The fairness doctrine is dead and living in Israel.

• Author: Schejter, Amit M.

1. INTRODUCTION

   Although the fairness doctrine has been eliminated in the United States as of 1987,(1) the idea of regulating speech concerning issues of public disagreement continues to stir a lively academic and legal debate.

   However, in Israel, the reason for this debate emanates from the fact that not only has the doctrine not been eliminated, it has in fact taken on a life of its own. Still, it does not always take into account where the doctrine has come from, what it really meant, and how it is suited to the Israeli legal logic. Following a series of legal decisions and administrative acts, the doctrine has been redesigned in a manner that does not resemble its North American origins, although it still carries its name.

   This regulatory regime, imported from one legal system and implanted in another, continues to develop a new nature in Israel and is in itself an interesting cross-cultural phenomenon. It is even more intriguing because its original adoption was formed from case law, and only later has it taken an administrative form. Still, case law determines the doctrine's nature, redefining it, and questioning the ability to stretch it beyond its existing boundaries.

   Interestingly enough, had the development of the doctrine been tested in a court of law in its country of origin, it could have been found unconstitutional, as the constitutional safeguards in both societies are different. In that sense, the fairness doctrine as implanted in the Israeli system is like a sandwich from McDonald's--it bears the same name, looks, and tastes like the original, but the meat is local and so is the cook. Thus, the sandwich claims to be of similar standards to its foreign counterpart, but its ingredients are local. Its popularity stems much from its American origin, even though other types of imports from systems of less glamour may better fit the local culture.

   This Article describes the fairness doctrine and how it is different from impartiality, another form of speech regulation. Further, this Article briefly paints the structure of Israeli media law, the new environment in which the doctrine has been implanted. Finally, the unique character of the Israeli fairness doctrine and its American roots, planted in its continental ground, is analyzed, and its current situation is critiqued.

2. DEFINING FAIRNESS

   In order to be able to deduce whether a particular legal term has been adopted by a foreign legal system, the original setting of the term must be analyzed. The fairness doctrine, developed and applied in the United States between 1934 and 1987, is a well-defined legal and policy term. It is based on a particular logic: The U.S. Constitution safeguards freedom of expression and of the press.(2) Still, due to the fact that broadcasting is a medium of expression that only a small number of license holders may use due to technical scarcity, it may be regulated. At the same time, a unique feature of the U.S. system has always been that once a license to broadcast is awarded, the license holder may use the airwaves to promote his or her own opinion. The doctrine, thus, was created in order to make sure that the highest bidders were not the only parties able to communicate their views on public issues.(3) The doctrine originally consisted of two types of regulations imposed upon broadcast licensees: first, the regulation on broadcasters to focus on issues concerning political speech, that is the type of speech that deals with the day-to-day issues in public disagreement;(4) second, the regulation of personal attacks and the means by which one can remedy an unflattering portrayal by the broadcast media.

   1. Speech in Instances of Disagreement

   1. The American Fairness Doctrine

      Different doctrines of regulating the issue of speech in instances of disagreement have developed for a number of reasons in different legal systems. The fairness doctrine was the unique approach adopted to regulate political speech within the American system, characterized by a large number of commercial broadcasters. The doctrine's rationale was based on the idea of spectrum scarcity under which a limited number of outlets are available to the public. This spectrum scarcity justified regulation of the station owners' freedom of speech due to the existence of a competing fight, namely the "public convenience, interest or necessity."(5) A balancing of the rights led to a two-pronged doctrine: First, the license holders were obliged to raise controversial issues. Second, when doing so, they were to present opposing viewpoints on the matter.

      By 1985, the Federal Communications Commission (FCC) found that the doctrine's rationale had become obsolete, a decision upheld by the U.S. Court of Appeals.(6) All attempts since to make the doctrine into law have failed.

   2. The European Rule of Impartiality

      In Europe, the rule during the same time period was that in most countries the dominant broadcaster (and sometimes the only one) was a national public broadcaster. As such, the broadcasters were obliged to maintain what can be dubbed the doctrine of impartiality.(7) As providers of a public service, the national broadcasters were not deemed suspects for evading controversial issues based on commercial considerations or as promoters of personal agendas. Rather, as public organizations close to the authorities, they were to be guarded from presenting political reality lopsidedly. Thus, impartiality was described as the duty to present issues in an objective, fair, neutral, pluralist, and comprehensive manner. Such requirements exist in most Western European countries including the United Kingdom, France, Germany, and Italy.(8)

      European impartiality is different than the American fairness doctrine mainly because it prevents the broadcasters from editorializing. In addition, unlike the case in the United States where the fairness doctrine had been eliminated, impartiality as such still exists in European systems. Thus, for example, the British Broadcasting Corporation (BBC) Producers' Guidelines state in their current version that "[d]ue impartiality lies at the heart of the BBC. It is a core value and no area of programming is exempt from it. It requires programme makers to show open-mindedness, fairness and a respect for truth."(9)

      At the same time, the regulator for commercial television, the Independent Television Commission, states in its Programme Code that:

      Licensees may make programmes about any issues they choose. This freedom is limited only by the obligations of fairness and a respect for truth, two qualities which are essential to all factually-based programmes, whether on "controversial" topics or not. Impartiality does not mean that broadcasters have to be absolutely neutral on every controversial issue, but they should deal even-handedly with opposing points of view in the arena of democratic debate. Opinion should be clearly distinguished from fact.(10) B. Personal Attacks

      Unlike the political fairness doctrine, rules that pertain to unfair reporting concerning individuals and that also exist across legal systems are still being enforced in the United States as well. In the United States, this type of regulation is known as the personal attack rule and is an extension of the fairness doctrine. In Europe, this can generally be found under the heading of right of reply. In the European sense, the right of reply is seen as a form of fairness. Unlike the American rule, it is not limited to fairness during the broadcasting of a controversial issue of public importance.

      Formulated in the 1960s on the heels of the Red Lion ruling, the American personal attack rule combines political fairness with fairness to people acting within the political arena. It thus states that:

      (a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the persons or group attacked: (1) Notification of the date, time and identification of the broadcast; (2) A script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) An offer of a reasonable opportunity to respond over the licensee's facilities.(11) Even though the fairness doctrine has been eliminated, the personal attack rule still exists and has been an issue of contention among FCC officials as recently as 1998.(12)

      In the United Kingdom, the attack rules are not limited to political programming. The authority on the matter is the Broadcasting Standards Commission established by the Broadcasting Act of 1996.(13) The Commission may deal with two types of complaints: Standards complaints have to do with portrayal of violence and sexual conduct and with matters of taste and decency generally, while fairness complaints relate to unjust or unfair treatment or infringement of privacy.(14) In addition, the Independent Television Commission (ITC), which regulates content on all television broadcasts and cablecasts in the United Kingdom, and the BBC, each has its own code of conduct. The BBC Producers' Guidelines state that:

      Where a programme reveals evidence of iniquity or incompetence, or where a strong, damaging critique of an individual or institution is laid out, there is a presumption that those criticised be given a fair opportunity to respond. There may be occasions when this is inappropriate (usually for legal or overriding ethical reasons) in which case the Head of Department should be consulted. It may then be appropriate to consider whether an alternative opportunity should be offered for reply at a subsequent date.(15) Surprisingly, the ITC Programme Code, published in 1998, does not contain a similar rule.(16) In other European nations, the right of reply has taken different forms: The narrow Italian right to...