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14. 12. 2012

ANEM Seventh Monitoring Publication presented!

At the round table held on December 14, 2012, ANEM presented its latest Seventh publication "Legal Monitoring of the Serbian Media Scene". The event was attended by around 50 participants - representatives of state authorities (Ministry of Justice, Ministry of Culture and Media, Intellectual Property Office), judiciary (Association of Serbian Judges, Court of Appeals in Belgrade, Court of Appeals in Novi Sad), regulatory bodies (RBA, RATEL), journalists' associations and NGOs (NUNS, BIRN, Belgrade Center for Human Rights, YUCOM Educational Center), media (RTS, RTV, B92, Tanjug, Beta, Radio Beograd 1, TV Alfa from Uzice), media organizations, international organizations, embassies and donor community (Foundation for an Open Society, the Embassy of the Netherlands, EU Delegation, OSCE, Civil Rights Defenders), experts, professors and students from Belgrade University (Faculty of Law, Faculty of Political Sciences).

The Publication was presented by the authors of the texts, after which the participants discussed the topics covered in the texts as well as other current media issues.

PRESENTATION OF THE PUBLICATION

Kruna Savović, attorney at law, author of the text "The Reasons For and Against the Establishment of Regional Public Service Broadcasting", talked about the regional public service broadcasting as a solution in the Media Strategy that continued to be disputed and opposed by the largest media associations. By analyzing how the Media Strategy had regulated this issue, she explained which part of this solution was disputable and which was not. She pointed out the mechanism for implementing this solution as the biggest problem related to this issue, especially because it anticipated that these services would operate on the same principles as the existing public service broadcasting institutions, RTS and RTV, although their present way of functioning was problematic in terms of financial and managerial, as well as editorial, independence. The manner of establishing these services through competition is also disputable, because the selection procedure has not been defined in any way. Disputable is also the fact that the impact of their establishing on the market and competition has not been analyzed, nor the extent to which the existing commercial media are able to perform the function of public service broadcasting. In her opinion, the proponents of regional public service broadcasting primarily see it as a business model for survival of existing public media companies, or the means through which they, as local authorities, would keep their influence on public opinion on local and regional level. As reasons for such misperception of model of regional public service broadcasting, she mentioned a number of unresolved issues that had made the media system so dysfunctional and had created an unfavorable environment for the media. As strides toward creating a more favorable environment for local and regional broadcasters in Serbia have not been made, possible establishment of regional public service broadcasting would be only cementing the status quo and contribute to the disappearance of commercial media. This would lead to a situation that is in contradiction with motives for establishing these services defined by the Strategy - instead of being properly informed, citizens at the local level would remain exposed to the political monopoly of biased reporting, with no alternative sources of information, the author concluded.

Slobodan Kremenjak, attorney at law, author of the text "The Necessity to Regulate Cable Distribution and Broadcasting of Television Program", elaborated on the consequences of the lack of regulation of cable distribution on the media market, interests of media and the protection of the public interest. Namely, while the area of terrestrial broadcasting is regulated in detail, the Broadcasting Law from 2002 contains only one article regulating the area of cable, satellite and IPTV distribution, whereas RATEL's analyses show that 53% of households receive the television signal in this way. The market of cable distribution of media content is rather monopolized - one operator holds over 50% of this market, while the seven largest operators together hold around 88%. In this situation, the cable operators shape the access to media in such a way that they independently manage logical channel numbering. For example, it recently happened that SBB had given a vacant position of a national TV broadcaster to a new channel, in a completely non-transparent manner. Moreover, the problem also lies in the fact that some foreign programs are broadcast in a localized form, namely with national advertisements inserted in the program, which raises the issue of legal copyright protection of the broadcast content, application of the European Convention on cross-border television and licensing of those foreign channels, as well as the issue of the impact on the functioning of local media that are thus getting a serious competitor in the already poor media market. In addition, there is a practice of cable operators to treat domestic and foreign media differently: while foreign channels are paid for broadcasting of their programs, local media are charged for the distribution. Given the above, this type of distribution of media content requires a responsible approach and regulation that is in the interest of all participants in this market, as well as in the interest of media pluralism and the development of local television production, the author concluded.

Rodoljub Šabić, the Commissioner for Information of Public Importance and Personal Data Protection and the author of the text "The State and the Media in the Function of Realizing Citizens' Right to Information", talked about two topics that, in his opinion, illustrated the controversy that existed between the state and the media in this area. The first is related to the obligation to provide information to the public. In the context of modern concepts of free access to information, he pointed out that the state's obligation should have involved a proactive approach to disclosure of information. Problems in this area are evident in the fact that many government bodies, despite the legal obligation, fail to publish or update the Information Booklet on their work, which must be available on their websites. He believes that the media should treat such disclosure of information as their right and respond when this right is denied to them. As for another topic, which relates to the right of journalists and the state to secrecy in terms of confidentiality of journalists' sources, although there are good guarantees in the Serbian law of the right of journalists not to disclose information regarding the source of information, the recent two cases (the case of "Nacionalni građanski", which published confidential material on the state of preparations for the defense, and the case of "Borba", which published "the secret" about payment of budget money in case of M. Kovačević) indicate that journalists are called to account for the disclosure of secrets, although secrecy should be the responsibility of the state. The issue of supervision over electronic communication is also important in this regard, since it is directly related to the issue of confidentiality of sources, bearing in mind that journalists often communicate with their sources electronically and that today nobody in Serbia knows who has been supervising electronic communications and for how long. Therefore, he said it was important that the media and the media community supported measures that would lead to establishing an order in this area. When it comes to state's right to secrecy, although the Law on Classified Data is essentially good, there is a problem with its application, because it requires passing a number of bi-laws, whereas the state has failed to pass the most important ones. This results in severe restriction of access to media, and therefore the public, as a potentially very interesting "repository" of information, which inevitably affects the right of citizens to be informed.

Judge of the ECHR, Dragoljub Popović, author of the text "Access to Information in European Human Rights Law" illustrated, through several judgments of the Court in media cases, the way in which the European Human Rights Law applies to journalists' access to information, access of the public to information and protection of whistleblowers and journalistic sources, as well as imparting information. He said that freedom of expression was one of the fundamental values of democracy and the functioning of a modern democracy was impossible without media. The print media (which can also be applied to the media in general) should have a "vital role" of a "watchdog" of democracy, as stated in the judgment of the Court in the case of Goodwin v. United Kingdom. He also said that freedom of expression was not unlimited, but that its frontiers were vast and should not be hindered by a demand for military discipline (judgment in the case of Organization of Austrian Democratic Soldiers and Gubi v. Austria), or even the state of emergency (judgment in the case of Çetin and others v. Turkey), as confirmed in the examples Court's judgments described in this Publication. He pointed out that imparting information should not be construed as the right of media only, but also the right of the general public to be informed of, while the obligation of the contracting states to the Convention, to create an environment that would facilitate the exchange of ideas and floating of information, had found place in some of the Court's judgments, where terms like "the right of the public to be informed" or "the interest of the public in having the information" had been mentioned. Regarding journalists' access to information, which is a prerequisite for the their imparting among the society at large, the European Law on Human Rights has inter alia approved the protection of whistleblowers and journalists' sources, in order to be able to get hold of information that are important for the public, as seen in number of Court's judgments described in the Publication (cases Financial Times and others v. the United Kingdom, Goodwin v. United Kingdom, Guja v. Moldova).

DISCUSSION

After the presentation of the Publication, the following topics were discussed: the forthcoming reform of media regulation and the importance of this process to be conducted responsibly, with participation and respect for the interests of the media community; it was ascertained that this reform should have been done in a way that respected the technological changes, upcoming digitization process and the need to harmonize national legislation with the European legislation and practice; it was ascertained that the initiative of ANEM for adoption of the new Law on Advertising, sent to authorities on December 14, 2012, whose adoption was not stipulated in the Media Strategy, was in line with it; the most controversial solution of the Media Strategy - regional public service broadcasting, which was considered to be a solution that must not be supported, because it raises the question of funding of these services, unfair competition in relation to the commercial broadcasters and the (in)ability of these services to provide quality information to citizens, given their vulnerability to political influence; participants agreed that citizens in all parts of Serbia needed to be informed about issues of importance to their local community, but that the argument for the establishment of regional public service broadcasting - equalizing the position of the region, was not justified, because it required the same degree of autonomy of all regions and substantial decentralization of Serbia; moreover, commercial broadcasters, which could fulfill the role of public service broadcasting, could satisfy such need of citizens; malpractice that issues relating to the functioning of the media are regulated by non-media laws: such practice has been noted in some current drafts/proposals of the laws - in the Draft Law on Amendments to the Law on Local Self-Government, which kept the right of local governments to establish public companies in the field of information, namely to establish radio and TV stations in the languages of national minorities, on which the Media Coalition reacted during the public debate; this practice has been also noted in the case of the Proposed Law on Public Enterprises, which intended to allow local governments to establish new public companies in the field of information, which the Media Coalition prevented by submitting its amendments; according to some versions seen by the public, some solutions of the Law on Compensation for the Use of Public Resources are also controversial, as they could seriously undermine the independence of the regulatory bodies, which can have a negative impact on the media; shortcomings of the proposed amendments to the Law on Copyright and Related Rights, whose some parts are not in compliance with international treaties (Berne Convention and TRIPS) that Serbia has signed and ratified; it limits the copyright, as private property, beyond permitted exceptions and one category of users is favored, while the electronic media are put in a disadvantageous position; According to participants, positive side of this proposal is that the Intellectual Property Office, and not the Commission for Copyright and Related Rights whose work was not sufficiently effective, would decide on collective organizations' Tariffs in case when there is no agreement with users, which was namely the initiative of ANEM; proposed amendments to the Criminal Code will influence the work of journalists and the media, and the following was assessed positively - deletion of the article of the Criminal Code that prohibits journalists to comment on court proceedings before the verdict, and decriminalization of defamation, with a remark that high compensation claims for defamation in civil actions may keep self-censorship mechanism; the unacceptable practice of local government in terms of distribution of local budget funds to the media - that they, contrary to the rules on state aid control, allocate the budget funds to "their" media, either media founded by them or private media "close" to them, which threatens the survival and the work of other local media in their regions; recent illegal initiatives of some local self-governments to establish their own media (case of Ljig, Bečej), which are contrary to media laws and the Media Strategy; the issue of discrimination in the media in terms of access to information, which provides preferential treatment to some media - only certain media receive exclusive materials by state authorities; information that was not available on demand by some media, happen to be published by another media exclusively.

Participants concluded that the situation in the media scene was still very difficult, that change of the government had not brought progress and that the adoption of new media regulations were very important for the progress of the sector, because of which the media community would actively monitor the entire process so that new legislation is brought in the interest of the media and the public.