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02. 03. 2015


The third ANEM seminar on the implementation of new media laws (the Law on Public Information and Media and the Law on Electronic Media) was held in Kragujevac on 25 February 2015.


The event was attended by more than 50 participants - lecturers, representatives of the media, local self-governments and other interested parties. Another 3 seminars of this kind will be held between March and May 2015 - in Niš, Subotica and Novi Pazar. The goal of the seminar was to enable all the media and journalists and other interested parties to obtain from competent lecturers expert clarifications and explanations of rights and obligations prescribed by the said laws, so that they can better understand the laws and adequately implement them.

The seminar was opened by Milorad Tadić, ANEM president, and Sanja Stanković, representative of the Media Department of the OSCE Mission to Serbia. The panelists were: Saša Mirković, state secretary at the Ministry of Culture and Information, Slobodan Kremenjak, attorney at law and member of the ANEM legal team, Zoran Pavić, director of the communications sector of the Privatization Agency, Rajka Galin Ćertić, assistant director for legal affairs with the Regulatory Authority of Electronic Media and prof. Rade Veljanovski, PhD, media expert and professor at the Faculty of Political Sciences of the University of Belgrade.

Slobodan Kremenjak presented the key solutions that the new media laws bring (the Law on Public Information and Media and the Law on Electronic Media). He stated that Serbia ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms in 2003 and thus introduced into its legal system provisions of the Article 10 of the Convention pertaining to the freedom of expression and accepted the competence of the European Court of Human Rights. Also, the amendments to the Constitution of 2006 envisage direct implementation of the provisions of international treaties and agreements, including the European Convention, in accordance with the practice of bodies responsible for monitoring the implementation thereof. This means that Serbia has had Article 10 of the European Convention as an element of its internal legal system since 2003 and the state bodies, including courts, have been obliged to implement these rules in accordance with the practice of the European Court of Human Rights in Strasbourg. However, the problem is erroneous implementation - very often the courts have not been adept at the implementation of international standards. That is why the task of the new Law on Public Information and Media is, among other things, to respond in a way to problems identified in practice.

Stating that other lecturers would talk about many new legal solutions, Kremenjak focused on the novelties that were not a subject of their presentations.

He explained a new definition of media, new rules on who may and may not be media publisher, and the new solution prescribing that the right to publish media is subject to legal transaction.

Kremenjak stressed that the new Law on Public Information and Media clarified provisions on joint liability - it explicitly envisages that a journalist, responsible editor and media publisher are jointly responsible for publishing information, i.e. that joint liability pertains to the liability within a media organization, and not to that of different media carrying the same information. It has been the case in practice that the media carry the material of other media; however, as for the contribution to the damage - those who created the material and those who only carried it cannot be treated equally. Responding to a participant's question regarding a case when bankruptcy proceedings are initiated for a media publisher and both the author of the material and the publisher are sued, Kremenjak said that the case is indeed very rare in practice and that most frequently the publisher, and not the journalist, is responsible for compensating damage. However, it is not illegal if only the journalist is held responsible since the law envisages joint liability for all the participants in the chain - the journalist, editor, and publisher, and the plaintiff may choose the party to sue. The new law resolved the issue of the transfer of liability among different media and not within one media organization.

Another important novelty that the new media laws bring pertains to the choice of legal means in the protection of rights, i.e. whether a correction or a reply were used before the claim for compensatory damages was filed. These provisions of the Law are, in fact, an instruction to the court what to assess when estimating the amount of compensatory damages.

The law also clarified the rules pertaining to the means of conveying information from court proceedings by expressly prescribing that the information from the main hearing may be imparted almost without a limitation, while the information that was not presented in the main hearing may be imparted if it is accessible on the basis of the Law on Free Access to Information of Public Importance. This is a very good solution as it is much more favorable for the media, Kremenjak said. The grounds for exclusion of liability for damage are also better prescribed, which is particularly important regarding imparting information originating from a state body. The rule should be that there is no liability for damages if information of a state body is faithfully carried. Kremenjak cited the example from Belgrade pertaining to the procurement of vaccines for bird flu in which case the police submitted to the prosecution complete criminal charges initially containing the names of 14 people and subsequently corrected the charges at the request of prosecutor by omitting the names of the persons; however, the official memo composed by the policemen as a report to their superiors that the prosecution pressured them to omit certain names reached the media, and one person whose name was in the initial charges sued a media outlet because their name was absent from „the official criminal charges". Previous law had not defined what an „official document" is that absolves a media outlet from responsibility, and thus the media outlet could be held responsible even if it faithfully carried the official memo from the above cited example, provided the court estimated that the official memo is not an official document. The dilemma from the practice is resolved to some extent as it is now defined that every document that could be obtained from a public body based on the Law on Free Access to Information of Public Importance may be published without liability of the media outlet that published it. However, it is important not to create an erroneous image of the nature of a specific case. For example, if the material published by a media outlet is an indictment, the article must not state that the defendant is convicted.

The participants were curious to know whether media may carry the contents of local parliamentary debates - Kremenjak responded that parliamentary sessions are public and that a journalist ought to be exempt from liability if he/she faithfully carries the contents of a debate. He also said that everyone has the right to sue a journalist and that this cannot be forbidden by law because it is a human right (to a fair trial).

Rajka Galin Ćertić presented important novelties that the Law on Electronic Media brings and the new scope of work of the Regulatory Authority of Electronic Media (REM).

The Law brings numerous novelties as it is significantly harmonized with the European Audiovisual Media Services Directive. However, one should focus on the current issues as the year 2015 is the key one for the development of electronic media, the REM representative said. The licences of the bulk of broadcasters with local and regional coverage are to expire in 2016 and 2017, which is evident from the register of licences maintained by REM. The technical part of the licence for television broadcast is valid until the end of the digital switchover, i.e. by 17 June 2015. As of that date analog broadcasting of TV program will not be possible and it is necessary to conclude an agreement with JP ETV (the operator). These technical issues should be clarified in the meeting of ETV with local and regional broadcasters, to be held in Kragujevac at the end of February.

Broadcasters with valid licences have a right to access multiplex, but each broadcaster decides whether it will use this right. If a broadcaster does not conclude an agreement with JP ETV, it will not be able to broadcast program at all (neither analog or digital) after the end of the digital switchover. If a broadcaster uses the right to access multiplex, it is important to note that the coverage zones will be significantly larger than the existing ones, which has not only technical implications, but programming ones as well. The Regulatory Authority will provide the broadcasters with adequate time to adjust their programme content to the larger coverage zone.

This is related to the issue of the extension of existing licences. The Law clearly defines what should be submitted with the request for the extension of a licence. Therefore, there is no automatic extension of licences and the broadcasters should be prepared for that. The Regulatory Authority will inform the broadcasters on all the important aspects of licence extension in due course. One of the criteria for licence extension will be the broadcasters' conduct, particularly whether a measure has been pronounced against it by the Regulatory Authority.

The measures are conceptualized differently considering that a new measure was introduced - that of a temporary ban on publication of the programme content, which measure practically replaced the measure of temporary revoking of licence (that existed in the Law on Broadcasting) although with significantly fewer consequences as the new measure does not lead to de facto ban on the entire programme (which was the case with the temporary revoking of licence) but to the temporary ban on broadcasting specific content. This is a very good solution, Rajka Galin Ćertić said, particularly taking into consideration frequent errors in certain programme content, especially in reality shows.

Additionally, the Law prescribes certain criteria for the Regulator to assess which measure to pronounce against a media service provider - it is significant what public reaction a violation of rules created, whether there was an intention, whether a measure has been previously pronounced etc. The Regulator will prescribe more precise conditions regarding the means and the procedure of pronouncing measures by a rulebook that is currently undergoing the process of constitutionality and legality assessment.

The new law also prescribes an explicit obligation of the Regulator to maintain the Register of Media Services.

The REM representative underscored that the Law changed the title of the regulator - instead of being an "agency", it is now a "regulatory authority" that has significant obligations and competencies as the regulator, particularly regarding defining certain issues more precisely by a set of bylaws, which is an important novelty.

The Regulatory Authority initiated a public debate in December 2014 on the drafts of three rulebooks: on the protection of minors, on the measures pronounced by the regulator and on the criteria for establishing a list of events of general interest. The rulebooks were adopted after the public debate. Other bylaws are to be adopted, such as the one on advertising rules in electronic media, that will also be subject to the public debate.

Saša Mirković confirmed that 2015 is exceptionally important and intensive for the media sector. He focused on the calls for project-based co-financing that the Ministry issued at the beginning of February, and on the issue of entering information into the newly established Media Register.

The calls were issued on 2 February in 6 categories and are valid until 3 March. One of the calls is a novelty - it pertains to raising ethical and professional standards in journalism by means of organizing seminars, education and public debates. Funds allocated to the calls have been significantly increased compared to the last year and they now amount to some 250 million dinars (compared to 100 million last year); the limits of funding for co-financing of projects have also been significantly increased (e.g. 7.5 million dinars per project for the production of media content in the public information sector compared to earlier 1 million); therefore, the Ministry will be able to support serious and professional projects.

Taking into account the media that currently cannot apply to calls for project proposals due to their ownership status (public ownership), the Ministry planned to issue another call in the second half of 2015, after the end of the ownership transformation, and the same was suggested to the bodies of the autonomous province and to local self-governments.

What is important for the implementation of rules on project-based co-financing is that the representatives of media and journalists' associations suggest candidates for selection panels as soon as possible. The Ministry expects that the selection panels will complete their work in March and that the media whose projects were approved and who signed the contract could receive funding in April.

Mirković also talked about the versatile practice regarding public competitions at the local level and he stressed that there are negative examples that media and journalists' associations point to, but also positive ones, such as the example of the competition implemented in the city of Zaječar.

Regarding entering information in the Media Register, Mirković said that the procedure was initiated on 13 February and that the old media register was discontinued by incorporating it into the new one. According to the latest data of the Serbian Business Registers Agency, there is a total of 1379 media outlets. However, some media ceased to exist without having been removed from the Register, and some news agencies entered each of their services into the Register - consequently, the information is not fully accurate. Also, the Register will be drastically different than the old one considering that numerous new pieces of information will be available in it, such as information on the ownership structure and state aid, which is a positive step forward, important for the EU accession process, i.e. for a number of negotiation chapters (including the ones pertaining to fundamental rights, media and information society and state aid).

Zoran Pavić spoke about the media privatization process. Media privatization is carried out on the basis of two laws - the Law on Privatization and the Law on Public Information and Media (Article 142). In August 2015, the Privatization Agency issued a public invitation for collecting letters of interest for all subjects of privatization, including some 70 media. Close to 130 letters of interest were collected for companies that the public invitation pertains to. In October, the invitation was issued for collecting letters of interest for another 11 media that had initiated the privatization process in the meantime, and 9 letters of interest were collected. Pavić pointed out that in the case of the media two different things were being mixed up - letters of interest and offers. A letter of interest is a pointer to the Agency for choosing the privatization model. The Law on Privatization envisages three such models: strategic partnership, sale of capital and sale of assets. Strategic partnership is not adequate for the media, nor is the sale of assets as the media mainly do not posses immovable assets, and the Agency thus decided that the sale of capital is the most convenient model for the media.

The Agency is currently intensively engaged on the preparation of documentation for issuing public calls for the sale of capital of all the companies envisaged for privatization, including the media. If there are no buyers for the sale of capital, what follows is the distribution of shares to the employees (if they wish to take them), and if this does not succeed either, then the media will be removed from the Register in accordance with the Law on Public Information and Media. The process of issuing public calls will be intensified in the coming weeks. 

The procedure of the sale of capital is defined by a government bylaw that envisages issuing of a public call for submitting offers within 30 days, followed by opening of "first bids" containing information on bidders. If the commission conducting the privatization establishes that formal conditions for opening of a bid were met, what follows is the opening of the financial part of the bid. If it is established that there is only one bidder, the commission proclaims it the new owner and signs a contract with it. If there are multiple bidders, a subsequent public bidding is conducted where the winner is the entity that provided the best offer and the contract is signed with it.
A new government bylaw that will define the procedure of free of charge distribution of shares to the employees is expected to be adopted soon, which will complete the second (possible) part of the privatization process in the case that public bidding fails. The Agency cooperates with the media and the responsible ministry and it is available for clarification of all ambiguities related to the procedure.
The participants were particularly interested whether 1 July 2015 was the deadline for distribution of shares in the case that public bidding fails. Pavić responded that it will be known by that date if the public bidding was successful or not, and that possible distribution of shares would happen after that date. 
Rade Veljanovski spoke about regulatory and practical aspects of public interest in the public information sector. According to him, the issue points to the reason for embarking on the media reform. The earlier laws envisaged a fairly good set of implemented standards of Europe and the world, but this was often not enough in the implementation of the laws, mainly due to the absence of political will, but also because the provisions of the laws were not precise enough in order to be implemented in practice. It is a well known fact that it is much easier to write laws than to implement them. This is dubbed "a gap between normative and real" in theory, Veljanovski said. What was intended with the media reform was to achieve distancing of the entire media system from the power centers (business, politics, state etc), which is, in fact, implementation of the point 1 of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Jürgen Habermas said that there is no free media if there is any monopoly in the public sphere, that is if the media cannot fulfill their democratic function. It turned out that the state is not the best media owner, and not only in the legal sense, but also in terms of influence on the editorial policy. Hence the law prescribes the exit of the state from media ownership in Serbia now.
Another novelty in the media regulation is defining public interest in the public information sector. Public interest may be realized by all the media, regardless of their status. If they fulfill public interest, they have a right to certain subsidies, i.e. legally prescribed project-based co-financing. Although it is very difficult, particularly in the current market conditions, to produce content that fulfills public interest, the state and all the levels of public authority (republic/autonomous province/local self-governments) must ensure that public interest is met and must allocate adequate funds for it through project-based co-financing. The obligation of local self-governments to ensure the fulfillment of public interest does not mean founding media and the ownership control over them, but it pertains to creating the atmosphere for the development of public information so as to fulfill the interest of citizens, and not that of the government.
Pluralism of media content sheds light on the society from multiple angles, which contributes to democratization of the society. This is important not only for the accession to the EU, but also for the Serbian society itself - that its public sphere be democratic. Meanwhile, particularly in transitional societies, there is a great dilemma on how to regulate without imposing influence (and this question is equally applicable to all the levels of authority).
Practical implementation of provisions pertaining to project-based co-financing is very important, especially when it comes to the decision on allocating funds for public information from the public budget (local, of the autonomous province or the republic one). It is already evident that the practice, especially at the local level, is diverse. The potential and logical answer is that public authorities must allocate the same amount of funds (as the minimum) they had allocated to direct financing of media they used to own. The funds will not solve all the financial problems of the media, but they will be a sort of a guarantee of the survival of quality media that fulfill public interest in the public information sector, Veljanovski said.
After the panelists' presentations, a debate was opened on the issues important for the implementation of media laws. Among other issues, some dilemmas were clarified regarding entering information into the Media Register - it was explained that such entering of information is not obligatory, and that every media outlet is free to register itself or not. The only consequence of failure to enter information into the Register is inability of such media to compete for project-based co-financing, as well as limitations pertaining to advertising by public entities in such media. One of the topics discussed was the status of Internet media according to the new legislation. A panelist pointed to numerous problems regarding regulation of programme content on the Internet. The participants were also interested whether legal deadlines for privatization will be respected and what happens in a situation where a part of employees decides to take shares, while another part refuses to do so; the issue of social programme was also tackled. The representative of the Privatization Agency confirmed that the legal deadlines will be respected and that it is not relevant if some employees will decline free of charge shares - namely, if only one employee accepts the shares, the person becomes the owner, with the caveat that this procedure will be regulated in detail by a bylaw to be issued by the Serbian government. 


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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 the Netherlands.  


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















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