Communications Commission finds Mtavari Arkhi guilty of broadcasting Obscenity, but relieves it of Liability
The Communications Commission has found Mtavari Arkhi guilty of violating the legislation by broadcasting a report containing obscenity. However, the broadcaster has been relieved of administrative liability, as the goal of the Commission is not to penalise the broadcaster, but to protect viewers from programmes containing obscenity. To this end, the Commission exercised its legal authority and declined to sanction Mtavari Arkhi. The Commission calls on Mtavari Arkhi, as well as all other broadcasters, to comply with the legislation, take the decision of the Commission into consideration and refrain from broadcasting obscenity.
The Communications Commission discussed the issue concerning Mtavari Arkhi during its meeting on 21 January. The Commission listened to the arguments presented by the representative of the broadcaster, and took the decision in accordance with international practice. The case concerns the report aired at 21:57 on 12 December 2020 by Mtavari Arkhi on the political show “Mtavari on Saturday,” which contained obscene remarks and a graph with an unethical connotation. In the process of discussing and ruling on this issue, the Commission emphasised several important legal grounds.
Article 56.4 of the Law of Georgia on Broadcasting prohibits the broadcasting of programmes or advertisements abusing a citizen’s and a person’s dignity and their fundamental rights and that contain obscenity. The Law describes obscenity as an action which is in conflict with ethical norms established in society and which has no social and political, cultural, educational or scientific value.
The Mtavari Arkhi report contained two problematic components: first, a graph accompanied by audio narrative that included an obscene connotation, and secondly, a statement made by a journalist comparing the Parliament to a condom, and its members to the male genitalia. The Commission believes that the obscene connotation contained in the report does not meet the ethical norms and has no social and political, cultural, educational or scientific value.
The Commission ruled that the broadcasting of the programme containing obscenity violated the right of viewers. Furthermore, although the programme restricts the private lives of its addressees – the Minister of Finance and members of Parliament, the Commission believes that in this particular case, freedom of expression outweighed the politicians’ right to privacy. For that reason, the Commission ruled that the rights of the Minister of Finance and members of Parliament were not violated.
In determining the standards for freedom of expression, the European Court of Human Rights attaches great importance to the means of disseminating ideas and information. On its part, the Constitution of Georgia assigns the Communications Commission with the duty to maintain freedom of expression in the mass media and protect the rights of broadcasters and their audiences. The Commission has a particular duty to protect the fundamental rights and legal interests of the audiences, listeners and viewers.
As the aforementioned report was aired at 21:57, during prime time, it may have been viewed by a large number of people. The audience of the broadcaster may also have included minors. The responsibility for physical, moral and mental development of minors is normally borne by parents or legal guardians. However, they could not have reasonably expected a political programme broadcasted at 21:57 to contain obscenity and contents that is harmful for minors. Therefore, the responsibility in this case passes to the broadcaster.
Aside from the fact that the report violates the rights of the minor audience, the broadcasting of obscenity is also problematic in relation to the rights of the adult audience. The Commission therefore considered the interests of adult viewers who live, watch or listen to broadcast programmes together with minors. If news programmes and political shows contain obscenity and reports that are unsuitable for minors, parents will be reasonably unable to receive information about local and global current affairs through television. Naturally, adults have freedom to choose to watch political shows on other channels, but unless the Communications Commission effectively responds to programmes containing obscenity, any political show may become saturated with unethical and obscene statements, reports and activities, leaving the viewers with no choice.
Results of pre-election media monitoring of the 2020 parliamentary elections showed that within the diverse media environment, the broadcasting of obscenities that violate a person’s basic rights constitute a major problem. On 7 December 2020, the Commission issued a statement calling on the broadcasters to comply with legislative requirements and refrain from airing programmes containing obscenity that violate a person’s dignity and fundamental rights.
Based on the 2009 judgment of the Constitutional Court, the Communications Commission has a duty to examine and respond to the broadcasting of programmes containing obscenities that violate a person’s dignity and fundamental rights.
There are numerous international examples and practices concerning dissemination of insulting and obscene remarks by the media. It would be worthwhile to look at some of the decisions taken by the UK regulatory body Ofcom and the Federal Communications Commission of the United States in this field.