27 Sep The hidden traps in amending to the law process
Belgrade, September 20, 2021
Amendments change the essence of the law
In the past few months, the government has been trying to substantially change the media and civil sector-related laws by amending the legislation not caring for argumentative opposition too much.
The process of amending the Law on Free Access to Information of Public Importance had lasted for more than three years was said back in June on “The Future of The Right to Access Information in Serbia“ panel held by the Civil society organization Partners for Democratic Change Serbia (Partners Serbia) and Coalition for Freedom of Access to Information. After one- year pause, the process continued in January when the Ministry of Public Administration and Local Self-Government formed the new working group consisting of representatives of the authorities and the Commissioner. The media, the civil sector, and the academic community remained outside this process. The representatives of these sectors had joined the work of the working group only when the National Convent for the European Union and the Coalition for the Freedom of Access to Information reacted and Prime Minister Ana Brnabić intervened, however without the opportunity to vote on the proposals that will be included in the Draft.
Nemanja Nenadić of Transparency Serbia especially pointed out as particularly detrimental the exclusion of religious communities and political parties from the entities with obligations under the Law and the inclusion of the National Bank of Serbia among entities against whom no complaint could be filed to the Commissioner.
Another disputable issue is that the current draft contained 9 possible grounds for restricting the right to access to information, while the previous one contained only 5. This indicates that citizens’ rights in the field of access to information are reducing.
Commissioner Milan Marinović pointed out that it was not good that the Ministry, as the proponent of the Draft, had not organized a public debate like the one organized by the Coalition for the Freedom of Access to Information, and that he agreed with the Red Lines presented by civil society representatives.
Nevertheless, on May 28, the Ministry of Public Administration and Local Self-Government (MDULS) published the Draft Law on Free Access to Information of Public Importance and opened a public debate on this document, which lasted until June 16, 2021. A group of civil society organizations gathered in the Coalition for Freedom of Access to Information, the Coalition for Access to Justice, the Media Freedom Coalition and the National Convention on the European Union pointed out that certain solutions from the Draft are unacceptable since reducing the existing level of citizens’ access to information. On the other hand, the Draft does not contain solutions to some of the biggest problems in exercising this right.
The Ministry of State Administration and Local Self-Government then published the Draft Amendments to the Law on Free Access to Information of Public Importance after a public hearing.
The most significant changes covered by this Draft Law and against which the organizations that are members of the Spikoalicija (Coalition for free access to information) are against, refer to exemptions from the right to access information; restrictions on the use of information obtained on the basis of requests nor obligations of applicants to prove interest in access to information; narrow circle of authorities that are obliged by law and which are obliged to act upon requests and to publish information proactively; cases in which it is possible for first instance public authorities to initiate an administrative dispute against the decision of the Commissioner; narrow circle of bodies against whose decision an appeal may be lodged and the range of reasons for which an appeal may be lodged; reduction of the authority of the institution of the Commissioner as well as its independence.
After a public hearing, a second draft was made. General assessment could be that significant improvements have been accepted but not all sector suggestions have been accepted. Draft is currently waiting to appear before the Government for adoption.
The amendments to the Law on Public information and Media also caused quite strong reactions. Serbian media associations, the Association of Independent Electronic Media – ANEM, Online Media Association (AOM), Independent Journalists’ Association of Vojvodina (NDNV), Independent Journalists’ Association of Serbia (NUNS), Business Association of Local and Independent Media Association “Local Press”, Transparency Serbia, The Journalist Association of Serbia announced that they had addressed Government of the Republic of Serbia and the Ministry of Culture and Information with concern regarding activities of Working group of the Ministry of Culture and Information on Amendments to the Law on Public Information and Media.
Associations cited examples of proposals considered by the Working Group, which deviate not only from the Media Strategy, but also from constitutionally guaranteed rights, especially the right to freedom of expression, or are in conflict with applicable international standards in this area.
For example, a previous ban of spreading false news prescribing was done in a way that does not meet the criteria developed in the European Court of Human Rights case law. Neither is the prohibition sufficiently clear, nor is it clear what purposes it serves, nor is it clear how the proportionality of the restrictions introduced in this way will be ensured. Beside that, existing legal mechanisms in this area are already in line with international standards and one should only insist on the proper application of the law, not on the artificial creation of a fake news institute..
The introduction of direct subsidies, ie state aid to media publishers for informing persons with disabilities, is also disputable. Direct subsidy is a concept that was abandoned by even earlier strategic documents in the field of media. According to the findings of the Media Strategy itself, public money that circulates in the media market is already causing significant disturbances in the market. For informing persons with disabilities, it is necessary to improve the existing framework for project co-financing and programs of public media services. The introduction of direct subsidies to media publishers for informing persons with disabilities leads to the unacceptable formation of new public media instead of making quality media content.
One of the problems mentioned in the Media Strategy in the field of project co-financing is the “vaguely defined purpose of the competition, which does not start from the previously defined needs of the population for certain media content.” Therefore, the Strategy envisages that “amendments to the regulations (laws governing public information and media) are about to improve the system of project co-financing, especially through: the obligation to analyze the needs for missing media content, which would lead to a media content competition for media content which is missing. Some of the members are now opposing the introduction of analyses in the Draft, justifying their stand with claims that analysis does not exist in practice. It has never been conducted before and requires time that we allegedly do not have;
Although the Media Strategy envisages the acceptance of the competencies of the Press Council as a condition for participation in competitions for project co-financing for print and online media, as well as the advantage of project co-financing for media with less or no measures of the Press Council, the working group is questioning this solution again, and is trying to exclude it from the Draft;
Alternative solutions are trying to relativize the ban on media publishers being in public ownership. All above is in contradiction with the previous and valid Media Strategy and the current Law on Public Information and Media which prescribed the exit of public authorities from the ownership structure of the media. Although the proposal was not accepted by the Working Group, it is still unclear whether it will remain as an alternative solution or not.
Instead of accepting the fact that the circle of media actors has changed in being wider than the traditional context, some members of the Working Group continue to insist on the legal definition of journalists. Not only that the Media Strategy does not predict the introduction of this definition but in the case of the adoption of such a narrow definition it could lead to excluding a range of people whose work in public information is significant from legal protection.
Restriction on the freedom of reception and rebroadcasting of cross-border channels and the legal obligation to transmit terrestrial channels free of charge to all telecommunication platforms is repeated in the work of the Working Group. In addition to being generally problematic, restrictions neither were foreseen by the Media Strategy nor were part of the Law on Public Information and Media material after all.
Also, Prime Minister Brnabić reacted to the remarks of journalists’ associations and media associations, stating that there could be no discussion about such matters and that the proposal for a new Law on Public Information and Media must be in line with the adopted Media Strategy. There is no compromise on this, said the Prime Minister, and promised to talk with the relevant ministry team and get personally involved in the work of this Working Group, if necessary.
What will happen to the proposed amendments will be seen soon, but the bitter taste remains that the Working Group tried to push through solutions that are not in line with the Media Strategy.
In the end, amendments to the Law on Internal Affairs are current these days. If adopted in this form, civil society organizations warn, the achieved level of human rights, including the right to freedom of speech and the right to privacy, will collapse.
The proposed Articles 44, 156 – 158 of the Draft Law regulating data processing systems, as well as surveillance and recording in public places, endanger privacy rights of citizens and lead to full surveillance without judicial oversight, which is in total contradiction to the Law on Personal Data Protection and GDPR standards. These can also affect endangering source protection, which develops the effect of self-censorship and prevents the work of journalists, especially those who investigate and report on corruption and organized crime. To be reminded, these provisions are contrary to the Media Strategy goal of strengthening the protection of journalistic sources, which can only lead to the opposite direction.
Also, the restrictions provided in Articles 25, 58, and 59, as well as the penal provisions in Article 355 which provide high penalties for natural persons, both for the use of the term police and for revealing the identity of an authorized person, jeopardize the regular work of journalists, reporting in the public interest, and lead to an absurd situation since the use of the term “police” must require the permission of the line minister. Revealing the identity of a police officer who apparently will no longer wear the badge with the last name but a combination of letters and numbers will also be punishable, even though he is an official whose work must be public.
The work on this Draft Law was rather non-transparent. Despite the program of public hearings published on the website of the Ministry of the Interior, stakeholders were uninformed.
So, solutions offered which a significant part of the civil sector opposes, and mostly non-transparent public debate are common to these three laws. Even if some of the criticized solutions are not adopted, the fact that legislator has tried to push through amendments a substantial change in the spirit of the law behind the back of the public, the civil sector and the media community leaves a bitter taste. And that is already enough for alarm bell.
Vukašin Obradović