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Constitutional Court: Media outlets founded by NGOs can provide paid services to electoral competitors

08 October 2020
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The media outlets founded by non-governmental organizations can provide paid services to competitors during the electoral campaign, but cannot offer them free advertising. This is the decision of the Constitutional Court, which partially admitted the application of the MP Sergiu Litvinenco. The parliamentarian asked for the constitutional review of some provisions of the new law on non-commercial organizations, which prohibits media outlets founded by NGOs from providing services to electoral competitors during the campaign and thus collect revenues from electoral advertising.

The text ‘provide services and/or’ at article 6 paragraph 5 of the law on non-commercial organizations, no. 86 of June 11, 2020, is found constitutional to the extent that non-commercial organizations are allowed to provide onerous services to electoral competitors during the electoral campaign,” said the CC President Domnica Manole after the deliberations on Thursday, October 8.

The CC also issued an appeal to the Parliament asking for the regulation of article 6 paragraph 5 of the law on non-commercial organizations in accordance with the Court’s ruling, so that, during the electoral campaign, NGOs are prohibited from providing only free services and not onerous services.

In his application of July 31, Sergiu Litvinenco argued that the provision that a non-commercial organization cannot provide services and/or offer material or free support to electoral competitors during the electoral campaign is discriminatory, violates the right to property and free and fair competition. Also, according to him, the contested rule is contrary to the Constitution.

According to the MP, a significant part of the revenues of non-commercial organizations is obtained during electoral campaigns from the placement of electoral materials for a fee and in accordance with the law. “This provision can overwhelmingly affect especially independent media outlets (national and local newspapers, televisions, periodicals, other mass media) registered as non-commercial organizations,” he argued in the complaint.

In this context, representatives of the Legal Resources Center from Moldova, Promo-LEX, and IPRE signed a joint document to the CC, stating that “the impossibility to provide paid services to electoral competitors is an interference in the right of non-commercial organizations to obtain funds, which is an inherent part of the right to association.” The signatories noted that they could not identify similar examples in other Council of Europe states where there are other conditions or limitations for NGOs to carry out economic activities during certain periods.

At the CC meeting, the representative of the Parliament noted that the Parliament found the contested wording constitutional. In his opinion, this provision was established in order not to admit the disguised support of electoral competitors only during the electoral campaign and was motivated by prohibitions on the financing of electoral competitors by other countries and foreign, international, and mixed institutions and organizations.

In an interview for Media Azi, the president of the Broadcasting Council said that “all radio and television stations must understand that, during the electoral campaign, funds can be accumulated in line with the legal framework.” “There is, in this context, a provision prohibiting the placement of free advertising – the most serious problem in my opinion – advertising that does not involve distribution and spending of funds. It seems to me that it requires clarification, through a very good expert analysis, including by our development partners,” Dragos Vicol added.

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