On September 19th 2017, the Lisbon Court of Appeal confirmed the decision of the Regulatory Authority for the Media ("ERC") to apply a fine of € 20.000,00 to TVI (Televisão Independente S.A.). The referred fine was applied following a participation made against broadcaster TVI regarding the airing, in the eight o'clock news, of a two minute video with footage of the results of an air strike in Syria.

Before broadcasting the video, the journalist indicates that the video was allegedly posted on YouTube by Syrian activists, and that the validity of the images, as well as the testimonies given, were not confirmed. During the 2 minutes, the viewers are exposed to various plans of the destruction caused by the attack, as well as people looking for bodies buried in the debris, and multiple corpses and body parts.

According to the ERC, the broadcast of this video infringes the limitation laid down in Article 27, paragraph 3 of Law 27/2007, July 30th . This article states that the television broadcast of programs that may manifestly, seriously and gravely jeopardize the free development of the personality of children and adolescents, shall not be permitted in a non-conditioned access television channel.

Nevertheless, the broadcasting of this kind of video may be allowed:

  • If it is broadcasted in a news service;
  • Considering its newsworthiness;
  • If it is presented with respect for the ethical standards of the profession;
  • If it is preceded by a warning about their nature.

Such limitations call into question the right of freedom of expression (Article 37, n. 1 of the Portuguese Constitution), the right to information, and mostly the right of freedom of press (Article 6 and 7 of the Law n. 1/99, January 1 and article 26 of the Law n. 27/2007, July 30th).

Being such a sensitive subject and bearing in mind that the definition "of programs that may manifestly, seriously and gravely jeopardize the free development of the personality of children and adolescents is a vague concept", the ERC in its decision-making process, took into account the following points:

  •  If the broadcasting of the war scenario and the potential for destruction and news value are similar, in specific, the fact that children and adolescents do not have the sense of perceiving the information given to them;
  • If the focus given to dead bodies and blood stains on the ground is considered as indispensable to the information content of the particular news;
  • The fact that no prior warning was given regarding the violence of the images.

As a matter of fact, one of the points that weighed most in the ERC's decision was the lack of prior warning regarding the violence of the images. This omission took away the chance for parents and educators to adequately monitor, prevent the visualization of the images or contextualize them properly, thus reducing their harmful effect.

Subsequently, not having given the prior warning, TVI could only have transmitted the images in question if they had edited them in such a way as to avoid the display of representations of corpses and blood, which, by their violence and inhumanity can have a negative influence on the formation of children and adolescents. In fact, and accordingly to ERC's deliberation, the focus on dead bodies and bloodstains should be indispensable to the information content of the news.

In addition to the ERC, the Competition, Regulation and Supervision Court also had the opportunity to rule on this matter, having understood that the infringement of this limitation does not require the demonstration that the television program has had a negative impact on the formation of the personality of children and young people, being sufficient the suitability to have the referred negative impact. Lastly, in accordance with the ERC and the Competition, Regulation and Supervision Court, the Lisbon Court of Appeal rejected the appeal lodged by TVI, confirming the decision issued by the ERC.

This decision comes as a warning for all TV broadcasting channels that the supervisory authorities will not take lightly the violation of the aforementioned legal rules. Indeed, this decision raised awareness on the need for the transmission of videos that focus on war scenarios must be edited (in a way to avoid the display in an explicit way of the violence of the pictures) and, if not possible, on the need for inclusion of a prior warning regarding the violence of the video.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.