
broadcasting). Licensing system for digital broadcasting is less severe. Retransmission services
are being authorized through registration system only, while a mere notification is all that is
required for on-demand audiovisual media services and internet TV broadcasting (webcasting).
Providing radio-like services via internet is excluded from the regulation altogether.

34 See, Legislation on campaign in the media before Referendum in February 2015, http://www.rvr.sk/sk/
spravy/index.php?aktualitaId=2856; Commentary on campaign in the media before elections to the EP in
2014, http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1448; Commentary on campaign in the media
before presidential elections in 2014, http://www.rvr.sk/sk/spravy/index.php?aktualitaId=2;68; Retransmission
via the Internet and IPTV, 2013, http://www.rvr.sk/sk/spravy/index.php?aktualitaId=2138, Statement of the
RVR withrespect to campaign in the media before elections to self-governing bodies, 2013, http://www.rvr.
sk/sk/spravy/index.php?aktualitaId=2129; Reaction of the RVR to the public call by the Minister of Culture
with respect to increasing vulgarity and lack of ethics in broadcasting, 2012, http://www.rvr.sk/sk/spravy/in-
dex.php?aktualitaId=1684; Commentary on campaign in the media before parliamentary elections in 2012,
http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1448; Commentary on campaign in the media before local
elections in 2012, http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1449.
35 http://www.vlada.gov.sk/programove-vyhlasenie-vlady-sr-na-roky-2012-2016.
 III. Electronic and Digital Media Regulations 151

Broadcasters are obliged to broadcast in accordance with the provisions of their license.
Minor and short-termed diversions are subject to notification to the RVR. In order to make
more significant changes in the broadcast, broadcasters need to formally change their license
with the RVR’s approval. Broadcasters are also subject to provisions regarding external
plurality, ie, personal and ownership structures of the broadcasting corporations and estab-
lishment of programming networks with other broadcasters.
The main administrative requirement for retransmission in Slovakia is the possession of
broadcaster’s written consent for retransmission of its programmes via its channel. Unlike in
most European countries, in Slovakia, the consent for retransmission is not just a private law
matter, but also an administrative one, and its absence can prevent the operator from getting
authorization from the media regulator. For on-demand media services and webcasting,
there are only transparency obligations of basically the same extent as in the AVMSD.

A. Content Regulation

The main focus of interest for the regulator (based on the number of complaints) is protection
of minors, and the most frequent topic it deals with is actually commercial communications.
Content regulation is harmonized with the EU law to a considerable extent, with AVMSD
being the most important legislation. Slovak legislation is considered to be in full compliance
with the EU regulation and (with few exceptions—see the case study on the TWFD below)
there does not seem to be any significant problem in its practical application either. AVMSD
however does not bar Member States from introducing regulation beyond its scope (although
the European Commission (EC) still reserves the competence to observe its compliance with
EU Charter on Fundamental Rights). As mentioned, in this regard, there are three areas in
which Slovak media regulation goes significantly beyond the scope of the AVMSD: Regulation
of objectivity and internal pluralism in broadcasting, protection of minors, and protection
of human dignity. As a result, these issues are quite often dealt before administrative courts
and senates.
Many provisions of content regulation in the BA are based on provisions of the CTT.
Although with the AVMSD entering into force, the CTT lost significance for members of
the EU and EC discouraging them from implementing its provisions, provisions which were
not in contradiction with the AVMSD remained in the BA. We are going to discuss the
following issues in detail in separate chapters, however, some introductory comments might
be useful here too.

B. Protection of Human Dignity

There is strong emphasis on protection of human dignity in Slovak electronic media regulation.
Among all content regulation provisions it is placed first with the harshest sanctions for non-
compliance with its provisions. The basic provision which was initially based on Article 7(1) of
the CTT says that on-demand audiovisual media services and broadcastings may not interfere
with human dignity and the fundamental rights of others (Paragraph 19(1)a of the BA).
Despite its wide wording, Slovak SC ruled that the provision does not protect human dignity
152 Comparative Media Law Practice – Slovakia

as such, ie, human dignity in the ideal sense, and that there has to be an actual individual
person involved for this provision to be applicable.36 The provision is therefore used only in,
broadly speaking, defamation cases, where the breach of personal rights occurs in the media.
This notion was in turn questioned by a Slovak broadcaster who was claiming the invalidity of
this provision in electronic media regulation on the grounds of its unconstitutionality. These
types of cases, in his opinion, can be heard only as private law cases by general courts, and
cannot be the subject of administrative regulation. The Slovak CC, however, did not share this
view, and refused the broadcaster’s complaints as being without merit.37
Aside from this general provision, which is applied quite frequently, there are more
specific provisions aimed at protection of particular aspects of human dignity. It is explicitly
forbidden to incite any form of hatred on the grounds of nationality, religion, ethnicity, etc.,
to propagate war, or to depict the cruel and inhuman behaviour in the way that might be
considered its downplaying, justification or approval (Paragraph 19(1)b of the BA). There
is also an absolute ban on depiction of real violence, where undue prominence is given to
the actual process of dying, or where individuals are subject to physical or mental torment
in a way that is considered an illegitimate violation of human dignity (Paragraph 19(1)d
of the BA). The same provision further states that this ban also applies to cases where the
individuals depicted gave their consent. Even though this is the only explicit reference to
inconsequentiality of the protagonist’s consent in relation to the potential violation of his
dignity, both the media regulator and the SC maintain that the existence of such consent
does not justify any kind of human dignity violation.38
Protection of minors from maltreatment in the media is also part of the human dignity
protection rules. It was included into the regulation in reaction to a particular reality show
format that dealt with interactions in the family. The provision forbids the depiction of
minors that are exposed to physical or mental suffering (Paragraph 19(1)f of the BA). BA also
contains an explicit ban on child pornography, along with pornography depicting pathological
sexual practices. This provision was included into the BA during the implementation of the
AVMSD, since pornography as such, although banned from broadcasting services since the
TWF, is permitted for the new media services. Child pornography is, of course, absolutely
illegal in Slovakia, but being regulated by Criminal Code, it was only the individual (natural
person) who could be held responsible for any crime in connection with it (criminal liability
of corporations did not exist in the Slovak legal system till the Summer of 2016). By explicit
inclusion of its ban in the BA, the provider of the media service (ie, corporation) that carries
such content can be punished as well.

C. Objectivity and Internal Pluralism

A substantial proportion of the yearly workload of the Slovak media regulator is dedicated
to dealings with complaints about news objectivity. In the BA, there are two provisions
aiming towards internal pluralism in electronic media, and both are limited to broadcasting.

36 Judgment 3 Sž 82/2008 of the SC of the Slovak Republic.

37 Resolution III. ÚS 88/2014-21 of the CC of the Slovak Republic.
38 eg, judgment 4 Sž 20/2012 of the SC of the Slovak Republic.
 III. Electronic and Digital Media Regulations 153

The first one, broader in scope, obliges the broadcaster to ensure plurality and versatility of
opinions in its broadcasting as a whole. The second provision is restricted to news and current
affairs programs, and requires the broadcaster to ensure their objectivity. The first of the two
provisions is obviously quite difficult to control in the broad sense that its wording implies.
However, in practice, it is almost invariably used as an obligation to provide space for various
(usually contending) opinions on a given (often controversial) topic, albeit not necessarily in
the same program. It is sufficient to include such opinions into other programs of the same
broadcasting channel in reasonably similar extent and within reasonable time (usually days
or weeks) from the initial broadcast.39
However, complaints and inquiries into the objectivity of the news and current affairs
programmes on the grounds of the second provision are more frequent. This provision
is apparently based on Article 7(3) of the CTT and the perception of its application is
understandably sensitive. The main points the RVR is examining in these cases are whether
the information is presented impartially (separation of editorial commentaries from facts is
an explicit requirement of the provision) and whether opinions of all parties involved are
included, if vicariously, in the program. There is, however, no financial sanction attached to
this obligation, and in most cases when the absence of objectivity is found, the broadcaster
is only given a warning. This softens the controversial nature of the obligation somewhat.
The other and obviously more grievous form of punishment is the obligation to broadcast an
announcement outlining the breach of law, but this sanction is applied quite seldom.

D. Protection of Minors

The legislation aimed at protection of minors from the harmful media content goes beyond
AVMSD (eg, it is tackled in Sections 19, 20, 31a and b, 33, 35, 39a, 61, and 67 of the
BA), and its main part is contained in a special regulation—a decree issued by the Ministry
of Culture.40 This regulation lays out the system of rating of the programs according to
their suitability for various categories of children and the criteria by which the programs are
divided into these categories. There are four main categories of ratings: Programs unsuitable
for children under 7, 12, 15, and 18 years of age. Categories of 15 and 18 also have a watershed
of 8 pm and 10 pm attached to them respectively. Although the television content rating
regulation is part of the legislative competence of the Ministry of Culture, the compliance of
the media providers with its provisions is overseen by the RVR. Aside from the rating system,
the Paragraph 20(1) of the BA, in accordance with Article 27(1) AVMSD, obliges every
broadcaster to ensure that no programs which might seriously impair the physical, mental,
or moral development of minors, programs that involve pornography or gratuitous violence
in particular, will be broadcasted within its service.

39 Decision No RL/17/2010 of the RVR.

40 Paragraph 12(2) of the Act No 343 of 20 June 2007 on the Conditions of registration, public distribution,
and preservation of audiovisual works, multimedia works, and sound recordings of artistic performances
(audiovisual law).
154 Comparative Media Law Practice – Slovakia

E. Advertising

The regulation of advertising goes very much along the lines of the rules set out in the
AVMSD. Since the AVMSD does not deal with radio broadcasting, the Slovak media
regulation goes beyond its scope in this respect; nevertheless, even these provisions are
mainly based on the provisions of those in the AVMSD for the integrity of the system
as a whole. Regulation of political advertising during election campaign forms a separate
category. The new election law which entered into force in June 2015 somehow unified the
political advertising rules for all media, which were previously fragmented and different
for every type of elections. Yet there are still to some degree different rules for political
advertisements and political discussions for different elections and for public service media
(PSM) and private media.

F. System of Authorisation

As it was mentioned above, essentially, there are three types of authorization. In case of
broadcasting (which excludes webcasting), there is a licensing system which is different for
analogue terrestrial radio broadcasting on the one hand and all the other forms of broadcasting
on the other. Analogue radio terrestrial frequencies are allocated in form of a competition
(Paragraph 47 of the BA). The Council for Broadcasting and Retransmission launches an
administrative procedure—in which whoever fulfils formal criteria is allowed to participate—
then chooses the entity to which the right to use the frequency is granted. If this entity is not
a broadcaster yet, ie, it has not been granted license to broadcast in the past, the frequency is
granted with the broadcasting license. The statutory criteria for granting the frequency / license
to one of the participants are generally considered vague and not particularly instructive, and
since there are no further requirements that can be introduced by the RVR at the start of the
administrative procedure to meet particular goals with the allocation of frequencies (eg, to
have particular content broadcasted in the given area), the final deliberation takes basically
the form of a so-called beauty contest. Analogue radio license can be granted for an 8-year
period with one prolongation which is subject to the RVR’s approval (Paragraph 52 of the
BA). Because of the competitive character of the procedure, there is no legal entitlement to be
granted this type of license.
Since the digital television switchover that has taken place between 2008 and 2011,
the analogue terrestrial television frequencies can no longer be allocated. The procedure
(Paragraph 47 of the BA—the same provisions as in the case of analogue radio) is still in
force though, and theoretically, it can still be used in order to get license for cable or satellite
broadcasting. In this case, however, it does not have competitive character and, although it
is not explicitly laid down by the relevant provisions of the BA, it can be persuasively argued
that there is legal entitlement to this type of license provided that the formal criteria are
fulfilled. Analogue TV license can be granted for 12 year period, with the possibility of one
prolongation for another 8 years, which is subject to the RVR’s approval (Paragraph 52 of the
BA). Since the DBA entered into force, this type of license became practically obsolete due
to the fact that the digital license, which can be used for the same purpose, has fewer formal
requirements and there is no time limit for the validity of the license.
 III. Electronic and Digital Media Regulations 155

License for digital broadcasting was introduced by the DBA. The system of digital
terrestrial broadcasting is entirely different form its analogue counterpart. It is no longer
the RVR who allocates the frequencies for broadcasting, but the Regulatory Authority for
Electronic Communications and Postal Services (RU) who chooses the operator of the mul-
tiplex (a set of frequencies assigned for television or radio broadcasting) through tender. The
Council for Broadcasting and Retransmission merely authorizes the company to be able to
broadcast in Slovak jurisdiction, but the actual participation in digital terrestrial multiplex
depends on an agreement between the broadcaster and the multiplex operator. It has already
been stated that the requirements for the digital license are less strict than for the analogue
one, and that this type of license is valid for an indefinite time period.
In order to provide retransmission service, a registration is needed (Paragraph 56 of the
BA). It allows an operator to provide channels in the form of programme packages to the
viewers. There is a legal entitlement for the operator to have the registration acknowledged by
the RVR with the positive legislative fiction in case of the RVR’s inactivity. For on-demand
media services and Internet TV broadcasting, there is an obligation to notify the RVR on the
day the service is being launched at the latest (Paragraph 63(a) of the BA).

G. Electronic / Digital Media Regulator

The main electronic media regulator in Slovakia is the RVR. There are some aspects of
electronic / digital media regulation, which are under control of other authorities, such as
the RU that regulates issues related to the frequency spectrum, or Slovak Trade Inspection
that regulates some aspects of the advertising in electronic media, but the vast majority of the
rules concerning electronic media regulation are contained within the BA and the DBA, and
supervision over them is entrusted to the RVR.
The Council for Broadcasting and Retransmission is defi ned by the BA as a legal person
which, when executing state administration in the field of broadcasting, retransmission
and audio-visual media on-demand, has the status of state authority with national
competence (Article 4(3)). From the viewpoint of the Slovak legal system, it means
that the RVR is administrative authority sui generis. It is not part of the governmental
administration and it is not supervised by the Government or a particular governmental
authority. The Statute of the RVR explicitly mentions in its article 3 that the RVR is an
‘independent organ’, but it also defi nes the RVR, in the line with BA, as ‘nation-wide
organ of state administration’.
The nine RVR members are elected by the National Council of Slovakia (the Slovak
Parliament) that also approves the regulator’s annual report and dismisses members of the
RVR in case of specifically defined breaches of conduct (Article 9(2) of the BA). The members
of the RVR are elected for 6-year terms with one third of the members changing every
two years. The head of the RVR is its chairperson. He/she represents the RVR publicly and
presides over its meetings that usually take place twice a month. Day-to-day business of the
RVR is carried out by the Office of the RVR that has approximately 30 employees. The main
mission of the RVR, as defined by the BA, is to promote the public interest in exercising the
right to information, freedom of speech, the right to access to cultural property, education,
and to exercise state regulation in the field of broadcasting, retransmission and audio-visual
156 Comparative Media Law Practice – Slovakia

media on-demand (Article 4(1) of the BA). The actual obligations and competences of the
RVR are laid down mainly in the BA and the DBA, but can also be found in other statutes.41
The activities of the regulator are commonly covered by the media, especially, by two
specialised media portals. Especially sanctions (fines) issued by the RVR are very much read
and those seen as controversial are widely covered. The journalists take inspiration from these
two websites.42
The budget of the RVR in 2014 was 1,114,864 euro, the actual spending was just below
this limit. The budget in 2013 was 1,142,605 euro, the actual spending was just below it.
Considering that in 2012, the budget was lower by 47,500 euro, the finances and technical
resources available to the RVR can be seen as relatively sufficient. However, under present
conditions, the RVR cannot fulfil all its legal obligations. This can be seen as a result of
a number of new revisions of BA. There is, as a result, insufficient monitoring of various
broadcasting programmes.

H. Administrative Procedures

The great majority of the RVR’s competences are exercised through administrative procedures.
This is invariably true about those competences under which the rights and obligations of
media providers are dealt with. The general rules of administrative procedure in the Slovak
legal system are laid down in the Administrative Procedure Act (APA).43 However, many
procedures in the Slovak legal system have their specific rules to some extent and in some cases
the application of APA can be excluded altogether. In the case of the procedures contained in
the BA and DBA, the APA is generally applicable to all of them, except for explicitly specified
parts of the APA listed in Paragraph 71 of the BA. General rules for the terms of taking the
decisions by the RVR (these are altered within particular procedural rules), some general
rules about appellations (also altered) and all general rules about the reopening of the case
and the examination of the decision outside of the appellation procedure are thus excluded
from the application in the BA and the DBA procedures.
There are two main types of administrative procedures through which the RVR takes
the decisions—procedures of non-vindicatory and of vindicatory character. Non-vindicatory
procedures are those in the area of regulation of access, such as authorization processes and all
procedures related to them. The administrative procedures are initiated either by participants
or by the RVR, depending on the type of the procedure (the particular way of initiation of
the procedure is always explicitly stated in the BA or the DBA). The number of participants

41 See more on this in INDIREG Final Report. Annex, Indicators for independence and efficient functioning
of audiovisual media services regulatory bodies for the purpose of enforcing the rules in the AVMSD (SMART
2009/0001), Annex II, Country Tables, Slovakia, http://www.indireg.eu/wp-content/uploads/Annex_II-_
CountryTables_Slovakia.pdf.
42 See, http://www.omediach.com/radio/item/6093-radio-europa-2-dostalo-pokutu-za-vulgarnosti-v-pesnicke;
http://www.omediach.com/tlacove-spravy/item/6087-tlacova-informacia-zo-zasadnutia-rvr-24-2-2015;
http://www.omediach.com/tlacove-spravy/item/6002-tlacova-informacia-zo-zasadnutia-rvr-112-2015;
http://medialne.etrend.sk/televizia/k-referendu-prislo-devat-staznosti-na-sajfu-tv-lux-ci-rtvs.html?utm_
source=medialne&utm_medium=hp&utm_campaign=listing.
43 Act 71 of 29 June 1967 on Administrative proceedings.
 III. Electronic and Digital Media Regulations 157

may vary in accordance with the type of procedure or the circumstances of the case. In the
licensing procedure for analogue TV, eg, the participants are all those who applied for a
particular frequency in due time. In the procedure through which the license for digital TV
can be granted, usually, there is only one participant. According to the APA, everyone who
claims that his/her rights or obligations can be touched upon in administrative procedure is
considered a participant until it is proved otherwise. In more complicated cases, the RVR is
thus obliged to examine the extent of the number of participants during the whole procedure.
The vindicatory procedures are those where potential breaches of the law by media operators
are dealt with. The initiator of this type of procedures is always the RVR, and the only participant
in the procedure is invariably just the alleged perpetrator. Even in cases where the RVR is notified
about a potential breach of law by complaint, the eventual subsequent administrative procedure
is not initiated by the complainant but by the RVR itself, and the content of the complaint is not
binding for the regulator in any way. Complaint procedures and administrative procedures against
the media operator are hence separate processes, whereby the former is not an administrative
procedure per se, and does not end with administrative decision—the complainant is only notified
about the outcome, while the latter is an administrative procedure under the APA that culminates
either with procedural administrative decision that halts the procedure if no breach of law is
found, or material decision penalising the media operator in the case of positive finding.
The outcome of every administrative procedure is an administrative decision, and as such,
it is subject to judicial review. At this moment, there are two admissible ways of seeking
revision of the decision of the RVR. The first is the appellation, which can be used only if
the right to appeal against the administrative decision is explicitly prescribed by law. This
type of decision postpones validity of a decision for a certain time period (usually 15 days) in
order to allow the participant to appeal. It means that these decisions are not legally valid at
the time of appellation. Since the general rules for appellation of the APA are excluded from
the application in the BA and the DBA procedures, appellation is possible only in instances
where the BA or the DBA explicitly states so. The second instrument of review is the action
against valid decisions of administrative agency. This, in turn, as its name reveals, can be
used only against a decision that is already legally valid, and therefore fully enforceable.
The rules for both instruments are laid down in the Civil Judicial Code,44 and both are
dealt with by administrative sections of the general courts (see below), albeit through different
processes. The system of judicial review of administrative decisions in Slovakia, however,
changed profoundly in 1 July 2016, when the new Administrative Judicial Code45 entered
into force. Under the new system, there is only one instrument of review that is very similar
to the second instrument described above. There will be thus no appellations against non-
valid administrative decisions, only actions against those that are fully valid. It means that
all administrative decisions will be valid upon deliverance to relevant participant without
exception. Their enforceability, however, may be postponed by the aforementioned action if
the law explicitly states it, or the reviewing court decides so in the preliminary ruling.
The implementation of media policy by the RVR is essentially a bureaucratic process. In
controversial cases, there often are two alternative proposals for members to decide. This
suggests an attempted unbiased approach to the RVR decision-making. The Council for

44 Act 99 of 4 December 1963 on civil procedure.

45 Act 162/2015 Col.
158 Comparative Media Law Practice – Slovakia

Broadcasting and Retransmission has—by and large—sufficient monitoring and sanctioning

powers. In fact, there seems to be an over-regulation of the broadcasting sector. This is overtly
claimed to be a result of EU directives, although it seems more likely to be a self-inflicted
regulation (an illustrative example is the process of notification in the case of on-demand
audiovisual services which is compulsory under the threat of a fine and the regulation on
human dignity in the BA). There are also rare cases where the RVR members internally
initiate legal action against the media. However, although there was an enormous increase
in the agenda (mainly because of complaints) in the last decade, the standard monitoring of
broadcasting by the RVR staff is still limited to a relatively low number of cases annually.
Broadcasters would like the RVR to increase its preventive (pro-active) role in electronic
media regulation, ie, with increased recommendations and advice. There is also a call for
consistency in the decision-making of the RVR, thus increasing the predictability of future
decisions. In addition, television broadcasters were critical of the fact that almost all attention
to monitoring by the RVR focused on television broadcasts, leaving radio broadcasters a
freer hand (most complaints do, however, concern TV broadcasting). Finally, bureaucratic
procedures should ideally include a more detailed explanation of why a certain appeal against
a decision/ruling of the RVR was dismissed.46 More recently, broadcasters wonder whether
Slovak media regulator pays attention to regulatory issues which are not so important in
other countries. There also are open questions why the media regulator deals differently with
television and radio. Moreover, rights (competencies) of the media regulator seemed to be too
broad, and plans of prescribed amount of collected fines were seen as unfair. More practically,
inconsistencies in verdicts of administrative senates were seen as obstacles for keeping
regulations. With respect to the media regulator, more ad hoc advice would be appreciated.47
The head of PSM in Slovakia, Václav Mika, raised serious doubts about the functioning of the
RVR: ‘[T]he way in which the RVR functions has been criticised many times, there is a consensus
among all the media. The approach of the RVR is like from another time.’48 However, the Director
General never explained, in spite of repeated requests, what exactly he meant by this statement.49
Neither the Chairperson of the Association of Independent Television and Radio Stations (ANRS)
in a personal interview of 27 January 2015 was able to provide further explanation on this issue.
This fuzziness can be perhaps explained by comment by Kateřina Kalistová, the First Secretary of
Ministry of Culture of the Czech Republic. Kalistová mentioned that also the Czech broadcasters
demanded self-regulation with respect to protection of minors, but never introduced it.50
Salajová from the Creative Industry Forum has summarized problematic aspects of electronic
/ digital media regulation in Slovakia from the point of view of broadcasters and creative
industries with respect to protection of minors.51 In her view, there is unpredictability of law
application and decision-making, use of vague terms such as low / middle / high frequency

46 Školkay, Hong, Kutaš, ‘Media Policy’ (n 4) 22.

47 Interview with Patrik Ziman, Chairman of the Association of Independent Radio and Television Stations,
27 January 2015, by Andrej Školkay.
48 In K Sudor, ‘Šéf RTVS: Lampa už takto pokračovať nemôže’ https://dennikn.sk/24109/sef-rtvs-lampa-uz-
takto-pokracovat-nemoze/?ref=tit.
49 E-mails sent to [email protected] on 16 and 26 January 2015.
50 At Media and Protection of Minors Seminar (n 2).
51 S Salajová, ‘Aplikácia systému ochrany maloletých na Slovensku’ presentation at Media and Protection of
Minors Seminar (n 2).
 III. Electronic and Digital Media Regulations 159

(related to the unified labelling system, jednotný system označovania, JSO), lack of consistent
explanatory rules and continual dialogue among executives, media regulators, and broadcasters.
All this leads to deadlock among broadcasters, and finally, to resignation of broadcasters.

I. Types of Sanctions

There are five types of sanctions that may be imposed on a media operator by the RVR. The
basic form of sanction is the notification on a breach of law, which in most cases would precede
pecuniary fine. When the media operator breaches the particular provision of the BA or the
DBA for the first time, Paragraph 64(2) of the BA requires the RVR to notify the media service
provider about violation of law before the fine can be imposed. On the other hand, when the
offence is repeated, the RVR is required to impose a fine on the media operator, and a mere
notification is no longer an option. When there is obligation in the BA or the DBA that has
no special sanction attached to it in case of its violation, the notification on a breach of law is
the only sanction that the RVR may impose. The most common sanction is naturally a fine.
There are various ranges of fines for different types of law violations and different types of
media operators from 30 up to 165 969 euro. In addition to what has been stated above, there
are certain types of law violations that do not require a previous notification on a breach of
law, and the RVR may opt to impose fine right away. This is, eg, the case with the violation of
some provisions on the protection of minors (Paragraphs 20(1)–(4) of the BA). In the case of
breaching provisions on the protection of human dignity (Paragraph 19 of the BA), the RVR is
explicitly required to do so. There is expected income from fines which the RVR must collect
each year. For example, in 2013 the annual income from fines was expected to be 160,000 euro,
and the additional income from fines was actually 426,250 euro. In 2014, the expected income
from fines was 350,000 euro, and this was actually the final result. Theoretically, if the RVR
does not collect enough money from fines as expected, the Ministry of Finance could lower the
budget of the RVR. Indeed, there are annual consultations on budgetary issues. These result in
mutual compromises and lowering the budgets to some extent. There is an additional statistical
problem with fines—some of them actually come from the previous year. The highest fine
issued by the RVR was in the case of reality show Extreme Families. The fine was 25,000 euro
(the Tonko case, known after its main hero, is discussed below).52
In some cases, the broadcaster may be required to broadcast the announcement on a breach of law,
if it is advisable and necessary for the public to be informed about such a breach of law according
to the Paragraph 65 of the BA. This kind of punishment is applicable, eg, in the case of violations
of provisions related to objectivity in news programs, fair elections broadcasting, the protection of
minors and human dignity. The evaluation of advisability and necessity of imposing this sanction
is, of course, at the discretion of the RVR, the same as the extent, form, and time of its broadcasting.
One step higher on the scale of harshness is the detention of the broadcasting of a program. It is
applicable in the same cases as in the previous paragraph, but the violation of those provisions must
be serious. This provision constitutes a considerable interference with the rights of the broadcaster,
and since the BA entered into force, it was imposed only on one occasion. The ultimate sanction is
the revocation of the broadcasting license. However, this is admissible only for a persistent, deliberate,

52 L Jelčová in A Sivá, ‘Nadávajú, sťažujú sa, ale televízor nevypnú’ Sme, 7 March 2015. Appendix, 8–9.
160 Comparative Media Law Practice – Slovakia

and serious breach of some provisions aiming to protect human dignity, and it has never been
used so far. For illustration, we have compiled data on key sanctions in key sectors.

Table 1. National and local televisions, AVMS

Broadcaster / sanction Commercial Balanced coverage Human digntiy / protection of
communication Paragraph 16(3)a or 16(3)b minors
Paragraphs 31–35 Paragraphs 19–20

2011

Private ‘Warnings’: 38 ‘Warnings’: 9 ‘Warnings’: 0

Fines: 58/185,640 Fines: Number / Amount: 0/0 Fines: 16/96,840

PSM ‘Warnings’: 2 ‘Warnings’: 5 ‘Warnings’: 0

Fines: 4/12,500 Fines: Number / Amount 0/0 Fines: 2/53,400

AVMS Fines: 0 0

2012

Private ‘Warnings’: 7 ‘Warnings’: 14 ‘Warnings’: 0

Fines: 36/316,677 Fines: Number / Amount 0/0 Fines: 24/104,319

PSM ‘Warnings’: 1 ‘Warnings’: 1 ‘Warnings’: 0

Fines: 0/0 Fines: Number / Amount 0/0 Fines: 0/0

AVMS Fines: 2/600

2013

Private ‘Warnings’: 10 ‘Warnings’: 22 ‘Warnings’:0

Fines: 37/203,956 Fines: Number/Amount 0/0 Fines: 27/128,119

PSM ‘Warnings’: 0 ‘Warnings’: 3 ‘Warnings’: 0

Fines :0/0 Fines: Number/Amount 0/0 Fines: 3/5,000

AVMS Fines: 1/2,500

2014

Private ‘Warnings’: 13 ‘Warnings’: 25 ‘Warnings’: 1

Fines: 32/175,458 Fines: 13/24,299 Fines: 24/92,863

PSM ‘Warnings’: 0 ‘Warnings’: 3 ‘Warnings’: 0

Fines: 1/3,319 Fines: 2/330 Fines: 1/2,000

AVMS ‘Warnings’:2
Fines: 3/2,500
 III. Electronic and Digital Media Regulations 161

Table 2. Radio broadcasters

Broadcaster / sanction Commercial Balanced coverage Human digntiy / protection of
communication Paragraph 16(3)a or 16(3)b minors
Paragraphs 31–35 Paragraphs 19–20

2011

Private ‘Warnings’: 0 ‘Warnings’: 0 ‘Warnings’: 1

Fines: 0/0 Fines: Number/Amount 1/100 Fines: 0/0

PSM ‘Warnings’: 0 ‘Warnings’: 0 ‘Warnings’: 0

Fines: 2/5,500 Fines: Number/Amount 0/0 Fines: 0/0

2012

Private ‘Warnings’: 7 ‘Warnings’: 2 ‘Warnings’: 0

Fines: 3/3,994 Fines: Number/Amount 0/0 Fines: 1/100

PSM ‘Warnings’: 0 ‘Warnings’: 1 ‘Warnings’: 0

Fines: 2/994 Fines: Number/Amount 0/0 Fines: 0/0

2013

Private ‘Warnings’: 4 ‘Warnings’: 4 ‘Warnings’: 0

Fines: 1/1,500 Fines: Number/Amount 0/0 Fines: 0/0

PSM ‘Warnings’: 0 ‘Warnings’: 1 ‘Warnings’: 0

Fines: 0/0 Fines: Number/Amount 0/0 Fines: 0/0

2014

Private ‘Warnings’: 3 ‘Warnings’: 0 ‘Warnings’: 1

Fines: 0/0 Fines: Number/Amount 0/0 Fines: 0/0

PSM ‘Warnings’: 0 ‘Warnings’: 1 ‘Warnings’: 0

Fines: 0/0 Fines: Number/Amount 0/0 Fines: 0/0

The above outlined statistics clearly shows that commercial broadcasters really are the main
target of various sanctions. However, as correctly observed by Spokesperson of the RVR,
Lucia Jelčová, these broadcasters have the largest audiences or the largest number of listeners,
therefore, the higher number of complaints should not be surprising. On the other hand, the
more frequent complaints on radio news and current affairs programmes in the case of PSM
reflect the higher popularity of these programmes among listeners, too.53

J. The System of the Judiciary in Relation to Electronic Media Regulation

The examination of individual administrative acts in the sphere of electronic and partly digital
media regulation in Slovakia belongs to the competence of administrative judiciary. Although there
is no institutional division between administrative, general, and criminal judiciaries, their respective
competences are clearly distinguished legislatively. Of the three levels of courts in Slovakia (district
courts, regional courts, and the SC), the administrative justice is administered only in the RCs and
the SC. In both cases, there are special administrative senates that consist of three judges.

53 ibid.
162 Comparative Media Law Practice – Slovakia

Generally, regional district courts are the courts of first instance, and the SC fulfils the
role of the appellate court. In cases where legislation explicitly states so, the SC deals with
appellations from administrative agencies directly. In this case, its judgment is final without
the option of further appeal. With regard to the electronic media regulation, the regional
district courts hear actions against fully valid decisions of the RVR, ie, the decisions against
which there is no possibility to appeal or, indeed, the period given for appellation has passed.
Against decisions, towards which the right of appeal is granted, the appeal goes directly to
the SC. If the appeal is filed in due time (usually fifteen days), the decision does not gain
full legal validity until it is dealt with by the court. From 1 July 2016 onward, however, the
system outlined above, has been simplified to that extent that the regional district courts will
try all cases as courts of first instance, and the SC will be invariably in the position of the
appellate court.
In the sphere of electronic media, the SC and regional courts have essentially full
jurisdiction over the decisions of the RVR, which means that they can uphold or change the
decision, or revoke and return it to the RVR, or, in the case of the SC, this is done within the
role of the appellate court, to the court of the first instance.
The special case is the CC. It is not considered to be a part of the system of Slovak judiciary,
so it is not hierarchically superior to other courts. Yet, as it was mentioned, it is the ultimate
judicial body in Slovak legal system, as it oversees the adherence of the actions of all authorities
to the Slovak Constitution. From the point of view of electronic media regulation, it performs
two important functions. Firstly, it checks the constitutionality of legislative acts, and
secondly, it hears complaints claiming the unconstitutionality of the RVR’s decisions or the
court’s judgments. Formally, the complaint is always aimed against the decision of the SC that
upheld the decision of the RVR or the judgment of the RC, because in Slovak legal system,
the constitutional complaint is admissible only when all other possibilities of legal reparation
were exhausted.

IV. The Electronic / Digital Media System

The media plays an important role in liberal democratic societies. Walter Dean argues that
‘the purpose of journalism is to provide citizens with the information they need to make the
best possible decisions about their lives, communities, societies, and their governments.’54
No doubt, among all media, the electronic / digital media plays the most important role in
current liberal democratic societies.
Considering that Slovak media legislation as well as the regulatory practice of the RVR are
rather strict on pluralism, it seems useful to discuss this issue further. The European Court
of Human Rights (ECtHR) notes (eg, in the case of Manole and Others v Moldova, App No
13936/02) that general principles regarding pluralism in audiovisual media as the starting
point are the fundamental truism: ‘[T]here can be no democracy without pluralism. One of the
principal characteristics of democracy is the possibility it offers to resolve a country’s problems
through dialogue, without recourse to violence, even when they are irksome. Democracy
thrives on freedom of expression.’ ‘It is of the essence of democracy to allow diverse political

54 http://www.americanpressinstitute.org/journalism-essentials/what-is-journalism/purpose-journalism/.
 III. Electronic and Digital Media Regulations 163

programmes to be proposed and debated, even those that call into question the way a State
is currently organised, provided that they do not harm democracy itself’ (Socialist Party and
Others v Turkey, 1998 [41], [45], and [47], Reports of Judgments and Decisions1998-III).
Furthermore, the ECtHR in Manole argued that the audiovisual media, such as radio and
television, have a particularly important role in this respect. Because of their power to convey
messages through sound and images, they have more immediate and powerful effect than
that of the print media (Jersild v Denmark, 23 September 1994 [31], Series A no 298; Pedersen
and Baadsgaard v Denmark [GC], App No 49017/99 [79], ECHR 2004XI). The function of
television and radio as familiar sources of entertainment in the intimacy of the listener’s or
viewer’s home further reinforces their impact (see Murphy v Ireland, App No 44179/98 [74],
ECHR 2003IX, extracts). Moreover, particularly in remote regions, television and radio may
be more easily accessible than other media.
Indeed, the most important day to day source of general public information and opinion
in Slovakia are still television and radio broadcast. The daily print media were read daily
by only about a third of the population (‘read yesterday’), while at least occasionally more
than two thirds (71 per cent) of the population read it in 2013. In contrast, television
broadcasts were watched by 90 per cent of the population, while radio broadcasts were
listened to by 70 per cent (‘listened yesterday’), or 91 per cent (‘listened last week’).55
With respect to trust, the most trusted was radio broadcasting, followed by television,
and the least trusted was the press on almost equal footing with the Internet (57 per cent
trusted the Internet, 59 per cent the press, 68 per cent television, and 77 per cent radio
broadcasts) according to the 2010 survey.56 Therefore, it is clear that proper regulation and
fair and competent supervision of radio and television broadcasts is an important part of
liberal democracy in Slovakia. Of course, it is a growing segment of online media. A very
small part of this is regulated by the RVR on the basis of transposing the AVMSD onto
the local legislation. The survey data on television broadcast popularity and market share
(television watched yesterday, and market share data from yesterday / market share group
data over 12 years) were, in early 2013 or in early 2014 (market share group data over 12
years), as follows: TV Markíza (57 per cent and 38 per cent / 23 per cent respectively),
followed by TV JOJ (41 per cent and 26 per cent / 17 per cent), and the third was the
first public television channel Jednotka (18 per cent and 10 per cent / 11 per cent). The
less popular were family-female TV Doma (9 per cent and 5 per cent / 6 per cent), news
television TA 3 (7 per cent and 2 per cent / 2 per cent), and TV for men Dajto as well as
Plus (1 per cent each or 3 per cent / 4 per cent). Other television channels individually
had marginal share on the market, although in total, their viewership was 17 per cent.
Among the less popular—with around 1–3 per cent (market share of yesterday / watched
yesterday) were also the Hungarian television channels RTL Klub, TV2, the Czech public
television channel ČT1, Czech private television NOVA, and the second public quality
channel Dvojka (MML—TGI , 2013, and PMT / TNS).57

55 MML–TGI, ‘Národný prieskum spotreby, médií a životného štýlu’ Market & Media & Lifestyle, Základné
výsledky 1(2) 2013, http://www.median.sk/pdf/2013/ZS132SR.pdf.
56 http://ec.europa.eu/public_opinion/cf/showchart_column.cfm?keyID=2187&nationID=26,&startdate=2010.11
&end date=2013.11.
57 http://medialne.etrend.sk/televizia-grafy-a-tabulky.html.
164 Comparative Media Law Practice – Slovakia

These data can be interpreted in a way that the most popular TV station is the first nation-
wide, originally terrestrial, commercial broadcaster TV Markíza (which profited from the
lack of private, nation-wide competition for a couple of years). This leader is followed by TV
JOJ, which emerged from a network of regional stations with a dominant ‘founder’ in the
East Slovak city of Košice. TV JOJ is more commercially orientated in its content, especially
in its news. The first public television channel Jednotka has the third place, recently, its
popularity shows some signs of revival, especially in the main news broadcast.
Twenty years ago, in 1994, the television market was quite different in Slovakia. The most
watched channel was the public channel Jednotka (operating under a different brand name
then) with more than half of the market share, followed by the second public channel, the
Czech private channel NOVA, the Hungarian public channel TV1, the German Pro7, MTV
Europe, and many other channels.58 Popularity of a public channel did not reflect its quality.
On the contrary, at that time, there was no nation-wide terrestrial television competition in
Slovakia in a local language.
The survey data on radio popularity and market share (listened to yesterday, market share of
yesterday / market share for group over 12 years, and listened to last week) were in early 2013 or
in early 2014 (market share group over 12 years) the following: Rádio Expres (20 per cent, 22
per cent, 19 per cent, or 33 per cent, respectively), public channel Rádio Slovensko (16 per cent,
19 per cent, 17 per cent, and 27 per cent), youth and music radio Fun rádio (13 per cent, 15 per
cent, 12 per cent, and 25 per cent), music radio Jemné melódie (8 per cent, 9 per cent, and 17 per
cent), Rádio Europa 2 (7 per cent, 9 per cent, 7 per cent, and 17 per cent), regional public radio
Rádio Regina (6 per cent, 7 per cent, 8 per cent, 6 per cent, and 13 per cent), and Rádio Viva (4
per cent, 5 per cent, and 9 per cent).59 These data can be interpreted as Rádio Expres clearly was
the market leader, followed by the public radio first channel, closely followed by Fun rádio and
two other private stations. In other words, radio market was more diverse than television market.
Similarly to television broadcast, twenty years ago, in 1994, the popularity or market share
of radio stations was different in Slovakia than in 2014. Twenty years ago, almost two thirds
of market share was under the control of two radio stations, one fully public, Slovensko 1
(today’s Rádio Slovensko), and one private broadcaster under the umbrella of public radio,
Rock FM. The third was Fun Radio, followed by radio broadcast over phone lines (this was
something like cold war communist ‘voice’ Internet), then followed by Slovensko 2 (today’s
Rádio Regina), and by Hungarian language radio stations.60 The private radio broadcast as
well as local television broadcast were allowed in Slovakia already in the years 1991/92 (first
it was tolerated by the authorities, then it was legally allowed). As of late 2014, the public
service media (PSM) company RTVS broadcast both radio and television programmes under
unified legal structure.
There were nine specific radio broadcast units. Five of them were terrestrial radio units
(Rádio Slovensko, Rádio Regina, Rádio Devín, Rádio_FM, and Rádio Patria), three of them
were digital units (Rádio Klasika, Rádio Litera, and Rádio Junior), and there was a special
broadcast abroad (Radio Slovakia International). All radio broadcast were available via satellite,
public multiplex DVB-T, and on the Internet (either as podcast—archive—or as a live stream).

58 MI, Mediálna ročenka 01, http://www.mi.sk/medialna%20rocenka/index.html, 180–81.

59 MML–TGI, ‘Národný prieskum spotreby’ (n 47) 8–10; http://medialne.etrend.sk/radia-grafy-a-tabulky.html.
60 MI, Mediálna ročenka 01 (n 58) 182–83.
 III. Electronic and Digital Media Regulations 165

Public service television broadcast has two units. The first, called Jednotka, is a
general information, education, and entertainment / sport channel. The second
television unit, Dvojka, is focusing on the more educated viewers and specific groups
of viewers such as ethnic and religious minorities, and socio-professional groups such
as soldiers or fishermen. There was some limited, short-live attempt to establish a third
sport channel, and there were some plans to expand PSM television with a TV channel
for children as well.
It can be argued that there is a continuum of regulation and expectation on the social-
political role of the media. The least regulated media is the print press. Although there
are some expectations that news in the print media should somehow be different from
commentaries, it is not seen as a grave sin if there is no sharp difference between these two
types of items. The controversies can be dealt with via ethics or press law, or in some cases,
via civic or criminal law, if necessary. The highest professional-ethical expectations, and thus
the most demanding form of regulation, can be found in the case of PSM.
Indeed, the most problematic issue with respect to impartiality and balance was the
case of the current affairs programme Z prvej ruky. This programme was broadcast (and
continues to be broadcast) by the public service radio Slovenský rozhlas shortly after noon
news on weekdays. It was a rather popular programme. This particular broadcast had
two different ways of presenting a current affairs issue. During the first four days of the
week, it usually presented the three most controversial issues discussed with politicians
and other experts, while on Fridays, there were discussions only with political analysts and
other experts but not politicians. Initially, the listeners could call live to broadcast, but
this approach caused problems due to some unruly callers. Interestingly, this programme
created the majority of controversies dealt with by the SC with respect to the issues of
impartiality and balance. Not only the RVR, but also the Radio Council, later renamed to
Council of Radio and Television Slovakia, had to intervene into controversies related to this
particular programme. This particular programme was also discussed by the Parliamentary
Committee on Culture and Media.
The most controversial issue was ‘empty chair’ issue. Although we are going to discuss this
particular programme (broadcasted in February 2007, 2 Sžo 73/2010) in a legal debate later
on, it is useful to present views of its producers here.61 First, the general situation was that
while representative of the governing parties did not show much enthusiasm in participating
in this critical programme, opposition politicians were, not surprisingly, very much interested
in being present. Second, the journalists participating at this particular radio programme did
invite key persons, ministers. However, the Minister Jahnátek denied invitation. The radio
journalists invited a representative of the Minister’s political party. No one was interested. In
the final broadcast, the normative approach applied by the journalists was that the missing
representation of governmental viewpoint was not their fault. The participants included two
journalists and one leftist activist (a university lecturer). Nevertheless, the journalists used
both arguments of government and opposition in the debate.
The second most problematic aspect of missing balance and impartiality in news were some
news reports broadcasted both by PSM (both television and radio) and private televisions
(especially TV JOJ) in their main news programmes.

61 Interview with Juraj Hrabko, Journalist, formerly Slovak Radio, by Andrej Školkay (9 December 2014).
166 Comparative Media Law Practice – Slovakia

V. Rules of Procedure (Media Authority and Courts)

As mentioned, the RVR is guided by the general APA. In the view of the CC, the interpretation
of legislation is a matter of each public administration body within the framework of
constitutional and statutory laws. Each public administration body, including state bodies,
defines independently a) which documents will be used in its decision-making; b) how it will
interpret them in accordance with the rule of law. The CC referred here to Section 2(2) of
the Constitution (IV. ÚS 324/2011-16). There is no separate Administrative Law Court in
Slovakia (in contrast to, eg, the Czech Republic). Administrative law issues in broadcasting
are handled in principle by either regional courts (but not district courts) and by the SC. The
general media policy has been, obviously, set by the Parliament through the law. Yet, it is clear
to determine that legal competency of the RVR to ‘participate in the creation of legislation
and other generally binding legal acts’, or to have ‘the right to suggest and join international
treaties or covenants, as well as other international legal acts’ (Section 5(2), the suggestions
are addressed to the Parliament) is seen as a policy setting power only. Though these policy
setting powers have been formally granted, they are rather weak. Therefore, a proper term for
this power would be consultations. Yet it is true that in the past, it was the RVR (staff ) that
helped the Ministry of Culture in preparing to adjust Slovak media legislation to EC or EU
standards during accession process.
The general administrative law heavily relies on standard legal norms. However, the general
law courts have to follow the higher courts’ case law, and the so called unifying decisions
(when two different SC Senates or lower courts practically pass on fundamentally different
decisions on the same issue).
The role of the case law is especially important to the administrative law courts. Jozefína
Machajová explicitly argues that although the Slovak legal system is perceived as based not
on the case law, in fact, case law plays an important role in the administrative courts.62
Indeed, the SC publishes 3–5 times a year special selected and legally binding Collection of
Statements of the SC and verdicts of general courts in administrative law matters (as well as
in civil and penal law).63
Also, when it comes to media regulator, it is highly important and by definition challenging
to balance among various legal principles (eg, freedom of speech and protection of personality).
Furthermore, Machajová64 mentions in her study on administrative law that the constitutional
judiciary is as important as the administrative judiciary. The constitutional judiciary is equally
relevant for both natural and legal persons. It should be noted again that the CC is a separate
legal body which does not replace or substitute general courts (and there is the SC as well). In
legal theory and practice, the CC is seen as having a special place in judiciary system.
According to the CC, administration bodies hold the responsibility of interpreting
legislation. Public administration bodies as well as state bodies define a) the legal documents
(podklady) which will be used for making the decision; b) how to interpret the documents
in accordance with the law. The Constitutional Court here refers to the Section 2(2) of the
Constitution (IV. ÚS 324/2011-16).

62 J Machajová et al, Všeobecné správne právo (Žilina, Eurokódex, 2012) 385.

63 See http://www.supcourt.gov.sk/rok-2015/.
64 Machajová et al, Všeobecné správne právo (n 63) 389.
 III. Electronic and Digital Media Regulations 167

The Supreme Court (6 Sž 6/2013, 12) made a general remark about the administrative
courts—the subject of the court proceeding is limited by the verdict of the decision challenged
in the court (v správnom súdnictve je predmet konania vymedzený výrokom napadnutého
rozhodnutia). Furthermore, the administrative court is not allowed to change the decision of
public administration authorities. The Administrative Court, ie, practically speaking, the SC
Senates (which together create the special Administrative Collegium) or the regional courts,
can cancel the previous decision of the RVR, and return the issue for further legal action
only if a) the decision resulted from incorrect legal judgment of an issue by the administrative
body; b) the verdict is based on facts which do not correspond to the documents in a file;
c) there are not enough facts for a legal judgment; d) it is impossible to examine the verdict
due to its incomprehensibility or lack of arguments; moreover, it is impossible to examine the
verdict because of the incompleteness of file documents or the fact that the mentioned files
have not been submitted yet; e) there was a deficiency in the decision of the administrative
body that could have impacted the legality of the decision.
For example, the SC Senate verdicts 4 Sž 34/87 and 4 Sž 35/97 stated that the administrative
body must deal with all aspects of the case mentioned in an appeal; if done otherwise, the
missing argument can be the reason for the Court to cancel the decision due to the inability
to examine the case because of the lack of evidence. In general, administrative bodies are
bound by verdicts (legal opinions) of administrative courts. Yet these are sometimes fuzzy or
contradictory in their attempts to set principles or guidelines. For example, the administrative
senates of the SC attempted to develop categories of ‘continuous delict’ and ‘new (autonomous)
delict’ (borrowed from criminal law theory) in the case of broadcasting. This attempt proved
to be more confusing than helping in practical orientation on the matter.65
Administrative law court considers the following key aspects: a) whether the pieces of
evidence which are presented to or by the administrative organ are reliable or not (criteria
are based on the source and breakage of procedural rules); b) whether logically presented
pieces of evidence lead towards the conclusions made by the administrative body; c) whether
the administrative body applied correct legal norm (verdict of the SC 2 Sžo-KS 92/04).
Administrative organs (state and public authorities) are obliged to act in close cooperation
with the key participants, co-participants, and other participating subjects which are
somehow connected to the administrative-legal dispute.
Administrative organs must always provide opportunities for the subjects to effectively
defend their rights and interests. Participating subjects have the right to express their opinion,
and propose suggestions regarding the decision (podklad rozhodnutia). Administrative bodies
are obliged to help and guide the participating subjects. Purposefully, the participating
subjects will have firm knowledge about legislation.
The Supreme Court set guidelines that administrative delicts for both natural and legal
persons must follow the same principles of procedures as it is in the case of criminal delicts
(musí podliehať rovnakému režimu ako trestný postih za trestné činy). This, in turn, in the view
of the SC, gives all guarantees as it is in the case of raising criminal chargers. The Supreme
Court justified this approach as follow: ‘The borderline between criminal delicts which are
punishable by (criminal) courts and delicts which are punishable by administrative organs,

65 See, L Kukliš, ‘Analógia v správnom trestaní a judikatúra Najvyššieho súdu Slovenskej republiky’ Právny
obzor 97(5) (2014) 465–68.
168 Comparative Media Law Practice – Slovakia

are defined by the will of law-maker and not by natural-legal principles’ (3 Sž 22/2013).
Currently, the SC applies this principle of analogy (argumentum per analogiam legis or
analogiae legis) on its own initiative. This actually prevents both sides—more practically
speaking, the RVR—to raise any objections since this is mentioned only in the verdict.66
Thus, the application of approach argumentum per analogiam legis is theoretically and
practically challenging in continental legal system in general, and in Slovakia in particular.
It is true that it is justified as based on Article 6(1) of the ECHR, and often used in
administrative judiciary (see verdicts of the SC 8 Sžo 28/2007, 8 Sž 18, 22, 23, 24/2011).67
This is being supplemented in legal practice by the Recommendation (91)1 of the Committee
of Ministers of the Council of Europe on Administrative Sanctions. There are mentioned
eight legal principles which are indeed currently part of the Slovak legal system. However,
it must be mentioned that the Slovak Constitution in Section 2(2) allows state organs to act
only within the framework of the law. This legal limitation or rather constitutional ban on
extra-legal action seems to be ignored by Slovak courts, including administrative collegium
of the SC.68 Neither the ECHR nor the Recommendation (91)1 seem to suggest possibility
of allowing application of criminal law procedures in the case of issuing sanctions based
on administrative law.69 Moreover, there is a great difference between principles utilised
in criminal law on the one hand, and direct application of criminal / delict procedures.70
Finally, the SC previously accepted two punishments for breaching a law in the same
programme (eg, 3 Sž 14/2008).71
Be that as it may, administrative organs must make decisions based on reliable factual
evidence. They also have to form a consistent and coherent decision-making structure (in order
to avoid significant differences). The Supreme Court decision No 3 Sž 4/2007 clearly states:

According to Section 245(2) of the Civil Procedural Order, the decision of an administrative
authority issued under the discretion permitted by law (administrative discretion), the court shall
examine only whether such a decision came within the limits and viewpoints laid down by law.
The court does not consider the effectiveness and appropriateness of the administrative decision.
This is a  mater of ethical evaluation of the facts on which the administrative discretion of the
defendant does not apply. The defendant is a collective representative body designated by law to
create objective judgment for similar situations. Creating judgment is not a factual circumstance,
therefore, it cannot be replaced by an expert opinion as requested by the plaintiff.

When assessing the content suitability according to the criteria laid down by the unified labelling
system, their extent, and intensity, the RVR approaches each case individually; it examines the whole
programme content and the context in which the unsuitable contents were broadcasted. In this
regard, Salajová criticised certain vagueness of this approach which ‘is being presented like individual
components, there is no clear guideline how to measure, it and the know-how is missing, too.’72

66 ibid, 465.
67 ibid, 460.
68 ibid, 459.
69 ibid, 461.
70 ibid, 463.
71 ibid, 464.
72 S Salajová, ‘Aplikácia’ (n 51).
 III. Electronic and Digital Media Regulations 169

Prior to issuing a sanction, the administrative organ in broadcasting matters (the RVR)
should consider the following conditions for determining a penalty: (BA Section (64(3))—
1. Define the severity of the issue (the level of importance).
2. The consequences of breaching a duty (method, duration, and consequences of the failure),
– the degree of negligence / fault and the extent (eg, whether it was a repeated breach
of that obligation);
– measuring the extent and the impact of broadcasting and retransmission, illegal
profit (unjust enrichment), and the number of alternatively issued sanctions by the
self-regulatory bodies.
In other words, it is a general list which refers to an unspecified circuit of infringements of
BA’s provisions.
In case of a broadcaster, there is an objective liability for an administrative offense without
the possibility of exculpation. This has been especially challenging in case of political
broadcasts. Obviously, each political subject has equal right (fulfilling stated conditions) for
political broadcast or participation in political debates before elections. Yet it is ultimately the
broadcaster who is responsible for the content of this broadcast. The administrative organs
have to pay attention to coherent decision-making in identical or similar cases to avoid
unjustified differences. The party and the stakeholder (účastník konania a zúčastnená osoba)
have the rights to suggest all forms of evidence, and ask questions to witnesses and court
experts during oral proceedings as well as at the local investigation place.
Administrative rules procedures clearly differentiate between breaking the law and
consequences of breaking the law. The former defines the actual act of breaking the law,
the latter implies the consequences in the scope of sanction (the amount of penalty). The
administrative statement must be in accordance with legal document and the law. The
statement must be issued by the corresponding body, fulfilling all the regulatory requirements.
The administrative statement must include the verdict (výrok), recital (odôvodnenie), and legal
guidance (poučenie o odvolaní – rozklade). Recital is not necessary only if all participating
subjects have been fully satisfied by the decision.
The verdict includes the decision on the matter (výrok obsahuje rozhodnutie vo veci) and the
legal document on which the decision was based. It may also indicate the duty of reimbursing
the costs of administrative procedures. If the above-mentioned obligation is included, the
administrative body gives a deadline for meeting conditions of the payment. This deadline
is defined by the special law, and cannot be extended. In the justification of the decision,
the administrative body sets out the facts which were the basis for the decision, and which
considerations guided its assessment of the evidence. Furthermore, it explains application of
the administrative discretion on laws which were the basis for the decision, and how it dealt
with suggestions and objections of the parties and their opinions on the supporting documents.
Although the provision does not explicitly state that the operative part of the verdict
must contain the matter, time, and destination of the proceedings which results in the
administrative offense, it is clear that only the operative part of an administrative decision
has the power to affect rights and obligations of the parties, and only it can gain the legal
force. Therefore, a correctly worded statement is an essential element of the decision. Only
the operative part provides the details whether and what obligation was breached / imposed;
only by comparing the operative part it is possible to determine the existence of a barrier in
the conclusive decision, elimination of the barrier ne bis in idem (double punishment for the
170 Comparative Media Law Practice – Slovakia

same act). It is important to determine the extent substantiation, and to ensure the proper
rights of defence. Only the operative part of the decision, and not the reasoning, may be
enforceable by an execution, etc. For these reasons, it is very important that the subject of
the proceedings is defined in the operative part of the decision on an administrative offense.
The administrative offense must be specified in the subject of the proceedings in a way that
sanctioned offense is not interchangeable with other proceedings.
When reviewing the legality of the decision and the procedure of an administrative
authority, the court’s task is to assess whether the substantively competent administrative
authority obtained sufficient factual documents to issue the decision, whether it identified
the true state of matter, whether it acted in conjunction with the parties, whether the decision
was made in accordance with laws and regulations, and contained the statutory requirements,
and thus, whether the administrative decision was issued in line with the substantive and
procedural regulations.
A court—when legally examining a decision of administrative authority—is not bound by
facts as documented by administrative body. In general, the administrative court has three
options; it may accept findings by administrative body, it may check again evidence already
provided by administrative body, or it can examine the facts (vykonať dokazovanie). The
administrative court can independently consider correctness and completeness of empirical
findings carried out by the administrative body. In the case the court finds procedural
or factual legal deficits, it may either ask the administrative body to remove, replace, or
supplement them, or it can do it through its own decision.
The legality of the decision of the administrative authority is conditional upon the legality of
the proceedings of the administrative authority prior to the issue of the contested decision. In
the case of the decision issued by the administrative authority under the discretion permitted
by law (administrative discretion), the court shall examine only whether such a decision
came within the limits and viewpoints provided for by law. For example, warning as a form
of sanction must have a preventive role. Therefore, it must include educative instructions.
In other words, warning as a form of sanctions must state clear rules for a specific type of a
program or topic, especially if breach of duties resulted as a consequence of elaboration or
presentation (Verdict SC 4 Sž 27/02).
In contrast to general administrative law, there are some exceptions from this Act (71/1967
Zb) which should facilitate more complicated type of administrative procedures of the RVR.
There are two types of administrative procedures, which can be related to a) sanctions and b)
the typical administrative issues, such as awarding licenses and retransmission registration.
In the case of (possible) sanctions, the RVR acts ex officio. This means that, even when
the official complaint is being submitted, the RVR—according to administrative law
procedure—does not have to act further. The Council for Broadcasting and Retransmission
considers any complaint as a piece of information, and therefore, may or may not decide
to act based on the given information.73 However, each official complaint must be assessed
by the RVR in the compulsory voting. It may be declared unjustified, legally impossible to
deal with (nepreskúmateľný), or relevant for closer legal examination under administrative
procedure.74 Yet, the administrative procedure is started ex officio by the RVR. A complaint

73 Ľ Kukliš, Ľuboš, Regulácia elektronických médií (Bratislava, Wolters Kluwer, 2015) 167–68.
74 ibid, 168.
 III. Electronic and Digital Media Regulations 171

is not legally deemed as its basis. There is no explicit statutory obligation for the RVR to
pass any decision; the BA only mentions the disappearance of punishable administrative
offenses (zánik trestnosti správneho deliktu). Yet, according to Ľuboš Kukliš,75 then the general
principle of the rule of law, that every legal procedure against a person has to be concluded
by the decision, gets priority.
Decision-making is thus always based on voting. As mentioned before, there is a minimum
threshold of seven members to consider voting a legal act, of which at least one member must
be the Chair or a Vice-Chair of the RVR. The legally valid RVR decisions are obligatory for
all of its members (even those who voted against a particular ruling). Legally valid decisions
can be changed only through another voting, but with the legal limitations, following such
cases (under condition that the law allows that). A resolution (uznesenie), in contrast to
administrative decisions (rozhodnutie), can be changed. The legally valid RVR decision may
have immediate legal effects, once it is delivered to the addressee. These cases may occur
when the RVR explicitly mentions immediate legal effects of a particular decision. Generally,
it can also happen in all cases when the BA does not allow appeal procedure, or after the
termination of the appeal period. The first case is typical when the RVR grants frequencies
or licenses in procedure with more than one applicants.76 The Council for Broadcasting and
Retransmission legal acts are in personam, meaning that their legal effects focus primarily on
the addressee.77
Sometimes the procedural acts seem to be confusing for the lawyers, too. For example,
the SC in its ruling 4 Sž 1/2010 explained that, in general, the administrative procedures
and appeals belong to regional (and not local) courts. Exceptions are defined by the law.
These exceptions can be higher court (the SC) or (lower) regional district courts. According
to the BA, it can be, in addition to regional courts, or independently, only higher court. The
Supreme Court further explained that the BA (Section 64) explicitly mentions that, in the
case of temporarily stopping broadcast of a part or a full program, it is possible to appeal to
the SC, and issue a fine and license revocation due to serious breach of duties. However, in the
case of ‘warning with respect to breach of the law and the duty to broadcast announcement
about breaking the law’, there is no explicitly defined appellate for the SC.
The Supreme Court acknowledged that sometimes fuzzy legal terminology had been used,
and therefore it is hard to understand, eg, according to the SC (Ruling 5 Sžo 8/2012 SC), the
BA legal framework in Sections 48 and 48(7), 49, along with 49(6) and 49(8). The written
text was very ambiguous, and therefore can cause problems with interpretation. However,
today’s case law has sorted out this issue in a way that it allows the judicial review of both
parts of verdict.
This issue (in which the SC was a bit confusing) dealt with decision to award a license to a
specific applicant, and reject identical requests to all other potential applicants, in a separate
legal documents (see also 5 Sž 10/2009). According to SC, the decision of award the license
to one and to reject the others, should be perceived as unitary, and therefore cannot be
separated. The Supreme Court accepted that the BA mentions (Section 49(6)) legal validity
of a license from the day when the RVR has received written statement from an applicant

75 ibid, 169.
76 ibid, 168.
77 ibid, 171–72.
172 Comparative Media Law Practice – Slovakia

stating that he had accepted the license. Nevertheless, this decision should be perceived as a
complex decision.
As mentioned, responsibility for political broadcasting (Section 64(1) of the Act 308/2000)
is objective, therefore, it does not matter to what degree the broadcaster was culpable—
whether the breach of law was intentional, or caused by negligence. It is sufficient that there
is an act of breaching of the duties laid by the law (Verdict SC 4 Sž 145/02). Interestingly, the
law on Election Campaign Act 181/2014 gives the responsibility for the content of political
advertising exclusively to political parties (as it was in the previous law), while for decision to
allow its broadcasting is with the broadcaster. This (previous) general regulation has already
caused some problems in 2014/15 (under the previous BA law) when during the campaign
before referendum on family related issues, initiated by the Christian activists, some TVs
refused to broadcast ads produced by Christian activists, arguing that the other side (mostly
gay-lesbian groups) were not interested in campaigning in the media. In other words, there
would be no balance of points of views of both groups. Currently, supervision of rules on
elections campaigns is split among regional state authorities, the Ministry of Interior, the
State Election Committee as well as the RVR.
With regard to the RVR, it had to issue many non-binding guidelines with respect to
needed clarifications related to broadcasting aspects of various campaigns in the past. These
included Guidelines for legislation on campaign in the media before referendum in February
2015,78 Commentary on campaign in the media before elections to the EP in 2014,79
Commentary on campaign in the media before presidential elections in 2014,80 Statement of
the RVR with respect to campaign in the media before elections to self-governing bodies in
2013,81 Commentary on campaign in the media before parliamentary elections in 2012,82
and Commentary on campaign in the media before local elections in 2012.83
The Council for Broadcasting and Retransmission is bound by the law (Section 5) to
cooperate (which obviously implicitly includes consultations) with the self-regulatory bodies
in the area of broadcasting and retransmission. Providing of the AVMSD in creation of the
efficient self-regulatory systems is also included, although all of these cooperation systems
do not function. Yet these verdicts of the Advertising Bureau (AB) have rarely anything in
common with broadcasters as such (which are subject to competency of the RVR decision-
making) but rather with content of ads. The Advertising Bureau forwards complaints
belonging not to its competency to the RVR. There are no self-regulatory bodies, except
the AB. The Council claims that it is not informed about sanctions issued by self-regulatory
bodies, while the Executive Director of the AB Eva Rajčáková argued that all minutes and
verdicts issued by the AB are available on their website as well as disseminated via other
communication tools.84 In general, there is little overlap in regulatory rights and duties
between the RVR and the AB respectively. The Advertising Bureau imposes sanctions on
advertising agencies, while the RVR sanctions broadcasters. For information, the major issue

78 http://www.rvr.sk/sk/spravy/index.php?aktualitaId=2856.
79 http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1448; http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1448.
80 http://www.rvr.sk/sk/spravy/index.php?aktualitaId=2368.
81 http://www.rvr.sk/sk/spravy/index.php?aktualitaId=2129.
82 http://tp://www.rvr.sk/sk/spravy/index.php?aktualitaId=1448.
83 http://www.rvr.sk/sk/spravy/index.php?aktualitaId=1449.
84 Telephone interview on 5 March 2015 by Andrej Školkay.
 III. Electronic and Digital Media Regulations 173

of complaints related to commercials in the case of the AB were truthfulness of advertising,

followed by incomprehensibility and multiple meaning of ads, as well as explicitly or implicitly
sexual commercial messages and human dignity in general. The Advertising Bureau deals
more and more with ads on the Internet, including Youtube videos, search engine results, PR
articles, and spam. Moreover, the AB deals with complaints targeting its members and non-
members as well. While in the case of its members, almost 100 per cent of its verdicts had
been accepted, in the case of non-members, this ratio was about 50 per cent.
Be that as it may, the problem is that some issues may be tackled simultaneously by both
bodies. Although the sanctions issued by the self-regulatory bodies should be considered
when issuing fines (in particular Section 64), this system has not been applied in practice yet.
There was an ad hoc consultation among the Chairpersons of the RVR, the Association of
Independent Radio and Television Stations, and the International Press Institute in February
2014 about the expectations for the year 2014. It was expected, according to the plan approved
by the Parliament, that the RVR would collect a total value of fines of 340,000 euro which
was approximately the double of the annual average.85 In general, the industry would prefer
abolishing any regulation rather than to work on its improvement.
The report on investigation of the complaint is, legally speaking, not the basis for the
decision; it is a working material of the Office of the RVR, which is exclusively informative,
and the RVR is not bound by it in any way (there is identical legal opinion of the Supreme
Administrative Court of the Czech Republic on this issue, see 2 As 58/2008-77). However,
practically speaking, it is a rather relevant material for decision making. The role of the
ECtHR and recently involvement of the Court of Justice of the EU (CJEU) into regulation of
off-line and on-line media services should be mentioned too. The European Court of Human
Rights sets some key principles which the administrative SC Senates and the RVR should
take into consideration. In the traditional realm of television broadcasting, ECtHR issued an
interesting judgment. In Vest AS and Rogaland Pensjonistparti v Norway (App No 21132/05,
judgment of 11 December 2008), ECtHR argued that the position of a fine on a television
station for having broadcast an advertisement by a small political party, in breach of the
statutory prohibition of any televised political advertising, presented violation of Article X.
This was indeed a surprising and important verdict. The important legal context was the
ban of any political advertising. The European Court of Human Rights mentioned that it
was prepared to accept that the lack of European consensus in this area spoke in favour of
granting Member States greater discretion than it would normally be allowed in decisions
with regard to restrictions on political debate.
The rationale for the statutory prohibition on television broadcasting of political advertising
had been, as stated by the Supreme Court of Norway, the assumption that allowing the use
of such a powerful and pervasive form and medium of expression was likely to reduce the
quality of political debate generally. Complex issues could easily be distorted, and financially
powerful groups would get greater opportunities for marketing their opinions, argued
ECtHR. However, the Norwegian Pensioners Party did not come within the category of
parties or groups that were the primary targets of the prohibition of political broadcast in
Norway. On the contrary, it belonged to a category which the ban in principle had intended
to protect. Furthermore, in contrast to the major political parties, which had been given

85 http://www.anrts.sk/wp/?p=636.
174 Comparative Media Law Practice – Slovakia

wide edited television coverage, the Pensioners Party had hardly been mentioned, stated the
ECtHR. Therefore, paid advertising on television had been the sole means for the Pensioners
Party to get its message across to the public through that type of medium. Having been
denied this possibility under the law, the Pensioners Party had moreover been put at a
disadvantage in comparison to the major parties. Finally, the specific advertising at issue,
namely a short description of the Pensioners Party and a call to vote for it in the forthcoming
elections, had not contained elements apt to lower the quality of political debate or offend
various sensitivities.
In those circumstances, the fact that television had a more immediate and powerful
effect than other media (this seems to be a questionable claim by the ECtHR) could
not justify the prohibition and fi ne imposed on TV Vest. Therefore, there had not been
a reasonable relationship of proportionality between the legitimate aim pursued by the
prohibition and the means deployed to achieve that aim, concluded the ECtHR. The
restriction which the prohibition and the imposition of the fi ne had entailed on the
applicants’ exercise of their freedom of expression could not be regarded as having been
necessary in a democratic society, notwithstanding the margin of appreciation available
to the national authorities.
This is a highly surprising decision which justifies possible breach of broadcasting or
election campaign law in any country in the future if there is a general ban on political
broadcasting. Yet in Slovak context, this is irrelevant since political broadcasting is allowed,
with exception of local and regional elections.
Furthermore, there is the ECtHR verdict that seems to suggest the opposite perspective
on political advertising. The case of Animal Defenders International v the United Kingdom
(App No 48876/08) was decided in 2013.86 It started in 2005, when a non-governmental
organisation began a campaign called ‘My Mate’s a Primate’ which was directed against
the keeping and exhibition of primates and their use in television advertising. As part of
the campaign, the applicant wished to broadcast a twenty-second television advertisement.
The proposed advertisement was submitted to the Broadcast Advertising Clearance Centre
(BACC) for a review of its compliance with relevant laws and codes. The BACC declined to
clear the advertisement. The objectives of the applicant were according to the BACC ‘wholly
or mainly of a political nature’ so that Section 321(2) of the Communications Act of 2003
prohibited the broadcasting of the advertisement.
The Animal Defenders International maintained that the prohibition was disproportionate
because it prohibited paid ‘political’ advertising by social advocacy groups outside of
electoral periods. The UK Government argued that the prohibition was necessary to avoid
the distortion of debates on matters of public interest by unequal access to influential
media by financially powerful bodies and, thereby, to protect effective pluralism and the
democratic process. The term ‘political advertising’ used herein included advertising on
matters of broader public interest.
The ECtHR argued that nation-states are best placed to assess ‘the particular difficulties
in safeguarding the democratic order in their State’, and ‘must therefore be accorded some
discretion as regards this country-specific and complex assessment which is of central
relevance to the legislative choices at issue.’ The ECtHR attached considerable weight to

86 See, http://hudoc.echr.coe.int/fre?i=001-119244#{%22itemid%22:[%22001-119244%22]}.
 III. Electronic and Digital Media Regulations 175

exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex
regulatory regime governing political broadcasting in the UK. The ECtHR also considered
that a range of alternative media were available to the NGO. This verdict was passed narrowly
by nine votes to eight. Furthermore, eight judges issued their dissenting opinions in two
separate statements, and one judge issued concurring opinion.
Also, the CJEU plays increasingly important role in regulation of some online services.
The most important guideline seems to be that coming from joined cases C-509/09 and
C-161/10. In these cases, the CJEU considered the scope of the jurisdiction of national courts
to hear disputes concerning infringements of personality rights committed via an Internet
site. The CJEU ruled that

in the event of an alleged infringement of personality rights by means of content placed online on
an internet website, the person who considers that his rights have been infringed has the option
of bringing an action for liability, in respect of all the damage caused, either before the courts of
the member state in which the publisher of that content is established or before the courts of the
member state in which the centre of his interests is based. That person may also, instead of an action
for liability in respect of all the damage caused, bring his action before the courts of each MS in the
territory of which content placed online is or has been accessible. Those courts have jurisdiction only
in respect of the damage caused in the territory of the member state of the court seised.

The above discussed issue may be highly relevant for broadcasting too. Currently, the
majority of viewers in Slovakia was receiving TV signals either via satellite (51 per cent)
or cable networks (39 per cent). Th is means that the Slovak viewers can access foreign
programmes, and some foreign viewers, especially the Czech viewers who have little
difficulty to understand the language, may watch Slovak broadcasting. In addition, many
service providers broadcast live on the Internet, and archive their programmes (by law at
least 30 days, and with exception of copyright protected works) on the Internet.

A. Analytical Summary

It is difficult to assess whether rules of administrative procedures are simple or complicated,

efficient or not. This could be seen only by international comparison. An important finding
(at least for the international audience) is that although the Slovak legal system is perceived
as not based on the case law, in fact, the case law plays an important role especially in the
administrative courts.
The above cited first verdict of the ECtHR does not seem to resonate within local
administrative organs and, to a lesser degree, courts’ practice. In other words, it would be
extremely difficult to imagine that the RVR would ignore the valid law. It is more likely that
the CC or perhaps the SC would accept, following the ECtHR case law, breaking the valid
law in favour of freedom of speech. Yet it is true that Slovak legislation regulating political
broadcasting is rather different, currently allowing even ‘third subjects’ after registering, to
participate in election campaigns.
176 Comparative Media Law Practice – Slovakia

VI. Protection of Human Dignity

The Preamble of the Universal Declaration of Human Rights (UDHR) stipulates that the
‘recognition of the inherent dignity and of the equal and inalienable rights of all members of
the human family is the foundation of freedom, justice, and peace in the world.’ Consequently,
in Article 1 it states that: ‘All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.’ The UDHR does not create binding international human rights law
in form. The Constitutional Court decided in 1997 that the UDHR does not belong to the
legal system of Slovakia (II. ÚS 18/97, 25 March 1997). In other words, it cannot be used as
a source of rights in the Slovak legal system. The Court justified this ruling on the basis that
it has not been ratified and published in the Collection of Laws, according to Article 11 of
the Constitution.
Yet human dignity is of central importance in human rights law. The dignity of the hu-
man person is not only a fundamental right in itself but constitutes the basis of fundamental
rights in international law.87 ‘The essence of the whole corpus of international humanitarian
law, as well as human rights law, lies in the protection of the human dignity of every person,
whatever his or her gender. The general principle of respect for human dignity is the basic
underpinning and indeed the very raison d’ être of international humanitarian law and hu-
man rights law; indeed in modern times it has become of such paramount importance as to
permeate the whole body of international law. This principle is intended to shield human
beings from outrages upon their personal dignity, whether such outrages are carried out by
unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or
the mental well-being of a person.’88Both the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, and Cultural Rights refer to
inherent dignity of the human person.
According to Article 1 of the Charter of Fundamental Rights of the European Union,
‘Human dignity is inviolable. It must be respected and protected.’Protocol No 13 of the
ECHR, concerning the abolition of the death penalty in all circumstances, refers to the
inherent dignity of all human beings. The claim of human dignity is that simply being
human makes one worthy or deserving of respect. Human rights can thus be understood
to specify certain forms of social respect—goods, services, opportunities, and protections
owed to each person as a matter of rights—implied by this dignity. And the practice of
human rights provides a powerful mechanism to realize in the social world the underlying
dignity of the person. Human rights thus are based on but not reducible or equivalent to hu-
man dignity (or related notions like human needs, well-being, or flourishing). Human rights
are one particular mechanism—a particular set of practices—for realizing a certain class of
conceptions of human dignity. Therefore, human rights go beyond the inherent dignity of
the human person to provide mechanisms for realizing a life of dignity (Donnelly, 2009).89

87 The Human Dignity Trust, ‘Why the Human Dignity Trust?’ http://www.humandignitytrust.org/pages/
OUR%20WORK/Why%20Human%20Dignity.
88 The Prosecutor v Anto Furundžija, judgment, Case No IT-95-17/1-T, T.Ch. II, 10 December 1998, 183.
89 J Donnelly, ‘Human Dignity and Human Rights’ Protecting Dignity: An Agenda for Human Rights. Swiss
Initiative to Commemorate the 60th Anniversary of the UDHR (2009).
 III. Electronic and Digital Media Regulations 177

The Constitution of the Slovak Republic follows the text of UDHR in Article 12(1) (‘All
human beings are free and equal in dignity and in rights. Their fundamental rights and
freedoms are and irreversible.’). Further, Article No. 19, Paragraph 1, lays down fundamental
(human) right to protection of human dignity (‘Everyone shall have the right to maintain
and protect his or her dignity, honour, reputation and good name.’)
According to Article 7 of the European Convention on Transfrontier Television (ECTT)
all items of programme services, as concerns their presentation and content, shall respect the
dignity of the human being and the fundamental rights of others. In particular, they shall not:
a) be indecent and in particular contain pornography;
b) give undue prominence to violence or be likely to incite to racial hatred.

A. Human Dignity and Broadcasting

The importance of specific protection of human dignity in media law can be explained
by functions and characteristics of media. Media provide space for various opinions and
communications (including offensive content), has significant influence on the audience
and the whole of society, symbolizes the democratic system and provides a picture of the
functioning of society.90
Recommendation 2006/952/EC of the European Parliament and of the Council of 20 Decem-
ber 2006 on the protection of minors and human dignity, and on the right of reply in relation to the
competitiveness of the European audiovisual and on-line information services industry [Official
Journal L 378 of 27.12.2006] calls on Member States to take the necessary measures to ensure that
human dignity is better protected across all audiovisual and on-line information services.
Article 4 of AVMSD allows Member States to take measures necessary for the prevention,
investigation, detection and prosecution of criminal offences, including violations of human
dignity concerning individual persons. Article 9 of the AVMSD imposes a duty on Member
States to ensure that audiovisual commercial communications do not prejudice respect for
human dignity.
At the national level whole Paragraph 19 of the BA is dedicated to protection of hu-
man dignity and humanity. First at all, a programme service and all of its parts must not
impact on human dignity and the basic rights and freedoms of others through its processing
and content. Consequently, in Section 2, the BA stipulates what must not be included in a
programme service and all of its parts (eg, propagation of violence and war, extracts from
works illustrating use of guns and environmental devastation, etc.).

B. What is Human Dignity?

The most horrific stories related to degradation of human beings’ dignity come from memories
of Auschwitz survivors. Probably the most famous book is Primo Levi’s If This is a Man.
The book starts with the poem asking its readers to consider if they could still define as

90 A Koltay, ‘The Protection of Human Dignity in Hungarian Media Regulation’ German Law Journal 14
(2013) 832.
178 Comparative Media Law Practice – Slovakia

a ‘man’ someone ‘Who works in the mud / Who does not know peace / Who fights for a
scrap of bread / Who dies because of a yes or a no.’ This can be certainly seen as a very basic
concept of human dignity. Similarly, the book What Dante Never Saw, written by Alfréd
Wetzler (or Jozef Lánik), based on similar experience, described the degradation of human
dignity in German concentration camps in the same way. It can be argued that since WWII,
and based on the experiences described above, the concept of human dignity is of paramount
importance in Europe.
Currently, it seems that in Europe and in many other countries, but probably not
universally, human dignity is understood in a way that each individual has a unique
value, and therefore respect towards each person does not depend on any peculiar
personal feature or quality of that particular person.91 Some argue that acknowledging
other human beings is the core of the basic ethical law which can be found in all
known religions.92 This would mean that religions are the first moral systems directly
associated with human dignity. This is maybe correct with respect to modern religions,
but not necessarily with respect to the first pagan religions. Furthermore, considering
that even the modern religions most relevant in Europe (Christianity, Islam, and
Judaism) put a God first, and not a human being, this is an even more controversial
statement. Anyway, Vasil Gluchman has raised an interesting question, claiming
that not all moral subjects may have equal human dignity. Gluchman believes that
somebody who actually denies another person human dignity does not himself deserve
to be treated with the respect due to human dignity. Gluchman brings Dr Mengele in
Auschwitz as an example.93
The fact is that human rights issues, especially those related to human dignity, may still be
seen as controversial. This was clearly seen as two dissenting opinions of the judges of the CC
of Slovakia related to the referendum initiative by Christian activists in late 2014. The two
judges of the CC expressed their public concern that the CC did not consider human rights
sufficiently broadly. In other words, how can one be sure what constitutes and what does not
constitute human rights, and, by extension, human dignity, when the judges of the CC do
not agree on this issue?
Indeed, Slovak philosophers Vladimír Seiler and Božena Seilerová explicitly mention in
one of their studies on human dignity that rights and freedoms are given to an individual
by a community.94 They pointed out that the first historical natural rights conceptions
of human society actually contradicted all modern constitutions of states that considered
private property as natural and untouchable. Furthermore, they noted that natural rights
conception can be used to justify any conception of positive law.95 They concluded that
human dignity is defined by relationships in a society. However, this statement has again
been seen as controversial, although in a different situation. In 2009, during the presidential
campaign, one of the candidates, Iveta Radičová claimed that ‘what is seen as ethical and

91 G Collste, Is Human Life Special? Religious and Philosophical Perspectives on the Principle of Human Dignity
(Bern–Berlin, Peter Lang, 2002) 15.
92 M Mráz, ‘Humanistické aspekty ľudskej dôstojnosti’ http://www.uski.sk/frames_files/ran/2004/cl040107.htm.
93 V Gluchman, ‘Rozličné kontexty idey ľudskej dstojnosti’ http://www.klemens.sav.sk/fiusav/doc/
filozofia/2004/1/69-74.pdf.
94 V Seiler and B Seilerová, Ľuďská dôstojnosť – axióma ľudských práv (Kežmarok, Seiler–Seilerová, 2010) 69–70.
95 ibid, 73.
 III. Electronic and Digital Media Regulations 179

unethical is purely a matter of social contract.’ This statement was so controversial in a public
discourse that the presidential candidate Radičová had to issue an apology to a representative
of the Catholic Church.
The legal concept of human dignity is thus not definite. The aforementioned legal sources
do not contain any definition of human dignity, which therefore remains rather vague.
Indeed, ‘The concept of human dignity is very abstract and the legal texts never contain any
proper definition. . . . An additional difficulty is that the concept of human dignity belongs
to the realm of morals and morality in which sensitivities differ greatly. The terms used and
the degree of precision of national legislation may vary widely, but there is evidence of a
consensus on the fact that the respect of human dignity includes certain core notions, such
as the prohibition of the exploitation of physical or mental suffering, the invasion of privacy
or the treatment of a person as an object. As a consequence, the range of issues that can
come under the heading of the protection of human dignity is very broad. It may encompass
issues of racism, gender, sex, violence, privacy, etc.’96 It seems that the term ‘human dignity’
is undefinable, but the value expressed by it should receive some protection. András Koltay
states that, ‘The law cannot define human dignity, cannot summarize all of its sub-elements,
and cannot grasp its essence in a technical sense; however, the law can protect human dignity
even in the absence of a detailed definition.’97
Slovak constitutional law distinguishes between human dignity and personal honour.
Pursuant to Article 19(1) of the Constitution of the Slovak Republic, everyone has the right
to the preservation of human dignity, personal honour, reputation and the protection of good
name. ‘Honour is characterized in the literature as an intangible value that an individual
achieves by being integrated into society, and which maintains by his morally satisfactory life
and behaviour. Dignity is equally immaterial in nature, and is more a result of the integration
of a person in a social position by such work, managerial, management, professional, busi-
ness, scientific, artistic values that are the result of the work of each individual.’98 It seems
that Slovak courts do not need legal definition of human dignity as they do not try to define
it. They generally use an axiomatic approach, and usually adjudicate legal disputes without
any reference to characteristics of the term offered by legal theory.
It should be mentioned that a foetus (an unborn child, if subsequently born alive) also
has human dignity and right to its protection. According to the opinion of Advocate Ge-
neral Bot (Case C34/10), human dignity is a principle which must be applied not only to
an existing human person, to a child who has been born, but also to the human body from
the first stage in its development, ie, from fertilisation. Post-mortem protection of human
dignity is guaranteed by civil law as well as administrative regulation. For example, the RVR
in its decision from 14 September 2010 fined a broadcaster for violating human dignity of
the deceased Polish president. Comparatively in the decision of 26 April 2011 (5 Sž 13/2011),
a broadcaster was fined for footage of Georgian luger’s death ahead of the opening of the
2010 Winter Olympics. Both decisions have been reviewed and upheld by the SC.

96 The issue of Human Dignity, Background Paper, EPRA/2000/07.

97 Koltay, ‘The Protection of Human Dignity’ (n 90) 823.
98 A Blaha, ‘Rešpektovanie súkromia’ S Koperdak (ed), Práva a povinnosti médií v právnom systéme Slovenskej
republiky a v medzinárodnych právnych systémoch (Bratislava, ProMedia Slovakia, 1998) 6–10.
180 Comparative Media Law Practice – Slovakia

C. Three Levels of Human Dignity

There are three levels of human dignity and its protection we can distinguish: a) human
dignity as a concept; b) human dignity of a certain group of individuals, and c) human
dignity of an individual. Similarly, David Feldman writes about the different levels at which
human dignity operates: ‘the dignity attaching to the whole human species; the dignity
of groups within the human species; and the dignity of human individuals.’99 The first
type of human dignity has objective character, the second has both objective and subjective
characters, while the third one concerns the subjective aspect of dignity.
Human Dignity as a concept: The good example of protecting human dignity which is not
linked with any person or group of people in particular was shown in the case C-36/02 Omega
Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn.
Omega, a German company, had been operating an installation known as a ‘laserdrome’, for
the practice of ‘laser sport’ in Bonn. The object of this game included hitting sensory tags
placed on the jackets worn by players. On 14 September 1994, the Bonn police authority
(Oberbürgermeisterin) issued an order against Omega, forbidding it to ‘facilitate or allow
in its . . . establishment games with the object of firing on human targets using a laser
beam or other technical devices (such as infrared, for example), thereby, by recording shots
hitting their targets, “playing at killing” people’. The dispute had proceeded inter alia to
Federal Administrative Court (Bundesverwaltungsgericht) which had taken the view that
the commercial exploitation of a ‘killing game’ constituted an affront to human dignity.
At the case at issue Federal Administrative Court had dealt with the protection of the
constitutional principle of human dignity. This value had been infringed: ‘by the awakening
or strengthening of an attitude in the player to deny the fundamental right of each person to
be acknowledged and respected, such as the representation, as in this case, of fictitious acts
of violence for the purposes of a game.’ There had been no individual person or social group,
whose dignity should have been affected. The value protected had been human dignity as
a concept. However, this court had also referred a question to the CJEU concerning the
compatibility of the order with the provisions on freedom to provide services and the
free movement of goods contained in the Treaty establishing the European Community.
The CJEU decided that the order of 14 September 1994 cannot be regarded as a measure
unjustifiably undermining the freedom to provide services. Furthermore, Community law
does not preclude an economic activity consisting of the commercial exploitation of games
that simulate acts of homicide from being made subject to a national prohibition measure
adopted on grounds of protecting public policy, based on the reason that this activity is an
affront to human dignity.
Human Dignity of a Certain Group of Individuals: It is also possible to protect the human
dignity of a group of people without pointing to the human dignity of its individual members.
In 2005, Doğu Perinçek, a doctor of law and the Chairman of the Turkish Workers’ Party,
took part in a series of events in Lausanne (Canton of Vaud), Opfikon (Canton of Zürich)
and Köniz (Canton of Berne) respectively, during which he publicly denied the genocide of
the Armenian people by the Ottoman Empire in 1915 and the subsequent years, describing
the idea of an Armenian genocide as an ‘international lie’. The Swiss courts found him guilty

99 D Feldman, ‘Human Dignity as a Legal Value – Part I’ Public Law (1999, Winter) 682, 689.
 III. Electronic and Digital Media Regulations 181

of racial discrimination under the Swiss Criminal Code. The Federal Court in its judgment
of 12 December 2007 (ATF 6B_398/2007) stated that the conviction of Perinçek is intended
to ‘protect the human dignity of the members of the Armenian community, who identify
themselves through the memory of the 1915 genocide.’ In December 2013 the ECtHR ruled
(by 5 – 2) that Switzerland had violated Doğu Perinçek’s right to freedom of expression. This
decision does not deny the possibility to protect human dignity of group of people in general.
However, Judges Guido Raimondi and András Sajó stated in their joint concurring opinion:

Dignity as a ground for restriction of rights is ambiguous, even if dignity is often understood as
a fundamental value for human rights protection. Of course, the dignity of an individual may be
violated when the humanity of the group is denied or diminished. This is the case when their equal
humanity is denied on the grounds of their belonging to a group that is alleged not to be part of
humanity. However, we do not see how the dignity of members of the Armenian community is
affected in the above sense by the denial of the existence of a master plan of extermination by Talaat
Pasha and his cronies, unless such a statement can be understood as calling the genocide-related
component of the Armenian identity a falsification.

The Perinçek case continued as Switzerland decided to request that the case be referred to the
Grand Chamber for a new look at the issue. In this proceedings Armenia was involved as a
third party. Although the case was decided in favour of Perinçek on 15 October 2015, the
Grand Chamber recognised the communal identity and dignity of present-day Armenians.
Human Dignity of an Individual: There are many cases where the human dignity of an
individual was protected by decision of state body applying public law. For example, on
6 February 2007, the Hannover Administrative Court (Verwaltungsgericht Hannover)
rejected two appeals filed by the broadcaster RTL against decisions of the Commission for
the Protection of Youth in the Media (Kommission für Jugendmedienschutz). One of the
two programmes at issue reported on the rescue of a helpless old man. The programme
repeatedly showed images secretly filmed by a private individual, in which the nurse beat the
man, and made inhumane comments about him. The Court alleged that the human dignity
of the helpless man had been breached.

D. Slovak Media Regulation—Protecting the Human Dignity

as a Concept or the Human Dignity of Individuals?

It might be quite interesting to observe, which level(s) of human dignity are protected by
Slovak media regulation. The Council for Broadcasting and Retransmission had decided
on 23 September 2008 (RP 29/2008) that a television broadcaster breached statutory duty
concerning the protection of human dignity imposed by Paragraph 19 of the BA. The Council
justified that the programme at issue (Nevera po slovensky) might have depicted persons
exposed to psychological suffering in a way that is considered an unjustified infringement
on human dignity. Nevera po slovensky was a Slovak reality show following format of the
American hidden camera reality television series about people suspected of committing
adultery or cheating on their partners (Cheaters). The Slovak programme contained a number
of scandalous confrontational scenes that were based on the discovery of infidelity in front of
182 Comparative Media Law Practice – Slovakia

television cameras, with both spouses present, as well as the interested extramarital partners.
These people were presented in tense situations and in critical emotional states. The individual
stories did not significantly differ. The story always began with suspicion of one of the partners
of the other’s infidelity. The suspected partner is observed and investigated by a detective,
showing surveillance footage with the commentary of a male voice to the suspecting part-
ner, who is consequently asked to give consent to publish the rest of the reportage, in which
they learns whether their partner is really unfaithful. The consent was a prerequisite to show
another part of the story, which often contains dramatic confrontational scenes.
The broadcaster appealed to the SC and argued that the whole programme represented
people who voluntarily participated in the production under a contractual relationship with
the producer. Moreover, these people had been paid actors who had only followed the scenario.
Therefore the infringement of human rights could not occur in the way presented by the RVR.
The Council stated that the programme had shown people in humiliating and undignified
situations, and an average viewer had not been able to recognize that the programme was mere
staged drama with a certain scenario. To sum up both parties’ position in the proceeding before
the SC, the applicant (broadcaster) stressed the (lack of) impact on human dignity of the actors,
while the respondent (the RVR) emphasized the impact on human dignity of an audience.
According to the SC (3 Sž 82/2008, 15 January 2009) the position of the respondent was
based on the text of Explanatory Report to the ECTT where to infringe upon human dignity it
is sufficient to broadcast such content which could objectively be capable to infringe upon human
dignity. Contrary to that, the formulation of the BA requires the individualization of the violation
of human dignity and the freedoms of others. This means that there must be a particular person
whose human dignity was infringed upon. The Supreme Court therefore remanded the decision
of the RVR. With regard to this case, the administrative protection of human dignity provided
by the RVR should be focused on human dignity of individuals, not human dignity as a concept.
A different approach can be observed under the conditions of Hungarian law, where the
occurrence of the violation of individual (personal) rights is not necessary for the establish-
ment of the violation of dignity under the media regulations. This opinion is also shared by
the Hungarian Supreme Court.100

E. Protection of the Human Dignity of Groups

It should be noted that the protection of personality rights (including human dignity) of
groups by the means of Slovak civil law is generally not possible, because only an individual,
natural person is considered to be a right-holder. There must always be one or more individuals
(plaintiffs) claiming (and consequently proving) that their rights have been breached.
Personality rights always belong to a specific individual.101 Of course, it might theoretically
happen that the behaviour of a natural person or legal entity affects the human dignity of a
whole group of individuals (eg, a social or ethnic group), and one or more members of such
group might bring an action claiming that such behaviour infringed upon their (individual)
human dignity. But there has been no court ruling upholding such an action.

100 Koltay, ‘The Protection of Human Dignity’ (n 90).

101 I Fekete, Commentary on Civic Law. Epi.sk.
 III. Electronic and Digital Media Regulations 183

It seems that the human dignity of a group of individuals is protected by the administrative
media regulation. At least that is what the construction of the RVR and the SC suggests.
Council for Broadcasting and Retransmission fined a broadcaster for infringing upon the hu-
man dignity of the social group of pensioners (RP 34/2011, 21 June 2011). The programme
contained information that the negative demographic development of the population in
Slovakia, as well as in other countries, is significantly affected by progress in medical science,
which is able to prolong the lives of people, and as a consequence, citizens of retirement age
will receive pensions for a longer period than before. The Council expressed the view in its
decision that the statement of the editor contravened not only the respect for elder people but
the respect for all human life.
In the proceedings before the SC, the broadcaster argued that the group of pensioners
is not a sufficiently individualised subject, and consequently, the administrative offence set
forth in Article 19(1)a could not have been committed. The Supreme Court agreed that
subject to interference must consist of specific rights of persons who can be identified. This
does not mean that such persons must be specifically named, or identified by certain personal
data; interference with the right to human dignity can be directed also against a whole group
of people, and such a group must be objectively identified and identifiable. The group of
pensioners is specifically and unmistakably identified even if individual members of the group
are not named. Accordingly, the SC did not accept the objection raised by the broadcaster,
and affirmed the decision of the RVR (6 Sž 17/2011, 14 December 2011).
It should be mentioned here that similar complaints regarding human dignity of
pensioners was actually raised by viewers in 2005/06. The complaint touched advertisements
by the insurance company AEGON, broadcast by TV Markíza, TV JOJ, TA3, and STV.
The headline the commercial used was ‘You are not supposed to remain a burden’ (‘Nemusíte
zostať na krku’). The image was an old man sitting on shoulders of a young man. Both the
RVR and the Advertising Council rejected this complaint as not substantiated.

F. Protection of Human Dignity

Public Regulation vs Civil Law Disputes

The protection of human dignity is covered by various branches of law. While the Slovak
criminal law is predominately used in cases related to the protection of sexual dignity, the Slovak
civil law is more often used in libel and defamation cases.102 When it comes to employment
law, the ban on mobbing and bossing is a good example of the protection of human dignity. Of
course, the protection of human dignity is also provided in the constitutional law branch. The
Constitutional Court decides on complaints by natural persons or legal persons on violations
of their fundamental rights or freedoms, including the (fundamental) right to the protection
of human dignity. Administrative law also provides protection of human dignity and media
regulation outcomes (decisions of the RVR) are part of it. Sometimes it is not easy to determine
the boundary between the civil and administration protection of human dignity.
Human dignity is inter alia protected by the Civil Code. According to Section 11 (older Code,
replaced by a new one in 2014/2015), human dignity is recognized as part of the personality of a

102 J Drgonec, Ústava Slovenskej republiky, komentár (2nd edn, Šamorín Heuréka, 2007) 216–17.
184 Comparative Media Law Practice – Slovakia

natural person. The Civil Code guarantees legal entities the protection of their name and good
reputation, but these subjects do not have (human) dignity. Civil defamation disputes (aimed
to protect personality of natural person, including human dignity) are decided by courts, while
administrative protection of human dignity in broadcasting is provided by the RVR.
The very competency of the RVR to decide whether a broadcaster infringed on human
dignity has been recently questioned by a private television broadcaster in the proceedings
before the CC. The broadcaster argued that the pursuant to the Code of Civil Procedure (Law
No 99/1963 Coll, no longer valid) the jurisdiction to hear and decide disputes arising from
civil relationships (including defamation disputes) is exclusively vested with general courts.
However, the CC (III. ÚS 88/2014, 4 February 2014) dismissed broadcaster’s complaint
claiming that the competence of the RVR is laid down by law. The role of the RVR is to
protect the public interest; in this case, the public interest is the protection of human dignity.
These conclusions are acceptable, but the line between civil and administrative protection of
human dignity remains quite thin and unclear.
It remains questionable whether the public interest is preferred when it comes to protection
of human dignity. In the case described above (3 Sž 82/2008, 15 January 2009), the SC
required the individualization of the violation of the human dignity and freedoms of others,
and the existence of a particular person whose human dignity had been infringed. Such
approach is much more reminiscent of the protection of individual rights (protection of
someone’s human dignity) rather than the protection of public interest.
Anyway, there are still some important differences between the civil and the administrative
protection of human dignity we can recognize, eg, the action launched by the RVR does
not require the consent of the person whose human dignity had been infringed upon (the
RVR should act (viesť konanie/konať ) irrespective of consent/disagreement of an aggrieved
person, and anybody can file a complaint about a breach of the BA), and this person to be a
participant in the procedure. The aggrieved person can seek a financial compensation only in
civil proceedings (revenues from fines imposed by the RVR belong to the income of the state
budget). The nature of a procedure launched by the RVR is quite repressive while the goal of
civil proceedings is to provide remedy for the aggrieved person.
Another question is the discrepancy between administrative sanctions and the financial
compensation of non-pecuniary damage. It may happen that the person whose human dignity
was violated by the broadcaster in television or radio programme will seek compensation for
non-pecuniary damage, while the broadcaster will be fined by the RVR for broadcasting
the programme. Should the civil court take the fine imposed by the RVR into account
while determining the amount of compensation for non-pecuniary damage (and vice versa)?
Yes, it should, at least in the light of the case law of the ECtHR, which often emphasizes
the impact of compensation / sanction on applicant (moreover, the ECtHR has taken the
applicant’s income or personal financial circumstances into account several times while
assessing proportionality of the compensation / fine awarded for the moral injury suffered,
eg, Steel and Morris v the United Kingdom, Lepojić v Serbia, or Koprivica v Montenegro). If we
assume that the impact of a sanction on a broadcaster is an important fact that is relevant
to determining its amount, the impact of a sanction / compensation imposed / awarded by
another public authority for—basically—the same conduct should also be relevant.
But is there any legal background for such consideration? Under the current legal
framework, the RVR shall determine the (amount of) fine depending on the gravity of
 III. Electronic and Digital Media Regulations 185

the matter, the method, the duration, and the consequences of the breach of obligation,
the degree of blame, the extent and range of the broadcasting and the retransmission. This
gained an unjustifiable enrichment and, with regard to the sanction eventually imposed
by the self-regulatory body for the area covered by the Act, is handled within its own self-
regulatory system. Comparatively, the court determining the amount of compensation in
civil proceedings shall take into account the seriousness of the injury and the circumstances
under which the infringement occurred.
The BA expressively allows the RVR to only take the sanction imposed by a self-regulatory
body into account, but not the compensation already awarded by a civil court. In essence, this
statutory term expresses some kind of quasi ne bis in idem principle (ie, no legal action can
be instituted twice for the same cause of action), which is exclusively related to the sanctions
of (non-state) self-regulatory bodies. However, compensation awarded by a civil court
could theoretically be taken into account while assessing the consequences of the breach of
obligation, as the financial compensation rewarded by a civil court should mitigate the effects
of the consequences of defamatory conduct. Accordingly, the RVR could theoretically use
this approach within the extensive legal construction regarding the case law of the ECtHR.
On the one hand, a fine imposed by the RVR cannot be conceived as a part of the terms
‘seriousness of the injury’ or ‘circumstances under which the infringement occurred’. On the
other hand, a remedy provided for the aggrieved person (plaintiff ) should not be affected
by the fine imposed on broadcaster (since revenues from the imposed fines are part of the
income of the state budget).

G. Consent of the Aggrieved Person

After starting an administrative procedure related to the protection of human dignity,

broadcasters often argue that the aggrieved person agreed with the broadcasting of the
programme and therefore the human dignity of the person was not infringed upon. Does
such consent justify broadcasting otherwise defamatory programme? As it was mentioned
before, human dignity belongs to the fundamental rights and freedoms guaranteed by the
Constitution. This is a very important aspect as Article 12 of the Constitution stipulates
that all human beings are free and equal in dignity and in rights, and fundamental rights
and freedoms are sanctioned, inalienable, imprescriptible, and irreversible. This also
means that nobody can waive fundamental rights and freedoms. Accordingly, a contract
provision stipulating that the contracted party agrees with the broadcast provided by the
other contractual party (the broadcaster), which would interfere with his/her human dignity,
should be null and void (ie, invalid from the very beginning). This legal opinion has already
been confirmed several times by the SC.
On 25 November 2005 the RVR imposed a fine of 50,000 koruna—some 1,300 euro
(RP 270/2005)—on the broadcaster for a breach of obligation set forth in Article 19(1) of
the BA by broadcasting a part of the reality show Big Brother Late Night. The programme
contained comments on the images of the exposed male genitalia of one of the contestants. The
broadcaster claimed that violations of the human dignity and the rights and freedoms of others
had not occurred, because the contestants had entered the reality show voluntarily, knowing
that they would be exposed to cameras twenty-four hours a day. Furthermore, the contestant
186 Comparative Media Law Practice – Slovakia

whose human dignity should have been affected had decided himself to shower nude, and
the accompanying comments for the entire event had been appropriate to the nature of the
broadcasted programme. The broadcaster has also claimed that human dignity is infringed
upon when a person is forced to do something which deprives them of the autonomous control
of their own behaviour, thus the person becomes a mere object of a process. Consequently,
in accordance with Paragraph 19(1) of the BA, there must be an unauthorized interference,
eg, without the person’s consent. In this case, the contestant agreed in advance with the
interference with his personal rights, by this he consented and pledged himself to endure
them, which can be determined from the contract for the participation in the programme.
Therefore, there was no unauthorized interference with the right to human dignity.
The respondent (the RVR) claimed in its written statement that although reality show
actors had to take account of the twenty-four-hour camera surveillance, this does not mean
that they should become a target, for which they cannot be blamed. Concerning the very
shot, it was interesting that a few seconds of view, repeated several times, of the intimate part
of the participant’s body was accompanied by such comments by the moderators that had
interfered with human dignity. The Council for Broadcasting and Retransmission also stated
that according to the Article 19 of Constitution (right to the protection of human dignity),
it is not relevant whether the reality show participant acted voluntarily or not, because no
interference with human dignity can be regarded as legitimate, unless this right is restricted
by law. The Supreme Court (4 sž 9/2006, 22 March 2007) confirmed the RVR’s opinion
claiming that Article 19(1) of the BA clearly bans an interference with human dignity,
and therefore to assess the breach of the statutory provision, it is not relevant whether the
participants act voluntarily or not.
In December 2010, a private broadcaster aired programme Noviny Plus, labelled as
Martinka – Kleopatra z Turca. This episode should have introduced Martinka, the former
contestant of the reality show Farmár hľadá ženu (following the format of the American reality
television series Farmer Wants a Wife), her family, and relatives. The administrative procedure
was commenced by the RVR because scenes and dialogues in the programme allegedly
contained obscene expressions, which are evaluated under the terms of JSO as inappropriate
and inaccessible content to minors under 18 years of age. The broadcaster had ranked it as a
programme inappropriate and inaccessible content to minors under 15 years, and due to the
ranking, the programme trailer’s icon signalled that it was inappropriate for minors under
15 years, and its broadcasting time was between 6 am and 10 pm. Moreover, the RVR had
decided (RP 27/2011, 7 June 2011) that the broadcaster breached the provision of Article 19(1)
of the BA and human dignity of Marián, the participant of the Farmár hľadá ženu show.
The broadcaster had appealed to the SC, arguing that human dignity of Marián could
not been affected since he was one of the contractual protagonists of the reality show and
accompanying activities, so it should be taken into account that he had been paid for his
participation in the programme, and was aware of his role in the show, and therefore cannot
seek the same protection as a person not participating in the programme. The Supreme Court
(in 5 Sž 18/2011, 29 March 2012), referring to its previous decision (case 4 Sž 9/2006), stated
that the BA imposes an obligation not to interfere with human dignity and fundamental
rights and freedoms of others, and it remains irrelevant whether the performance was free
or not. Public derision and public statements against the person of Marián on the screen
therefore interfere with human dignity. The Supreme Court added that it is wrong to expect
 III. Electronic and Digital Media Regulations 187

that by closing any contract, a person can waive its fundamental rights and freedoms, which
are, according to Article 12(1) of the Constitution sanctioned, inalienable, imprescriptible,
and irreversible.
In 2012, the Slovak television channel TV JOJ aired a series called Extrémne rodiny, a
reality-show format in which real families were shown performing their real life activities or
coping with situations pre-arranged by the TV crew. One storyline of the series focused on a
family of three, mother, father, and a son. The family was of a rather low social status, living
under sub-standard living conditions. The son (Tonko—diminutive of Anton) was arguably
mentally impaired to some extent. The programme consisted mainly of scenes showing the
family in various situations that were intertwined with interviews with the family members
in which they were expressing their views on various aspects of their lives, or presumably just
answering the questions of the crew. The actions of the family members or their comments
were in turn commented on in a voiceover by a presenter who was not present on the scene,
and whose comments were editorially composed after the filming took place. These comments
were meant to explain various elements of the programme to the viewer, or just move the
story on. They were also the main source of entertainment in the program, being often
humorously patronizing about the actions, behaviour, and the opinions of the participants.
The Council for Broadcasting and Retransmission received numerous complaints on
various parts of the series. One program, initially aired during the night (approx. at 8:20 pm)
on 2 March 2012 and rebroadcasted on 5 March 2012 (approx at 3 pm), sparked particularly
agitated responses from the viewers. The programme showed, among other things, Tonko’s
efforts to prepare for a date buying clothes, visiting a hair salon, and contacting the girl
who was supposed to go on a date with him, and who eventually declined his proposal. The
voiceover commentaries were mocking his actions and views, and were making fun of his
mispronunciations of words. The views and the attitude of his mother were commented on
in a similar manner.After receiving complaints about the programme and its preliminary
examination, the RVR started an administrative procedure against the broadcaster (TV
JOJ). The subject of the procedure was a potential breach of the rules safeguarding human
dignity (Article 19(1)a) in the program, in relation to the participants.
The broadcaster was asked by the RVR for its reaction to the initiation of the procedure
and to the allegations stated in an official letter sent by the RVR. In its reply, the broadcaster
stated that the programme had to be examined in its entire context. In its view, the programme
in question focused on showing ‘various relations existing in familial environments which
are not typical or utterly usual in the predominant part of Slovak society.’ The broadcaster
further claimed that despite the fact that at first sight it might have looked provoking,
shocking, or intended merely to sensationalize, ‘the attentive and normal viewer will perceive
the programme as an account and communication of a daily regime, relations, problems,
and various situations that the participants found themselves in, supplemented by the
commentary of the presenter.’ The broadcaster, according to its reply, was absolutely aware of
the aspect of the handicapped person being present in the programme or the non-standard
living conditions of the participants, but these were not ‘the main motive or the pretext for
their ridicule’.
On 10 July 2012 the RVR thus decided (RP 040/2012) that the broadcaster violated the
human dignity of two participants,—Tonko and his mother—and fined the broadcaster
25,000 euro. In its decision, the RVR did not agree with the defence of the broadcaster,
188 Comparative Media Law Practice – Slovakia

stating that, on the contrary, during the programme, the living conditions of the participants
and their behaviour, on the part of Tonko strongly influenced by his handicap, were a
constant subject of ridicule produced by the voiceover or by other editorial means (such as
music, editing of the scenes, etc.). While participants’ living conditions and their medical
ailment were objective facts that they could do very little about, the editorial treatment of
the programme was in control of the producers, and the ridiculing of the participants was
induced predominantly by their editorial involvement.
The broadcaster also stated that protection of human dignity of the participants cannot
be called into question in this particular case, because they were actors working under short-
term artist contracts. The broadcaster referred to the ruling of the SC, in which the SC stated
that the provision of the BA on the protection of human dignity can be applied only in cases
where a real person is involved. The dramatic programs are therefore completely excluded
from its application. The broadcaster presented the contracts of the participants to the RVR,
and asked the RVR to call in the participants as witnesses to prove the fact that they willingly
committed themselves to produce art performance for the programme.
The Council for Broadcasting and Retransmission refused to hear the participants as
witnesses, because it did not hold the fact that the participants were working under contracts
as disputed. Their testimony could not therefore contribute to the findings of facts, in addition
to those already ascertained during the procedure. The fact that the participants were under
contracts, according to the RVR, was not of any relevance to the subject of the case. The
participants were real individuals; they were using their real civic names, and were depicted
in their real environment. The above-mentioned ruling of the SC was therefore not applicable
in this case. The fact that the participants were taking part in the production willingly did
not have any relevance either, because the RVR is obliged to act in all cases of violation of
human dignity, irrespective of the personal stance of the victim.
The broadcaster appealed to the SC. Nevertheless, on 19 February 2013 the SC (4 Sž
20/2012) upheld the decision of the RVR, stating that indeed the programme was depicting
participants in an undignified manner to produce an entertainment programme, and that the
main ridicule was caused mainly by broadcaster’s editorial voiceover comments. According
to this view, the right to human dignity is one of the main characteristics of the modern
state, and the level of its protection is the indicator of the advancement of the democracy in
the state, and in this particular case, the breach of human dignity was exceedingly serious.
Neither signing of a contract nor willing participation can, according to the SC, deprive an
individual of the right to human dignity. The Council for Broadcasting and Retransmission
is endowed by law to control the respect of the human dignity in broadcasting, and was
therefore competent to pass decision in this case. The decision of the RVR entered into force
on 18 April 2013, ie, the day it was delivered to the participants. The broadcaster then filed a
constitutional complaint with the CC. On 4 February 2014, the CC dismissed the complaint
of the broadcaster (III. ÚS 88/2014). The CC held that the competence of the RVR to decide
the cases concerning human dignity violations in the broadcasting is indisputably grounded
in the BA, and found nothing unconstitutional in the decision of the SC, which the CC was
primarily examining.
In all these cases, the body of judicial power (the SC) presented the constitutional limits
of contractual freedom by confirming that it is not possible to waive human dignity by en-
tering into contract. Similar question is whether a broadcaster can bypass the responsibility
 III. Electronic and Digital Media Regulations 189

for infringing upon human dignity by making a contract which stipulates that programme
participant agrees with broadcasting the content which would interfere with their human
dignity, and will not seek any remedy for it. If it comes to administrative sanctions, it seems
to be quite clear that such a provision does not exclude the liability of the broadcaster. The
same principle is accepted in civil law. Moreover, according to Paragraph 574 of the (old)
Civil Code, the agreement which waives some rights that can only arise in the future, is null
and void. This means that such provision has no legal effect from the very beginning.

H. Identification of the Aggrieved Person

As we mentioned before, the SC requires individualization of violation of human dignity and

freedoms of others, so there must be a particular person (or group of persons) whose human
dignity was infringed upon. Consequently, it is often a crucial question to assess how far the
aggrieved person is identified in the programme in issue.
On 25 May 2010, the RVR had decided (RP 22/2010) that a broadcaster breached the
provision stipulated in Article 19(1) of the BA by broadcasting a news report about rape and
physical assault. The report had included images of the woman—who has been raped—in the
hospital. She had been clearly identifiable, even with visible injuries on her face. She had been
recorded (and broadcasted) saying that she had not wanted to talk about the matter. There
was a title at the bottom of the screen with the text—raped ‘X’. The brother of the victim also
had been identified. The report included a portrait of the woman and her brother, her first
name, age, municipality of origin, the profession of her parents, and details concerning her
working activities. The victim had been presented as the daughter of two high-profile people
from K. The fined broadcaster had filed an appeal claiming that the reporter had tried to
keep the maximum level of anonymity of the victim, who was referred as ‘24 years old J from
K, the daughter of two public figures’. During the preparation of the report, the reporter
had personally visited the woman, had been talking to her, and the woman had agreed to
provide the information, and had not expressed that she did not want to inform the public
about all the facts. Moreover, she had the opportunity to sue the broadcaster in case she felt
her personality rights have been aggrieved, but she did not.
The Supreme Court (4 Sž 2/2010, 24 August 2010) upheld the decision of the RVR, and
stated that the report had been likely, through its processing and content, to interfere with the
woman’s human dignity and right to privacy. The content of the report had exceeded what had
been necessary to inform the public about the offense, presented as a physical violence and rape.
It had been focused mainly on the aggrieved person, despite her disagreement to comment.
Another case was also linked with violence. In March 2009, a television broadcaster
had aired the report ‘Dobodaná žena v nemocnici’ in the programme Dnes in which it had
informed about an injured woman—a victim of domestic violence. The report included
information about her age, the municipality where the accident happened, the information
that the woman had two sons, and images of her house and of a car parking in front of it.
Consequently, the RVR rendered a decision (RP 38/2009, 8 September 2009), and fined
the broadcaster for the infringement of the woman’s human dignity. The broadcaster had
appealed to the SC claiming that the report had been conducted in the public interest (also
state authorities are concerned about the topic of domestic violence), and with regard to
190 Comparative Media Law Practice – Slovakia

journalistic ethics and the protection of the injured person, the report had not alleged the
name of the attacked woman, and had not enabled her identification for the general public.
The Supreme Court (3 Sž 66/2009, 11 March 2010) stated that the visual part of the
report included a total of ten shots of different lengths and different angles of the house of
the abused women, while the content of those images enabled the house number and vehicle
number plate to be identified. On the basis of data and facts contained in the report, which
were presented in verbal and visual form, the victim was clearly identifiable for her wider
community / environment (širšie okolie). The Supreme Court also added that the report
should be regarded as dishonouring, abusive, and derogating the right to privacy. The court
admitted that it is in the public interest to point to domestic violence against women, but
added that the public should be informed mainly about perpetrators of domestic violence,
and its victims should be given protection, however, the report had not respected that.
A similar case occurred after broadcasting a report in a television news programme about a
Catholic priest who had allegedly sexually molested a minor ministrant. After being fined for
infringement of priest’s human dignity, the broadcaster filed an appeal claiming that the priest
could not have been identified on the basis of the report. The Supreme Court (8 Sž 4/2010,
30 September 2010) did not share that view, seeing that the report made the information
about the priest’s age, his former and his current station public. Such characteristics were
considered satisfactory to identify him for a narrow public (užšiu verejnosť ).
On 8 December 2009, the RVR had decided (RP 42/2009) that a broadcaster had breached the
provisions stipulated in Paragraph 16b (obligation to ensure objectivity) and in Article 19(1) of the BA.
The contentious programme had informed about the tragic death of a fifteen-month old child who
had fallen down from a balcony on the fifth floor, and presented one-sided (subjective) information
accusing the parents of irresponsibility for letting the child alone. The broadcaster had appealed and
argued that the parents had not been shown in the report, and their names had not been disclosed, so
they could not been identified. The Supreme Court affirmed the decision of the RVR (2 Sž 5/2010,
15 December 2010). Although the report had not disclosed the names and faces of the parents, it was
easy to identify them for their community (okolie) from the other information provided. The report
had informed about the place of tragedy, had shown the house of the parents, and a photograph of the
child. According to these data, it had been possible to identify the persons concerned, and in view of
the negative information listed on their address, to interfere with their reputation.

I. Analysis of References in Case Law of the Supreme Court

The proper reasoning of the court decision is an integral part of judicial outcomes, and
represents the quality of the work of judges. Sufficient and persuasive reasoning is a basic
condition for the legitimacy of any court decision in a democratic state under the rule of
law.103 Unfortunately, this aspect of the Slovak case law recognized as the reasoning of the
court decisions are often considered unsatisfactory.104 As the relevant case law should be

103 P Wilfling, ‘Kvalitatívne požiadavky na odôvodnenie súdneho rozhodnutia’ 71, http://www.viaiuris.sk/

stranka_data/subory/publikacie/kvalitativne-poziadavky-na-odovodnenie-sudneho-rozhodnutia-2-vydanie.pdf.
104 See, eg, http://www.sme.sk/c/4120148/michalkova-polovica-rozsudkov-nema-dostatocne-vypracovane-
odovodnenie.html.
 III. Electronic and Digital Media Regulations 191

taken into account while making a new court decision, proper references to it should be a
part of the reasoning. Therefore, we have created Table 3 showing how often the SC refers to
a case law in its judgements concerning the administrative protection of human dignity in
the field of media regulation.

Table 3
Judgment of SC References to References to Other References to Decision
own rulings domestic courts (eg, CC) international or foreign of the RVR
(SC) courts
(ECtHR and others)

2 Sž 9/2010 RP 12/2010,
SC cancels and returns
back, RVR sanctions again,
RP 21/2011,
SC confi rms

3 Sž 66/2009 RP 38/2009
SC confi rms

5 Sž 5/2013 5 Sž 22/2012, 29 April III. ÚS 564/2012, 13 Lingens v Austria; RP 004/2013

2013—criteria for November 2012; Oberschlick v Austria; SC confi rms
perpetual administrative IV. ÚS 620/2012, 14 Dec- Pedersen and Baadsgaard
offence; ember 2012—entitlement v Denmark—necessity
5 Sž 18/2011, 29 March to request broadcast to distinguish value
2012—entitlement to records from broadcasters; judgements and normative
request broadcast records PL. ÚS 7/96, 27 February statements
from broadcasters; 1997;
5 Sž 22/2010, 10 March IV. ÚS 362/09, 15 October
2011—identification of 2009—to which extent
wrongdoing; should fundamental
2 Sž 17/2011, 4 July rights and freedoms be
2012—consent with protected, balance between
infringetment of human fundamental rights and
dignity; freedoms
3 Sž 82/2008, 15 January
2009 (not applied)—
identification of aggrieved
person

5 Sž 18/2011 4 Sž 9/2006, 22 March IV. ÚS 115/03, 3 July RP 27/2011

2007—specification of 2003; SC confi rms
obligation stipulated in III. ÚS 209/04, 23 June
Paragraph 19(1) of the Act, 2004;
free conduct of actors III. ÚS 322/2011, 27 July
2011—proper reasoning of
decision

5 Sž 13/2011 8 Sž 19//2010, 3 February RP 14/2011

2011— SC confi rms
related decision

8 Sž 4/2009 RP 37/2009
SC confi rms

8 Sž 4/2010 RP 01/2010SC confi rms

5 Sž 22/2010 RP 45/2010
SC confi rms

2 Sž 4/2009 RP 32/2009
SC confi rms

3 Sž 82/2008 RP 29/2008
SC confi rms
192 Comparative Media Law Practice – Slovakia

8 Sž 19/2010 III. ÚS 231/2010, 25 RP 36/2010

August 2010—oral hearing SC cancel and returns,
and right to fair trial RVR stops

6 Sž 17/2011 2 Sž 21/2010, 18 May RP 34/2011

2011—related decision SC cancels and returns
back, RVR sanctions
again, RP 014/2011—SC
confi rms

2 Sž 21/2010 RP 42/2010
SC confi rms

5 Sž 6/2013 5 Sž 22/2012, 29 April III. ÚS 564/2012, 13 Lingens v Austria; RP 003/2013

2013—criteria for November 2012; Oberschlick v Austria; SC cancels and returns
perpetual administrative IV. ÚS 620/2012, 1. Dec- Pedersen and Baadsgaard v back, RVR again sanctions,
offence; ember 2012—entitlement Denmark— RP 34/2011 which is above
5 Sž 18/2011, 29 March to request broadcast necessity to distinguish
2012—entitlement to records from broadcasters; value judgements and
request broadcast records PL. ÚS 7/96, 27 February normative statements
from broadcasters; 1997;
5 Sž 22/2010, 10 March IV. ÚS 362/09, 15 October
2011—identification of 2009—to which extent
wrongdoing; should fundamental
2 Sž 17/2011, 4 July rights and freedoms be
2012—consent with protected, balance between
infringement of human fundamental rights and
dignity; freedoms
3 Sž 82/2008, 15 January
2009 (not applied)—
identification of aggrieved
person

5 Sž 29/2011 5 Sž 17/2010, 10 March PL. ÚS 22/06, 1 October RP 83/2011

2011; 5 Sž 8/2010,28 2008; SC cancels and returns,
September 2010; PL. ÚS 6/04, 19 October RVR stops
4 Sž 2/2010, 24 August 2005;
2010; III. ÚS 34/07, 26 June
8 Sž 8/2010, 20 October 2007; PL. ÚS 7/96, 27
2010— February 1997—to which
precise description of the extent should fundamental
wrong rights and freedoms be
protected, balance between
fundamental rights and
freedoms

4 Sž 2/2010 RP 22/2010
SC confi rms

2 Sž 5/2010 RP 42/2009
SC confi rms

3 Sž 33/2009 RP 10/2009
SC confi rms

4 Sž 9/2006 RP 270/2005
SC confi rms
 III. Electronic and Digital Media Regulations 193

4 Sž 20/2012 2 Sž 17/2011, 4 July RP 40/2012

2012—consent with SC confi rms
infringement of human
dignity;
5 Sž 18/2011, 29 March
2012;
5 Sž 37/2011, 28 June
2012;
3 Sž 23/2012, 29 January
2013—entitlement to
request broadcast records
from broadcasters,
character of such evidence

2 Sž 3/2012 2 Sžo 73/2010, 4 Sž IV. ÚS 362/09, PL; ÚS Pedersen and Baadsgaard RP 112/2011
10/2012 a sp. zn. 4 Sžo 7/96—to which extent v Denmark—nature of SC confi rms
13/2012—analysed in are fundamental rights the questions asked by
order to ascertain the and freedoms protected; moderator;
moment when all essential confl ict between individual Prager and Oberschlick
parts of decision should be fundamental rights and v Austria—necessity
included in it freedoms to protect confidence
in judiciary against
destructive attacks that
are essentially unfounded,
especially in view of the
fact that judges who
have been recognized
are subject to a duty of
discretion that precludes
them from replying;
Pedersen and Baadsgaard
v Denmark; Oberschlick
v Austria—protection of
the right of journalists to
impart information on
issues of general interest
requires that they should
act in good faith and on
an accurate factual basis
and provide ‘reliable and
precise’ information in
accordance with the ethics
of journalism; Jersild
v Denmark; Janowski
v Poland—freedom of
expression is subject
to exeptions; Lingens v
Austria; Pedersen and
Baadsgaard v Denmark;
Oberschlick v Austria—
necessity to distinguish
value judgments and
normative statements.
194 Comparative Media Law Practice – Slovakia

Before assessing the date shown in the table above, it should be mentioned that there
is actually no international case law (ECtHR, CJEU) dealing with such administrative
regulation of broadcasting in the context of the protection of human dignity we have been
focusing on. Nevertheless, a number of ECtHR judgments are more or less related to the
media regulation issues, civil and criminal means of protection of personal reputation / hu-
man dignity, or limitations of freedom of speech.
To name a few, in the case of Radio Twist v Slovakia, the ECtHR considered the sanctioning
of a radio station for the violation of freedom of expression as guaranteed by Article 10 of the
Convention. Radio Twist had been convicted for broadcasting in a news programme an illegally
tapped telephone conversation between the State Secretary at the Ministry of Justice and the
Deputy Prime Minister. As a result of civil proceedings, the Slovak courts considered that
the dignity and reputation of the Secretary at the Ministry of Justice had been tarnished, and
the radio broadcaster was ordered by the Slovak courts to offer him a written apology, and to
broadcast that apology within fifteen days. It was also ordered to pay compensation for damage
of a non-pecuniary nature. The ECtHR concluded that such measures were not ‘necessary in
a democratic society’, because the contest of the conversation represented a matter of general
interest, and the broadcaster was not responsible for the illegal nature of the recording.
In the case of Jersild v Denmark, the ECtHR faced the question how far free expression
should be limited when the content of the political expression is of a racist nature. Jens Jersild,
a journalist, had conducted and edited a television interview with members of a group called
‘the Greenjackets’ who made several abusive and derogatory remarks about immigrants and
ethnic groups in Denmark during the programme. Later, Jersild was convicted of aiding
and abetting ‘the Greenjackets’. The ECtHR held that Denmark violated Article 10 of the
ECHR (freedom of expression). However, Judges Ryssdal, Bernhardt, Spielmann, and Loizou
disagreed with the conclusion of the judgment, and stated in their dissenting opinion:

And what must be the feelings of those whose human dignity has been attacked, or even denied,
by the Greenjackets? Can they get the impression that seen in context, the television broadcast
contributes to their protection? A journalist’s good intentions are not enough in such a situation,
especially in a case in which he himself has provoked the racist statements. . . . The Danish courts
fully recognized that the protection of persons whose human dignity is attacked has to be balanced
against the right to freedom of expression. They carefully considered the responsibility of the
applicant, and the reasons for their conclusions were relevant. The protection of racial minorities
cannot have less weight than the right to impart information, and in the concrete circumstances
of the present case, it is in our opinion not for this Court to substitute its own balancing of the
conflicting interests but that of the Danish Supreme Court. We are convinced that the Danish
courts acted inside the margin of appreciation which must be left to the Contracting States in this
sensitive area. Accordingly, the findings of the Danish courts cannot be considered as giving rise to
a violation of Article 10 of the Convention.

In the light of these words, the protection of human dignity was also involved in the issue.
In the case of Lindon, Otchakovsky-Laurens and July v France, the ECtHR was also dealing
with a conflict between one’s reputation and freedom of speech. The judgement is often
described as controversial (one of the decisions displaying ‘a disproportionate weight being
given to reputational rights.’ Judge Lucaides in his concurring opinion alleged:
 III. Electronic and Digital Media Regulations 195

or many years the jurisprudence of the Court has developed on the premise that, while freedom
of speech is a right expressly guaranteed by the Convention, the protection of reputation is
simply a ground of permissible restriction on the right in question which may be regarded as
justified interference with expression only if it is ‘necessary in a democratic society’, in other
words if it corresponds to ‘a pressing social need’ and is ‘proportionate to the aim pursued’ and
if ‘the reasons given were relevant and sufficient’. Moreover, as a restriction on a right under
the Convention it has to be (like any other restriction on such rights) strictly and narrowly
interpreted. The State bears the burden of adducing reasons for interfering with expression
and has to demonstrate the existence of ‘relevant and sufficient’ grounds for doing so. As a
consequence of this approach, the case-law on the subject of freedom of speech has on occasion
shown excessive sensitivity and granted over-protection in respect of interference with freedom
of expression, as compared with interference with the right to reputation. Freedom of speech
has been upheld as a value of primary importance which in many cases could deprive deserving
plaintiff s of an appropriate remedy for the protection of their dignity. Th is approach cannot
be in line with the correct interpretation of the Convention. The right to reputation should
always have been considered as safeguarded by Article 8 of the Convention, as part and parcel
of the right to respect for one’s private life. It would have been inexplicable not to provide for
direct protection of the reputation and dignity of the individual in a human rights convention
drafted in the aftermath of the Second World War and intended to enhance the protection of
the individual as a person after the abhorrent experiences of Nazism. The Convention expressly
protects rights of lesser importance, such as the right to respect for one’s correspondence. It is
therefore difficult to accept that the basic human value of a person’s dignity was deprived of
direct protection by the Convention and instead simply recognized, under certain conditions, as
a possible restriction on freedom of expression.

As we can see in the table, the SC has not referred to the domestic rulings of regional
courts. Understandably, regional courts do not deal with administrative protection of human
dignity in broadcasting. Furthermore, the SC usually does not rely on conclusions of the
lower (regional) courts.
The Supreme Court has made several references to its own decisions, which are usually
linked with the regulation of broadcasting, sometimes with the same case. There have also
been also some references to the judgements the ECtHR made in three cases (always the
same three examples). As it was already mentioned, there is no suitable international case law
dealing with such administrative regulation of broadcasting in the context of protection of
human dignity. So the SC has referred to ECtHR judgments related to libel / defamation
cases. It is also notable that the essential part of these references has been made by the panel,
headed by Jana Baricová (currently Judge of the CC). The rest of references are related to the
decisions of the CC.

J. Conclusion

There are no doubts about the importance and value of human dignity in a democratic society.
But when it comes to safeguarding its protection, law is often not able to answer all the
occurring questions. This chapter was dedicated to the protection of human dignity with
196 Comparative Media Law Practice – Slovakia

regard to broadcasting regulation, namely to the analysis of the Slovak SC case law. We believe
that these issues still deserve our attention. The purpose of our research was not to cover all
issues related to our topic, but rather to point at the most problematic ones. Although ‘hu-
man dignity’ is frequently used as a legal term, its meaning remains vague. The absence of its
definition enables different interpretations, and open discussion about the ways of unifying
current approaches and improving the common standards of human dignity protection.
The judgements of the SC we have analysed do not present a persuasive border between
the administrative and the civil protection of human dignity. The Supreme Court does not
accept the abstract protection of human dignity without the violation of someone’s personal
rights, although the CC concluded that media regulations should protect the public interest.
Therefore, the relationship between administrative sanctions and financial compensation of
non-pecuniary damage remains unclear as well. On the other hand, the SC managed to
tackle other challenging issues, such as the relevance of identification and the consent of the
aggrieved person for the administrative responsibility of broadcaster.
The rulings of Slovak courts often lack the proper reasoning. Clear references to case law
used in the decision-making process should help to deal with this gap. Although there are
no relevant judgments for every situation, our analysis has shown that the judges of the SC
are relatively reluctant to refer to the relevant case law in order to improve their outcomes.

VII. Balanced Coverage

Interestingly, issue of balanced coverage is the second (after commercial communications) most
frequent subject of complaints by regular viewers to the RVR.105 The issue of balanced coverage
is a highly controversial one. For example, a public debate began in Slovakia in January 2015.
The issue was whether it was legitimate or not to provide space for paid political commercials on
controversial issues to be broadcast in private and PSM televisions only by one of the parties of
the debate. Both major television stations, TV Markíza and PSM RTVS, rejected the request to
broadcast paid statements by a Christian Conservative alliance promoting its point of view on
the upcoming referendum in early February 2015. The private broadcaster argued that it would
create an imbalanced public debate, considering that opponents of the referendum were not
interested in promoting their views. The public broadcaster argued that it will cover the topic and
will prepare a special debates on the issue. Strategically, this decision of opponents (mostly LGBT
organisations and individuals) made sense—any heated public discussion could increase turnout
in referendum which was an implicit pre-condition for its success (there is a 50 per cent mini-
mum threshold for accepting referendum results as valid and legally binding). There is no legal
regulation of campaigns in the media before referendums (only general broadcasting regulation
rules apply). The referendum topics, approved (save for one exception) as constitutional by the
CC, were related to children’s education at school without prior approval by their parents on
issues like sexuality, euthanasia, the adoption of children by same-sex couples, and that no other
union could be called marriage except that among a man and a woman.
After the referendum, when indeed the unexpectedly low turnout invalidated the mostly
highly ‘yes’ votes, the representative of the Catholic Church officially blamed the major

105 Jelčová (n 52).

 VII. Balanced Coverage 197

televisions for their approach to the campaign. Anton Ziolkovský, the Executive Chair of
the Conference of Bishops of Slovakia (highest body of Christian Churches’ representatives),
claimed that ‘televisions manipulated with the public opinion.’106 With regard to an issue of
decision of PSM not to broadcast in its regular radio programme the sermon by a Greek-
Catholic priest, Ziolkovský, who accepted that perhaps not quite proper language was used
(the priest urged believers—referring indirectly to LGBT community—to ‘push this dirtiness
outside the borders of the State’), but still considered decision of the PSM as ‘a clear attempt
at censorship’.107
Indeed, the concept of plurality and balance of coverage brings both theoretical and
practical challenges. For example, when PSM television broadcasted a documentary
movie about interwar para-military militia Hlinkova Garda, some historians108 as well as
documentary movie director Maroš Berák published a public protest in which they criticised
the glorification of the tool of totalitarian oppression.109 The historians Slavomír Michálek,
Miloslav Čaplovič, Stanislav Mičev, and  Eduard Nižňaský criticised it ‘for the purpose,
sometimes even primitive manipulation with the facts, even many times automatic acceptance
of propaganda of that time’.110 The documentary movie director Ivan Ostrochovský argued
that there was no balance or plurality of opinions offered in the documentary movies
broadcasted in the past, and no one ever actually asked former members of these para-
military militia on their perspective on the issue.111
History seems to be controversial in Slovakia. Independent historian Viliam Jablonický
discussed a case that was initiated before the RVR and the PSM RTVS by him.112 In this case,
the issue was about the controversial Slovak-Hungarian interwar and WWII politician János
Eszterházy, and the broadcaster was PSM (Hungarian news section in 2011). Jablonický seemed
to win some support for his argument that broadcasted item was not sufficiently balanced. As
mentioned, the BA (Article 16b) obliges a broadcaster to guarantee objectivity and impartiality
of news programmes and current affairs programmes (politicko—publicistických programov).
In particular, opinions and evaluating commentaries / judgments must be separated from
news. There are exact criteria on how political current affairs programmes should look like,
but there is no exact definition / criteria of news.
The BA further stipulates (Article 64(1)a) a sanction—warning due to breaking the law
(upozornenie na porušenie zákona) in such cases. This is actually the mildest sanction among
all possible ones in the competence of the RVR. This has actually been a rather often used
type of sanction, however, even this modest sanction should be issued only when the breach
of law is relatively serious. The justification of legal punishment must be well-described and

106 D Mikušovič, ‘Sekretár biskupov: rečiam o odluke nerozumiem’ Denník N, 6 March 2015, 5.
107 ibid. See, http://www.aktuality.sk/clanok/269392/exkluzivne-prepis-kazne-proti-homosexualom-vytlacte-
totu-spinu-za-hranice-statu/.
108 See, Z Beňová, ‘Ako nerobiť orálnu históriu pre televíziu’ Pravda, 9 June 2015, http://spravy.pravda.sk/
domace/clanok/357831-ako-nerobit-oralnu-historiu-pre-televiziu/.
109 M Berák, ‘O Hlinkovej garde s úctou a láskou’ Denník N, 5 July 2015, 11.
110 TASR, ‘RTVS odvysielala dokument o Hlinkovej garde, historici ho kritizujú’ https://dennikn.sk/169341/
rtvs-odvysielala-dokument-o-hlinkovej-garde-historici-ho-kritizuju/.
111 I Ostrochovský, ‘Dokumentárny film a jeho vyváženosť Denník N, 5 July 2015, 10.
112 See, V Jablonický, ‘János Eszterházy – symbol revizionistickej politiky v mediálnych a historických
manipuláciách a sporoch’ E Jaššová and I Sečík (eds), Masmédiá a politika: Komunikácia či manipulácia? (Bratis-
lava, UPV SAV, 2014) 202–17.
198 Comparative Media Law Practice – Slovakia

defended by facts by the RVR. This is important both from a legal point of view (the courts
increasingly consider these formal and substantial issues) and from the point of view of
its impact on the broadcasters—in particular, the PSM. Even mild sanctions of this type
(without financial sanctions) can have serious impact on the PSM broadcaster. This is so
because, eg, one of the legal reasons for which the Parliament can dismiss the Director Ge-
neral of the RTVS is when the Council of RTVS, in the period of six consecutive months,
repeatedly issues the statement that the RTVS does not fulfil its tasks and duties, as defined
by the Act No 532/2010 on Radio and Television of Slovakia, or duties established by separate
directives. The Act further specifies that these statements by the Council of the RTVS must
be based on warnings received from the RVR that the Director General of the RTVS, in spite
of the decision of the Council of the RTVS, did not make any steps towards the improvement
of the present situation.
Of course, there are other reasons stated in the law which make the potential
dismissal of the Director General possible. For example, the previous Director General
was dismissed in 2012 by the Parliament on the grounds that she did not inform the
Council of the RTVS in advance about her intention to prepare a contract based on a
public tender on the rent of a building for the PSM. It was an absolutely legal reasoning.
However, it was rightly seen as an excuse for the dismissal. The Director General was
elected under the previous Right-wing coalition, while the new government was a one-
party, Left-wing one. The breach of the law was mild, and the Parliament had an option
not duty to dismiss the Director General. In order to illustrate this decision, it can be
mentioned that the Parliamentary Committee did not bother to invite the then Director
General to explain her decision about allegedly illegal thoughts on the tender. There
have been many cases in which the Director General was dismissed without making
serious professional mistakes in the turbulent 25 years since the fall of Communism—
and perhaps in some cases they were dismissed exactly due to this reason (behaving
professionally, not politically).
In the current BA, there is another potentially controversial paragraph that can be
abused in a similar way. The exact definition of both of these key terms (objectivity and
impartiality) are missing from the law, as well as clear rules / criteria for the assessment of
particular programmes from the aspects of objectivity and impartiality. As a result, both
the RVR and the administrative law courts had to develop their own definition(s) and
criteria for assessing the correct application of the meaning of objectivity and impartiality.
This has proved problematic in a local context. As it will be discussed further, there are
actually conflicting visions of broadcasters or journalists, of the RVR, and contradictory
views can also be found on the issue of objectivity and impartiality not only between the
lower and higher courts (in this case, RCs, the CC, and the SC) but also between the two
administrative law senates of the SC.
We have identified 13 rulings by two administrative senates of the SC of Slovakia in this
area in the period of 2010–2014. This period, along with the collected / selected data, are
only an approximate indicator of the frequency of this type of legal cases, considering that
it takes usually about three years until the final verdict is issued. In addition, sometimes
the final verdict just postpones the decision—then it is remitted to the RVR for further
administrative-legal action. Be that as it may, the number of cases seems to be sufficient for
a valid socio-legal analysis.
 VII. Balanced Coverage 199

A recent, special case (not yet dealt with by the SC) related to Slovak Radio’s (RTVS)
programme Radiojournal and Presidential elections in the Spring of 2014 has been added,
too. This case is especially relevant because it questions the very idea of the programme
broadcast (whether it is actually a news programme, or a current affairs programme), the
concept of (radio) news (whether it should include only facts, or context as well), and the very
strict criteria applied to the news programmes by the RVR (the conditions set by the RVR
very much limit own initiative to put news into context by the journalists). In addition, we
have selected two cases for detailed analysis. The first one is related to international news, the
second one is an apolitical case related to a private television channel.

A. The European Court of Human Rights and Balanced Coverage

Prior to our detailed analysis, we have selected similar cases of the ECtHR. As of September
2014, there have been 105 legally valid cases related to ‘balanced coverage’. Of this number,
35 cases also contained the term ‘broadcast’. However, detailed analysis showed that only
about two thirds of 35 cases were relevant to our study—some of them were related to the
licencing of television and radio companies or to media coverage of alleged criminals, or
coverage of private issues. Nevertheless, we have been able to find many relevant instructions
with respect to issues related to media regulatory authorities, courts, and general guidelines
for electronic / digital (radio and TV broadcasters) or audiovisual media. For example, in
the already cited case Manole and Others v Moldova, an  Appendix to Recommendation
Rec(2000)23 of the CoE was mentioned, specifically the ‘Guidelines Concerning the
Independence and Functions of Regulatory Authorities for the Broadcasting Sector’. With
regard to accountability of regulatory authorities, it is mentioned that

(25) Regulatory authorities should be accountable to the public for their activities, and should, for
example, publish regular or ad hoc reports relevant to their work or the exercise of their missions.
(26) In order to protect the regulatory authorities’ independence, whilst at the same time making
them accountable for their activities, it is necessary that they should be supervised only in respect of
the lawfulness of their activities, and the correctness and transparency of their financial activities.
This requirement (supervision only in respect of the lawfulness of their activities) gives moral
reasoning to our study. Furthermore, and more importantly:
(27) All decisions taken and regulations adopted by the regulatory authorities should be:
– duly reasoned, in accordance with national law;
– open to review by the competent jurisdictions according to national law;
– made available to the public.

Clearly, the second condition is of utmost importance in our analysis.

In the same ruling, it was mentioned that the Organization for Security and Co-operation
in Europe (OSCE) and CoE jointly published the ‘Benchmarks for the Operation of Public
Broadcasters in the Republic of Moldova’. Clearly, these benchmarks are not related only
to Moldova. Therefore, it is useful to mention the key guidelines with respect to mission of
PSM. The PSM should (among other issues):
200 Comparative Media Law Practice – Slovakia

give a complete, accurate, impartial, balanced and objective overview over political, economic, social
and cultural developments, . . . provide a comprehensive picture over the real situation in the count-
ry; encourage viewers to form their own individual opinion in a free manner; respect the dignity of
the human being and promote the values commonly shared by the CoE and the OSCE, especially
with respect to democracy, pluralism, tolerance and respect for human rights and freedoms. Factual
programs shall be impartial, this means they shall be fair, accurate and shall maintain a proper
respect for truth. A programme may choose to explore any subject at any point on the spectrum of
debate, as long as there are good editorial reasons for doing so. It may choose to test or report one
side of a particular argument. However, it must do so with fairness and integrity. It should ensure
that opposing views are not misrepresented.

The last two sentences in particular seem to be very important for our future analysis. Of
course, there are immediate questions of what does it mean to be ‘fair’ in reporting, and to
have ‘integrity.’ Be that as it may, the recommendation continues: ‘News reports have to be
rigorously sourced and verified. Information should be broadcast as a fact only if it is verified
by two independent sources. Acceptable exceptions to the double-source requirement are
facts directly confirmed by a reporter of the public broadcaster, or significant news drawn
from official announcements of a nation or an organization. When a secondary source offers
exclusive significant news which cannot be verified by using a second source, the information
should be attributed to the originating agency by name. News should be presented with
due accuracy and impartiality. Reporting should be dispassionate, wide-ranging and well-
informed. It should present a comprehensive description of events, reporting an issue in a
reliable and unbiased way.
The main differing views should be given due weight in the period of which the controversy
is active. In case a number of programs are clearly interlinked and form de facto a series
on reports of related issues, impartiality can be achieved over the entire series. Editorial
programs, for example, should give over one month approximate equal time to representatives
of the government and the parliamentary majority on the one hand and the opposition on
the other hand on related issues. In case a number of programs are broadcast under the same
title, but deal with separate issues, impartiality has to be reached within every individual
program. Due impartiality is of special importance in major matters of controversy. It should
be especially insured that a full range of significant views and perspectives are heard during
the period in which the controversy is active.
The most similar European cases to our case study are Sigma Radio Television Ltd v Cyprus
(App Nos 32181/04 and 35122/05). These cases deal with the broadcast of a documentary
that was found to be biased. The local regulatory authority CRTA has found (Case No
60/2001) that a ‘social documentary’ broadcast by Sigma TV had not been characterised by
objectivity and pluralism, as opinions and allegations had been voiced against doctors and
officials working in an institution that had a bone marrow bank, without a complete picture
or opposing views being presented. The CRTA considered that the discussion, the direction it
had taken, and the manner in which it had developed indicated that it had been orchestrated
to favour the views of the presenter and, more broadly, the station’s views on the issues raised,
to the disadvantage of participants with opposing views.
Having regard to the broadcasts and their content and/or subject matter, the reasons given
by the CRTA in its decisions for the findings of violations against the applicant, the amount
 VII. Balanced Coverage 201

of the fines imposed, and the submissions of the parties before it, the ECtHR considered that
the impugned interference was proportionate to the aim pursued, and the reasons given to
justify it were relevant and sufficient. The ECtHR found therefore, that the interference with
the applicant’s exercise of their right to freedom of expression in these cases can reasonably
be regarded as having been necessary in a democratic society for the protection of the rights
of others.
In the case of Pedersen and Baadsgaard v Denmark (judgment of 19 June 2003), the ECtHR
argued that Article 10 of the ECHR protects journalists’ right to divulge information on issues
of general interest provided that they are acting in good faith and on accurate factual basis,
and provide ‘reliable and precise’ information in accordance with the ethics of journalism
(see, eg, the Fressoz and Roire v France judgment of 21 January 1999, Paragraph 54; the Bladet
Tromsø and Stensaas v Norway judgment of 20 May 1999, Paragraph 58, and the Prager and
Oberschlick v Austria judgment of 26 April 1995, Paragraph 37).
In the case of Österreichischer Rundfunk v Austria (App No 35841/02), the ECtHR
exercised caution when the measures taken by the national authorities are such as to dissuade
the media from taking part in the discussion of matters of public interest (see, eg, Thoma v
Luxembourg, App No 38432/97, § 58, ECHR 2001III, and Jersild v Denmark, judgment of 23
September 1994, Series A No 298, 25–26, [35]). In the case of Thoma v Luxembourg (judgment
of 29 June 2001), the ECtHR noted that the topic raised in the programme was being widely
debated in the Luxembourg media and concerned a problem of general interest, a sphere in
which restrictions on freedom of expression are to be strictly construed. Accordingly, the
ECtHR must exercise caution when, as in the instant case, the measures taken or penalties
imposed by the national authority are such as to dissuade the press from taking part in
the discussion of matters of public interest. The ECtHR reiterated that ‘punishment of a
journalist for assisting in the dissemination of statements made by another person . . . would
seriously hamper the contribution of the press to discussion of matters of public interest and
should not be envisaged unless there are particularly strong reasons for doing so’ (see Jersild,
25–26, [35]). A general requirement for journalists to systematically and formally distance
themselves from the content of a quotation that might insult or provoke others or damage
their reputation is not reconcilable with the press’s role of providing information on current
events, opinions, and ideas, concluded the ECtHR. In summary, there seem to be some
established principles by the ECtHR that we can use in the analyses of our cases. However,
as it will be shown, these particular cases of the ECtHR have rarely been used either by the
RVR, the Slovak administrative judiciary, or, indeed, the CC.

B. Discussion on Objectivity and Impartiality

There is an obvious need to discuss at first objectivity and impartiality in news and current
affairs programmes in general. There is no single definition of objectivity across journalism
and the social sciences, and the word is used differently in practice, depending on the user and
the context. Objective, in the most literal sense of the word, is defined as not being influenced
by personal feelings or opinions in considering and representing facts. Brent Cunningham’s
favourite definition was taken from Michael Bugeja, who teaches journalism at Iowa State
202 Comparative Media Law Practice – Slovakia

University: ‘Objectivity is seeing the world as it is, not how you wish it were.’113 Yet without
some criteria for what makes an event or person important or interesting enough to cover,
journalists would have no way of choosing among the countless happenings that occur every
day around the world, or the billions of people who might interpret them for us as sources.
Then, journalists, or rather editors, must make a series of choices about presenting the news.
Among the most important of these choices is how to edit events.114 Especially the foreign news
production and content analysis have proved many times since the pioneering study of Johan
Galtung and Mari Ruge, ‘The Structure of Foreign News’ (1965), that there are some implicit
criteria which determine the selection of news topics, their amount of coverage, as well as their
framing. These criteria are, by and large, far from objective. Among the criteria which have
been repeatedly found as determining foreign news selection belongs the ‘big’ or elite nations
(often the same category) factor, the concentration of people, the ethnocentric and the cultural
proximity approach. Approaches such as ‘herd instinct’ (following other media—especially
agenda setting media, and other journalists reports on the place), etc. are also in play.115
Michael Kunczik distinguished two main concepts of journalism. One is neutrally-
objective journalism, passively distanced from the events addressed. The opposite is actively
involved, participatory, socially engaged, cause-promoting journalism. In reality, these two
normative perceptions by no means rule each other out, argues Kunczik. A journalist can
feel equally committed to objective, neutral reporting and to social engagement.116 There are
many aspects of criticism of objectivity in journalism. First, critics argue that the ‘objective’
news gathering process favours the viewpoints of institutional sources in fact, especially
in government and corporations. These institutional sources are favoured because of their
presumed legitimacy, as representatives of the public will in a democracy and their presumed
knowledge as gatherers and creators of political and economic information. Second, criticism
centers on the form of objective news, which is seen as biased toward covering observable and
unambiguous facts over new ideas and distinct events over long-term processes or historical
context. Finally, objectivity may simply confuse and paralyze audiences.
For example, Brian McNair believes that journalism ‘like any other narrative which is the
work of human agency, is essentially ideological a communicative vehicle for the transmission
to an audience (intentionally or otherwise) not just of facts but of the assumptions, attitudes,
beliefs and values of its maker(s), drawn from and expressive of a particular world view.’117
It is true that most codes of ethics share some common features. There is indeed a broad
intercultural consensus that standards of truth, accuracy, and objectivity should be central
values of journalism.118 Yet, interestingly, the most common functions of the European codes
are to show accountability to the public and the sources, and to protect the professional
integrity of journalists from external interference. The most common principles stress the

113 B Cunningham, ‘Re-Thinking Objectivity’ Columbia Journalism Review, 11 July 2003, http://www.cjr.org/
feature/rethinking_objectivity.php?page=all.
114 C Raphael, ‘Objectivity’ http://www.uiowa.edu/~c036088/raphael.pdf.
115 See, eg, I Volkmer (ed), The Handbook of Global Media Research (Chichester, John Wiley & Sons, 2012).
116 M Kunczik, ‘Media and Democracy: Are Western Concepts of Press Freedom Applicable in New
Democracies?’ P Bajomi-Lázár and I Hegedűs (eds), Media and Politics (Budapest, Új Mandátum, 2001) 76.
117 B McNair, The Sociology of Journalism (London, Arnold, 1998) 6.
118 K Hafez, ‘Journalism Ethics Revisited: A Comparison of Ethics Codes in Europe, North Africa, the Middle
East, and Muslim Asia’ Political Communication 19(2) (2002) 225–50.
 VII. Balanced Coverage 203

truthfulness of information, the prohibition of discrimination on the basis of race, sex, etc.,
using fair means in gathering the information, the integrity of the source and the journalist,
and the freedom of expression and comment.119 Thus, it is not the concept of objectivity that
is the most common and the most important in European journalism context. Furthermore,
journalists are increasingly in the business of supplying meaning and narrative.
It no longer makes sense to say that the media only publishes facts. Research shows this
change very clearly. In 1955, stories about events outnumbered other types of front page
stories nearly 9 to 1. Now, about half of all stories in three US newspapers are something
else, a report that tries to explain why, not just what.120 Most importantly, various ethical
codes and debates usually do not explain what is meant by the concept objectivity. This
is usually left to be decided case-by-case. Yet clearly there is an ongoing and increasingly
relevant discussion about journalistic objectivity. For example, Mitchell Stephens argues that
objectivity is equally impossible to reach, as it is misleading—when newspapers attempt at
objectivity at any price, they open the (public) space that could be used by others. Stephens
believes that the core of journalism should be in interpretation. A certain phenomenon can
be interpreted only when a commentator has an opinion on it.121 Sharon Beder claims that
journalistic objectivity has two components. The first is ‘depersonalization’, which means
that journalists should not overtly express their own views, evaluations, or beliefs. The
second is ‘balance’, which involves presenting the views of representatives of both sides of a
controversy without favouring one side.122 However, Beder is sceptical with respect to the idea
of objectivity in journalism. She argues that ‘The rhetoric of journalistic objectivity supplies a
mask for the inevitable subjectivity that is involved in news reporting and reassures audiences
who might otherwise be wary of the power of the media. It also ensures a certain degree of
autonomy to journalists and freedom from regulation to media corporations. However, news
reporting involves judgements about what is a good story, who will be interviewed for it, what
questions will be asked, which parts of those interviews will be printed or broadcast, what
facts are relevant and how the story is written.’ Finally, Beder concludes that ‘Objectivity
in journalism has nothing to do with seeking out the truth, except in so much as truth is
a matter of accurately reporting what others have said. This contrasts with the concept of
scientific objectivity where views are supposed to be verified with empirical evidence in a
search for the truth. Ironically, journalistic objectivity discourages a search for evidence; the
balancing of opinions often replaces journalistic investigation altogether.’
On the contrary, Alex Jones believes that in fact, objectivity is necessary precisely because
journalists are biased. He argues that objectivity also means not trying to create the illusion
of fairness by letting advocates pretend that there is a debate about the facts when the weight
of truth is clear. He-said/she-said reporting, which just pits one voice against another, has
become the discredited face of objectivity. But that is not authentic objectivity. Authentic or
genuine journalistic objectivity is in Jones’s view an effort to discern a practical truth, not
an abstract, perfect truth. Reporters seeking genuine objectivity search out the best truth

119 T Laitila, ‘Journalistic Codes of Ethics in Europe’ European Journal of Communication 10(4) (1995) 527–44.
120 J Stray, ‘Objectivity and the Decades-Long Shift from “Just the Facts” to “What does it Mean?”’ http://
www.niemanlab.org/2013/05/objectivity-and-the-decades-long-shift-from-just-the-facts-to-what-does-it-mean.
121 In T Matějčková, ‘Princip novin je mrtvý’ Česká pozice, http://ceskapozice.lidovky.cz/princip-novin-je-
mrtvy-07j-/recenze.aspx?c=A140909_121804_pozice-recenze_lube.
122 http://www.uow.edu.au/~sharonb/STS218/media/objectivity.html.
204 Comparative Media Law Practice – Slovakia

possible from the evidence that the reporter, in good faith, can find. In conclusion, Jones
describes objectivity as ‘news [should be] rooted in a verifiable reality that can be confirmed
and that faithfully represents the ambiguity that reality usually includes.’ 123
Some principles and examples of the ways media use to identify an incorrect report can be found
on the website of Honest Reporting.124 These (negative or biased) principles include misleading
definitions and terminology; imbalanced reporting; opinions disguised as news; lack of context;
selective omission; using true facts to draw false conclusions; distortion of facts. Cunningham
summarised some arguments for and against the concept of objectivity in the media.
Pro arguments include that nothing better has replaced objectivity; plenty of good
journalists believe in objectivity, at least as a necessary goal; the pursuit of objectivity
separates us from the unbridled partisanship; objectivity helps us make decisions quickly and
it protects us from the consequences of what we write; readers need, more than ever, reliable
reporting that tells them what is true when that is knowable, and pushes as close to truth as
possible when it is not. Con arguments include that objectivity excuses lazy reporting—if
you are on deadline and all you have is ‘both sides of the story’, that is often good enough; it
exacerbates our tendency to rely on official sources, which is the easiest, quickest way to get
both the ‘he said’ and the ‘she said,’ and, thus, ‘balance’; objectivity makes reporters hesitant
to inject issues into the news that are not already out there.125
Richard Sambrook holds that there might be real risks to public understanding from
the growth of subjective or advocacy news without an underpinning of more objective
information. There are also interesting differences in preference of objective and opinionated
news among nations. For example, British or German readers prefer more traditional
approaches to news, while Italians or Brazilians may prefer more subjective news. There is
a difference in preference based on education. If you have a university degree and a good
income, you may prefer to have evidence set out for you to make up your own mind. If you
are less well-educated or less well-off, you may prefer a journalist to interpret the news for you.
Sambrook concludes that although the news landscape is changing rapidly with exponential
growth in the sources, styles, and types of news available, audiences appear more attached to
the traditional norms of balanced and impartial news than some might suppose.126
Finally, Bill Kovach and Tom Rosenstiel discuss that there is nothing approaching stan-
dard rules of evidence, as in the law, or an agreed-upon method of observation, as in the
conduct of scientific experiments. Nor have older conventions of verification been expanded
to match the new forms of journalism. Although journalism may have developed various
techniques and conventions for determining facts, it has done less to develop a system for
testing the reliability of journalistic interpretation, Kovach and Rosenstiel conclude.127

123 http://niemanreports.org/articles/an-argument-why-journalists-should-not-abandon-objectivity/.
124 http://honestreporting.com/7-principles-of-media-objectivity/.
125 Cunningham, ‘Re-Thinking Objectivity’ (n 113).
126 R Sambrook, ‘Objectivity and Impartiality in Digital News Coverage’ The Guardian, 12 June 2014, http://
www.theguardian.com/media/media-blog/2014/jun/12/objectivity-and-impartiality-in-digital-news-coverage.
127 http://www.americanpressinstitute.org/journalism-essentials/bias-objectivity/lost-meaning-objectivity/.
 VII. Balanced Coverage 205

C. The Case of International News Reporting

Especially experienced international reporters from war-torn zones openly question

impartiality in news reporting while reporting on war crimes or about aggression as an
absurd concept. For example, the British reporter Ed Vulliamy wrote, based on his experience
from war reporting in Bosnia and Herzegovina: ‘The majority of us sooner or later had been
accused . . . of pro-Muslim attitude. . . . For some reasons this instinctive insistence on basic
principles of democratic Europe in Bosnia is seen as “pro-Muslim” . . . and in contrast with
the bizarre attitude to remain “objective” vis-à-vis the most horrifying racist violence.’128
Indeed, Tony Rogers129 mentions exceptions from the objectivity and fairness rule in news
reporting:

Remember that ultimately, reporters are in search of the truth. And while objectivity and fairness
are important, a reporter shouldn’t let them get in the way of finding the truth. Here’s an extreme
example: Let’s say you’re a reporter covering the final days of World War II, and are following
the Allied forces as they liberate the concentration camps. You enter one such camp and witness
hundreds of gaunt, emaciated people and piles of dead bodies seemingly everywhere. Do you, in an
effort to be objective, interview an American soldier to talk about how horrific this is, then interview
a Nazi official to get the other side of the story? Of course not. Clearly, this is a place where evil acts
have been committed, and it’s your job as a reporter to convey that truth.
In other words, use objectivity and fairness as tools to find the truth. That’s your goal as a reporter.

Indeed, from the societal point of view, lack of information or too ‘impassionate’
information about acts against humanity or about war crimes, can prevent humanitarian
or peace-making intervention either by the UN Security Council, relevant superpowers or
humanitarian organizations. However, if the media inform too quickly and incorrectly, it
may be happen that this will help one (evil or more evil) side of the conflict. In addition, the
media may then lose trust of their audiences. The British war reporter Martin Bell covered 11
wars. Bell openly suggested changing the concept of journalistic objectivity to a journalism
of attachment.130 Bell claims that a mirror does not impact what it reflects but television
screen does so. For example, during war, conflict journalists often became participants of
PoW exchanges. Some claim that these exchanges may not have happened without presence
of television cameras. Bell speculates that major war crimes may not have happened if there
would have been television cameras. ‘Journalism of attachment’ rejects objectivity because it
is, as a concept, lame and at the same time immoral. The French war photographer Patrick
Chauvel described the transformation of his attitudes towards the dilemma of objectivity
versus attachment—with a Lebanese example. ‘In this real war, my journalistic search for
truth moved me towards a diminishing objectivity. From simply stating facts, I came to
a more elaborated level of their interpretation. The question why do you fight brings only

128 E Vulliamy and V Marek, ‘Údobí pekla’ (Prague, Naše vojsko, 2009) 13.
129 T Rogers, ‘Here Are the Th ings You Need to Know about Objectivity and Fairness’ http://journalism.
about.com/od/ethicsprofessionalism/a/objectivity.htm.
130 M Bell, ‘The Death of News’ Media, War & Conflict 1(2) (2008) 221–31.
206 Comparative Media Law Practice – Slovakia

shifty answers.’131 In other words, fuzzy explanations on the motivations leading towards
civil war forced the journalist to abandon the concept of objectivity. According to Chauvel,
beside the wider societal context, there is also an immediate news reporting pressure leading
towards the illusory concept of objectivity. ‘When a man goes into a terrain, he wants to get
accepted by the fighters. Therefore, he must show them that he stays behind them. That he
is not there to reprobate them but to show what happens (unless his behaviour could lead to
saving lives of innocent civilians, which rarely happens). There is a very thin line between
correct and incorrect.’132 In contrast, defenders of journalistic objectivity in international
reporting claim that their approach guarantees at least a certain level of safety for journalists.
Many journalists have been killed in conflicts in former Yugoslavia because the Serbs saw
them as biased. Defenders of journalistic objectivity believe that those who would like to
influence the events should themselves became politicians. Hugo De Burgh asks: ‘If not even
journalists would inform objectively, who else would?’133 The same opinion was held by a
Czech war reporter Janek Kroupa.134
We should mention here that, in this context, perhaps a legal sanction (‘warning’) issued by
the RVR with regard to a series of news items broadcast on 1 March 2014, was unfair. In this
series of news reports,135 a PSM channel broadcasted about the imminent Russian invasion
to the Ukrainian Crimean peninsula.136 On 1 March 2014, the de facto Crimean Prime
Minister Sergey Aksyonov appealed directly to Russian President Vladimir Putin in a signed
statement, calling for Russia to ‘provide assistance in ensuring peace and tranquillity on the
territory’ of Crimea. The Russian Federation Council voted unanimously the same day to
grant permission to President Putin to ‘use the armed forces of the Russian Federation on the
territory of Ukraine until the normalization of the socio-political situation in that country.
Later that day, indeed, Russian troops took over the Crimea.137 It is doubtful whether there
was a place and a need for additional information regarding what the aggressor thinks about
this situation, as the RVR insisted. In other words, in some contexts—especially with regards
to rapid military invasions and foreign news in general—there is no urgent need or possibility
for balanced coverage in the short term.
Something else is a long-term propaganda on television screen. This would explain why
the Russian-language First Baltic Channel was fined by Latvian authorities for ‘non-objective
coverage’ of developments in Ukraine in October 2014. The First Baltic Channel broadcasts
mostly programmes and films of Russia’s Channel One (up to 70 per cent). The Latvian Na-
tional Council for Electronic Mass Media, which controls television and radio broadcasting
companies, argued that a 3,600 euro fine was imposed on the television channel for
‘repeated broadcasting of one-sided and non-objective information about developments in
Ukraine,’ adding that it determined the size of the fine taking into consideration that it was

131 P Chauvel, ‘Válečný reporter’ (Prague, Garamond, 2009) 141.

132 ibid, 184.
133 See, H de Burgh, ‘Some Issues Surrounding Investigative Journalism’ H de Burgh (ed), Investigative
Journalism. Context and Practice (London / New York, Routledge 2000) 75–76.
134 Sme, 12 May 2007, 34.
135 http://www.omediach.com/tv/item/5369-rtvs-potrestali-za-to-ze-nebola-dostatocne-proruska.
136 http://en.wikipedia.org/wiki/Timeline_of_the_2014_Crimean_crisis#March_1.
137 http://www.spokesman.com/stories/2014/mar/01/russian-troops-take-over-ukraines-crimea-region/;
http://www.infoplease.com/news/2014/russia-annexes-crimea.html.
 VII. Balanced Coverage 207

a transfrontier channel, and was penalized more than once before for such violations. The
Council also imposed a 700 euro fine on the Auto Radio in Rezekne on the same accusations,
explaining that the fine was lower since the radio station broadcasted for a relatively small
region, and was not fined before.
The Latvian National Council for Electronic Mass Media on 7 April 2014 banned
broadcasting of Russia RTR television for three months for signs of ‘military propaganda’ it
found in its broadcasts during the period from 2 to 17 March 2014. On the other hand, there
also was harsh criticism by the German media advisory board on the one-sided coverage of
the Ukraine crisis in the PSM ARD (the first German television channel) in late 2013, early
2014.138 In particular, the German media advisory board criticized the one-sidedness at Russia’s
expense, lacking a diverse and complete picture above all. The German media advisory board
came to the conclusion that the reporting has made the impression of the prepossession about
the crisis in the Ukraine only partially, and it was directed against Russia and the Russian
positions. However, the German media advisory board did not criticize a single particular
programme. It also accepted the difficulty of the ground reporting in conflict situations. Yet
it argued that in such difficult situations diversity must be respected as much as possible, and
allow for a well-balanced judgment in the most complete way. If this cannot be performed in
the topical reporting immediately, it must be brought up in the formats of the background
reporting, in Tagesthemen, in magazines and in special features, with suitable guests and experts
in the talk show formats, concluded the German media advisory board. Both ARD Editor-in-
Chief Thomas Baumann and WDR Intendant Tom Buhrow rejected these requisitions.

D. Slovak Cases

One of the most problematic groups of cases with respect to missing objectivity and
impartiality has been formulated, as it turned out, by a PSM’s programmes, especially in a
current affairs political programme on the public Slovak Radio. We have outlined the details
of these cases below for two key reasons. First, these outlines give better insight into the
(sometimes contradictory) legal thinking and argumentation used by the RVR, the various
administrative law senates of the SC, as well as that of the CC. Second, the courts or legal
experts may argue that each case is unique, so even a minor difference can in fact have major
regulatory-legal consequences. This may or may not be true, but readers will have to make
their own judgements on it after getting acquainted with all key details.

i. Case No 1: 6 Sžo 527/2009 (final verdict 26 October 2010)

Verdict: The Supreme Court confirmed the verdict of the RC (3S/135/08-50, 29 September
2009). The Regional Court cancelled the ruling of the RVR from 1 July 2008 (RL/35/2008),
and the case was remitted for further administrative-legal action by the RVR. The verdict
of the SC was based on ‘unexplorability due to the lack of arguments’ (nepreskúmateľné

138 B Bidder, ‘Streit über Ukraine-Berichte: Programmbeirat wirft ARD “antirussische Tendenzen” vor’ Der Spie-
gel, 29 September 2014, http://www.spiegel.de/kultur/tv/ard-streit-um-ukraine-berichterstattung-a-993304.html.
208 Comparative Media Law Practice – Slovakia

pre nedostatok dôvodov). The original sanction was the weakest possible: ‘warning due to
breaking the law’ (Article 16b of the BA). The administrative-legal action (správne konanie)
was initiated by the RVR itself on 29 April 2008. Clearly, the RVR does not always play the
neutral role of a judge but it also initiates some (controversial) administrative-legal regulatory
actions and sanctions. In other words, the RVR functions as a prosecutor and as a judge at
the same time. It is questionable whether this is the best approach.
Short description of the case: The PSM Slovak Radio broadcasted its news and current
affairs programme Z prvej ruky on 15 February 2008 at 12:30 pm. There was a discussion
with three guests. The content was related to the current socio-political events in the count-
ry, ie, the modification of the law on old-age pensions, leaving some participants from the
‘second old-age pension pillar’, a press law draft, and the renewal of candidacy of political
party Smer-SD in the Party of European Socialists.
The Court: It is always necessary to interpret a particular regulation (výklad). It should
be clear from the ruling defining the breach of law that the disrespect of objectivity and
impartiality of a contribution on the side of a broadcaster was not merely noticed by the
regulator, they also provided realistic guidelines for reaching objectivity and impartiality of
such programmes. It is important, considering that ‘warning’ is an exclusively preventive-
educative measure. This task can be fulfilled only in cases in which it includes advice and
guidelines for further activities. It also must state clear guidelines for further work. This
includes stating how to deal with this particular type of programme in a clear way (jasné
pravidlá pre ním riešený typ programu (see more in Rs 55/2003)). However, the SC as well
as the RC did not find requested educational guidelines in the criticised verdict. According
to the SC, it is impossible to assess individual expressions of commentators in that type of
programme because it is necessary to assess them in the context of the whole programme.
In particular, neither the SC nor the RC understood ‘how it would be possible to include
in broadcast programmes of this type (Z prvej ruky) feedback from all involved parties
(zaradiť reakciu dotknutých predstaviteľov) (members of governments, political parties,
international organisations, associations, MPs, and the PM), and how the presence of these
contributions could be guaranteed by the broadcaster.’ The Supreme Court also assumed that
the programme is designed in a way that can guarantee its purpose.139

ii. Case No 2: 2Sžo73/2010 (final verdict of the Constitutional Court I. ÚS 29/2012-40)

Verdict: There were actually two verdicts of the CC in this particular case (in 2010 and
in 2012). In the very final ‘finding’ the CC actually supported position of the RVR (one
of the Judges dissented). However, the CC mentioned that the SC in related verdict never
questioned the pro futuro use of the ‘empty chair’ concept. Nevertheless, the CC underlined
that there must be some measures in order to keep objectivity and impartiality of current

139 Considering that a particular programme broadcast on Friday is prepared in such a way that there is room for
discussion for commentators (guests) who comment participating actors of political decisions during the previous
week. These commentators, according to their previous attitudes, do provide guarantees that discussion should
reflect plurality of opinions, and that invited guests can present their opinions and arguments directly, live, and
without taking their expressions out of context, moreover, with possibility to react to questions of listeners.
 VII. Balanced Coverage 209

affairs programmes. This all started as an appeal against decision of the RC, the case of 6 Nov-
ember 2007, ruling RC 1 S 15/2008-54 of 10 July 2008, the original ruling was confirmed.
The Constitutional Court asked the SC to re-consider the case. The Supreme Court, legally
bound by the rulings of the CC, did so initially only formally. In short, despite the clear and
substantial arguments used by the CC and its legal obligations to obey the rulings of the CC,
the SC preferred a formal approach to its work.
The broadcaster forwarded the case towards the CC of Slovakia (IV. ÚS 245/09-42 of
21 January 2010), arguing with legal arbitrariness of the ruling of the SC (2Sžo202/2008
of 18 March 2009). The Constitutional Court argued in 2010 that the duty of the general
courts was to state the ‘sufficient and relevant arguments’ on which the rulings were based.
These arguments must be related both to material and procedural rulings (skutkovej, ako i
právnej stránky rozhodnutia). The Constitutional Court criticised ‘divergent’ (‘rozchádzajúcu’
sa rozhodovaciu činnosť ) rulings in similar cases. In particular, the CC questioned the words of
the Vice-Chairwoman of the SC that the case law of specialised senates has been unified since
2007. The Constitutional Court mentioned, on the one hand, the contradictory rulings of the
SC 5 Sž 50/2007 and 5 Sž 55/2007 of 27 November 2007. These rulings were in line with
arguments of the SC 2 Sžo 202/2008 of 18 March 2009. On the other hand, the SC in ruling
3 Sž 5/2009 of 23 April 2009 annulled the decision of the RVR, but used different arguments.
In addition, the CC argued that the SC did not deal sufficiently with arguments stated
by the broadcaster. The Constitutional Court argued that the SC confirmed the ruling of
the RC which, however, was ‘one-sided in arguments, fuzzy, and imperfect’ (‘argumentačne
jednostranne, nedôsledne a nejasným spôsobom vyrovnal so skutkovým stavom’). Nevertheless,
the SC re-affirmed its previous stance in a new decision of October 2010 on the same case.140
However, in another verdict delivered the same month by another SC Senate, the SC adopted
a different reasoning concerning broadcasters’ compliance with objectivity requirements for
similar programmes.141
Short description: There were two issues, a formal and a substantive one. The substantive
issue dealt with appeal against decision of the RVR related to the objectivity and impartiality
of the programme Z prvej ruky on April 10, 2007. The sanction was a ‘warning’ (RL/110/2007
of 6 November 2007). The Regional Court supported the position of the RVR, namely that
the broadcaster was supposed to give room to present an opinion of a representative of the
coalition. This was seen as crucial by the RVR and the RC, as well as the SC.
The formal issue dealt with the date when begins the ‘subjective’ period when the RVR
can issue a verdict. Interestingly, the CC enumerated all previous divergent rules used by
courts in this regard. First, there were verdicts that considered as formal date when the RVR
became familiar with monitoring or the report on investigation of the complaints (verdicts of
the SC 5 Sž 30/2006; 1Sž78/2005; 1 Sž 9/2005; 1Sž21/2006). This was finally seen as legally
the best option. Second, there were verdicts that this period starts with date of elaboration of
the monitoring reports (verdicts 3 Sž 50/2007; 5 Sž 50/2007; 3 Sž 103/2007; 3 Sž 107/2007;
3 Sž 108/2007). Finally, there were verdicts that this period starts with the day when the
RVR received a complaint (verdicts of the SC 5 Sž 87/2007; 3 Sž 96/2008; 3 Sž 5/2009; 5 Sž
80/2008; 5 Sž 26/2009; 3 Sž 35/2009).

140 Judgment of the SC 2 Sžo 73/2010.

141 Judgment of the SC 6 Sžo 527/2009.
210 Comparative Media Law Practice – Slovakia

The broadcaster: The broadcaster argued that there were invited guests representing the
coalition, the opposition, as well as an NGO. Furthermore, the broadcaster argued that the
radio host lead the discussion in a balanced way. In particular, it was argued that the radio
host as well as NGO representative presented a critical point of view with respect to the lack of
transparency of the previous government. The broadcaster underlined that the representative
of the coalition knowingly and deliberately refused to take part in the discussion. Both the
member of the government and the speaker of the same government party declined invitation
to participate in the programme.
The regulator: The regulator argued that it was undoubtedly a current affairs programme.
The key topic was a motion by the opposition to recall a member of the Government. In
the view of the RVR, the broadcaster was obliged to give room for the representative of the
Coalition. The Council for Broadcasting and Retransmission argued that a representative
of an NGO was logically not a sufficient and efficient representative of a different opinion,
considering that the representative of an NGO herself criticised the member of the
Government. The Council held that in a case when there would be no representatives of
the coalition present during the broadcast, regardless of all efforts, the broadcaster should
broaden the discussed topic, and discuss it without any politicians present (mali tvorcovia
predmetného programu možnosť postaviť tému širšie a diskutovať bez politikov). The Council
also considered that invitation was issued on the very day the programme was broadcast,
which was seen as an additional negative factor (tiež bola významná pri rozhodovaní rady v
danej veci). The Council based its decision about the lack of impartiality and objectivity on
identical criteria as in the case of general news programmes.
The Court: The Supreme Court argued that the decision of the RVR was justified and
explained in details. However, the SC relied on linguistic definitions not on journalistic
definitions. With respect to the ‘empty chair’ editorial approach, the SC considered it as a
‘standard’ approach in the case of this type of programme. However, the SC also believed
that in this particular case, the opinions and arguments of the missing participant were
voiced by a representative of an NGO or the editor. Yet the SC did not provide any detailed
explanation on why this should be so in this particular case. In other words, there was no
clear argument supporting that the ‘empty chair’ approach was not sufficient in this case. The
arguments that an ‘unbiased listener might get the feeling after listening to the programme
that it was not objective and impartial’ is not a good enough reason. It is obvious that ‘empty
chair’ may bring such results, otherwise it would not make much sense to use it. It rather
seems that the SC as well as the RVR prefers balance (impartiality and objectivity) under any
conditions. In the case of the SC, this concept was based on legal argument, namely, ‘there
is an objective responsibility for a broadcaster.’ Ironically, the emptiness of arguments in the
case of the ‘empty chair’ was actually criticised the CC, too. The Constitutional Court asked
the SC to reconsider its approach based on just accepting conclusions of the RC which were,
according to the CC, ‘rather unclear and vague’.
The Constitutional Court criticised that both the RC and the SC had ‘a priory identified
a lack of presence of one party in the programme . . . with sufficient reason to claim a lack of
objectivity of that particular programme and the breaching the duties of a broadcaster.’ The
criticism of the CC was that ‘[t]he specific current affairs programme, ie, which opinions,
commentaries, and information on news were voiced by participants in that particular
discussion, their relationship (in order to assess them from the point of impartiality and
 VII. Balanced Coverage 211

balance) is not quite clear from any previous rulings in this matter (nor for example the
‘empty chair’ approach, which is rather typical in European charts of news reporting and
current affairs programmes, neither the claim by the broadcaster that the editor—host—and
the politically neutral guest rather critically assessed the activities of the political party, the
representative of which was present).’ Yet the courts failed to consider these facts, the CC
concluded. In 2012, the CC argued that the verdict of the SC related to breaking impartiality
in that particular programme was ‘constitutionally acceptable and correctly (riadne) justified.’

iii. Case No 3: 3 Sž 200/2010 (final verdict of 8 October 2010)

Verdict: The Supreme Court de facto annulled the ruling RC 1S/126/2009-52 in the
sense that a decision of the RVR RL/18/2009 of 19 May 2009 was cancelled. The reasons
were ‘incorrect legal judgment of an issue as well as non-reviewability’. The Council for
Broadcasting and Retransmission was supposed to deal with this issue again. The original
sanction was a ‘warning’ based on the lack of objectivity and impartiality in the current
affairs programme Z prvej ruky, broadcasted on 10 October 2008 in the Slovak Radio.
Short description: The programme ran on weekdays. During the first four days, politicians
were present, but on Fridays, independent publicists were the guests. This particular
programme was broadcasted on Friday.
The Court: The Supreme Court studied documents and transcripts, and listened to the
original radio broadcast. The Supreme Court argued that it was not sufficiently described
why there was a supposed breach of law. It was mentioned there that the broadcaster did
not guarantee objectivity and impartiality. This description was seen as not sufficient by
the SC. In particular, the SC held that the breach of the law happened only in the first
third of the programme. The Supreme Court concluded that the decision of the RVR was
non-reviewability due to incomprehensibility (nepreskúmateľnosť rozhodnutia žalovaného pre
nezrozumiteľnosť). Nevertheless, the SC came to conclusion that the radio host followed
the expectations raised by the RVR, and the programme itself was fairly critical as well.
The Supreme Court seemed to differentiate between objectivity and impartiality. More
specifically, the SC demanded the RVR to explicitly mention if the programme did not keep
the objectivity or impartiality of the current affairs programme, or possibly any of them.
The Regional Court checked the transcript of the programme. The Court accepted the
argumentation of the broadcaster that the content was important, not the overall or usual
style and content of other identical programmes Z prvej ruky. The programme was clearly a
current affairs programme. This is an important finding because the criteria of current affairs
programmes are clearly defined by the law (in Article 16 b of the BA). The Court identified
critical remarks towards the Government and its members in the programme. In many issues
there was a consensus. These findings so far do not provide good enough reasons for the
claim of lack of objectivity or impartiality of that particular programme, the RC concluded.
Yet the Court also explicitly stated that in case no member of the Government was present,
there was a duty for host of the programme to moderate discussion in a way to substitute for
the missing opponent. The Court concluded that the sanction was issued mainly because of
the first part of the programme, dealing with Slovak-Hungarian relations. This seemed to be
the most part highly critical towards the Government and the ruling coalition.
212 Comparative Media Law Practice – Slovakia

The broadcaster: The broadcaster underlined the fact that the Friday’s programme is of
different type, more analytical than opinionated (ponúkajú reflexiu, idúcu nad rámec bežných
názorových vrstvení). Therefore, the broadcaster argued, this very specific type of discussion
enables the deliberate opinion-based differences among the invited commentators. In addition,
the RC argued, sometimes it is impossible to offer a qualified contradictory opinion. The
broadcaster argued that it is obliged to guarantee objectivity and impartiality of programmes
as a whole, but not of individual expressions / opinions. In other words, the broadcaster argued
that the goal is to reach the overall impartiality and objectivity of the programme, but not that
of all individual claims. The broadcaster insisted that ‘absolute objectivity in a particular part of
a broadcast is practically impossible to achieve.’ In addition, this goal is very much determined
by the education and experience of the radio host (journalist). The broadcaster considered
‘balanced’ information to be the key term. This should be interpreted, the broadcaster argued,
as more views / opinions on the same issue and in adequate ratio. The broadcaster mentioned
that it could not predict the way in which two commentators would comment on rather
diverse specialised topics with marginal political background. Finally, the broadcaster argued
that absolute or case-by-case (point-by-point) balance of opinions is in contradiction with the
mission of the media. The broadcaster argued that the RC did not deal with these objections.
The regulator: The Council for Broadcasting and Retransmission did not demand the participation
or involvement of all the individual politicians in that programme. However, the regulator underlined
that the programme was supposed to offer unbiased discussion on politically and societally important
topics. The Council argued that moderating the discussion with the aim to achieve balance and
impartiality of the programme was the duty of the radio host. This should include presenting the
opinion of a missing participant. The role of the radio host is also important due to the unpredictability
of how discussion will evolve, the RVR argued. The radio host should ‘neutralise’ what was said, or
limit the ‘inadequate criticism’ of subjects who were not present at the discussion.

iv. 2 in 1: Plurality of Opinions and Human Dignity: Case Cervanová

A regular current affairs programme Večer pod lampou is a special ‘dual-issue’ case that should be
mentioned in detail here. This case deals with a special case of balanced coverage (understood as
plurality of opinions, Article 16(3)a of the BA), as well as human dignity (Article 19(1)a of the
BA). An additional, interesting aspect of this case is that PSM television was sanctioned directly by
the RVR in administrative proceedings (RP 112/2011 of 20 December 2011). A higher (financial)
sanction of 50,000 euro was issued due to the breach of human dignity rather than balanced
coverage (there was a duty to broadcast an announcement three times before the programme about
‘not guaranteeing universality of information and plurality of opinions’ (‘nezabezpečenie všestrannosti
informácií a názorovej plurality’). Regarding the breach of human dignity, the RVR argued that: ‘the
programme, in the way it was produced and due to its content, interfered with the human dignity of
prosecutor Milan Valašík, Ľudmila Cervanová, and forensic psychologist Gejza Dobrotka.’
The irony was that this very programme received a prize for the best interview in electronic
media in the same year when it was broadcast, awarded by the Open Society Foundation.142

142 http://medialne.etrend.sk/televizia/novinarska-cena-2011-vitazi-su-znami.html; http://www.memo98.sk/

index.php?base=data/other/1334403261.txt.
 VII. Balanced Coverage 213

The jury that awarded this prize consisted of many journalists. In other words, while the official
media regulator, courts, and some state institutions like the Office of the Prosecutor General
saw this programme as a grave breach of law or ethics, the civic sector representatives assessed
this programme rather positively. It should be clear that the issue at stake was not so much the
professional performance in a narrow sense, but rather its content, on both sides. The Supreme
Court in its verdict 2 Sž 3/2012 issued on 27 February 2013 approved the financial sanction
of the RVR (dealing with human dignity) while the issue of the breach of balanced coverage
was re-directed for further legal action to a lower RC (due to its competency in this matter).
Regarding human dignity, the SC argued that this type of programme required ‘maximum
neutrality from the TV host leading the discussion’. This, however, was not the case here. The
Supreme Court based its negative assessment on a) the composition of the guests (invited and
not invited, present and not present); b) how a television host lead discussion; c) interference
with the human dignity of specific people. The discussion programme was broadcast on 23
June 2011 on second channel of the PSM Television. The discussion programme was about a
criminal case that took more than a generation to reach a final verdict. The case, named after
the victim, a medicine student called Cervanová, started in 1976. The murderers were sentenced
for the first time under communism, in 1982, and for the last time, after the political change—
following a new process, in 2006.143 What was so controversial about this programme? The
television host, Štefan Hríb, who was in charge of the external company producing a series of
current affairs discussions for PSM, invited four men into the programme who had participated
in the brutal murder of a university student. On the one hand, Hríb never doubted that these
men were actually innocent. Indeed, all sentenced murderers present claimed to be innocent,
and the victims of the failure of justice. On the other hand, Hríb also invited prosecutors,
police investigators, and judges. Unsurprisingly, none of them were interested to participate
in a discussion with murderers. Furthermore, most of them claimed that they were sworn to
secrecy regarding the case. However, Hríb argued that he was doing his job professionally. In
his opinion: ‘If we, journalists, would step back and not produce a programme in case one side
of an issue could not be represented, we would not be able to inform about the issue. The one-
sided situation was created not by us, but by the other side.’144 Yet in the programme, Hríb—as
is typical for his style of conducting public debates—did not comment on any claims raised by
sentenced murderers. He also openly questioned the ability of Slovak courts (and some other
state authorities) to pursue justice and search for the truth. It is true that the Slovak judiciary
has long had a very low reputation among the majority of population.
The Council for Broadcasting and Retransmission argued that the ‘empty chair’ concept
was absurd in this context. The Council demanded that in order to maintain the plurality of
information (not the more narrow concept of balanced coverage), there was a need to present
(broadcast)—in adequate time and with the same scope as the problematic programme—
an official follow-up (v primeranej časovej nadväznosti) version of the Cervanová case to
the viewers. This would enable the viewer to become familiar with the argumentation and
conclusions of the court in the verdict. The Council based its arguments on the ruling of the
CC PL. ÚS 7/96 (published under 77/1997 Z.z.).

143 http://sk.wikipedia.org/wiki/Vra%C5%BEda_%C4%BDudmily_Cervanovej.
144 K Sudor, ‘Š Hríb: Nepovažujem sa za veľmi rozumného ani dobrého človeka’ https://projektn.sk/8412/
stefan-hrib-nepovazujem-sa-za-velmi-rozumneho-ani-dobreho-cloveka/.
214 Comparative Media Law Practice – Slovakia

The Constitutional Court dealt with the balance of public and private interest there:
‘the equilibrium of public and private interest is an important criterion when assessing the
adequacy of the limitation of any fundamental right and freedom.’ In the present case, the
SC summarised its conclusion in a single sentence: ‘The aim of this programme was neither
a search for the truth, nor a confrontation of different opinions on the Cervanová case, but
the presentation of facts in favour of the sentenced.’ In conclusion, both the RVR and the
SC used extended versions of the concept of ‘universality of information and plurality of
opinions’ for the assessment of a particular programme. Previously, it seems that the law and
similar regulations understood these concepts as related to efforts to keep particular series of
programmes ‘plural’ and providing ‘universal information’ (related to that particular series of
programmes). In this case, the RVR and the SC made an effort to expand this notion, covering
and monitoring various types of news and current affairs programmes. Interestingly, the RVR
did monitor the broadcast of PSM in the period of 1 January 2011 to 5 September 2011 (while
the discussion programme itself was broadcast on 23 June 2011). Thus, the RVR focused
not only at news programmes, but also at current affairs programmes (such as O 5 minút
12, Reportéri, Komentáre, Správy STV ). The Council for Broadcasting and Retransmission
concluded that there was some information on the case, but not enough to fulfil the above-
mentioned expectation of guaranteeing the plurality of information. This legal discussion also
helped to clarify further what is meant by ‘empty chair’.The empty chair concept is not a way
of protecting a journalist who issues a formal invitation to people who are not likely to come,
due to their professional obligations (eg, professional secrecy) or the possibility of further
personal or psychological harm (eg, relatives of the victim). The Supreme Court paid attention
to the issue of who was invited and who was not, who was present and who was not. Overall,
however, the empty chair was not the crucial problem in this context. As it was mentioned by
the SC, the aim of this programme was not the search for the truth. We can conclude that this
particular case suggests that the courts and the RVR can be correct in their professional-legal
and ethical assessment of a case, as opposed to the civic sector.
Here we are going to discuss the first two non-political cases. In the first case, A Long Way
of a Post, the RVR decided correctly, although rather strictly with respect to impartiality and
balance reporting in commercial television. In the second example, Symphony Orchestra of
the Slovak Radio, both the RVR and the RC took the demand for impartiality and balanced
reporting too far. Only the SC issued a clear verdict, with which it stopped the too demanding
request for impartiality and balanced reporting.
First, we are going to discuss a relatively recent case, not yet (at the time of writing)
submitted before the court: A Long Way of a Post. This case is typical of the way the RVR
argues about impartiality and balance in news reporting and current affairs programmes.
It is not about a politically contested news item, which made it important to include in our
analysis. The case concerns the commercial TV JOJ, which broadcasted the news item ‘Dlhá
cesta pošty’ (A Long Way of a Post) in its main evening news Veľké Noviny on 8 October
2013. According to the RVR ruling, no relevant information was in any way provided on
how court rulings and verdicts are produced and delivered. Furthermore, the RVR argued
that the opinion of concerned courts was not provided in any relevant way. Therefore, the
RVR concluded, the objectivity and impartiality of this particular programme has not been
guaranteed. The sanction issued was a duty to broadcast an announcement about breaking
the law on broadcasting. The broadcaster did not submit any explanation on the case.
 VII. Balanced Coverage 215

The News Story: A Long Way of a Post

Ľuboš Sarnovský, journalist: ‘And here it is. Slovaks are complaining once again. This time
about our courts.’
Adriana Kmotríková, journalist: ‘The judicial proceedings take too much time, and
waiting for the court’s verdict takes too much time (býva často v nedohľadne).’
ĽS: ‘Our reporter Dodo Kačmáry has come up with the theory that actually there are lazy
people, and stamps are behind everything.’
Adriana Kmecová, lawyer: ‘Unfortunately, in many cases when a common person
complains at a court about delays in proceedings, he/she is often right.’
Jozef Kačmáry, journalist: ‘The work of the courts is not popular neither among law
offices, nor among common folks. Especially the elderly often say that they do not expect
them to reach a verdict during their lifetime. We have discovered what a problem that can be.
The postal delivery of the consignments of the courts is banal. In some cases, their delivery
takes as long as if it were between two planets (akoby ich posielali medziplanetárnym letom).’
AK: ‘In a specific case concerning the delivery of a verdict from the regional court to a
local court, which is located in the same building, it took more than five weeks.’
JK: ‘And here it is, black on white. A verdict issued on the first floor on 30 April was
delivered onto the second floor by 6 June.’
Tomáš Borec, Minister of Justice: ‘If this is indeed the case, and somebody does not move
one document or file from one floor to another floor, this, of course, should not be like that,
and cannot be like that.’
JK: ‘Imagine that this is the court’s verdict. We are going to show you how long a delivery
from a local court to a regional court can take, which are both located in the same building.
And we have come in front of the Court’s Registry. It took us a minute from the local court to
get here, and one could expect the same with regard to the speed of delivery of postal parcels.
And this is another example. From a local [court], it took us a less than a minute [to get here],
and this should be like the speed delivery of parcels. And another example. Giving a son back
into the care of his mother. The court issued the verdict in August, but she was only able to
see him again in September.’
Erika Vasiľová, participant at court’s proceedings: ‘I could have seen my son twenty two
days earlier.’
Marek Gabonay, journalist: ‘We shall make a little experiment. We are going to send
a postcard directly to New York City, and shall wait to see how long it takes for it to be
returned to Slovakia. We have posted it on September 26 at noon. We have not asked for first
class service, but for second class. It cost us therefore a dollar. There is no problem with speed
of delivery in the USA.’
A US Postal Services Representative: ‘Took two days.’
JK: ‘Well, and a parcel from New York City to Košice, we have received in five days.’
Postwomen: ‘Good morning, there is a letter for you.’
JK: ‘Thank you very much. The Spokesperson of the Court does not want to see this as a
problem, and talk about it. She has just sent us an extensive statement on how it should work.’
(For about five seconds a PC screen was visible with an e-mail on it. It was not possible to
comprehend the content of the communication due to the shortage of time.)
Marcela Galová, Spokesperson of Košice Courts: ‘Do not invent such things as you have
sent to me.’
216 Comparative Media Law Practice – Slovakia

JK: ‘Such as?’

Marcela Gálová: ‘If you were to ask me whether it was issued as a decision with regard to
putting somebody in jail, I would have told you if it was or not.’
TB: ‘I think it is a sign of poor management if it is as you say it is.’
Marek Gabonay: ‘Even in the USA, it sometimes takes more than 22 days to deliver a
parcel. This often concerns messages that fathers are sending their sons in a bottle. For TV
JOJ from Košice, Jozef Kačmáry and from New York, Marek Gabonay.’
The Council for Broadcasting and Retransmission provided a very detailed criticism of
this news item in a scope of around 4,500 words (Ruling of the RVR RO/001/2014). The
Council based its assessment on premise that ‘the acceptable scope of the tolerance of the
impreciseness of broadcasted information (prípustnej miery tolerancie nepresností odvysielaných
informácií) depends on the importance of published information, on the existence of public
interest, on making it public as soon as possible, and on the real availability of the published
information and the possibility to verify its truthfulness at the time of its broadcast.’ In
particular, the RVR criticised that the concerned courts did not get the opportunity to express
their opinions either directly or indirectly, and that the news item did not clearly differentiate
the various administrative steps related to issuing and delivering courts’ verdicts. Therefore,
the RVR argued, a news item informed in an ‘extremely simplified way, schematically, and
most of all imprecisely’ (Ruling of the RVR RO/001/2014). The Office of the RVR also
supported this decision (Administrative Act 31/SKO/2014). Interestingly, our independent
professional assessor (a journalist) did not find any problems in this particular news item.
‘This particular news item is OK under the condition that there has been no fundamental
manipulation of the presented statements and opinions by the editors. This is impossible
to verify from the transcript, but could be detected by the eventual complaints by those
offended, supported by strong evidence.’145 In short, for people not familiar how the courts
and judicial administration works, this case could be seen as not problematic. However, for
law professionals, this was an unprofessional news item.
We can also take an example of the RVR and the lower RC taking their expectations
with regard to journalistic professionalism (related to balanced coverage and impartiality)
perhaps too far. This can be seen by another example, 6 Sžo 390/20009. This case concerned
a news item broadcast in PSM Slovak Radio on 6 February 2007. This news item informed
about the expected changes in the Symphony Orchestra of the Slovak Radio. This news
item was allegedly not impartial and objective. However, the SC accepted defence of the
PSM. The opinions of the general director of the Slovak Radio and of the conductor were
presented. Therefore, giving voice to members of the Orchestra was perhaps not necessary.
The most important aspect of the case was that the news item was broadcast on 6 February
2007. However, a preliminary list of members of the Orchestra to be fired was put together
on 16 February 2007. Thus it could perhaps be seen as more internal affair till then. Finally,
the trade union received this list only on 13 March 2007. Clearly, it did not make much
professional sense to ask for the opinions of members of the Orchestra at this stage.

145 E-mails from Juraj Filin, Editor of the Goodwill, on 1 and 17 December 2014.
 VII. Balanced Coverage 217

E. The Case Study: Commentaries v Information in

News Reporting—Where does the Border Lie?

An especially controversial case, which deserves detailed analytical attention, was a ruling
issued by the regulator. The Council for Broadcasting and Retransmission issued a verdict in
late August 2014, claiming that when the PSM Slovak Radio (part of Radio and Television of
Slovakia, RTVS) broadcast the news that the President presented the state awards (Prezident
Gašparovič udeľoval vyznamenania) on its public radio channel Rádio Slovensko in its
regular news programme Rádiožurnál on 10 February 2014, this was a breach of the law
according to Article 16(3)b of the BA. This particular Paragraph deals with the objectivity
and impartiality of news, and a duty to separate news from commentaries, and opinions from
news-type information. This case will probably end before the Administrative Law Senate of
the SC. Therefore, its analysis is relevant. Regardless of this fact, and although the original
legal punishment was relatively mild (although as assessed by the RVR itself it was a serious
breach of the law, otherwise there could be no sanction issued), and although this case falls
outside of our original research period, it is a most significant, highly normatively value-
based case study, directly related to the perception of the mission of journalism in general,
and to concept of news (especially their objectivity and impartiality) in particular. This case
also reflects the thinking of the majority of the RVR members, with respect to their notion of
news objectivity and the mission of journalism (only one member of the RVR abstained from
voting among those present, all others voted in favour of the breach of law by the RTVS).We
have thought it useful to present here the full, English language transcript of the contested
news report.
The anchor: ‘Twenty-eight orders, one hundred and twelve crosses, and forty-two badges—
this is the number of medals issued by President Ivan Gašparovič in ten years. The President
gave these awards to various personalities. Although the Head of State awarded them mainly
for exceptional contributions in arts, sports, or the dissemination of a positive image of
Slovakia abroad, one can also find people with questionable pasts among the appreciated
personalities.’
The journalist: ‘The President presents the state awards on the occasion of the anniversary
of the founding of the Republic, at the beginning of a new year. He did so last time a month
ago when he gave state awards to sixteen personalities. The suggestions of whom to appreciate
are given by the Cabinet or Parliament. These suggestions are then assessed by a six-member
committee. The President can give state awards independently, on his own initiative as well.
What matters in such a case is explained by the Spokesperson of the Head of the State, Marek
Trubač.’
Trubač, Spokesperson of the President of Slovakia: ‘Extraordinary contribution to
development in the field of arts, sports, culture, the representation of Slovakia abroad, and
the dissemination of good image, as well as the contribution during the fight for freedom in
the WWII period, the fight against fascism, etc.’
The journalist: ‘In spite of the efforts to assess positive contributions, there are still many
controversial people among the recognised ones. An example can be Ondrej Šedivý, a former
colonel of the Border Guard, which is known from the times of totalitarianism for its many
deadly incidents. Nevertheless, the President awarded him the Milan Rastislav Štefánik
Cross III. Class, ironically, for protection of human lives in 2006. Šedivý is also mentioned
218 Comparative Media Law Practice – Slovakia

in a notice for crimes committed at the borders, submitted to the Office of the Prosecutor
General by the National Memory Institute by its Chair, Ondrej Krajňák.’
Krajňák, Chairman of the Board of Trustees of the National Memory Institute: ‘About
42 people have been killed at the Slovak-Austrian border, guarded by the 11th brigade of
the Border Guard. These deeds, already committed, are barred; therefore the Office of the
Prosecutor General does not deal with them anymore.’
The Journalists: ‘Among the controversially reputable, there is also the President of the
Kazakhstan Republic, Nursultan Nazarbayev, seen as dictator; Professor Jaroslav Chovanec,
suspected of sexually harassing female students; the creator of the sculpture of Klement Gottwald,
Tibor Bártfay; but also the actress Eva Kristínová, who has been regularly present at extremist
events, or the novelist Jozef Bob, who is the author of works questioned by historians. The
Spokesperson of the Head of State claims that not one of the awarded has been sentenced. In
addition, the law which came into force in 2008 brought stricter criteria for awarding state awards.’
Trubač: ‘The new law on state awards has defined stricter criteria for the selection of
persons to be awarded, in order to select only those who will be a positive example.’
The Journalist: ‘Controversy was caused also by Gašparovič’s predecessor, Rudolf Schuster,
who gave an award to the then Mayor of Žilina, Ján Slota, in 2004. Filip Domovec, RTVS.’
The news story itself was part of a series of contributions before the Presidential elections,
and at the same time, these news and current affairs items assessed the role of the President
whose term was coming to the end. The PSM also assessed in its previous reports other
aspects of the retiring President, including, eg, his Reports on the State of the Republic, or
the scope of the President’s rights.

i. Argumentation by the Media Regulator

The Council for Broadcasting and Retransmission argued in its verdict that the ‘one-
sided information about personalities that received awards did not include another point
of view (neboli objektivizované) through giving air-time to their opinion or by some other
way. In addition, there were value-based commentaries broadcasted, dealing with the
aforementioned subjects. These commentaries, however, were not separated from news-type
information. Therefore, the objectivity and impartiality of that particular programme was
not guaranteed.’146 As a result, the public broadcaster was obliged to repeatedly broadcast an
announcement that included the following sentence (providing an additional explanation on
what was perceived as the moral problem by the RVR): ‘The editor [journalist] has expressed
himself critically about some of the awarded personalities of Slovak cultural and social life,
without any effort to make the contributions [of these awarded persons] known in at least a
minimal scope, for which the President gave them awards.’147 In summary, there were three
problems with this news story, according to the RVR.
First, the journalist was supposed to give air-time to all, or perhaps even more persons than
were mentioned, or guarantee the allegedly missing objectivity in another way. This would

146 Minutes from the Meeting of the RVR (26 August 2014), http://www.rvr.sk/sk/spravy/index.
php?aktualitaId=2603.
147 ibid.
 VII. Balanced Coverage 219

mean making phone calls (in addition to contacting the original two people) to seven or eight
people, including a foreign President and, possibly, to a former Slovak President. This at first
sight seems to be an absurdly demanding concept of objectivity. It seems that the RVR itself felt
this would be a too demanding concept of objectivity, so it also gave the option of ‘in another
way’. However, it is not clear what this would actually entail, practically speaking. It would most
likely mean to leave more time to present the news than they originally had. This is problematic
in itself, considering that each news item has a more or less limited time-scope, adapted to a
radio news broadcast. We will discuss this issue later, under the heading of objectivity.
Second, the RVR argued that there were broadcasted ‘value-based commentaries . . . not
separated from news-type information.’ However, one can also find a sentence in the reasoning of
the RVR that contradicts the previous one. The Council argues that the journalist broadcasted
‘generally known, objective facts connected without any relevant precision (spresnenie) with
the awarded personalities.’148 This is a very important statement by the RVR itself. If there
were broadcast ‘generally known objective facts’, regardless of the second part of the sentence,
what was the problem actually? It seems that the issue here is whether news programmes
should broadcast only facts, or broadcasters should also include the context of these facts.
Perhaps more precisely the issue is whether this was actually a news item, or should it rather be
a part of a (different) current affairs programme. Still, it could be seen as an acceptable news
item if it was a standard or typical news item for that particular programme (regardless of its
name or formal categorisation). We will examine this issue later in detail.
Third, the RVR argued that the editor / journalist did not show any effort to show positive
side of the story, ie, there was no mention of the positive achievements of the awarded people.
It seems that the issue here is whether balance and objectivity in news (and perhaps not only
in news programmes) also means balancing the positive and negative aspects of events and
people (here it should be again mentioned ECtHR verdict in Manole, cited earlier). We can
say that, in general, news or journalism is by definition based on negativity (‘good news is
usually no news’). Indeed, there seems to be a consensus that a consistent pattern of negative
news erodes the specific support for particular leaders, governments, or policies.149 However.
there are occasional inconsistencies or differences regarding the impact of different media150
or the varied media impact in the case of the perceived political versus economy perfor-
mance,151 or findings related to particular sectors and media are in indirect cooperation with
particular institutions of horizontal accountability.152 Sometimes, there is disagreement with
respect to the impact of negative media reporting on the legitimacy of political systems.153
Some researchers have pointed out the complexity of the interactions of various types of

148 Ruling of the RVR, Rozhodnutie č. RO/001/2014, Bratislava, 8 April 2014, 5.

149 See, J Pietsch and A Martin, ‘Media Use and its Effect on Trust in Politicians, Parties, and Democracy’
Australasian Parliamentary Review 26(1) (2011) 131–41; P Norris, A Virtuous Circle: Political Communications in
Post-Industrial Societies (New York, Cambridge University Press, 2000).
150 K Gross, Sean Aday, Paul R Brewer, ‘A Panel Study of Media Effects on Political and Social Trust after
September 11, 2001’ The International Journal of Press/Politics 9(4) (2004) 49–73.
151 L Camaj, ‘Media Use and Political Trust in an Emerging Democracy: Setting the Institutional Trust Agen-
da in Kosovo’ International Journal of Communication 8 (2014) 187–209.
152 L Camaj, ‘The Media’s Role in Fighting Corruption: Media Effects on Governmental Accountability’ The
International Journal of Press/Politics 18(1) (2013) 21–42.
153 J Wolling, ‘Skandalbericherstattung in den Medien und die Folgen fur die Demokratie’ Publizistik 1
(2000) 20–36 vs Norris, Virtuous Circle (n 149).
220 Comparative Media Law Practice – Slovakia

media, types of programmes watched, different levels of education and ideologies, social
versus political trust, among other factors.

ii. Public / Experts’ Reactions to this Case

This case caused reactions both from a media portal154 and public intellectuals in Slovakia. For
example, Peter Zajac called it an ‘entirely absurd ruling’.155 Zajac argued that the RVR preferred
‘a principle of omitting unpleasant facts from the public memory’. In contrast, Pavol Dinka, a
Member of the RVR, has also acknowledged that one of the criticised artists produced artwork
which ‘reflected the ideology of its time’ (‘poplatné dielo’).156 This, however, Dinka justified on
the grounds that ‘he [the artist] lived in such an era; the artist wanted to live and express himself
creatively [even under such conditions].’ To summarise it in Dinka’s words: ‘The story included
commentative parts [this has to do with a key criterion—to exclusively respect facts], missing
especially precision, balance and topicality [the story was broadcast after a month the award
ceremony had taken place].’ The arguments defending the RTVS (justifying its decision to
broadcast contested news item) and the journalist included statements both by the Office of the
RVR and the RTVS. These reasons were mixed also in the documents by the Office of the RVR.
It was pointed out that air-time was given to the Spokesperson of the President as well
as to the Representative of the National Memory Institute in the news story. In fact, the
Spokesperson of the President acknowledged that there were problems with some of these
awards in the past. In his words: ‘A new act on state awards defined stricter criteria for the
selection of these important personalities in order to guarantee that these will be really positive
examples [worthy to follow].’ Indeed, there had been problem with selection of candidates
for state awards. The President himself initiated a change of the Act on state awards in 2008.
The President justified these changes with the aim to reach a ‘more narrow and responsible
selection’. In addition, a special Presidential Committee would assess nominees.157 There was
indeed some past criticism of the selection of the President or the Government for state awards,
related to foreign dignitaries158 and domestic personalities.159 The Presidential Office (in an
e-mail from Peter Rusiňák)160 has confirmed that the former President Gašparovič initiated
the drafting a new law on state awards. In addition, the Presidential Office confirmed that
there were some 20 suggestions or questions with respect to state awards, mostly related to
the criticism they received in the last ten years.

154 M Kernová, ‘Rozhlas si dovolil kritizovať Gašparoviča, dostal trest’ http://www.omediach.com/radio/

item/4932-rozhlas-si-dovolil-kritizovat-gasparovica-dostal-trest.
155 P Zajac, ‘O pamäti a nepamäti’ .týždeň, 8 September 2014, 50.
156 P Dinka, ‘Mentálne mediálne zbojstvo’ http://www.noveslovo.sk/c/Mentalne_medialne_zbojstvo.
157 SITA, ‘Prezident chce, aby štátne vyznamenania mali väčšiu vážnosť’ http://www.kysuce.sk/cl/4018/
prezident-chce-aby-statne-vyznamenania-mali-vacsiu-vaznost.html.
158 See, I Kuhn, Hodnotová orientácia slovenskej zahraničnej politiky (Braitslava, MR Štefánik Conservative
Institute, 2008) 6–7.
159 M Vagovič, ‘Obťažoval študentky, dostal štátne vyznamenanie’ http://www.sme.sk/c/4079232/obtazoval-
studentkydostal-statne-vyznamenanie.html; O Bardiovský, ‘Ako súvisia morálka a kvalita? Príklad J. Chovanec,
prof. JUDr. CSc’ http://bardiovsky.blog.sme.sk/c/196705/Ako-suvisia-moralka-a-kvalita-Priklad-J-Chovanec-
prof-JUDr-CSc.html.
160 Head of the Personnel Office of the President, 14 October 2014.
 VII. Balanced Coverage 221

iii. Argumentation by the Office of the Rada pre vysielanie a retransmisiu

The Office of the RVR recommended stopping further administrative-legal steps based on
additional arguments. The Office argued that ‘[t]he statement on the “controversial aspects”
(kontroverznosti) of some of the awarded personalities had its origin in widely known and
verified facts (skutočností). These facts were commented upon by the Spokesperson of the
President. Considering the aim and scope of the story, we assume that to give space to
individual “controversial” nominees was neither efficient (účelné), nor necessary in this
particular matter in order to guarantee the objectivity and impartiality of the programme.’161
Thus it seems that the Office of the RVR based its argumentation on two issues; first, it
was the correct content of the news story, and second, the journalist’s output was in line
with the necessarily imperfect (or perhaps by definition rather incomplete) journalistic news
work (as it is often said, journalism is seen as the first draft of history). The Office of the
RVR based its advice on usual approach. This included a brief summary of the legislation, a
quotation of the key paragraph, the full transcript of the controversial item, the opinion of
the broadcaster, and some thoughts by the staff.
The most relevant and usually used ones were thus the quotations from the BA (Article
16(3)b) and the statement that none of the two key terms have an explicit definition in the
Act. Then the usually accepted key criteria of objectivity followed, ie, relevance, transparency,
precision, completeness, factuality, balance, plurality, actuality / topicality, clarity, distance
and neutrality, and, in the case of news reporting, lack of partiality.162 It seems that the key
assumption of the staff (the Office) was that the item broadcast was not actually problematic.
This would explain—together with many other cases the Office has to deal with—the
relatively little attention paid to the justification of the legal-factual position on this case.
In any case, it seems that a more advanced methodology for the evaluation / assessment
of controversial broadcast items might be considered useful. An attempt to outline such a
methodology is made in this paper. It is perhaps enough to mention here that some research
could have been done by the Office of the RVR on why the spokesperson tacitly or indirectly
accepted that there had been some problems with moral or professional qualities of awarded
personalities, what exactly has been said or written about these controversial personalities,
and whether the criticised personalities or any other person quoted or mentioned in the
broadcasted item actually reacted to the broadcasted item (or what has been written or
broadcast about them in the past). Perhaps all this would be vanity, carefully considering the
argumentation used by the RVR for the justification of its ruling.

161 Kernová, ‘Rozhlas si dovolil kritizovať Gašparoviča’ (n 154).

162 Kancelária, Pracovný materiál Kancelárie Rady na rokovanie Rady pre vysielanie a retransmisiu, 26 August 2014.
222 Comparative Media Law Practice – Slovakia

iv. Argumentation by the RTVS

As one could expect, the RTVS argued with public interest and public service mission:

The goal of the report was not to analyse the pasts of the awarded persons but to assess the process
of giving awards by the President of the Slovak Republic. The Slovak Republic appreciates the
extraordinary achievements for the Slovak Republic in this way, its founding, establishment, and
nourishing of democratic society, the extraordinary achievements or important contributions to the
defence and security of the Slovak Republic, the extraordinary or significant results of work, heroic
acts, and other extraordinary acts. A public discussion about giving state awards, part of which was
also this report, undoubtedly fulfils the key parameters of public interest and public supervision,
according to the broadcaster.163

It should be noted that the journalist himself was not asked for his opinion by anybody.164

v. Method of Analysis

The general and most important issue is, based on the already presented discussion, firstly,
how to decide whether a news item was balanced or impartial? Secondly, was this a relevant
issue at all? There are a number of possible methodological approaches for answering these
questions. Obviously, we have to look into the text of the law. As it was mentioned, the legal
sanction was based on Paragraph 16(3)b of the BA. This particular Paragraph deals with the
objectivity and impartiality of news and a duty to separate news from commentaries, and
opinions from news-type information. The translation of the original legal text is as follows:
‘the broadcaster must (je povinný) . . . guarantee the objectivity and impartiality of news
programmes and current affairs programmes (politickopublicistických programov); opinions
and value-based commentaries (hodnotiace komentáre) must be separated from news-type
information.’ However, there is also another relevant law, Act No 532/2010 Z.z. on the Radio
and Television of Slovakia, which further specifies the role of PSM in Paragraph 3: ‘Public
service in the area of broadcasting is . . . prepared . . . with the notion (s pocitom) of
societal responsibility . . . [which] contribute to . . . the ethical understanding (vedomie) . . .
offering . . . overall balanced and plural information.’
Although internal Programme Status of the RTVS also specifies in more details the
correct approaches, with the aim to achieve objectivity (as discussed below), there is also
a fundamental value-based conflict about the mission of journalism here (and, in fact,
about journalism in general). On the one hand, there is a demand for objectivity and
impartiality, on the other hand, there is a request for societal responsibility and overall
(thus not necessarily related to partial news items) balance and plural information. These
two inevitably conflicting legal requests come into conflict. Be that as it may, clearly, if
there is missing (perhaps by necessity) the definition of what objectivity and impartiality

163 Kernová, ‘Rozhlas si dovolil kritizovať Gašparoviča’ (n 154).

164 E-mail from Filip Domovec, Editor-in-Chief of the Radio Slovakia, on 18 September 2014.
 VII. Balanced Coverage 223

of news reporting is meant to be, a very precise analysis of this news item and the notion of
impartiality and objectivity should be available. Were these actually available? We have seen
quite a few rather demanding but also rather general expectations above, with respect to
objectivity (relevance, transparency, precision, completeness, factuality, balance, plurality,
actuality / topicality, clarity, distance, and neutrality in the case of news reporting, lack
of partiality—or perhaps rather absence of impartiality). Again, the RVR criticised, based
on the discussion outlined above, the following issues as problematic: a) the absence of
completeness; b) the presence of partiality, and missing distance and neutrality; c) the
missing balance.
The question is how to define objectivity and impartiality in more details, and how to
analyse them more carefully. We know there have been many attempts to define these issues
in journalism. We also know that there is a group of scientists and practitioners (journalists)
who argue that there is no such thing as objectivity and impartiality in social interaction
in general, and in journalism in particular. Most of these scientists and many journalists
(especially foreign correspondents) actually add that this worldview also makes (more) sense
and contributes (more) to social good from a practical point of view. However, we cannot
ignore the currently valid legal and ethical requirements. First, the most common approach
would be to ask for the opinion of fellow senior journalists and/or media experts. We could
call this approach ‘fellows’ judgment’ and/or ‘experts’ judgment’. It is the most common sense
approach, similar to the intellectual process used by the members of the RVR (who, however,
mostly are not media experts or former journalists). Yet some of them—three members—
actually were former radio journalists, or had some experience with working for the radio.
We should note again that the members of the RVR ignored the more professional advice
prepared by their Office.
The advantage of this methodological approach is that it considers local conditions and
context and local standards / expectations. Therefore, we used this methodological approach
(in addition to additional analysis). The disadvantage of this approach is that it usually offers
common sense answers, without a deeper knowledge of other relevant issues such as media
law, media ethics, media types, applied media standards, or perhaps most importantly, the
context of the story.
The second most reasonable approach would be to check whether a particular news item
was significantly different from the typical or standard news reporting of that particular
news programme. This approach could be called ‘following (local) standards’. Of course,
standards can be low or high; they are not necessarily correct or follow an ideal broadcast
quality. But if this news story would follow the usual approach used in news reporting, it
could be questioned why the RVR has chosen to punish the broadcaster just because of
this particular news report. Was it such a socially or politically significant case? Perhaps
it was. One can certainly include nation-wide Journalist’s Code of Ethics among the local
standards. According to this Code, ‘the key principles that a journalist follows in his/her work
are impartiality, balance, objectivity, integrity, virtue, honesty, responsibility, and thorough
verification of the facts.’ Furthermore, ‘Comments and opinions must be clearly indicated
and differentiated from the information and facts.’ However, the same Code underlines that:
‘the primary values in journalistic work are the values of personal freedom, fairness, and
decency. Journalists shall endeavour to enforce these values in society through their work.’
In addition, considering that the RVR criticised the fact of not giving air-time to everyone
224 Comparative Media Law Practice – Slovakia

who had been mentioned in the news report, there is another relevant clause in the Code:
‘Journalists must not write, speak, or view the facts about an individual in a way that would
infringe upon the private life of the person concerned, without their consent; he/she may only
do that when the public interest requires knowledge of the person’s private life; journalists
must not tarnish the good name, honour, and dignity of the person concerned, provided they
themselves have not invoked suspicion of illegal conduct or of causing offence.’
There is also a regulation between law and ethics—an internal code of conduct. The
RTVS, according to its internal document ‘strictly differentiates between information of
news-type (news report) and value based judgment (commentary). It is unacceptable to
merge or to confuse the two programme types in broadcasting. A listener, viewer, or a user
of communication technologies has the right to be informed in advance on whether the
following programme or contribution offers news, or commentaries.’165
We must take it into account that the RVR assumed that the broadcast in question was not
actually a news item. Therefore, we have to examine details of both aspects—the expectations
related to news programmes and to current affairs programmes in the Programme Status of
the RTVS. Thus, the first question in this part is—was the programme actually a news item
according to the above stated definitions or expectations? Strictly speaking, news is usually, by
definition, something new (or older news seen in a new context, or gaining a new relevance).
However, there was little new in this particular news item except, and this is important, the
summaries of the role of the President, who was coming to the end of his term, and that a
campaign started (actually, it was unofficially in full speed already) before the Presidential
elections. Indeed, newsworthiness is usually defined as a subject having sufficient relevance
to the public or a special audience to warrant press attention or media coverage.
The answer to this question thus very much depends on the context and on what an
observer sees as more important—the strictly defined impartiality of a particular news item
or a broader public mission of journalism. Both goals have a strong legal and ethical basis,
but the ethical dimension of journalism in Slovakia (and in Europe in general) seem to focus
(explicitly or implicitly) on the social mission of journalism. This item was broadcast just a
few days before the official election campaign began (28 February 2014) before Presidential
elections (which had two rounds, the first one held on 15 March 2014, the second on 29
March 2014) as part of a series on the rights and responsibilities of the President. Presidential
elections in Slovakia are direct—based on a nation-wide popular vote. The President has
significant constitutional rights; it is therefore important to select the proper candidate for
this job. From this point of view, broader context of the report was both useful and necessary.
The second, follow-up question would be whether it was a common type of news items,
or items presented as news, in this type of programme? We can answer this with more
certainty—indeed, this is what a listener could expect to find in the main news programme
of the Slovak Radio. It is also a requirement that ‘[n]ews reports must be verified at least
from two trustworthy and mutually independent sources, with the exception of information
provided by official state and public authorities.’ This is easy to answer—the news report
did use two trustworthy and mutually independent sources. ‘The RTVS is obliged to offer

165 Programme Status. Štatút programových pracovníkov a spolupracovníkov Rozhlasu a televízie

Slovenska (2011), 8–9, http://cdn.srv.rtvs.sk/a542/file/item/sk/0000/statut-programovych-pracovnikov-a-
spolupracovnikov-rtvs.52.pdf.
 VII. Balanced Coverage 225

a factually precise and not misleading picture of reality. In the case, it is impossible to get
information from all interested parties, the RTVS must follow an approach that will allow
coming as close as possible to the reality.’ Was this information as close as possible to the
reality? It seems so, based on the additional evidence presented thus far in this article.
It is, of course, questionable whether we should stay with the criteria used for current affairs
programmes in this analysis, considering that the news item was broadcast in a news programme.
Current affairs programmes are understood in Slovakia as usually longer programmes which
include discussion mostly about political and social issues. Thus, if this news item did not fit into
a news programme, would it fit into current affairs programme? The Programme Status has the
following expectations in this regard: ‘The current affairs programmes (publicistické programy)
of RTVS offer a critical reflection on reality. These programmes must at the same time consider
(zohľadniť) the real pre-conditions (reálne predpoklady), the causes, the development of events
as well as their results, and the importance and impact of the consequences for the public.’ It
seems unambiguous that the controversial news item fulfils the above mentioned expectations.
In addition, the Programme Status expects that ‘[i]n the current affairs programmes all known
and accessible interested parties (zainteresované strany) get space for argumentation and the
justification (zdôvodnenie) of their positions (postojov). The parties that are not accessible (nedostupné
zainteresované) must be mentioned in the programme, and the reasons for their involvement as
well as their known attitudes (postoje) must be made public.’ These expectations were only partly
met. Yet, as mentioned, these expectations are related to longer discussion programmes.
Indeed, the CC argued in a similar case (Case No 1: 6 Sžo 527/2009) that: ‘it is impossible
to assess the individual expressions of the commentators in that type of programme because
it is necessary to assess them in the context of the whole programme.’ Furthermore, the CC
stated that the RVR ‘must also create clear guidelines for further work. This includes stating
clearly how to deal with this particular type of programme also (jasné pravidlá pre ním riešený
typ programu, see more in Rs 55/2003). Finally, the CC did not understand ‘how it would be
possible to include feedback from all involved parties (zaradiť reakciu dotknutých predstaviteľov)
(members of governments, political parties, international organisations, associations, MPs, and
the PM) in a broadcast programme of this type (Z prvej ruky), and how the presence of these
contributions could be guaranteed by the broadcaster.’ Yet we do have the court’s case 2 Sžo
73/2010 (final verdict of 20 October 2010) which presents the opposite view. The broadcaster
was supposed to give room to present an opinion of a representative of the coalition. This was
seen as crucial by the RVR and the RC, as well as the SC. Clearly, as mentioned, there was
disagreement on this important conceptual normative-legal issue among the judiciary too.
The third approach would be to look at news standards abroad. This could be called
‘international comparison’. This approach could guarantee some international comparison,
thus providing international standards. Obviously, it is enough if a single person presents the
relevant arguments questioning the professional-ethical aspect of this news story. In other
words, we can rely on falsifiability or refutability as a method.

vi. Fellows’ Judgment and/or Experts’ Judgment

Therefore, we have contacted a number of journalists, media experts, and media institutions
(journalism schools and organisations of journalists) in order to get their opinion on this case.
226 Comparative Media Law Practice – Slovakia

We have shown them only the transcript of the news story. We have categorised their answers
into three groups: a) grave problem; b) some doubts; d) no problem; d) no answer or no
opinion.

a. Grave Problems

There were two opinions of this type. Filin expressed his criticism of the news item in the
following way:

In my view, this item is too biased and sensationalized (partially also of a virtual type), from the
view of the mission of the PSM. Th is type of news item should not be included into programme.
I can imagine such item in a private radio or private, politically engaged medium, such as the case
of Radio Twist. However, this type of news item does not belong to PSM which has its mission
defined by a relatively broad social consensus (it should have objective news reporting and quality
current affairs programmes). Therefore, the objection that the separation of opinion and news
items is missing is correct, and this really reflects the key problem of the issue. Th is was probably
the only information of this type in that particular news and current affairs programme. If this
was the case, then this news item did not fulfi l its purpose. There was no substantial description
of an event about which this news was supposed to inform listeners. The journalist selected, based
on its political preference, a certain negative aspect, which was elaborated further, amplified and
put into frontal position. This approach could be seen as OK, in a different context, perhaps in
other medium (eg, at opinionated webpage) or in a current affairs programme with the motto
‘Our comments’. The fact that the news item was also broadcast is not the responsibility of the
journalist, but that of the editor. In other words, it is institutional failure. The listener might
be more interested which known ‘non-controversial’ personalities did get awards. The factor of
controversy would justifiably be the key issue of an article in the case of this item, eg, if the
President would have awarded a person the type of Marian Kotleba. In the case of Šedivý, this
is not about a generally, morally disqualified person (if it were so, why would he not be more
publicly known?).
Speculations that Eva Kristínová provides entertainment at ‘extremist meetings’ or that the author
Bob is criticised by fellow historians do not belong to the main news programme of Slovak Radio.
When the President decides to give a state award to Erich von Däniken, the same arguments could
be used, but would it have any normative value?
The fact that the Office of the President was given space to comment does not solve two problems.
First, it does not influence the biased and selective approach towards the presented facts. Second,
we do not actually know what the Spokesperson commented upon. The Spokesperson has not
distanced himself from claims about so called ‘names with questionable past’ anywhere. The
broadcast words could be received as an answer to a simple question—what are criteria for
getting state awards? (Personally, I suspect that the journalist did not tell the Spokesperson
that he intends to present the specific names of the ‘controversial personalities’—this could
be seen partially from unabridged recordings). My opinion is thus rather unambiguous. The
question remains what could a proper corrective measure be to prevent similar excesses in the
PSM. I think that fi rst of all, the editors should know the criteria and the limits affi liated with
the public service.
 VII. Balanced Coverage 227

Jari Väliverronen, from the University of Tampere, Finland, wrote that

The RTVS report on the honours awarded by President Ivan Gašparovič shows a couple of practices
that appear at least questionable, maybe even unethical to a Finnish reader. It strikes me first that
the list of the award-winning people considered to have a questionable past is very unclear. The
grounds given in the story for including people on the list are quite varying in quality, to put it
mildly. To a foreign reader, it seems odd to include in the list an author (Jozef Bob) on the grounds
that he has written works that are ‘questioned by historians’, or a sculptor (Tibor Bártfay) who has
created the statue of a former Communist president.
The fuzziness in the story increases as I notice in the story that the law on conferring state awards
was changed in 2008 and made stricter with regard to the awarding criteria. However, the pre-2008
rules for awards are not mentioned, and with the exception of Ondrej Šedivý and Ján Slota (who both
received their awards before the law was amended), we do not know when the people mentioned in
the story were given their medals. Thus, on the basis of the story it is impossible to make any solid
judgment about the main question presented in the story: have the people responsible done the right
thing in awarding these people the medals?
The implication in the story is that some (at least moral) transgressions have been made by those in
authority—mostly by President Gašparovič, who is presented as the biggest culprit. Interestingly
enough, he does not appear in the story to defend himself. As audiences, we do not know if he was
contacted at all, if he was unavailable, or declined to comment. In Finland, it would be standard
journalistic practice to mention in the story that the person criticized has been at least contacted to
give him a chance to present his views. If there was no contact, the story could be published, but the
President would still have a right of reply. Such a policy would seem appropriate here too - whether
it has actually been followed I do not know.
As such, the story is vague and inaccurate and fails to generate a sense of impartiality, which is
especially interesting in the case of a public service media, where impartiality in political reporting
is usually placed high on the agenda.

b. Some Doubts

Beata Klimkiewicz from the Institute of Journalism and Social Communication of the
Jagiellonian University in Kraków (a Slovak native speaker) wrote:

The news item selected from the news programme Radiožurnál focuses on the highest awards and
honours given by the former Slovak President Gašparovič. The message of the whole item presents
a critical stance summarizing that among many (altogether 362) honours and awards those that
were assigned by the President to controversial figures. It seems just a right journalistic strategy
to quote the President’s Spokesperson to explain rationales and reasons that may justify the
President’s choices. The reporter then mentions one of the awarded persons—Ondrej Šedivý, a
former colonel of the border control unit that was known for a number of death incidents during
the communism. These data are then supported by a short record of the Chair of the Institute
for National Memory. He asserted that 42 persons were killed on the territory controlled by the
unit, however, none of the cases was brought to the court, thus the crime, even if documented by
the Institute, was not judicially proved. Nevertheless, the investigative journalistic strategy seems
228 Comparative Media Law Practice – Slovakia

right in this case—the reporter was able to find an evidence of killings, and support a critical
comment with the concrete data. In the case of some other ‘controversial figures’ honoured by the
President’s awards, this background seems missing. Although the case of Nursultan Nazarbajev
is largely known, it would help ordinary listeners to get some short opinion from international
organizations such as CoE, on eliminating the political opposition by the Kazakh leader. Likewise,
the case of Eva Kristínova seems to need some further explanation—what extremist movements
did the reporter mean? Are they legal in Slovakia? Also, the accusations of Jaroslav Chovanec
should be explained in more detail—how serious are they? How many female students brought
the case? Finally, the case of Jozef Bob, the author of books questioned by historians could be
reported with one or two sentences devoted to controversies. Who is criticizing the author? What
are the competencies of the person making the criticisms?
In sum: The news item certainly focuses on one of the crucial issues for the public opinion. The
public should know who the President is awarding. The journalists are right to analyse controversies
and ask questions, as it is the watchdog and investigative function of news reporters. In the case of
the selected item, they carried out their mission in accordance with the standards of impartiality in
some ways, however, some other ways (as mentioned above) they lacked the data and information
to justify the critical stance. This might have stemmed from time pressure, but a slightly deeper
background to the mentioned cases would certainly improve the quality of journalism and
reporting.166

Cunningham, Reporter for The Economist:

I don’t see the report as particularly ethically flawed, but I do see it as rather poor journalism.
The journalist quotes the President’s Spokesman, but not in a way that appears to be commenting
on the actual content of the report. In other words, the tone of the report is that Gašparovič is
awarding state honours to people he perhaps should not. However, the Spokesman never really
responds to this allegation. Instead, the quotes are just bureaucratic language about the purpose of
the awards, etc. Perhaps the president’s office declined to respond to accusations that the recipients
were controversial or not deserving, but then the report should have said this more clearly... ‘We
asked the president’s office to explain why they awarded the president of Kazahkstan, and they
declined to comment.’ As it stands now, the report basically accuses the president of awarding
unfit people, quotes an outside opinion supporting this view, but never actually confronts the
president’s office about whether these were valid choices—which seems the entire point of doing
a report like this.167

Martin Gonda media analyst perceived a term ‘controversial personalities’ in the expression
of the Editor of RTVS as commentative feature in the news reporting. According to him,
a better and equally illustrating term would be to use ‘disputable personalities’ (‘sporných
osobností’) about ‘whom it is being said that they are controversial personalities’.168

166 E-mail from Beata Klimkiewicz on 20 September 2014.

167 E-mails from Ben Cunningham on 9 December 2014.
168 E-mail from Martin Gonda on 18 September 2014.
 VII. Balanced Coverage 229

c. No Problem

Pavol Múdry, Chair of the International Press Institute Slovensko and former Director
of private wire agency SITA argued: ‘This news report is absolutely OK. The Council for
Broadcasting and Retransmission is not competent to assess the content of news reports and
their quality. Furthermore, it is a political body, considering that its members are elected by
a political institution, the Parliament.’169

d. No Answer / No Opinion

No opinion: Zuzana Šangalová, Secretary of Association of Independent Radio and Television

Stations.170
No answer: As expected, the majority of institutions and individuals we approached did
not answer our call. This was the case of all three journalistic organisations in Slovakia
(Slovak Syndicate of Journalists, Slovak Section of Association of European Journalists
(AEJ), and Slovak Association of Journalists). In the case of the Slovak Section of AEJ, this is
perhaps understandable considering that their leaders actually work for the PSM. However,
one would perhaps expect that at least academic institutions such as the Department of
Journalism at Comenius University or the Catholic University respectively, or both Faculties
of media / mass media communication at the Paneuropean University in Bratislava or UCM
in Trnava would be interested in this issue. Unfortunately, this was not the case either.

F. Conclusion

There is a significant ongoing discussion among media professionals regarding the meaning of
balanced reporting, impartiality, and similar concepts. Yet there still is a place for impartial and
balanced reporting in the PSM under normal circumstances, and especially in domestic news.
We should differentiate between news on the one hand, and current affairs programmes on
the other. Furthermore, we should also differentiate between domestic news and international
news. While domestic news should be, especially in PSM programmes, very impartial and
balanced, not that different from wire agency reports, current affairs programmes can be
less balanced (it is sufficient if they are balanced in general in a series broadcasts), but at the
same time ‘due impartiality is of special importance in major matters of controversy’ (see,
Benchmarks for the Operation of Public Broadcasters in the Republic of Moldova). Of course,
clear bias should not be present in various forms (Sigma Radio Television Ltd. v Cyprus).
However, demanding absolute balance in a sense, ignoring ‘empty chair’ rule, would be in
contradiction to established principles. Here again, the ECtHR clearly noted: ‘A general
requirement for journalists systematically and formally to distance themselves from the
content of a quotation that might insult or provoke others or damage their reputation is
not reconcilable with the press’s role of providing information on current events, opinions

169 E-mail from Pavol Múdry on 18 September 2014.

170 E-mail from Zuzana Šangalová on 18 September 2014.
230 Comparative Media Law Practice – Slovakia

and ideas’ (Thoma v Luxembourg, App No 38432/97). However, we can also appreciate that
measures taken by the RVR (in most cases ‘warnings’) probably did not ‘dissuade the media
from taking part in the discussion of matters of public interest’ (Österreichischer Rundfunk
v Austria). Still, foreign or international reporting seems to be a special case, where principles
of balance and impartiality are practically impossible to follow. Here it can be argued that the
RVR was clearly wrong in its standard-setting function. The above findings also suggest some
general conclusions. First, there seems to be relatively low use of foreign examples—verdicts
of foreign and international courts in the decision of Slovak administrative law senates in
media regulatory issues (with some exceptions, eg, 2 Sž 3/2012—Cervanová case). This fact
may not in itself suggest low quality of verdicts, but still, it is indicative of missing wider
international context. As one could expect, these used examples are mostly coming from
CoE, especially ECtHR, and sometimes from the Czech Republic.
Second, we have noticed many contradictory verdicts even among the various senates of
the SC in the period of 2007–2012. Obviously, this was especially confusing for the RVR
and broadcasters.
Third, the legal argumentation used by the courts sometimes seems to be low quality (aga-
in, with some exceptions, eg, 2 Sž/3/2012—Cervanová case). This is probably related to the
quality of education of some judges (and lawyers in general). These problems can be seen as a
broader or a narrower issue. The relatively minor problem is that judges do not have sufficient
level of understanding of how media operate. This is understandable, considering that judges
must deal with different regulatory issues related to administrative law. This could perhaps be
fi xed with some short-term education in media matters. The broader problem is that judges
often apply the law very narrowly. They are often missing the ‘deeper’ meaning of the law. As
it is known, the basis for Roman laws was the idea that the exact form—not the intention—
of words or of actions produced legal consequences. This still seems to be the case for many
Slovak judges. This issue has also been recognised by some judges. For example, Judge Dušan
Čimo, Member of the Judicial Council (self-governing body of judges) explicitly criticised
‘marginalisation of value-based criteria’ and ‘decision-making based just on argument in
line with valid law’.171 Similarly, Judges Ivan Rumana and Alena Pauličková argue that the
problem with formal legislation is that it often does not fit reality and is abstract. This issue
has deeper causes and wider consequences.172

171 See, Z Petková, ‘Krajina sa prebúdza. Aj súdy’ Trend, 4 December 2014, 30–33.
172 I Rumana and A Pauličková ‘Súdny precedens ako systémový prvok vo vymožiteľnosti správneho práva’
S Ficová (ed), Vymožiteľnosť práva v Slovenskej republike, 45–46, http://www.ja-sr.sk/files/Zbornik%20
Vymozitelnost%20prava%20v%20SR_oktober%202009.pdf.
 VII. Balanced Coverage 231

Table 4
Judgment References to References to References to other References to Decision
of the CC of domestic rulings own rulings domestic courts international or of the RVR
Slovakia of RCs (CC) (eg, CC) foreign courts
(ECtHR and others)

6 Sžo 3S/135/08-50— 4 Sž 27/02, 25 June RL/35/2008

527/2009 related to appeal to 2002—defi nition of SC confi rmed
this case meaning of ‘warning’ ruling of RC which
cancelled ruling of
RVR

5 Sžo 3S/160/09-45— 4 Sž 27/02, 25 June IV. US 245/09— Handyside v the UK RO/02/2009

164/2010 related to appeal to 2002; 6 Sžo 390/2009, definition of meaning (App No 5493/72); RC rejects case, SC
this case 18 August 2010; 6 Sžo of ‘warning’; Sunday Times v UK cancels ruling of
527/2009, 26 October conlusion of RVR are (App No 6538/74); RVR, RVR stopped
2010—defi nition too vague and fuzzy Lingens v Austria further legal actioin
meaning of ‘warning’ (four times); (App No 9815/82);
list of Fundamental Oberschlick v Austria
Rights and Freedoms No 1.
and Article 26 of the
Constitution

2 Sžo 73/2010 1S/15/2008-54— 3 Sž 11/2007, 31 IV. ÚS 245/09-42, RL/110/2007

related to appeal to May 2007—internal 21 January 2010— RC dismissed case,
this case organisation of abolishing NS 2 SC confi rms verdict
administrative affairs has Sžo 202/2008— of RC
no impact on deadlines; Fundamental right
2 Sžo 202/2008, 18 to judicial protection
March 2009—confirms Article 46(1) of the
1S/15/2008-54, 27 Nov- Constitution;
ember 2007; 5 Sž 50/2007 right to fair trial,
and 5 Sž 55/2007—legal Article 6(1) of
deadlines; ECHR, and right
5 Sž 87/2007, 1 July to disseminate
2008; 3 Sž 96/2008, information
9 April 2009; 3 Sž Article 26(2) of the
5/2009, 23 April 2009; Constitution, and
5 Sž 80/2008, 2 June right to freedom of
2009; 5 Sž 26/2009, expression Article
21 July 2009; 3 Sž 10(1) of the Covenant
35/2009, 5 November broken by NS 2 Sžo
2009—first learnt about 202/2008
breaking the law when a
complaint was delivered; 3 Sž 5/2009, 23 April
3 Sž 50/2007, 18 2009—different
October 2007; 5 Sž argumentation used
50/2007, 27 November in 5 Sž 50/2007 and
2007; 3 Sž 103/2007, 5 Sž 55/2007
17 January 2008;
3 Sž 107/2007, 17
January 2008, and 3 Sž
108/2007, 17 January
2008—administrative
deadline starts when
the monitoring is
submitted
5 Sž 30/2006, 28
September 2006;
1Sž/78/2005, 16 May
2007; 1Sž/79/2005,
19 December 2007,
and 1Sž/21/2006, 19
December 2007—day
when RVR discussed
the report
232 Comparative Media Law Practice – Slovakia

8 Sžo 4S/78/2008-43— Municipal Court RL/128/2007

112/2010 related to appeal to in Prague, 7Ca RC rejects the case,
this case 315/07—missing SC confi rms verdict
identification of an of the RC
issue

3 Sžo 1S/126/2009-52— RL/18/2009

/200/2010 related to appeal to RC dismissed case,
this case SC cancelled ruling
of RVR and returns
to RVR, RVR stops
the case

6 4S/49/2008-32 - Municipal Court RL/132/2007

Sžo112/2010 related to appeal to in Prague, 7Ca RC dismissed the
this case 315/07—missing case, SC confi rms
identification of an verdict of the RC
issue

6 Sžo 3S/16/2008-35— Twice mentioned in RL/72/2007

390/2009 related to appeal to 4 Sž 27/02, 25 June RC rejects the case,
this case 2002—defi ning SC cancels ruling
meaning of warning of RVR and returns
back, RVR stops
further legal action

6 Sžo 55/2010 1S/145/2008-39— 5 Sž 24/2008-45 17 Article 6(l) of the RL/117/2007

related to appeal to March 2009, and 5 Sž Covenant RC dismissed the
(sponsored this case 11/2008-37, 17 March case, SC rejects
current aff airs 2009—not submitting ruling of RVR,
programme) materials for decision and returns to
RVR, RVR issued
a new sanction;
RL/49/2010—RC
rejects the case and
returns to RVR, RVR
fi led an appeal, SC
has not decided yet

2 Sžo 1S/15/2008-54— 5 Sž 50/2007 and 5 RL/110/2007

202/2008 related to appeal to Sž 55/2007—legal RC rejects the case,
this case deadlines SC confi rms the
verdict of RC

(does not 2S/284/2010— 2 Sž 8/2010; 5 8 Sž 7/2011-21

quite belong repeated breaking Sž 94/2008; 3 Sž Sponsorship of this
here) the law but it has 33/2009; 8 Sž 4/2009; type of programmes
not been decided 3 Sž 63/2008; 5 Sž
8 Sž 7/2011-21 yet 7/2009—multiregional
broadcast;
3 Sž 67/2008; 5 Sž
94/2008; 3 Sž 33/2009-
25; 8 Sž 4/2009-21;
3 Sž 63/2008; 5 Sž
7/2009 and 3 Sž
67/2008—incomplete
justification of decision;
3 Sž 4/2011, 10 March
2011—sanction for
breaking the identical
text of law
 VII. Balanced Coverage 233

3 Sžo 38/2011 1S/164/2010-51— 8 Sžo 112/2010, 20 Recommendation RL/26/2010

related to appeal to October 2010— of the Council of RC cancelled the
this case sufficient identification Minister of CoE ruling of RVR,
of breach; (91) 1, 13 February SC confi rmed the
6Sžf/20/2010, 6 Sžo 1991, no double verdict of RC, RVR
152/2010—rulings punishment again issued sanction
cancelled due to RL/15/2012—RC
incorrect interpretation dismissed the case,
of law but without verdict is valid
reasoning;
3 Sžo 200/2010, 8
October 2010, and 2
Sž 7/2010-21, 18 May
2011—insufficient
identification of breach;
3 Sž p/5/2008, 23 July
2009; 2 Sžo 106/2007,
13 March 2008; 8 Sžo
28/2007, 6 March
2008—need to defi ne
a breach

6 Sžo 31/2011 3S/141/2009-48— 3 Sžo 200/2010, 2 Sž RL/17/2009

related to appeal to 7/2010—insufficient RC dismissed the
this case identification of breach; case, SC confi rms the
2 Sž 9/2010, 8 Sžo verdict of RC, RVR
112/2010, 6 Sžo stops the case
112/2010, 2 Sž 4/2009,
8 Sž 4/2010, 4 Sž
2/2010, 5 Sž 8/2010,
8 Sž 8/2010, 5 Sž
17/2010—insufficient
identification of breach;
3 Sž n/68/2004,
3 Sž 85/2007, 8
Sžo 28/2007, 8
Sžo 147/2008—
administrative law
principles
234 Comparative Media Law Practice – Slovakia

4 Sžo 13/2012 3S/292/2010-55— 3 Sžo 200/2010, 8 IV. ÚS 197/2010— judgment of RL/33/2010

related to appeal to October 2010; 2 Sž insufficient the Municipal RC dismissed the
this case 7/2010, 18 May 2011; identification of Court in Prague, case, SC confi rms the
5Cdo/126/2007, breach Czech Republic, verdict of RC, RVR
30 August 7Ca/315/07— stops the case
2008—insufficient sufficient
identification of breach, identification of
confusing; breach;
2 Sžo 73/2010, 20
October 2010; 5 Sžo Çetin and Others
28/2011, 29 September v Turkey, App
2011—who is a legal Nos 40153/98 and
body inside RVR; 40160/98, Point 64
3 Sžo 200/2010—
impossibility to
guarantee always
raising voice of
contradictory opinions;
8 Sžo 112/2010, 20
October 2010—
sufficient identification
of breach;
2 Sžo 73/2010, 20
October 2010—if a
member of the Cabinet
is nor present, a radio
host should provide
reaction;
3 Sž p/5/2008, 23 July
2009; 2 Sžo 106/2007,
13 March 2008; 8 Sžo
28/2007, 6 March
2008—a need to
identify exactly the
breach
 VII. Balanced Coverage 235

The data in the table suggest that there is only limited use of ECtHR judgments. The examples
used are rather well-known. However, there are not cited ECtHR judgments which would tackle
electronic / digital media directly, especially television or radio broadcast. For example, in many
cases related to the balanced coverage, the relevant case of Jersild v Denmark would be cited,
which deals with Denmark’s Radio (the Danish Broadcasting Corporation broadcasts not only
radio but also television programmes). The latter is known as a serious television programme
intended for a well-informed audience, dealing with a wide range of social and political issues,
including xenophobia, immigration, and refugees. This case goes back as far as the year 1985.
Probably the most important legal sentence still relevant today is the following one:

35. News reporting based on interviews, whether edited or not, constitutes one of the most important
means whereby the press is able to play its vital role of a ‘public watchdog’ . . . The punishment of a
journalist for assisting in the dissemination of statements made by another person in an interview
would seriously hamper the contribution of the press to the discussion of matters of public interest,
and should not be envisaged unless there are particularly strong reasons for doing so. In this regard
the Court does not accept the Government’s argument that the limited nature of the fine is relevant;
what matters is that the journalist was convicted.

In the Slovak case, about half of the controversies were related to the balanced coverage
of similar current affairs programmes of the Slovak Radio. However, not only was the case
of Jersild v Denmark not used, none of the cases we have identified (about two thirds of 35
cases of the ECtHR that contained words ‘broadcast media’ and ‘balanced coverage’ were
relevant to our study) have been used in judgments by either the RC or the SC in regulatory
cases. There is an opinion that Jersild was a unique case, still a controversial one, and related
to criminal proceedings of a Danish journalist. In Slovak cases, there are administrative
procedures and sanctions used with relatively mild consequences (‘warning’).
The Council for Broadcasting and Retransmission, and especially the SC, settled various
details related to the formal-administrative (see, eg, SC 4 Sžo 13/2012) and the substantial-
content related parts of sanctions approximately in the period of 2007–2012. In other words,
the relevant case law in issues related to balanced coverage was far from fixed, and especially
the formal legal-administrative rules, related to formal features of sanctions, seemed to be
imperfect by the SC and especially by the CC. This lack of precision in the argumentation
used by the RVR was often a ground for the formal reason of the SC to dismiss and return the
case to further administrative-legal action to the RVR or a lower (regional) court. Another
issue was the content of rulings issued either by the RC or by the SC. Here too, contradiction
rather than consistency in verdicts issued by the SC senates was the norm. Only the RVR
seemed to be consistent in its reasons for giving sanctions, constantly demanding to give
voice to all sides of the debate.
Sometimes, however, this was perhaps too perfectionist an aim. For example, the RVR
stated that the public radio was supposed to give voice to members of the Orchestra (in
addition to the conductor), as the other part of a story, when news appeared—as of yet
unconfirmed—about firing some 25 members of the public radio ensemble. Some issues
clearly deserved more public discussion and criticism, as it was in the case of the controversial
awards issued by the President Gašparovič, but it should be done in a current affairs
programme, and not in news programmes.
236 Comparative Media Law Practice – Slovakia

Furthermore, foreign news reporting cannot be put on equal level with domestic news
with regards to the objectivity / impartiality of a particular news item. This is related to the
controversial one day reporting on Russian invasion to Crimea. Most often, in the focus
of balanced coverage and missing impartiality issues was the public service radio, Slovak
Radio, especially its current affairs programme Z prvej ruky. The occasional problem with
impartiality and objectivity in television news and current affairs programmes (especially of
commercial televisions) was only secondary.
Rather important is the ruling of the SC 2 Sžo 73/2010. This ruling has three significant
points. First, the SC de facto ignored the legally binding opinion of the CC. The Supreme
Court issued a new verdict, in which it dealt with the ruling of the CC. However, actually,
the SC de facto ignored the core of the ruling of the CC (2 Sžo 73/2010, 7–8) and issued in
a verdict identical in its core, against the wishes and arguments of the CC. This was actually
not the first time. It seems that the SC de facto pays lip service to the law as far as the position
of the CC is concerned. It is also true that the CC criticised (IV. ÚS 245/09-42, 21 January
2010) the more formal, legal aspects of the problematic ruling of the SC (2 Sžo 202/2008,
18 March 2009). However, the CC had suggested a more liberal approach to that particular
case. Yet it should be noted here that the CC (IV. ÚS 245/09-42, 21 January 2010) had, at
first, also dealt with an institution of ‘empty chair’ in a more serious way. Clearly, this was
the key issue in current affairs programmes.
The Constitutional Court also dealt with inconsistencies in its previous rulings related
to the administrative issue. The issue arose when legal deadlines were set up for issuing
a verdict by the RVR. This is an administrative but legally important issue. The plaintiff
can argue that the RVR missed the deadline. Until this ruling, there were three different
opinions of the various senates of the SC on this issue. In the first group of rulings by the SC
(5 Sž 87/2007, 1 July 2008; 3 Sž 96/2008, 9 April 2009; 3 Sž 5/2009, 23 April 2009; 5 Sž
80/2008, 2 June 2009; 5 Sž 26/2009, 21 July 2009, and 3 Sž 35/2009, 5 November 2009),
the SC argued that the first objective possibility when the RVR could learn about a breach
of law was at the day when it received a complaint. These rulings also claimed that it is only
an internal administrative issue of the Office and the RVR when they deal with validity of a
complaint and when a complaint is elaborated and submitted to the RVR to make a decision
(kedy je dôvodnosť sťažnosti preverená a spracované zistenia predložené rade na prerokovanie).
In the second group of legal opinions, the SC ruled that administrative deadlines for
the RVR’s decision-making is the day when the monitoring report is finished, or when the
assessment report of a complaint is ready (3 Sž 50/2007, 18 October 2007; 5 Sž 50/2007, 27
November 2007; 3 Sž 103/2007, 17 January 2008; 3 Sž 107/2007, 17 January 2008, and 3
Sž 108/2007, 17 January 2008).
In the third group of legal opinions, the SC argued that the deadlines are related to the time
when the RVR approved a report on a complaint or the monitoring of a complaint. In other
words, these would be the days when the RVR learnt about the possible breach of law (5 Sž
30/2006, 28 September 2006; 1 Sž 78/2005, 16 May 2007; 1 Sž 79/2005, 19 December 2007,
and 1 Sž 21/2006, 19 December 2007). This third legal opinion accepted the SC as its unified
legal opinion. The Supreme Court argued (2 Sžo 73/2010) that the RVR is not a body of state
administration in traditional sense but a state organ sui generis. The legally valid decision of
the RVR is created by the nine-member collective body (prejavom vôle). Furthermore, argued
the RVR, considering that being a member of the RVR is a public position (verejnou funkciou),
 VIII. Commercial Communications 237

and the members, with the exception of the Chairperson) can perform their tasks in addition
to their regular jobs, it comes as natural that members of the RVR cannot be continuously
present in the seat of the RVR (similarly to other state organs). The Council for Broadcasting
and Retransmission held its meetings twice a month. Therefore, the RVR (the Board) can learn
about certain issues (including possible breach of the law) at these meetings. One could argue
that this is a somewhat outdated approach when everybody uses and checks its e-mail every
day. Be that as it may, the SC furthermore argued that the will of the board of the RVR can
be formed only at the meeting. This seems to be a more reasonable and persuasive argument.
Third, the SC was criticised by the CC (cited in the ruling SC 2 Sžo 73/2010) that its case
law is inconsistent in a substantial (not administrative) matter. The Supreme Court had to
accept criticism in that particular case related to the objectivity and impartiality of a broadcast.
In particular, the CC argued that, despite arguing otherwise, the SC did not in fact unify its
contradictory case law as far as the concept of impartiality and objectivity is concerned in similar
cases (5 Sž 50/2007 and 5 Sž 55/2007, 27 November 2007; 2 Sžo 202/2008, 18 March 2009;
VS 3 Sž 5/2009, 23 April 2009). In this ruling (2 Sžo 73/2010), the SC actually adopted a more
restrictive approach to impartiality and balance in current affairs programmes. This could be seen
in the ruling of the CC 2 Sžo 73/2010, 7. Perhaps ironically, the SC again issued a more liberal
verdict in another ruling in the same year (3 Sžo 200/2010), related to the same programme.
This can be seen in ruling 3 Sžo 200/2010, 7. Yet it is true that the major part of argumentation
used by the SC against the decision of the RC was more of formal type. In particular, the SC
argued that the exact description of ‘the way’ the law had been broken was missing, as well as
an exact ‘part of the programme’ which was seen as problematic either by the RVR or the RC.

VIII. Commercial Communications

Advertising is naturally the main source of income for the commercial television and radio
stations in Slovakia. It is also not negligible, albeit neither considerable, source of income
for the PSM which is mainly financed from the general broadcasting fee. This part of the
study will deal with individual types of commercial communication recognized by the
Slovak electronic media legislation and its regulation. It is important topic considering that
commercial communications is the most frequent subject of complaints by regular viewers
to the RVR.173 It should be mentioned here that the ECtHR holds that States have a broad
margin of appreciation in the regulation of speech in commercial matters or advertising (see
Markt Intern Verlag GmbH and Klaus Beermann v Germany, 20 November 1989, § 33, Series
A No 165, and Casado Coca v Spain, 24 February 1994, § 50, Series A No 285A).

A. Media Commercial Communication

The concept of media commercial communication was introduced into the Slovak legal
system during the implementation of AVMSD. It is the equivalent of AVMSD’s audiovisual
commercial communication, with the word ‘audiovisual’ replaced by ‘media’ due to the

173 Jelčová (n 52).

238 Comparative Media Law Practice – Slovakia

fact that in BA this concept incorporates also various types of commercial communication
in radio broadcasting, and word ‘audiovisual’ was not deemed suitable. This also means
that media commercial communication is in this sense wider in scope then its AVMSD
counterpart. Apart from this, the concept closely follows AVMSD in its design.
Paragraph 31a(1) of the BA defines Media commercial communication as follows:

For the purposes of this act, media commercial communication shall mean information in sound,
pictures or audiovisual presentation designed to promote, directly or indirectly, the goods, services
or reputation of a natural person or legal entity pursuing an economic activity and which
a) is provided as a part of a programme or accompanies a programme in return for payment or for
similar consideration or for self-promotional purposes or
b) is a programme service intended exclusively for advertising and teleshopping or a programme
service intended exclusively for self-promotion.

The explicit mentioning of programme service as a whole is the consequence of not

incorporating the concept of audiovisual media service into Slovak media law. The definition
of audiovisual media service in AVMSD has a well-known intrinsic problem in relation to
the audiovisual commercial communication in its core, where the latter is defined as a part
of the former, but can be also the former itself. To avoid this logical problem (part of the set
cannot also be the set itself) the definition of audiovisual media service was not transposed
into Slovak legal system; therefore, there are only separate definitions of broadcasting (ie,
linear audiovisual media service) and audiovisual media service on demand (ie, non-linear
audiovisual media service) without the higher umbrella term encompassing them.
Paragraph 31a(2) of the BA adds to the definition demonstrative enumeration of the
commercial communications that are enclosed by the above-mentioned definition: ‘Media
commercial communication includes particularly advertising, teleshopping, sponsorship,
product placement, programme service intended exclusively for advertising and teleshopping,
programme service intended exclusively for self-promotion and longer advertising messages
under Section 35(8).’ These are the same as commercial communications mentioned in
AVMSD definition of audiovisual commercial communication, apart from the last one—the
longer advertising messages—which is Slovak distinctive commercial communication type
usable only in radio broadcasts (see below). The demonstrative character of the enumeration
means of course that the scope of the definition of the commercial communication is not
limited to the types mentioned in the quoted paragraph. The rationale of this open approach
is the same as in AVMSD—to provide for the new types of commercial communication
being regulated in the same or similar way the existing ones already are. There is, however,
no commercial communication currently being used in Slovak electronic media that is not
enumerated in the above mentioned provision.
All commercial communication must be clearly distinguishable from other parts of media
services. This basic requirement for transparency in use of commercial elements in electronic
media, as will be seen below, is further elaborated in the BA provisions laying down specific
rules for different types of media commercial communication. It is worth mentioning that
the principle of separation of commercial content from editorial programming generally was
always deemed supreme in Slovak media law, and the rules dealing with it were quite strict both
in wording and their application by the regulator. The application of the principle, however,
 VIII. Commercial Communications 239

was eased during the implementation of the AVMSD not only by introduction of the product
placement, where the strict adherence to the principle of separation is impossible, but also by
reducing the strictness of other requirements aimed at recognisability of commercial content.
Other requirements for commercial communication (Paragraphs 31a(7)–(11) of the BA)
are in line with those in AVMSD. Those applicable for all commercial communication
(Paragraph 31a(7) of the BA) prohibit to
– prejudice freedom and equality in dignity and human rights;
– contain or support discrimination based on sex, race, skin colour, age, language, sexual
orientation, disability, religion or belief, national or social origin or membership of a
nationality or ethnic group;
– encourage behaviour that is harmful to or endangers health or safety;
– encourage behaviour that is grossly prejudicial to the environment.
Media commercial communication promoting cigarettes and other tobacco products is
prohibited altogether. The explicit prohibition of evasion of this rule through the use of brand
names, trademarks, emblems or other recognizable marks of these products (Paragraph
31a(8) of the BA) goes beyond AVMSD requirement. The same goes for media commercial
communication promoting medicine products available only on prescription and medical
treatments paid from public health insurance (Paragraph 31a(10) of the BA). For media
commercial communications promoting alcoholic beverages the BA rules (Paragraph 31a(9)
of the BA) that it a) must not be aimed at minors; b) must not encourage immoderate
consumption of alcoholic beverages.
In relation to minors (Paragraph 31a(11) of the BA), the broadcaster and the provider
of an on-demand audiovisual media service is obliged to ensure that media commercial
communication does not cause physical or moral detriment to minors and therefore media
commercial communication must not
– directly encourage minors to purchase or hire a product or service by exploiting their
inexperience or credulity;
– directly encourage minors to persuade their parents or other persons to purchase the
goods or services being advertised;
– exploit the special trust that minors place in parents, teachers, or other persons, or
– unreasonably show minors in dangerous situations.

B. Subliminal Commercial Communication

Subliminal advertising has been banned in Slovak media law from the outset of its post-
communist era. In the recent legislation it is banned from use in broadcasting or audiovisual
services on-demand, in line with AVMSD, by Paragraph 31a(6) of the BA, however without
further elaboration on what constitutes subliminal commercial communication. Indirect
definition can be found in the Advertising Act, which in the Paragraph 3(1)g stipulates that
advertising cannot exploit sensory perception in a way that influences memory of an individual
without his realization. This is in line with the general understanding of how subliminal
advertising techniques work, and why it is important to protect consumers from their influence.
This perception of subliminal advertising is nevertheless merely putative, as there is no known
research that would prove this assumption. Even the presupposed impact of subliminal
240 Comparative Media Law Practice – Slovakia

techniques is, however, considered dangerous enough to justify absolute ban of this technique
in the media. Unsurprisingly, under the circumstances, there are indeed no cases involving
subliminal commercial communication use in Slovak media environment on record.

C. Surreptitious Commercial Communication

Surreptitious advertising is another advertising technique that is entirely banned in AVMSD

and the BA, albeit the track record of the legal cases involving its use is much richer then the
previous one. Its definition in BA (Paragraph 31a(3)) is very similar to the one in AVMSD
(Article 1(1)j): ‘Surreptitious media commercial communication is information in sound,
pictures, or audiovisual presentation promoting, directly or indirectly, the goods, services, a
trade mark, business name, or activities of a natural person or legal entity pursuing an economic
activity that a broadcaster or a provider of on-demand audiovisual media services intentionally
includes in a programme for a promotional purposes in a way that might mislead the public
about the nature of the information. Such information shall, in particular, be considered as
intentional if it is broadcasted or provided in return for payment or for similar consideration.’
Surreptitious commercial communication is a new term for what has been previously,
ie, before the AVMSD implementation, known as surreptitious advertising. Although only
rather cosmetic changes were made to the actual wording of the definition of this technique,
the question arose before the regulator and the courts in various times, whether the new
definition constitutes the same legal instrument as the old one. As was stated previously
in this study, the older sanctions imposed on the broadcasters or other subjects of the
regulation may influence the later cases and the form and severity of the punishment for the
subsequent breaches of the law. The problem of the sameness of the surreptitious commercial
communication with its previous wording under the term surreptitious advertising was
therefore not negligible. The Supreme Court eventually resolved the dispute by decreeing
that indeed for all legal purposes the surreptitious commercial communication is still the
same legal instrument as surreptitious advertising (3 Sž 18/2010-31).
When examining a programme for surreptitious commercial elements, the RVR is looking
for five criteria that constitute its definition and that have to be cumulatively fulfilled in order
to establish the case of surreptitious commercial communication:
(1) information in sound, pictures, or audiovisual presentation;
(2) directly or indirectly promoting the goods, services, a trade mark, business name, or
activities of a natural person or legal entity pursuing an economic activity;
(3) in a programme;
(4) intentionally used for promotional purposes;
(5) in a way that might mislead the public about the nature of the information.
Surreptitious commercial communication has to include information that marks a
product of a subject pursuing an economic activity. Denoting of the product or activity may
be direct (name or logo) or indirect (various visual components or use of the slogan). The
information has to simultaneously fulfil the promotional function. Before the implementation
of AVMSD, the old definition of surreptitious advertising, replaced by surreptitious
commercial communication by the implementation, did not contain the element of direct/
indirect promotion. The same function was fulfilled by wording ‘advertising purpose’ which
 VIII. Commercial Communications 241

remained in the definition as ‘promotional purposes’ in the fourth criterion mentioned above.
The promotional function of the information as elements of surreptitious commercial
communication in its second and fourth criterions aims at the same point, and thus is
generally treated as one. In its past decisions the RVR, eg, considered the advertising purpose
to be fulfilled when there was positive qualitative assessment of the product involved. This
approach of the RVR was approved by the courts on various occasions and there does not
seem to be any indication of change in this practice for future even when the term ‘advertising
purpose’ was changed to ‘promotional’.
According to the third criterion, the promotional information has to be incorporated in a
programme. It means that it has to be an integral part of it, and it is therefore not sufficient
that such information intercepts the programme or runs parallel to it (eg, in split-screen).
This element sets apart surreptitious commercial communication from wrongly labelled or
undistinguishable vertising (see below).
The criterion of intentionality is a bit more problematic as it refers to subjective motivations
of the provider of the audiovisual media service, which always puts the regulator in a difficult
situation in the process of collecting the evidence. It has been long established in the judicial
practice, however, that if the programme is editorially prepared in advance, and its content
is promotional in nature, the intention of the broadcaster to include the promotional
information into the programme is presumed. Although this practice was developed in
the context of surreptitious advertising, it was accepted by the SC also for the application
of surreptitious media commercial communication (6 Sž 19/2010). Simultaneously,
this approach is in compliance with the view of EC on the question of intentionality of
surreptitious advertising presented in its Interpretative Communication on Certain Aspects of
the Provisions on Televised Advertising in the TWFD, according to which for distinguishing
of surreptitious advertising from lawful inclusion of information about products, etc. EC
considers appropriate to apply criterion of ‘undue prominence’. ‘The undue nature may result
from the recurring presence of the brand, good or service in question or from the manner in
which it is presented and appear.’
The essence of the criterion of misleading the public about the nature of the information
lies in its inclusion into the programme in a way that viewer cannot anticipate. It generally
means that the commercial information is inserted in the programme, character of which
is presented as other then promotional and the viewer is not informed about the advertising
nature of its content.
There is also an additional element in the definition of surreptitious commercial
communication inscribed in its last sentence, which stipulates that the information is to be
considered intentional, in particular, if there is some kind of payment or similar consideration
involved. Nevertheless, this criterion is not essential for the case of surreptitious commercial
communication to be established and indeed the RVR has little competence to prove the
realization of such a payment in majority of cases. In the case of surreptitious commercial
communication in the form of self-promotion of another programme, however, the RVR
usually recognizes the reward for the broadcaster stemming out of the use of this advertising
technique for potential increase in the audience share.
242 Comparative Media Law Practice – Slovakia

i. Surreptitious Advertising in the News Program—Case Study

The above-mentioned approach of the RVR and the SC in regard to examining the criteria
for surreptitious advertising can be illustrated by one of the most recent cases that, rather
interestingly, goes back to 2012. On 15 July 2012, the major Slovak broadcaster TV Markíza
aired within its main evening news program an item under the heading ‘They relax and make
money’ (Oddychujú a zarábajú). Among other things, the item mentioned a website / agency
through which young girls can find work as strip dancers in various exotic destinations.
The reporter introduced the person running the agency: ‘This is Andy. Every year, he sends
tens of Slovak women abroad, and says that in the Summer, the interest in them is at its
highest.’ Then the reporter went on characterizing their motivations: ‘To Cyprus, Mexico,
or Caribbean, they rush to bring home decent amount of money and have a good relax
along that.’ The man called Andy said: ‘The girls are free all day. They can spend the day
like ordinary tourists, relaxing on the beach, sleeping their fill after the night shift, because,
of course, the work in dancing clubs is a night-time job.’ While Andy was speaking, he was
identified on the screen in writing: ‘Andy, owner of the tancovanie.eu’ (‘tancovanie’ means
dancing in Slovak). Then the reporter said that the girls can earn ‘very decent money’ while
Andy concluded: ‘Girls who do not get along with the dancing that much . . . let us say,
2000 or 2,500 euro, and girls, who really feel good about the work, they bring back 5-6-7
thousand euro a month.’
On 29 September, the RVR initiated the administrative procedure on potential surreptitious
advertising concerning the alleged promotion of the abovementioned website tancovanie.eu
in the news program. In its reaction during the procedure, the broadcaster stated that the
item was purely informative in its nature. Its purpose, according to the broadcaster, was to
inform about the fact that many young girls leave Slovakia seeking a job abroad, and that
the job in this case is not of ordinary nature—the job of a stripper. The name of the agency,
it further added, was mentioned only marginally, only once, and only for the purpose of
denoting the respondent.
On 18 December 2012, the RVR issued its decision in the case (RP 087/2012), in which
it fined the broadcaster with 10,000 euro for breaching the Paragraph 31a(4) of the BA that
prohibits the use of surreptitious advertising. In the reasoning of the decision, the RVR
analysed five criteria that comprise the definition of surreptitious advertising (see above) with
following results. First (information) and third (in a program) criteria were undisputedly
there. The item clearly denoted the agency, and the information was part of the program. As
to the second criterion (promotion of goods, services, etc.), the RVR, referring to its case law
and the case law of the Slovak SC, stated that the information is to be deemed promotional
when (inter alia) it positively assesses the product or service under discussion. In this case,
the RVR identified several positive assessments of various aspects of the jobs provided by the
agency, eg, the girls can relax, they can earn substantial amount of money, they have free
days, etc. The Council for Broadcasting and Retransmission concluded that this information
was indeed promotional in character. For the fourth criterion (intentionality), the RVR again
referred to established case-law of the SC, according to which the information is deemed to
be intentionally used for promotional purposes if the program is prepared in advance, and
the broadcaster thus cannot claim that inclusion of these information into the broadcast
was inadvertent. Although the news program was aired live, the individual news-items were
 VIII. Commercial Communications 243

pre-recorded, including one under scrutiny, and thus fourth criterion was, according to the
RVR, fulfilled. The fifth criterion (misleading nature) was also considered fulfilled by the
RVR, because the promotional information was included in the news-program where such
information cannot be expected by the viewers.
The broadcaster appealed against the RVR’s decision to the SC. The broadcaster mainly
claimed that the information was not promotional as there was no payment by the agency
involved and allegedly promoted in the news-item, and thus the intentionality of the inclusion
of supposedly promotional information into the program cannot be established. The Supreme
Court upheld the decision of the RVR. It stated that the intention is not connected to the
remuneration, but rather, to the final effect achieved. Thus, if the execution of the program
is promotional in its effect, the broadcaster cannot claim that it could not know or did
not know about its content. An eventual remuneration may be an additional proof of the
promotional intent of the broadcaster, the absence of the payment, however, does not serve
as a proof to the contrary.
This is the last case of surreptitious advertising the RVR, and subsequently the SC was
dealing with to date. While it proved the willingness of both institutions to cling to the well-
established case law to a tee, the sheer fact that there were no further cases of surreptitious
advertising is intriguing. It may, of course, indicate that the regulation of surreptitious
advertising in Slovak broadcasting works almost perfectly. However, the more plausible
explanation would probably be that the emphasis in commercial exploiting of the broadcasts,
outside the regular advertising spots, has finally moved toward the use of product placement.

D. Definitions of Advertising and Teleshopping

Advertising in the form of a short spot is still by far the main type of commercial communication.
Its definition (Paragraph 32(1) of the BA) remained intact after the implementation of the
AVMSD, as the definition of the television advertising in the Directive has not changed
either: ‘Advertising, for the purpose of this act, means any public announcement broadcast
in return for payment or any similar consideration, including self-promotion, intended to
promote the sale, purchase or lease of goods, services, including real estates, rights and
obligations, or to achieve another effect pursued by the ordering party of the advertisement
or by the broadcaster.’
The wording of the definition in the BA was based on the ECTT definition rather then the
one in the former TWFD. Although both are very similar, there is one important difference.
While the AVMSD recognizes as advertising only the spots with commercial content, the
definition in the ECTT, and consequently the one in the BA, accept also other purposes that
might be followed by the advertiser or the broadcaster. The definition of the advertising in
the BA furthermore deviates from both the ECTT and the AVMSD in that it encompasses
advertising also in the radio broadcasting.
The self-promotion is part of the scope of definition of advertising in the BA and in the
AVMSD. While the AVMSD does not elaborate more its meaning, the BA has a special
definition for it in Paragraph 37a(2): ‘Self-promotion, for the purposes of this act, shall mean
a broadcaster’s activity for building and retaining public attention for the broadcaster’s own
broadcasting, programmes, goods, or services directly connected with broadcasting and
244 Comparative Media Law Practice – Slovakia

programmes; announcements in which the broadcaster provides information about the

broadcaster’s own programmes shall not be deemed self-promotion.’
As self-promotion is advertising, the rules for advertising apply to it in full scale except
for one important aspect—self-promotional spots are not counted into the time dedicated
to advertising. The crucial moment of the definition is the direct connection of the content
of the promotional item to the broadcast or broadcasters’ activities. As the SC stipulated,
it is, eg, not sufficient for the advertising to be treated as self-promotion if the broadcaster
promotes the movie going currently to the theatres with the claim that it plans to air it in
unspecified future (3 Sž 10/2012).
The announcement of the broadcaster about its own programmes (the last part of the
definition after the semi-colon) was rather a tricky element in the definition of self-promotion
from the beginning. It was not clear what kind of information and in what form is admissible
for the programming item to contain for being considered as a broadcaster’s announcement but
not self-promotion—and, therefore, advertising. It was eventually established through decisions
of the RVR that the broadcaster’s announcement may contain just basic information about the
programme, mainly its name and time of airing, without additional promotional elements.
The definition of teleshopping is contained in the Paragraph 32(2) of the BA: ‘Teleshopping,
for the purpose of this act, means a direct offer broadcast to the public with the aim of
supplying goods or services, including real estates, rights, and obligations in return for
payment. Teleshopping can be in the form of a) a teleshopping spot; b) a series of teleshopping
spots with a duration of at least 15 minutes.’ The definition is essentially the same as in the
AVMSD. The only difference is that it explicitly distinguishes between teleshopping spots,
which are counted into the advertising time, and series of teleshopping spots as equivalent of
teleshopping windows mentioned in the Article 24 of the AVMSD, which are not counted
into the advertising time.174

i. Prize Games as Teleshopping—Case Study

Provisions on regulation of teleshopping have taken new prominence nowadays as these are
being used by the RVR to tackle cases of prize games that recently sprung up on many
television channels in Slovakia. Many of these use rather dubious game rules or tactics
provoking discontent of the players / viewers that often takes the form of complaints
addressed to the RVR.
This type of program does not have a special regulation (either in the BA or elsewhere
in the Slovak legislation), and in fact, until recently, was generally seen as unregulated.
There were debates among various state authorities in Slovakia as who, if anyone at all,
should overseeing these programmes, without any tangible result. Indeed, there are several
problematic aspects regarding prize games that fall under different areas of regulation, so
under present circumstances it is not possible for a single authority to regulate all of them.

174 It should be mentioned that Kristofčáková and Polakevičová argue that there is fragmented legislation
regarding the term ‘advertising’, and suggest some possible legal solutions. L Kristofčáková and I Polakevičová,
‘Variability of the (Non-)Definition of the Term “Advertising” in Slovak Legislation’ 4(2) Political Science Forum
(2015) 28–42.
 VIII. Commercial Communications 245

Nevertheless, eventually the RVR demonstrated some regulatory imagination, and started to
deal with content aspects of the prize games through the regulation of teleshopping.
To determine whether in a particular case the program shall be recognized as teleshopping,
the RVR uses a test based on the ECJ’s decision C-195/06 in Komm Austria v ORF. In this
decision, the ECJ was dealing with the question whether the broadcast or its part, in which
broadcaster offers viewers an opportunity to take part in the game for a prize through the
call on premium rate phone number, ie, for payment, can be considered teleshopping. In
this test, the RVR considers three main aspects of the program: 1) whether there is a real
offer of service having regard to the purpose of the broadcast of which the game forms part;
2) significance of the game within the broadcast in terms of time and anticipated economic
benefit; 3) types of questions the participant is asked.
The first case in which this test was used by the RVR for the first time was a joint decision
in three administrative procedures against the broadcaster of TV Markíza channel issued in
September 2013 (RP 073/2013). The broadcasts in question were several instalments of prize
games called Sexy výhra and Akčná výhra aired from January to May 2013. In assessment of
the three aspects mentioned above in order to determine whether the broadcasts fall within
the definition of teleshopping, the RVR noted the following.
Ad 1) In the broadcasts in question, the recipients were repeatedly invited to participate
in the game for prize by calling the premium rate phone number. There was, therefore, a
direct offer to use the service that consisted of the opportunity to win the prize for solving
a task. The primary purpose of the broadcasts was the promotion of the service and its
subsequent provision. According to the rules of both games that the RVR examined during
the administrative procedures, the service was provided by a third party company (it was
not produced by the broadcaster itself or on its request), and its purpose, as defined in the
rules, was to promote the activities and the brand of the producing company. From this
information the RVR concluded that the game constituted a genuine economic activity
consisting of provision of services by the producing company.
Ad 2) The broadcasts were aired daily. The programme called Sexy výhra was aired during
the night or early in the morning (00:30–02:00 am), and Akčná výhra was aired daily in the
morning (07:00–08:30 am), which means that both programmes together were aired for 10,5
hours weekly, ie, 6–7 per cent of the daily time of the television channel. The broadcasting
time of the games, according to the RVR, therefore, cannot be considered negligible. As a
prize game was the only content of the broadcasts, the RVR concluded again that the only
purpose of the broadcast was promotion and provision of service.
From the economic point of view, the RVR pointed out that viewers were making calls on
premium-rate numbers. Every call, including those that were not connected to the studio,
was charged 2 euro. In connection with the time allocated to these broadcasts, the RVR
concluded that this activity cannot be considered economically negligible. The Council for
Broadcasting and Retransmission further stated that it is not in its competence to ascertain
the actual sum that the broadcaster or the producing company gains from the broadcast,
but it is not necessary either. The information gathered during the administrative procedure
is sufficient for the RVR to conclude that the economic gain from the broadcasts is not
marginal or accidental but it is its very purpose. As it was ascertained that the broadcaster
either rents out the broadcasting time to the producing company to air the prize games or
is awarded a share of the profits from the broadcast, the nature of the activity is similar
246 Comparative Media Law Practice – Slovakia

to advertising or teleshopping. This is after all, according to the RVR, in line with how
the producing company is promoting its activities in its promotional materials, where it
characterizes its prize games as an alternative to advertising for broadcasters as a mean to
monetize their broadcasts.
Ad 3) The aspect of the nature of the questions being asked in the programmes is there
to further ascertain the nature of the programme itself. The purpose of the programme may
be, eg, to promote other programmes of the broadcaster. As the ECJ stated in its decision
C-195/06 in Komm Austria v ORF:

the game may consist in indirectly promoting the merits of the broadcaster’s programmes, in
particular if the questions given to the candidate relate to his knowledge of other broadcasts by that
body and are thus capable of encouraging potential candidates to watch them. The same would be
true if the prizes to be won consisted of derivative goods serving to promote those programmes,
such as video recordings. In such circumstances, the announcement made by that broadcast or
part of a broadcast could be regarded as television advertising in the form of self-promotion. The
announcement could also be regarded as television advertising if the goods and services offered as
prizes to be won were the subject of representations or promotions intended to encourage viewers to
buy those goods and services.

In the cases in question the game consisted of mathematical tasks that the viewers had
to solve in order to win the prize. However, considering the outcomes of the examination
of previous two aspects, the RVR concluded that the aspect of the type of questions asked
during the programmes is not relevant for the cases in question, as the games themselves are
directly offered and provided as a service.
According to the RVR, the examination of the programmes through the test described
above revealed that the broadcasts contained a direct offer (by means of making public the
premium rate phone number, and inviting the viewers to call) broadcast to the public with
the aim of supplying a service (the prize game), and therefore, fulfilled the definition of
teleshopping. After deciding that the prize games in question constitute teleshopping, the
RVR was examining whether the broadcasts are in line with the content requirements for
the advertising and teleshopping enshrined in the BA. These requirements will be described
further below. At this point, we are interested merely in the obligation of the broadcaster to
ensure that the advertising and teleshopping is honest and fair, on possible breach of which
the RVR has started the administrative procedures.
Monitoring of the programmes revealed that the mathematical tasks in the games were
not following proper mathematical rules. Furthermore, the rules were not the same at various
times, and even within the different instalments of the prize games, the rules, as announced by
the presenter, kept changing. The prize games thus, according to the RVR, were broadcasted
in a way, which by providing the incorrect, ambiguous, or inaccurate information, induced
in the recipient the false notion of the difficulty of the task or the method with which to solve
it, in order to persuade him to participate in the game, and therefore, breached the obligation
of honest and fair teleshopping.
This decision laid down the template for all subsequent cases of prize game broadcasts,
which are quite numerous. For example, in 2014 the RVR, according to its annual report,
dealt with 25 cases. All of them were initially examined through the test described above to
 VIII. Commercial Communications 247

decide whether or not they constitute teleshopping as defined in the BA and, subsequently,
their content was evaluated as to its fairness. In the twenty-five cases mentioned above, all
of the broadcasts in question were found to be teleshopping, and in twenty of them, the
broadcasts were also found to be unfair. In remaining five cases the broadcasts were found to
be in compliance with the obligation on honest and fair teleshopping, thus the administrative
procedures ended without sanctioning the broadcaster.175

E. Content Requirements for the Advertising and Teleshopping

In addition to requirements for all media commercial communication, the BA contains special
rules for advertising. These do not follow strictly the requirements of the AVMSD, although
all of the directive’s requirements are part of the BA, and in some aspects go considerably
beyond its scope. The broadcaster has to ensure that all advertising and teleshopping in his
broadcasting
– is honest and fair;
– does not harm the interests of consumers and does not exploit the confidence of
consumers;
– if aimed at children or with the participation of children, does not contain anything
prejudicial to their interests, and includes nothing that does not take into account their
specific susceptibility;
– does not encourage minors to buy products that are prohibited from sale to these persons
under other specific legislation;
– erotic services, products and audiotext services are not broadcast between 6 am and 10 pm;
– does not encourage minors to order, sell, or lease goods or services.
In relation to editorial independence, the BA stipulates in Article 32(8) that a party
ordering advertising and teleshopping cannot exercise any influence on the programme
content or programme selection. The practical use of this provision is, however, minimal.
Either will this influence be visible, and therefore, punishable as surreptitious advertising,
etc., or it will be indiscernible, and therefore, virtually impossible to prove.
There are also specific rules on advertising for specific products. In relation to alcoholic
beverages, excluding beer and wine, the BA stipulates that advertising promoting them may
not be aired from 6 am to 10 pm. For wine, the restriction is eased to 6 am to 8 pm. Beer is
excluded from this kind of restriction altogether. The airing time restrictions do not cover
Internet broadcasting. There are also some restrictions for advertising of medicinal products
and an absolute ban on advertising on arms and ammunition.
Into the content requirements we may also count the ban for presenters and hosts of news
and political affairs programmes to appear in advertising or teleshopping, neither in picture
nor in sound (Article 34(4)). The obligation to observe this ban aims at the broadcaster, and
the responsibility for an eventual breach is on its part.

175 See also D Mikušovič, ‘Ako telefonické hry klamú televíznych divákov’ Denník N, 31 May 2016, 3.
248 Comparative Media Law Practice – Slovakia

F. Formal Requirements for the Advertising and Teleshopping

Until the AVMSD, the main principle for insertion of commercial information into the broadcasting
was its strict division from editorial content. With the implementation of the AVMSD, this
principle loses its rigidness, mainly because of the introduction of product placement. In the case
of traditional advertising spots, with one minor change, this principle remains valid.
Yet Viliam Janáč argues that there is a very thin red line between legal and illegal product
placement. Janáč also criticised dual options offered by the EP and the Council Directive
2010/13/EU.176 The current wording means that some media service can either ban use
of product placement or allow its use. Slovak legislation is stricter with respect to product
placement—it considers any product placement as product placement, regardless of its real
value (ie, it does not consider a mininal threshold).
According to Article 34(1) of the BA, the broadcasting of advertising and teleshopping has
to be recognisable and clearly separated from other parts of the broadcasting to ensure that
they are not interchangeable with other parts of the programme service. In radio broadcasting
this, is to be achieved by acoustic means, in the television broadcasting, by audiovisual or
spatial means. The spatial means are new element in Slovak broadcasting law introduced by
the AVMSD (this is the minor change mentioned above) that explicitly recognizes legality
of split-screen advertising. The split-screen advertising was, however, accepted by the RVR
even before this change. The acoustic means in the radio broadcasting, according to the
RVR, do not have to explicitly say that advertising is to follow, but they have to be associable
with the advertising for the listener, which means they cannot be used for other purposes
(RP 083/2012). In the television broadcasting, the audiovisual means similarly do not have
to be explicit but have to be distinct enough to not to be confused with other broadcasting
elements (judgement of the SC 4 Sž 19/2012).
According to Article 34(2) of the BA, advertising and teleshopping have to be broadcast
in blocks and separated from other parts of the broadcasting. There is a possibility of
broadcasting-isolated advertising and teleshopping spot, but only as an exception.

G. Insertion of Advertising and Teleshopping

into the Television Broadcasting

The rules for insertion of advertising into the television broadcasting of commercial broadcaster
(ie, not PSM) closely follow those in the AVMSD. Advertising and teleshopping is to be
inserted into broadcasting between individual programmes. In programmes consisting of
individual parts, during live coverage of sport events, or in similarly structured events, the
spots have to be inserted only between individual parts or during breaks.
When broadcasting a news programme or an audiovisual work other than a serial, series,
documentary film, a programme for minors, or a religious ceremony, the broadcaster may
interrupt the programme by insertion of advertising or teleshopping once in every 30 minutes
even if the scheduled duration of the news programme or audiovisual work is less than 30
minutes. Broadcasting of serials, series and documentary films can be interrupted by the

176 V Janáč, ‘Umiestňovanie produktov’ Právny obzor 95(5) (2012) 473–74.

 VIII. Commercial Communications 249

insertion of advertising or teleshopping regardless of their duration. In children programmes,

insertion of advertising is permitted if the programme lasts longer then 30 minutes. One
advertising break is then permitted for every 30 minutes.
For the calculation of the 30 minutes sections, following the ruling of the ECJ, the RVR uses
the so called gross principle, which means that the advertising itself is also counted into the 30
minutes time. This system is more favourable to broadcaster than the so called net principle,
where advertising is omitted from the 30 minutes period, and is also easier to calculate.
For non-PSM broadcaster the only programme that cannot be interrupted by insertion
of advertising or teleshopping is religious ceremony. In other cases, subject to rules stated
above, it may interrupt any programme provided that the integrity, value, and character of
the programme, including its natural internal breaks, are not impaired, and the rights of
owners of rights are respected.
PSM cannot use advertising breaks during the programmes, and therefore, can only
insert advertising between them. The only exception, which is not explicit in the law but was
recognized by the CBR and the SC in their practice, is insertion of advertising during the
natural breaks in sports or similar events (eg, judgment of SC No 4 Sž 32/2005).

H. Insertion of Advertising into the Radio Broadcasting

Radio broadcaster is not subject to the above-mentioned rules for insertion of advertising.
The non-PSM broadcaster may interrupt any program freely, except for the news, religious
programme, programmes for minors, and religious ceremonies that cannot be interrupted at
all. The non-PSM broadcaster may also broadcast the so called longer advertising messages
‘in the form of a programme presenting information that supports the sale, purchase, or lea-
sing of goods or services’. This type of commercial communication has to be separated from
other broadcasts with explicit announcement as to its advertising character.
PSM radio cannot insert advertising during the news programmes, political affairs, and
religious programmes, artistic programmes, and programmes for minors, literary-dramatic
programmes, and religious ceremonies.

I. Advertising Time

According to the BA, advertising broadcast in the television programme service of a PSM
may not exceed a 0.5 per cent share of the daily broadcasting time. This share of broadcasting
time shall be allowed to rise up to 2.5 per cent of daily broadcasting time through the time
reserved for teleshopping spots. This does not apply if the advertising is in direct connection
with the broadcast of a sports or a cultural event for which the broadcasting of advertising
is a condition for obtaining the license. Even then the advertising time cannot exceed 15 per
cent of daily broadcasting of the entire television channel of the PSM.
In line with the AVMSD, the time reserved for advertising may not exceed 20 per cent
within given clock hour (ie, twelve minutes). This rule applies to all broadcasters, however,
PSM is further restricted in prime-time (7–10 pm), during which the advertising cannot
exceed eight minutes per given clock hour.
250 Comparative Media Law Practice – Slovakia

In radio broadcasting the advertising time on non-PSM channel cannot exceed 20 per
cent of total daily broadcasting time. For PSM the advertising time is restricted to 3 per cent
of the broadcasting time for all its radio channels.

J. Sponsoring

Sponsorship, as another legitimate means of financing broadcasts, has spread in the Euro-
pean broadcasting, and with a certain delay in Slovakia, only after passing of the ECTT. In
Europe, unlike in the USA, where sponsoring of television programs has been used since the
1950s, it is therefore a much younger type of commercial communication than advertising.
Implementation of the TWFD, the forerunner of the AVMSD, has established sponsorship
as a significant element in the commercial broadcasting that enabled broadcasters to increase
their income from commercial activities without substantially intensifying advertising pressure
on recipients. Adoption of the AVMSD has not changed the regulation of the sponsorship in
broadcasting, but extended its reach also on the on-demand audiovisual services.
Sponsorship has two basic characteristics, ie, direct or indirect financing of the programmes
of the broadcaster or other audiovisual media service provider by the sponsor and, at the same
time, the promotion of the sponsor. The original purpose of the sponsorship was to enable direct
or indirect (eg, through provision of the goods or services) financing of the actual program.
Today in Slovak broadcasting market, as arguably also in other European countries, the actual
practice is very similar to advertising, and the sponsor pays for the broadcast of its sponsoring
announcements in a certain amount and time. The sponsoring announcement does not have a
definition in the BA, and not long ago, there has been a debate about what kind of information
could be included into this type of commercial communication (see case-study below).

i. Sponsoring Announcements v Advertising—Case Study

In July 2009, the RVR was asked to comment on a survey documenting supposed breaches
of Articles 18(1) and 18(2) of the TWFD by various broadcasters under Slovak jurisdiction
during a two-month period from 1 November 2007 to 31 December 2007. The objective of
the survey was to examine the level of compliance of the Slovak broadcasting market with
the above-mentioned provisions of the TWFD, and was taken by an independent company,
which was for that purpose hired by the EC. The survey identified 22 violations of Article 18(1)
and 314 violations of Article 18(2) of the TWFD. Provisions of the TWFD, the observance
of which was targeted by the survey, were concerned with the limits of the broadcasting time
dedicated to advertising. Article 18(1) stipulated that the proportion of transmission time
devoted to advertising shall not exceed 20 per cent of the daily transmission time. Article
18(2) put a 20 per cent limit on advertising within any given hour.
The main problem found was not that Slovak broadcasters intentionally or negligently
transmitted advertising spots in an amount that exceeded the said restrictions. In fact, these
types of violations were marginal. The issue was that service providers broadcast sponsoring
announcements, the content of which fulfils the definition of advertising. Hence, these
sponsoring announcements were in fact advertising spots, and therefore, had to be counted in
 VIII. Commercial Communications 251

the transmission time dedicated to advertising. It was in this manner that the vast majority of
violations documented in the survey were committed; therefore, Slovakia was called upon by
the EC to remedy this situation, otherwise the infringement procedure by the EC could follow.
Until the survey was sent to the RVR for comments, neither the RVR nor Slovak broadcasters
seemed to be aware of any non-compliance with the TWFD of the above-mentioned kind.
The definitions of advertising and sponsoring were essentially the same in the BA as in the
TWFD. In fact, there was one documented case in which a sponsoring announcement was
found to have advertising qualities and thus in violation with the concerned provisions of the
BA. It was therefore not a case of inadequate implementation of the TWFD; the wording of
the BA allowed for the action to be asked by the EC. It was a problem of interpretation. The
distinction between advertising and sponsoring announcement was assessed differently in
Slovakia then in the survey. There is no definition of sponsor’s announcement in the TWFD,
nor is there such a definition in the BA, and there are no special rules as to the limits of what
information could be contained within it. The distinction between advertising content and
legitimate content of sponsor’s announcement therefore may not be readily recognizable.
What the EC was essentially asking for was to change the regulatory approach by altering
the interpretation of the provisions concerned. This case study follows the rulings of the
RVR, through which this change was brought about and the rulings of the courts that were
reviewing the regulator’s approach. The course of the change was not straightforward and
there were some contradictions between the courts’ decisions along the way. But eventually,
as it seems now, the new regulatory practice was recognized by the courts as fully legitimate.
The course of establishing this new regulatory practice shows in a very condensed and clear
form how regulatory practices in broadcasting are forged through the interplay between the
RVR and the courts reviewing its decisions, and therefore it is an ideal example through
which their mutual relations and inter-communication can be explained.
Since 2007, when Slovakia was notified about the potential violations of the TWFD, the
legislation has changed. The Television without Frontiers Directive was amended and renamed
as AVMSD. The change also abolished one of the provisions—18(1) stipulating the daily limit
of the amount of advertisement, which was supposed to be violated by Slovak broadcasters in
2007. The provision of Article 18(2) changed its position within the text of the Directive to 23(1),
but otherwise remained intact. The definitions of television advertising and sponsoring also
stayed unaffected, and therefore the essential moment of the whole issue remained that where
to put limits to the contents of the sponsoring announcements if they are not to be deemed as
advertising. The subject of the case study is therefore still relevant today as, indeed, there are still
cases concerned with the issue tried by the RVR and subsequently by Slovak courts.

K. Legal Basis

For the comprehensive overview of the subject of this case study, it is useful to understand
the legal definitions and the obligations involved. This part therefore presents the definitions
of advertising, sponsorship, and connected obligations both from the AVMSD and the BA,
accompanied by short comparison.
Television advertising: Article 1(1)a of the AVMSD reads: ‘television advertising’
means any form of announcement broadcast whether in return for payment or for
252 Comparative Media Law Practice – Slovakia

similar consideration or broadcast for self-promotional purposes by a public or private

undertaking or natural person in connection with a trade, business, craft, or profession in
order to promote the supply of goods or services, including immovable property, rights,
and obligations, in return for payment. Article 32(1) of the BA reads: ‘Advertising, for the
purpose of this act, means any public announcement broadcast in return for payment or any
similar consideration, including self-promotion, intended to promote the sale, purchase, or
lease of goods, services, including real estates, rights and obligations, or to achieve another
effect pursued by the ordering party of the advertisement or by the broadcaster.’ Clearly,
the definition of television advertising in the BA is very similar to that of the AVMSD.
There are only two substantial differences. The first is that the definition in the BA also
covers advertising in radio broadcasting, and therefore it is not called television advertising
as it is the case in the AVMSD. The second difference is that while the AVMSD covers
only commercial broadcasting, the definition in the BA, by admitting other intentions
of the advertiser or broadcaster in its last part, is broader. This part of the definition is
the result of the implementation of the ECTT definition of advertising which was always
broader than the one in the TWFD, and subsequently in the AVMSD. Neither of the
differences however has any bearing on the subject matter of this case study and if not
stated otherwise, both definitions will be considered equal.
Article 19(1) of the AVMSD reads: ‘Television advertising and teleshopping shall be
readily recognisable and distinguishable from editorial content. Without prejudice to the
use of new advertising techniques, television advertising and teleshopping shall be kept quite
distinct from other parts of the programme by optical and/or acoustic and/or spatial means.’
Paragraph 34 (1) of the BA: ‘Broadcast advertising and teleshopping shall be recognisable
and clearly separated from other parts of the programme service to ensure that they are
not interchangeable with other parts of the programme service; in the broadcasts of a radio
programme service acoustic means shall be used for separation, and in the broadcasts of a
television programme service audiovisual or spatial means.’ There are minor differences in
the obligations of separation of advertising from editorial content in broadcasting according
to the AVMSD and the BA. In this case it is however readily understandable, as national
legislation is often more elaborate for the sake of clarity and legal certainty. While the
AVMSD allows for just acoustic means to be employed for the advertising spot to be deemed
separate, in the BA these have to be audiovisual or spatial. Acoustic means only would not be
sufficient. The mention of new advertising techniques is also omitted in the BA as superfluous
under the circumstances.
Article 23(1) of the AVMSD reads: ‘The proportion of television advertising spots and
teleshopping spots within a given clock hour shall not exceed 20 per cent.’ Paragraph
36(2) (first sentence) of the BA reads: ‘Broadcasting time reserved for advertising spots and
teleshopping spots must not exceed 20 per cent of broadcasting within one hour (12 min).’
Sponsoring: Article 1(1)k of the AVMSD reads: ‘“Sponsorship” means any contribution
made by public or private undertakings or natural persons not engaged in providing
audiovisual media services or in the production of audiovisual works, to the financing
of audiovisual media services or programmes with a view to promoting their name, trade
mark, image, activities, or products.’ Paragraph 38(1) of the BA reads: ‘Sponsorship, for
the purposes of this act, shall mean any contribution to the direct or indirect financing
of programmes, programme service or an on-demand audiovisual media service intended
 VIII. Commercial Communications 253

to promote the business name, trade mark, reputation, or activities of this legal entity or
natural person who provided the financing. Contributions under the first sentence provided
by a legal entity or natural person that is a broadcaster or a provider of an on-demand
audiovisual media service, or that produced the programme shall not be deemed to be
sponsorship.’ Despite the different wording, the meaning of the definitions of sponsorship
in the AVMSD and the BA is almost identical. The only difference is in the promoting of the
products of the sponsor (as one of the sponsor’s intentions that are alternatively enumerated
as the criteria for sponsorship), which is part of the AVMSD but is not explicitly stipulated
in the BA definition. As the promotional intention of a sponsor is perhaps always more
holistic then just to promote one of the enumerated elements, no practical problems have
ever arisen with the application of this definition in Slovakia.
Article 10(1) of the AVMSD: ‘Audiovisual media services or programmes that are
sponsored shall meet the following requirements: their content and, in the case of television
broadcasting, their scheduling shall in no circumstances be influenced in such a way as to
affect the responsibility and editorial independence of the media service provider; they shall
not directly encourage the purchase or rental of goods or services, in particular by making
special promotional references to those goods or services; viewers shall be clearly informed of
the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified
as such by the name, logo and/or any other symbol of the sponsor such as a reference to its
product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at
the beginning, during and/or at the end of the programmes.’
Paragraph 38(2) of the BA: ‘If the whole or a part of a programme or series of programmes
is sponsored, the broadcaster or the provider of the on-demand audiovisual media service
must clearly display the business name of the legal entity or the business name or name and
surname of the natural person that provided the sponsorship at the start and the end of the
programme. The broadcaster and the provider of an on-demand audiovisual media service
can replace the identification of the sponsored programme or series of programmes at the
start and the end of the programme specified in the first sentence with the sponsor’s logo or
a reference to the sponsor’s product or service.’ Paragraph 38(3) of the BA reads: ‘A sponsor
must not influence the content or scheduling of a sponsored programme, programme ser-
vice, and on-demand audiovisual media service in a way that would affect the editorial
responsibility or editorial independence of the broadcaster or provider of on-demand
audiovisual media services.’
Paragraph 38(4) of the BA: ‘A broadcaster or provider of an on-demand audiovisual
media service shall ensure that a sponsored programme, sponsored programme service or
sponsored on-demand audiovisual media service does not directly promote the sale, purchase,
or lease of the goods or services of the sponsor or a third party, in particular by making
special promotional references to such products or services in the sponsored programmes,
programme service, or on-demand audiovisual media services.’ Responsibilities of the
broadcaster with regard to the sponsored programs in the BA are fully compatible with
those in the AVMSD. The wording and the composition is indeed different, and there are
few elaborations made in some obligations, such as in the obligation to identify sponsored
program, but there are no substantial deviations that may be important in the course of
this case study.
254 Comparative Media Law Practice – Slovakia

L. The Interpretation

Upon receiving the notification about the Survey, and following subsequent communication
with the EC, the RVR invited broadcasters that might have been aggrieved by the change
of the regulatory practice to the assessment of the sponsor’s announcements. A position
paper clarifying the position of the EC was prepared for this occasion (the Survey itself was
labelled as confidential, and the RVR was not allowed to reveal its content to third party) in
which the arguments for the limits of content of the sponsor’s announcements were stated
along with some examples of their practical application. The arguments for the limits of
the content of sponsoring announcement as stated below are based on the arguments used
by the RVR in its decisions. Sponsoring announcement, in contrast to advertising, does
not have legal definition either in the BA or the AVMSD. Indeed, sponsoring is defined in
both legal documents, but it is defined as a complex activity that goes beyond the content of
broadcasting itself, not as a programming element as in the case of advertising. Sponsoring
announcement and sponsoring are thus two separate things. The definition of sponsoring
hints toward the elements that may be contained within the sponsoring announcement,
considering that the intention of the sponsor is stated as being alternatively the promotion
of his name, trade mark, image, activities, or products, but there is no reference to the
intensity of the promotional or advertising effect. It has to be stressed though that function
of sponsoring is not purely promotional. Its inclusion in media legislation is supposed to
relieve the viewers from commercial pressure, whilst giving broadcasters another way to
finance their broadcast, alongside advertising. If the promotional elements in sponsoring
are the same as in advertising, the original function of sponsoring is no longer fulfilled, as
the commercial pressure on viewers is the same as in advertising. In order to avoid this, the
promotional elements in sponsoring announcements have to have limits.
This is the point where the definition of advertising steps in. As advertising is defined
as a programming element, it is relatively easy to identify an advertising spot. In contrast
to the sponsoring, the function of advertising is purely promotional. In order to achieve
its promotional effect, it may contain special promotional elements, such as superlatives,
subjective assessments of the product, or stressing of the positive elements. This, at the
same time, is the limit for the content of the sponsoring announcements. If the sponsoring
announcement is not to be considered an advertising spot, it must not communicate special
promotional elements. It can communicate, eg, labels, logos, or pictures of the products of
the sponsor, stating its characteristics, but without a qualitative assessment or the stressing of
their positive qualities.

M. The Initial Case

The Council for Broadcasting and Retransmission started to apply this interpretation in
administrative procedures that were launched at the end of 2010 and at the beginning of
2011, and were concerned with programmes broadcasted in September 2010 and later. The
first decision, issued on 12 April 2011, dealt with the violations of Paragraph 36(2) of the BA,
ie, exceeding 12 minutes of advertising time within a given hour, and Paragraph 34(1), ie,
the separation of advertising from editorial content. Both violations were committed by the
 VIII. Commercial Communications 255

insertion of sponsoring announcements in the broadcast that were considered to be advertising

spots by the RVR. In its defence, the broadcaster claimed that the RVR was changing its
regulatory approach, and was not informed about it in advance. The broadcaster claimed
furthermore that sponsoring is one of the advertising techniques, and that the promotional
effect is its inherent part. The promotional elements found in the sponsoring announcements
by the RVR are thus fully legitimate. In response to the first claim, the RVR stated that it
was not a change of the regulatory approach per se, as there was very little done in the past
in the area of sponsoring announcements that might have been considered as a regulatory
approach. It indeed provided an interpretation of the relevant provisions of the BA that was
new in a certain sense, as there had been only one decision with this interpretation employed
in the past, but there were no decisions of the RVR that would use other interpretations or
adjudicate contrary to this decision. The Council furthermore stated that it did not have
any competence on issuing any kind of regulatory statements in advance, and there was no
other way of introducing a particular interpretation of a law than through the adjudication
in concrete cases. To the second claim, the RVR responded by arguments already mentioned
in the section above.
Regarding the sanction, in the majority of potential violations of its provisions, the BA
stipulates that when these violations are committed for the first time, the so called notification
on a breach of law is issued to the broadcaster, and no other punishment is employed. In the
case of repeated violation of the same provision (but not the commitment of the identical
violation, ie, by the same action in the same way), the RVR is obliged to impose a fine. In
the case of the violations in question, these were indeed the types that fall under the rule
mentioned, and the concerned broadcaster was indeed already notified in the past about
the violation of both the relevant provisions. Given the special circumstances, however, the
RVR decided not to impose a fine that would normally be due by law, but referring to the
constitutional principle of legal certainty and the exceptional factors that had to be taken
into account (mainly the introduction of the new interpretation of the law), they only issued
the above-mentioned notification to the broadcaster. There were 15 such decisions issued
by the RVR in 2011. All were concerned with the violation of either Paragraph 36(2) or
Paragraph 34(1) of the BA, or both, and the arguments employed by broadcasters and the
regulator were very similar too. In all cases, the RVR issued only a notification on a breach
of law under the same rationale mentioned above. In all cases, the broadcaster sought an
annulment of the RVR’s decisions through actions filed with the RC. Majority of the RVR’s
decisions were upheld both by the relevant RC and subsequently, after the broadcasters’
appeal, by the SC. In a few cases, the SC found certain procedural errors on the part of the
RVR or the RC. Four cases, however, were substantially different—the next part of this case
study will review them.
Since the decisions of imposing a notification on a breach of law on the broadcaster are
fully valid once they are delivered to the recipient, there is no possibility of appeal against
them, and their legality can be challenged only by action against them, filed with the RC.
The action, however, in contrast to the appeal, does not negate the validity of the decision,
the legality of which it challenges. In consequence, not only do these cases take quite a long
time to get resolved, but there may meanwhile be cases where the same broadcaster was fined
for the same kind of violation of law, because it was already (in a legally valid way) notified
about the same type of violation prior to this one, which is now eligible to be punished by
256 Comparative Media Law Practice – Slovakia

fine. The decision of imposing a fine can nonetheless be challenged by a regular appeal which
goes directly to the SC. This subsequent case of violation may therefore take considerably
less time to review then the first case, where the broadcaster was sanctioned only by issuing
the notification.
These situations were indeed happening throughout the reviewing process of the 15
decisions that this study is concerned with. There were no judgments of the SC that would
influence the reviewing process in a way worth mentioning in this case study. However, this
peculiarity of the system of reviewing the administrative decisions explains why the last of
the cases that will be described it this case study ended by the judgment of the SC, issued
only in 22 May 2014. The first case that deviated from the previous ones, where the decisions
of the RVR were confirmed by the courts, was the case with the RVR’s decision issued on 26
April 2011. At first, upon receiving the action by the broadcaster, the RC upheld the RVR’s
decision stating that it had not found any violation of procedural legal requirements, and
agreed with the RVR as to the substance of the case, ie, that sponsoring announcements
in question fulfilled the definition of advertising, and were thus rightly considered to be
advertising spots. In consequence, the broadcaster violated provisions 34(1) and 36(2) of the
BA. In its judgment the RC furthermore stated that the only way the RVR could introduce
certain interpretation of law was through its decisions in concrete cases, and it could not
notify the broadcaster about such an issue in any other legally valid manner.
The broadcaster then appealed to the SC. The Supreme Court, however, took a different
position in the matter. In its judgment of 13 November 2012, it stated that the procedural
aspects of the case were in order. It also admitted that the content of the sponsoring
announcements was exceedingly promotional. What was not in compliance with the valid
law was the legal assessment of the situation. According to the SC, the case should have
not been treated as a violation of the Paragraphs 34(1) and 36(2) of BA, but Paragraph
38(4), according to which the sponsored programme cannot directly promote the sale,
purchase, or lease of the goods or services of the sponsor. Once the programme is sponsored,
all its parts have to be in compliance with the rules for sponsored programmes, sponsoring
announcement included. When the sponsoring announcement contains special promotional
elements fit for advertising, it does not mean that it is advertising as such. It may, however,
violate rules for sponsored programmes embedded in Paragraph 38(4) of the BA. The Council
for Broadcasting and Retransmission and the RC were thus wrong when they assessed the
case as one of violation of Paragraphs 34(1) and 36(2) of the BA. This interpretation of the
problem is different from the one presented by the EC or the RVR, which was confirmed by
other Senates of the SC in other cases.
One has to admit though that it is not grammatically or semantically impossible. If one
deems sponsoring announcements to be a part of the sponsored programme, which is possible
considering the absence of a definition or any rule that would say otherwise, it is imaginable
to apply rules for sponsored programmes even on them. This interpretation, however, does
not directly address the crucial problem that overly promotional sponsoring announcements
cause the system of advertising in electronic media regulation—the circumvention of the
rules for the separation of advertising from editorial content, but more importantly, of the
limit for the amount of advertising allowed. While it does so indirectly, since the broadcaster
is still punished for the violation of the law, it does not deem this problem to be a part of
the advertising regulation stricto sensu, which rather misses the mark. Shortly after the RC
 VIII. Commercial Communications 257

adopted this view in its judgment of 12 February 2013, in a similar case it dismissed the
decision of the RVR. The Council then appealed to the SC, where the focus of the parties
in dispute shifted to stressing or rebuking this new approach before the courts. Broadcasters
claimed that indeed this was the right legal assessment of the problem, while the RVR
claimed its unreasonableness, stressing the importance of an euro-conforming interpretation
in cases that have a bearing on EU law.
Meanwhile, in another case, the SC adopted the same approach, and in its judgment of 26
February 2014, it dismissed the judgment of the RC which upheld the decision of the RVR,
under the same arguments. The same Senate however, in a different but similar case, upheld
the RC with the same factual basis (30 April 2014). The Supreme Court acknowledged the
fact that the different courts and even different Senates of the SC ruled differently in the
similar circumstances. In this case, however, the SC adopted the original interpretation of
the problem of overly promotional sponsoring announcements, and explicitly said that it
did not agree with the interpretation that the SC had presented in its ruling of 13 Novem-
ber 2012. The peculiar thing is that while this particular Senate only two months earlier
subscribed to the interpretation that it now resolutely dismissed, it did not elaborate much on
this change of opinion. The senate restrained itself only to acknowledge the administrative
discretion of the RVR in the matters at hand, upon which it did not want to infringe. Why
this was not the case two months earlier, the SC did not explain.
Finally, we are coming back to the RVR’s appeal against the judgment of the RC of 12
February 2013 that dismissed the RVR’s decision using the argument that sponsoring an
announcement cannot be considered advertising, but must be treated as part of the sponsored
programme. In this ruling, which is the last one that deals with the original 15 decisions of
the RVR that started the change of approach to sponsoring announcements, the SC decreed
that the sponsoring announcements in question fulfilled the definition of advertising, and
therefore they have to be considered advertising spots. Under these arguments the SC changed
the judgment of the Regional court and confirmed the decision of the RVR.
It seems that the problem of how to treat the overly promotional sponsoring announcements
in the Slovak legal system is now settled. There were no other judgments deviating from the
interpretation of the majority until now. Of course, it does not mean that there cannot be
such decisions in the future, nonetheless, considering the number of decisions agreeing with
the original position of the RVR, this seems unlikely. What this case study tried to illustrate
was how the interpretation of the law is created through the workings of the Slovak system
of administrative judiciary, which includes the review of the electronic media regulation. As
it can be seen, it is not a straightforward process. Especially in the field of media regulation,
where the rules are often based on notions that may be hard to grasp from a legal point of
view (objectivity, human dignity, etc.) or, as was the case in this section, may be ambiguously
formulated, and thus can offer more than one possible interpretation, it is quite common that
the different courts or their senates will have different opinions on the same matter. While
this sheer fact is understandable to some extent, a court should not merely ignore another
court’s judgments and not address it in its ruling with proper arguments. Even more so if
the judgment was brought to the court’s attention by disputing parties, and thus it is an
important part of their argumentation. Such a situation is especially alarming in the case of
the SC, as the unification of judicature is one of its primary duties.
258 Comparative Media Law Practice – Slovakia

N. Product Placement

Perhaps the most significant, and surely the most discussed change brought about by the
AVMSD in the sphere of commercial content was the introduction of product placement.
This type of commercial communication has been long used in the broadcasting in the
USA, and in cinematographic works, also in Europe. In European broadcasting, however,
the product placement was either explicitly prohibited or was at least considered as practice
balancing on the verge of surreptitious advertising. The latter approach was typical for the
Slovak media regulation before the AVMSD implementation.
Long and intense debate preceded the actual incorporation of product placement into
the AVMSD. The main concern of the critic of the legalization of product placement was
impossibility of safeguarding the clear division of commercial content from the editorial
one. Eventually, the product placement was legalised, but as a compromise, the actual
rules are introduced as an exception to the declaratory prohibition of its use (Article
3g of the AVMSD). Slovak rules for product placement are similarly designed but the
general prohibition was replaced by words ‘product placement shall be permitted only
under the conditions laid down by this act’ (Paragraph 39a(2) of the BA). According
to its defi nition in the Paragraph 39a(1) of the BA, the product placement means a
representation by sound, image or audiovisual presentation of goods, services or a
trademark that is included in a programme in return for payment or for other similar
consideration.
As in the advertising, the remuneration is an essential point of the definition, but in the
case of product placement, assessment of this criterion is much more problematic. It is very
hard to distinguish, and even harder to prove, whether some product used in the dramatic
scene is a genuine part of the script or is on display as a consequence of a commercial deal
with its producer, unless this information is made public by the broadcaster himself, eg,
by labelling the program with product placement sign. In broadcasting regulation, it is
always easier to examine the content of what has been clearly displayed in the program
than to research the circumstances of its production. While the surreptitious advertising,
examination of which can be based solely on the content of the program, is quite effectively
regulated by the RVR, the control of the observance of the rules on product placement may
be quite difficult. This was clearly revealed during one of the first cases concerning product
placement in 2011. In the broadcast of the Slovak news channel TA 3, laptops with Sony Vaio
label were quite prominently shown next to the presenters. The administrative procedure
that had been started by the RVR was terminated, because it was not proved that the laptops
were shown in order to promote them, let alone that they were included in the broadcast for
remuneration (RVR Annual Report 2011).
It is clear that too restrictive interpretation of remuneration criterion may hinder the
effective or, considering the competencies of the RVR, any regulation of product placement
if broadcasters would be unwilling to cooperate. It was clearly with this in mind that the
RVR in one of the more recent cases has adopted a rather pragmatic approach under which
the criterion of remuneration has to be interpreted in such manner that ‘concrete motivation
of the broadcaster is irrelevant in the cases, where from the manner of inclusion of the
information it is apparent that it was intentional, and its purpose was the promotion of a
certain product’ (Decision of the RVR RL/12/2012).
 VIII. Commercial Communications 259

The BA recognizes also the category of unpaid product placement (Paragraph 39a(3) of the
BA), which may seem a bit unsystematic if viewed through the prism of ‘payment or for other
similar consideration’ criterion as an essential part of the product placement’s definition.
Its inclusion into the BA, and to the AVMSD for that matter, can be, however, explained
trough the term ‘similar consideration’. The purpose of the unpaid product placement is
in the providing of the products to the producers of the programme for free. The similar
consideration lies therefore in saving of the financial means that would have to be otherwise
employed to get the needed product. The unpaid product placement may be realized in all
types of programs. The paid product placement on the other hand may be used only in
cinematographic works, films, series, sports programmes, and entertainment programmes
(Paragraph 39a(4) of the BA).
The programs in which the product placement, both paid and unpaid, is used, have to
fulfil the following requirements:
– their content and scheduling in the programme service must not be influenced in a way
that would affect the editorial responsibility or editorial independence of the broadcaster
or the provider of on-demand audiovisual media service;
– do not directly promote the purchase, sale, or lease of goods or services, in particular by
making specific references to those goods or services;
– undue prominence is not given to the goods or services in question;
– viewers are clearly informed of the existence of product placement by means of
identification at the start and the end of the programme, and when a programme
resumes after a media commercial communication break. This does not apply to a
programme, production of which has not been commissioned or that has not been
produced by the broadcaster or by the provider of the on-demand audiovisual media
service that broadcasts or provides the programme in question.
In Table 5 below, we have summarised where administrative senates actually found
inspiration, if any. In addition, there is information about the final decision of the RVR.
First, references to domestic rulings of regional courts (de facto fellow administrative Senates)
are rather rare. Second, references to own rulings are more frequent. Third, frequency of
references to other domestic courts fits between references to domestic rulings of regional
courts and references to own rulings. However, the SC finds here (binding) inspiration
mostly in verdicts of the CC. Similarly, references to international or foreign courts is at
about the same frequency as references to other domestic courts. Interestingly, though, in
addition to the ECtHR, two Czech courts are mentioned, the Municipal Court in Prague
and the Supreme Administrative Court in Brno.
260 Comparative Media Law Practice – Slovakia

Table 5
Judgment References References to References to other References to Decision of RVR
of the SC of to domestic own rulings domestic courts (eg, international or foreign
Slovakia rulings of RCs (SC) CC) courts (ECtHR and
others)

5 Sž 18/2010 8 Sž 6/2009-30, 20 I. ÚS 17/1999— verdict of Municipal RP 37/2010

May 2010—previous to following the Court in Prague, 8 Ca SC cancels, RVR stops
this case conception of 297/2007-43—issue
material, not formal- of defi nition of hidden
legal state advertising

4 Sž/4/2010-29 RP 35/2010
SC confi rms

6 Sž 19/2010 RP 27/2010
SC confi rms

3 Sž 11/2010 RP 17/2010
SC cancels, RVR stops

3 Sž 17/2010 RP 28/2010
SC cancels, RVR stops

8 Sž 7/2010-22 RP 08/2010
SC cancels, RVR again
sanctions
RP 020/2011
SC confi rms

8 Sž 18/2010-31 6 Sž 9/2009—if later RP 34/2010

passed law did not SC cancels, RVR again
adopt original delict, sanctions
its criminal character RP 67/2011
vanished SC cancels, RVR stops

3 Sž 4/2011 2S/284/2010— 5 Sž 94/2008; 3 RP /52/2010

repeatedly Sž 33/2009-25; 8 SC cancels, RVR again
broken duty Sž 4/2009-21; 3 Sž sanctions
(the court has 63/2008; 5 Sž 7/2009; RP 67/2011
not decided yet) 3 Sž 67/2008—ad- SC cancels, RVR stops
ditionally justification
of verdict

3 Sž 18/2010-31 6 Sž 4/2009—previous RP 33/2010

to this judgment SC cancels RVR again
sanctions
RP 003/2011 SC
confi rms

8 Sž 13/2010-24 3 Sž 6/2010- RP 20/2010

27—wrongly used SC confi rms
legal norm and
incompleteness of
previous ruling

2 Sž 10/2010-34 3 Sž 39/2009-33— RP 13/2010

previous to this case SC cancels, RVR
again sanctions RP
58/2010—SC cancels,
RVR stops

2 Sž 3/2009 RP 30/2009
SC confi rms
 VIII. Commercial Communications 261

8 Sž 6/2009-30 3 Sž 112/2007, 17 RP 39/2009

January 2008; 5 Sž SC cancels, RVR again
13/2009—information sanctions
deliberately used for RP 37/2010 which is
commercial purposes; above
3 Sž 49/2007, 18
October 2007 or 3 Sž
112/2007, 17 January
2008—increase in
viewership

3 Sž 5/2009-41 RP 35/2008
SC cancels, RVR stops

3 Sž 59/2009-19 3 Sž 112/2007, 17 RP 28/2009

January 2008— SC confi rms
information in
programme exclusively
positive

3 Sž 58/2009-27 5 Sž 69/2005— RP 27/2009

issue whether two SC confi rms
communications form a
single programme

3 Sž 52/2009-25 RP 21/2009
SC confi rms

3 Sž 39/2009-33 RP 14/2009
SC cancels. RVR again
sanctions
RP 13/2010, which is
above

8 Sž 4/2011-24 3 Sž 39/2009; 3 Sžo RP 02/2011

200/2010; 2 Sžo SC cancels, RVR again
106/2007; 7 Sžso sanctions
7/2007—defi nition of RP113/2011
legal delict; SC confi rms
4 Sž 24/96—RVR did
not consider the way
the delict was executed,
its duration and
consequences;
6 Sž 5/2009; 6 Sžo
390/2009—plaintiff
could not influence
expressions of
participants and
awarded personalities;
2 Sž 9/2006—it was
impossible to agree
with a claim that the
broadcaster could
not influence what a
person would say in live
transmission;
2 Sž 9/2009—vague
and imprecise sentence
of a ruling
262 Comparative Media Law Practice – Slovakia

8 Sž 19/2011-29 3 Sž 58/2009-27— I. ÚS 17/1999, 22 ECtHR, Garyfallou RP 67/2011

sanction for breaking September 1999; AEBE v Greece, 24 SC cancels, RVR stops,
the programme with I. ÚS 44/1999, 13 September 1997, [32]; see above
ad; October 1999— Kadubec v Slovakia, 2
1 Sžn 50/2004— guarantee of material September 1998, [50];
intertwining of and not formal law Lauko v Slovakia, 2
particular parts of state September 1998—
information may meaning of ‘criminal
mislead the recipient; accusation’ according
5 Sž 18/2010—this to Article 6(1) of the
was not about hidden Covenant; Öztürk v
advertisement but Germany, 21 February
about info of general 1984, Serie A-73, 19,
interest; [52]—the importance
6 Sž 9/2009—previous of approach to a delict
to this case, this was taken by intrastate law
not about hidden is only relative, more
advertisement but important factors are
about info of general nature of delicts, nature,
interest; and level of strictness of
6 Sž 7/2010; 8 sanction;
Sž 8/2010; 3 Sž inter alia verdict of Lutz
14/2008—justification v Germany, 25 August
of the level of fi nancial 1987, Serie A-123,
sanction; 23, [55], cit Kadubec
8 Sžo 28/2007; 3 v Slovakia, [51]—for
Sžo 79/2010, 8 Sžo application of Article [6]
147/2008—criminal of the Covenant, arguing
charges according to that in matter of ‘criminal
Covenant; accusation’ it is sufficient
8 Sž 18/2010—second to fulfil at least one of the
previous to this case mentioned criteria. In
other words, it is enough
that delicts is in its nature
(nature of the offence)
criminal from the point
of Covenant, or that this
delict makes a person
vulnerable to threat of
sanctions which belong to
criminal sphere

8 Sž 18/2011 ÚS 17/1999, Finding judgment Neumeister v RP 36/2011; RP

8 Sž 22/2011 22 September 1999; I. Austria, July 1976—to 31/2011; RP 49/2011;
8 Sž 23/2011 ÚS 44/1999, Finding interpret ‘criminal RP 29/2011
8 Sž 24/2011 13 October 1999; charges’ and ‘rights SC cancels, RVR
I. ÚS 10/98; I. ÚS and obligations of again sanctions RP
54/02, 13 November civic nature’ as far as 010/2012—SC cancels,
2002—guarantee scope of applicability RVR Again sanctions
of material and not is concerned Article RP 017/2013—SC
formal law state; 6(1) of the Covenant confi rms
III. ÚS 2310/2010- autonomously from
38, 25 August their defi nition in
2010—when intrastate legal system
Covenant in Article
6(1) mentions ‘any
criminal charges’, it is
necessary to provide
guarantee to accused
in criminal as well
as in administrative
proceedings
for suspicion
of committing
administrative delict
 VIII. Commercial Communications 263

6 Sž 11/2013 2S/114/11— 2 Sž 3/2009; 3 Sž 2 June 2009, sp. zn. ruling of the Supreme RP 024/2013
protest related 66/2009; 5 Sž 8/2010; III. ÚS 42/09-77— Administrative Court SC confi rms
to explanation 3 Sž 22/2012—no Article 10(1) of the of Czech Republic
of Paragraph concrete objections of ECtHR guarantees 7As/57/2010—82,
35(2) of the a plaintiff in written protection against 3 April 2012—RVR
BA (in every statement to the subject intervention of public while collecting
30 minutes of proceedings against authorities into evidence breached the
slot only 1 materials for decision; execution to right to Administrative Law
commercial 8 Sž 7/2012— free expression Order;
break) objections against ruling of the ECtHR in
explanation Paragraph Amann v Switzerland,
35(2) of the BA; App No 27798/95—
6 Sž 28/2011—sanction certain legal norm is
without warning on ‘predictable’ when it
repeated breaking the is being formulated
law, other decision are sufficiently precisely
legally valid till RC or to allow every person
SC nullify them; in the case of need
2 Sž 27/2012— to ask for the help
objection on ambiguity of professional
advisors. Request to
limit insertions of
commercial breaks
follows the need to
protect viewers from
too much add pressure
and also to keep
integrity of audiovisual
works;
ruling of the Supreme
Administrative Court
ČR, 3 April 2012, 6
As/26/2010—sanction
without previous
warning on breaking
a duty;
ruling of the CoJ EU,
ARD v PRO Sieben
Media AG, C-6/98—
Article 20(2) of the
AVMSD is ambiguous
only in that respect
that it is not clear
whether by duration
of audiovisual work
means net time or
time including ads,
ECtHR, Amann v
Switzerland and fi nding
of CC, 2 June 2009
III. ÚS 42/09-77—
insufficiency of legal
norm is not possible
to correct either via
application or via
interpretation practice
of the RVR;
ruling of the Supreme
Administrative Court
ČR, 7As/57/2010-
82, 3 April 2012—
insufficiently checked
factual situation
264 Comparative Media Law Practice – Slovakia

6 Sžo 38/2013 1S 216/2011- 3 Sžo 40/2012, 13 Nov- ruling of the Supreme RL/82/2011
91, 16 May ember 2012—action of Administrative RC case dismissed,
2013— RVR seen as breaking Court 7As 80/2009 SC confi rms verdict
previous to constitutional rights, and Municipal of RC
this case; legal certainty and law Court in Prague
3S 190/2011 predictability; 8Ca 345/2009—
– 83, 12 8 Sž 11/2012, 29 difference between
February November 2012— sponsoring message and
2013— defi nition of advertising advertising;
action of the in Article 32(1) of the ruling of Municipal
RVR seen Act does not include Court in Prague 8A
as breaking any exception for public 144/2010, 8 February
constitutional announcements 2011—also part related
rights, legal to unchangeability of
certainty ad and other forms as
and law insufficient and not
predictability suitable for checking;
CZ 7As 81/2005; 6As
44/2006; 6As 13/2009;
6As 5/2010; 7As
3/2009; 7As 53/2009;
7As 16/201—defi nition
of ads in Paragraph
32(1) does not contains
any exemption for
public announcements

3 Sž 22/2013 8 Sžo 28/2007— ÚS 17/1999, Finding ruling of the CJEU in RP 073/2013

comparison of amount 22 September 1999; Kommunikations- SC confi rms
of fi ne; I. ÚS 44/1999, behörde Austria v
6 Sž 7/2012—amount Finding 13 October Ősterreichischer
of fi ne (for each partial 1999, I. ÚS 10/98; I. Rundfunk,
attach); ÚS 54/02. Finding C-195/06—defi nition
4 Sž 101/01, 26 13 November of teleshopping
February 2002— 2002—guaranteeing
stricter sanction for material and not
repeated breach formal legal state

2 Sž 15/2013 2S/114/2011— III. ÚS 42/09, 2 June verdict of CJEU in RP 036/2013

case related 2009—intervention ARD v PRO Sieben SC confi rms
to repeated into the right to Media AG, C-6/98—
breach of law freedom of speech; if existence of work is
the public authority seen as brutto time
intervenes into (Council)
this right, it is up
to it to prove that
this intervention
corresponds with
criteria of legality,
legitimacy, and
proportionality

2 Sžo 16/2013 1S/186/2011- 8 Sž 11/2012—legal ruling of the Supreme RL/65/2011

33—previous opinion on sponsored Administrative Court RC dismissed the case,
appeal messages in CZ 7 As 88/2010— SC confi rms the verdict
an effort to approach
new customers is
legitimate aims of
sponsoring;
verdict SC CZ 7
As 81/2005—legal
assessment of difference
between advertising
and sponsored messages
 VIII. Commercial Communications 265

8 Sž 10/2013-41 2 Sž 7/2012— III. ÚS 341/2007; ECtHR, Beian v RP 038/2013

arguments about III. ÚS 274/2007— Romania, 1 6 Decem- SC confi rms
volume of sound in importance of ber 2007—mutually
advertising; original wording, contradicting case law
3 Sž 19/2012, 29 however, the court intra state supreme
January 2013—it is not is not bound by court is in breach of the
clear whether the court word by word text Covenants
considered teleological absolutely;
approach (de ratione IV. ÚS 14/07—
legis) with respect to similar cases must
Article 34(3) of the be judged in similar
Act 308/2000 Z. z., as legal way;
it was in the previous I. ÚS 199/07; I. ÚS
case; 18/08—the role of
5 Sžo 195/2010— SC to unify case law
mutually contradictory
case law intrastate
supreme court
represents breach of
ECtHR

7 Sžo 4/2013 2S/126/2011- RL/55/2011

46—previous RC dismissed the case,
appeal SC confi rms the verdict

5 Sž 22/2013 3 Sž 19/2012, 29 III. ÚS 341/2007 RP 066/2013

January 2013—it and III. ÚS SC confi rms
is unclear whether 274/2007—initial
the court dealt with and explicit wording
teleological explanation but not bound by this
(de ratione legis) absolutely;
Article 34(3) of the Act I. ÚS 351/2010, 5
308/2000 Z. z. October 2011—
interpretation of legal
documents cannot be
done only by looking
at the text but fi rst of
all their meaning and
purpose
266 Comparative Media Law Practice – Slovakia

IX. Hate Speech

Although we did not find any case that would be tackled by the Administrative Senates of the
SC, the topic is important for Slovakia. There is a relatively low level of tolerance of different
and foreign people, and racism is still present in Slovakia to some extent. For example, the UN
Committee on the Elimination of Racial Discrimination criticised some Slovak politicians
and journalists for their racist comments in its 2013 report.177 Nevertheless, the European
Commission Against Racism and Intolerance 2014 Report CRI(2014)37 mentions that there
has been a detectable progress in combating racism and intolerance in Slovakia since 2008.178
However, during refugee crisis in the Summer of 2015, the majority of Slovak politicians were
strongly against accepting quota on refugees, and even the majority of population—70 per
cent—was clearly against accepting migrants on quota system.179 Even earlier, in November
2014, a local radio SiTy broadcast a foreign expert’s opinion. The Council for Broadcasting
and Retransmission decided this was in breach of the law. The broadcast included—in the
expert’s words—calls for killing loosely defined ‘radical Muslims’.180
We have been able to document some interesting cases of hate speech or cases similar to
that (seen by some as hate speech or, at least, held problematic by many) related particularly
to online media and television broadcasts. The only other case the RVR dealt with, and which
is the most similar to hate speech, was related to a news item broadcast in television. In it
(discussed in section on human dignity, 6 Sž 17/2011), the RVR saw a sentence which pointed
at the longer life expectancy of pensioners and its impact on wellbeing of employed people.
There are some studies that document websites with hate speech in Slovakia or in Slovak
language.181 Hate speech is also a usual part of vulgarity, which is actually a great problem
for online comment sections. For this reason, some Slovak online media started changing
their editorial policies. In addition to ongoing monitoring and ‘deleting’ some offensive or
libellous comments, in 2014, some of the print media publishing online as well, and online
news media allow writing comments only to registered users.182
Most recently, the two public discussions in January 2015 actually raised the issue of
hate speech into prominence. First, there was a public discussion in January 2015 about
cartoons of the Prophet Muhammad published by the Charlie Hebdo. It dealt with the limits
of humour and caricature, when it is actually hate speech (at least, perceived as such by
some). Interestingly, Slovak broadcasters by and large did not broadcast the controversial
cartoons in their news and current affairs programmes. The news television TA3 broadcast
two discussions in which the freedom of speech and hate speech were debated. Let us discuss
the first issue from a broader perspective. Caricatures arouse fatal passions. Predominant
or, at least, the most visible public debate in Europe, including Slovakia, seems to favor the

177 ‘OSN obviňuje slovenských politikov z rasizmum’ Aktuality, http://www.aktuality.sk/clanok/234217/osn-

obvinuje-slovenskych-politikov-z-rasizmu/m.
178 http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Slovakia/SVK-CbC-V-2014-037-SVK.pdf.
179 https://dennikn.sk/162251/prieskum-utecencov-nechceme-a-bojime-sa-ich/.
180 http://medialne.etrend.sk/radia/radio-sity-v-eteri-vyzyvalo-k-fyzickej-likvidacii-moslimov.html.
181 I Bihariová, ‘Cyberhate – Nenávisť ma Internete’ http://www.minv.sk/?kampan-bez-nenavisti.
182 See ‘Některá slovenská média ruší diskusi pod články, vadí jim nenávist a rasismus’ Romea, 12 August
2014, http://www.romea.cz/cz/zpravodajstvi/zahranicni/nektera-slovenska-media-meni-pravidla-diskusi-vadi-
jim-nenavist-a-rasismus.
 IX. Hate Speech 267

idea that the freedom of expression is a decisive factor for a free society, regardless of the
consequences. Several arguments were sounded, eg, the freedom of speech is absolute, either
it exists or it does not; our laws and customs apply here (in Europe, in France, and Slovakia);
terrorists would attack anyway, and cartoons were just a pretext for this attack.
Of course, that is a natural position for journalists. It is a pragmatic basis for tackling
several potential ethical dilemmas. In other words, the journalist may stick to their belief,
and not to differentiate much nuances of each case. Some leftist and right-wing intellectuals
with clearly defined views hold the same stance. For them, this position is also natural,
since clear-cut opinions inherently inevitably lead to radical ideas and attitudes in virtually
all areas. A type of a (radical) integrity and consistency of thought is also necessary for
prestigious and psychological reasons. But neither journalists nor intellectuals are infallible
in their beliefs and attitudes. And it is not the only possible attitude, nor necessarily the
only correct attitude. This was also the case of the reaction of several media and intellectuals
to the recent tragic events in France. It is necessary to remind ourselves that a number of
fundamental human rights and freedoms co-exist.
If we return to the first argument—freedom of speech either exists or not—it is clearly
an absurd argument. Stanley Fish offers the best answer in his book There’s No Such Thing
as Free Speech. And it’s a Good Thing, too. Briefly, the boundaries of the freedom of speech
constantly change in time, but the absolute freedom of speech in practice does not exist
anywhere. Because the absolute freedom is the idealized version of anarchy (society without
a government), classless society, or paradise. In all of these versions of society we find,
theoretically speaking, an unlimited freedom of speech. It was most poignantly expressed
by the Frenchmen (not by accident)—Albert Camus. ‘The only way to deal with an unfree
world is to become so absolutely free that your very existence is an act of rebellion.’
The second group of thinkers claims that our laws and customs apply here (in Europe,
France, or in Slovakia). Their argumentation is most frequently used implicitly, though at
times also explicitly: ‘this is our home’ (to put it simply) will not do. Besides the fact that
Muslims are also at home here (especially in France), denigration of religion operates across
borders. Additionally, it is only an excuse for the fanatics for killing. It is possible that they
will find another argument, but likely one even less persuasive. And the modern world is
about the battle of arguments, even in a battle with the fanatics inspired by religion in
the first place. In other words, it is possible that we will allow to be defeated by our own
arrogance first.
The third discussion group claims that terrorists would attack either way, and that the
cartoons were just a pretex for the attack. More so, the local Muslim groups were painted
with a broad brush, it was assumed that there is some longterm hatred toward the country
where they live and where many of them were born. Well, in both cases (the Danish cartoons
in December 2005 and the French cartoons in January 2015), the attacks were preceded
by peaceful protests and judicial requests from the side of the Muslim communities. Those
remained unheard. In the first case, they were ignored by the local politicians, and in the
second case, they were dismissed by the court.
The French were publishing the cartoons for a long time, therefore it was not a one-time
aberration of the attackers’ mind. It is obvious that the attackers have chosen a concrete target
with a concrete goal—and did not act irrationally in this case. According to the published
information, they were in the Middle East, where they most likely acquired training and
268 Comparative Media Law Practice – Slovakia

perhaps inspiration. In other words, the selection was not arbitrary, it was vengeance targeted
at certain people. In the end, the fact that the killers had a list of names confirms this
assumption. This clarifies their motivation, but of course, it does not pardon their act. Yet we
can assume with a high degree of probability, bordering on certainty, that if the magazine
would not have published controversial cartoons over a long period of time, there would have
been no attack against its editorial board. It is quite possible that the murderers would have
joined the fights in Syria or Iraq. It is also possible that they would have taken part in another
terrorist attack in Europe, but their target would have been different. But it is important that
the current target of the attack, the magazine and its editors, had greater legitimacy in the
eyes of many Muslims than an attack against random civilians. Several demonstrations in
multiple Muslim countries support that thesis. We do not recall such demonstrations taking
place after the terrorist attacks against the subway and a bus in London or a train in Madrid.
Neither of the outraged discussion groups bears the consequences for their radical views.
The case of the murder of a part of the editorial board of the magazine Charlie Hebdo and
the worldwide reactions to it prove that it is the exception confirming the rule. Fortunately.
It is, however, crucial to realize that absolutisation of the freedom of speech, including in
the form of cartoons insulting the dark foundations of human culture, can, from time to
time, lead to extreme reactions. Sadly, history is full of religion-inspired violence. There are
only a few monotheistic religions that do not include detailed violent scenes within their
‘sacred’ books. As the New York Times has stated: while the Bible is descriptive, the Qur’an
is prescriptive when it comes to this. That means that the Bible describes acts of violence,
but does not require anyone to act on them. The Qur’an certainly contains more explicit
instructions when it comes to violence, but again, the result is closely dependent on its literal
(dis)interpretation. Christian believers did not have a problem to use violence in the past
either, when the representative of God on Earth called, despite the peaceloving nature of
the Bible. Majority of monotheistic religions requires a blind obedience to God or to his
current representative on earth, or to ‘divine’ inspiration, which again allows for various
interpretations and acts of the abiding subjects in practice. Religions and some ideologies
do not operate on the basis of rational discussion but on faith. We cannot rationally discuss
faith, and it is not possible to expect rational action always and everywhere. So much, briefly,
on religion, freedom of speech and criticism of religion through cartoons.
How to deal with this problem with majority of religions and some ideologies? Modern
states and societies found the answer in separation of the religious from the earthly, and in
tolerance of otherwise ideologically intolerable to the degree that it does not threaten the
very foundation of tolerance. This also goes for communication that is too expressive. We
can take Slovak legislation as an example. Perhaps this will come as a surprise to some, but
our legislation contains a number of limitations of the freedom of speech in various forms.
Suffice it to mention the question of the Holocaust or Nazi symbols. Slovak Penal Code, eg,
forbids public denial, doubt or support of the Holocaust or of the crimes based on fascist
ideology. Why is that so if freedom of speech is above all? It is forbidden to promote a
group of people or a movement, which violates basic human rights through committing or
threatening violence or another severe deprivation. There are many such restrictions, not only
within the Penal Code. Some prohibitions could really be questioned. How is it related to the
cartoons? Not everything can be tolerated, not everything can be forbidden by law. Irony and
humor are always on the edge of what is acceptable as humor and what offends a part of the
 IX. Hate Speech 269

population. It is an issue that can be concretely localized. Even the ECtHR does not wish to
decide in very local (national) cases, which are bound to local culture, but follows opinions,
eg, takes into consideration the views of the local courts.
If we know that we live in a country where jokes about some regional, ethnic or, religious
group are considered to be dehonesting by (several) members of these groups, it would
be appropriate to consider their publication or refine their content. Out of politeness and
respect, not out of fear. Several media took this route before, especially in the USA or in the
UK, when they decided not to publish some cartoons ridiculing the prophet Muhammad.
Today, some media do so out of fear. We got into a situation in which the freedom of speech
is limited not by internal ethical limits but by fear of external (fatal) threat. It is hard to say to
what extent we would be in this situation without the ethical self-limitation, but it is certain
that the fanatics were not motivated only by the last few published cartoons. In other words,
the power and self-esteem does not mean doing everything despite the wishes of the weaker
or less numerable (or more aggressive or more sensitive). Internal power manifests itself the
most in self-restrain and self-control. This is not a defence of the murderers of the French
cartoonists. The point is that the reactions of our media and intellectuals indicate that they
still view tolerance as our radical vision of freedom, which is not far removed from anarchy
or a particular majority opinion or totality.
In yet other words, if we are not publishing the really insulting jokes about the Jews, Scots,
Czechs, or Hungarians (and there used to be a multitude of these jokes) in Slovakia anymore,
or if we cannot publicly deny the Holocaust or the crimes of fascism or communism, why
should it be OK to rudely insult the supporters of one of the most widespread faiths on the
planet, even if in a form of cartoons? If anyone believes that this is a radically wrong opinion,
why then several British and US media did not publish the controversial cartoons to this
day but limited themselves to their description? Is it possible that in the cradle of JS Mill, J
Milton, or G Washington, T Jefferson, and A Lincoln, they do not understand the meaning
of the freedom of the press?
It will be decisive whether we will assume the position of liberal fundamentalism, where
truth and freedom are above all regardless circumstances and links, or if we will assume
the value position of liberal pragmatism, where truth and freedom are—theoretically—still
above all, but do take the relevant circumstances and connections into regard, including the
possible consequences.
In the case of liberal fundamentalism, one of the more or less admitted goals (as was also
the case with the Danish daily Jyllands Posten publishing the cartoons of Muhammad) is
allegedly cultivating tolerance by exposing the readers or viewers to extreme diversity. We
know how it ended then. Several people died in multiple countries (most frequently Muslims),
and several buildings burnt down (mostly Danish or belonging to the EU). Today, we know
that outside of France, there were victims elsewhere, after the attacks, while protesting the
cartoons. Today, the Jyllands Posten does not want to publish any religious cartoons. What
will it be like in a few years here? Will we hand the excuses for killing to the religious fanatics,
or will we deprive them of one such opportunity? Which is a better solution?
Second, during almost the same period, there was a public discussion on issues raised in
a referendum held on 7 February 2015, which was initiated by Christian activists in 2014.
This discussion brought accusations of hate speech as well as regulatory challenges related
to paid and unpaid campaign announcements and speeches for broadcasters as well as for
270 Comparative Media Law Practice – Slovakia

online media. In particular, the new law on elections does not cover referenda. Therefore,
the RVR issued its official opinion on the legal situation, with regard to the campaign before
the referendum. This opinion stated that a broadcaster is not obliged to broadcast TV or
radio ads. However, if the broadcaster decides to do so, it must respect the rules regarding
the universality of information and plurality of opinion (zabezpečiť všestrannosť informácií
a názorovú pluralitu), as well as the protection of human dignity and humanity, the ban on
political and religious advertising (political advertising is allowed only before elections), and
broadcaster cannot break the rules regarding freedom and equality in dignity, and the rights
of people. Finally, the broadcaster was not allowed to include or support discrimination
based on—among others—sexual orientation, religion, or faith in its programmes.
The above rules, combined, prove that hate speech can actually relate to other regulatory
aspects of broadcasting. It was clear that the legal uncertainty still remained significant.
The first rule, keeping universality of information and plurality of opinion, meant that the
broadcaster would have to give equal space in advertising to both sides. However, opponents
of the referendum—various LGBT organisations—decided, on the advice of a PR agency,
not to run any ads or participate in public discussion in television or radio. Under media
pressure, the opponents established a special website with their opinions (nejdeme.sk). The
decision of the opponents not to participate in public discussions was a logical result of
referendum rules. There is a minimum of 50 per cent threshold to have a valid referen-
dum. However, so far only one referendum crossed this threshold (on the EU membership
in 2004). Therefore, emotionally charged public discussions might encourage citizens to
participate, thus increasing chances that the referendum would be successful even with a
minority of all citizens—eligible voters—actually voting. All other regulations or limitation
on free speech mentioned above meant that broadcasters had to carefully watch who said
what even in regular religious programmes. This brought—even before this statement by the
RVR was issued—many complications for broadcasters.
For example, the RTVS regularly broadcasts religious mass. The public radio (a part of
the RTVS) refused to broadcast a Greco-Catholic Mass in its regional radio programme as
it was ‘bordering on hate speech and in opposition with internal, national, and international
legislation’ in January 2015. The RTVS suggested first to cut out problematic parts, but the
priest did not agree with this pragmatic solution. There was no available official transcript and
translation for this mass, but it seems that it was similar to words used by Catholic Bishops in
similar cases.183 There was a long-time plan to broadcast a radioed Catholic mass before refe-
rendum on 2 February 2015 (a week before the referendum) on two channels of public service
radio. The Conference of Bishops of Slovakia announced that it would broadcast a special
message in which it would urge followers to participate at the referendum as well as to vote
yes to all questions asked in referendum.184 However, the internal guidelines of the RTVS
on referendum coverage, issued exclusively in January 2015 (ie, before the controversial re-
ferendum) stated that there can be no promotion of any opinion before referendum in its
broadcast. The RTVS solved this dilemma by follow-up broadcast which included opinions
from the other side of the ideological spectrum. Of course, this discussion moves us away

183 http://spravy.pravda.sk/domace/clanok/343978-preklad-neodvysielanej-kazne-bol-nepresny-tvrdi-cirkev/.
184 http://kbs.sk/obsah/sekcia/h/dokumenty-a-vyhlasenia/p/pastierske-listy-konferencie-biskupov-
slovenska/c/pastiersky-list-k-referendu-o-ochrane-rodiny.
 IX. Hate Speech 271

from the issue of hate speech, but it is significant from a perspective of real and sometimes
rather complex regulatory challenges.

A. Local Cultural Context

Katarína Ondrejková argued that national and patriotic feelings often turn into synonym of
nationalism, chauvinism, and racism.185 This is still sometimes the case in Slovakia. The major
targets of hate speech in Slovakia seem to be the Roma in general (especially around the year
2000), the ethnic Hungarians (especially in the 1990s) by a few radical media outlets and by
some nationalist politicians, and surprisingly, the Jews among underground (or rather Inter-
net) extremists (in early 1990s to some degree in Zmena and Hlas Slovenska weeklies, later
also occasionally in Literárny týždenník and daily Slovenská republika, renamed as Republika).
According to Daniel Milo, representative of the NGO People Against Racism, about half
of all cases of monitored racially motivated hate speech cases targeted Roma; the other half
targeted Jews (in Internet chat discussions) in the late 1990s. Milo defined hate speech as any
words or graphic expression of ideas spreading hatred. Out of 18 cases of racism submitted
to the police for investigation in 1999 by this NGO, 15 were related to hate speech. In 2001,
out of 60 monitored cases of racism by this NGO, up to 20 were classified as hate speech.186
However, more recent analysis has shown that although journalists still often use
stereotypes, only 4 per cent of analysed news items in major news outlets ignited hated
speech due to ethnicity in 2014.187 In addition, homosexuals, feminists, Vietnamese and
Chinese migrants, including their children born in Slovakia, and some other groups like
Africans, are still from time to time targets of disregard in form of specific jokes (at least).
New information and communication technologies make situation sometimes worse in this
regard. For example, at the turn of the century, there was one case when mobile phones
of one provider were flooded with racist messages, offering 50 free minutes of using the
network for each killed Roma.188 There were too many frequent racist and xenophobic
attitudes and remarks towards Roma and ethnic Hungarians and also to Jews in online com-
ment sections. As a result, many editorial offices have adopted stricter policies with respect
to online comments. As mentioned, in this context it is puzzling that there are just a few
RVR rulings with respect to broadcasted hate speech. We can identify cases that seem to be
similar to hate speech dealt with from the aspects of human dignity, protection of minors,
and balanced coverage. This may be correct; eg, John Rex has suggested that multicultural
policies—which may include ban on hate speech—might marginalize minority groups
and marks them for inferior treatment in special forms of manipulation and control.189

185 K Ondrejková, ‘Hrdosť príde sama…’ Domino fórum 10 (2002) 9.

186 A Školkay, ‘Xenophobia: A Catalyst of Hate and Defamation Speech in Slovakia and Slovenia. Comparative
study’ www2.mirovni-institut.si/eng_html/articles/skolkay.doc.
187 ‘RÓMOVIA, V médiách ich zobrazujú stereotypne a často anonymne’ http://www.gipsytv.eu/gipsy-television/
spravy/slovensko/romovia-v-mediach-ich-zobrazuju-stereotypne-a-casto-anonymne.html?page_id=3414.
188 Ochrana menšín na Slovensku. Program monitorovania vstupu do EÚ (Bratislava, Open Society Institute, 2001) 3.
189 J Rex, ‘Multiculturalism and Political Integration in Europe’ R Koopmans and P Statham (eds), Challenging
Immigration and Ethnic relations Politics. Comparative European Perspective (Oxford, Oxford University Press,
2000) 69.
272 Comparative Media Law Practice – Slovakia

He suggests that minorities should not be marked for inferior treatment and special control.
In contrast, Richard Delgado and Jean Stefanic believe that the establishment of a legal norm
creates a public conscience and a standard for expected behaviour that keeps overt signs of
prejudice in check. They believe that creating institutional arrangements in which exploitive
behaviours are no longer reinforced will result in changing attitudes. The question of whether
the defendant’s conduct counts as ‘extreme and outrageous’ must be answered on a case-by-
case basis. Social scientists who have studied the effects of racism have found that speech that
communicates low regard for an individual because of race tends to create those very traits of
inferiority in the victim that it ascribes to him. This is in addition to the more general harms
associated with racism and racist treatment, and the specific mental or emotional distress.190
There was an interesting public controversy about limits of anti-Jewish remarks and
the function/mission of documentary programmes in the year 2004. In a documentary
programme broadcast by a public TV about an anti-Jewish pogrom in a little West Slovakian
city after the Second World War, a local citizen openly made racist (both anti-Semitic and
anti-Roma) remarks. On the one hand, this was supposed to be the official reason why the
director of public STV at that time hesitated to broadcast this programme. On the other
hand, the director of the documentary claimed that this was not the main reason, but that the
film raised critical questions about the problematic role of the Catholic Church in Slovakia
during and after the Second World War. Be that as it may, the documentary film was finally
broadcast late in the evening with follow-up live discussions which were supposed to explain
the context of the story. It seems that society has changed and moved from discussing strictly
political issues towards various cultural and ethical issues in the last years.
This shift in public discussions and values can be seen at following examples. The
Conference of Bishops of Slovakia issued a traditional Christmas letter before Christmas in
2013. The following was written in this open letter: ‘Supporters of the culture of death come
with new “gender ideology”. They want to pursue the so called “gender equality” in its
name . . . thus they want to take a man’s right to identity as a man, and a woman’s right to
identity as a woman, and family’s right to the identity of family. The aim is that a man should
no longer feel like a man, and a woman as a woman. They want to put the coexistence of two
men or two women at the level of marriage. In this way a sort of Sodoma quitch is created
(paškvil) which is against the God’s will and will result in God’s punishment.’ As result, this
quote won in second year competition on hate speech, organised by two LGBT groups.191
Interestingly, no one seriously questioned why this was allowed to be broadcasted in public
television this time (as is tradition in Slovakia with this type of communication during
Christmas). However, an almost identical letter by a Greco-Catholic Bishop broadcast by a
public television during Christmas of 2014 was questioned exactly from this point of view by
a gay university journalism teacher.192
Another controversy was related to a video in which Catholic priest Marián Kuffa spoked
offensively about homosexuals in the summer of 2014. The .týždeň conservative weekly

190 R Delgado and J Stefanic, Must we Defend Nazis? Hate Speech, Pornography, and the New First Amendment
(New York / London, New York University Press, 1997) 11, 8.
191 http://www.tvnoviny.sk/domace/1766738_negativnu-cenu-za-nenavist-ziskali-ludia-ktori-maju-sirit-lasku.
192 B Ondrášik, ‘Kňaz gayom: Vytlačte totu špinu za hranice štátu…k AZR sa prihlásili aj kotlebovci’
http://ondrasik.blog.sme.sk/c/373639/knaz-gayom-vytlacte-totu-spinu-za-hranice-statuk-azr-sa-prihlasili-aj-
kotlebovci.html.
 IX. Hate Speech 273

magazine, on which website this was posted, has withdrawn the video from its website,
just one day after publishing it. The video has been criticised by several non-governmental
organisations and activists who even sent an open letter to Hríb, the Editor-in-Chief of
.týždeň. The controversial statement was: ‘Homosexuals are sometimes worse than murderers.’
Kuffa called them ‘mass murderers’ and talked about ‘the genocide of the nation’.193
Kristína Kormúthová, a sport TV presenter at the PSM, was fired after she posted a
controversial comment on her Facebook profile on 16 May 2014. Kormúthová wrote on
Facebook that a man who, according to her, tried to steal the rain gutter from her house at
night was ‘a prematurely born, stinky gypsy’ and asked why ‘us hunters’ cannot shoot such
people like animals. She concluded, ‘And let anyone dare to call me a racist!’ Kormúthová
later deleted the text, but not before a screen capture of it began circulating around on
the Internet. She publicly apologised for her words, and explained in an official written
statement that she wrote it ‘in a flurry after my family and I became victims of a crime.’
Kormúthová said she did not intend to generally disparage any nation, race, or ethnicity but
rather condemn a specific deed of a thief. Culture Minister Marek Maďarič said he would
have chosen a less severe punishment in the case of Kormúthová, though he perceived her
racism-tinged Facebook post that ultimately cost her job as unacceptable.
Monika Flašíková Beňová, an MEP for Slovakia, published the following statement on the
social network on 19 October 2014, calling a Catholic synod a ‘sophisticated marketing tool
serving to declare conservatism and the power of those who cover paedophilia, cocaine, and
the Vatican Bank. Well, God sees them, old bastards.’ She was initially investigated on the
suspicion of a crime of the defamation of nation, race, and belief. However, the accusations
were later withdrawn.
Finally, when Romana Schlesinger, informal representative of the LGBTI and member of
SAS political party, expressed her harsh comments about a ban in Austria on shopping on
Sundays in relation to Christian values, this was very much criticised even by Richard Sulík,
the Head of her Liberal Party SAS (Freedom and Solidarity).194

B. International and European Legislation and Norms

An issue of hate speech is rather controversial and sometimes confusing. For example, Helen
Darbishire (1999) argues that ‘[i]t must be recognized that some speech which is undoubtedly
offensive does not constitute hate speech, even though it may contribute to a climate of
prejudice and discrimination against minorities. Such speech would include the tendency
by media to report the bad news about minorities when it affects the majority population,
for example noting when the perpetrator of a crime is the member of a minority.’195 Also
Susan Benesch argues that most of the existing hate speech laws—including international,
regional, and national ones—are dangerously vague in ways that are often used to restrict

193 See more on this in J Vittek, ‘Kuffovo video a názory katolíkov – nedorozumenie či skutočná nenávisť?’
http://www.vkontexte.sk/2014/08/kuffove-video-nazory-katolikov.html.
194 http://www.teraz.sk/slovensko/politicka-sas-oznacila-jezisa-krista/129083-clanok.html.
195 H Darbishire, ‘Hate Speech: New European Perspective’ http://www.errc.org/article/hate-speech-new-
european-perspective/1129.
274 Comparative Media Law Practice – Slovakia

the freedom of speech of minorities, including preventing them from expressing legitimate
grievances.196 Benesch quotes Bhikhu Parekh, who wrote that ‘Britain bans abusive, insulting,
and threatening speech. Denmark prohibits speech that is insulting and degrading; and India
and Israel ban speech that incites racial and religious hatred and is likely to stir up hostility
between groups. In the Netherlands, it is a criminal offence to publicly express views insulting
to groups of persons . . . Germany ban[s] hate speech that violates the dignity of an individual,
implies that he or she is an inferior being, or maliciously degrades or defames a group.’197
Provisions relating to the prohibition of hate speech and all forms of intolerance and
discrimination on grounds such as race, religion, and belief are to be found in a number
of international instruments, eg, in the 1945 United Nations Charter (Paragraph 2 of the
Preamble, Articles 1(3), 13(1)b, 55(c), and 76(c)), the 1948 Universal Declaration of Human
Rights (Articles 1, 2, and 7), the 1966 International Covenant on Civil and Political Rights
(Articles 2(1), 20(2), and 26), the 1965 International Convention on the Elimination of
All Forms of Racial Discrimination (Articles 4 and 5), and the 1981 Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
Furthermore, the Vienna Declaration, adopted on 9 October 1993, expressed alarm at the
present resurgence of racism, xenophobia, and anti-Semitism, and the development of a
climate of intolerance. Among such instruments, Resolution No 52/122 on the elimination
of all forms of religious intolerance, adopted by the United Nations General Assembly on
12 December 1997, deals more specifically with the issue of religious intolerance. Among
the European instruments dealing more directly with the issue of ‘hate speech’ are the
Recommendation No R (97) 20 on ‘hate speech’, adopted on 30 October 1997 by the
Committee of Ministers of the Council of Europe,198 and the General Policy Recommendation
No 7 of the European Commission against Racism and Intolerance on national legislation
to combat racism and racial discrimination. The appendix to the recommendation states
that the term ‘hate speech’ is to be ‘understood as covering all forms of expression which
spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism, or other forms
of hatred based on intolerance.’ In 2002, the Council of Europe’s European Commission
against Racism and Intolerance adopted a recommendation on the key components which
should feature in the national legislation of the member States of the Council of Europe
in order to combat effectively against racism and racial discrimination. The AVMSD in its
Article 6 requests the Member States to ensure by appropriate means that audiovisual media
services of media service providers under their jurisdiction do not contain any incitement to
hatred based on race, sex, religion, or nationality.
In theory as well as in practice, there are significant differences among political and legal
cultures. For example, the Supreme Court of the United States ruled in the early 1990s that
it was legal when a man burned a cross in front of a house where an Afro-American family
lived (a Ku Klux Klan activity). The Supreme Court preferred freedom to expression before
the right to protection against possible hate speech. The explanation was that it was racist

196 S Benesch, ‘Defining and diminishing hate speech’ State of the World’s Minorities and Indigenous Peoples 2014,
5, http://www.minorityrights.org/12473/state-of-the-worlds-minorities/mrg-state-of-the-worlds-minorities-2014-
chapter02.pdf.
197 ibid, 21–22.
198 See the local translation available at the RVR website, http://www.rvr.sk/sk/spravy/index.
php?aktualitaId=45.
 IX. Hate Speech 275

but not illegal. However, if this act would cause violence, it would be illegal, the SC argued.
Similarly, an earlier decision by the SC freed a man, a Ku Klux Klan member who said in a
television broadcast that ‘Negroes should go back to Africa and Jews back to Israel.’
In contrast, the ECtHR ruled that Germany has a right to ban exhibiting Nazi posters on
the streets.199 The Supreme Court of the USA considered the problem of intimidation in the
Virginia v Black, 538 US 343 (2003) case. The Supreme Court struck down Virginia statute
in this case, to the extent that it considered cross burning as prima facie evidence of intent
to intimidate. Such a provision, the SC argued, blurs the distinction between proscribable
‘threats of intimidation’ and the Ku Klux Klan’s protected ‘messages of shared ideology.’
However, cross-burning can be a criminal offense if the intent to intimidate is proven.
Thus, argued the SC, ‘just as a State may regulate only that obscenity which is the most
obscene due to its prurient content, so too may a State choose to prohibit only those forms
of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning
carried out with the intent to intimidate is fully consistent with our holding in RAV and is
proscribable under the First Amendment. . . . “True ‘threats” encompass those statements
where the speaker means to communicate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of individuals.’
In contrast, the ECtHR following ideas expressed in the ECHR argues that the very
essence of hate-speech is in opposition to the principles of a democratic society. The ECtHR
turned down all rare demands for the protection of hate speech under Article 10 of the
ECHR. European standards protect only opinions that represent a creative contribution to
the public debate, and enhance understanding and tolerance among people by presenting
various points of views on specific issues.200 The ECtHR argued that although sentencing is
in principle a matter for the national courts, the ECtHR considered that the imposition of a
prison sentence for a press offence will be compatible with journalists’ freedom of expression
as guaranteed by Article 10 of the ECHR only in exceptional circumstances, notably where
other fundamental rights have been seriously impaired, as is, eg, the case of hate speech or
incitement to violence (see, mutatis mutandis, Feridun Yazar v Turkey, App No 42713/98,
judgment of 23 September 2004, [27], and Sürek and Özdemir v Turkey [GC], App Nos
23927/94 and 24277/94, judgment of 8 July 1999, [63]. The ECtHR’s line of argumentation
can be summarised in Jansen’s words: Tolerance is achieved through intolerance of the
intolerant.201 Indeed, Delgado and Stefanic suggest that the main inhibitor of prejudice is the
certainty that it will be noticed and punished.202 The ECtHR also acknowledges (Erdoğdu v
Turkey, App No 25723/94, [62]) that in situations of conflict and tension, particular caution
is called for on the part of the national authorities when consideration is being given to the
publication of opinions which advocate recourse to violence against the State lest the media
become a vehicle for the dissemination of hate speech and the promotion of violence (see,
mutatis mutandis, Sürek and Özdemir v Turkey).

199 TS Orlin, ‘Sloboda prejavu ako základný prvok prechodného obdobia’ M Horský (ed), Novinár a zákony
(Sielnica, Nadácia Milana Šimečku, 1994) 12–15.
200 B Kovačič, ‘The Legal Aspect of Hate-Speech’ B Petkovič (ed), Intolerance Monitoring Group Report 01
(Ljubljana, Mirovni Inštitut, 2001) 177–98.
201 SC Jansen, Censorship: The Knot That Binds Power and Knowledge (New York / Oxford, Oxford University
Press, 1991) 44.
202 Delgado and Stefanic, Must we Defend Nazis? (n 190) 60.
276 Comparative Media Law Practice – Slovakia

C. The Media and Hate Speech

The Ethical Journalism Network claims: ‘It’s a tricky task to judge exactly what constitutes
hate-speech. There is no accepted international definition and the tolerance levels of speech
vary dramatically from country to country.’203 Perhaps this is the reason why there were only
a few cases before the ECtHR that dealt with the media and hate speech. The most well-
know is the Jersild v Denmark case that we have already discussed. The ECtHR stated there
that specific expressions that doubtlessly constitute hate speech and which may be insulting
to particular individuals or groups are not protected by Article 10 of the ECHR. Another
particularly relevant case is the Gündüz v Turkey (App No 35071/97). On 12 June 1995,
the applicant took part in the capacity of the leader of Tarikat Aczmendi (a community
describing themselves as an Islamic sect) in the television programme Ceviz Kabuğu,
broadcast live on HBB, an independent channel. In this case, the ECtHR noted that as a
matter of principle, it may be considered necessary in certain democratic societies to sanction
or even prevent all forms of expression which spread, incite, promote, or justify hatred based
on intolerance (including religious intolerance), provided that any ‘formalities’, ‘conditions’,
‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued (with
regard to hate speech and the glorification of violence, see, mutatis mutandis, Sürek v Turkey
(No 1) [GC], App No 26682/95, ECHR 1999IV, 40, [62]). Furthermore, the ECtHR stated
that it must consider the impugned ‘interference’ in the light of the case as a whole, including
the content of the comments in issue and the context in which they were broadcast, in order
to determine whether it was ‘proportionate to the legitimate aims pursued’, and whether
the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ (see,
among other authorities, Fressoz and Roire v France [GC], App No 29183/95, ECHR 1999-
I). Furthermore, the nature and severity of the penalties imposed are also factors to be taken
into account when assessing the proportionality of the interference (see Skałka v Poland, App
No 43425/98, judgment of 27 May 2003, [42]).
In the case Gündüz v Turkey therefore the ECtHR noted that comments demonstrated an
intransigent attitude towards and profound dissatisfaction with contemporary institutions
in Turkey, such as the principle of secularism and democracy. However, seen in their
context, they cannot be construed as a call to violence or as a hate speech based on religious
intolerance. Furthermore, the ECtHR accepted that the Turkish people may have been
attacked in an unwarranted and offensive manner. It pointed out, however, that the applicant’s
statements were made orally during a live television broadcast, so that he had no possibility
of reformulating, refining, or retracting them before they were made public (see Fuentes Bobo
v Spain, App No 39293/98, judgment of 29 February 2000, [46]). Interestingly, the ECtHR
observed that the Turkish courts, which are in a better position than an international court
to assess the impact of such comments, did not attach a particular importance to that factor.
Finally, the ECtHR considered that the mere fact of defending sharia, without calling for
violence to establish it, cannot be regarded as ‘hate speech’. Moreover, the applicant’s case
should be seen in a very particular context. The aim of the programme in question was to

203 ‘Hate-Speech: A Five-Point Test for Journalists. Turning the Page of Hate in Media Campaign for
Tolerance in African Journalism’ http://ethicaljournalismnetwork.org/en/contents/hate-speech-a-five-point-
test-for-journalists.
 X. Right of Reply 277

present the sect which the applicant was the leader of; and the applicant’s extremist views
were already known and had been discussed in the public arena and, in particular, were
counterbalanced by the intervention of the other participants in the programme; and lastly,
they were expressed in the course of a pluralistic debate in which the applicant was actively
taking part. Accordingly, the ECtHR considered that in the instant case, the need for the
restriction has not been established convincingly.

X. Right of Reply

During the passing of the new Press Law in 2008, there was a public and parliamentary
discussion whether the right to reply should be a part of the regulation of electronic media
or not.204 However, the BA mentions in Paragraph 21 only the right to correction. This
is actually by and large identical for the case of the right to reply concerning the original
Directive (AVMSD). The right of reply is also regulated in a different way (in addition to the
separate right to correction) in the Press Law (not applicable to the broadcast media).
Acts 346/1990 on elections to local municipalities and 46/1999 on elections of the President
used to guarantee the right to reply (not the right to correction) to political parties and
independent candidates in political broadcast (naturally, only during the election campaign).
Until 2015, the legislation dealing with various elections was not unified. For instance, this
right was not to be found in the Act 80/1990 on elections to the Parliament, Act 564/1991
on referenda, or in the Act 303/2001 on elections to self-governing regions.205 The new
complex Act (180/2014) on conditions of exercising the right to vote has abolished all partial
regulations related to various elections. However, in effect, it also abolished the right to reply,
as it was used during some election campaigns. The new complex ‘sister’ Act 181/2014 on
election campaign does not deal with this right either. Yet, although we do not find critical
comments about this particular issue (perhaps because, in effect, general legislation applies
in this case), some legal experts harshly criticized the Act on election campaign for strictly li-
miting critical voices, while at the same time arguing with the need to create equal conditions
during election campaigns for all candidates.206
It seems that the current Act on election campaign may bring serious legal challenges
in this respect in the future. The Constitutional Court refers to its established case law, in
which it says that only really serious or repository breach of law dealing with elections can
be turned to the CC (as a result of the breach of constitutional rights). In addition, this
really serious or repository breach of the constitution must have direct consequence on the
results of the elections. Moreover, this claim must be supported by facts (PL ÚS 17/94, PL
ÚS 5/03, PL ÚS 35/03, PL ÚS 3/2010). These are clearly challenging legal or evidence-based

204 M Kernová and M Kern, ‘Právo na odpoveď má byť aj v televízii’ http://www.sme.sk/c/3726405/pravo-na-

odpoved-ma-byt-aj-v-televizii.html#ixzz3fx4EbQ8i; E Chmelár, ‘Falošní bojovníci za slobodu prejavu’ http://
blisty.cz/art/40084.html.
205 See, Election / referendum campaigns and electronic media, http://www.rvr.sk//_cms/data/modules/
download/1167759843_Volebna%20a%20referendova%20kampan%20a%20elektronicke%20media%20
v%20zakonoch%20SR.pdf.
206 See, T Martaus, ‘Stanovisko PP k návrhu zákona o volebnej kampani’ http://parlamentpravnikov.
sk/?p=589.
278 Comparative Media Law Practice – Slovakia

conditions. Moreover, the CC also claims that the breach of election blackout happens only
when the public has the access to new information about a candidate or a political party
during the election blackout (ruling of the CC PL ÚS 15/2013, 11 December 2013).207 Can
the apparently untrue and misleading information broadcast about a candidate or a political
party, who, by the way, has no specifically regulated right to reply (in addition to the legal
election black-out) influence the election results? This question may be difficult to answer,
but in case the results are tie, there may be a legal constitutional basis for filing a suit,
following the CC argumentation. Moreover, the legislation does not seem to consider the role
of blogs and online social networks.
The right of reply has specific position in our study since it has not been dealt with via
administrative court but via civil courts. In other words, no single case was noted when the
RVR had to intervene, leaving the broadcaster lodging an appeal to the administrative court.
This is so because the BA clearly states that if a broadcaster will not broadcast correction or
will not meet conditions stated by the BA (Sections 21(5)–21(8) of BA), this will be decided
by a court on proposal of a person who had originally requested a correction. There is strict
condition that this case must be submitted to the court within 15 days after 8 days have
passed when the broadcaster received this request for reply. In other words, the broadcaster
is obliged to broadcast reply within 8 days when it receives such request. If it does not do
so, the complainer has another 15 days to file a civil suit. Thus, the complaining-requesting
person must check broadcast, and if there is no reply broadcast within 8 days, she/he can
turn to the court.
The proper application of the right to publish correction presupposes submission of a
written request for broadcasting a correction, which must clearly state what constitutes
untrueness of the facts or distortion of the truth. The request must also contain the proposal
of the correction. Only a complete request constitutes an obligation for the broadcaster to
broadcast the proposed correction. The proposal of the corrections must be included in
the request, because the broadcaster is bound by the proposed wording of the correction
in terms of its scope and content. The broadcaster cannot make essential changes in the
request complying with law. The law obliges the broadcaster to broadcast the correction in
the same programme in which the contested facts were published or in the same time, in
such a form and content which is appropriate to the contested facts. It must also indicate
that it is a correction and a designation of the person who requested the broadcasting of the
correction (Section 21). On the other hand, the plaintiff is entitled to the broadcasting of the
correction formulated by him/her. The proposed wording of the correction is relevant also
from the point of view that the proposed text must be examined by the broadcaster to ensure
that broadcasting will not result in committing a crime or being contrary to good morals
(Sections 21(9)a–21(9)b). Based on this, it can be presumed that in terms of the provisions of
Section 21(9) of the cited law governing the case, the broadcaster is not obliged to broadcast
a correction, when the wording of the correction or an application is containing false data
or distortion of truth, relevant in relation to the obligation of the broadcaster to broadcast a
correction in the proposed wording.
As the particulars of a request for broadcasting a correction are justified by the fact that the
broadcaster has to assess whether the person concerned had a right to ask for the correction,

207 http://portal.concourt.sk/Zbierka/2013/54_13s.pdf.
 X. Right of Reply 279

and considered its broadcasting in the required wording, it is not sufficient that the proposer
stated the concrete data objected and for what reasons he/she demanded only subsequently
during the court proceedings. These facts should have been already contained in the request
for broadcasting a correction. The correction cannot include satisfaction (apology), and any
other subjective statements excessing statutory (factual) framework of the correction (it
cannot include subjective opinions, attitudes, assumptions, and own feelings of the person
concerned, unless they are the description of the factual allegations, its denial, explaining,
specifying, or supplementing it).
The subsection of the BA further specifies that this right is related to both untrue and
misleading (so called truth-deforming) information. This right belongs to both legal and
natural persons, and even after the death of the natural person, this right remains applicable
for his/her relatives (or, more precisely, the law mentions ‘close’ persons). When it comes
to a legal person (a company or a natural person who owns a license to broadcast) that in
the meantime has lost the license to broadcast, there is still an obligation to guarantee the
broadcasting of a correction on its own territory or via a similar broadcaster (from the point
of view of the territory covered). However, any such complaining or requesting (correction)
subject must be clearly identifiable (based on untrue or misleading, truth-deforming
information). The conditions do not include national citizenship, address/headquarters
location, or long-term permit. The correction must be broadcast free of charge.
The request must be submitted in written form and delivered within 30 days following
the controversial broadcast. The request for correction must clearly state what was untrue
or misleading regarding the broadcaster information. The BA demands a suggested text of
correction in the attachment. Finally, as was mentioned, correction must be broadcasted
within eight days from the day of receiving such a request.
There are four general statutory exceptions from obligation to broadcast a correction. These
are a) if it would be followed by a crime or delict (four categories), or if the message would be
in contradiction with general ethics; b) if the broadcast of the suggested text would intervene
into the rights of another person; c) if the broadcaster has already broadcast correction in
accordance with this law (before receiving such a request); d) if it can prove the truthfulness
of information of which correction is requested. Obviously, the court can intervene in the
case of disagreement or not abiding by the law.
We do have original research data on use and possible abuse of this legal instrument in
Slovakia. However, these are rather limited. The official case law online database shows only
eight such cases since 2007, two of which came from regional courts. When leaving out
the two appeals, we get six such cases. In 2011, the Local Court of Bratislava dealt with the
first and the oldest case (18C/321/2007). The case concerned national news television TA3,
and a business company located in East Slovakia. The story was broadcasted on 24 October
2007, causing the plaintiff to submit a file on 7 December 2007. The story was about alleged
violation of human and labour rights. It was about an employee who was allegedly fired
after asking for a lunch voucher. The court dismissed the case due to lack of the original
evidence. The plaintiff failed to deliver the video-recording of that particular program upon
the request. Even though the broadcaster is not obliged to archive programs for more than
30 days, transcript of the program was not a valid material.
Both the court and the plaintiff confirmed that the document was a part of an online
archive. However, since the plaintiff did not download the file, it was deleted later on. It was
280 Comparative Media Law Practice – Slovakia

not disputed whether the story was broadcasted or not, the court cared about the visual part
of the content, or, more precisely, about the original or authentic evidence (not transcript).
Considering that the plaintiff failed to bring any witness who could testify in his favour, it
was impossible to find out more information. Consequently, the court issued the judgment
saying that even the relationship between the transcript and the plaintiff was not established.
Company name, along with other data, were not clearly identifiable, which lead to questioning
the very legitimacy of the plaintiff ’s accusation. It should be mentioned here similar and
highly relevant verdict of the SC on quality of recordings provided by a broadcaster. In
ruling of 3 Sž 16/2014 (24 February 2015), the SC dealt exactly with low quality of supplied
recordings. The Supreme Court argued that when the RVR has ‘undoubtedly proven’ that
broadcaster has fulfilled basic duty to send recording in time, and only later it has found out
that these recording are of insufficient quality and do not include content of real broadcast, it
is impossible to come to conclusion that broadcaster did not fulfil its legal duty.
The second court case was filed back in 2012 (50C/6/2012), and the verdict was issued in
2015 (14Co/415/2013). It referred to the same TV news channel, TA3, and a regional high
school in Trenčín. The Regional Court of Bratislava dismissed the case because of the lack of
formal legal requirements (outlined by the BA). The plaintiff missed the deadline and failed
to lodge the case to the court within fifteen days (he was late for about a week). This case
demonstrates both the plaintiff ’s and his lawyers’ professional incompetence. The plaintiff
could have used a special pre-paid postal service in order to check whether the document
was delivered to the defendant. The defendant would then send a reply to the high school,
stating the time and day when the request was received. However, the plaintiff tried to justify
himself by arguing that it was not possible to check whether or not did the defendant receive
the document.
The third case, which dates back to 2009, was ruled by the Regional (appellate) Court in 2015
(8Co/566/2013). The court case was, again, dismissed due to the lawyer’s unprofessionalism.
The plaintiff was not clear in specifying the defendant’s fault. The court called the proposal
fuzzy and not in line with the BA. In particular, the content of plaintiff ’s request which
referred to broadcasting the reply was different from the original proposal submitted to the
court. The plaintiff argued, and appellate court agreed in this, that one sentence could not
have made a difference. Then, the defendant as well as appellate court blamed the plaintiff
for demanding to broadcast content of reply based by and large on the civil law, and not the
BA. The verdict reads as follows:

Information is false if it does not correspond to the objective truth. Although the information
distorting the truth is not untrue, it is made in a form and in such contexts which can lead to
distortion of the information to be given to the public. In fact, the law thus can not be required
to correct untrue critical statements in the form of value judgments, the veracity of which (like
subjective opinion) is the subject of inquiry; in the context of protection against unjustified criticism,
only untrueness or misrepresentation can be assessed, which were the basis for critical opinions.
The institute of correction does not serve either for presentation of ideas based on a subjective
assessment of the person concerned, comments, and assessment of the situation from the perspective
of the person concerned or for providing moral satisfaction, eg, an excuse; the text of the correction
must be objective, based on verifiable facts and not on the subjective view of the person concerned
arising from its personal bias. At the same time, it must be impartial, not affecting the rights and
 X. Right of Reply 281

legitimate interests of other persons concerned by the matter. The purpose of the correction is to
replace false information by the correct facts, or misleading data by complete information, which
correspond to the truth, and thus to ensure quick and effective protection in relation to the person
concerned and in relation to the public (viewing or listening) for the right to truthful information.

Moreover,

the wording of the correction must primarily reflect the literal meaning of the broadcasted text,
since it is not possible to request correction of information which was not included in the post, or
was included, but with a different wording than in the text of correction.

The text of the correction proposed in the request for broadcasting a correction must
correspond to the wording of the correction suggested in the complaint because the plaintiff
may claim in the court proceedings only broadcasting of such a correction which was involved
in a request for broadcasting a correction, or in the attached text of correction within the
statutory limitation period. In the proceedings on imposing an obligation to broadcast free
correction, the plaintiff may only review truthfulness and completeness of the information
which claimed in the request for broadcasting a correction. Indication of contested data (false
or distorting the truth) is therefore important also for the subsequent definition of the subject
of court proceedings for broadcasting a correction.
In the context of that, however, the Court of Appeal, unlike the Court of First Instance,
hold the opinion that only deletion of apology (in the form of a single sentence) in the
plea (compared to the text of the proposal of the correction in the request for broadcasting
a correction) does not constitute grounds to justify the rejection of the proposal to publish
correction. Apology, as a part of the wording of the correction, was in this case superfluous,
and the defendant could broadcast (upon fulfilment of other substantive conditions) the
correction without apology for which the plaintiff had no legal claim.
The fourth court case (19C/70/2012) originated in 2012 and finished in 2014. The case
was dismissed. The case concerned commercial JOJ TV. The broadcast story was about unfa-
ir practices of a bailiff. There were three reasons for dismissal of the case. First, the proposal
was not enforceable and it was applied in conflict with Section 21 of the BA, as it took
over the wording of the obligation to apologize to the plaintiff, as it represented a moral
satisfaction, which is not possible to adjudicate in the correction procedure. Second, the
present proposal deemed unenforceable from the reason mentioned above, and also because
it took a  formulation or corrected information that were not explicitly mentioned in the
coverage. Third, whereas it was not clear what execution was in question, ie, the execution
was not specified and concretized on the basis of which the television viewer could understand
what should be the essence of the correction, or what should be the reason for a correction.
The fifth case concerned again commercial TV JOJ (14C/133/2010). It originated in 2010,
finished in 2012. The case was dismissed. The case was about a former MP (sentenced to jail)
who was not satisfied how he was portrayed in the programme about criminals. The court
argued that the request for broadcasting a correction must contain specific facts, in which
lies the untrueness of the facts or distortion of the truth, and it must contain also a proposed
text of the corrections. The proposal for an initiation of proceedings contained the text of the
correction, from which the specific reason for the correction was not clear. It was the same in
282 Comparative Media Law Practice – Slovakia

this case, when the defendant was ordered to broadcast a correction only in general, grounded
in a finding that the defendant broadcast about him and his wife false information. However,
the plaintiff did not present any factual allegations, which he considered true compared
to the allegations broadcasted. This fact was finally admitted also by the plaintiff in the
proceedings. However, his reasoning that it was not his interest to have published about him
any information by TV JOJ (truthful, false, or misleading), and that people will remember
the information they hear and think about it, and thus the group of people who are familiar
with the given information will extend, legally did not stand according the court.
The sixth case (17C/111/2009) was the only case in which the Court accepted arguments
by the plaintiff. This case started in 2009, and finished in 2010. The case referred to the legal
dispute between the TV TA3 news channel and a non-profit organization.
In the law case (25C/178/2013), a private company requested that the Court issues a
preliminary ban on broadcasting the content of the TV Markíza related to the private
company. The proposal was dismissed. The Court was of the opinion that if the request for
interim measures is upheld, it would be contrary to the requirement of proportionality of
the interference through interim measures in the legal relations between the parties. The
proposal would excessively interfere with the defendant’s right to freedom of expression
which includes the right to freely disseminate information to the public. The fact that the
broadcast reports about the plaintiff did not create an entitlement to interim measures that
could be imposed on the defendant to refrain from broadcasting further coverages. The
plaintiff mentioned that it also lodged request to broadcast a reply, but it was not clear from
the document how this case proceeded further.
Very occasionally, we can watch on televisions some ‘replies’, but more often public
apologies. Sometimes these apologies are clearly marked as based on courts’ verdicts,
sometimes they seem to be voluntary initiative by broadcasters. In any case, in most if not
all cases these apologies seem to be cases based on civic law, ie, related to defamation and
libel. Our off-the-record sources suggest that major broadcasters try to deal with these cases
primarily out of the court, and are willing to pay some non-pecuniary damages rather than
to broadcast corrections or apologies. For comparison, there is an early research on the use of
the right to reply, noted in three major daily newspapers in Slovakia (based on Press Act).208
This research suggests that, firstly, the majority of requests to publish replies did not get
published due to formal reasons (eg, inadequate forms) and, secondly, all requests came from
public authorities or politicians, some law offices and celebrities. The author claims that, since
there were no common citizens, the law has failed in its original mission—to protect public
at large from the untrue information. Yet, common people usually do not appear in media,
and when they do, they often lack knowledge of their rights.
Later on, in 2011, the Press Act was modified. There were some liberal changes, and politicians
lost the right to ask for the right to reply. Some more strict formal-bureaucratic changes in
the Press Act consisted of the duty to provide evidence that the published information was
untrue. However, the right to correction in the BA has remained unchanged. It should be
also mentioned that, the Code of Ethics of Journalist speak about the issue of correction. The
Code is actually rather demanding in this respect as in Section III, it specifically demands

208 B Ondrášik, ‘Právo na opravu a na odpoveď. Ako sa využíva v slovenských denníkoch od prijatia nového
tlačového zákona’ http://www.hovorca.sk/menu/uvod/news_list/actual/news/pravo-na-opravu-a-na-odpoved/.
 X. Right of Reply 283

that a journalist should correct his or her mistakes, even without any call for such action,
whether it comes from a side of any part of the story or of the editorial office.209
An interesting case study produced by the Press Council in 2013, should be mentioned.
The Press Council discussed an issue of the right to reply related to advertisement. The issue
was whether a person has the right to reply when the controversial text is published in a form
of a paid advertisement. The Press Council has found that this issue has not been solved either
in theory or in practice. The Council argued that legal arguments allowing the publisher to
reject the request to publish the correction or the reply are defined in Sections 7 and 8 of
the Press Act. This list of choices is fixed, meaning that it is legally impossible to expand
this list. On the one hand, this list of choices does not mention data published as a part of
advertising. On the other hand, according to the Section 5(3), ‘periodical press publisher
does not bear any responsibility for truthfulness of information published in the correction,
reply, additional announcement, advertisement, as well as in the misleading or comparative
adds.’ These exemptions do not refer to the published advertisements in which the periodical
press promotes their own people, activities, services, or products.
Thus, the Press Council reviewed its own previous similar verdicts (eg, 14/2013), and came
to a conclusion that, in the case of advertisements, there is a duty to publish the reply as a
correction. The Council defended its position on the grounds that the publisher (that can reject
an advertisement) contributes to the breach of the third person rights, when it disseminates
the advertisement. Finally, the Press Council argued that, if the lawmaker would prefer to
exclude such options from the list, it would have to include that case among exemptions.
The right to reply or to correction do not correlate with such activity (refer to Sections 7
and  8). Although the Press Council cannot deal with issues related to electronic / digital
media, this verdict is rather interesting because it may have further regulatory consequences,
should there be similar (legal-ethical) controversies in electronic / digital media regulations
(and especially online media which are by and large in self-regulatory vacuum except ethical
aspects of advertisements) in the future.

A. Analytical Summary

As mentioned above, this legal instrument has a very unique position in our study since it
has not been dealt via administrative court (Senates) but via civil courts, although still using
the BA. In other words, neither the RVR nor the Administrative Law Senates of the SC dealt
with this type of cases. Furthermore, relatively low number of court cases allows us to make
only tentative conclusions with regard to right to reply.
First, we can see that this right is actually called as right to correction although it has by
and large identical meaning as in the AVMSD.
Second, the low number of such court cases indicates a bit odd situation, considering that
television and radio broadcasts are rather popular and thus possibly controversial. We have
suggested that broadcasters try to deal with these demands out of the court.
Third, the court cases transcripts clearly show that lawyers commonly fail to act in line with
the rather strict and precise procedural rules set by the BA, thus bring these cases quite often

209 http://trsr.sk/dokumenty/eticky-kodex-novinara-uinny-od-1-1-2011.
284 Comparative Media Law Practice – Slovakia

to failure before the court. This is actually similarly dire situation with initial application of
right to reply or correction according to the Press Act by (quite many incompetent) lawyers.
Fourth, the case law puts both the RVR and plaintiffs into rather difficult situation with
respect to providing evidence. Evidence must include original recording. This means that the
RVR has to check all submitted recordings in due time (de facto immediately after delivery),
otherwise it may end up with evidence which may not be usable before the court. Similarly,
natural and legal persons must assure to record contested broadcast on their own.
Fifth, it seems that the current Act on Election Campaign may bring serious legal
constitutional challenges with respect to right to reply related to election campaigns. The
case law of the CC allows that only really serious or repository breach of law dealing with
elections can be turned to the CC. In addition, this really serious or repository breach of the
constitution must have direct consequence on the results of the elections, and this claim must
be supported by the facts. One can wonder how all these legal conditions can be fulfilled
and proven, and how fair election campaign can be guaranteed under these rather strict legal
conditions.
Sixth, although the Code of Ethics of Journalist speaks of the issue of correction very
clearly, apparently no one referred to this instrument before the court. We do not know
whether any television accepted these ethical guidelines in off-court dealing with such
request, but this seems to be unlikely.
Seventh, we could see that this issue is really challenging. This could be seen in reversing
the Press Council’s own previous decisions in the case of advertisements which resulted in
morally binding verdict that there is a duty to publish the reply—correction for print media.

XI. Protection of Minors

Protection of minors has become one of the most important regulatory issues in Slovakia.
Just during the first half of 2015, the RVR issued in this regard fines in total 67,665 euro.
Almost all fines—with a minor fine given to a local broadcaster—were shared by two major
television networks (chains) of broadcasters, Markíza-Slovakia, spol. s r.o. (Markíza, Doma,
and Dajto) and MAC TV, s.r.o. (JOJ, PLUS, and WAU).210 This seems to be a general and
logical recent trend—almost all fines in this regard were also issued to two major television
networks in 2014, too. Similarly, a study of Central European Regulatory Forum (CERF)
argues that since the founding of CERF, perhaps the most recurring theme at their annual
meetings has been protection of minors from harmful media content.211
Protection of minors proved to be more or less regular but challenging business of the
media regulator in Slovakia. Initially, in part, this was the result of some vague terms related
either to protection of minors, such as obscenity or in general, such as ‘display’. In part,
this was also the result of lack of experience with new regulation also known as labelling
system. This JSO regulation (based on the Decree of the Ministry of Culture 589/2007), as

210 http://www.webnoviny.sk/slovensko/clanok/977352-rada-pokutovala-televizie-maloletych-nechrania-
dostatocne/.
211 CERF, ‘Comparative Study on the Protection of Minors in Electronic Media in the CERF Countries’
Draft, 16 November 2015, 2.
 XI. Protection of Minors 285

it is mentioned above, specifies age categories which set viewing limitations for broadcasters,
multimedia products, audiovisual works on demand and audiovisual works (eg, movies in
cinemas) for 7, 12, 15 and 18 years. It also includes listening restrictions for 15 and 18 years,
valid for radio broadcasting or recorded programmes. A specific programme can be ‘correctly’
classified according to JSO and subsequently referred to only under one category of age
appropriateness, given the occurrence of the assessment criteria (8 Sž 16/2010). JSO was tes-
ted already at the beginning by fifty volunteers.212 Nevertheless, especially JSO causes a lot of
problems which can be seen in its inconsistent assessment by various administrative senates of
the SC. Slovak regulatory system applies only two of three possible ways of informing about
the unsuitability of programmes, ie, graphic symbol in the case of television programmes,
and warning before radio broadcasts. It does not use warning before the programme in the
case of television programmes.
This issue is of EU-wide importance too. On 15 December 15 2003, the European
Commission adopted a communication on the future of European regulatory audiovisual
policy in which it stressed that the regulatory policy in that sector has to safeguard certain
public interests, such as cultural diversity, the right to information, media pluralism, consumer
protection, and the protection of minors. Enhancing public awareness and media literacy was
also included. In general, there are two systems of protection of minors. The first system is
focused on users own initiative, the second one is contextually based (content on the screen).
There are some systems of protection of minors used for online services—‘pull’ services of
the Internet or telecom providers, and ‘push’ services for terrestrial / cable / satellite television
broadcasts).
The BA defines (Section 20) that a broadcaster is obliged to ensure that programmes or
other elements of the programme service which can impair the physical, mental, or moral
development of minors, especially such that contain pornography or coarse unjustified violence,
are not broadcast. The depiction of unjustified violence for the purposes of this law is the
spreading of reports, verbal expressions or images where the violent content is unnecessarily
in the foreground. All elements of the programme service which could endanger the physical,
mental, or moral development of minors, or impair their mental health or emotional state,
must not be broadcast between 6 am and 10 pm. When broadcasting individual programmes,
the broadcaster and the television programme distributor are obliged to take into account
certain elements, such as their viewers’ age.
Interestingly, the on-demand audiovisual services have to ensure that, if the service endangers
the physical, psychological, or moral development of minors (especially pornography or brutal,
unjustified violence), it should not be accessible to minors under normal circumstances. It
is questionable how to fulfil this condition. On-demand audiovisual media service also has
some specific and softer regulations. There is no general ban on broadcasting pornography
(Section 19(1)g of the BA), just a ban ‘to show pornography or pornography which includes
pathological sexual practices to a child.’ On the basis of the program classification according
to age appropriateness, the broadcaster of a television programme service, the IPTV or on-
demand audiovisual media service provider is obliged to form and follow a unified system.
The system consists of marking programmes addressed to parents and tutors of minors,
which informs on the appropriateness of programmes for 7, 12, and 18 year age groups.

212 N Slavíková at Media and Protection of Minors Seminar (n 2).

286 Comparative Media Law Practice – Slovakia

However, in the case of on-demand audiovisual media service, this obligation is restricted
to the classification and marking of programs in the program catalogue only. There were
rare cases when this issue became a subject to administrative procedure before the RVR, too.
For example, in the case of www.metoo.sk and its programme Beat It: Michadelik a Polemic
(29 May 2012), there was a complaint that there were vulgarisms broadcast. However, the
RVR initiated administrative procedure based on possible breach of Section 20(4) of the
BA—ie, the programme was not labelled in catalogue according to the JSO. Similarly, the
television archive which did not have labelled videos from reality show on website www.joj.
sk, according to JSO, was sanctioned by the RVR in 2012.
Television programme distributor shall also be obliged to enforce the unified system of
marking programmes in the programme offer, through its own broadcast. The distributor is
also obligated to enforce the unified system in the program summary, published in the periodic
press and other media. The previous three provisions do not apply to the local broadcasting
of a television programme service, unless it is part of a program network. Programmes are
assessed on contextual analysis of an individual assessment criterion. In all of the above
mentioned cases, each part of the programme should be assessed separately. However, there
are exceptions referring to works produced exclusively for educational purposes.
All programmes which are not suitable for children under the age of 18 must be broadcasted
only between 10 pm and 6 am. All programmes which are not suitable for children under the
age of 15, must be broadcasted only between 8 pm and 6 am. It is not allowed to broadcast
programmes for age categories 15–18 before, during, and after broadcasting for age groups
up to 12 years. Based on the CERF Report, we can present a simpler summary of categories
used for protection of minors in Slovakia:213
– suitable for minors of all age groups;
– unsuitable for minors under the age of 7;
– unsuitable for minors under the age of 12;
– unsuitable for minors under the age of 15;
– unsuitable and restricted for minors under the age of 18
There are also categories of suitability which are used for programmes produced exclusively
for upbringing and educational purposes:
– suitable for minors under the age of 7;
– suitable for minors over the age of 7;
– suitable for minors over the age of 12;
– suitable for minors over the age of 15.
There is also a special category of programmes suitable for minors under the age of 12,
produced and designed exclusively for the minors under the age of 12.
The Decree of the Ministry of Culture which is used for labelling these categories (JSO)
is adequately rather detailed—it has almost 3,000 words. Interestingly, it is not based on
the BA but more broadly, on the Act on audiovisual, aural recordings and multimedia
works (343/2007 Z. z.). Under Section 1(1) of the JSO, these components of the television
programme service are classified as inappropriate and restricted for minors under 18 if they
contain verbal aggressiveness, profane language, obscene expressions or gestures.
According to the Article 1(5) of the Decree 589/2007 Coll. of the Ministry of Culture, the

213 CERF, Comparative Study (n 211) 8.

 XI. Protection of Minors 287

RVR is obliged, in addition to observation if the programme does not contain inappropriate
content, to consider the content of the work in terms of:
– contextual occurrence of inappropriateness and inadmissibility;
– ways and forms of processing or depicting of the individual evaluation criteria in terms
of the nature and type of work and its artistic and moral message;
– intensity and frequency of inappropriate and inadmissible elements in the work.
In determining the amount of the sanction, the RVR takes into account mainly the seriousness
of the administrative offense, the scope and impact of broadcasting, the degree of fault,
and the consequences of violation. The criteria defining inappropriate contents are drawn
quite broadly, while according to other provisions of the Decree 589/2007 Coll. it must
also take into account other matters, eg, the manner and form of processing or depicting
of inappropriate contents, their intensity, frequency or context occurrence in the work, etc.
In this context, it is useful to compare general criteria for sanctions. According to Section
64(3) of the BA, the RVR will determine the fine according to the seriousness of the matter,
the manner, duration and consequences of breach of duty, the degree of culpability with
regard to the scope and impact of broadcasts, the provision of on-demand audiovisual media
services and retransmission, obtained unjust enrichment, and sanctions that already have
been imposed by a self-regulatory body for the matters covered by this law within its own
self-regulatory system. According to Section 67(3)c of the BA, the RVR shall impose a fine
on the broadcaster of a television programme service, except Internet broadcaster, from 663
to 66,387 euro and the broadcaster of a radio programme service from 99 to 19,916 euro if it
fails to classify and label programmes or other components of the programme service (Section
20(4)) or to provide a time inclusion of programmes or other components of programme
services in line with the conditions stipulated by special regulations (Section 20(5)).
According to Section 67(5) of the BA, broadcasters of the television programme services
are imposed a sanction—a fine ranging from 3,319 to 165,969 euro—for breaching the laws
governing substantively different obligations, and, by the BA, protecting a number of diverse
interests. There is no doubt that the interests protected by Section 19 of the BA are of great
importance for the society. These interests include a provision that mental suffering of minors
is not displayed in an improper form.
Although the RVR seems to be rather strict in protection of minors, especially in connection
with sexual content (the CERF Study suggests that Slovakia has the most comprehensive
rules with respect to classification criteria of sexual content among eight Central and South
European countries),214 it does not mean that it always uses sanctioning powers. For example,
on April 2010, the RVR received two complains against the movie Borat, broadcasted by TV
JOJ. Obscenity and vulgar speech in the film were claimed in these complaints. However,
the complaints were dismissed on the grounds that the RVR found that these obscenity and
vulgar speeches were clearly marked as not suitable for minors under the age of 15.
Already the first series of reality shows—VyVolení, TV Markíza, and Big Brother, broadcast
by TV JOJ became rather strictly fined in 2005. Fines were 10,000 euro (for protection of
minors against vulgarism, sexual scenes). Even more interestingly, reporting on the same reality
show, Big Brother in the evening news was seen as breaking regulation on protection of minors,
as well as hidden advertising in a news item called Prvý vzťah (First Love Story) broadcasted

214 ibid, 30.

288 Comparative Media Law Practice – Slovakia

on 8 October 2005. The sanction in this case was initially about 65,000 euro.215 Indeed, the
RVR seem to reflect general uproar with respect to content reflected in reality shows among
publics. This can be seen at statistics—number of complaints received by the RVR and related
to reality shows. While in 2003 there were 63 complaints, in 2004 there were already 152,
while in 2005—when reality show appeared in broadcasting—this number jumped up to 574,
and in 2006, the number of complaints was 213.216 Nevertheless, the popularity of reality
shows continued in the next few years. So did the RVR continue to impose sanctions. For
example, the reality show Hotel Paradise broadcast in 2012 was fined for obscene speech and
sexual behaviour as a form of entertainment. The problem was—as in most cases related to
protection of minors—the age suitability. Children under the age of 18 were allowed to watch
the programs, which was suitable for adults only, according to the RVR.
Although the major issue is obviously related to television broadcasts, there were
occasionally cases when radio broadcasts breached obligations related to protection of minors
(and there were some additional cases when the publics believed this was the case, but it was
not the opinion of the RVR). For example, Radio Expres was under scrutiny of the RVR since
it broadcast song Rosana (17 July 2013) which was accused of vulgarism in English broadcast
before 10 pm. Some other complaints submitted by listeners in 2013, one complaint related
to Radio Expres and the song Another Love, and another complaint with respect to Fun
Radio, were not found problematic in this respect.
The Council for Broadcasting and Retransmission did not accept all complaints as
justified, as can be seen from the table below. It should be mentioned here that the RVR
does not differentiate in its annual reports between protection of minors and human dignity,
these topics are put in the same category. Therefore, we have attempted to detect and
differentiate these two different aspects from common category individually. Furthermore,
some complaints were categorised separately, under the section of follow-up monitoring of a
broadcaster. In other cases, the RVR did not accept the substance of the original complaint,
but after checking the programme, it found another breach of law which it sanctioned.
Obviously, some cases overlapped two reporting periods. Sometimes it was not clear
whether complaint touched upon human dignity and/or protection of minors (eg, suffering
of a child). Some complainers mentioned not just one case but more. Alternatively, some
complainers mentioned the same programme. The Council included here some cases which
were related to alleged libel and defamation cases—clearly not fitting into the protection
of human dignity or protection of minors. There also is clear and huge difference between
numbers of complaints mentioned above in the conference report by the RVR and in the
table below. This difference can also be partially explained by informal and imprecise ways
the citizens expressed their dissatisfaction with programmes. Therefore, our table should be
seen as providing general picture and trend rather than giving mathematically absolutely
correct data.

215 http://realityshow.sme.sk/c/2442137/zalezi-nam-na-ochrane-maloletych-tvrdi-joj-aj-markiza.html.
216 http://apkt.sk/wp-content/uploads/event-camed07-camed_rvr.pdf.
 XI. Protection of Minors 289

Table 6. Complaints by public on protection of minors based on annual reports v total number of
complaints received
Accepted complaints Dismissed Others / comments Total number of
complaints complaints received

2010 5 (out of which 2 based on JSO) 17 1 still under revision

2011 5 (out of which 3 based on JSO) 25 2 still under revision 899

2012 8 (out of which 3 based on JSO) 52 2 still under revision 557

2013 3 (out of which 1 based on JSO) 13 7 still under revision 110

2014 3 (out of which 3 based on JSO) 17 4 still under revision 95

The data presented above in the table (compiled from the RVR annual reports) suggest
that only very limited number of complaints related to protection of minors have been
actually accepted by the RVR each year. Both data (mentioned in annual reports as well
as those provided by the RVR separately) suggest rapid decline of received total number of
complaints. This trend might suggest that the rules of the game are in place.
We have made compilation of sanctions issued by the RVR based on key categories. We
have omitted two rarely sanctioned categories; first, it was Section 20(2) which says that
provider of the AVMS must guarantee that if this service can potentially disturb physical,
psychical, or ethical development of minors, especially programmes that include pornography
or brutal, not justified violence, must not be accessible to minors under normal circumstance,
and second, it was Section 20(5) which deals with JSO presence in programme offer provided
to the media as well as in own broadcast.
Moreover, radio broadcast was also very rarely subject to sanctions under protection of
minors regulations. For example, radio Europa 2 was found breaching Section 20(5) in
2011 for broadcasting repeatedly a song. It should be mentioned here that as far as proper
categorisation of the age category and time slot for broadcast (Section 20(4)) is concerned, as
well as proper labelling system application according to JSO (Section 20(3)), the SC almost
in all cases confirmed decisions of the RVR.

Table 7. Sanctions based on protection of minors

Section 20(1) Section 20(3) (JSO) Section 20(4)
(not suitable for children) (age + time slot)

2010 0 3 13

2011 0 0 19

2012 0 5 19

2013 0 0 23

2014 1 8 12

The table above suggests (with caveats mentioned above) that the key focus of
viewers or rather the RVR (since it sometimes changes subject of its investigation based
on impetus from viewers) is (im)proper categorisation of the age category and time
slot allocated for broadcast for children and youth, followed by missing labelling of
programmes (JSO system). Interestingly, the issue of JSO seem to be appearing every
290 Comparative Media Law Practice – Slovakia

two years only. Now we turn to cases related to protection of minors that ended before
administrative senates of the SC.

A. Case Study

The Supreme Court in its decision 5 Sž 20/2010 repeatedly annulled the decision of the
RVR RP 44/2010 (14 September 2010, document RVR 307PLO/0-4353/2009, first
decision RP 3/2010, 12 January 2010, SC 3 Sž 6/2010), and referred the matter back to the
defender. The decision (Section 250l(2) Civil Procedural Order (OSP) in connection with
Section 250j(2)e of the OSP) was established on that the assessment of the administrative
offense was based on the fact that the RVR used the BA, which was not effective at the time
when the supposed breach of the law happened. In further proceedings it was therefore
an incumbent of the respondent to apply the BA, which was in force at the time when the
assessed action happened, ie, on 26 September 2009. Th is case is unique as it brought into
decision-making of the RVR two bad solutions, ie, either to keep the ban of retroactivity
of law and would use and old (no longer valid) law or would follow general administrative
rule and would utilise currently valid BA. In this case, the SC preferred different approach
than the RVR.
Nevertheless, beginning with initial legal development of this case (10 March 2010) is
interesting to our debate from various aspects. The broadcasted programme in 2009 was
seen as potentially threatening the moral development of minors. The sanction was (Section
64(1)d) a (lowest possible) fine of 3,320 euro for breaking Section 20(4) of the BA. In other
words, the programme was inappropriately labelled for minors. The amount of the fine was
specified both on ‘qualitative and quantitative criteria’. More specifically, the RVR argued
that although this programme fitted into the category of entertainment, it was wrongly
assumed that depiction of sexual behaviour as a form of entertainment is normal and can
be broadcast before 10 pm.
Since there was also a breach of Decree by the Ministry of Culture (589/2007 Z. z.), the
broadcaster also received additional sanction (Section 64(1)c), a fine (Section 67(3)c of the
BA) of 670 euro. In other words, we can see that there were actually issued two different
sanctions in a single case. This was recognised as a legal problem, as we shall see. Moreover,
this court case documents how much time a single case can take to conclude, as well as it
documents procedural mistakes of the RVR. The decision of the RVR was actually cancelled
twice—first time by the verdict 3 Sž6/2010-27 of the SC in May 2010 due to procedural
reasons (application of law not valid at that time). Second time the decision of the RVR was
RP 44/2010, issued in September 2010. This decision of the RVR was legally binding by the
previous legal opinion of the SC (Section 250r of the OSP).
The BA was amended by the Act No 498/2009 Coll. with the effect from 15 Decem-
ber 2009, however, the transitional provisions (Section 76) modified certain specific legal
institutes, but did not address the application of the BA as a whole. According to the SC,
although this general amendment of the method of application of the BA (effective from 15
December 2009) is missing in transitional provisions, in this case, rules of the procedure
were clearly given in the legal theory and defined by the valid constitutional principles
(see the similar verdict 8 Sž 28/2012 of 11 March 2012). Given the general rule, which
 XI. Protection of Minors 291

in case of a change or repeal of legislation and its replacement by a new law, determines
that the legal relationships which came into being and effectiveness based on the earlier
legislation, continue to be governed by the provisions being in force at the time in which
they arose, if not otherwise provided by the later law, the defendant, according to the SC,
decided correctly to impose a sanction according to the BA valid and effective at the time
of transmission of the programme.
In the opinion of the SC, it could not be overlooked that minors are the most susceptible
group to the acceptance of external influences and patterns in shaping their own individual
scale of values, especially from the media, and therefore it considers the programme and its
content not only inappropriate for minor children, but also able at least to disturb and disrupt
the emotional state of minors.
Furthermore, despite the fact that the decision of the SC in the case 3 Sž 6/2010 was
not in that matter explicit, the SC ‘did not remain indifferent’ to the serious infringement
made by the defendant in the decision, ie, that the imposition of two separate sanctions
for one and the same act (deed) for situations when it would breach two or more qualified
legal obligations in a single legal provision (single acting concurrence); in this case,
Sections 20(3)–20(4) of the BA were contradictory to the principles of administrative
punishment stemming from the recommendations of the Committee of Ministers of
the Council of Europe 91/1 of February 13, 1991 and constant case-law (see, eg, ZSP
69/2008). The legislator did not established specific rules in the text of BA for punishing
an entity that violates several obligations under the BA by one deed (ie, the imposition
of sanctions in the event of concurrence of administrative offenses). Thus then, according
to the constant case-law, there was no other choice than to use per analogiam legis, the
rules which address the issue of imposing sanctions for administrative offenses closest.
According to the SC, the closest analogical applicable arrangement was the provision
in Section 12(2) of the Act No 372/1990 Coll. on administrative off ences, under which
more offenses of the same offender present in one proceeding will be penalised by
a sanction under the provisions applicable to the strictest punishable offense. Th is meant
the application of the principle of absorption rather than the principle of totalisation.
It was more convenient for the offender, as the principle of totalisation would impose a
penalty for each offense separately.
However, Kukliš argues (in line with discussion in part of the rules of procedures) that
this omission in the BA could actually mean that the law-maker really wanted to punish
a broadcaster individually for each specified delict (ie, effectively twice for two different
breaches).217 This could be justified by different status of legal subjects (broadcasters or
providers of specified online services) which are not so much threatened by higher financial
sanctions. Be that as it may, according to the SC (which did not deal sufficiently with these
legal aspects in its verdict), the most important substantive legal consequence of concurrence
is that more offenses of the same offender are penalised under the provisions applicable to
the strictest punishable offense, so the applicable law does not support imposing two or more
penalties for one deed.
However, as the complainant in this respect did not raise an objection, the SC dealt with
this unlawfulness, which was based on the fact that the administrative authority ‘uno actu’

217 Kukliš, ‘Analógia v správnom trestaní’ (n 65) 463.

292 Comparative Media Law Practice – Slovakia

imposed two penalties for two violations of the law to the same subject, although, according
to the absorption principle, it should have imposed only one penalty with higher rate with
regard to the follow-respondent in this as in other similar cases; with regard to the further
respondent’s steps in this and other similar cases.
Yet Kukliš argued that the aim of absorption principle is to eliminate excessive
punishments.218 In this particular case, there was no such situation. The final fine (after
dealing with appeal and the SC verdict) in this case was exactly the same as it was decided
originally by the RVR. Moreover, the SC could make fine lower, and thus there would be no
problem with absorption principle.
Although the SC accepted that it was not its task to replace grounds of appeal nor to seek
defects in the decision and procedure of the administrative authority, based on the above
mentioned facts, however, the SC argued that it could not disregard the lack of justification
for the amount of the sanctions imposed, since, as it was clear from the justification of
the contested decision, the defendant ‘justified’ the fine by quoting the relevant statutory
provisions of the BA.219 In the opinion of the SC, such ‘justification’ had to be regarded as
unreviewable, while the SC could not accept the argument of the defendant presented at
the hearing that the fine was imposed on the low end, and it was not possible to impose a
lower fine, and therefore it did not have to be further substantiated. The Supreme Court did
not ignore that pursuant to Section 67(5)c of the BA, the lowest amount of the fine was 663
euro, and according to Section 67(5)d of the Act, 3,319 euro, and the defendant imposed a
fine of 670 and 3,320 euro. Therefore, the argument of the defendant on the impossibility of
imposing a lower fine had no basis in law, and it was also not possible to disregard insufficient
reasoning about the sum of the fine in order to determine whether the plaintiff breached the
provisions of Sections 20(3)–20(4) of the BA in repeated sanctions.
Moreover, the decision did not show how the administrative authority coped up with the
criteria of imposing a penalty, therefore the SC considered the fine not justified. Thus, the SC,
despite inadequate grounds of the appeal provided by the plaintiff, had to repeal the decision
of the defender under Section 250q(2) of the OSP, with reference to the Section 250j(3) of the
OSP in conjunction with Section 250l(2) of the OSP, since the decision was unreviewable in
this section for the lack of reasons and referred the matter back to the defendant for further
proceedings. In conclusion, the SC highlighted its finding based on the enclosed record, that
the (rock music) video clip which was broadcast in the programme, and considered by the
RVR as of promiscuity, did not present such a behaviour.

i. Case Study 1 (3 Sž 6/2011 SC, Decision RP 56/2010,

21 December 2010, fine 7,000 euro, justified)

On 23 July 2010, at about 8:40 am, the service provider broadcasted the programme
Instructions for the murder that was labelled as inappropriate for minors under the age of
12, whereby the plaintiff failed to apply correctly a uniform labelling system. The law
was violated by the mere fact that the programme Instructions for the murder was labelled

218 ibid, 464.

219 Sections 64(2) and 64(3), 67(5)c and 67(5)d.
 XI. Protection of Minors 293

under JSO as inappropriate for minors under 12. The plaintiff was imposed the sanction
under Section 64(1)d of the BA—a fi ne determined in accordance with Section 67(3)c
of the BA.
The story was based on reading chapters of the book Th e Assassin. It is a book which
describes the instructions on how to successfully proceed with committing a murder. The
content of this book will become a subject of dispute, since, based on the steps described
in it, actual murders of three people were committed. At the end of the programme,
the publisher of the book pays the victims’ families substantial fi nancial compensation
without any decision of the jury, and, at the same time, withdraws all copies of the book
from sale.
The Council for Broadcasting and Retransmission based its decision on the arguments
that the content and situations presented in the programme were not common in everyday
life. Presenting a detailed guidance on how to proceed in the commission of a murder
could not be considered as a standard content presented in the media. In the presented
program, indeed, the instructions were read from the book, which became the subject of a
dispute concerning the interpretation of the right to freedom of expression. The publisher
at the end of the programme admitted their guilt, however, the context in which the scenes
with inappropriate content were broadcast was so complicated that a minor spectator (12–
15 years old) could not understand the whole context of the programme. The Council
came to the conclusion that the programme contained scenes that met the criteria classified
under the unified labelling system JSO as inappropriate for the age group up to 15 years
(display of physical aggression and related acts of violence ending in death—murder of
three persons by an assassin).
There was an interesting legal dispute about what should be understood under term ‘to
make visible / display’ (zobraziť ). The BA does not define directly what it understands by
‘improper display format’. The plaintiff argued that the legislation is aimed at protecting
minors from viewing undesirable contents in broadcasting; in view of the fact that there was
no undesirable display, the plaintiff considered the disputed decision to be based on incorrect
assessment of the matter.
The defendant RVR argued that the content and situations presented in the programme
were not common in everyday life. Presenting a detailed guidance on how to proceed in
the commission of a murder cannot be considered as a standard content presented in the
media. The context in which the scenes with inappropriate content were broadcast was so
complicated that a minor spectator (12–15 years) did not have to understand the whole
context of the programme. The Council for Broadcasting and Retransmission came to the
conclusion that the programme contained scenes that meet the criteria classified under the
JSO, as inappropriate for the age group up to 15 years (display of physical aggression and
related acts of violence ending in death—murder of three persons by an assassin).
The defendant RVR argued that the above-mentioned specified criterion of JSO is aimed
at ‘display’, and while in the programme the controversial scenes included predominantly a
spoken word—reading from the book The Assassin, this was accompanied by pictures which
represented the read content, in which there were also images of physical aggression and
related acts of violence ending in death. So, according to plaintiff, it remained partially
unclear whether in television broadcast one can consider only aural aspects of controversial
content of this type.
294 Comparative Media Law Practice – Slovakia

Another interesting aspect of this legal debate concerned the fact, according to the plaintiff,
that the primary idea of the broadcast content was the question of the absoluteness of the
right to information. The plaintiff argued that it was socially accepted that minors above 12
years are familiarised with this issue, as it happens in teaching in schools.
The Council for Broadcasting and Retransmission argued that, in this case, the
frequency of inappropriate content was not so high to justify the labelling of the program
as inappropriate and inaccessible to minors under 18. However, the age group of minors
of 15 years, in the opinion of the RVR, is capable to perceive the moral message and the
essence of the programme, which is the fact that the right to freedom of speech should
have its limits, which, in order to protect the right to life should not be exceeded. It was a
bit bizarre that defendant argued here with the First Amendment of the US Constitution.
If at all, it should perhaps use the case law of the ECtHR. Finally, the SC debated also
whether it was necessary and/or useful to consider the programme suitability as a whole
or its specific parts.
The defendant argued that it was necessary to assess the program Instructions for the murder
from the point of view of proper implementation of the JSO as a whole, ie, the single scenes
containing unsuitable content in the context of the whole programme, its character and
content. The defendant’s argument was that determining the specific part of the program,
which is contrary to the provisions of the Decree No 589/2007 Coll. directly in the statement
of the decision would be incomplete and inaccurate, and such taking out the inappropriate
content of the context or fulfilling the criteria for each category of impropriety would be
contrary to the purpose of the Decree, and cause incompleteness and inaccuracy of the
statement. Moreover, the defendant argued, it was obvious that for the purpose of a reliable
assessment of the scenes with the content mentioned above, it was necessary to see these
scenes in the context of the whole programme. Furthermore, it was clear that the arguments
that the RVR expressed in a contested decision were based on seeing the recorded broadcasts
of the programme. In particular, the most fundamental issue that justified labelling of the
programme as inappropriate for minors under 15 years in line with JSO was the fact, that the
programme contained a scene in which there were three persons murdered by an assassin, one
of which was a child lying in the bed, connected to devices that ensured his vital functions
and that kept him alive.
Nevertheless, the RVR argued that in the course of the administrative procedure,
clarification of the facts was done, which was mentioned in the transcript / description of
facts on the ground that the RVR, in a detailed re-examination of the programme found
small, insignificant irregularities in terms of possible violation of Section 20(4) of the BA.
Justification of the contested decision on the pages 7–12 described in details which specific
scenes in the content, manner and form of processing, while taking into account the context
in which they were broadcasted, met the criteria to justify the labelling of the program as
inappropriate for minors under 15 years. In support of its arguments, the RVR referred
to the judgments SC 5 Sž 17/2010 of 10 March 2011, 8 Sž 8/2010 of 20 October 2010, 2
Sž 8/2010, 5 Sž 8/2010, 4 Sž 10/2010, and 5 Sž 17/2010. In the view of the SC, pursuant
to Section 1(2)a of the Decree, television programmes that contain images of physical
aggression and related acts of violence ending in death or serious consequences, the details
of the consequences of violent acts are classified as inappropriate and restricted for minors
under the age of 15.
 XI. Protection of Minors 295

The discussion about the content of the decision of the media regulator was important.
Although the cited provision did not state explicitly that the operative part of the decision
must contain the objective, time, and place of the act on which the administrative offense
is based, there was no question that only the operative part of an administrative decision
was able to affect the rights and obligations of the parties, and only it could gain legal force.
A correctly worded statement was therefore an irreplaceable part of the decision; only the
operative part indicates whether and what obligations are imposed; only by comparing the
operative part it is possible to presume the existence of a barrier in the decision; exclusion
of barriers lis pendens, double punishment for the same act; it is important to determine
the extent of substantiation, as well as to ensure the proper rights to defence; only the
operative part of the decision and not the justification may be enforceable by an execution,
etc. For these reasons, the definition of the subject of the matter is included in the operative
part of the decision on an administrative offense, which is based on the specification of
an administrative offense in such a way that the sanctioned act cannot be interchangeable
with other acts.

ii. Case Study 2 (8 Sž 8/2010, 20 October 2010, RP 07/2010 of 9 February 2010,

Changed the Part of the Operative Part, the Plaintiff was Obliged to Pay a Fine 10,000
euro, ie, the Half of the Former Sum)

The issue was again appropriateness of marking of a programme. The Council for Broadcasting
and Retransmission concluded that adequate indication of the programme in TV Markíza
would be ‘inappropriate for minors under the age of 15.’ Expressions and statements that
the programme of 14 September 2009 CS Superstar contained (eg, ‘He has no balls crappy,
what’s your problem’, ‘In does not matter, dog shit on it’, ‘I like that you did not fuck out
of it’, ‘But he is fifteen years old. Maybe once he will fuck’), were, in the view of the RVR,
not the standard slang language but vulgarisms. However, the RVR took into account the
fact that they were not the harshest vulgarisms; therefore, the RVR considered as adequate
indication the pictogram ‘not suitable for minors under the age of 15.’ The Council shared
the arguments of the party that the occurrence of vulgarisms was not dominant. However,
it took into account the fact that the jury members of the contest used the expressions also
in communication with minors, and that were presented by real persons that were popular
and known from the media. In effect, minors often consider them to be their idols, models,
or persons whose behaviour they tend to imitate, what constitutes an increased risk for
threatening the moral development of minors, concluded the RVR.
Taking into account the fact that the broadcaster infringed the provisions of Section 20(4)
of the BA in the past, the RVR imposed the plaintiff a penalty (fine) for this violation of
law and in determining its amount it took into account, in particular, the seriousness of
the administrative offense (the programme was broadcast in the prime time, and the vulgar
language justifies classification of the programme as inappropriate for minors under 15; the
vulgar statements were presented by public figures, which—as mentioned—may lead to
the acquisition of such a behavior by minors); the scope and impact of broadcasting (the
plaintiff was a multiregional broadcaster); the degree of offense (objective liability for an
administrative offense, while the participant was already in breach of the provisions of the
296 Comparative Media Law Practice – Slovakia

law sanctioned, moreover, it was a programme that has been edited in advance, so it was
possible to consider the selection of images and information presented).

iii. Case Study 3 (28 September 2010, 5 Sž 8/2010, verdict was confirmed)

The case concerned the broadcasting of the programme The Long weekend, and its labelling
as a programme suitable for minors under the age of 15, with final fine of 1,500 euro. The
programme was broadcast on 13 September 2009 at 9.30 pm. According to both the RVR
and the SC, it was indeed inappropriate for minors under the age of 15, showing sexual
behaviour in the form of entertainment, vulgar language, obscene gestures or expressions
that come to the fore, which were intended exclusively for adults because of the intensity of
inappropriate scenes and expressions, as well as the moral message of the programme.
In this regard, the defendant RVR assessed the scenes in question—sexual behaviour,
vulgar language, obscene expressions or gestures presented as a form of entertainment only
for adults (18+). Additionally, these scenes were occurring in the context where the search
of sexual experiences in order to enjoy as much as possible had a dominant role. the RVR
pointed out that minors are often unable to understand the contents of some of the scenes, in
this case, mainly the presentation of sexual behaviour, vulgar language, obscene scenes and
expression, or scenes with copulating animals; and this misunderstanding was likely to cause
a danger that minors adopt a model of behaviour without having understood and perceived
unsuitability of their subsequent adopted behaviour.
The Supreme Court, after reviewing the case file including the attached recording (Section
250q(1), second sentence of the OSP) concluded that the Long Weekend was dedicated
exclusively to adults because of the intensity of inappropriate scenes and expressions, as well
as the moral message of the programme, ie, it considered it to be absolutely inappropriate for
children and teenagers under 18, since—the SC counted—it recorded usage of vulgar words
25 times, while in 10 times the vulgar words were presented in the time before 10 pm.
The Supreme Court joined the choir arguing that minors are the most susceptible group
to the acceptance of external influences and patterns in shaping their own individual scale
of values, especially from the media. Therefore it considered the programme and its content
not only inappropriate for minor children, but also able at least to disturb and disrupt the
emotional state of minors.

iv. Case Study 4 (5 Sž 14/2011, RP 21/2011 of 24 May 2011, the Sanction was
Confirmed—Fine 20,000 euro)

The case concerned the program Blue of the Sky broadcast on 7 October 2009 at 8 pm. This
program (which is based on fulfilling secret wishes to selected, usually poor or handicapped
people) showed a minor, who was exposed to what was defined as psychological suffering. In
one scene of the programme, the moderator of the programme continued in conversation with
the minor about his suicide attempts even after it was clear that he was feeling uncomfortable.
The conversation ended in the emotional reaction of the minor when he burst into tears and
walked out of the room.
 XI. Protection of Minors 297

The Council for Broadcasting and Retransmission did not accept the argument that all
issues had been discussed with the mother of the minor before the programme. The Council
stated that the broadcaster is responsible for the content of the programme services and for
its compliance with the law, and this responsibility cannot be disposed of with the consent
of a legal guardian of the minor. The Council stated that the crucial was not the fact how
the minor perceived the programme as a whole, but whether there was a display of a minor
who was exposed to psychological suffering. Escalation of the situation by the moderator
towards the emotional reactions of the minor and its display in a slow motion supplemented
with suggestive music constituted the improper display format. In assessing whether this
was a psychological suffering, the defendant relied on the responses of the minor and the
processing of the programme.
In determining the penalty and the amount thereof, the RVR in its decision took into ac-
count the severity of the administrative offense, as despite the fact that the assessed program
was prepared in advance, the defendant broadcast the scene in a form that exposed the minor
to psychological distress using suggestive elements that highlighted the displayed mental
suffering of the minor while broadcasting the scene in question was in terms of the content
and the programme structure purposeless.
Interestingly, the previous decision in this case was annulled by the judgment of the SC
of 16 March 2011, 2 Sž 9/2010, and the case was referred back to the RVR for further
proceedings, because the RVR in its decision applied the legislation, which was not at the
time of the plaintiff ’s breach of duty in force and effect. It could have used the law only if
it was more favourable for the broadcaster. Such a  reason for the application of the later
legislation, however, did not imply from the contested decision. In line with views expressed
in the SC judgment, the RVR in the new decision applied to the assessment of the works of
the BA in force at the time when the facts had assessed.

v. Case Study 5 (6 Sž 5/2013, 19 March 2014,

RP 009/2013 of 29 January 2013, fine 3,319 euro, confirmed)

On 23 August 2012 at about 9.30 pm, the service provider broadcast the trailer of the reality
show The farmer is looking for a wife, which included the scenes of violence, for which the
RVR imposed a penalty of 3,319 euro. The trailer on the new series (ie, the first part) of the
programme was an edition of passages of the advertised programme. It did not include any
accompanying comments at the end of the trailer, just a text information on the programme
and performers was published. There was a debate about terminology—scenes displaying
violence, the scenes that capture aggressive behaviour of acting women to each other, and the
RVR assessed these as being contrary to the obligation of the broadcaster.
The Supreme Court argued that the concept of violence or violent scenes is quite broad,
and its (precise) legal definition is impossible or undesirable as its perception may change
in the course of time, the place of application of legal norms as well as (within) the society.
In other words, in the view of the SC, the concept of violence can be categorized as a so-
called undefined legal term. Yet among other issues, it can be concluded that term ‘violence’
has a broad philosophical, sociological, and legal dimension. The role of the administrative
authority in this case was thus to specify the general content and meaning of this term,
298 Comparative Media Law Practice – Slovakia

taking into account the specific circumstances of the case as well as the case merits of the
administrative offense.
In the view of the RVR, the scenes depicting aggressive and violent expressions of women
to each other met the concept of ‘scenes of violence’ within the meaning of the provision
Section 19(2) of the BA. Consequently, their inclusion in trailers constitutes the breach of
that provision. In the context of the administrative discretion, the RVR coped up with the
concept of violence, and in its interpretation, it took into account a legally protected interest
enshrined in the provision of Section 19(2) of the BA—mainly aim to protect the viewer
from an excessive and immediate confrontation with violent and other inappropriate content
presented in television broadcasting. The Council for Broadcasting and Retransmission
drew attention to the page 7 of its decision 4 6 Sž 5/2013 which shows that the defendant
based the definition of violence on professional sources (literature), which was quoted in the
justification of its decision. Thus, according to the RVR, the term violence must be, under
the provision of Section 19(2) of the BA, understood as any explicit, verbal, or physical attack
directed against the physical or moral integrity of another person, or thing that gives rise to
damages, or is likely to cause a risk of injury or other harm.
After evaluating the picture and sound elements of the trailers in question, the RVR
concluded that the scenes in which the women verbally harassed each other, and these attacks
were accompanied by physical attacks of women, were justly regarded as depicting violence.
Although these were short scenes, in the RVR’s opinion, they were a substantive and not
inconsiderable proportion of the trailers. These scenes were not fictional, acted scenes of a
dramatic programme, but the violent behaviour of real individuals.

vi. Case Study 6

We put these two cases together because they seem to tackle in essence identical issues (8 Sž
16/2010, RVR RP 26/2010, 22 June 2010, confirmed on 2 June 2011: fine in the amount
of 5,000 euro, on 11 January 2010; and 5 Sž 17/2010, 10 March 2010, RP 29/2010, 8 June
2010, confirms verdict. Redress No RP 29/2010 of 8 June 2010, the defendant RVR in
administrative procedure, No 120-PLO/0-1809/2010, fine of 5.000 euro).

a. First Case

The programme N. Z. was broadcast at about noon. Although it was labelled as unsuitable
for minors under 15, in the view of the RVR, it could have included a criterion for classifying
and labelling the program as inappropriate and inaccessible to minors under 18—for the
obscene expression and obscene gestures, which presented the abuse of inexperience, and
naivety of young girls to satisfy their own needs, or to strengthen the ‘reputation’ of deceivers,
or ‘monsters’ among students, in addition in the context, in which they were broadcast (per-
verse and immoral practices of the main characters).
Broadcaster argued that the RVR did not define what constitutes obscenity of the
broadcast content, and did not define obscenity as such, despite the fact that when taking
their decisions to define obscenity it had to proceed within the framework of administrative
 XI. Protection of Minors 299

discretion. In the view of the RVR, the concept of obscene expression is not a term with legal
or another consistent, universally accepted definition, therefore it is a so-called (legally) vague
term, and its interpretation is the responsibility of the administrative authority. The Supreme
Court argued that the objection of the broadcaster was legally irrelevant. Indeed obscenity in
general is typical of something indecent, lewd, offensive stud, immoral, and so on. For this
reason, it was not the duty of the defendant to give the definition of obscenity in its decision,
argued the SC.
Yet the SC did not react to the argument of the plaintiff about the labelling of the prog-
ram by a pictogram in other European countries (Sweden 7, Great Britain and Norway 15),
although the Slovak televisions broadcast the programme with the pictogram ‘15’. In the view
of the SC, the plaintiff ’s arguments in which it pointed out the labelling of the programme
by a pictogram on the age suitability in other EU countries was irrelevant. However, the
SC did not state why it was not relevant. The Council for Broadcasting and Retransmission
expressed itself in this respect. In the view of the RVR, the fact that the programme in
question was broadcast in the past, and with what label of age appropriateness, is irrelevant
in relation to the subject of (local) administrative proceedings. The Council considered as
substantial the fact that the defendant did not take into account this aspect of the programme
in the prior period within the administrative proceedings or at its meeting on discussing the
report on compliance with the obligations under the BA. Due to the limited capacity of the
defendant, it was clear that it could not consider all programmes broadcast by the entities
under its responsibility.
Determining the amount of the fine, the RVR took into account the fact that the plaintiff
had already been legitimately penalized several times in the past for a breach of that obligation,
and the amount of imposed sanctions as well. The Council also concluded that the intensity
of the evaluation criteria of inappropriateness was high, especially given the context in which
the expressions and scenes were broadcasted.

b. Second Case

On 10 January 2010 at noon, the plaintiff broadcast the programme Panenstvo na obtiaž,
which was labelled as inappropriate for the age group up to 12 years. The programme depicted
a situation of the main character who was one of the last virgins in the class. Loss of virginity
was the main motive of the programme. This theme was treated from the perspective of the
main characters of the programme, ie, adolescents attending the second grade of a secondary
school (about 16 years). The overall approach was considerably lightened and simplified, eg, an
advice of the main character’s female friends that she cannot lose virginity with her boyfriend,
because it would be embarrassing. Although the programme had a happy end, it cannot be
considered as having a clear positive moral message. The programme did not answer the
questions related to sexual activity of minors, especially for minors under the age of 15.
The programme included the scene in which the female character loses her virginity. The
scene showed the sexual act between the girl and her partner. The scene did not include any
images that would show genitals, rather provided a detailed view of the emotions that both
partners experienced before, during, and after the sexual act. Also, rendering the act itself
was real and credible, taking into account the age and experience of the actors. The Council
300 Comparative Media Law Practice – Slovakia

for Broadcasting and Retransmission therefore made a  conclusion that the nature of the
scene reflect the ambition of filmmakers to capture the particular emotions of both partners,
especially apparent nervousness and apprehension and the resulting ‘problems’ at the first
sexual intercourse, embarrassment during the sexual intercourse by the main protagonist in
the view of the fact that it was her first sexual experience, ‘orgasm’ of the partner, a surprise
about the ‘duration’ of the sexual intercourse, as well as the contradictory emotions of the
female partner after the act. The Council therefore concluded that the 12, 13, and 14-year
minors encounter the topic of sexuality in everyday life, but at this age, they are not able
to understand the complexity of this issue yet. The Council concluded that the method of
processing the main theme of the program was not suitable for minors under 15 years.
It is obvious that that scene was undoubtedly important for the story line of the programme,
its duration and in particular a detailed display of emotions of both partners, especially the
main character, answered this aim. The film was a Swedish and Norwegian co-production; in
Sweden, it was labelled with a pictogram ‘11’, and in Norway, it was marked as inappropriate
for minors under 15. In the view of the SC, the content of the programme was not only
improperly labelled for minors under 12 years, but it could send morally misleading the
message to minors. In the view of the SC, it cannot be neglected that minors are the most
susceptible group to the acceptance of external influences and patterns in shaping their own
individual values, especially from media. In effect, the SC argued that it could not accept the
argumentation of the applicant that the programme was labelled by a pictogram on the criteria
for age suitability in other EU Member States. However, it did not give the reason for this.

vii. Case Study 7 (8 Sž 15/2010, RP 21/2010, 11 May 2010, annuls and returns the
matter back for further proceedings)

On 26 December 2009 at about 8 pm and on 27 December 2009 at about 5 pm, TVM

broadcast the programme which was labelled as inappropriate for the age group up to 15
years, thereby committing an error of application of a uniform labelling system for which
it was fined 3,400 euro. When imposing the sanctions, the RVR took into account the fact
that, at the time of broadcasting of the programme, the TVM was sanctioned for breaching
the provisions of Section 20(4) of the BA (final decisions Nos RP 51/2007, a fine of 100,000
koruna (approx 3,000 euro); RP 62/2007, 100,000 koruna; RP 14/2008, 50,000 koruna;
RP 13/2008, 50,000 koruna). The Council for Broadcasting and Retransmission took into
account that the previous penalties have not fulfilled their precautionary and/or educational
purpose; therefore it considered the amount of the sanction fully justified.
The programme depicted the assistance of a grandmother during a male masturbation
and subsequent orgasm on her face; the hardest penis competition; bouncing of table-tennis
balls by a penis; a sexual act with a hint of sadomasochistic practices, etc. These scenes were
assessed as rather obscene expressions, which in any case are not part of the standard civilian
life of minors under 18. Therefore, the RVR came to the clear conclusion that the context
of obscene expressions was inappropriate for minors under 18 years, and the intensity of this
obscene expression was high.
An assessment of the legality of the decision which was based on the use of the implemented
regulation, the Decree of the Ministry of Culture No 589/2007 Coll. as amended on 1 January
 XI. Protection of Minors 301

2010, remained controversial. From 1 January 2010 it was amended by the Decree of the
Ministry of Culture No 541/2009 Coll., which had no transitional provisions.A comparison
of these legal texts confirmed that the revised text did not affect the obligations which this
regulation imposes on the applicant. The Supreme Court Senate has already issued a legal
opinion in a similar case, saying that application of the legislation in force at the time the
decision does not affect its legality. Yet at the hearing on 25 November 2010, the plaintiff, with
the reference to the provision of Section 250j(3) of the OSP, added an objection to the plea
saying that the operative part of the decision contained a reference to the provision of Section
67(10) of the BA, which, at the time of the decision, was not effective. The fact that it was not a
mistake in writing in this case is confirmed by the validity of this provision until 15 December
2009. A decision made on the basis of an ineffective regulation establishes a statutory ground
for revocation (Section 250j(3) in conjunction with Section 250l(2) of the OSP). Therefore, the
SC annulled the contested decision and returned the case for further proceedings. This case
thus again highlights importance attached to the operative part of the decision.
302 Comparative Media Law Practice – Slovakia

Table 8. Verdicts of the SC related to protection of minors

Judgment of the References to References to other References to international Decision
CC of Slovakia own rulings domestic courts (eg, CC) or foreign courts of the RVR
(CC) (ECtHR and others)

5 Sž 20/2010 3 Sž6/2010—used law in RP 44/2010

force at the time of breach cancels and returns back
of duty

8 Sž 16/2010 6 Sžo 55/2010, 1 June RP 26/2010

2010—inability to com- confi rms
ment on the subject of
administrative proceedings

3 Sž 6/2011 5 Sž 17/2010 10 March RP 56/2010

2011; 8 Sž 8/2010, 20 confi rms
October 2010; 2 Sž 8/2010;
5 Sž 8/2010; 4 Sž 10/2010,
and 5 Sž 17/2010—
assessment of the program
as a whole;
2 Sž 8/2010—omission
of facts that did not
and could not affect the
determination of the
amount of the fi ne, and
cannot therefore justify the
annulment of the decision

8 Sž 15/2010 3 Sž 6/2010-27— RP 21/2010

misapplication of cancels and returns back
legislation—retroactivity

8 Sž 8/2010 5 Sž 9/2009  22 September RP 07/2010

2009—lack of defi nition of changed only in part on
the offense; amount of fi ne to
3 Sž 4/2007—lack of 10,000 euro
defi nition of the offense;
this is a measure of the
ethical evaluation of the
facts

5 Sž 17/2010 6 Sžo 55/2010—the decision of the Municipal RP 29/2010

absence of a precise Court in Prague confi rms
description of the 7Ca/315/07—the absence
administrative offense; of a precise description of
6 Sžo 55/2010—the the administrative offense;
opportunity to comment the Municipal Court in
on the basis for the Prague, 8 Ca/297/2007-
decision; 4— exact description of
3 Sž 4/2007—competence the administrative offense
of the Council to assess the
content of the programme

3 Sž 6/2010 RP 3/2010
cancels and returns back

3 Sž 96/2008 5 Sž 89/2007—previous to RP 33/2008

this case cancels and returns back

5 Sž 8/2010 RP 09/2010
confi rms

6 Sž 7/2011 RP 06/2011
confi rms
 XI. Protection of Minors 303

5 Sž 14/2011 2 Sž 9/2010-25, 16 March RP 21/2011

2011—previous to this confi rms
case;
2 Sž 21/2010—the absence
of a precise description of
the administrative offense;
8 Sž 8/2010; 3 Sž 14/2008,
and 6 Sž 7/2010—excessive
sanction;
4 Sž 2/2010 of 24 Au-
gust 2010—a precise
description of the
administrative offense

5 Sž 27/2011 3 Sž 4/2007—the decision of the Supreme RP 84/2011

competence of the Council Administrative Court CR confi rms
to assess the content of the 8As 62/2005—the
programme; competence of the Council
5Sţ/66/98; 6Sţo/156/2007; to assess the content of the
3Sţ/60/2009; 4Sţ/2/2010; programme—assessment of
5Sţ/8/2010; 8Sţ/8/2010; the ethics is subjective
8Sţ/16/2010; 3Sţ/6/2011;
6Sţ/5/2011—sufficiently
precise formulation of the
deed in the decision

6 Sž 5/2013 IV. ÚS 324/2011-16—any RP 009/2013

public authority determines confi rms
the kind of legislation and its
interpretation in accordance
with the principle of the rule
of law

3 Sž 18/2013 4 Sž 101/01; 4 Sž 145/02— Decision of the Supreme RP 053/2013

application of a more Administrative Court CR confi rms
severe sanction is bound to No. 7As/57/2010-82—the
repeated breach of a legal duty of the RVR is to
obligation and not the get acquainted with any
identical act; evidence which forms the
3 Sž 2/2013—justification basis for an administrative
of a more severe sanction decision,
Decision of the Supreme
Administrative Court
CR No 6As/26/2010-101
of 3 April 2012 lack of
notification of breach of the
same duty in the past

B. Analytical Summary

In almost all cases that ended before the SC with respect to protection of minors, the issue at stake was
that the programme was inappropriately labelled for a particular category of minors. One can argue
that the average amount of fines imposed on broadcasters was initially relatively low— hundreds
or thousands euros. Yet it is also true that the RVR applies progressive level of fines, ie, increasingly
higher fines for the same broadcaster and in the case of more or less identical breach of the law.
Similarly to other areas, the issue of protection of minors seemed to be novelty to regulatory
and judicial bodies. This finding explains some procedural mistakes done by the RVR such as
that two different sanctions were in a single case, or that exceptionally the media regulator did
304 Comparative Media Law Practice – Slovakia

not cope up sufficiently with the criteria of imposing a penalty, or that there were problems with
interpretation of missing clause in transitional legal provisions (as it was attempted to use this
argument by a barrister of a broadcaster), or that there was omission by lawmaker of specific
rules for punishing an entity that violates several obligations under the BA by one deed.
It was an important opinion of the SC in which it supported the RVR that it was necessary
to consider the programme suitability as a whole and not only its specific parts. Probably the
most arguable verdict for viewer not familiar with this broadcast remains the Blue of the Sky
decision (5 Sž 14/2011). It is useful to repeat the key issue here: ‘Escalation of the situation by
the moderator towards the emotional reactions of the minor, and its display in a slow motion
supplemented with suggestive music constituted the improper display format.’ It is true that
this programme was based on escalating emotions. Yet this is nothing in itself unusual. At the
same time, this programme brought in many positive aspects to the participants (fulfilling
their dreams). Moreover, escalating emotions, if all parties agree, even among minors, may
not really be seen as an improper method. Finally, the sanction—20,000 euro—could also
be seen as inappropriately high, even considering that the media regulator took into account
previous breaches of the law by the broadcaster. In this case, the RVR issued a strong message
to all broadcasters about high protection given to minors used in emotionally laden and
commercially utilised situations. Moreover, it should be mentioned, the overall consensus
was that this was an appropriate sanction.
Finally, perhaps the most controversial issue seems to be not taking into consideration different
(usually more liberal) labelling in other countries by the Slovak media regulator as well as by
the SC. Two cases can be seen the most problematic in which the SC did not explain why this
argument was not relevant. It is true that countries in Europe have different level of tolerance,
and see differently various cultural issues, including sexual education or protection of minors.
This also was highlighted by the ECtHR. It is also true that, legally speaking, neither Slovak
courts nor media regulator can ignore local legislation (in this case, the JSO decree). Be that as it
may, an explanation on this issue (which actually came before the SC twice) should be provided
by the SC—at least for general public. Moreover, children seem to be children everywhere, and
foreign television broadcast is accessible either via satellite or cable or Internet everywhere in
the EU. Therefore, as it is put in the CERF Report,220 different labelling systems may dispatch
different and potentially conflicting regulatory signals, which may diminish the effectiveness of
each individual labelling system. Therefore, one can find in the CERF Report a reference to the
European Regulators Group for Audiovisual Media Services on protection of minors work,221 ie,
the draft Report on the protection of minors in a converged environment. This report conveys a
wide consensus among regulators about the need to ‘develop a set of universal content categories
at European level’. This is actually, also in the interest of the European Commission, which,
however, would prefer assessment based on individual countries. Another issue are the changing
viewing habits when it seems that minors prefer to watch television and video on the Internet.

220 CERF, Comparative Study (n 211) 2.

221 ibid, 3.
 About the Authors

Ondřej Moravec is attorney at law in Hradec Králové and Prague. His main specialization is
constitutional law and constitutional issues of tax law. He graduated from Faculty of Law, Masaryk
University Brno, in 2005. At the same university, he received his PhD degree in 2011. He wrote his
doctoral thesis on the legal aspects of new media. He is an external lecturer at Masaryk University
Brno as well, where he teaches media law and human rights and judicial review. Moravec is the
author of Media Law in Information Society (Prague, Leges, 2013) and about 30 articles particularly
on issues of media and constitutional law, published in the Czech Republic and in Slovakia. He is
regular speaker in constitutional law conferences in the Czech Republic.

Ľuboš Kukliš is Director of the Office of the Council for Broadcasting and Retransmission. He
obtained his PhD at Law Faculty of Comenius University in Bratislava. As a specialist in media and
administrative law, he is also active in writing; his recent books are Electronic Media Regulation in
Slovakia (Wolters Kluwer, 2015) and Slovak Broadcasting Act: A Commentary (Wolters Kluwer, 2016).

Ondrej Jurišta graduated from Faculty of Law, Pavol Jozef Šafárik University in Košice. From
2008 to 2010, he worked at the Ministry of Culture of Slovak Republic, Media Law and
Audiovision Unit; from 2010 to 2015, he worked for the Office of Public Defender of Rights of
the Slovak Republic. In 2014, he attended Human Rights Course at the International Summer
School in Oslo. He is currently studying in the LLM programme International Financial Law
at the University of Manchester. As an external co-worker of the School of Communication and
Media, he worked on research projects concerning media law, human rights, and judiciary issues.

András Koltay is an associate professor at Pázmány Péter Catholic University Faculty of Law
and Political Sciences in Budapest. He received LL.M. degree in public law at the University
College London in 2006, and PhD degree in law at the Pázmány Péter Catholic University
in 2008. He attended the human rights course of the International Institute of Human
Rights in Strasbourg in 2003. His principal research has been concerned with freedom of
speech, personality rights and media regulations. He is the author of more than 150 articles
in Hungarian and in foreign languages, and three monographs on comparative freedom of
speech (in English, Freedom of Speech: The Unreachable Mirage. Budapest, Wolters Kluwer,
2013). He was a speaker in more than 50 conferences in several countries. Since 2010, he has
been a member of the Hungarian Media Council.

Andrej Školkay is Research Director of School of Communication and Media in Bratislava.

He obtained his PhD in 2000 from Comenius University in Bratislava. He published widely
on media and politics, especially on political communication, and also on ethics and media
law, in Slovakia and abroad. His most recent book is Media Law in Slovakia (Kluwer, 2016).
He was leader of national resarch teams under FP7 Projects MEDIADEM (2010–2013) and
ANTICORRP (2013–2017), as well as Media Plurality Monitor (2015), and a member of the
Press Council of Slovakia in 2005–2008.