L E G A L OB S E R VAT I ONS

OF THE EUROPEAN AUDIOV ISUAL OBSERVATORY

The Promotion of Cultural Diversity

via New Media Technologies:
An Introduction to the Challenges
of Operationalisation
by Tarlach McGonagle

EDITORIAL

Sometimes it might be unavoidable to use catchall phrases when discussing

legislative programmes and policies. Perhaps more often than not, this is even
warranted inasmuch as it helps to unite discussants with very different backgrounds
and agendas. Catchall policy and catchall law-making risk, however, that people
stay united in theory but not in practice.

Cultural diversity is one of those terms that manage to accommodate different

meanings and varying concepts. In addition, the term cultural diversity is often
deployed together with other concepts as important as social tolerance, freedom
of expression and democracy. At the same time, it is held out in defence against
perceived threats from a global market and serves as justification for concrete
state action in support of the creative industry.

This IRIS plus presupposes that it is important to clarify potential meanings of

cultural diversity and arising concepts if we wish to experience cultural diversity
in the form of concrete results. The need for clarification becomes more pressing
with a view to technological advances which already by themselves, and all the
more in tandem with vague concepts, challenge existing legal frameworks.
This IRIS plus is a first and very useful step on a long way to go.

Strasbourg, May 2008

Susanne Nikoltchev
IRIS Coordinator
Head of the Department for Legal Information
European Audiovisual Observatory

IRIS plus is a supplement to IRIS, Legal Observations of the European Audiovisual Observatory, Issue 2008-6

76 ALLEE DE LA ROBERTSAU • F-67000 STRASBOURG

TEL. +33 (0)3 88 14 44 00 • FAX +33 (0)3 88 14 44 19
http://www.obs.coe.int
e-mail: [email protected]
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The Promotion of Cultural Diversity

via New Media Technologies:
An Introduction to the Challenges Tarlach McGonagle
Institute for Information Law (IViR)
of Operationalisation University of Amsterdam

Introduction develop their cultures, it is inaccurate to claim that cultural rights

are the preserve of minorities: dominant societal groups also have
Culture has been described as “an overworked concept with lit- very valid and vested interests in maintaining their cultures.8 It is
tle semantic precision”,1 and cultural rights as “the Cinderella of therefore more correct to speak of the enhanced value of cultural
the human rights family”.2 To continue in the same metaphorical rights for persons belonging to minorities than to claim exclusivity
vein, the objective of promoting cultural diversity could be consi- of relevance.
dered a jaded ideal, worn-out by unfulfilled ambition and under-
appreciation. Preambular provisions of treaties and non-binding Next to the UNESCO Declaration – with its specific focus on cul-
standard-setting texts routinely refer to the objective of promot- tural diversity – other more general international human rights
ing cultural diversity, but only intermittently attempt to prise instruments also contain occasional references to various rights
open the notion or provide for its concrete application. In recent associated with the enjoyment of culture, but without attempting
years, however, the substantive sections of a variety of normative to provide a comprehensive definition of the concept. For instance,
texts at European and international levels have begun to explore Article 27(1) of the Universal Declaration of Human Rights reads:
the content and scope of cultural diversity, as well as its relation- “Everyone has the right freely to participate in the cultural life of
ship with new media technologies. The purpose of this article is to the community, to enjoy the arts and to share in scientific
examine what cultural diversity actually entails; explain why it advancement and its benefits”.9 Pursuant to Article 27 of the Inter-
ought to be promoted, and assess the important role of new media national Covenant on Civil and Political Rights (ICCPR), persons
technologies in advancing that aim. As such, it seeks to engage belonging to ethnic, religious or linguistic minorities “shall not be
with the challenges of operationalising cultural diversity. denied the right” inter alia “to enjoy their own culture”. Article 15
of the International Covenant on Economic, Social and Cultural
Rights (ICESCR), formulates the right of everyone to participate in
I. Contextualisation: Theory and Practice cultural life, to benefit from scientific progress and its applications
and to enjoy intellectual property rights.10
Defining Culture and Cultural Rights
For present purposes, cultural rights will be understood as a
Culture is, as has already been suggested, a very nebulous con- cluster of rights, and as including distinct cultural rights as well
cept, which explains why international instruments rarely seek to as cultural dimensions to a range of other human rights.11 The
define its content or scope. One notable exception to this general exercise of cultural rights therefore entails the right to maintain
reluctance is the UNESCO Universal Declaration on Cultural Diver- and develop one’s cultural identity, lead particular lifestyles, par-
sity (2001),3 the Preamble of which reaffirms that culture should ticipate in cultural life and assemble, associate and organise for
be regarded as: cultural purposes. The right to participate in cultural life implies
the ability to access and exploit cultural heritage (including as
the set of distinctive spiritual, material, intellectual and emo- recorded in audiovisual formats). Cultural heritage has been
tional features of society or a social group, and that it encom- described as “a group of resources inherited from the past which
passes, in addition to art and literature, lifestyles, ways of people identify, independently of ownership, as a reflection and
living together, value systems, traditions and beliefs. expression of their constantly evolving values, beliefs, knowledge
and traditions. It includes all aspects of the environment resulting
Even if they are in short supply in international instruments, from the interaction between people and places through time”.12
attempted definitions of “culture” are important because they can
serve as a basis for defining and determining the scope of cultural
rights.4 In the past (again as already hinted in the Introduction, Defining Cultural Diversity
supra), cultural rights have suffered from relative neglect and their
development has proved somewhat stunted as a result. This rela- When examining the notion of cultural diversity, it is important
tive neglect can be attributed to a number of factors, all of which to avoid terminological entrapment. It is not sufficient to monitor
concern perceptions about the status of cultural rights. For exam- the frequency with which the precise term, “cultural diversity”,
ple, for as long as the view was entertained that a dichotomy appears in normative human rights texts at the international level.
existed between so-called first and second generations of human One must instead look beyond the term and ensure that terminolog-
rights, i.e., civil and political rights on the one hand and eco- ical variants and adjacent notions are also identified and examined.
nomic, social and cultural rights on the other hand, cultural rights Thus, “cultural pluralism”, will often be relevant, given its semantic
tended to be located in the latter category. Nowadays, the domi- congruence with “cultural diversity”. Furthermore, “cultural heritage”
nant view is that all human rights are interdependent and inter- and “cultural rights” can also usually lay claim to relevance, due to
related5 and purported qualitative distinctions between both sets their relationship with “cultural diversity”, as set out, supra. The
of rights (e.g. the assumption that economic, social and cultural same is true of “linguistic diversity” and “media pluralism”.13
rights do not give rise to firm State obligations) are consequently
dismissed.6 In any case, cultural rights would be best understood Cultural diversity is not a right, as such, or at least not a right
as spanning both categories, as will be demonstrated, infra. that is straightforwardly justiciable. For the purposes of this arti-
Whether cultural rights should be classed as individual or collec- cle, it will be treated as an operative public value, in the sense
tive rights has also tended to be a perennial subject of debate.7 A developed by Bhikhu Parekh. He labels “operative public values”
balanced view has been proposed which styles cultural rights as those values “that a society cherishes as part of its collective iden-
individual rights with a powerful collective dimension. Very often, tity and in terms of which it regulates the relations between its
cultural rights are primarily regarded as minority rights. While it members”, and which “constitute the moral structure of its public
cannot be gainsaid that cultural rights are indeed of vital impor- life and give it coherence and stability”.14 To describe cultural
tance for persons belonging to minorities who wish to protect and diversity as an operative public value is therefore to insist that it

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is more than just a guiding interpretive principle for law- and culture industries.22 Creativity and diversity (cultural and linguis-
policy-making. It is to point to the need to operationalise the tic) can stimulate economies and (labour) markets. Such acknowl-
notion; to incorporate it into regulatory, policy-making and insti- edgements complement a strictly human rights-based approach
tutional structures and practices and thereby ensure that it is and make for a more multi-faceted approach to cultural diversity.
meaningfully applied. Although the term, “operative public value” Another dimension to this argument implicates cultural heritage,
is academic in origin, the approach it implies is broadly consistent the active protection of which has been identified as “a central fac-
with that envisaged by a number of standard-setting texts at the tor in the mutually supporting objectives of sustainable develop-
international level, which employ different terminology. For ment, cultural diversity and contemporary creativity”.23
instance, cultural diversity is described as an “essential public
interest objective” in the Council of Europe’s Committee of Minis-
ters’ (CM) Recommendation Rec(2003)9 to member states on meas- Enabling Cultural Diversity
ures to promote the democratic and social contribution of digital
broadcasting.15 Irrespective of the precise terminology used, the As affirmed by various pertinent texts, the attainment of cul-
challenges of operationalisation remain the same. tural diversity in society presupposes the existence of a favourable
enabling environment for the effective exercise of cultural rights.24
Cultural diversity can only be achieved when pluralism is safe-
Rationales for the Promotion of Cultural Diversity guarded at societal level, meaning that groups are able to develop
and express their cultural identities and to practise their distinc-
Various rationales are advanced for promoting cultural diver- tive cultures both in public and in private. This thinking also finds
sity in normative texts at the European and international levels. clear expression in the Council of Europe’s Framework Convention
For present purposes, they will be loosely grouped as follows: the for the Protection of National Minorities (FCNM). It recognises the
intrinsic argument; the identity argument; the non-discrimina- link between the freedom to exercise cultural rights, societal plu-
tion/equality argument; the democratic argument; the societal ralism and cultural diversity, inter alia, in the following provisions:
argument, and the economic argument. Each of these rationales
will now be briefly considered in turn. Considering that a pluralist and genuinely democratic society
should not only respect the ethnic, cultural, linguistic and
Intrinsic Argument religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them
Simply stated, this argument holds that cultural diversity is to express, preserve and develop this identity; (Recital 7, Pre-
valuable in and of itself. It is intrinsically beneficial. The argument amble to FCNM).
derives from the view that every culture is an inherent source of
wealth and that their co-existence ultimately leads to their mutual The Parties undertake to promote the conditions necessary for
enrichment.16 persons belonging to national minorities to maintain and
develop their culture, and to preserve the essential elements of
Identity Argument their identity, namely their religion, language, traditions and
cultural heritage. (Article 5(1), FCNM).
This argument is premised on the view that cultural diversity
arises from the co-existence of a multiplicity of cultural identities The right to freedom of expression is a prerequisite for the
and practices. As such, the identity argument can be grounded in exercise of cultural rights and for the enablement of cultural diver-
concerns for individual and group dignity. If individuals and groups sity.25 As stated succinctly by the Council of Europe’s Committee
are denied the freedom to maintain and develop their identities, of Ministers: “Cultural diversity cannot be expressed without the
including through exercising their rights to freedom of expression, conditions for free creative expression, and freedom of information
association, etc., their dignity can be adversely affected. existing in all forms of cultural exchange, notably with respect to
audiovisual services”.26 This approach also logically requires that
Non-discrimination/Equality Argument expressive and dialogical fora are available and accessible on a
non-discriminatory basis. By extension, the media, as vectors of
This argument draws on the transversal effects of the right not culture and cultural identities, are capable of making a major con-
to be subjected to discrimination: the right necessarily extends to tribution to the promotion of cultural diversity. This observation
cultural rights. If the principles of non-discrimination and equality applies, mutatis mutandis, to new media technologies, as will be
were not applied in respect of cultural rights, the prospect of demonstrated in the next section.
achieving cultural diversity in society would be seriously curtailed.

Democratic Argument II. The Normative Framework

The non-discrimination/equality argument also feeds into the The foregoing section elucidated the meaning of cultural diver-
democratic argument, which prioritises participation in public life, sity; explored the (often overlapping) rationales for its promotion;
including cultural life17 and public debate.18 Access to cultural identified the most important features of a favourable enabling
heritage is of considerable practical importance for democratic environment for the realisation of cultural diversity, and introduced
participation.19 the importance of freedom of expression and the media for the pro-
motion of cultural diversity. This section will sketch the normative
Societal Argument framework for the promotion of cultural diversity at the European
and global levels. Selected focuses within that normative framework
The societal argument holds that cultural diversity is “a source which deal specifically with the role of new media technologies in
and factor, not of division, but of enrichment for each society”.20 the advancement of cultural diversity, will be examined accordingly.
It also holds that “a climate of tolerance and dialogue” is neces-
sary for the realisation of this aim.21 In other words, pluralistic
tolerance is a precondition for cultural diversity, which in turn Council of Europe
enhances societal cohesion and stability.
Various Council of Europe treaties serve to promote cultural
Economic Argument diversity, either directly or indirectly. The ECHR does not explicitly
provide for the protection of cultural rights and an initiative
This argument acknowledges the economic importance of the proposing to draft an additional protocol to the Convention on

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cultural rights in the 1990s never came to fruition.27 However, resource meriting concerted protection by States. Importantly,
given that cultural rights include a range of different rights, as the Convention anticipates the potential of future technological
outlined, supra, it is clear that the ECHR does, in practice, afford developments for enhancing the preservation of audiovisual
cultural rights a considerable degree of protection. Indeed, the heritage. Article 18 explicitly provides for the conclusion of new
growing recognition of cultural rights by the European Court of Protocols “dealing with moving image material other than cine-
Human Rights accounts in large measure for what has been termed matographic works […] with a view to developing, in specific
the Court’s “burgeoning minority rights jurisprudence”.28 fields, the principles contained in this Convention”.

One of the early treaties elaborated by the Council of Europe Two examples of treaties which contribute to the promotion of
was the European Cultural Convention. It is deliberately general in cultural diversity, without that objective being their central con-
character and was designed to “foster […] the study of the lan- cern, are the European Charter for Regional or Minority Languages
guages, history and civilisation of the others and of the civilisa- (ECRML) and the Framework Convention for the Protection of
tion which is common to [all nationals of States Parties to the Con- National Minorities (FCNM). The Preamble to the ECRML acknowl-
vention]”.29 It is an important point of general reference, but it edges that:
does not specifically address the potential contribution of the
media to the promotion of cultural diversity (or, needless to say, the protection and promotion of regional or minority lan-
that of new media technologies). guages in the different countries and regions of Europe repre-
sent an important contribution to the building of a Europe
Article 10 of the European Convention on Transfrontier Televi- based on the principles of democracy and cultural diversity
sion (ECTT), is entitled “Cultural objectives”, but its focus is very within the framework of national sovereignty and territorial
Eurocentric and does not explicitly embrace the promotion of integrity. (Recital 7, Preamble to ECRML).
cultural diversity per se. Rather, it seeks to promote European
works/production by requiring broadcasters to devote the majority Article 12, ECRML, is entitled, “Cultural activities and facili-
proportion of their transmission time to European works (Article ties” and comprises a list of possible measures to be taken by
10(1)) and to get States to “look together for the most appropri- States Parties with a view to enhancing cultural activities and
ate instruments and procedures to support, without discrimination facilities in regional or minority languages. The activities and facil-
between broadcasters, the activity and development of European ities include “especially libraries, video libraries, cultural centres,
production, particularly in countries with a low audiovisual pro- museums, archives, academies, theatres and cinemas, as well as lit-
duction capacity or restricted language area” (Article 10(3)). As erary work and film production, vernacular forms of cultural
such, its contribution to the promotion of cultural diversity is expression, festivals and the culture industries, including inter
limited and specific. alia the use of new technologies”. Thus, the exploitation of new
media technologies is expressly envisaged for the development of
The importance of protecting and promoting cultural heritage cultural activities and facilities.
and audiovisual heritage for ensuring a favourable enabling envi-
ronment for the promotion of cultural diversity has already been Whereas the title of the FCNM may suggest a certain narrow-
explained, supra. Two Council of Europe treaties dealing specifi- ness of focus, it actually addresses many issues concerning society
cally with those issues are the Framework Convention on the Value as a whole, and not only persons belonging to national minorities.
of Cultural Heritage for Society30 and the European Convention for It pursues its central objective – the protection of national minori-
the Protection of the Audiovisual Heritage.31 ties - in a complex, majority-minority dialectic. In other words, it
strives to assure the protection of national minorities within the
The Framework Convention on the Value of Cultural Heritage broader context of pluralist society.39 The importance of the FCNM
for Society includes useful measures for promoting the protection has already been referred to in the context of the so-called
of cultural heritage, like the requirement that States develop laws “societal” argument for promoting cultural diversity. Other provi-
and policies for that purpose.32 Specific emphases within the sions of the FCNM provide further evidence of the strong linkage
Framework Convention couple “access to cultural heritage” with between the goals of promoting tolerance, intergroup under-
“democratic participation” (Article 12) and “cultural heritage” standing and cultural diversity, and in particular, the instrumen-
with “knowledge”. Such couplings underscore the importance of tal importance of the media in respect of each goal:
rendering cultural heritage accessible for the realisation of cultural
rights and cultural diversity. A further coupling is of particular The Parties shall encourage a spirit of tolerance and intercul-
relevance for the promotion of cultural diversity by new media tural dialogue and take effective measures to promote mutual
technologies: Article 14, entitled “Cultural heritage and the infor- respect and understanding and co-operation among all persons
mation society”. It requires States Parties to “develop the use of living on their territory, irrespective of those persons’ ethnic,
digital technology to enhance access to cultural heritage and the cultural, linguistic or religious identity, in particular in the
benefits which derive from it”, inter alia, by “encouraging initiatives fields of education, culture and the media. (Article 6(1), FCNM).
which promote the quality of contents and endeavour to secure
diversity of languages and cultures in the information society”.33 In the framework of their legal systems, the Parties shall adopt
adequate measures in order to facilitate access to the media for
The Convention for the Protection of the Audiovisual Heritage, persons belonging to national minorities and in order to promote
as its name suggests, focuses on audiovisual material recording and tolerance and permit cultural pluralism. (Article 9(4), FCNM).
expressing cultural heritage.34 Its central aim is to:
Although the actual text of the FCNM does not distinguish
ensure the protection of the European audiovisual heritage between traditional broadcasting and new media technologies,
and its appreciation both as an art form and as a record of our their functional differences are increasingly being explored in the
past by means of its collection, its preservation and the official monitoring processes of the FCNM and also by the Council
availability of moving image material for cultural, scientific of Europe’s Committee of Experts on Issues Relating to the Protec-
and research purposes, in the public interest.35 tion of National Minorities (DH-MIN).40

This aim is informed by the realisation that “Europe’s heritage Alongside the treaty-based standard-setting work of the
reflects the cultural identity and diversity of its peoples”36 and the Council of Europe concerning the promotion of cultural diversity
recognition that “moving image material”,37 as “a form of cultural via (new) media, a host of relevant standard-setting measures have
expression reflecting contemporary society” and “an excellent also been adopted by its Committee of Ministers, the most impor-
means of recording everyday events […]”,38 is a valuable cultural tant of which will now be presented in tabular form:

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Text Topic of European audiovisual works. This is clear from para. 24 of the
Declaration (2008) Allocation & management of the digital Recommendation, which states: “Public service media should pro-
dividend & the public interest mote respect for cultural diversity, while simultaneously introduc-
Rec (2007) 16 Promotion of public service value of the ing the audience to the cultures of other peoples around the world”.
Internet
Rec (2007) 3 Remit of public service media in the infor- PSB is currently in a state of transition, but as Karol Jakubowicz
mation society has noted, “there was hardly a time in the eight decades of PSB’s
Rec (2007) 2 Media pluralism and diversity of media existence when it was not ‘in transition’”.45 He describes the chal-
content lenges constantly faced by PSB as being “at once conceptual and
Declaration (2007) Protecting role of media in democracy & in contextual”: different understandings of the role of PSB and the
context of media concentration fact that “changing contexts of PSB operation have always affected
Declaration (2006) Guarantee of the independence of PSB in the shape, nature and objectives of that media institution and
the member states positioned it in society and on the media scene in a variety of
Declaration (2005) Human rights and the rule of law in the ways”.46 The current state of transition has been triggered by tech-
Information Society nological, market-related and socio-cultural trends.47 How PSB
Rec. No. R (2003) 9 Promotion of democratic and social contri- engages with these new trends will largely determine its future,
bution of digital broadcasting but its engagement must also remain within relevant parameters
Political Message (2003) Political Message to WSIS set by EU law, e.g. rules and guidelines governing State funding for
Declaration (2000) Cultural diversity PSB and the relationship between such funding and PSB mandates.
Declaration (1999) A European policy for new information Broadcasting technologies are becoming inexorably digitised and
technologies converged. If PSB is to retain its previous (or even current) level
Rec. No. R (99) 1 Measures to promote media pluralism of influence in this new technological environment, it is impera-
Rec. No. R (99) 14 Universal community service concerning new tive that it develops into an effective player across diverse media
communication and information services types and formats.
Rec. No. R (96) 10 Guarantee of independence of public service
broadcasting Calls for increased general PSB exploitation of new technolo-
Declaration (1982) Freedom of expression and information gical opportunities are also increasingly being linked to the spe-
cific goal of promoting cultural diversity. For example, again in its
Instead of conducting an itemised analysis of these CM texts, Recommendation on the remit of public service media in the infor-
their essence will be examined in the context of public service broad- mation society, the CM stated:
casting/media and, more generally, public service values. Beforehand,
though, it is necessary to briefly signal the importance of relevant Public service media should play a particular role in the promotion
texts emanating from other limbs of the Council of Europe. The pro- of cultural diversity and identity, including through new commu-
motion of cultural diversity via the media has regularly appeared on nication services and platforms. To this end, public service media
the agenda of European Ministerial Conferences on Mass Media should continue to invest in new, original content production, made
Policy.41 The prioritisation of the objective in respect of the digital in formats suitable for the new communication services. They should
environment, including the potential role of public service broad- support the creation and production of domestic audiovisual
casting, was emphatic in the most recent Ministerial Conference in works reflecting as well local and regional characteristics.48
Kyiv, especially in Resolution No. 2, adopted at the Conference:
“Cultural diversity and media pluralism in times of globalisation”. Public Service Values
The Parliamentary Assembly of the Council of Europe has also adop-
ted texts dealing with these issues, most pertinently its Recommen- The CM’s Recommendation on measures to promote the public
dation 1067 (1987) on the cultural dimension of broadcasting in service value of the Internet,49 picks up on this theme. Its central
Europe; Resolution 1313 (2003), “Cultural co-operation between objective is to prompt States Authorities, where appropriate in
Europe and the south Mediterranean countries”; Recommendation cooperation with all interested parties, to take all necessary meas-
1641 (2004), “Public service broadcasting”, and Recommendation ures to promote the public service value of the Internet, inter alia
1674 (2004), “Challenges facing the European audiovisual sector”. by “upholding human rights, democracy and the rule of law […]
and promoting social cohesion, respect for cultural diversity and
Public Service Broadcasting/Media trust” in respect of the Internet and other ICTs. States authorities
are expected to draw on the guidelines appended to the Recom-
By virtue of its philosophy and mandate, public service broad- mendation in their efforts to realise its central objective. The guide-
casting (or public service media, as they are increasingly being lines have five main focuses: human rights and democracy; access;
called in deference to the diversification of technological forms openness; diversity, and security. The guidelines’ focus on diversity
across which they (may) operate) is simultaneously an ideal agent strives for equitable and universal involvement in the development
to, and an ideal forum in which to, promote cultural diversity. The of Internet and ICT content. As such, they encourage, inter alia:
promotion of cultural diversity is widely regarded as a general
objective of PSB,42 but it can also feature in a more detailed - the development of a cultural dimension to digital content
fashion among the more specific objectives of PSB.43 For example, production, including by public service media;
the CM’s Recommendation on the remit of public service media in - strategies and policies geared towards the preservation of
the information society emphasises that: digital heritage;
- participation in “the creation, modification and remixing of
In their programming and content, public service media should interactive content”;
reflect the increasingly multi-ethnic and multicultural societies - measures for the production and distribution of user- and
in which they operate, protecting the cultural heritage of different community-generated content;
minorities and communities, providing possibilities for cultural - capacity-building for local and indigenous content on the Internet;
expression and exchange, and promoting closer integration, - multilingualism on the Internet.
without obliterating cultural diversity at the national level.44
The CM’s Declaration on a European Policy for New Information
It should be noted that the Recommendation understands Technologies50 also engages in a detailed way with the specific poten-
cultural diversity in an open, inclusive way – there is no question of tial of new media technologies for stimulating cultural diversity. The
the notion being restricted to European cultural diversity, as in the most relevant section of the Declaration, section (iv) concerning
aforementioned regulatory measures prescribing the transmission diversity of content and language, includes the following aims:

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- to encourage the development of a wide range of communi- not meaningfully engage with the treatment of relevant legal
cation and information networks, as well as the diversity of issues under international (human rights) treaties, including the
content and language, so as to foster political pluralism, ECHR.59 The commentary does, however, usefully refer to the link
cultural diversity and sustainable development; between cultural diversity and broadcasting. It describes the
- to promote the full use by all, including minorities, of the “Television without Frontiers” Directive as being the text that is
opportunities for exchange of opinion and self-expression probably the closest to Article 22 of the Charter because of the
offered by the new information technologies; instrumentality of its quota system for European works for pre-
- to acknowledge the usefulness of these technologies in serving cultural creation and therefore diversity.
enabling all European countries and regions to express their
cultural identities; The quota system for European, and independent European,
- to encourage the provision of cultural, educational and other works is set out in Articles 4-5, juncto 6, of the “Television with-
products and services in an appropriate variety of languages out Frontiers” Directive. Those Articles tend to be regarded as the
and to promote the greatest possible diversity of these products main provisions in the Directive which, by design or in effect,
and services; serve the goal of promoting cultural diversity in broadcasting.60 As
- […] no other Article in the Directive deals with cultural diversity per
se, it is perhaps predictable that the Articles promoting European,
These engagements with the specificities of new media tech- and independent European, works might, by default, be considered
nologies and their identification of how they can serve the goal of to be the most relevant. However, upon closer scrutiny, the
promoting cultural diversity are welcome. They represent a signi- perceived relevance of Articles 4 and 5 turns out to be somewhat
ficant step forward from numerous generalised affirmations of the specious as the (intended and actual) contribution of these Arti-
potential of new media technologies for promoting cultural diver- cles to the goal of promoting cultural diversity in broadcasting is
sity (which, while welcome in their own right, offered little prac- actually quite limited.
tical guidance as to how they actually promoted the goal).51
Articles 4 and 5 pursue dual economic and cultural objectives,
but those objectives are not evenly weighted. The actual wording of
European Union relevant preambular Recitals and of the Articles themselves, as well
as the Realpolitik of their drafting history, all suggest that Articles
Under the Treaty of Lisbon, the European Union’s commitments 4 and 5 were really conceived of as protective economic measures,
to human rights are strengthened considerably, including in ways designed to support the European audiovisual industry in the face
which have implications for the promotion of cultural diversity. of US dominance of global audiovisual markets. The purported cul-
For instance, the proposed new Article 1a to the Treaty on European tural objectives of Articles 4-5 suffer from a number of shortcom-
Union (TEU) sets out an extended range of foundational values of ings: they lack any qualitative criteria; they lack any stipulations
the Union, including respect for human dignity, human rights, about time-scheduling and they lack any requirement to reinvest
minority rights, societal pluralism and non-discrimination.52 percentages of profits in new, independent European production.
Such shortcomings increase the likelihood of mere pro forma com-
Relatedly, the reworked Article 2, TEU, states that the Union pliance with Articles 4 and 5 by cost-conscious broadcasters who
“shall respect its rich cultural and linguistic diversity, and shall might prefer to meet their obligations by transmitting cheap, low-
ensure that Europe’s cultural heritage is safeguarded and quality programming at off-peak hours. The reporting system con-
enhanced”. Very significantly, the new Article 6.1 accords the Char- cerning Articles 4 and 5 is primarily statistical, which makes it very
ter of Fundamental Rights of the European Union “the same legal difficult to gauge the qualitative impact of the provisions.61 All in
value as the Treaties”.53 Under the new Article 6.2, the EU “shall all, it must be concluded that any contribution made by Articles 4
accede” to the ECHR.54 Article 6.3 affirms that fundamental rights, and 5 to the promotion of cultural diversity in broadcasting should
as guaranteed by the ECHR and resulting from the constitutional be regarded as incidental to their primary focus, i.e., the separate
traditions of Member States, “shall constitute general principles of objective of promoting European and independent European works.
the Union’s law”. The two objectives are not necessarily mutually exclusive, but they
should not automatically be equated with one another.
One of the most important legal bases for the protection of cul-
tural heritage and diversity (including languages) has heretofore The preamble to the Audiovisual Media Services (AVMS) Direc-
been Article 151 of the Treaty establishing the European Com- tive62 is sprinkled with references to the goal of promoting cultural
munity.55 Article 151(1) states: “The Community shall contribute diversity in the European audiovisual sector: most saliently,
to the flowering of the cultures of the Member States, while Recitals 1, 4, 5, 8 and 48. Of these, the first four are, by and large,
respecting their national and regional diversity and at the same differently-crafted re-affirmations of the importance of cultural
time bringing the common cultural heritage to the fore”.56 Article (and linguistic) diversity. Recital 48, for its part, deals more specif-
151(4) follows up on that commitment: “The Community shall take ically with the goal of promoting cultural diversity specifically in
cultural aspects into account in its action under other provisions respect of on-demand audiovisual media services. It states that
of this Treaty, in particular in order to respect and to promote the because “On-demand audiovisual media services have the potential
diversity of its cultures”. to partially replace television broadcasting […], they should,
where practicable, promote the production and distribution of
Article 22 of the Charter of Fundamental Rights of the Euro- European works and thus contribute actively to the promotion of
pean Union57 is entitled “Cultural, religious and linguistic diver- cultural diversity”. It then suggests different possible support
sity”; it reads: “The Union shall respect cultural, religious and measures for European works, such as “financial contributions by
linguistic diversity”. It is based on Article 6, TEU, and Article such services to the production of and acquisition of rights in
151(1) and (4) of the EC Treaty.58 Although the explicit reference European works, a minimum share of European works in video-on-
to cultural diversity is welcome, “shall respect” is a significantly demand catalogues, or the attractive presentation of European
weaker formulation than, for example, “guarantee”, “secure” or “pro- works in electronic programme guides”.
mote”. As such, it involves a considerably lighter commitment for
States. Second, the Explanatory Note does not spell out the essence Recital 48, as shored up by Article 3i, AVMS Directive,63 carries
or scope of cultural diversity, which suggests a non-committal over the logic that the promotion of European and independent
attitude to – or wariness of - its actual or potential implications. European works constitutes an active contribution to the promo-
tion of cultural diversity. Nevertheless, they do usefully provide
The commentary on Article 22 provided by the EU Network of illustrative/non-prescriptive examples of how cultural works can
Independent Experts on Fundamental Rights is very brief and does be promoted in respect of on-demand audiovisual services.

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UNESCO Convention on the Protection and Promotion similarly itemised references elsewhere in the Convention, is
of the Diversity of Cultural Expressions important as it implicates a range of actors at different stages of
the generation and transmission of cultural expressions.66 The
The UNESCO Declaration on Cultural Diversity elucidates and explicit call for attention for the situational specificities of par-
collates the various rationales for promoting cultural diversity, as ticular groups is also welcome.
outlined in the first section of this article. Its explanatory value is
very helpful. It teases out important links between theory and Having been ratified by the requisite 30 States, the Convention
practice. The UNESCO Convention on the Protection and Promotion entered into force on 18 March 2007, less than 18 months after its
of the Diversity of Cultural Expressions64 represents a semantic and adoption. The speed with which the requisite ratifications were
conceptual shift from the Declaration. The Convention shows achieved owes much to support for the Convention from Europe.
greater attention for means than for ends and for the conviction The accession of the European Community to the Convention on 18
that cultural diversity is instrumental in securing a range of December 2006 proved a major catalyst for its entry into force, but
cultural freedoms and exchange, including the free flow of cultural active support for the Convention was also forthcoming from the
activities, goods and services.65 Council of Europe. A Recommendation adopted by the Council of
Europe’s Committee of Ministers called on Member States to ratify,
The Convention seeks to protect and promote the diversity of accept, approve or accede to the UNESCO Convention at the
cultural expressions and to create an appropriate climate in which earliest opportunity, on account of “the commonality between the
cultures can thrive. Other key goals are to strengthen awareness of objectives and guiding principles” set out in the Convention and
and respect for such diversity at all levels and to encourage inter- various Council of Europe instruments concerning culture and the
cultural interaction and dialogue. The Convention also aims to media.67 The Recommendation also declared that the Council of
stress the linkage “between culture and development for all coun- Europe would have due regard for the provisions of the Convention
tries, particularly for developing countries” and to “give recogni- in its work and that it would “contribute to their implementation”.
tion to the distinctive nature of cultural activities, goods and serv- While it is still too early to meaningfully evaluate the impact of
ices as vehicles of identity, values and meaning”. Of particular the Convention, it is clearly of symbolic and political importance:
importance is its reaffirmation of “the sovereign rights of States it affirms the principle of State sovereignty in cultural matters and
to maintain, adopt and implement policies and measures that they its general, multi-faceted approach to the diversity of cultural
deem appropriate for the protection and promotion of the diver- expressions represents an important counterweight to the pre-
sity of cultural expressions on their territory” (see also, Article 5 dominantly commercial or trade-oriented approaches at the inter-
of the Convention). national level, e.g. under GATT and GATS.

Article 2 sets out those “Guiding Principles”: respect for human

rights and fundamental freedoms; [State] sovereignty; equal World Summit on the Information Society (WSIS)
dignity and respect for all cultures; international solidarity and
cooperation; the complementarity of economic and cultural The Declaration of Principles adopted at the Geneva Phase of
aspects of development; sustainable development; equitable WSIS brackets cultural diversity and identity with linguistic diver-
access, and openness and balance. sity and local content.68 Its approach to the promotion of cultural
diversity is content-oriented and technologically-informed. Like
Article 6 proceeds to explore a range of measures that States the UNESCO Convention on the Protection and Promotion of the
Parties may adopt with a view to protecting and promoting the Diversity of Cultural Expressions, WSIS explicitly links the wider
diversity of cultural expressions. A list of illustrative examples of goal of promoting cultural diversity to the discrete goals of pro-
appropriate measures is preferred to a general definition of the moting the production of, and accessibility to, different types of
same. The indicative list of measures includes: regulation; public content in diverse languages and formats.69 These goals are, in
financing; provision of opportunities for the “creation, production, turn, linked to the goal of promoting wide and inclusive partici-
dissemination, distribution and enjoyment of such domestic cultural pation in the Information Society.70 It also emphasises the ins-
activities, goods and services, including provisions relating to the trumental role that technology can play in preserving cultural
language used for such activities, goods and services”; ensuring heritage, which it recognises as “a crucial component of identity
effective access for “domestic independent cultural industries and and self-understanding of individuals that links a community to its
activities in the informal sector” to “the means of production, past”.71 At the Tunis Phase of WSIS, signatory States committed
dissemination and distribution of cultural activities, goods and themselves to “promote the inclusion of all peoples in the
services”; encouragement of [efforts of] non-profit organisations, Information Society through the development and use of local
public and private institutions, artists and other cultural profes- and/or indigenous languages in ICTs” and to generally continue
sionals; establishment and support of public institutions, “as to “protect and promote cultural diversity, as well as cultural
appropriate”. Last, but certainly not least, “measures aimed at identities, within the Information Society”.72 In the context of
enhancing diversity of the media, including through public service follow-up work to WSIS, relevant issues continue to be addressed,
broadcasting”, are also contemplated. inter alia, by the International Association for Media and Commu-
nication Research (IAMCR), under so-called Action-line C8 (cultural
Under Article 7 (“Measures to promote cultural expressions”), diversity).
States Parties “shall endeavour to create in their territory an envi-
ronment which encourages individuals and social groups” to carry
out a number of activities. Reliance on weak wording like “endea- Conclusion
vour” and vague aims like the creation of an environment which
encourages certain action, does not augur well for the effective This article has briefly mapped emergent trends in European
attainment of the aims in question. For example, the Article states and international standard-setting texts seeking to promote
that individuals and social groups should be encouraged: cultural diversity. Those trends reveal broad congruence in their
understandings of how the potential of new media technologies
to create, produce, disseminate, distribute and have access to their can be harnessed in order to advance the objective of cultural
own cultural expressions, paying due attention to the special diversity. Engagement with the specific features of new technolo-
circumstances and needs of women as well as various social groups, gies is essential, as is the unravelling of the concept, “cultural
including persons belonging to minorities and indigenous peoples; diversity”, and its contextualisation in the broader perspective of
culture and cultural rights. This article hopes to have provided
Nevertheless, this reference to creation, production, dissemi- some introductory orientation for more detailed engagement with
nation, distribution and access to cultural expressions, like other the challenges of operationalisation.73

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1) Asbjorn Eide, “Cultural Rights as Individual Human Rights”, in Asbjorn Eide et al., Eds., Economic, 42) Preamble, CM Declaration on the guarantee of the independence of public service broadcasting in
Social and Cultural Rights (2nd Edition) (The Netherlands, Kluwer Law International, 2001), pp. the member states, 27 September 2006; Preamble, CM Recommendation Rec(2003)9 on measures
289-301, at 290. to promote the democratic and social contribution of digital broadcasting, op. cit.; Declaration
2) G. Filibek, as cited in Halina Niec, “Casting the foundation for the implementation of cultural on Cultural Diversity, op. cit., para. 2.5.
rights”, in Halina Niec, Ed., Cultural Rights and Wrongs: A collection of essays in commemoration 43) For an overview of relevant Council of Europe standards in this area, see: Susanne Nikoltchev,
of the 50th anniversary of the Universal Declaration of Human Rights (United Kingdom, UNESCO, “European Backing for Public Service Broadcasting: Council of Europe Rules and Standards”, in
1998), pp. 176-189, at 176. See also in this connection, Yvonne Donders, Towards a Right to Cul- Susanne Nikoltchev, Ed., IRIS Special: The Public Service Broadcasting Culture (Strasbourg, Euro-
tural Identity? (Antwerpen/Oxford/New York, Intersentia, 2002), pp. 65 et seq. pean Audiovisual Observatory, 2007), pp. 7-15. For extensive examples in a range of European
3) Adopted unanimously by the UNESCO General Conference at its 31st session on 2 November 2001. States, see the country overviews in ibid. See also, Thorsten Ader, “Cultural and Regional Remits
For a detailed overview of UNESCO’s other standard-setting and activities in the realm of culture, in Broadcasting”, IRIS plus 2006-8.
see generally: Yvonne Donders, “The History of the UNESCO Convention on the Protection and Pro- 44) Recommendation CM/Rec(2007)3, 31 January 2007, para. 23.
motion of the Diversity of Cultural Expressions” (forthcoming 2008, text on file with author). 45) Karol Jakubowicz, “Public Service Broadcasting: A Pawn on an Ideological Chessboard”, in Els De
4) See generally: Adam Kuper, Culture: The Anthropologists’ Account (Cambridge, Massachusetts/ Bens, Ed., Media Between Culture and Commerce (Bristol, UK & Chicago, USA, Intellect, 2007), pp.
London, England, Harvard University Press, 1999). 115-141, at 116.
5) World Conference on Human Rights – The Vienna Declaration, 1993 (esp. Article 5). 46) Ibid.
6) See further: Christian Tomuschat, Human Rights: Between Idealism and Realism (United Kingdom, 47) See, ibid., at 120.
Oxford University Press, 2003), Chapter 3. 48) Recommendation CM/Rec(2007)3 on the remit of public service media in the information society,
7) For a representative view of both sides of the debate, see, respectively: Asbjorn Eide, “Cultural Rights op. cit., para. 19.
as Individual Human Rights”, op. cit.; Lyndel V. Prott, “Cultural Rights as Peoples’ Rights in Interna- 49) Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures
tional Law”, in James Crawford, Ed., The Rights of Peoples (Oxford, Clarendon Press, 1988), pp. 93-106. to promote the public service value of the Internet, 7 November 2007.
8) See generally: Asbjorn Eide, “Cultural Rights and Minorities: Essay in Honour of Erica-Irene Daes”, 50) Adopted on 7 May 1999.
in Gudmundur Alfredsson & Maria Stavropoulou, Eds., Justice Pending: Indigenous Peoples and Other 51) CM Declaration on cultural diversity, op. cit., Preamble & para. 2.3; CM Declaration on human
Good Causes (The Hague, Martinus Nijhoff Publishing, 2002), pp. 83-97; Wolf Mannens, “The Inter- rights and the rule of law in the Information Society, 13 May 2005, Section 3; CM Declaration on
national Status of Cultural Rights for National Minorities”, in Peter Cumper & Steven Wheatley, Eds., a European Policy for New Information Technologies, op. cit., Preamble.
Minority Rights in the ‘New’ Europe (Great Britain, Kluwer Law International, 1999), pp. 185-196. 52) It reads: “The Union is founded on the values of respect for human dignity, freedom, democracy,
9) For commentary on Article 27, UDHR, and its drafting history, see, Albert Verdoodt, Naissance et equality, the rule of law and respect for human rights, including the rights of persons belonging
signification de la Déclaration des droits de l’homme, op. cit., pp. 252-257; Yvonne Donders, to minorities. These values are common to the Member States in a society in which pluralism,
Towards a Right to Cultural Identity?, op. cit., pp. 139-144; Elsa Stamatopoulou, Cultural Rights in non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
International Law: Article 27 of the Universal Declaration and Beyond (Leiden/Boston, Martinus 53) See further in this connection: Declaration concerning the Charter of Fundamental Rights of the
Nijhoff Publishers, 2007). European Union, OJ C 306/249 of 17 December 2007.
10) For commentary on Article 15, ICESCR, its drafting history and application, see, Yvonne Donders, 54) See further in this connection: Protocol relating to Article 6(2) of the Treaty on European Union
Towards a Right to Cultural Identity?, op. cit., pp. 144-162. on the accession of the Union to the European Convention on the Protection of Human Rights
11) Ibid., p. 73. and Fundamental Freedoms, OJ C 306/155 of 17 December 2007; Declaration on Article 6(2) of
12) Article 2a, Council of Europe Framework Convention on the Value of Cultural Heritage for Soci- the Treaty on European Union, OJ C 306/249 of 17 December 2007.
ety, CETS No. 199, 27 October 2005 (see further, infra). 55) Consolidated version, as published in the Official Journal of the European Communities of 24
13) The multivalent character of the notion of cultural diversity is captured in Article 6 of the December 2002, C 325/1.
UNESCO Declaration on Cultural Diversity, cited infra. 56) See also in this connection, Articles 149, 150 and the subsequent paras. of Article 151, id. See also:
14) Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (2nd Edition) Rachael Craufurd Smith, “From heritage conservation to European identity: Article 151 EC and the
(New York, Palgrave Macmillan, 2006), p. 363. multi-faceted nature of Community cultural policy”, 32 E.L. Rev. (February 2007), pp. 48-69.
15) Adopted on 28 May 2003. 57) Charter of Fundamental Rights of the European Union, Nice, 7 December 2000, as published in
16) The intrinsic argument is approximated in Article 1, UNESCO Declaration on Cultural Diversity, OJ C 364/1 of 18 December 2000, and revised and published in OJ C 303/01 of 14 December 2007.
the Preamble to the UNESCO Convention on the Protection and Promotion of Cultural Expressions, 58) Explanations relating to the Charter of Fundamental Rights, OJ C 303/17 of 14 December 2007,
and in a Eurocentric way in Article 151 EC. and for Article 22 of the Charter, ibid., at p. 25.
17) Article 15, Framework Convention for the Protection of National Minorities (FCNM), CETS No. 157, 59) Florence Benoît-Rohmer, “Article 22 – Cultural, religious and linguistic diversity”, in EU Network
1 February 1995 (entry into force: 1 February 1998). of Independent Experts on Fundamental Rights, The Commentary of the Charter of Fundamental
18) European Commission, White Paper on a European Communication Policy, COM(2006) 35 final, Rights of the European Union (2006), pp. 197-199.
Brussels, 1 February 2006, pp. 5-6. 60) Note, for example, their thematic coupling during the latest formal process of revision of the Televi-
19) Article 12, Council of Europe Framework Convention on the Value of Cultural Heritage for Society. sion without Frontiers Directive: European Commission, Cultural Diversity and the Promotion of Euro-
20) Recital 8, Preamble to FCNM. pean and Independent Audiovisual Production, Issues Paper for the Liverpool Conference, July 2005.
21) Ibid. 61) See further: Tarlach McGonagle, “European-level Measures for Promoting Cultural Diversity in
22) This argument features strongly in relevant EU texts, but its relevance is also readily acknowl- Broadcasting: Quixotic Tilting in a New Technological Era?”, in Pia Letto-Vanamo, Ed., Mikä Osa
edged in other texts, such as those emanating from the Council of Europe (e.g. CM Declaration Yleisöllä? Yearbook of Communication Law 2007, Institute of International Economic Law (KATTI),
on cultural diversity, 7 December 2000, para. 2.2) and the UNESCO Convention on the Protection Faculty of Law, University of Helsinki, Finland (2008), pp. 119-136; Tarlach McGonagle, “The
and Promotion of the Diversity of Cultural Expressions. Quota Quandary: An Assessment of Articles 4-6 of the Television without Frontiers Directive”, in
23) Article 5, Council of Europe Framework Convention on the Value of Cultural Heritage for Society. David Ward, Ed., The European Union and the Culture Industries: Regulation and the Public Interest
24) Article 5 of UNESCO’s Universal Declaration on Cultural Diversity and Section 3 of the Council of (Ashgate Publishing Limited, forthcoming, June 2008), pp. 187-212; Irini Katsirea, “Why the
Europe’s CM Declaration on Cultural Diversity. European broadcasting quota should be abolished”, 28 European Law Review (No. 2, 2003), pp.
25) See further: Article 6, UNESCO Declaration on Cultural Diversity. It reads: “Freedom of expression, 190-209; Jackie Harrison & Lorna Woods, “Television Quotas: Protecting European Culture?”, 12
media pluralism, multilingualism, equal access to art and to scientific and technological knowl- Entertainment Law Review (No. 1, 2001), pp. 5-14.
edge, including in digital form, and the possibility for all cultures to have access to means of 62) Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amend-
expression and dissemination are the guarantees of cultural diversity.” ing Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, reg-
26) CM Declaration on Cultural Diversity, para. 1.2. ulation or administrative action in Member States concerning the pursuit of television broad-
27) For an overview of the process, see: Patrick Thornberry & María Amor Martín Estébanez, Minority casting activities, OJ L 332/27 of 18 December 2007.
Rights in Europe (Germany, Council of Europe, 2004), p. 205. 63) Article 3i reads: “1. Member States shall ensure that on-demand audiovisual media services pro-
28) Geoff Gilbert, “The Burgeoning Minority Rights Jurisprudence of the European Court of Human vided by media service providers under their jurisdiction promote, where practicable and by
Rights” 24 Human Rights Quarterly (2002) 736-780. appropriate means, the production of and access to European works. Such promotion could relate,
29) European Cultural Convention, ETS No. 18, 19 December 1954 (entry into force: 5 May 1955), Pre- inter alia, to the financial contribution made by such services to the production and rights acqui-
amble (Recital 5). sition of European works or to the share and/or prominence of European works in the catalogue
30) Op. cit. of programmes offered by the on-demand audiovisual media service.
31) ETS No. 183, 8 November 2001 (entry into force: 1 January 2008). 2. Member States shall report to the Commission no later than 19 December 2011 and every four
32) Article 5. years thereafter on the implementation of paragraph 1.
33) Article 14.a. Undertakings listed in subsequent sub-sections of Article 14 are as follows: 3. The Commission shall, on the basis of the information provided by Member States and of an inde-
“b. supporting internationally compatible standards for the study, conservation, enhancement pendent study, report to the European Parliament and the Council on the application of paragraph 1,
and security of cultural heritage, whilst combating illicit trafficking in cultural property; taking into account the market and technological developments and the objective of cultural diversity.”
c. seeking to resolve obstacles to access to information relating to cultural heritage, particularly 64) Adopted by UNESCO General Assembly on 20 October 2005 (entry into force: 18 March 2007).
for educational purposes, whilst protecting intellectual property rights; 65) Hélène Ruiz Fabri, “Jeux dans la fragmentation: la Convention sur la promotion et la protection
d. recognising that the creation of digital contents related to the heritage should not prejudice de la diversité des expressions culturelles”, R.G.D.I.P. 2007-1, 43-87, at 53.
the conservation of the existing heritage”. 66) See also: Hélène Ruiz Fabri, “Jeux dans la fragmentation: la Convention sur la promotion et la
34) For an overview of the Convention, see: Sabina Gorini, “The Protection of Cinematographic Her- protection de la diversité des expressions culturelles”, op. cit., at 73.
itage in Europe”, IRIS plus 2004-8. 67) Recommendation Rec(2006)3 of the Committee of Ministers to member states on the UNESCO Con-
35) Article 1. vention on the protection and promotion of the diversity of cultural expressions, adopted on 1
36) Recital 3, Preamble. February 2006.
37) “[M]oving image material” is defined in Article 2a of the Convention as “any set of moving images 68) WSIS (Geneva Declaration of Principles) “Building the Information Society: a global challenge in
recorded by whatever means and on whatever medium, whether or not accompanied by sound, the new Millennium”, 12 December 2003, Doc. WSIS-03/GENEVA/DOC/4-E, Section 8, paras. 52-54.
capable of conveying an impression of movement”. 69) Ibid., para. 53, which reads: “The creation, dissemination and preservation of content in diverse
38) Recital 5, Preamble. languages and formats must be accorded high priority in building an inclusive Information Soci-
39) This is evident from various preambular provisions and, more substantively, Article 6(1), FCNM. ety, paying particular attention to the diversity of supply of creative work and due recognition
40) The initiative centres on a Report and accompanying Comments: Tom Moring, “Access of national of the rights of authors and artists. It is essential to promote the production of and accessibility
minorities to the media: new challenges”, Report for the Committee of Experts on Issues Relating to all content – educational, scientific, cultural or recreational – in diverse languages and for-
to the Protection of National Minorities (DH-MIN), Council of Europe, Doc. No. DH-MIN(2006)015; mats. The development of local content suited to domestic or regional needs will encourage social
Tarlach McGonagle, “Comments on the report on ‘Access of minorities to the media: new chal- and economic development and will stimulate participation of all stakeholders, including people
lenges’”, Committee of Experts on Issues Relating to the Protection of National Minorities (DH- living in rural, remote and marginal areas.”
MIN), Council of Europe, Doc. No. DH-MIN(2006)016; Karol Jakubowicz, “Comments on the report 70) Ibid.
on ‘Access of minorities to the media: new challenges’”, Committee of Experts on Issues Relating 71) Ibid., para. 54.
to the Protection of National Minorities (DH-MIN), Council of Europe, Doc. No. DH-MIN(2006)017. 72) WSIS Tunis Commitment, 18 November 2005, Doc. No. WSIS-05/TUNIS/DOC/7-E, para. 32.
41) See generally, European Ministerial Conferences on Mass Media Policy: Texts Adopted, Media Divi- 73) The author is currently conducting more extensive research on this topic, having been awarded
sion, Directorate General of Human Rights, Doc. No. DH-MM (2006) 4 (Strasbourg, 2006). a research grant by the Broadcasting Commission of Ireland for that purpose.

8 © 2008, European Audiovisual Observatory, Strasbourg (France)