05. 11. 2003

ARTICLE 19's analysis of Montenegro's draft media law

Introduction

In March 2002, ARTICLE 19 received for comment an official translation of the draft Montenegro Media Law, produced by a working group established under the aegis of the Secretariat of Information. This draft law, which will replace the existing 1998 Law on Public Information as well as a number of other laws, represents an updated version of the draft Public Information Law published in October 2001. We commented extensively on that draft (1), and we are pleased to note that many of our comments and suggestions have been incorporated in the draft Media Law now released for comment. However, several of our concerns remain.

The present Memorandum updates our previously expressed concerns in light of the new draft. As an update, it does not discuss in detail the protection of freedom of expression in Montenegro through international and constitutional law. Instead, it first outlines the special position of the press in relation to freedom of expression and the protection
provided through the interpretative provision of the draft Media Law. The Memorandum goes on to provide a detailed analysis of some of the provisions of the new draft law which ARTICLE 19 has concerns about, along with recommendations for further improvement.

The Media and Freedom of Expression

Article 1 of the draft law states that the clauses in the law "shall be interpreted in compliance with the principles contained in the European Convention for the Protection of Fundamental Rights and Freedoms and shall be governed by the precedence law practice of the European Court for Human Rights." Not only is this an important statement of intent; it effectively incorporates the ECHR and the Court's case law into the draft Media Law.

It is well-known that the European Court of Human Rights has frequently underlined the special role of the press in a democratic society:

Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society. (2)

And further:

[I]ts duty is . to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of "public watchdog". (3)

The European Court's jurisprudence makes it clear that a genuine commitment to freedom of expression requires a high degree of tolerance in relation to all kinds of publications and broadcasts. In particular, the media must be free to discuss political developments and to criticise the government and other public figures without fear of
reprisal. These considerations are of overriding importance with regard to the draft Media Law. Should any doubt arise as to the meaning of its provisions, this should be resolved in favour of the right to freedom of expression.

Specific comments

Coverage of the draft Media Law

Article 6 of the draft Media Law defines media as including 'electronic publication', which is mentioned as being distinct from 'radio and television'. Whilst the precise meaning of this is unclear, we are concerned that this might be read to include the Internet. If so, this would be highly problematic. The Internet as a communication and publishing medium is radically different from the print or broadcast media. Whereas in broadcasting or print media, restrictions can be placed with regard to time and manner of transmission, or the place of publication, this is not possible with regard to the Internet. The special factors that are internationally recognised as justifying regulation of the broadcast media - such as the history of extensive government regulation of broadcasting, the scarcity of available frequencies, and its 'invasive' nature - do not apply to the Internet. (4) Moreover, there are important jurisdictional problems with Internet regulation and sites can easily move to jurisdictions which do not have such repressive rules. It would be nearly impossible for Montenegro to enforce its law on such web sites, even if they carry content that is aimed at Montenegro.

Recommendation:

Article 6 of the draft Media Law should be redrafted in such a way as to make it clear that its scope does not extend to the Internet.

Content restrictions

This is an area where the draft Media Law is significantly improved in comparison with the previous version. However, several unjustifiable restrictions on the content of what may be published through the media remain and some new provisions have been added.

Duplicative or repetitive provisions

A number of provisions in the draft law contain content restrictions which, if they are to be imposed, should be found in laws of general application since they apply to everyone, not just the media.

Examples of this are as follows:

Article 5 prohibits the dissemination of all information obtained in an illegal manner, unless publication is in the interest of national security, protection of territorial integrity and safety, prevention of disorder or crime and the protection of health.

Article 12 gives the State Attorney the power to apply to a court to request a ban on the distribution of media programming that "invites the forceful destruction of the constitutional system and violation of the territorial integrity of the Republic; infringes on the guaranteed human and citizen's freedoms and rights; or instigates national, racial or religious intolerance or hatred."

Article 21 establishes a right to bring defamation actions against media outlets which have insulted an individual's honour, integrity or dignity or which have made untrue statements about someone.

Article 24 prohibits the publication of "information and opinions that instigate discrimination, hatred or violence against person or group of persons based on their belonging or not belonging to a certain race, religion, nation, ethnic group, sex or sexual orientation". There is a defence, which was not found in the previous version of the law,
applicable if the information is judged to be of the public interest and was published "without intention to instigate discrimination, hatred or violence".

Many of these provisions contain generally accepted restrictions on freedom of expression. ARTICLE 19 has specific problems with some of these provisions, set out below. However, our main concern is that these prohibitions, to the extent that they are legitimate, should be applicable to everyone, not just the media. As a result, they are normally found in laws of general application. Where this is the case, repetition in a media specific law places the media under a double obligation and gives the impression that the media is being singled out for harsh treatment. This tends to have a chilling effect on freedom of expression, and serves no legitimate interest.

Recommendation:

Articles 5, 12, 21 and 24 should be removed from the draft Media Law. To the extent that they contain legitimate restrictions on freedom of expression, they may be transferred to laws of general application.

Banning of media: Articles 12 - 18
Article 12 of the draft law provides for the State Attorney to apply to a court to request a ban on the distribution of media programming which pursues certain negative goals, as noted above. Whilst this has been worded somewhat more precise than the corresponding provisions in the October 2001 draft, we remain concerned, in addition to their inclusion in a media-specific law, that these are extremely vague grounds which are easily abused on political grounds.

Articles 13 - 18 prescribe the procedure to be followed in court proceedings for such a ban. As in the previous draft, the draft law continues to envisage proceedings in the absence of the defendant as well as extremely short time limits for each stage of the proceedings. This constitutes a violation of the fair trial principles enshrined under Article 6 ECHR. (5) The law should provide defendants with the fullest possible opportunity to defend themselves, particularly in view of the extreme nature of the sanctions available.

Moreover, we view with the utmost suspicion the fact that the only sanction available is a total ban of the publication concerned. This is an extreme sanction and ARTICLE 19 is of the view that it should never be applied to the print media. Regardless of this, it is certainly unjustifiable to apply it except in the very most serious cases, after other sanctions have proved unable to rectify the wrong.

Recommendations:
Articles 12-18 should be removed from the draft Media Law. If they are to be retained, the following protections should be added: a. There should be a graduated sanctions system; and b. Proceedings should be conducted in accordance with the fair trial principles enshrined under Article 6 ECHR.

Illegally obtained material

Article 5 prohibits the dissemination of all information obtained in an illegal manner, with certain exceptions, as noted above. Whilst this is an improvement on the previous draft, which contained an absolute prohibition, we still believe that this prohibition is unnecessarily restrictive of the right to freedom of expression. In addition to the grounds mentioned provided for in the draft law, it may be in the public interest to disclose information, for example where it exposes government corruption, environmental degradation or fraud, even if that information was obtained illegally. This has been recognised by the European Court of Human Rights. For example, in the case of Goodwin v. the United Kingdom, the Court responded to the Government's claim that material obtained in breach of confidence should be afforded lesser protection by holding: "these are undoubtedly relevant reasons. However the considerations to be taken into account under paragraph 2 of Article 10 . tip the balance of competing interests in favour of the interest of democratic society in securing a free press". (6)

Recommendation:

The prohibition on dissemination of illegally obtained information should be subject to a general public interest override.

Attacks on privacy, honour and dignity

Article 21 states that an individual whose honour, integrity or dignity has been insulted, or about whom untrue statements have been made, shall have a right to press charges against the author of the information. This is an excessively broad definition of defamation. ARTICLE 19 is of the view that only false statements should be subject to defamation restrictions. Furthermore, a number of defences should be available in the context of an allegation of defamation. Article 21 does not appear to provide a defence of any kind. This will seriously inhibit discussion on matters of public interest and constitutes an illegitimate restriction on the right to freedom of expression.

Article 23 prohibits the media from publishing the identity of a minor involved in a criminal act. As we stated in our October 2001 Memorandum, while this is certainly a professional obligation it should be subject to a public interest override. We also pointed out that
there is a significant difference between forbidding public officials from divulging the names of children involved in crime, a prohibition found in the laws of many countries, and forbidding the media from reporting the same thing.

Recommendations:

The prohibition on the publication of the names of children involved in crime should be subject to a general public interest override.

Article 21 should be removed from the draft Media Law. Any defamation provisions should be found in the civil Code.

Positive obligations

While a number of the positive obligations included in the previous draft have now been deleted, two remain. Article 23 states that "media are obliged to protect the integrity of minors" while Article 27 puts he media under an obligation to carry such factual reports as the competent republican authority shall require. As we noted in our october Memorandum, such obligations are a misconception of the way in which a free media satisfies the public's right to know, and are counter-productive. To ensure in practice the public's right to be informed, it is necessary to create an environment in which an
independent and pluralistic media can flourish, not to impose specific positive obligations on the media. A diverse and creative media will compete for public attention and thus ensure that sufficient attention is given to different information needs. Moreover, the obligation in Article 27 is clearly open to abuse for political reasons.

Recommendation:

The positive obligations in Articles 23 and 27 should be removed from the draft law.

Other concerns

Right to reply: Articles 28 - 38

Under Article 28, individuals whose legal rights have been breached by any publication are entitled to reply or make corrections in the same publication. Articles 29 - 38 provide the detailed conditions and procedure under which this 'right to reply' is to be carried out.

We welcome the fact that Article 28 now makes it clear that only individuals whose legal rights have been breached are entitled to a right to reply. However, we are concerned that under Article 32 the media are required to publish the reply without modification and they are not allowed at the same time to make any comment. While the right to reply can provide an accessible means for individuals to respond to breaches of their rights, it must not at the same time unduly restrict the rights of the media. In considering a case on the right to reply under Spanish law, the European Commission on Human Rights considered
it important that the publication had the opportunity to comment in the same edition. (7)

Recommendation:

The prohibition on commenting on the reply in the same edition or programme should be removed from the draft law.

Freedom of information

Under Article 8, legislative, executive and judicial authorities and all other public authorities are required to make accessible information to media professionals. As we noted in our October 2001 Memorandum, whilst there is nothing intrinsically wrong with such a provision, it should not serve as an excuse not to introduce a full freedom of information law. The Committee of Ministers of the Council of Europe recently adopted a Recommendation on Access to Official Documents (8), and last year ARTICLE 19 published a 'Model Freedom of Information Law'. (9) We encourage the Montenegrin authorities to start work on a draft freedom of information law in accordance with the standards set out in these documents as soon as possible.