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05. 01. 2015

FIRST ANEM's SEMINAR ON THE IMPLEMENTATION OF NEW MEDIA LAWS

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The first in the series of ANEM seminars on the implementation of new media laws was held in Belgrade on 25 December 2014, in the presence of more than 50 representatives of media, public institutions, international and donor organizations, and other interested parties.

The aim of the seminar was to help media, journalists and other interested parties to better understand and implement media laws - the Law on Public Information and Media and the Law on Electronic Media. The panelists presented the key changes of the media regulatory framework and pointed to further steps in the implementation of new media laws.

The seminar was opened by Milorad Tadic, ANEM president, and Gordana Jankovic, head of the Media Department of the OSCE Mission to Serbia. The panelists were: Sasa Mirkovic, state secretary at the Ministry of Culture and Information; Slobodan Kremenjak, attorney-at-law and member of the ANEM legal team; Dusan Sutanovac, director of the Center for Capital Market of the Privatization Agency; Rade Veljanovski, professor at the Faculty of Political Sciences, University of Belgrade; and Milos Stojkovic, member of the ANEM legal team, who presented the key solutions of the Law on Electronic Media in the absence of a representative of the Regulatory Body for Electronic Media.

In his presentation at the Belgrade seminar, Slobodan Kremenjak presented new solutions that media laws bring (the Law on Public Information and Media and the Law on Electronic Media). He drew a parallel between the process of adoption of laws in 2003 and the same process in 2014, stressing that numerous conditions changed in the meantime. In 2003, the European Convention for the Protection of Human Rights and Fundamental Freedoms was ratified and thus the authority of the European Court for Human Rights was accepted. The new Constitution was adopted in 2006 which, among other things, envisages direct implementation of provisions of international treaties and the obligation of the Serbian authorities to uphold the practice of bodies implementing the treaties. Due to this, a large portion of standards already existing in international instruments would be applied regardless of the adoption of new media laws. Therefore, a legitimate question is why the media laws were changed and what the problem was with them. The answer is the need to regulate budgetary financing of media, to define public interest, establish equal position of media on the market etc.

The first issue to be noted regarding the new laws is the change of the definition of media - where media are now recognized as "editorially shaped content", which was not the case in the previous law that treated media exclusively as a mode of public distribution of information to an indefinite number of users. This is important in view of differentiating between social networks and other Internet-based modes of communication, on the one hand, and traditional media on the other. According to the Law on Public Information and Media, a traditional medium is always a medium, and its Internet edition is a medium, too. All other channels of communication are free to register as media or not. Social networks, forms and similar channels of communication are not media because they are based on "user generated content" and not on "editorially generated content". Therefore, the regulation of these communication channels is subject to acts regulating e-business and information society services, rather than media laws.

The other important novelty is redefining of the rules on founder, or - according to new terminology - publisher of media, as now a natural person may be a media publisher. Also, limitations regarding publishers are clear and they pertain to state-owned media. Namely, according to the Law on Public Information and Media, media publishers may no longer be public entities, save for precisely listed exceptions: two public service broadcasters (RTV and RTS), the institution established in order to exercise the right to public information of the the population living on the territory of the Autonomous Province of Kosovo and Metochy (so far it was RTV Panorama) and the entities (institutions, foundations or companies) established by National Minority Councils that become media publishers.

The third novelty concerns the provisions stipulating that the right to publish media is subject to legal transaction. To better explain the meaning of this provision, it is important to go back in the past, to the time of adoption of disputable changes to the Law on Public Information of 2009. Namely, there was a problem then due to the frequent practice of transferring the status of media publishers among different companies, which allowed for avoiding execution of court judgments and evasion of creditors. Due to this the legislator decided to change the Law on Public Information. The Constitutional Court proclaimed most of the new provisions unconstitutional. However, an article remained in force according to which the right to publish media was not subject to legal transaction, which made any contract stipulating so invalid. This caused numerous problems in practice as it was not clear whether publishing rights were subject to legal transaction or not. If this article was to be implemented strictly, it would not have been allowed to have localized versions of foreign media or to transfer a medium if a founder (a publisher) performs multiple activities. The Law on Public Information and Media solved this dilemma by explicitly stating that the right to publish media is subject to legal transaction.

The fourth novelty of the Law are the entirely new rules on state aid. The situation on the media market is unfortunately such that the media can hardly survive without state aid. Therefore, it was very important to regulate the manner of allocating state aid, which was done by introducing the mechanism of project-based financing. The projects are linked to realizing public interest in the public information sector.

Another important change are the provisions on the Media Register. Over the years there was an issue in the public debate whether the Register constitutes limitation to media freedom. In 2002, a stance was taken that the Register is not needed at all, while it was later introduced in 2009, but in a manner that was proclaimed unconstitutional. Finally, it existed in a rudimentary form with the Serbian Business Registers Agency. The new Law on the Public Information and Media treats the Register as important, not to limit media freedom, but to enable citizens to learn who owns the media so that they could have a critical stance towards media. In other words, it is a measure of protecting media pluralism, which is a legitimate interest.

Media pluralism is also safeguarded by the new rules on media concentration. The rules are more liberal relative to earlier regulation, and probably initiated by an unnaturally large number of media and the tendency for mergers on the media scene.

As for the other rules, it is important to single out the following issues: solidary responsibility for information published by other media (the case of the daily "Danas", which daily was claimed responsible for an article originally published in the daily "Glas Javnosti"), new exceptions concerning limiting the responsibility for publishing information (particularly in the case of carrying police announcements), and the issue of defining gradual approach to compensatory damages (avoiding direct compensation of damages and stimulating the use of reply to information and correction of information instead).

Sasa Mirkovic presented the key activities of the Ministry of Culture and Information regarding the implementation of the new media laws since their coming into force (13 August 2014) when the deadline was set for the adoption of by-laws (rulebooks). The Ministry respected the deadline and adopted three rulebooks which came into force in the late November. These are the rulebooks on the co-financing of projects for the realization of public interest in the area of public information, on the documentation to be submitted in the process of registering the media in the Media Register, as well as about the keeping of the records and the entry in the records of international media representatives and representative offices of international media. The most important rulebook is the one on co-financing of projects.

The year 2015 was stressed as very important for the media sector as it will see the end of the digital switchover, the exit of the state from media ownership and the gradual transition to the project-based financing (by 1 July). The Ministry is in intensive communication with the Commission on State Aid Control considering that the funds allocated to the media through project-based financing will be treated as „state aid", due to which the laws regulating the subject matter must be observed. Every level of authorities issuing calls for proposals will have to respect these rules, as well. Additionally, the funds for project-based financing envisaged by the new budget of the Republic of Serbia are considerable and significantly larger than before.

Through the Standing Conference of Towns and Municipalities, the Ministry distributed to all local self-governments the rulebook on co-financing with an accompanying letter and a note stating that they can turn to the Ministry for all dilemmas and questions. Communication was established with the Ministry of Public Administration and Local Self-Government in order to better communicate with the local self-government about the implementation of the new rules.

The estimate of the Ministry for Culture and Information is that it will issue calls for proposals after the end of the holidays in January so that the media receive the first funds by May 2015.

Mirković stressed the very important role of media and journalists' associations concerning the establishment of expert committees that propose the allocation of funds and invited the associations to be active in this respect.

The Ministry hopes that there will not be many deviations from new rules (as the case was in some local self-governments), and that there will be more positive examples (such as the Municipality Srbobran that earmarked a hefty sum for the media, which is the result of intensive communication among journalists' associations, the Ministry and the local self-government).

Milos Stojkovic presented important novelties that the Law on Electronic Media brings. This law was adopted in compliance with the Audiovisual Media Services Directive, which placed Serbia among the European countries that implement unified rules concerning the electronic media market.

New notions are introduced, the most important of which is „audiovisual media service" - it comprises traditional media (such as television) and some new services (such as „on demand") - and the element of „editorially shaped content" is emphasized in the definition of these terms.

The Law introduces different levels of regulation - stricter rules for linear services and more liberal rules for „on demand" services. The latter are nevertheless important since it is the first time that this service is envisaged by law.

Another important feature of the Law is the protection of minors regarding programming content. There have already been some activities of the regulator in this respect - the caution against the national broadcaster Pink, which caution established the violation of rules concerning the protection of minors in the program „DNK" and this contentious program was classfied as inappropriate for minors.

New rules on advertising in electronic media are also important. They are comprised in the definition „audiovisual commercial communication" which includes: traditional - TV and radio advertising, sponsorship, product placement and new forms of advertising (virtual, inserters, inscriptions on the screen etc). Product placement is an entirely new institute in our law, similar to sponsorship, that will provide a new source of income for the media.

As for the bans and limitations, the Law is mainly in keeping with the existing solutions: the ban on advertising tobacco and related products and imitation of smoking, limitations regarding advertising of alcohol, and limitations regarding advertising medication and medicinal products.

Another novelty of the Law on Electronic Media are strengthened competences of the regulator considering that the Regulatory Authority of Electronic Media (REM) was given more freedom to act. REM is obliged to pass a number of by-laws by February 2015. It showed initiative already in the period September - November since it issued an interpretative annoucement (an act without binding force) that shows how the media should behave in relation to the advertising rules. The regulator was given the authority to pronounce a new measure: a temporary ban on publishing programming content, under certain conditions.

The Law on Electronic Media envisages four systems of authority for offering media services: 1) for free-to-air terrestrial broadcasting - system of licences in a public competition, 2) for cable/satellite and similar broadcasting - system of licences issued on request, 3) for „on demand" service - system of approval, and 4) offering of service without an obligation to acquire a licence.

The Law on Electronic Media for the first time contains provisions concerning the responsibility of the operator offering the service of media content distribution, which prevents abuses in the network access by the rules on access, the must carry obligation etc.

Also, new rules on licences issued in a public competition for digital broadcasting will be implemented from the moment of the digital switchover, and an important novelty is that the media will be able to focus on the media service, while the operator (JP ETV) will be entirely responsible for the transmission, i.e. technical aspect of service provision.

Dusan Sutanovac presented the activities of the Privatization Agency regarding the privatization of the remaining publicly owned media. Media laws point to the implementation of advertising-related regulation and in that sense they envisage certain responsibilities of the Privatization Agency. The privatization will take place in two stages - the first is sales of capital, and the possible second one is the transfer of capital without remuneration.

The first stage began immediately after the adoption of media laws with publishing a list of media in the Agency's portfolio. There were initially 65 media on the list and the call for collecting letters of interest was issued for them (on 15 August). An initiative of founders of another 11 media ensued, and the call for collecting letters of interest was issued for these media in early October. Therefore, the Agency currently deals with the privatization process for 76 media. Letters of interest were received for the first group of 65 media, and the Agency carried on the procedure by proposing the decision on the model of the sales of capital - the method of sales by public competition. The draft decision was forwarded to the competent ministry. The media founders were obliged in the meantime to comprise a fair assessment of the value of capital, property and liabilities with 31 December 2013. Based on the assessment, the initial value for privatization will be established (at least a half of the assessed value).

The Agency receives decisions on the model of sales of media outlets from local self-governments, which process is somewhat slow, but still functional. So far 13 decisions were received. A negative value assessment was received for some founders, which means that, according to the Law on Privatization, a public competition can not be organized for them. In order to find the solution for such media, the Agency is in intensive communication with the Ministry of Culture and Information. Most likely, in these cases the process will go directly to stage 2 (transfer without remuneration). Although some founders have not submitted the assessment, a line of credit was acquired for them to make such assessment. The Agency proposed a measure of privatization regarding debt write-off by state creditors, but the final decision on this is on the Serbian Government, in line with the Law on Privatization.

What follows in this process is forwarding the decision on privatization to the entities subject to privatization. The latter must then prepare privatization documentation, after which the sales preparations take place. Media do not have a special status regarding sales as compared to other entities. The initial price will most likely be 100% of assessed value (although the law envisages that it may also be 50%). There will be no public competition if only one offer is received fulfilling all the conditions. If the first stage of privatization is unsuccessful, the process is shifted to the second stage - the transfer on the employees without remuneration. Media have a preferential position in this respect as the Law on Privatization prescribes that only up to 30% of capital of other entities may be transferred without remuneration, while the figure is 100% for media. The second stage is completed with the employees' application for capital registering and issuing of a decision with the list of shareholders by the Agency.

Rade Veljanovski presented the provisions of the Law on Public Information and Media pertaining to defining public interest. He pointed to the importance of public interest for the media reform and the implementation of laws. Former laws envisaged a fairly good range of implemented standards of Europe and the world, but this was often not enough in the implementation of the laws, mainly regarding the category of „public interest in the public information domain". Compared to the earlier law, the Law on Public Information and Media is considerably different concerning the definition of public interest.

Since the start of the talks on the media reform it was evident that better harmonization with European standards is necessary, all with the aim of progress in the public information sphere, particularly due to the unsatisfactory state in the media sphere. Former laws - the Broadcasting Law and the Law on Public Information - envisaged obligatory privatization that has not taken place. The first among the standards of the European media policy regulatory framework is distancing of the entire media system from the influence of power centers (business, politics, state etc). If this standard is not fulfilled, other media freedoms are unfeasible. This position stems from a democratic and libertarian politics established by Habermas. Article 10 of the European Convention on Human Rights speaks precisely about it. Public interest is also labelled general interest, with a reason, because it encompasses all citizens, with no exceptions, with no privileges or discrimination. Europe has a political view that all media, regardless of their status (private, commercial or public service), should fulfill public interest commensurate to their participation in the public sphere.

The new Law on Public Information and Media defines in detail what public interest is and how it is fulfilled, which is a significant regulatory improvement. In drafting the Law there was no doubt about the wish to implement the highest possible standard, although an ideal solution is hard to reach. However, it is necessary to work equally on the improvement of the regulatory framework and on the implementation thereof. 

The only warranty of the fulfilment of public interest is the existence of public service broadcasters, while also allowing the right of commercial media to fulfil public interest with their programming content. In that regard, commercial media may also compete for budgetary funds in order to fulfill public interest. That is how the law operationalizes the concept of public interest in the domain of public information - through co-financing of projects.
 
The basic dilemma regarding the participation of the state in the media sphere is evident in the legitimate question: how does one regulate without imposing influence? This is a question of democratic culture and democratic growth of a society. It is important to note here that the authorities may act in accordance with the highest standards in the regulatory sphere, while exerting political pressure in practice (for example, the obligation to broadcast parliamentary sessions was not a decision of the board of editors of the public service broadcaster, but a result of political pressure). The pressure is even more obvious at the local level. The use of public funds for the fulfilment of public interest must not be conditioned with „returning favors" and this will be one of the most basic tests of democracy and success of the media reform. Defining public interest in the Law is only the beginning of this process. The key task and challenge is thus adequate implementation of the provisions of the Law pertaining to project-based co-financing.
 
After the panelists' presentation, a debate ensued about issues important for the implementation of media laws. The questions pertained to the implementation of the Rulebook on project-based co-financing, privatization process and the definition of media.
 
ANEM will organize another five seminars on the implementation of new media laws in 2015: in Novi Sad, Subotica, Nis, Kragujevac and Novi Pazar.


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The organization of the seminar on the implementation of new media laws is supported by the Embassy of the Kingdom of the Netherlands.  

http://serbia.nlembassy.org/ 

The views and opinions presented at the seminar do not necessarily reflect the views of the Embassy of the Kingdom of the Netherlands.  

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

  • PHOTO: MC Belgrade

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