20. 12. 2013

ANEM COMMENTS ON AMENDMENTS to the LAW ON ELECTRONIC COMMUNICATIONS

While participating in the public debate on the Draft Law on Amendments to the Law on Electronic Communications, ANEM on 20 December 2013, submitted to the Ministry of Foreign and Internal Trade and Telecommunications its written comments on the Draft Law.

In general remarks ANEM pointed out that the Draft Law is lacking provisions regarding the mechanisms to ensure the independence and professionalism of the regulatory authority for electronic communications (RATEL), and thus missed an opportunity to harmonize the field of electronic communications with the European regulatory framework of 2009, which emphasizes that. ANEM said that this alignment should have been done especially because a number of controversial provisions of several laws that do not regulate the electronic communications are compromising the independence of RATEL, particularly the financial independence, which brings under question the exercise of its functions as a regulator, as was pointed out for years by EC Serbia progress reports and that matter is of great influence on the process of Serbia's accession to the EU. ANEM asked the Ministry to take appropriate regulatory measures necessary to harmonize other laws with the Law Electronic Communications,  aimed at securing and protecting the financial independence of the regulator in the field of electronic communications. In addition, ANEM asked the Ministry to take appropriate regulatory measures to remove regulatory barriers to granting authority of inspection to RATEL, which has all the necessary facilities for it, believing that for an effective fight against illegal broadcasts, which continue to largely endanger the functioning of legal broadcasters, it is important that the control and inspection functions be merged in one institution.

In specific suggestions, ANEM stated its proposals for amendments to certain articles of the Draft, as well as proposals for amending the Draft Law by further modifications of the existing Law on Electronic Communications.

With regard to the proposed amendments to the Law on Electronic Communications ( ECA ) that relate to provisions governing data retention, which is important for the confidentiality of journalists' sources of information, ANEM generally supported the proposed changes to Article 128 of ECA in Article 18 of the Draft, but also suggested certain corrections this article. ANEM supported the amendment which provides that access to retained data is not permitted without the consent of the user and that deviation from this rule are possible only for a limited time and by court order, but also suggested shortlisted reasons why this is possible - only if necessary for conduct of criminal proceedings or to protect the security of the Republic of Serbia; also ANEM suggested that the international standards, in accordance with which the operators retain the information, be clarified -  that these are international technical standards related to the retained data ( ETSI , CENELEC, ITU , etc. ); in addition, ANEM sought the shortening of the period for keeping of retained data (from 12 months to 6 months).

In Article 20 of the Draft Law, which introduces a new Article 130a of the ECA, ANEM proposed a improvement which introduces an obligation for record keeping about requests for access to retained data for operators that maintain the data and state authorities that are accessing  the data, and not the authority of the Commissioner for Information of Public Importance and the Personal Data Protection; ANEM also proposed to establish an obligation for operators and state authorities to submit those records to the Commissioner who is to publish them on his website. This does not limit the authority of the Commissioner and at the same time achieve greater transparency of data retention process.

ANEM proposed amendment and the Draft Law - additional modifications of the existing Law on Electronic Communications relating to the refinement of provisions on Must Carry  in Article 101, in order to harmonize the provisions of that law with the Law on Broadcasting and the Law on Public Information, which are expected to be adopted.

ANEM also as a supplement to the Draft Law proposed to further amend the current law - deletion of certain provisions of the ECA ( paragraphs 3 and 4 of Article 7 , paragraph 2 of Article 8 ) that limit the independence of the regulator in the field of electronic communications by treating RATEL as a public agency exercising delegated tasks and whose work is supervised by the relevant ministry. ANEM believes that an independent regulator needs to be recognized as a sui generis body, which is not included in the public administration system and is not a public agency within the meaning of the Law on Public Agencies, which must have an the original, not delegated authority.

PLEASE READ ANEM COMMENTS HERE