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07. 04. 2015

REPORT FROM THE 4TH ANEM SEMINAR ON THE IMPLEMENTATION OF NEW MEDIA LAWS

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The 4th ANEM seminar on the implementation of new media laws was held in Niš on 31 March 2015. The seminar was opened by Milorad Tadić, ANEM president and Gordana Janković, Head 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, Olivera Aranđelović, manager of the media privatization project at the Privatization Agency, Ljubiša Kuvekalović, senior legal advisor at the Regulatory Authority of Electronic Media, and Rade Veljanovski, media expert and professor at the Belgrade Faculty of Political Sciences. The moderator was attorney at law Miloš Stojković, member of the ANEM legal team, who also spoke about certain novelties in the Law on Electronic Media in the context of finalizing digital switchover. The seminar was attended by more than 60 participants, mainly from the media sector (38) and local self-governments (20). 

After this 4th seminar on the implementation of new media laws, two more are planned to be held - in Subotica and Novi Pazar. The purpose of the seminar was to help media professionals and other interested parties to better understand new media laws (the Law on Public Information and Media as the umbrella law for all media and the Law on Electronic Media as the umbrella law for electronic media) and the ways to implement them so they could adequately fulfill their rights and obligations.

Slobodan Kremenjak stressed that the adoption of media laws did not start from scratch, but that it merely continued the process that began with the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the adoption of the Constitution and earlier laws that regulated media sector. By ratifying the European Convention for the Protection of Human Rights and Fundamental Freedoms in 2003, Serbia practically accepted the competence of the European Court of Human Rights. As media law generally pertains to the right of freedom of expression, by accepting the European Convention Serbia also accepted the European standard of the protection of this right. Additionally, the earlier Law on Public Information of 2002 and the Broadcasting Law of 2003 were drafted with the idea of accepting relevant international standards. Therefore, every new media law must respect achieved standards, and the main task of the new Law on Public Information and Media is to remove irregularities in the implementation of these standards. The new Law on Public Information and Media has clarified provisions on joint liability as it explicitly envisages joint liability of a journalist, responsible editor and media publisher for publishing information, i.e. that joint liability pertains to the liability within one media outlet, and not to other media carrying information produced by that media outlet. This should prevent cases (that used to happen) where a media outlet that carried the information originally published by a different media outlet is held responsible for it (the example of the daily "Danas"). The Law also defines more precisely the rules for the exclusion of liability for damage. It excludes the liability for accurately conveying information originating from a responsible state body considering that, according to the earlier Law, it used to happen that a journalist was held responsible for compensatory damages although he/she merely accurately conveyed content of a public body's document. A journalist's liability is also excluded when information was published in the live programme broadcast and the journalist acted with due diligence. The Law introduces new criteria for courts when deciding on the amount of compensatory damages; the court shall now take into account whether publishing a correction or a reply was used before filing the claim for compensatory damages. Kremenjak pointed out that the law is not self-sufficient as it is a part of a broader whole that court practice stems from. Additionally, new laws on organization of courts transfer the entire competence for authors' rights and media-related litigations to the Higher Court in Belgrade, which could lead to professionalization in the implementation of media standards and the consistency of court practice in the said litigations. However, all these provisions are merely a development of already known standards. What is new in the law are the rules aimed at creating an environment that will ensure equal competition in the media market. These rules define the means of financing media from public funds. Kremenjak stated that such aid has been forbidden by regulation on state aid since 2009 and financing from public funds has been allowed only exceptionally; however, an exception was set as a rule in the media sector and thus the new law wished to correct this unnatural situation. Therefore, project-based co-financing of media has the aim of more precisely specifying state participation in media financing and introducing it into legal framework.

Saša Mirković presented current activities of the Ministry of Culture and Information and focused on the recently issued competitions for project-based co-financing, and on entering information into the newly established Media Register. The Ministry issued public competitions in 6 categories on 2nd February, which were open till 3rd March. The majority of projects were submitted on the last day and thus the selection process will take a while. As it seems now, the number of submitted project proposals is significantly higher than last year, which is probably influenced by the increase in allocated funds. Media and journalists' associations submitted their proposals for selection panels' members and the process of establishing panels is close to being finalized. The composition of panels will be publicized and transparency will be ensured in the work of the panels. This is the first competition this year, and the Ministry will issue the second one in the second half of the year in order to give a chance to the media that are still publicly owned (and will be privatized by July 1st) to apply for funds intended for project-based co-financing. The percentage of public funds in project-based co-financing is 80% and the media outlets need to finance the remaining 20%. There has been a lot of talk in the public about the amount that local self-governments should allocate for public information purposes. During the public debate on media laws there was a discussion about a minimal treshold of 2% (of local budgets). However, it was not possible to introduce this into the Law on Public Information and Media at the time as this would infringe rights of local self-governments. The Journalists' Association of Serbia produced a research on the amount of funding allocated for public information purposes by units of local self-government. The research, which compares data from 162 units of local self-government, showed that the funds allocated by 21 local self-governments go beyond the said 2% of local budgets, but also that 21 local self-governments have not allocated funds at all. Nevertheless, the average percentage of allocated funds is 1.1%, which is satisfactory considering that we are in the first year of the implementation of the new laws. Mirković also spoke about the Media Register. According to the latest available data of the Serbian Business Registers Agency, there are 1379 media outlets in Serbia. The data is not entirely accurate as some media that ceased to exist were not deleted from the Register and some news agencies entered each of their services separately into the Register. It should be made clear, Mirković said, that registering in the Register is not obligatory; however, failure to register prevents those media from participating in project-based co-financing and forbids public entities (the Republic, Autonomous Province, local self-government unit, institution, company or another legal entity the majority shareholder of which is the state or which is entirely or predominantly funded from public revenue) to advertise in such media or use their services. Additionally, the Register will be drastically different from the previous one as it will contain numerous new pieces of information, such as those on ownership structure and state aid. It should be noted that the public body which issues a competition is the one obliged to submit information on state aid - not the media. The process of registering in the Register has only begun and an objective analysis can be conducted only after the process is over, Mirković said. 


Ljubiša Kuvekalović presented important novelties brought by the Law on Electronic Media. He said that the function of the regulatory body has not changed significantly as it continues to issue licences, specify the rules envisaged by the law (regulatory function) and control the work of media service providers. As for its regulatory function, the regulatory body adopts several bylaws. The first regulation instrument is the rulebook - it specifies legal provisions and it replaced the generally binding instructions (that the regulator will cease to adopt). The second instrument is the instruction by means of which the regulator informs the public on how it will implement certain legal provisions. The third one is the recommendation, that is not legally binding, but it serves to harmonize the allowed practice with the aim of improving audio-visual media services. An important novelty is conducting public debate in the process of adopting bylaws. A public debate lasts at least 15 days, after which time the bylaws are submitted to the Ministry of Culture and Information for the assessment of constitutionality and legality. In adopting bylaws, the regulator makes sure that the rules are precise so that media service providers would know how to behave. The regulator also ensures that it respects the rule of proportionality in imposing obligations and limitations. This rule means that limitations have to be proportionate to the goal they are to achieve, that the adoption procedure is based on the principle of publicity and that the rules are realistically applicable and periodically subject to change according to the periodical assessment of their effect in practice. The Law on Electronic Media introduces some novelties as a consequence of harmonization with the European Audiovisual Media Services Directive, but also some that are a result of problems detected in practice. As for the novelties regarding advertising, the key ones pertain to the introduction of the institute of product placement and broadcasting of advertising message simultaneously with editorially shaped content (virtual advertising, screen division etc). As the novelties are most prominent in this area, the Regulatory Authority of Electronic Media published already in October an interpretative statement regarding the means of implementation of the provisions of the Law pertaining to audio-visual commercial communications. In the meantime, the Council of the regulator defined the draft of the rulebook specifying this subject matter; public debate lasts till 6th April. There are quite a few novelties in the area of protecting the rights of minors in programme content, particularly in the categorization of minors and programmes (suitable for the age of 12, 16 or 18), including a different definition of protected time when content that could harm minors must not be broadcast. The rules defining the participation of minors in the audiovisual programme and the protection of their rights are more precise now. Protection of minors is specified by a rulebook that has come into force. Every media service provider must respect human rights in programme content. However, the Law does not specify which human rights are protected and whose rights these are in the context of media service provision. Therefore, the regulator defined a draft rulebook that specifies this subject matter (the rulebook is subject to public debate by April 6th). There are new rules regarding drawing up a list of events of major importance for society and the access to these events; the rules are specified by a rulebook that has come into force. Media service providers also have obligations regarding the accessibility of services to persons with disabilities (the regulator adopted a recommendation pertaining to this). Kuvekalović also talked about the obligations regarding programme quotas, particularly those of European production. As for the control function, the regulator is authorized to control media service providers regarding their respect for the afore mentioned programme-related obligations and the respect of conditions set out in the licences. The proceedings (specified by a rulebook that has come into force) are initiated ex officio or by the application of an interested party. Measures at the regulator's disposal are: reprimand, warning, temporary ban on publication of programme content up to 30 days and revocation of licence. A reprimand is imposed for breach of obligations, a warning for grave breach of obligations, and a temporary ban on publication of programme content for particularly grave breach of obligations. The regulator can no more impose the measure of temporary revocation of licence, and the graduation in imposing measures is different than the one formerly prescribed by the Broadcasting Law. The regulator may also initiate misdemeanor proceedings, as has been the case already. Since the adoption of the Law on Electronic Media, the regulator has imposed 4 measures of reprimand (for breach of rules on the protection of minors and the rules on advertising) and 3 measures of warning (for breach of rules on the protection of minors).
 
Miloš Stojković spoke about the new regime of authorization for providing media services, particularly in the context of finalizing the digital switchover process. The Law on Electronic Media brings novelties regarding authorization/licenses for providing media services. It could be said that media service can be provided at 4 levels, based on: a license issued in a public competition for terrestrial FTA broadcasting (digital and analogue), a license issued at the request of a media service provider for other media platforms (KDS, DTH, IPTV etc.), an authorization issued at the request of a provider of on demand media service (non-linear, at the user request, and based on the programme content catalogue), and without an obligation to obtain authorization or license - for providing service in accordance with the provisions of the European Convention on Transfrontier Television, for public service broadcasters, and in the case of providing service via the Internet. This year is a transitional one regarding the introduction of new rules, not only because of the introduction of project-based co-financing and the obligatory privatization of media, but also because of the completion of the digitalization process. Digital switchover is already well underway in some allotments, and thus digitalization is being finalized. It is necessary to negotiate with the ministry responsible for telecommunications and JP ETV considering that a new price list of JP ETV was adopted in late 2014, which price list imposes disproportionate financial obligations to broadcasters. With this in mind, ANEM has already been thinking about initiating negotiations with responsible state bodies and organizations to avoid closure of media because of their incapability to meet financial obligations imposed by digitalization.
 
Zoran Pavić presented the activities of the Privatization Agency regarding the privatization of remaining publicly owned media. The process of media privatization is being conducted based on two laws - the Law on Privatization and the Law on Public Information and Media (Article 142). The Agency issued a public call in August for collecting letters of interest for a total of 73 media. Local self-governments, as founders of 64 media, were obliged to submit decisions on the model of privatization and documentation prescribed by the law. As the legal deadline for privatization is nearing and considering that the Agency has not received sufficient number of valid decisions on privatization (some local self-governments have not submitted anything, some decisions are incomplete, and some do not follow legally prescribed form), an agreement was made between the Agency and the responsible ministry by which the Agency itself will compose draft decisions in a form and with elements prescribed by the law. The drafts were submitted to local self-governments with the request that the latter submit their decisions by April 1st. At the same time, the privatization subjects (the media) were urged to submit all necessary documentation to the Agency by the same deadline in order to start the procedure of public calls for collecting offers and to respect the deadlines envisaged by both laws. The Agency has been preparing intensively for issuing public calls as soon as the necessary documentation arrives.
 
Olivera Aranđelović, as media privatization project manager, explained details and specific obligations of privatization subjects. The Agency has been collecting documentation and information from all the media in order for legal grounds to be established to issue a public call for collecting offers. Aranđelović pointed out that fixed deadlines and insufficient time dictate the need for the media to take their obligations toward the Agency seriously. There will be no official extention of deadline beyond July 1st, and the Agency has no information on the contrary. First, it is necessary that all the media, with no delay, send complete documentation to the Agency by April 1st. After that, local self-governments, as media founders, have to pass decisions on the method and model of privatization. Majority of self-governments failed to fulfill this obligation. The statistics are discouraging as only 8 correct decisions were submitted for the pool of 72 media, 23 decisions were incorrect, 21 decision was not submitted, while 10 media have negative capital. As for other decisions, those outside the responsibility of local self-government, the situation is the following: a decision was passed for Dnevnik Holding Novi Sad, whose founder is the government of the autonomous province of Vojvodina; for RTV Kragujevac, whose founder is the Republic of Serbia; 7 decisions for micro companies were adopted by the Agency (as it is authorized to do so); the decision by the Government of Serbia is expected for the news agency TANJUG, whose founder is the Republic of Serbia. Only 12 media submitted the documentation, and there are local self-governments and media that do not respond to the Agency's calls or respect their legal obligations. In all of this, it is important to differentiate between a letter of interest and a public call, Aranđelović said. The letter of interest serves only as one of indicators to the Agency for choosing the privatization model. Public competition starts at 100% of estimated value, and if the first competition fails, it is proclaimed failed and a second one is called with the initial price in the amount of one third of the original value.
 
Rade Veljanovski spoke about regulatory and practical angles of public interest in the public information sector. In transition countries, even in those that first embarked on the transition process, media laws have been changed much more often than is the case in Serbia. Our laws survived for 10 years, and the key idea of adopting new laws was to harmonize media laws with European standards. The idea is logical and its purpose is not to merely take over something from Europe, but it is important for developing our state as a modern and democratic one. Earlier laws envisaged a fairly good set of implemented standards of Europe and the world. However, this was often insufficient in the implementation of the laws, primarily due to the absence of political will, but also because the provisions of the laws were not specified enough. Nevertheless, good journalists and good media existed even in the times of a single party system, but the editorial policy of each media outlet in that system had to follow a single pervailing ideological matrix. The European media policy is based on distancing the entire media system from the influence form the power centers (business, politics, state etc.), which is, in fact, the implementation of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (free flow of information, freedom of expression, freedom to receive and impart information, without intereference of the authorities and regardless of borders). Jürgen Habermas said that there is no free media if there is any monopoly in the public sphere, i.e. if the media cannot fulfill their democratic function due to the lack of autonomy from their surroundings. That is why the withdrawal of the state from media ownership is necessary, which the earlier law prescribed and the new Law on Public Information and Media defines as an obligation to be fulfilled by July 1st, 2015. This is also necessary as it turned out that the state is not the best media owner, particularly due to the influence on editorial policy. Defining public interest in the public information sector and project-based co-financing are important novelties in media regulation. Public interest can be fulfilled by all media, regardless of their status, and if they fulfill it - they have the right to certain subsidies through project-based co-financing that is regulated by the law and the Rulebook of the Ministry of Culture and Information. The state and all the levels of public authority (autonomous province/local self-government) must ensure that public interest is fulfilled and must allocate adequate funds by means of project-based co-financing. The law does not prescribe the amount to be allocated for public information purposes in local budgets, the budget of the autonomous province or the republic budget. Hence the practice varies, particularly at the local level. However, it is logical that the authorities should allocate at least the amount they used to allocate for direct financing of media they used to own. These funds should be a sort of a guarantee of survival of quality media that fulfill public interest in the public information sector, although the funds will not solve all the financial problems of the media. Veljanovski particularly pointed out the meaning of the obligation of local self-government to ensure the fulfilment of public interest - it does not mean founding media and the ownership control over them, but it pertains to creating an environment for the development of public information, in order to realize the interest of citizens and not that of the government.
 
The discussion following the panelists' presentations was dominated by comments and questions regarding the process of privatization and project-based co-financing. Certain participants, who were already (in public debates on drafts of media laws) at the stance that public service broadcasters are needed at the regional and local level, reiterated their opinions that privatization should not include certain publicly owned media outlets. It was also pointed out that there is a procedure before the Constitutional Court for the assessment of constitutionality of the media laws. A particularly interesting question was whether city municipalities are obliged to implement the provisions of the Law on Public Information and Media pertaining to securing funds for financing public interest in the public information sector. The Ministry representative cited the interpretation of the ministry responsible for local self-government which states that city municipalities are not local self-governments. There were also questions regarding contentious programme content, such as violence, inappropriate presentation of alcoholic beverages, nudity (which is particularly present in reality shows). The representative of the regulatory body responded by saying that the measure of warning has already been imposed on some media and that the work of these televisions is being monitored, with the possibility to impose a stricter measure on them if the detected irregularities are repeated.
 

 

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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.   

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