Impact of EU AVMS Directive

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					The Impact of Regulating
On-demand/Non-linear services by the
EU Audiovisual Media Services (AVMS) Directive
on Freedom of Speech in
Post-Communist Democracies of
Central and South Eastern Europe


          Introduction             page 2

          Country report

          Albania                  6
          Bosnia and Herzegovina   15
          Bulgaria                 26
          Croatia                  33
          Hungary                  39
          Kosovo                   48
          Republic of Macedonia    57
          Moldova                  65
          Montenegro               73
          Romania                  87
          Serbia                   99
          Slovenia                 110




                            1
Introduction
      The following chapters are brief country reports produced by media
experts in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Hungary,
Kosovo, Macedonia, Moldova, Montenegro, Romania, Serbia and Slovenia
on how the extension of the scope of the EU‟s Television Without Frontiers
Directive by the Audiovisual Media Services (AVMS) Directive will affect
freedom of expression in the Post-Communist Democracies of Central and
South Eastern Europe, listed above. The research project was initiated by the
South East European Network for Professionalization of Media (SEENPM)
and implemented in October 2007–March 2008 with the support of the
Danish Royal Ministry of Foreign Affairs.

      As part of the project, national roundtable discussions were organized
by the participating SEENPM centers for media professionals, policy and
law makers, and the findings of the research were distributed to stakeholders
and relevant institutions locally and regionally. The collection of reports is
available to the public and to be presented to relevant international
organizations, such as the EU Commission, the European Parliament, the
Council of Europe, and the Organization for Cooperation and Security in
Europe. In each country, experts were asked to answer the following set of
questions about the somewhat foreseeable impact of the extended scope of
the EU‟s Directive, from television to audiovisual media services.

1. Justification for extending traditional media regulation

Has your country had public discussions on the draft AVMS Directive?

Has your country had public discussions about the almost totally missing
justification for having provisions in the Directive that extend traditional
regulation of television to new media, especially that part of the Internet that
might count as a non-linear service under the Directive?

Has your country had public discussions on the process of the adoption of
the Directive? (for EU member states, or EU member state candidates only)
If there has been a debate on any of the subjects listed above, please provide
a brief summary, and a list of the most important articles/documents.




                                       2
2. Traditional media regulation for non-linear services

Could the content-based rules of the AVMS Directive for the non-linear
services work at all in the new media environment? Could they be enforced?

3. Danger of censorship

Could or would the government of your country abuse the content-based
regulations of the Directive in order to unduly restrict freedom of speech and
the free flow of information?

Has your country experienced attempted or actual government censorship of
communication through the Internet in the last few years? Please provide
examples.

If your country has experienced attempted or actual government censorship
of communication through the Internet in the last few years, were the
independent press, civil society, constitutional protection for communication
rights, the independence of the court system and the rule of law in general
strong enough to stop such an abuse of government power? Please provide
examples.

Based on the experience of your country, is the abuse of the content-based
rules of the AVMS Directive more of a danger in younger democracies, than
in older member states of the EU?

Are the independent press, civil society, constitutional protection for
communication rights, independence of the court system and rule of law in
general, strong enough in your country to stop possible abuse of the
Directive by the government?

4. Plans for implementing the Directive

Are there plans already – official, academic or professional – in your country
for implementing the AVMS Directive?

If such plans exist, when do they suggest to finish the implementation of the
Directive?



                                      3
If such plans exist, do they suggest implementing the Directive in one phase
that would include implementation for both linear and non-linear services, or
they suggest implementing the Directive in two separate phases?

To what extent is communication through the internet regulated in your
country by a law on e-commerce, by another law, or by self-regulation?
Is communication through the Internet regulated in your country to any
extent by the same law that applies to traditional television broadcast? If yes,
is the same media authority responsible for enforcing the law in regard
communication through the Internet, as for traditional television broadcast?

Does your country have two separate laws radio/television and the Internet,
such as a radio-television law (or media law that covers radio and television)
and a law on E-commerce (or other equivalent law)?

If your country has two separate laws as described above, could you initiate
that the implementation of the Directive should take place in the following
two phases:

- first for linear services by amending the radio-television law,
- second for non-linear services, if self-regulation is not sufficient, by
  amending the E-commerce law?
- If the implementation is planned in one phase, could you initiate that
  implementation of the rules for non-linear services should be still
  separated from the implementation of rules for non-linear services, if
  self-regulation is not sufficient, by amending the E-commerce law?
- Which authority/authorities would bring into effect the Directive?

5. Self-regulation as the alternative choice

Does your country have a self-regulatory system for the Internet content
providers?

If such a system exists, how effective is it?

If such a system exists, does it cover the content-based regulatory provisions
of the AVMS Directive?




                                       4
If such system exists, but does not cover all or some of the content-based
regulatory provisions of the AVMS Directive, can you initiate that it should
be amended in order to meet the requirements of the Directive?

One way, or another (as described above), to what extent can self-regulation
in your country be enough to meet the requirements of the Directive?

Does co-regulation of Internet content providers exist in your country? If it
does, what does it cover?

6. A choice for the Council of Europe

How should the Council of Europe relate to the AVMS Directive when
updating the content-based provisions of its transfrontier television
convention?

                                    ***

       It has to be emphasized that the short country reports, of course,
should not be considered as results of research based on empirical data,
because the subject of the project with limited means is an effort to map the
anticipated impact of a fresh EU directive in the fast changing context of
new media technologies. But the reports can provide the insight of experts in
each respective country. The following analyses can shed some light on how
media regulation can or cannot work under the specific circumstances of the
post-communist countries covered by the project.




                                        5
Country Report: Albania
Ilda Londo


       The Albanian media has come a long way since the end of the
Communist era, expanding the then-existing landscape of the party media
to a swelling market of print publications, televisions and radio. Compared
to print media, electronic media had a later start, but its progress was rapid.
Accordingly, legislation regulating commercial and public electronic
media, has followed its development, rather than precede it. Similarly, for
the same reasons, the regulatory authority has adapted to the development
of the market, rather than overseeing its development or devising a strategy
in this regard. A similar fortune has been that of online media and the
Internet in general, with the market setting its own trend, followed by legal
measures and regulatory authorities. In order to examine the potential
impact that the adoption of EU AVMS Directive could have on Albanian
media services and free speech, a brief description of media legislation and
media development would be helpful.

1. Media legislation and freedom of speech

       Since 1990, following the decades of government tutelage on the
press, the Albanian media has faced new horizons of freedom. The advent of
independent media, quite naturally, was duly characterized by mounting
political pressure on them and a severe lack of professionalism among the
journalists. These phenomena, to a considerable extent, were to be ascribed
to the absence of a proper regulatory framework.
       In the area of broadcasting, this problem was addressed by a fairly
detailed law, Law No.8410 “On Public and Private Radio and Television”.
The law, which has been amended six times since its adoption in 1998,
purports to regulate in detail the activity of the electronic media, including
the public broadcaster, commercial television, cable, and satellite television.
In 2007 the Parliament also passed the Law on Digital Broadcasting, which
preserves several of the basic requirements that the Law on Public and
Private Radio and Television poses, mainly related to ownership and
content. The Law on Radio and Television established the National Council
of Radio and Television as the main regulatory body and the Steering
Council of Albanian Radio and Television as the highest ruling body of the
public broadcaster.


                                      6
       In addition to the Law on Radio and Television, two other
telecommunications laws are important for the television sector. These are
the Law on Telecommunications in the Republic of Albania,1 and the Law
on the Regulatory Entity of Telecommunications,2 which established the
second regulatory body, the Regulatory Entity for Telecommunications.
However, it must be noted that none of these laws deals with content in any
manner: they are concerned only with setting criteria with technical aspects
of telecommunications. So, at this moment, content of communication
through the Internet is not addressed in any manner by any law in the
country: content in this area is totally unregulated and not monitored, by
legal or other means.
       On the other hand, freedom of press and freedom of expression are
legally protected in Albania, starting from the constitution to other relevant
laws. The Constitution of the Republic of Albania guarantees, in its articles
22 and 23 respectively, the freedom of expression and of information. These
two general provisions are further elaborated in specific laws. Another set of
laws relevant to freedom of expression in Albania are the so-called freedom
of information laws. In Albania, this field is ruled by three laws, the Law on
the Freedom of Information of Official Documents; the Law on State Secrets
and the Law on Personal Data.
       Last, but not least, other regulations affecting media concern the
provisions on libel and defamation, contained both in the Penal and Civil
Codes. Since November 2004, two draft laws (prepared by Justice Initiative
and Albanian Media Institute) comprising respectively proposed
amendments to the Criminal Code and the Civil Code have been awaiting
consideration at the Albanian Parliament. Even though both government and
Members of Parliament have expressed their support for these changes, the
bill has yet to pass in the Parliament.

2. Media landscape

      The electronic media in Albania is the most important sector of the
media scene, in terms of numbers and influence. Until 1994, Radio Tirana,
the state-owned radio, was the only source of radio information for
Albanians. However, the new commercial radio stations started to boom,
amounting to 46 local stations currently registered by the regulatory

1 Law no. 8038 “On Telecommunications”, (November 23, 1995), as amended by Law no. 8287,
   (February 18,1998).
2 Law no. 8288, “On the Regulatory Entity of Telecommunications,” (February 18, 1998).


                                           7
authority, in addition to two national commercial radios and the public
radio with its four regional radio branches.3 Although radios had a quick
start when they first emerged, they were soon overshadowed by the
development of commercial television.
       The present television market scene in Albania, and its evolution in
recent years, is remarkable. The State radio and television network, Radio
Televizioni Shqiptar (RTSH), was Albania‟s only broadcaster until 1995,
when the first private television station, TV Shijak, started operating from a
residential address. Private broadcasters multiplied over the next few years.
       Today, according to official data, the list of individuals/companies
that have a television license is extensive: 68 local TV stations, 44 cable
TV stations, 2 commercial national televisions and a satellite commercial
one, apart from the public television, broadcasting in one national channel. 4
Most of the electronic media outlets are centered in western Albania,
especially in the capital, which is home to 72% of all radio stations and
75% of all television stations.5
       The commercial television sector has experienced a late, but speedy,
growth, characterized by lawlessness and chaos at its start, when regulation
was absent. Even after regulation was established, the regulatory body has
not always been able to fully establish its authority over the electronic
media, though it has achieved some significant successes. Although the
television market, like every other media market in the country, is almost
deformed by a glut of television stations that the small market can hardly
sustain, only a few stations have shut down.
       The importance of commercial television has grown overall, thanks,
in part, to the poor performance of the public service broadcaster, which
has failed to reform itself as a truly public broadcaster. Another reason for
the high profile of commercial television, especially in the capital, Tirana,
is that some commercial stations have benefited from huge investments,
particularly in equipment. These investments have made the stations
popular and important in the eyes of the public. However, even those more
popular outlets have not yet managed to become self-sustaining, and
advertising revenue accounts for just half of their total annual income, 6 a
situation that indicates Albania‟s television market is still far from being
viable and independent.
3 List of licensed operators, National Council of Radio and Television (KKRT,) available at
www.kkrt.gov.al.
4 List of licensed operators, National Council of Radio and Television (KKRT,) available at
www.kkrt.gov.al.
5 KKRT, 2006 Annual Report to the Parliament, available at www.kkrt.gov.al.
6 KKRT, 2006 Annual Report to the Parliament, available at www.kkrt.gov.al.


                                                   8
       The first and, so far only digital terrestrial and satellite platform,
Digitalb, started broadcasting on July 15, 2004, amidst strong opposition
from both the regulatory authority and the other TV stations. Digital
television came to the Albanian media scene as a guest that neither the law,
nor the regulatory authority had invited, or at least planned for. However,
Digitalb has proceeded with its activity for almost four years now, boasting
an increasingly high number of subscribers: 120,000 as of early 2006.7
       The terrestrial digital platform offers 38 channels, carrying both
thematic channels and broadcasting other analogue TV stations. In 2007,
Digitalb also started to experiment broadcasting their programming via
mobile telephony. Overall, this company has invested significantly in
terrestrial, satellite, and handheld broadcasting in these four years, while
regulation on digital broadcasting was only finalized in summer 2007.
       On the other hand, cable channels started broadcasting relatively
late, and they remained marginal until the passage of the anti-piracy law in
2003.8 In recent years cable television has experienced an evident
development, amounting to 44 stations in the whole country in 2007, as
compared to 31 cable television stations in 2005.9 Interestingly, only a few
of them are located in the capital. Although Tirana reigns supreme in print
media and terrestrial radio and television, cable television is less popular in
the capital.
       Cable television operators now cover almost all urban areas in the
country.10 These operators have proven increasingly attractive to viewers,
because they re-broadcast from several popular foreign channels. These
channels feature interesting and entertaining programs for viewers, in
exchange for a reasonable monthly subscription price, which is
significantly lower than digital operators.
       When it comes to online media, its development is yet in its infancy.
An impeding factor in its growth is certainly the slow spread of the Internet
in the country. The Internet was introduced to the country by international
organizations that established offices in Albania in the 1990s. Access
became easier towards the end of the decade. Technical inadequacy, a lack
of familiarity with the technology, a lack of public policy and high costs
delayed the wider spread of Internet access. Recent years have witnessed
the gradual expansion of Internet access outside of Tirana, although the

7 Digitalb website, available at http://www.digitalb.tv/kompania/ (accessed July 31, 2007).
8 Law no. 9124, “On amending Law no.8410”, (July 29, 2003).
9 KKRT, 2006 Annual Report to the Parliament, available at www.kkrt.gov.al.
10 KKRT, 2004 Annual Report, Annex 2, p. 5.


                                                    9
penetration rate is still rather low. The number of Internet providers is
currently 25, including AlbTelekom, the public operator of fixed phone
lines.11
       In general, data show that Internet spread and information and
communication technology in general has improved over the years. So, the
number of Internet users per 1,000 persons has increased from 1 in 2000 to
60 in 2005.12 Similarly, personal computers increased in the same period
from 8 to 12 per 1,000 inhabitants. 13 However, this growth can hardly be
translated into development of online media. All important media outlets
have their own webpages, but their content is not permeated by the concept
of online publishing: it is usually limited to conveying content as broadcast
or published in traditional media into another form. In this context, online
media is a novelty that has yet to take root in the Albanian media landscape

3. Harmonization of Albanian media legislation with EU acquis

       Albania is a member of the Council of Europe and signed the
Stabilization Association Agreement in June 2006. Consequently, the
ongoing legal reform‟s priorities include harmonizing local legislation with
EU regulation, including media legislation. Albania has partly incorporated
European media law and standards. In 1999, Albania signed and ratified the
Council of Europe Convention on Transfrontier Television and its
Additional Protocol. In this context, many provisions of the Law on Radio
and Television derive from this agreement and in a way also fulfil some of
the requirements in the Television Without Frontiers Directive (TVWF), too.
This is the case with the provisions on sponsorship, advertising, the right to
reply, and the protection of minors.
       More specifically, Albanian law determines a limit of 15% of total
daily broadcasting time for advertising, or 12 minutes within an hour. The
law also states that news and religious programs cannot be interrupted by
advertisements, and advertisement cannot be broadcast in programs that last
less than 45 minutes. Tobacco advertisements are prohibited, while alcohol
and medicine ads are limited in broadcasting time and the messages they
convey. In addition, ads have to carefully consider protection of minors and
should not depict any behavior that can be harmful to a child‟s health or
mental development. Detailed provisions for the right to reply are also
present in the current law on broadcasting.

11 Regulatory Entity of Telecommunications, available at www.ert.gov.al.
12 World Bank, “ICT at a glance: Albania”, available at http://devdata.worldbank.org/ict/alb_ict.pdf.
13 Ibid.


                                                 10
In general, Albanian law has incorporated EU TVWF requirements, with the
exception of the provisions on teleshopping and on broadcasting of
European works. The recent amendments on digital broadcasting introduced
the requirement that programs be constituted of 50% European works, to be
achieved progressively. However, the achievement of these standards has yet
to be monitored, as this amendment is in its infancy.
       In addition, a workgroup made of several media experts and
regulatory bodies‟ representatives has the task to harmonize the Albanian
law with the EU acquis in the broadcasting area. The revision process is part
of an action plan drafted in cooperation with the Council of Europe, which
includes the consultation of the revised law with relevant stakeholders in
roundtables and other discussions. This plan intended for the first set of
revisions to be ready by the end of 2007. These revisions would bear in mind
the TVWF Directive, as the law only dealt with traditional radio and
television.
       However, the lengthy debates on the changed formula of regulatory
authorities, the approval of the law on broadcasting, and the recent priority
to defamation and libel amendments have caused significant delays in this
regard. The process of revising the whole law on radio and television has
stagnated. In addition, now that Albania already has a law on digital
broadcasting, it is yet unclear whether the revision of the law on radio and
television will be made, bearing in mind the TVWF Directive or the AVMS
Directive.
       Parallel to the planned revision of the law on broadcasting, experts at
the Regulatory Entity of Telecommunications have started their own effort
to amend the existing law on telecommunications in accordance with the
Access Directive. The amendments to the law on radio and television and
the law on telecommunications will be essential to the future development of
the media services in the country. However, it is too soon to make any
conclusions on the impact of these amendments or the process that will lead
to the final laws, since this process has just started and has yet to become
part of the public discussion.

4. Impact of implementation of the AVMS Directive and relevant
legislation

       Bearing in mind the implementation of the existing legislation, several
issues emerge when trying to estimate the impact of the AVMS Directive on
freedom of speech and media development in general. First, the Albanian

                                     11
media sector, and especially the regulatory authority, might experience
difficulties in terms of respecting and monitoring the content quota as set in
the Directive. This provision would prove extremely difficult to monitor:
although the current law on radio and television states that TV stations
should turn in their program quotas every year to the regulatory authority,
this has never happened. In this context, if KKRT‟s authority is not asserted
in this regard or if it does not develop monitoring tools and abilities of its
own, the monitoring of the quota‟s implementation would be left to the will
of TV stations themselves.
       Second, when talking about danger of censorship on Internet, the
provisions in this aspect might prove difficult to implement. The main
reason for this is related to the total absence of monitoring mechanisms or
any legal stipulation regarding content on the Internet. Although comparable
to the overall lack of monitoring for traditional media in Albania, given the
peculiar nature of the Internet, posing rules on Internet media services and
overseeing their implementation is almost impossible when there is not any
existing monitoring effort at all.
       However, it must be noted that although monitoring of Internet
communication is non-existent in the country, there have been no
Government attempts to curb freedom of speech in this area. As the US State
Department Report for 2006 confirms: “There were no government
restrictions on access to the Internet or reports that the government
monitored e-mail or Internet chat rooms.”14 Such cases have in fact been
altogether absent in the freedom of expression record in the country.
       This optimistic analysis of Internet communication is also set against
a background of relatively underdeveloped Internet communication and
online media. The question of censorship or threats to freedom of speech
when this medium becomes more powerful still remains. In this regard, the
ideal solution would be self-regulation of Internet content providers and of
media in general. Hopefully, this self-regulation process will start and
consolidate once the strengthening of these media services begins.
       At the moment, there is a Code of Ethics, drafted in 2006, but it only
addresses traditional media and does not extend to Internet or other services.
In addition, its implementation is already difficult, given the lack of a self-
regulating mechanism to uphold it. Although the main media outlets have
recognized the importance of having a Code of Ethics, there have been no
further efforts to establish a body that would oversee general ethical
14
  US State Department 2006 Report on Human Rights in Albania, available at
http://www.institutemedia.org/documenta/Report%20of%20the%20Department%20of%20State%2
0of%20United%20States%20on%20Human%20Rights%202006.pdf.


                                         12
conduct. Once again, the implementation of the Code of Ethics has been left
to the free will of media owners, directors, and reporters.
       It must be noted that the weak profile of journalism associations has
its own role in this failure to develop an efficient self-regulation. In fact,
these other associations seem to exist only on paper. In the words of one of
the chairmen of these organizations:
        “Even though we have 15 years of free press in Albania, there are only a few
        cases when colleagues of one media raise their voice or protest about the fate of
        other colleagues that are unjustly fired, censored, or threatened. Such topics are a
        topic only in the cafés where journalists gather and are never revealed to the
        public, leading to a situation where nobody talks of a phenomenon that affects
        everybody.”15

        Although the current hot topic among journalists is labor relations and
their lawful implementation, the role of journalism associations should also
be viewed as spokespersons for freedom of speech, presently and in the
future. In this context, if there is no strengthening of associations, it would
be difficult to successfully counteract any government attempt to censorship.
        However, although journalism associations in particular have not been
exceptionally successful in discussions on media freedom and media
development, successful cases have not been absent altogether. For example,
in February 2006, the government initiated a bill on the change of formula of
representation of regulatory authorities, without previous warning or public
discussion. This move was strongly opposed by journalists, media owners,
and civil society in general, who demanded that there was a public hearing
on this matter. All stakeholders were able to participate and have their say
on this matter. The law on digital broadcasting also followed a similar
pattern, turning into a lengthy and heated debate. These two cases reveal an
increasing awareness among the media community for the need to demand
public debates on issues that are relevant to the whole community.
Consequently, a further strengthening of the public profile of the media in
this case is visible, although personal and economic interests of the media
still prevail in the overall discussion.16
        Unfortunately, the same cannot be said for the independence of the
court system. The case law involving media so far is insufficient to reach a
conclusion in this regard. However, the reform on judicial system is among

15
  Interview with Armand Shkullaku, “Media, transparency for its own news”, Shqip, (May 10, 2006) p.12.
16
  US State Department 2006 Report on Human Rights in Albania, available at
http://www.institutemedia.org/documenta/Report%20of%20the%20Department%20of%20State%2
0of%20United%20States%20on%20Human%20Rights%202006.pdf.


                                                 13
the top priorities in the country, revealing its unsatisfactory level of conduct
so far. As the 2007 EU progress report on enlargement notes: “judicial
procedures generally remain slow and lack transparency” and “further
legislation is needed to strengthen the independence constitutional protection
and accountability of judges”.17 In this regard, it becomes even more
important for self-regulation to take root and consolidate among traditional
and new media alike.
       Overall, Albanian lawmakers need to rapidly catch up with the
development of the media sector in harmonizing it with the relevant EU and
Council of Europe regulation. However, this regulation should also be easily
applicable and surmount implementation difficulties experienced so far in
the country. A thorough and constant engagement in public discussions with
relevant stakeholders would be an essential ingredient in successful
regulation and development of the media sector in the future. Finally, the
two-tier approach in implementing legislation would be in a way also
dictated by the development of the media sector itself, where traditional
media is far more advanced and numerous compared to new media.




17
  EU 2007 Progress Report on Albania, available at
http://ec.europa.eu/enlargement/pdf/key_documents/2007/nov/albania_progress_reports_en.pdf.


                                              14
Country Report: Bosnia and Herzegovina
Davor Marko, Media Plan Institute (MPI) Research Center


       Bosnia and Herzegovina is passing the period of reshaping its
institutional and administrative models regarding the audiovisual sector, in
order to meet the complex challenges of EU integration, and the processes of
liberalization and privatization in many key economic fields. A considerable
step for this was made in 2001 by the establishment of a national convergent
regulator for the communications and media sector, the Communications
Regulatory Agency (RAK), the creation of which follows the best practice
of EU countries and reflects the technology convergence between
telecommunications and broadcasting services Europe-wide. Regulation of
the communications sector is a complex and challenging trade-off between
protecting consumers‟ interests and the promotion of competition, and the
access of new players in the market without discouraging investment by
consolidated market actors.
       It is important to mention that in Bosnia and Herzegovina, as in many
other transitional democracies, the media environment is characterized by
the presence of a high number of “public broadcasters” (for example,
broadcasters owned by public entities or funded through public finances,
particularly at local level, which is a specific feature and a legacy of the pre-
war era when most of the broadcasters were controlled directly by the State.
Commercial broadcasting to a greater extent emerged only after 1996, with
the support of the international community.
       Taking into account Bosnia and Herzegovina‟s commitment to being
a modern society with an economy and administration based on knowledge,
skilled enough to join the EU, the application of the information-
communications technologies (ICT) and building of an information society
are parts of an unavoidable road that will enable Bosnia and Herzegovina to
take its place in the united Europe. Bosnia and Herzegovina must actively
and rapidly act towards a reduction in the gap in technological development,
considering that a process of transition from an industrial to information
society has already moved quite ahead in developed societies.




                                       15
1. New media and media convergence

       Not so long ago, new media were predominantly broadcast or
electronic (radio and TV in the first place), but today the phrase “new
media” has been used more and more to mark new forms of interactive
communication and information broadcast, such as the Internet. These, new,
media are characterized by non-linear access to the content, interactivity and
multimedia. New media has become more and more convergent.
       In the communications sector, “convergence” refers to the intersection
of broadcasting, telecommunications and other types of new technologies,
transmitting audiovisual content to consumers through means that differ
from traditional TV sets. Due to this phenomenon, new technologies are
being introduced all around Europe such as digital television, interactive TV,
IPTV, as well as mobile TV (TV content made available on mobile phones
through DVBH and UMTS video services). Media in Bosnia and
Herzegovina are gradually becoming convergent and they especially use the
Internet for that reason. It is now possible to follow live streams of TV
shows on webpages of public service broadcasters as well as many local and
regional radio stations using the Internet‟s potential to broadcast their
programming.
       The Communications Regulatory Agency of Bosnia and Herzegovina
(RAK), together with their partners Autorita per le garanzie nelle
comunicazioni (AGCOM) of Italy, participated in the EU CARDS Twinning
Project Support to the Communications regulatory Agency of Bosnia and
Herzegovina 2005–2007. This project intends to support RAK in reforming
the Bosnia and Herzegovina audiovisual and electronic communications
sector in a time when digitalization and convergent processes are deeply
transforming the communications sector, pushing the introduction of
innovative services, the development of new business models and the
tendency towards vertical and horizontal integrations, thus bringing new
challenges to national regulators.

2. The legal framework in the communication sector in Bosnia and
Herzegovina

      The Communications Regulatory Agency, in charge of regulating the
communications sector, was established in March 2001 by the Decision of
the High Representative and merging the competencies of two regulatory
authorities – the Independent Media Commission and the
Telecommunications Regulatory Agency. This was the first convergent

                                     16
regulator in the region in charge of regulating the entire communications
sector as well as managing the radio frequency spectrum. The main duties of
the Agency are: to promulgate rules on broadcasting and
telecommunications, and ensure adherence thereto; to license broadcasters
and telecommunications operators pursuant to the provisions of this Law,
and monitor their compliance with license conditions; to plan, manage,
allocate and assign the frequency spectrum and monitor the use of it as well
as to maintain and publish a frequency usage plan for the whole territory of
Bosnia and Herzegovina; to require the disclosure of such information as is
necessary for the due performance of its regulatory obligations; to apply
technical and quality standards, for example, to ensure interconnection and
functionality of public telecommunications networks and services; to
establish and maintain a technical license fee system for both broadcasting
and telecommunications; and such other duties as are assigned to it under the
Law.

        The Law on Communications (Official Gazette of Bosnia and
Herzegovina, no. 31/2003) of Bosnia and Herzegovina entered into force in
2002 and confirmed the mandate and responsibilities of the RAK. It adopted
a convergent approach with a wide scope including telecommunications,
radio, broadcasting (including cable television) and associated services and
facilities. According to the Law the broadcasting segment of the
communication sector is defined as “any point-to-multipoint emission of
signs, signals, text, images, sounds or data by wire, optical fibre, radio, or
any other electromagnetic means intended for general reception by the
public by means of receivers adapted for the purpose” and “any legal or
physical person providing broadcasting”.18 It also establishes a number of
basic regulatory principles, which should define the scope of action of the
RAK, such as:

           a) The protection of freedom of expression and diversity of opinion
              while respecting generally accepted standards of decency, non-
              discrimination, fairness, accuracy, and impartiality
           b) The development of professional and viable commercial and public
              broadcasters with the intention of striking an appropriate balance
              within the two
           c) The principle that broadcasters shall be separated from political
              control and manipulation

18
     Law on communications of Bosnia and Herzegovina (February 4, 2003), article 2, point 2 letters c and d.


                                                      17
      d) Licenses shall be awarded on the basis of a process by which
         appropriate professional standards of program content, technical
         operation and financing are ensured
      e) Broadcast advertising shall be regulated so as to be consistent with
         the best European practice.

       In order to guarantee the effectiveness of RAK action the Law
attributes an enforcement power including the competence to impose
sanctions in case of breaches of the Law or RAK decisions. Also, if a
telecommunications or broadcasting network or service is being operated
without a license, the Agency has the power to take all necessary steps to
stop the activity of such operations. In case of different violations, the RAK
can apply the following measures: oral and written warnings; inspection of
licensed facilities; demands for action or cessation; financial penalty up to
€75,000; order the interruption of broadcasting or the provision of
telecommunications services for a period not exceeding three months;
revocation of a license.
       In accordance with the Bosnia and Herzegovina Law on
Communications, and related to the regulatory work in the field of creating
bylaws, so far the Agency (RAK) has created a number of various codes,
rules and guidelines. Not neglecting any segment, the Broadcasting Code of
Practice and the Advertising and Sponsorship Code could be specially
emphasized. During 2006, the process of harmonizing the Advertising and
Sponsorship Code with European regulation has been completed, as well as
the harmonization of the Broadcasting Code of Practice with EU principles.
       The Law on Public Broadcasting System of Bosnia and Herzegovina
was passed by the Bosnia and Herzegovina Parliamentary Assembly on
October 5, 2005. It was adopted in January 2006.
       As a member of the Council of Europe, Bosnia and Herzegovina
ratified the European Convention on Transfrontier Television in 2005, which
establishes basic rules concerning the content of television transmission and
specifically, among others, advertising and teleshopping, protection of
minors and right of reply.




                                     18
3. Did Bosnia and Herzegovina have public discussions on the draft
AVMS Directive?

       Unfortunately, the public of Bosnia and Herzegovina has had no
opportunity yet to meet up with new European solutions for extending
traditional media regulation. Nor have the media experts or organizations of
such organized any debate on the AVMS Directive within the country, but
some experts have participated in many international task forces and forums
on media convergence and regulations.
       So far, there has been only one conference in Sarajevo, organized by
the Communicatory Regular Agency, on the topic Convergence of media:
the new challenges for regulators in Europe and in Bosnia and Herzegovina
where the AVMS Directive was just superficially mentioned. That was part
of the presentation given by Marisa Fernandez Esteban, who represents the
European Commission, on the topic: Convergence of media in Europe:
European Commission view. She mentioned that the AVMSD contains “new
rules covering all audiovisual media services within the EU market” and that
its basic principles are “country of origin, protection of fundamental public
interests: protection of minors, ban on hate speech, consumer protection, and
common policy objectives such as the promotion of European works and
independent productions”. Also, she said, main new issues of the future
AVMSD are “technological neutrality, distinction between linear services
and „on-demand‟, minimum harmonization for „on-demand services‟,
product placement, and independence of national media regulation”. In sum,
just brief and superficial facts on the new regulatory document have been
presented without any possible negative effects or discussion on its effects
on electronic media or Internet content, or a possible negative impact on
basic human rights, such as freedom of speech.
       Furthermore, main critics from “Budapest Declaration for Freedom of
the Internet” remained untouched, not only in this conference. For example,
after the presentation, nobody was able to recognize that the EC proposal for
a new AVMSD has an unclear regulatory concept for “non-linear
audiovisual services” that will for sure affect the Internet; there was no
discussion on which media could be qualified as “non-linear”, or what
would fall under the basic tier regulation of the AVMSD proposal; the
Internet community, which is not developed in Bosnia and Herzegovina, is
still not worried about the possibility that weblogs, online video games, or
private websites with advertisement banners, might also fall under the scope
of Directive. Many other questions have not been addressed yet, and should
be put on the public agenda as soon as possible.

                                     19
       On the other hand, principles contained in the new AVMS Directive,
are part of the harmonization process of the legal system with acquis
communautaire. Many parts of the new AVMS Directive are already
integrated in existing Bosnia and Herzegovina laws and regulations for
broadcasting and electronic media.
       Acquis for the area of culture and audiovisual media is based on
Chapter XII, paragraph 2 of Article 151 of the European Treaty signed in
Rome in March 1957. Evolution of European legislation added to the acquis
Directive of the European Council titled “Television without Borders”,
establishing European and international coordination in the field of
legislation, long-term objectives of reforms and administrative procedures in
member states in the field of services. Other tasks and measures for member
states and for Bosnia and Herzegovina are:

    It is necessary to harmonize all legislation from the field of
     audiovisual media with audiovisual acquis in accordance with the
     Directive “Television without Borders”
    To take over all relevant conventions of the European Council related
     to the field of culture and audiovisual media. Also, bearing in mind
     expansion of the film industry in Bosnia and Herzegovina, ratification
     of the European Convention on Cinema Production from Strasbourg
     1992 as soon as possible is recommended.
    To enable development of a functional commercial broadcasting
     sector, since it is the only way to achieve the highest professional
     standards and pluralism of programming
    To undertake continuous and systematic activities in the field of
     education of journalists and other media professionals
    To support media self-sustainability, which is the key presumption for
     independent editorial policy?
    To improve court and legislative practice in the audiovisual sector
     through the full implementation of legislation harmonized with
     European legislation.

4. Danger of censorship

      Bearing in mind the specific and complex internal political structure
of Bosnia and Herzegovina, we should be very careful when speak about the
media sector and media freedoms. The State of Bosnia and Herzegovina is
divided into two first-order divisions or entities: the Republika Srpska (RS),


                                     20
which covers 49% of territory, and the Federation of Bosnia and
Herzegovina (FB-H). It also comprises one internationally supervised
district, Brčko. The country's constitution and political structure are
regulated by the Dayton Peace Accords from 1995. Basically, there is a
country-level government and presidency to coordinate some issues while
each Entity has its own political structure and administration.
       While the political Structure of the Federation is divided into three
levels (entity, canton and municipality level), the political structure of
Republika Srpska is much simpler, and it has entity and municipal level. In
the Federation six different political parties participate in the government,
while in Republika Srpska we have a classical one-party system. That is the
main reason, as many claim, for constant political and economical pressures
over media in Republika Srpska and many relevant organizations are
worried about the status of media freedoms in this entity.
       In Bosnia and Herzegovina, as well in its both entities, in recent
several years there has been no single case of abusing media freedoms or
exercising censorship over media contents on the Internet. Thus, we can
conclude that Bosnia and Herzegovina is the country where media freedoms
on the Internet are almost absolute.

5. Internet users

       As a part of its regular activities, the Communications Regulatory
Agency (CRA) carried out the annual survey among holders of the CRA
licences for provision of Internet services in Bosnia and Herzegovina, in
order to offer an insight in a market of Internet services in 2006, as well as a
comparison with the situation recorded in previous years. The survey
includes information submitted by Iinternet service providers in Bosnia and
Herzegovina licenced by the Agency.
       It would be thankless to speak precisely about exact users of the
Internet in Bosnia and Herzegovina, with an exception when we speak about
daily usage of Internet, because the percentages vary each month. Expert
estimates for 2010 are that 40% of Bosnia and Herzegovina‟s population
will be using the Internet. This estimate sounds fantastic bearing in mind that
20% of Bosnia and Herzegovina‟s population is currently illiterate.
According to research and a regular annual report conducted by the
Communication Regulatory Agency (CRA) in Bosnia and Herzegovina, in
2006 there were 237,660 users of the Internet and 13% of these are legal
subjects. According to CRA data since 2002, the increase in the number of
Internet users is more than evident. In 2002 only 4% of Bosnia and

                                      21
Herzegovina‟s population used the Internet; in 2003 it was 7%; in 2004 15
%; in 2005 20.8 %; in 2006 24.5 %, and estimates for 2007 are that 26.5% of
the population will use the Internet.
       Revenues from Internet services totaled approximately 14,330,000
KM in 2004, with an 8% growth rate in respect to 2003. A thorough analysis
of Internet services is beyond the scope of the present telecommunications
sector overview, as in order to gather comprehensive data, a survey should
have been conducted for all ISPs.

       In the period which the CRA annual survey covers, including up to
December 31, 2006, there were in total 52 Internet Service Providers (ISP)
in Bosnia and Herzegovina. Out of that number, 43 active Internet Service
Providers took part in this review. The results of the questionnaire show that
there were in total 237,000 Internet subscribers in Bosnia and Herzegovina
in 2006. In 2006, dial-up (which includes both dial-up and ISDN) was the
dominant type of Internet access, making up 83.3% of the total number of
Internet subscribers. Subscribers of broadband Internet make up 16.7% of
the total number of Internet subscribers. Out of all types of broadband
connection, the most represented is ADSL Internet access whose number of
subscribers make up 9.32% of the total number of subscribers, followed by
number of cable Internet subscribers (4.99%). In line with a definition of the
International Telecommunications Union (ITU), according to which, an
Internet user is any person from 16 to 74 years old that uses the Internet
during a year, the Agency estimates that there were 950,000 Internet users in
Bosnia and Herzegovina in 2006.
       In addition to Internet access, Internet Service Providers (ISPs) in
Bosnia and Herzegovina offer other services: 80% of companies offer
webmail services; 77% webhosting; 44% game server; 61% FTP server; and
40% of companies offer forum services. ISPs are directly licensed by the
Communication Regulator Agency, but network communicators and
webpages are not. They are signing contracts with a chosen ISP and have
agreed on terms and rules of operating, promising they will not abuse
Internet space and freedom of expression in order to harm others, minorities,
to post contents such as child pornography, pedophilia, terrorism and hate
speech. For any violation or abuse they will go to court and for these cases,
convergent regulators are not authorized. As Dunja Mijatović, expert for
media and Internet regulation, claims “in modern democratic and civil
society citizens themselves should make the decision on what they want to
access on the Internet, as the right to disseminate and to receive information
is a basic human right”. “Censorship should be generally unacceptable and

                                     22
should be avoided wherever possible”, she continues and adds, “Child
pornography is an extreme example and there is already sufficient legislation
to deal with those who attempt to produce, distribute or view such material.
Other forms of speech may well be truly offensive but the only way society
can deal with them is by being exposed to them and combating them.” And
finally, she thinks that “registration or licensing system for websites is both
unnecessary and incompatible with the Internet‟s unique set of
characteristics: open, global, not dependent on a scarce spectrum and
presenting very low barriers to potential publishers”.
       It is forecast that these forms of communications will grow
dynamically and intensively, allowing Bosnia and Herzegovina to have
better communications with the world. Necessary measures defined in “EU
Integration Strategy of Bosnia and Herzegovina”, and adopted by Council of
Ministers of Bosnia and Herzegovina, in this sector are to:

       Effect measures to implement universal services defined in the
        Decision in the Telecommunication Sector in Bosnia and
        Herzegovina
       Build a simple regulation of the sector based on the principle of
        technological neutrality, geographic definition of the market for
        each service, and analyses of that market through the prism of the
        level of development of competition achieved
       Effect full reform of state-owned companies to increase interest in
        technological and service development of the sector
       Support the development of services of content, wide access and
        IT skills
       Support the development of e-society (education, administration,
        medicine, trade, etc.).

6. Conclusions and proposals

       In a democratic society, citizens themselves should make the
        decision on what they want to access on the Internet as the right to
        disseminate and to receive information is a basic human right – in
        this case, bearing in mind the user-controlled nature of the Internet,
        we considered government control and any case of censorship
        unnecessary.




                                      23
 Bearing in mind that Internet impact can be both positive and
  negative, and that it can at the same time inform and allow
  borderless communication as well as deliver misinformation and
  unproven opinion, we have one tool to apply: critical thinking in
  approaching Internet content.

 It is recognized under international Freedom of Expressions
  principles and under the constitutional free expression protections
  of many countries that regulation of any medium must be based on
  the specific characteristics of the medium. The Internet does not
  have those characteristics that support regulation usual for
  broadcast media. The Internet is not technically limited by a
  scarcity of spectrum and thus opportunities to speak are not
  limited. There is no issue of technical interference. On the Internet
  everyone can be a publisher. We should have all these facts in
  mind before discussing Internet content-related regulation.

 Freedom of Expression and information has to co-exist with other
  fundamental rights and values – any necessary restriction on this
  freedom should serve a legitimate purpose and do not go beyond
  what is essential in a democratic society.

 There may be many reasons for the Internet‟s regulations, but there
  is a question of how many ways there are to attain this. It is
  increasingly apparent that it is not a question of whether regulation
  will occur, but rather what type of controls will appear within a
  given legal framework.

 Internet filtering, as a manner of blocking the access of children to
  content that may be harmful to their development, is not yet in use
  in Bosnia and Herzegovina. It could be a good solution for schools
  and kindergartens, in order to shield children from abusive and
  illegal content.

 We should make a difference between illegal content on the
  Internet and content that is legal, but this should not be for whole
  categories of what is potentially publicly available. Imperatives for
  protection on the Internet should be in the following fields:



                               24
         protection of moral community standards, protection of children
         and preventing communication of various illegal materials.


References

Annual Survey of Holders of CRA licenses for Provision of Internet
Services     in     Bosnia      and      Herzegovina    in  2006,
http://www.cra.ba/en/depts/observ/default.aspx?cid=4565

Communications Regulatory Agency of          Bosnia and    Herzegovina,
http://www.cra.ba/

Directorate for European Integration of Bosnia and Herzegovina,
http://www.dei.gov.ba/en/

“Economic and legal analysis of the communications sector in Bosnia and
Herzegovina”, the EU CARDS Twinning Project BA 02.01/02.01,
(Sarajevo: December 2005)

“EU     Integration   Strategy    of   Bosnia    and    Herzegovina”,
http://www.dei.gov.ba/inc/docs.asp?doc=/en/docs/393.pdf&naslov=EU%
20Integration%20Strategy%20of%20Bosnia%20and%20Herzegovina

Mijatović, Dunja. Sloboda izražavanja vs. regulacija, www.mediaonline.ba




                                   25
Country Report: Bulgaria
Danail Danov19


The EU Audiovisual Media Services Directive

       After a relatively short period of discussions and consultations among
the member states, the European Union has agreed on the new Audiovisual
Media Services Directive (AVMSD) 2007/65/EC, which came into force on
December 19, 2007. Currently all member states are expected to transpose it
into their national laws, applying in the meantime the provisions of the
Television Without Frontiers (TVWF) Directive. Thus, the AVMSD has to
come into force for all EU members no later than December 19, 2009.
       The necessity for amending the TVWF Directive has arisen with the
quick development of audio-visual technology and the emergence of new
players on the audio-visual field. As a whole, the new directive restates the
fundamental principles of the TVWF Directive in relation to audio-visual
services in Europe such as cultural diversity, protection of minors, consumer
protection, media pluralism, and the fight against racial and religious hatred.
It also redefines “audio-visual services” and provides for the independence
of national media regulators.
       Very briefly, we can summarize the new aspects of the AVMSD into
several clusters. The first is closely related to the new definition it gives to
“audiovisual media services”. Now they not only include traditional
television as a “linear audiovisual media service” but also the on-demand
audiovisual media services, as a “non-linear media service” – all of which
have to be directed to the general public in order to inform, entertain and
educate. This extended range of the directive has been the result of the
increasing importance and relevance of on-demand audiovisual media
services. The inclusion of the non-linear media sector has increased the
choice and control that users can exercise, and that is why the new directive
gives only a basic tier of rules to apply to them. It does, however, set out 20
stricter rules for television broadcasts in the field of advertising and
protection of minors.
       The next cluster of changes is connected with the distribution and
hence jurisdiction over audio-visual services. The AVMSD establishes a

19
  Program Director of the Media Development Center (MDC), Sofia.
20
  Телевизия с още по-малко граници: Новата европейска тв директива отваря врати пред
рекламните инвестиции, в. Капитал, Нели Огнянова.


                                            26
reversal of subsidiary jurisdiction criteria with regard to satellite
broadcasters established outside the European Union. That means that when
a broadcaster established outside EU uses a satellite link-up in one of the
member states, that member state will have jurisdiction. Connected with this
is the „country of origin principle‟ – audiovisual media service providers are
only subject to their own member state's jurisdiction (country of origin
principle). That means that now they will be much more open to develop
new transborder businesses. The new directive, however, imposes certain
limitations in this respect. According to it, a member state can restrict the
retransmission of on-demand audiovisual media services in a similar way
that has been established by the E-commerce Directive. This would give an
opportunity to a member state to ban certain forms of propaganda that are
not banned in other countries of the European Union. At the same time,
some of the provisions can be used to establish a procedure to take measures
against service providers that circumvent national rules.
       Another cluster is connected more directly to the freedom of
information as, for example, the right of access of any broadcaster to events
of high interest to the public. They could be transmitted in short news even
though a single broadcaster may have exclusive rights on them. The on-
demand audiovisual media services are required to promote European works
and this is among the major requirements faced by the television
broadcasters.
       The most disputed cluster, however, is the one pertaining to
advertising. The new directive gives more opportunities for product
placement in TV and other non-linear services programs. The understanding
is that, together with the greater flexibility for spot advertising, this will
ensure solid economic development for the European broadcasters. A
serious step for restricting the advertising for „unhealthy‟ food and
beverages in children's programmes has also been taken by the new
directive. The member states and the Commission are required to encourage
media service providers to develop codes of conduct regarding this type of
advertising.
       Related to this cluster is the protection of minors in on-demand
audiovisual media services through efficient measures such as access codes
or other means of preventing minors from accessing adult content. On the
other hand, the directive guarantees the right of access of people with visual
or hearing disabilities through the wide introduction of subtitling and audio
description.
       The final cluster is related to regulation. The AVMS Directive pays
particular attention to co- and/or self-regulation, encouraging each member

                                     27
state to devise mechanisms at national level for such regulation. It also pays
particular attention to the activities of the independent regulators.

The Bulgarian Case

       In Bulgaria the draft of the Directive was not widely discussed. There
was an attempt, made on behalf of the largest organization of commercial
broadcasters in the country, ABBRO, to organize a public debate on the
draft of the Directive in May 2007, but it was contained only within the
association itself. On May 15, 2007 there was a meeting of the “Television”
section of the organization. The conclusion from that meeting was that in
Bulgaria, the Directive cannot be implemented unless there is an entirely
new Law for Radio and Television passed by the Parliament. Moreover,
ABBRO commissioned a joint team of Bulgarian and foreign experts to draft
such an act, clearly pointing out that the current Broadcasting Act is no
longer adequate or relevant to the new realities shaped by the requirements
of the digital era (Interview with Grisha Kambourov, Executive Secretary of
ABBRO, December 2007).
       The focus of the few articles published in the Bulgarian press and of
the few TV and radio broadcasts has invariably been on the changes in the
regulations for advertising in the audiovisual services. There has been an
interesting development in regard to what the result of implementing the
Directive would be for the advertising business in this sector. Thus, at the
beginning of 2007, media headlines would run as follows: “EC limits TV
advertising in the Member States”;21 “EC to limit TV Ads”.22 While in
December the tone became more moderate, claiming: “Regulation through
liberalization: The New Directive will increase the income of the media and
the independent producers.”23 This comes to suggest that some of the
journalists were not entirely aware of what impact the new Directive would
have. This is hardly a surprise, given the fact that quite often Bulgarian
journalists would still concentrate on deficits of the current broadcasting
regulation (which was meant exclusively for an analogue reality). There
were, of course, analysts who had been quite well informed from the very
beginning of the debate. On April 7, 2007 there was an article in Capital
Newspaper entitled: “Television with even fewer borders: the new European
21
   ЕК ограничи тв рекламата в страните членки, в. Дума, Виктория Пенкова, in Duma newspaper
(March 16, 2007).
22
   ЕК иска да ограничи TV- рекламата, в. Монитор, in Monitor newspaper (March 13, 2007).
23
   Регулация чрез либерализация: Новата "Телевизия без граници” ще увеличи рекламните приходи
на медийни компании и независими продуценти, в. КЕШ, Благородна Трайчева. in Cash newspaper
(December 2007).


                                              28
Directive opens the way for more advertising investments”.24 The story was
written by Nelly Ognyanova, former member of the broadcasting regulation
authority and key contributor to the current Law for Radio and Television. In
fact, the most comprehensive article that has appeared in a Bulgarian
newspaper on the adoption of the new Directive belongs to the same analyst:
“The Future is not what it was: EU ratified the New TV directive”.25
       As a whole, we can say that in the few articles that have appeared in
the press, and the interview given by Maria Stefanova – the Chair of the
Council for Electronic Media – for Nova Television on October 8, 2007, the
focus is either on advertising, or on the way the new Directive will influence
the process of digitalization in Bulgaria. We can find hardly any discussion
on the impact of the Directive on the Internet – its field of regulation in the
Bulgarian view seems to include only the on-demand and mobile TV
services. This could be explained by the fact that it is the digitalization-
related procedures the country has still to prepare for and implement,
something which had to be done a couple of years ago. At the same time, the
general public is misled by statistics showing the rapid development and
spread of the Internet in the country, which creates the false impression that
things in that respect are moving in the right direction.
       Even at the meeting of the Parliamentary Committee on Civil Society
and the Media, held on April 19, 2007 the discussion of the draft of the new
Directive was limited to the presentation of the Deputy Minister of Culture,
Ina Kileva, of what had been done so far to find consensus among the
member states. And it has to be noted here that none of the members of the
Committee made any comment or even asked a question. At the same time,
according to the Deputy Minister, many of the texts in the present Law for
Radio and Television and the Law for Electronic Communication (adopted
on May 22, 2007) would have to be changed in the process of transposing
the Directive.

       The Law for Radio and Television in Bulgaria, passed in November
1998 and amended many times since then, defines the work of the traditional
electronic media; while the Law for Electronic Communications, passed in
May 2007, does not regulate the content of the electronic communication but
only its transfer. The whole regulatory system in the electronic system has
been under severe criticism for several years now, especially as far as the

24
   Телевизия с още по-малко граници: Новата европейска тв директива отваря врати пред
рекламните инвестиции, в. Капитал, Нели Огнянова.
25
   Бъдещето не е каквото беше: ЕС прие промени в телевизионната директива,в. Капитал, Нели
Огнянова, (January 5, 2008).


                                             29
public service and the different ways of regulating the electronic media are
concerned. It seems that the new Directive cannot be applied in the present
context, as all of the non-government bodies from the media sector have
stated on different occasions. One of the ways to do something in this
respect was to adopt the new Law for Electronic Communication, which
came into effect less than a year ago but was amended in December 2007.
This law regulates all electronic communications carried out by
broadcasting, transmission, or receiving of signs, signals, texts, images,
sounds or message of any type by cable, radio waves, fiber or any other
electro-magnetic medium. That means that all traditional, linear services as
well as non-linear services will be regulated by this Law. The regulation and
control in the field of electronic communications are performed by the
Communications Regulation Commission (CRC). The Law envisages a
close cooperation between CRC and the Council for Electronic Media
(CEM) in the area of digital broadcasting, but in practice the two bodies are
constantly arguing over licensing procedures, usually leaving the arbitrage to
the court system. Among the main reasons for those conflicts is the fact that
the Law for Radio and Television was to be relevantly amended in line with
the Law for Electronic Communications by November 2007 but this has not
happened yet and it is not at all clear when it will.

       The Internet, however, remains partly not regulated in Bulgaria. The
two main bodies that try to defend the interests of Internet providers in the
country are the Internet Society, Bulgaria (ISB) and Bulgarian Association
for the Internet (BAI). Both of them have opposed vehemently the attempts
to curb freedom of expression on the Internet. There has also been a heated
public discussion in Bulgaria in regard to censorship of the Internet: one of
the most influential commercial televisions in Bulgaria, bTV, devoted its
high-rating current affairs program bTV Reporters on January 13, 2008 to
that issue. The concrete reason for this broadcast was the AVMS Directive,
but the real cause for the program was an attempt by the government to close
down, several months previously, a Bulgarian torrent site, ArenaBG. The
measure was based on the fact that in Bulgaria, contrary to the fact that the
flow of information should not be hindered or stopped, content that falls
within the reach of the copyright laws cannot be distributed, even if it is not
for commercial purposes. In the bTV program, experts interviewed
expressed the opinion that this attempt to close down the site was nothing
other than censorship.26

26
     Veni Markovski, member of the Executive Board of the Internet Society, Bulgaria.


                                                     30
       In Nelly Ognyanova‟s opinion, the law is too dated now, in the era of
the Internet. Many experts agree that both the Criminal Law and the
Copyrights Law need revision. Many of the other mass media in Bulgaria
reported, published, or broadcast commentaries on this case of government
intervention, severely criticizing it.27
       It can be stated that currently in Bulgaria there is no public debate on
the AVMS Directive, not to speak of talks on its implementation. The
discussion of its plans remain locked within narrow professional circles
and/or specialized institutions such as the Ministry of Culture, CEM, CRC,
the Parliamentary Committee on Civil Society and the Media, etc. There are
several teams of experts whose efforts are mainly concentrated on drafting
the entirely new Broadcasting Law and it is expected that it would account
for the transposition of the AVMS Directive as well. The problem is that not
much coordination exists; experts competing rather than working in
partnership. The official position expressed is that Bulgaria would comply
with the deadline set by EU, i.e., December 2009.
       As far as the Internet is concerned, there is a Law on E-Commerce, in
force for a year now (since December 24, 2006). Here it is important to note
that though Bulgaria is among the least developed EU member states in
terms of access to Internet, the process of its spreading around the country
goes very quickly; debates about the regulation of the Internet happen more
frequently than discussions about digitalization. This fact, as well as the
adoption of the AVMS Directive has brought about an amendment to the E-
Commerce Law. Since this Law is separate from the Radio and Television
Law, the body responsible for its implementation is not CEM but CRC. It is
not unlikely, however, to expect that the new Broadcasting Act might bring
about the merger of the two regulating bodies. Given the lack of clarity
within the current regulation of the media it is impossible to make
predictions about ways of implementing the Directive. Since a new Radio
and Television Law is expected to be drafted soon and there are voices
insisting on adoption of a separate law regulating the Internet, at the present
moment it is difficult to say how many stages the implementation will have.
Nelly Ognyanova suggests respective amendments in the Penal Code, which
certainly would require some time. On the other hand, there are experts who


27
  “Access Denied: The Censorship on the Internet Imposed by the Government Could Soon Change the
Face of the Web.” in Capital newspaper (June 8, 2007); Assen Georgiev, “Internet Regulation: Between
Cyber-anarchy and Cyber-censorship. Maria Popova” in E-Magazine LitNet, Issue 8, (August 22, 2007);
also the online discussion “How far does the Internet censorship spread?” organized by IDG.bg (July 25,
2007).


                                                   31
claim that not the legislation, but the Internet market should be the only
regulator.28
       Self-regulation could be seen as the alternative choice for regulating
the Internet. Unfortunately, in Bulgaria there is no unified Code of practice
applied by the Internet content providers. Attempts in this field have already
been made, most notably on behalf of Blue Link, the Bulgarian member of
the Association for Progressive Communications (APC), who during the Rio
de Janeiro Internet Governance Forum (IGF), held in November 2007,
proposed a Code for self-regulation of the Internet. The Bulgarian Internet
Association (BINA) has its Ethical Code. The good experience accumulated
by the Bulgarian print and the broadcasting media that has successfully
applied self-regulation since 2005, following the adoption of the Ethical
Code of the Bulgarian Media (November 2004), gives optimism in this
respect. The Code has set up two commissions dealing with complaints and
issues of the press and the electronic media respectively, which work
efficiently and enjoy high reputation among media professionals, public
institutions and civil society. Last but not least, several other drafts for codes
of ethics are under discussion such as the self-regulation code for advertising
alcohol drinks proposed recently by ABBRO and the Association of the
Advertising Agencies in Bulgaria.
       In conclusion it can be claimed that the general public in Bulgaria
seems not at all aware of the new EU Audiovisual Media Services Directive,
neither of its possible implications on both linear and non-linear services and
the Internet. The few discussions on the issue remain contained within a
small number of institutions and/or professional circles and without
considerable impact on civil society. Even the media tackle the AVMSD in a
re-active and not pro-active way, including it in its agenda only on particular
occasions rather than attempting to spark a public debate. Most striking,
however, is the attitude of the broadcasting regulator, the Council for the
Electronic Media (CEM), which remains too passive in this regard and
seems to have ignored the challenges of the new Directive completely.




28
     Veni Markovksi, Board member of ISB.


                                            32
Country Report: Croatia
Julije Katančević, ICEJ


1. Justification for extending traditional media regulation. Did Croatia
have public discussions on the draft AVMS Directive?

       The AVMS Directive was poorly discussed in Croatia. Some
discussion could be witnessed at the conference “Society and Technology –
electronic media in transition” held in Karlovac on June 28–30, 2006. The
guest speaker at the conference, among others, was a representative from the
Ministry of Culture. His speech was dedicated to media legislation in
Croatia in the process of harmonization with the European Union. The
second event where the topic was discussed was at the 24th EPRA meeting
in Dubrovnik, October 4–6, 2006. At the meeting were discussed, among
other topics, proposals of potential changes in the directive. Although some
of the suggested amendments to the AVMS Directive were seen as a step
forward, participants did not believe that the draft Directive was the
universal remedy for all current problems, in particular with regard to
circumvention. A reinforced co-operation between regulators, which can
take manifold forms and vary in depth, may help tackle some of the issues at
stake.
       Also, some mention could be found in the Report on the activities of
the Croatian Council for Electronic Media, which was submitted to the
Croatian Parliament in 2006. The report stressed that the Croatian Council
for Electronic Media actively participated on meetings on the topic of co-
regulation in 2005, and at the meetings targeting the AVMS Directive in
Brussels in 2006. The OSCE Mission to Croatia, in comments on the new
Law of Electronic Media, also mentioned that the new Law had to be
harmonized with the AVMS Directive.
       In the final proposal of changes to the Law of Electronic Media, there
is also a trace of the AVMS Directive. Basic remarks from the proposed
Law are in line with harmonization with the European convention of
Transfrontier Television. It should be noted that the expression
“Transfrontier Television” is still in use. The next trace is noticed in the
process of negotiation with the European Union. In 2007, few chapters were
opened. Among others, the 10th chapter on Information Society and the
Media, where it is mentioned that Croatia has to harmonize its regulation on



                                     33
electronic communication, e- commerce, e-signatures, electronic media, and
to finish revision of audiovisual legislation.
       Finally, Croatian national TV reported on the European Parliament‟s
decision to adopt the AVMS Directive on October 29, 2007. The report
mentioned the core of the Directive, stressing that EU member countries
should implement the Directive by the end of 2009.
       According to the response of the Croatian Ministry of Culture, Croatia
as a candidate country participates as an observer in the Contact Committee
of the European Commission for the Television without Frontiers Directive;
and in 2008, the main area of the Committee‟s work will be the
implementation of the AVMS Directive in national legislatives. Bearing in
mind that it is a new Directive, it is still not clear what the repercussions of
its implementation will be, although it is at present seen in a positive light.
       Croatia has had no public discussions about the justification (which
was almost totally missing) for having provisions in the AVMS Directive
that extend traditional regulation of television to new media, especially that
part of the Internet that might count as a non-linear service under the
Directive.
       Similarly, Croatia has had no such discussions on the process of the
adoption of the Directive.

2. Traditional media regulation for non-linear services. Could the
content-based rules of the AVMS Directive for non-linear services work
at all in the new media environment? Could they be enforced?

       It is too early to discuss this question. According to the response of
the Croatian Ministry of Culture over the next two years, the rules of the
AVMS Directive would be implemented in the national legislative. Until
that time it should be assumed that nothing significant could happen.

3. Danger of censorship

       It is hard to believe that abuse by the Croatian government of the
content-based regulations of the AVMS Directive, in order to unduly restrict
freedom of speech and the free flow of information, could happen. The
media in Croatia have developed greatly in terms of quality and diversity in
recent years. Croatian Radio and Television (HRT) have kept their dominant
position. Two new commercial TV stations have not yet fulfilled their
market potential. Yet it is apparent that the Croatian media are going through
a serious crisis regarding professional and ethical standards. Sensationalist

                                      34
journalism has become commonplace, with reporters often abandoning any
pretence of objectivity or truthfulness in their pursuit of headlines and big
audiences. Overt political influence still casts a shadow over the media
scene, although it is much less pronounced than it was before the sweeping
reforms of the year 2000, which took national TV and a few large
newspapers out of the hands of a small number of powerful political figures.
       The Croatian media have obtained a new degree of freedom from
direct governmental and political party influence, thanks to the fact that most
print media are now in private hands, as are two nationwide TV channels:
RTL Television and Nova TV.
       Just one single attempt of government censorship of communication
through the Internet has been noticed in the last few years. The former
Minister of Interior Affairs, who was exposed to criticism on the popular
website You Tube, ordered a police investigation on the person who placed
videos of the Minister‟s speeches on the Internet, accusing the parliamentary
opposition of being behind the situation. The attempt failed because political
parties and the public reacted sharply, resulting in a public apology from the
Minister.
       Croatia claims that its legislative in the area of media covers all basic
freedoms, as well as freedom of expression, freedom of media and free flow
of information (to receive and to transmit information). This is based on the
Law on Media, the Law on Electronic Media, the Law on the Croatian
Television and the Law on the Croatian News Agency (HINA). According
to the special changes and amendments to the Penal Code, a prison sentence
for libel is not possible to be brought about.
       The Law on Media and the Law on Electronic Media are in line with
the European conventions of Transfrontier Television. Regarding
advertising, TV commerce and protection of juveniles, Croatia is aware that
some changes have to be brought about in order to specify the timing of TV
commerce, advertising, TV commercials and other forms of advertising for
local TV stations. Also, it is planned to include actual people under the
definition of “electronic media publisher” and to add an amendment dealing
with court jurisdiction.
       The abuse of the content-based rules of the AVMS Directive is more
of a danger in younger democracies than older members of the EU. The
reason could be found in the fact that countries in transition have not
prepared stable mechanisms of regulation, and implementation of positive
regulations.
       It can be said that the Directive would positively impact on freedom of
expression, especially because some topics would again come into public

                                      35
focus. Moreover, the Directive brings two new dimensions to media
legislation: self-regulation and co-regulation. This would allow for all
factors in the area of public information to have an influence on
development of this area, and accordingly on the strengthening of freedom
of expression.
       In Croatia, the independent press, civil society, constitutional
protection for communication rights, independence of the court system and
rule of law in general, are strong enough to stop possible abuse of the
Directive by the government.

4. Plans for implementing the AVMS Directive

       According to the Croatian Council for Electronic Media, Croatia has
to fulfil three tasks in order to implement the AVMS Directive. The tasks are
as follows. Firstly, it is to set up a system of licensees/concessions with
regard to audiovisual services, no matter on which platform they appear. The
second task is to assort programs on multiplex and DDT systems. The third
task is to ensure respect of implementation of the law. Also, a bigger role of
co-regulation and self-regulation should be granted. Announcements for the
implementation were given on the panel discussion “Mediji i digitalna
konvergencija: javne politike i razvojni trendovi u Europi i Hrvatskoj” held
in Zagreb in November 2005.
       Also, the Croatian Electronic Media Council in 2007 published
Pravilnik o sadržaju prijave te sadržaju i načinu vođenja očevidnika
nakladnika elektroničkih publikacija – a book of regulations for electronic
publications. The Croatian magazine PC Chip harshly criticized the
decision, mentioning that this will result in restrictions of the Internet.
According to the book of regulations, website owners are obliged to
officially register their web pages with a governmental body – the Council
of Electronic Media. The book of regulations has only nine chapters, which
according to PC Chip, is absurd, demonstrating no understanding of
essential matters. According to the magazine, the origin of the book of
regulations comes from the Law on Electronic Media. Although the
intention of that Law is to regulate all electronic media, the Law deals only
with radio and TV, and does not mention the Internet. The complaints of PC
Chip stressed that the definitions of the terms “electronic publication” and
“audio-visual service” are unclear. Also the magazine pointed out possible
sanctions if violation of the book of regulations were to be noticed. If a
company didn't register its web pages with an official body, it could be fined



                                     36
100,000 Kuna. Also the means of enforcing this registration are very
unclear, allowing for conclusions that the book of regulations is absurd.
      According to the Croatian Ministry of Culture a legislative base has to
be prepared in the next two years.

5. To what extent is communication through the Internet regulated in
Croatia by a Law on E-commerce, by another law, or by self-
regulation?

      Partially, communication through the Internet is regulated by the Law
on E-commerce. For the new media platforms, such as satellite TV, cable
and the wider range network, regulation comes under the Law on
Telecommunication and the Law on Electronic Media.
      The Croatian Parliament adopted a Law on Informational Security in
July 2007.


6. Is communication through the Internet regulated in Croatia by the
same law that applies to traditional television broadcasting?
       Communication through the Internet is regulated by the Law on
Electronic media; the Law on Telecommunications applies to traditional
television broadcast. The media authority responsible for enforcing the law
is the Croatian Council for Electronic Media.
      In Croatia there are two separate laws for radio/television and the
Internet. The laws are: The Law on the Croatian Radio Television, and the
Law on Electronic Media (which covers the Internet).
       Although there are no signs that the Directive will be implemented, it
would be the Croatian Council for Electronic Media that would bring it into
effect.


7. Self-regulation as the alternative choice. Does Croatia have a self-
regulatory system for the Internet content providers?
      According to Mr. Anđelko Milardović, a professor from Zagreb
University, the Internet is regulated by providers on the local level. There is
no separate co-regulation of Internet content providers in Croatia. This is
covered by the activities of the Croatian Council for Electronic Media,
which has initiated meetings of co-regulation, but only for TV broadcasters.


                                      37
Co-regulation covers topics on the broadcasting of programs under
sponsorship, and usage of the Croatian language in commercials. The
Croatian Council for Electronic Media adopted amendments to two laws
regarding the same topics: a book of rules on the broadcasting of programs
under sponsorship, and a book of rules for usage of the Croatian language in
commercials.

8. A choice for the Council of Europe. How should the Council of
Europe relate to the AVMS Directive when updating the content-based
provisions of its transfrontier television convention?
       Bearing in mind that the EU Parliament with the AVMS Directive
covers the dimensions of content and market, the Council of Europe has to
steer its activities in relation to the possible impact that the Directive might
cause, especially on the post-communist countries.




                                      38
Country Report: Hungary
Péter Molnár29


This report first describes that to what extent the extension of the scope of
the Directive has been discussed in Hungary, then it summarizes the critical
comments that were given on the extension of the scope of the Directive in
Hungary, followed by a short analysis of the chances of the possible abuse
of the new European regulation. Finally, the report provides a description of
the suggested narrow implementation of the Directive in Hungary, and
recommendations for the Council of Europe in order to avoid unjustifiable
restrictions on free speech by the Directive.


1. Discussion on the Extension of the Scope of the Directive in Hungary

In Hungary, there has not been enough discussion on the extension of the
scope of the Television Without Frontiers Directive, or on the almost totally
missing justification for it. Since the European Commission published the
text of the proposed new Directive in December 2005, several presentations
have criticized it and the following drafts for this reason at conferences and
other events of the Center for Media and Communication Studies (CMCS)30
at Central European University (CEU),31 all of which were held in English
for an international audience.
       In June 2006, dozens of media scholars from many countries signed a
critical Declaration32 on the then-planned AVMS Directive. The Declaration
– which had been sent to all members of the European Parliament 33 – was
signed by Hungarian media scholars as well, but it was still not enough to
make the Hungarian public aware of the subject.


29
  PhD, Senior Research Fellow in Communications Law, Center for Media and Communication Studies,
Central European University.

30
   See www.cmcs.ceu.hu.
31
   I focused on criticizing the draft for this reason; Eva Simon, the lawyer of the Association of Hungarian
Content Providers (MTE, www.mte.hu) also criticized this part of the draft in her presentations.
32
   I drafted the Declaration at a conference at CEU. See Budapest Declaration for Freedom of the Internet
(June          15,        2006),         available        at       www.cmcs.ceu.hu,           see      also:
http://www.edri.org/edrigram/number4.16/budapestdeclaration
33
   István Szent-Iványi, a Hungarian liberal member of the European Parliament helped me to send the
Declaration to all other members of the Parliament.


                                                    39
       In December 2006, an international workshop at CEU on the draft
Directive34 produced Recommendations35 to the European Parliament on the
draft AVMS Directive. The recommendations had been sent to all members
of the European Parliament. Some Hungarian experts, among them János
Timár, a member of the National Radio and Television Board (ORTT36)
attended the international workshop. The MTE also considered signing the
recommendations produced during and following the workshop, although
ultimately it was not able to do so before the text had been sent to members
of the European Parliament. This event was also English-speaking, which
limited its impact on public discourse in Hungary. Besides this workshop,
only relevant committees of the Parliament had the extension of the scope of
the former Directive on their agenda, and there was only one hearing at the
Committee of European Affairs that included critical analyses of the draft (at
the beginning of 2007).37
       In 2007, there were some other public discussions about the draft
Directive in Hungary, but they did not specifically focus on the extension of
the scope of the regulation.38 The extension of the scope of the European
„media law‟ somehow could not really be put on the agenda of the broader
public discourse.39 One reason for the failure of public discourse in Hungary
to include this highly important topic is that there seems to be a divide
between the recognition of domestic and international policy issues. Media
policy debates seem to revolve much more around rather domestic issues,
while international matters, especially the extension of the scope of the
television Directive that might appear at first sight as a somewhat theoretical
matter, could only capture much less attention. At the same time, this is the
very reason why such a regulatory move could have been passed without
much public discussion in Europe as a whole.
       The implementation of the new Directive was part of the discussion in
September 2007 at a public hearing on the whole national media strategy – a
document produced by the Office of the Prime Minister. The MTE also had

34
   On behalf of CMCS, I co-organized the workshop with the OSCE Representative on Freedom of the
Media and the Rafto Foundation for Human Rights from Norway.
35
   Available at www.osce.org/documents/rfm/2006/12/22708_en.pdf.
36
   www.ortt.hu
37
   Following my initiative to hold such a hearing, I was able to present a critical view on this part of the
Directive.
38
   The MTE had a roundtable debate in the Center for Independent Journalism and some parts of the Media
Hungary, and Internet Hungary conferences of the year were dedicated to the discussion of the new
Directive.
39
   I repeatedly brought up this issue even in public debates about the national strategy on digital switchover,
or other media policy subjects; in some radio interviews, I also tried to call the public‟s attention to what is
at stake.


                                                      40
a roundtable debate about this subject in the Independent Journalism Center.
The first public discussion in Hungarian specifically on the extension of the
scope of the former Directive was held as part of a project of the South East
European Network for Professionalization of Media40 on the impact of the
Directive on freedom of speech in the post-communist democracies of
Central and South East Europe41 in January 2008 at the Center for
Independent Journalism.42

2. Critical Comments on the Extension of the Scope of the Directive in
Hungary and the Chances of its Abuse

       As described above, in Hungary there has been at least some
discussion on the issue of the new Directive extending content-based
regulation of the traditional media to a fast-growing, uncertainly identified
portion of the Internet, largely without any sound constitutional justification
for doing so. Critical comments tried to call attention to the issue that, while
aiming to catch a quickly moving target, the new European regulation does
not consider the risks involved in regulating a huge portion of content
providers, or the restriction of freedom of speech and freedom of
information.43 I emphasized that the Central-, and East-European context
should be brought to the deliberative process for the draft Directive,
considering that the new regulation could have a chilling effect on free
speech – particularly in post-communist democracies, and especially where
the Internet is a primary free channel for communicating ideas and
information. Governments in such countries are likely to use the Directive as
an opportunity for further regulating speech, for further curtailing the free
movement of information, and they would be able to do so with the approval
of the European Union. All they would have to do, to suppress political
dissent, would be to abuse the incitement to hatred provision of the AVMS
Directive. At the same time, it is hard to imagine how the anti-hate speech
provision of the Directive could work, or be enforced.
       A good example is what happened with a horrible racist website in the
last few years in Hungary. A site called Olah Action involved a video game

40
   See www.seenpm.org. Sándor Orbán, the Executive Director of the South East European Network for
Professionalization of Media.
41
    In Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Kosovo, Macedonia, Moldova,
Montenegro, Romania, Serbia and Slovenia.
42
   Sándor Orbán, the Executive Director of the South East European Network for Professionalization of
Media, initiated the project.
43
   The international workshop at CEU also called attention to the importance of strengthening the country
of origin principle, as regards on-demand, non-linear services.


                                                   41
which asked players to kill the Roma community in one county after
another, making them Roma-free. Self-regulation has been working, as far as
it can work in the case of a website, and the site was taken down by the
provider after receiving notice from Radio C, the Roma community station
in Budapest. But soon later the site became available again through another
server. How could state regulation work better?
       As opposed to the example mentioned above, a satellite television that
spreads hate speech could have been successfully removed from the
transmitting satellite, and it would have been at least much harder for such a
station to find another satellite to reach its audience again. There is no such
example in Hungary, but see the Al Manar case44.
The possible abuse of the new Directive is more likely than its fair use to
serve its intended purpose. The ORTT – currently the authority which would
implement the extended rules in Hungary – has been authorized to apply the
1996. I. Law on Radio and Television.45 The ORTT is a highly politicized
body; each parliamentary group of the different political parties directly
nominates its members, which sometimes at least results in decisions that are
driven by the interests of the political parties at the cost of public interests.
The five parties represented in the Parliament in 2008 are negotiating the
concept of new legislation that would replace the 1996 law, but it is most
likely wishful thinking to believe that a new board would be more
independent than ORTT, because of direct pressure coming from the
parliamentary parties. It means that if the authority of the ORTT, or of a
probably similar board was extended to also control the on-demand, non-
linear services (as they are rather uncertainly defined in the new Directive),


44
   „In 1991, shortly after Hezbollah actively entered the Lebanese political scene, Al Manar was launched
[It] has belonged to Hezbollah culturally and politically from its inception. Al Manar has several times been
accused of broadcasting programming that preaches hatred and violence. In December 2004, the US
Department of State put Al-Manar on the Terrorist Exclusion List due to the channel‟s “incitement of
terrorist activity”. On 13 December 2004, the French “Conseil d'Etat”, the highest administrative Court in
France, ordered the French-based Eutelsat Company to shut down Al Manar broadcasts following
accusations that its programmes were anti-Semitic and could incite hatred. The “Conseil d‟Etat” order was
based on a decision by the French regulatory authority the “Conseil supérieur de l‟audiovisuel”. On 14
December Al Manar obliged voluntarily, in order to avoid that other Arab programmes of the same
multiplex would have been shut down [sic]. The TVWF Directive assigns responsibility for ensuring that
its rules are respected to the Member State that has jurisdiction. In this case the French authorities were
responsible for prohibiting the broadcasts of Al Manar because Al Manar was transmitted via the French
satellite system within the satellite organisation Eutelsat.‟ Available at
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/05/98&format=HTML&aged=0&l
anguage=EN&guiLanguage=en.

45
     See the text of the Law at www.ortt.hu.


                                                     42
these services would be subject to decisions often motivated by the interests
of the parliamentary parties.46
       The likelihood of politically biased application of the extended
European regulation, if applied by the ORTT (or a similar board which were
to replace it) grows if we consider some instances in which some parts of the
government have shown willingness to engage in an unjustified restriction
on freedom of speech.
       Hungary did not experience attempted or actual government
censorship of communication through the Internet in the last few years, but
prosecutors pursued criminal procedures against the investigative journalists
Antonia Radi (from the weekly journal, HVG), and Rita Csík (from the daily
paper, Népszava) for alleged breach of state secrets. The courts finally
cleared the prosecuted journalists, but the procedure almost certainly had
chilling effects. Miklós Haraszti, the OSCE Representative on Freedom of
the Media closely followed the prosecutions,47 and his office, the Hungarian
Civil Liberties Union, the CMCS at CEU, and other NGOs played an
important role in creating a growing concern for freedom of speech and of
the press in connection with classification of public data, while the
procedure against the two journalists was going on.
       In 2004, the ORTT almost closed down the most well-known
community radio station in Budapest, Radio Tilos, for hate speech that the
station seriously apologized for, and for which the radio fired its host who
had expressed hatred in one of his sentences. In other cases where the
management of a station had noticed hate speech, they did not react in such a
self-critical way as Radio Tilos had. Still, the ORTT finally imposed
sanctions on Radio Tilos that were far heavier than all other sanctions
combined in other cases of broadcast hate speech.
46
   It is worth mentioning, that the highly politicized way the ORTT has been created provides the context in
which the question arises of whether or not a converged regulator would be better. Such a regulator might
be more effective, but in countries with a weaker tradition of democracy, it is risky to mix the radio-
television authority with the telecom authority, because the former is likely not to escape undue political
influence through misguided provisions of the law. In younger democracies, the real political
prestidigitation of setting up a rather independent media regulator by regulation that enables the culture of
the given country to do so should be the first step. The convergence of the media and telecom regulators
should only follow.
          As opposed to the ORTT, the National Telecommunication Authority (NHH) in Hungary works as
part of the executive branch of the government. The reason for this different arrangement is simple. The
media-regulator, ORTT applies content-based regulations of the radio and television market, while NHH
(as the telecom-regulator) does not apply content-based rules. Consequently, setting up ORTT as the
media-regulator requires special constitutional safeguards, while setting up NHH as the telecom-regulator,
does not. As a result, implementing regulation to set up the NHH was not a hard challenge for the
legislator, while setting up the ORTT was an overwhelming one as far as constitutional safeguards matter.
47
   See the following press release of Miklós Haraszti, the OSCE Representative on Freedom of the Media:
http://www.osce.org/fom/item_1_28999.html.


                                                    43
       Protest in the press and support from other members of the
Organization of Free Hungarian Radios helped to avoid at least the closure
of the station, but even the courts let the highly discriminative application of
the law stand. The witch hunt against the community station – a target far
less powerful than its public or commercial counterparts – has had a chilling
effect on the substantially open-mike, volunteer-run way in which non-profit
media works. One can only guess how many websites are working in a
similar way.
       As the examples mentioned above indicate, the independent press,
civil society, constitutional protection for communication rights,
independence of the court system and rule of law in general might just not
be strong enough, even in a Central-European democracy like Hungary, to
stop possible abuse of the Directive by the government.
       The growing significance of NGOs in Hungary, with growing press
coverage of their activities, seems to be the most encouraging development
that can contribute to creating an environment that urges and enables the
court system and other institutions to improve the constitutional protection
for freedom of speech and of the press. Contributing institutions should
include the committees of the Parliament (even if they are under the control
of the governing parties in the parliamentarian system of the Republic of
Hungary) and the ombudsmen (the general one protecting all human rights,
the one protecting the rights of ethnic and national minorities and the one
protecting informational rights) even if it depends on the two-thirds majority
of the Parliament whether or not it elects ombudsmen who are really capable
and willing to fulfil the great capacities of these public watchdog-advocate
offices.

3. The Implementation of the Directive in Hungary

      This environment should become one which better enables both
freedom of speech and freedom of information to flourish by a careful
implementation of the Directive. The National Media Strategy (NAMS),48
produced by the Office of the Prime Minister contains a detailed plan for
implementing the AVMS Directive; and among the written comments
provided by organizations to the NAMS at least some – CMCS, MTE –
emphasized the criticism of this part of the strategy.


48
  See http://www.meh.hu/misc/letoltheto/NAMS_jogalk_konc_071213_final.pdf   (available only in
Hungarian).


                                            44
        The proposed national media strategy suggests finishing the
implementation of the Directive at the end of the two years provided. The
NAMS, at its best,49 suggests implementing the Directive in two separate
phases for broadcast/linear and on-demand/non-linear services, instead of
implementation in one phase for both kinds of service. First, the radio-
television law would be amended for broadcast/linear services; and second,
if self-regulation is not sufficient – the E-Commerce law would be amended
for on-demand/non-linear services. The ORTT – or a new board if the ORTT
were replaced by another body by the amended or new media law – would
be responsible for applying the implemented Directive regarding the
broadcast/linear services. Courts would be responsible for applying the
implemented Directive regarding on-demand/non-linear services.
        The radio-television law requires a two-thirds majority vote in the
Parliament, which might unfortunately provide the wrong incentive for the
opposition in the Parliament to argue for including the implementation of the
whole Directive in the amended or new radio-television law.50
      The only logical way would be to follow the way suggested in the
NAMS and in written comments to it provided by the CMCS and the MTE.
Hungary has two totally separate laws on radio and television and the
Internet: the radio-television law and the law on E-Commerce, and other
information society services (based on the E-Commerce Directive of the
European Union). Communication through the Internet, or other new
communication technologies is not regulated at all in Hungary by the law
which applies to traditional television broadcast: the 1996 Law on Radio and
Television. Besides the law on E-Commerce and self-regulation, general
laws like the Criminal Code, or the Civil Code apply to content
communicated through the Internet and other new technologies as well.




49
  Some other parts of the NAMS are unfortunately highly controversial.
50
  A danger – additional to what has been already written – of merging ORTT and NHH is that it would be
most likely not based on careful policy making but on a deal mostly driven by the personal interest of the
deal-maker politicians/public officials and/or their parliamentary parties; as a result the whole new
regulation might just be rushed through the Parliament. This would reduce the chances of a carefully
planned, slower implementation of the Directive in two phases: first for linear services by amending the
radio-television law; second for non-linear services by amending the E-commerce law if self-regulation is
not sufficient. In this case, the AVMS Directive would probably be implemented in one phase which would
include implementation for both linear and non-linear services, instead of implementing the directive in the
two separate phases as mentioned above. It would also mean that, as far as Hungary would start to regulate
on-demand services earlier than other states, companies would probably move to countries with less
regulation.


                                                    45
       Hungary has a self-regulatory system for the Internet content
providers, established by the MTE.51 Since its establishment in 2001, MTE
provides an effective example of self-regulation. The MTE had actually been
founded to avoid the extension of the authority of the ORTT to cover the
Internet as well, as had been suggested by the then chairman of ORTT. This
way, MTE is a good example of having self-regulation not only, or not in the
first place to raise the standards of the content provided, but to avoid or
replace state regulation which could prove heavy handed in the fast changing
environment of the Internet. Thus, the implementation of the new Directive
challenges MTE to repeat what it could have accomplished so far: it could
maintain and even improve its self-regulatory system in order to reduce state
regulation to the minimum in the process of implementing the AVMS
Directive.
       The self-regulation system established by the MTE substantially
covers all fields of the content-based regulatory provisions of the AVMS
Directive. Amending the law on E-Commerce will be necessary only to the
extent the new Directive explicitly requires member states to rely on state
regulation when implementing the Directive. As the Declaration –
mentioned above – stated:

                 The E-Commerce Directive of the European Union already provides the
         necessary regulatory framework for the information society services. There is no any
         reason to duplicate the existing regulation with complicated, confusing new rules that
         would abridge freedom of expression and freedom of information, and would cause
         uncertainty that withholds investments and developments. If additional regulations of the
         information society services are needed at all, they should be backed by much more and
         much more carefully done research – especially by more impact assessment – than what
         has been done to support the draft proposal of the European Commission.
                 Further research might even lead to some deregulative changes in the E-
         Commerce Directive, as far as the unmatchable opportunities for free communication
         through the internet are the strongest safeguards of media freedom especially in countries
         where other parts of the media is under government control. The fast development of the
         new communication technologies also triggers that both the European Union and the
         Council of Europe rather rely on self-regulation and let the new communication
         technologies to develop freely and people to exchange ideas and information through
         them unrestricted.52




51
   Self-regulation also works in the field of advertising by the Board for Self-Regulation of Advertisement.
See http://www.ort.hu/. Co-regulation by the Internet content providers and the state does not exist in
Hungary.
52
   Budapest Declaration for Freedom of the Internet.


                                                    46
4. An Opportunity for the Council of Europe

In the light of the critical statements quoted above – undersigned by either
many media scholars as in the case of the Declaration, or by different
organizations as in the case of the Recommendations – the Council of
Europe could take into consideration the concerns raised in the two
documents.
       The Council of Europe should first have a highly critical discussion
on whether there is strong enough constitutional justification for extending
the scope of its Convention to on-demand services.
       Second, it should have a highly critical review of the new Directive, in
the light of the results of the discussion about the justification for the
extended regulations such as provided by the Directive.
       Third, it should have an in-depth analysis of how different the
cultural-political-legal environment is in non-EU member state countries, as
opposed to EU member state countries in the Council of Europe. The abuse
of the content-based rules of the AVMS Directive is more of a danger in
younger democracies, especially in those countries where the democratic
institutions are still rather fragile. As much as Hungary is in Central Europe,
the strength of the democracy is somewhere halfway between Western, and
East European countries, but as the examples mentioned above show,
unjustified restriction on freedom of speech can occur in Hungary as well, in
a way that is at least somewhat more foreclosed in older member states of
the EU.
       Fourth, it should pass its own independent decision on whether it will
amend its Convention, and if so, in what way.
Fifth, in the light of the results of the work described above, it should initiate
the amendment of the new Directive in order to respect freedom of speech
and freedom of information in accordance with the foundational importance
of these values in our shared European tradition, while considering also the
broader international implications of the Directive and the Convention as an
example provided by the human rights organization of Europe.53




53
  For detailed analyses of the interactions between the Directive and the Convention see: Audiovisual
Media Services without Frontiers, European Audiovisual Observatory (2006).



                                                 47
Country Report: Kosovo
Arben Hajredinaj


       With a population of nearly 2 million inhabitants, Kosovo has 116
broadcast media, consisting of 95 radio stations and 21 television stations.
Established with the help of the OSCE Mission in Kosovo, the Independent
Media Commission (IMC)54 regulates the broadcast media in accordance
with the Law on the IMC.55 The OSCE has also established the Press
Council of Kosovo (PCK), a self-regulatory body for print media which
were subject to regulation by the Temporary Media Commissioner (TMC),
the predecessor of the Independent Media Commission, until the autumn of
2005, when the PCK started functioning and the TMC converted to the IMC.
The IMC has joined the European Platform of Regulatory Authorities
(EPRA)56 and has based its legislation on European media standards as
defined by the Council of Europe.57 In October 2007, the CoE held a
meeting on Transfrontier Television in order “to widen the scope of the
Convention to new audiovisual media services taking account of the
developments in the field of television broadcasting”, and “to harmonise the
Convention as much as possible with the future EU Directive on
Audiovisual Media Services […]. Non-member states of the Council of
Europe, may be invited to accede to the Convention”, whilst on the other
hand the Independent Media Commission in Kosovo has not received any
invitation, nor is familiar with the new rules of the AVMS Directive for non-
linear media. The OSCE Mission in Kosovo, which is vested with the
mandate to help develop a media framework in Kosovo and foster
democratic media legislation, based on the best European practices,
considers the IMC to be the respective authority to implement the rules of
the new EU AVMS Directive, by considering the missing self-regulatory
bodies for Internet-based media, parallel to an already functional self-
regulatory body for print media.
Whilst there have been no reported cases of censorship of Internet content,
wrong application of the AVMS Directive through inappropriate
mechanisms could result in an uncontrolled regulation of non-linear media
services in the future. There is no direct government pressure on Kosovo

54
   http://www.imc-ko.org/index.php?l=e&parent=0
55
   http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L15_en.pdf
56
   http://www.epra.org/content/english/index2.html
57
   http://www.coe.int/t/e/human_rights/media/


                                              48
media, and the public can exercise their full freedoms with regards to the
media, speech and information. Nonetheless, indirect political pressure
exercised by changing democratic governments focuses mainly on the public
service broadcaster through intimidation of the editorial staff and cutting
down on its revenues. The commercial media have not experienced political
pressure that would undermine their editorial independence, or have
exercised self-censorship. Indirect censorship of commercial media takes the
form of economic sanctions. Adverts blocked by government institutions are
not rarely the government‟s response to critical reporting of print media. The
IMC, and other relevant media stakeholders and institutions including the
OSCE, cater for the Kosovo media operating in a free environment and a fair
media market. Newly emerging non-linear media are not yet regulated, but
the IMC, in line with the applicable legislation and with the best European
practices, together with other relevant stakeholders will provide that all
media operating Kosovo are accountable while preserving the freedom of
the media.
       To date, there have been no public discussions on the draft AVMS
Directive in Kosovo. The key media institutions in Kosovo, the Independent
Media Commission, a regulator of electronic media in Kosovo, the Press
Council of Kosovo, a self-regulatory body for the print media have neither
organized nor held any public discussions or meetings on the AVMS
Directive, nor are familiar with the adoption of the AVMS Directive in
December 2007. The Directive is new information also for media
representatives and editors-in-chief of print and broadcast media. However,
according to a report submitted by an IMC Council member to the OSCE
during the first half of January 2008, “the digitalization question and the
future of the audiovisual media services development is a very important
policy issue. It is important that a strategy is developed and that a wide
public discussion which would include all stakeholders is organized.”58
       The Independent Media Commission regulates only the broadcast
media in Kosovo, and therefore has no authority over non-linear services or
new media. However, the IMC as a young institution has issued its new
regulation59 on the cable distribution of radio and TV in Kosovo. The two
main cable operators and ISP providers in Kosovo are IPKO60 and
KUJTESA.61 Kujtesa carries the IP-based television station, Rrokum TV,62

58
   Sandra B. Hrvatin, International IMC Council member.
59
   http://www.imc-ko.org/index.php?id=346&l=e
60
   http://www.ipko.com/en/
61
   http://www.kujtesa.com/?gjuha=1
62
   http://www.rrokum.tv/?id=1


                                                  49
which in order to be carried through cable has to obtain a license from the
IMC and thus is subject to the code of conduct for electronic media.
       The only way to enforce any legal mechanisms applicable to non-
linear media services even without the application of the AVMS Directive is
by revoking the license of cable operators in Kosovo who carry IP-based
non-linear services.
       The IMC has registered 15 cable operators across Kosovo and has
called upon them to submit their applications to obtain licenses to operate
legally. To date, none of the cable operators have applied because they have
to present contracts with the television networks they carry. It seems that due
to lacking contracts, or cable operators illegally carrying certain television
networks, none of the operators has initiated its application. IMC as a
regulatory body for traditional linear media has no authority to regulate
existing non-linear services like Rrokum TV, as there is no legislation.
       Kosovo held its last elections in November 2007 to finally form its
governing coalition in January 2008. By none of the previous governments,
was there direct abuse of existing regulations and/or legislation; this could
be particularly witnessed during the conversion from the Temporary Media
Commissioner63 (TMC) to the Independent Media Commission, which as an
independent body built its regulations and decisions based on the best
European Practices and the Television without Frontiers Directive.
       The governments in Kosovo have not had any explicit experience with
freedom of the media; nor have the Central Assembly Committees,64 who
are tasked with media issues and legislation, and are largely dependent on
advocacy by international organizations such as the OSCE, which is
mandated to develop the media in Kosovo, advise government institutions
on media legislation and preserve the freedom of the media and expression
in print and broadcast media.
       However, the government has no legal basis to interfere with content-
based regulations of the Directive, as the Directive is not applicable in
Kosovo. However, hypothetically, if the AVMS were implemented in
Kosovo, the government, having shown tendencies of exercizing pressure, or
economically sanctioning critical media, is likely to interfere with the new
provisions to restrict non-linear services to the same extent, as this would
interfere with existing regulations for linear media.
       The general opinion is that UNMIK has unlimited powers in Kosovo.
Kosovo has not experienced any attempt of actual government censorship of

63
     http://www.imc-ko.org/IMG/pdf/Regulation_2000_36_English.pdf
64
     http://www.assembly-kosova.org/?krye=komision&lang=en


                                               50
communication through the Internet in the last few years, as it had no legal
mechanisms to prosecute any non-linear services. Before the TMC-IMC
conversion, there was an attempt by a senior-ranking international official in
UNMIK international administration who asked the Temporary Media
Commissioner, Robert Gillette to close down the Kosova Action Network65
website because of its anti-UNMIK propaganda. The Temporary Media
Commissioner replied by explaining he did not regulate Internet content and
could not attempt to close down a website that was hosted in the United
States of America.
       As mentioned above, Kosovo has not experienced any attempt by the
actual and previous governments to censor communication through the
Internet in the last few years, as there are no legal mechanisms to regulate
Internet content. The OSCE, IMC and other media watchdogs in Kosovo
have not reported on any attempts by successive governments to censor
communication on the Internet. A report66 published on the website of the
US liaison office in Pristina reads inter alia of no abuse of Internet freedom
by UNMIK or Provisional Institutions of Self-Government.
       However, there have been several attempts by government institutions
to influence the editorial policy of several daily newspapers and commercial
televisions through the restriction or complete withdrawal of adverts placed
by certain ministries that have been subject to fierce criticism by the
respective media. The director of the only viable news agency, Kosovalive,67
complained that his agency has not been spared from government bodies
retracting adverts, which however, has not yet affected the agency‟s editorial
independence.
       After three legislative periods, Kosovo is still not well known for
well-functioning institutions. With UNMIK as the international
administration, the drop-down hierarchy of the PISG, foreign diplomatic
offices, the semi-functioning legal system and weak rule of the law, the
independence of media is perceived to be in a dire state, as the fourth estate
in Kosovo. The majority of the press in Kosovo is politicized; critical
newspapers and critical reporting are rare.
       Civil society in Kosovo is underdeveloped and uncoordinated in its
efforts to establish an effective dialogue with government institutions, while
on the other hand there is no constitutional protection for communication



65
   http://www.kan-ks.org/lexo_permbajtjen.php?kategoria=1&gjuha=english
66
   http://albanian.pristina.usmission.gov/uploads/images/NMozJycPEpGawXXnzjsMbA/ahrkos6.pdf
67
   http://www.kosovalive.com/?cid=2,4


                                            51
rights provided by Kosovo‟s Constitutional Framework68 for Provisional
Self-Government.
        The court system continues to face serious challenges, starting from
its internal mechanisms and low budget share, low salaries for judges for the
amount of work they carry out and the responsibilities they have. Tens of
thousands of unresolved cases in the entire legal system of Kosovo
contribute to a vulnerable judiciary too weak to resist any possible
government pressure on either linear or non-linear media.
        The report of January 30, 2008 of Amnesty International is
hypercritical of the work of the UNMIK justice in Kosovo and foresees the
rebuilding of the local justice system and rule of law through the new
European Union Defence and Security Policy Mission (EDSP).
        Over the past several years, Kosovo institutions have passed key
media legislation, including the Law establishing the public broadcaster and
the Law on the broadcast regulator. Decriminalization of defamation and the
passing of a Law on Copyright have marked a significant breakthrough
comparing to other neighboring countries. The public broadcaster, Radio and
Television of Kosovo, is also perceived as the most independent public
service broadcaster in the region. With provisional governmental institutions
and international administration, the experience of any political repression
over independent media was less than in any neighboring country in
transition where media experience direct political pressure and control.
        With the Law on the Independent Media Commission and the
conversion from the TMC to the IMC, electronic media gained more
protection from any direct political influence whether from UNMIK or the
Provisional Institutions of Self-Government (PISG).69 However, the
structure of the IMC is perceived as vulnerable as it is funded from the
Kosovo Consolidated Budget. The new government in Kosovo is already
creating a financial “headache” for the IMC by unlawfully cutting down its
annual budget and interfering in its daily administration.
        The line of an AMPEK70 representative is that the Kosovo
government still considers the IMC as an irrelevant regulatory body for the
media and does not count on the credibility it actually enjoys within the
community of electronic media in Kosovo.
        As a young institution, the IMC with its internal bodies and existing
regulations is trying to regulate the current sector of broadcast media and the
new cable operators and this in itself represents a big challenge and a
68
   http://www.unmikonline.org/constframework.htm
69
   Provisional Institutions of Self-Government.
70
   Association of Independent Electronic Media in Kosovo.


                                                  52
problem to deal with, let alone keeping up with new developments in a
professional and timely fashion.
       This implies that content-based rules will become an issue for an
independent regulator only after full compliance by the IMC with the AVMS
rule and decisions to update existing legislation in order to be able to
implement the Directive and regulate content media. Kosovo, with a strong
IMC in place, even though the youngest democracy in South East Europe,
will present a tough challenge to any possible abuse by the government of
the content-based rules of the AVMS Directive.
        As already mentioned, the press in Kosovo is rather politicized and
several dailies serve more as political party mouthpieces rather than
providing the public with unbiased and professional reporting. Besides few
exceptions that often criticize the work of the PISG, the press would not be
able to stop possible abuse of the Directive by the government. The
insignificance of the print media in Kosovo results from Kosovo having the
lowest circulation figures in Europe. Overall circulation of all nine dailies in
Kosovo does not exceed 25000–30000 copies a day. Only one in 80 citizens
buys a daily paper. Civil society initiatives are almost non-existent,
especially in terms of criticizing governmental bodies for any pressure
against independent media in Kosovo. Since there is no constitutional
protection for communication rights in Kosovo, the independence of the
court and rule of law are largely dependent on government, and especially
UNMIK administration.
       For the time being, the Independent Media Commission has no
official plans to implement the Directive. However, according to OSCE‟s
IMC advisor, once the AVMS Directive is put on the agenda, the IMC will
most probably implement the Directive rules vis-à-vis traditional media
regulation, but at this point not take into account new non-linear media
services.
       For 2008, the IMC plans to incorporate the licensing of cable
operators and re-licensing of the entire spectrum of broadcast media. This in
itself presents a huge challenge for the IMC which finds it extremely
difficult to preserve its financial sustainability vis-à-vis continuous budget
cuts by the government and non-compliant cable operators. Those are
considered as illegal operators until they provide contracts to the IMC with
all TV networks and content providers they carry on cable. There is no clear
suggestion by the IMC or any other relevant institution as to when the
Directive would be implemented in Kosovo.
       Since there are no plans to implement the Directive in Kosovo, it is
highly unlikely that it would be implemented in one phase including non-

                                      53
linear services. Based on the existing law, the Independent Media
Commission regulates the broadcast media only and it will most probably
not adopt its new policies based on the AVMS rules for linear services until
it becomes able to regulate the non-linear services and implement the AVMS
in that respect.
       The Law on Information Society71 regulates the output of the
electronic information system, international standards, development,
functioning, increase of quality and security over the scope of information
society services. The e-commerce provisions of this law include consumer
shopping and sales over the Internet, e-banking and payment services,
government provision of services and electronic purchasing by enterprises.
The Law also extends to “information society” services which according to
article 17, paragraph 2 are “any services normally provided for
remuneration, at a distance, by electronic means and at the individual request
of a recipient of services”. It also applies inter alia to distance
communication like “[…] telephone with/without human intervention, radio,
videophones […].” Nevertheless, this law does not have any powers on non-
linear media services.
      The Press Council of Kosovo is the only self-regulatory body for
media; however, it is restricted to print media and does not cover the self-
regulation of the Internet. In the autumn of 2007, the OSCE suggested to the
PCK to take over the regulation of the Internet versions of its member
papers. To date, this recommendation has not been implemented.
       The Law on the Independent Media Commission72 adopted by the
Assembly of Kosovo on April 21, 2005 and promulgated by the SRSG73 on
July 8, 2005, does not extend the regulation of communication through the
Internet. As long as there is no legislation to regulate communication
through the Internet, the IMC has no authority to regulate such
communication.
       The Assembly of Kosovo adopted the Law on Radio and Television
of Kosovo74 on January 20, 2006 which was promulgated by the SRSG on
April 11, 2006. This is the only radio-television law which provides
incentives for the professional work of the public service broadcaster,
institutional protection, and to an extent financial sustainability through the
71
   This Law was based on the model law developed by the United Nations Commission on International
Trade Law (UNCITRAL). See http://www.assembly-kosova.org/common/docs/ligjet/2005_02-
L23_en.pdf /.
72
   http://www.assembly-kosova.org/common/docs/ligjet/2005_02-L15_en.pdf.
73
   United Nations Special Representative of the Secretary General heading UN Mission in Kosovo.
74
   http://www.assembly-kosova.org/common/docs/ligjet/2006_02-L47_en.pdf.


                                                 54
collection of the Public Broadcast Fee. This is stipulated under the “Sources
of Funding” Article 19 of the Law on RTK. However, the Assembly of
Kosovo as the founder of RTK has insofar failed to react against the
termination of the Service Contract75 to collect the Public Broadcast Fee
(PBF) by the public Kosovo Energy Corporation (KEK). According to this
Service Contract, KEK is the collecting agency for RTK and as such
responsible for collecting the PBF.
       As mentioned above, the Kosovo Assembly passed the Law on
Information Society, which contains provisions of e-commerce that cover
electronic commercial transactions; shopping and sales, e-banking and
payment services over the Internet. This law, entered into force in May
2006, neither applies to radio, television, teletext and other broadcasting
services, nor to non-linear media services.
       The Independent Media Commission has not held any discussions on
the AVMS Directive yet. The opinion of the OSCE advisor to the IMC and
the OSCE Media Unit is that the Directive should be implemented in two
separate phases: respectively provisions of the Directive for linear services
would be implemented by amending the Law on the IMC vis-à-vis
traditional regulation; and at a later stage after IMC strengthens its role as an
independent institution in Kosovo, it would start the implementation of the
provisions for non-linear services by either amending the IMC Law or the
Law on Information Society, but in any case, in close coordination with the
Telecommunications Regulatory Agency76 (TRA). The TRA was set up in
2003 as an independent regulatory agency responsible for licensing and
supervising the providers of telecommunications services in Kosovo, setting
standards for all service providers and establishing provisions for consumer
protection on finding the best implementation mechanisms of the AVMS
rules for non-linear services under the supervision of the Independent Media
Commission, which would preserve its independence, compared to the TRA
which is a rather politicized institution in Kosovo.
       There is no self-regulatory system for Internet content providers in
Kosovo or any plans ahead to establish one. The actual non-linear media


75
   The two public companies have signed a one-year contract by which KEK implements the collection of
the Public Broadcast Fee through electricity bills. In August 2007, KEK sent a termination notice to RTK
under the allegation that PBF hampers KEK in collecting its own revenues. This contract is to expire in
February 2008, and all relevant media stakeholders are working intensively in finding a long-term solution
for financial sustainability for RTK. On February 1, 2008, the International Community decided to instruct
KEK to continue the collection of PBF until the end of May 2008 in order to allow for finding an
alternative solution.
76
   http://www.art-ks.org/.


                                                    55
services such as Rrokum TV operate de facto in a vacuum environment
where these types of media are not regulated by any authority.
       Kosovo print media have however, managed to establish their self-
regulatory body, the Press Council of Kosovo77 which has encountered many
professional and financial difficulties since its establishment in 2005.
Nevertheless, the Press Council has managed to promote professional values
of self-regulation even in a young democracy such as Kosovo. The PCK has
inter alia had a serious setback in 2007 which resulted in a split up between
several members including the Serbian minority print media over a
publication printed by one of the dailies and on which the PCK could not
reach a consensual decision due to a lack of provisions in the press code and
the Press Council‟s statute.
       The Press Council of Kosovo is a young complaint-driven institution
and as such is gradually building on its credibility in the Kosovo society.
One of the OSCE recommendations to the PCK is to take over the regulation
of the Internet editions of its members.
       Self-regulation has proven to be a possible mechanism in Kosovo.
Under the OSCE‟s monitoring, the Press Council of Kosovo has never
experienced any government pressure since 2005. There have been internal
setbacks and disagreements amongst its members which are considered
“normal” for a country in transition.
       There is no co-regulation of Internet content providers, but self or co-
regulation with the Independent Media Commission could be applied in
Kosovo to cover the provisions of the AVMS Directive.
       Article 3/7 of the AVMS Directive through which “member states
shall encourage co- and/or self-regulatory regimes at national level […] to
the extent permitted by their legal systems” would be one of the best options
for the Council of Europe to relate to the Directive when updating the
content-based provisions of its transfrontier television convention in the
Kosovo context.
       The IMC consults regularly with the CoE to ensure that it is following
appropriate European standards and has so far referred to CoE
recommendations and EU directives when drafting sub-legislation.




77
     http://www.presscouncil-ks.org/?cid=2,1&tpl=home.php.


                                                56
Country Report: Republic of Macedonia
Snezana Trpevska

1. The subject of regulation of the new Directive

       On November 29, 2007, the European Parliament formally adopted
the new Audiovisual Media Services Directive, which entered into force on
January 1, 2008. EU member states must harmonize their national legislation
with the new audiovisual acquis no later than the end of 2009.
       The main reason behind the passing of the new directive is the
technological advancement and the market changes in the EU audiovisual
industry. The rules set out in the previous Television Without Borders
Directive of 1989 were designed at a time when every country had only a
few analogue terrestrial TV channels. This Directive was partly updated in
1997, due to the introduction of satellite TV. At the time, only a few
countries had satellite television, while digital TV, broadband Internet and
Internet-TV were only a matter of debate in technical circles.
       Technological innovation introduced the phenomenon of digital
convergence between telecommunication, broadcasting and information
technology, i.e., computers and the Internet. Internet-TV, interactive
television and mobile phones that can play TV content are nowadays
becoming increasingly available to a rising number of citizens of EU
countries. In addition to the interactivity they get through terrestrial
television, many viewers get video on demand as subscribers to a cable,
optical or a digital line. IP TV and new technologies such as mobile web
streaming are on the rise, which will have an additional impact on the
development of the audiovisual industry.
       The very title of the new Directive is a clear indication of the intention
of the European Commission to abandon regulation solely of TV broadcasts
and to expand the minimum harmonized rules to non-linear media services
as well. What are linear, and what are non-linear media services in the new
Directive, and what types of Internet distributed non-linear services will be
covered by the Directive?
       Linear services are broadcast according to a pre-determined program
schedule, where viewers have no choice in terms of the period of watching
of the content. In fact, this group includes all TV services which have so far
been broadcast in an analogue technological environment. When it comes to
non-linear audiovisual media services, it is the viewer who decides when to
watch certain content, by choosing from a catalogue of programs on offer.


                                       57
Thus, the difference is who decides when to broadcast certain content and if
there is a program schedule or not.
       This is the source of the key new development in the new Directive:
in addition to the introduction of basic rules for all types of audiovisual
services, there is a clear difference in the level of regulation depending on
the degree to which the user has control over the choice of content. More
user control means less need for regulation. This means that non-linear
services will be the object of regulation only in terms of a minimum set of
rules to apply for all countries.
       Another important issue is which part of the content broadcast over
the Internet will be covered by the new Directive? The answer to this
question is a result of the definition of audiovisual media services offered in
the Directive. Namely, audiovisual media service is a service78 transmitted
through any electronic communication network, which offers programs with
an informative, entertainment or educational function, to the general public
and for which the media service provider has editorial responsibility.
Programs are defined as a set of moving images, with or without sound,
constituting an individual item within a schedule or a catalogue, and whose
form and content is comparable to the form and content of television
broadcasting.
       The term “to the general public” means that this definition excludes
all forms of private correspondence or communication with a limited
number of entities. It also excludes those services where the distribution of
audiovisual media content is not their primary objective, as well as services
that include some audiovisual content but play only a supportive role. Thus,
the new Directive covers only TV-like services, and therefore excludes
Internet editions of newspapers, magazines, websites with no audiovisual
content, audio broadcasting, and radio.
       The minimum set of rules that will apply to TV-like services will
cover the protection of minors from allegedly harmful content, broadcasting
of content that incites to hatred and intolerance, identification of the media
service provider, identification of commercial communication and of certain
aspects of advertising and sponsorship (surreptitious advertising, product
placement, alcohol advertising, etc.).
       In other words, all rules that have applied so far in terms of protection
of minors and the ban on broadcasting content that incites to various forms
of hatred and intolerance will apply to TV services broadcast over the

78
  Art. 1 of the Audiovisual Media Services Directive, AVMSD Unofficial consolidated working document,
http://ec.europa.eu/avpolicy/docs/reg/avmsd/avmsd_cons_1207_en.pdf.


                                                 58
Internet, and previous rules on advertising and sponsorship will be
liberalized and minimal.
       Audiovisual service providers will have to follow the rules prescribed
in the Directive, whereas this will not apply to Internet service providers, as
broadcasters of content. This means that the latter hold no responsibility for
the content, unless they themselves are offering on-demand services.

2. General framework for implementation of the Directive in national
legislation

       In the Republic of Macedonia, the date when the new Audiovisual
Media Services Directive was adopted, November 29, 2007, coincided with
the adoption of the Broadcasting Development Strategy79 by the independent
regulatory body in the field of broadcasting, developed on the basis of
extensive analysis and research and through a broad process of debates and
public consultation with all relevant stakeholders in the field of
broadcasting.80 In fact, the Strategy is the only document that helped make
the Macedonian general public aware of the essence of the changes brought
about by the new Directive. The public debate process lasted for two
months, and all interested parties were able to present their remarks and
opinions in writing. None of the participants in the public debate denied the
need to expand the regulation to include new services distributed over the
Internet or the need to harmonize national legislation with the new Directive.
       Part 6 of the Strategy, dedicated to the new audiovisual services, starts
by explaining the difference between linear and non-linear services and the
basic principles of their regulation. This is followed by a general framework
of the future regulation of non-linear services in the Republic of Macedonia,
underlining the fact that the regulation will be much less restrictive and that
for the new services there will be rules (also present in the current
regulations) that forbid:

      Programs aiming at violent overthrowing of the constitutional order of
       the Republic of Macedonia, inciting or calling to military aggression
       or promoting hatred and intolerance on the grounds of nationality,
       race, sex or religion (Art. 69 of the Law on Broadcasting). Catalogues

79
   The Broadcasting Development Strategy is available on the Broadcasting Council‟s website:
www.srd.org.mk.
80
   The Broadcasting Council adopted the final text of the Strategy at a public session held on November 27,
2007, and the document was officially presented to the Parliament of the Republic of Macedonia on
November 29, 2007.


                                                    59
      of content on offer will not be allowed to offer any programs with
      such content

    Programs containing pornography, excessive violence, or any other
     content that might seriously threaten the physical, psychological and
     moral development of children and young people (Art. 70 of the Law
     on Broadcasting). Content providers will be required to ask the users
     for proof they are not underage

    Surreptitious advertising (Art. 98) and subliminal advertising
     techniques (Art. 97 of the Law on Broadcasting)

    Qualitative restrictions related to advertising, including protection of
     minors (Art. 88), basic advertising standards (Art. 89), ban on
     advertisements for narcotics, tobacco and alcohol (except wine and
     beer), medical treatments and medicine issued only on prescription;
     weapons and companies selling weapons (Art. 101, lines 1, 2 and 3,
     and other related articles).

           Non-linear services will also require new legal provisions to
regulate other segments important for their proper functioning from a
programming aspect, such as: the introduction of measures to clearly
distinguish between advertising, teleshopping and other types of commercial
communication and other programs; establishing clear rules on product
placement in programs, sponsorship rules; rules on service identification;
ways to promote European audiovisual works, etc.
           The guidelines given in the Strategy are in line with full acceptance
of the new Directive and its implementation in national legislation by the
end of 2012. The rules set out in the current law on Broadcasting will
continue to apply to linear services, pointing out the need for their partial
liberalization in the advertising and sponsorship part, in the spirit of the new
Directive.
           The basic explanation provided by the European Commission
about the need to expand the Directive‟s scope to include non-linear services
is fully supported by the argumentation that it is necessary to protect minors
from allegedly harmful content and to prevent hate speech often present in
this region‟s past. In Macedonia, the introduction of more liberal rules about
non-linear services is also explained by the need to encourage interest
among different entities to invest in such services.



                                      60
          The Broadcasting Development Strategy provides a general
framework for implementation of the new Audiovisual Media Services
Directive, and the competent Ministry of Transport and Communications is
yet to set deadlines for the passing of new regulations in order to ensure its
full implementation into national legislation. In the National program for
adoption of EU law, such activities are planned in 2009 and 2010.

3. Regulating the Internet in Macedonia

       The market for electronic communication services in the Republic of
Macedonia is fully liberalized. Entities interested in providing Internet
services are required, in accordance with the Law on Electronic
Communication, to apply for notification before the Agency for Electronic
Communication, which is required to issue the said notification within 15
days.
       Content transmitted over the Internet is not subject to regulation by
any specific law. The provisions of the Law on Broadcasting which came
into force in December 2005 are in line with the previous Television
Without Borders Directive and have basically been designed for traditional
analogue television broadcast. However, if we consider the definitions of the
key terms used in this Law (broadcasting activity, program service,
broadcasting, broadcaster, etc.), we can conclude that this Law also covers
television (linear) program services which would be licensed for broadcast
through an electronic communication network, including the Internet. The
competent licensing and monitoring body for such TV services, according to
this Law, is the Broadcasting Council, which in terms of election procedure
and competencies is an independent regulatory body.
       So far, no license has been granted for a program service intended for
broadcasting through a public communication network, including the
Internet. The reason lies in the small amount of interest demonstrated in
establishing such a program service so far, due to the fact that the
penetration of broadband Internet, which allows transmission of television
services or content, is very low in Macedonia.81 Non-linear services are not
subject to regulation by the current Law on Broadcasting, because Art. 4 of
the Law, which provides the definition of the term “broadcasting”, explicitly
states that “this does not include communication services performed on the
basis of an individual demand”.

81
 According to research conducted by the agency SMMRI-Skopje, in April 2007 only 10.05% of all
Macedonian households had broadband Internet.


                                                61
        The Law on E-Commerce, which became operational in November
2007, regulates the conditions under which e-commerce services can take
place, the responsibility of Internet Service Providers, and commercial
communication over the Internet. The purpose of this Law is merely to
establish a general legal framework and legal security in the provision of
services and to promote the development of e-commerce. It is not the
purpose of this Law to regulate the content of audiovisual services (linear or
non-linear) transmitted over the Internet. Even in the commercial
communication part, where there may be some similarities with audiovisual
content transmitted over the Interned, the Law contains only two general
provisions related to the information which should be made available during
the course of commercial communication.
        Therefore, the rules for regulating (television) non-linear services to
be transmitted over the Internet will be subject to the Law on Broadcasting,
or maybe to a new Law on the Audiovisual Sphere, in case of more
comprehensive and extensive changes of the regulations, in the direction of
its full harmonization with the new Audiovisual Media Services Directive.
As already described in the part related to the framework determined by the
Broadcasting Development Strategy, rules for non-linear services will be
more liberal in comparison with linear ones, but only in terms of advertising
and sponsorship. In the part related to the protection of minors and the ban
on inciting racial, religious and ethnic hatred and intolerance, the rules will
be the same. Regulation of non-linear services will probably continue to be
performed by the Broadcasting Council, which should be given such an
authority under the new legislation.
        All other content transmitted over the Internet is not subject to
regulation by a law. Furthermore, there is no self-regulation adopted by
Internet Service Providers. In any case, even if such self-regulation existed,
it would not have been sufficient to regulate non-linear services, because
Macedonia is a post-conflict society with still fragile inter-ethnic relations.

4. Danger of censoring freedom of expression

       In order to provide an answer to the question of whether the adoption
of the new Directive could affect freedom of expression in post-communist
democracies, we need to consider two key aspects: 1) the type of Internet
content that may be subjected to attempts to censor it; 2) the position of the
regulatory body that regulates traditional television broadcasting and will
probably regulate new non-linear television services.



                                      62
       As explained in the introduction to this article, linear services
transmitted over the Internet are in fact the television services of the type
found in traditional television broadcasting, the content of which is subject
to a set of rules related to basic programming principles, protection of
minors, advertising and sponsorship, etc. The possibility to censor the
content broadcast by these services, independent of the technical means used
to transmit it, should also be subject to limitation in the legislation. Thus, the
extent to which the government could censor the content which is the
integral part of linear services transmitted over the Internet will directly
depend on the quality of security mechanisms included in the legislation.
Consequently, similar mechanisms in the legislation should also be included
with regard to non-linear services.
       This can be illustrated by an example. The current Law on
Broadcasting in the Republic of Macedonia contains several provisions
designed to prevent the possibility for any center of influence to exert
influence over broadcasters‟ programming. For instance, Article 68
prescribes that radio and TV programs are based, among other things, on the
principle of autonomy, independence and responsibility of broadcasters, or
editors, journalists and other authors in the development of programs and the
creation of editorial policy. This principle applies primarily to newscasts and
other informative programs that exert the biggest influence on public
opinion and where it would be logical to expect censorship attempts. The
same principle, so to speak, would apply to a non-linear service that would
offer such programs on demand in its content catalogue. The editorial
control and the responsibility for this content would lie with the audiovisual
(non-linear) service provider, and therefore the principle of autonomy and
independence would apply to its editorial policy. The quality of the specific
legal solution and the possibility for the regulatory body monitoring the
enforcement of the Law to mete out sanctions, that is to protect the media
outlet from different forms of influence, is a different matter altogether. For
instance, past implementation of the Law on Broadcasting in the Republic of
Macedonia has shown that some legal solutions are not precise enough and
do not include all forms of censorship through which the government or
some other power center can influence broadcasting media.
       Another key aspect is the independent position of the regulatory body
which monitors the implementation of the Law and which is supposed to
guarantee the independence of the media. During the process of adopting the
new Audiovisual Media Services Directive, the need for independent
regulatory authorities which would monitor the implementation of the
Directive and act as guarantee of the independence of media services, linear

                                       63
or non-linear, was emphasized on several occasions. In South East Europe‟s
new democracies, the establishing of independent regulatory bodies proved
to be a lengthy and difficult process, because by influencing the regulator,
authorities can influence the media too. What is particularly important in
these countries is for this hard-earned independence of the regulator to be
preserved in the phase of implementation of the new Directive in national
legislations, because that is the only way to maintain and guarantee the
independence of the media and freedom of expression in a converged
technological environment.
       The international conference dedicated to the role and functions of
regulatory bodies in the new technological environment, held in October
2007 in Skopje, Republic of Macedonia, under the auspices of the Council
of Europe and the OSCE, underlines the following: “Of fundamental
importance is the independence of the regulatory body regardless of its form,
converged or non-converged. The Council of Europe Recommendation 2000
(23) on the independence and functions of regulatory authorities for the
broadcasting sector outlines the basic prerequisites for independence: that
regulatory bodies are given adequate powers to fulfill their missions (as
prescribed by national law) in an effective, independent and transparent
manner; that they are established with clear rules and procedures that should
clearly affirm and protect their independence; these rules should address the
definition of duties, powers and competences, transparency and
accountability, procedures of appointments and funding.” 82
       Therefore, the provisions of the new Directive cannot by themselves
lead to limitations on freedom of expression, because the range of the
Directive is not expanded to include other Internet content, but only
television services. And if this concern is only related to the possibility to
influence such content, the answer lies in preserving and protecting the same
fundamental principles that guarantee freedom of expression, as set out in
Art.10 of the European Convention on Human Rights. These principles are
in fact embedded into the very Audiovisual Media Services Directive, in the
provisions guaranteeing freedom of retransmission and clearly outlining the
exceptions when a specific country is allowed to impose limitations on that
freedom.



82
  Conclusions from the conference “Converging media – convergent regulators? The future of
broadcasting regulatory authorities in South-Eastern Europe”, Skopje, October 1–2, 2007, available at
http://www.coe.int/t/e/human_rights/media/Conclusions_Conf_Skopje_1_2.10.07.pdf.



                                                    64
Country Report: Moldova
Liliana Viţu


Introduction

       The Republic of Moldova is part of the European Union‟s
Neighbourhood Policy (ENP) under which it signed a three-year Action Plan
to foster ambitious political, economic, social and security reforms aimed at
bringing the country closer to EU standards. The EU-Moldova Action Plan83
expires in March 2008, followed by a two-year roll-over. The Moldovan
Government expressed its wish to conclude an enhanced political agreement
with the EU to replace the Action Plan, which would clearly stipulate the
country‟s membership perspective. To prove its European aspirations, the
government declared European integration Moldova‟s strategic foreign
vector, and also the only feasible pattern for domestic modernization and
prosperity.84 Since 2005, harmonization of national legislation to the EU
body law turned into one of the government‟s and parliaments‟ priorities.85
Although acquis communautaire is not compulsory for the Republic of
Moldova, it does serve as an indication towards what reforms should be
undertaken in order to adjust to European norms and meet the Copenhagen
criteria. Hence, Moldovan politicians and public servants should pay careful
consideration to the latest developments in such important fields as media
freedoms – one of the Action Plan areas where Moldova lags far behind.
       On December 18, 2007, the new Audiovisual Media Services
Directive (2007/65/EC)86 was published in the Official Journal and came
into force the next day. Member states have a maximum of two years to
transpose the Directive‟s new rules into national laws. In the mean time, the
provisions of the Television Without Frontiers (TVWF) Directive will
remain fully applicable. The new Directive covers all “audiovisual media
services” including on-demand services regarded as “a non-linear media
service”.87 Thus, traditional content-related regulation was extended to the
new media, especially the Internet, which may fall under the non-linear
83
   http://ec.europa.eu/world/enp/pdf/action_plans/moldova_enp_ap_final_en.pdf.
84
   http://www.mfa.md/img/docs/fisa_retrospectiva_ro.pdf.
85
   http://europa.timpul.md/Article.asp?idIssue=176&idRubric=2128&idArticle=5457;
   http://www.mfa.md/img/european-integration-documents/RaportRM-UE2007short.doc.
86
   http://ec.europa.eu/avpolicy/reg/avms/index_en.htm.
87
   “On-demand audiovisual media services (i.e., a non-linear audiovisual media service) means an
audiovisual media service provided by a media service provider for the viewing of programs at the moment
chosen by the user and at his individual request […]” Directive 89/552/EEC, Article 1, (g).


                                                  65
category of the new Directive. This might lead to additional restrictions of
freedom of speech and free circulation of information, since government
might try to limit Internet-based contents rather than leave it to the self-
regulation mechanisms or co-regulation while transposing Directive‟s
provisions.
       Media service providers, NGOs, on-line media organisations,88
regulatory bodies such as the Broadcasting Coordination Council (BCC), the
Central Election Commission (CEC), government representatives and
Members of Parliament should engage in thorough discussions and analysis
to make sure that national measures would not bring further restrictions on
media landscape under the hat of current Directive. Self- regulation should
be placed at the core of these talks and debates should continue until the
problem is being tackled in a complex manner, by answering the concerns of
all sides affected by the policy.

1. Audiovisual realities

Internet usage is steadily increasing in Moldova reaching 21.2% in 2006
compared to 15.7% in 2005. Daily access of Internet increased to 26% in
2006, while usage of WiFi, xDSL and Home Ethernet grew from 1.7% to
17.3% in the same period.89 Rural areas are still poorly covered by the
Internet. According to an E-Readiness study in 2006, information portals
and news pages are the most visited (apart from entertainment sites) media,
increasing its presence on the web from 20.9% in 2005 to 37.4% in 2006.
For example, on September 17, 2007 (the independent, non-state) PRO-TV
Chisinau became the first TV station to place its main news program on the
Internet.90 As the Media Monitor Agency wrote, the program will not be
transmitted in real time, but it will offer the opportunity to those who missed
the bulletin to see it the next day. This trend is expected to grow in the
following years given developments in this sector.
The spread of blogs constitutes another feature worth looking at on the
Moldovan media landscape. The blogging festival “Blogovat-2008” will be
organized this year to designate awards for Best Blog Article and Best Blog
of the Year.91 Blogs are especially popular among experts, the NGO
community, journalists and researchers, i.e., those who often display critical

88
   Electronic versions of newspapers and magazines are not subjects of the Directive, AVMSD, Article 21.
89
   UNDP, Business Intelligent Services, Usage of Informational Technologies and Communication/E-
readiness – 2006 study, dated 31 May 2007, www.e-moldova.md.
90
   Visit www.protv.md.
91
   DECA-press, The First Blogs Festival will be organized in Moldova, 17 January 2008, www.deca.md.


                                                   66
and different opinions regarding governmental decisions and policies. Thus,
this category might raise the attention of regulatory agencies when
examining on-demand content.
        In recent years, the Moldovan authorities have frequently used
various forms of economic pressure to restrict media pluralism, such as
arbitrary licence annulments and hefty fines for alleged defamation. These
tactics have resulted in either the closure of many media outlets or else a rise
in self-censorship: it is worrisome that three TV channels and four radio
stations declined to cover the 2005 general elections or broadcast any form
of election advertising.92 At that time the international community similarly
echoed the concerns of domestic NGOs that the national broadcaster
Teleradio-Moldova was being used to promote the ruling Communist Party
and weaken its political opponents. Furthermore, on the eve of the June 2007
local elections, more direct attacks on journalists themselves surfaced.93 As
media NGOs leaders pointed, this sort of pressure will continue until the
spring of 2009 when general parliamentary elections will be called: “2008
will become a year of resistance, since the current leadership is not
interested in genuine reforms; the media will continue to be concentrated in
the hands of few politicians; and the general climate will worsen because of
elections.”94
       Although content-based regulations of the AVMSD will not become
an immediate matter of action for the Moldovan government, one can expect
that the government will use any opportunity to restrict pluralism of opinion
in the light of an electoral campaign. There has been no attempt to censor
communication through the Internet, but steps were taken to regulate
Internet advertising – a group of Communist MPs put forward amendments
to the Electoral Code to introduce full compliance of Internet advertisement
with all written press regulations.95 The draft is likely to be passed in the
current spring session of the Parliament, thus introducing first regulations
directly addressed to the usage of the Internet.
    Previously, independent press and civil society organizations echoed
concerns over intimidation of journalists and limitations of media freedoms;
however, these were largely ignored along with calls from the international

92
   Liliana Vitu, Media Development in Moldova and European Integration, “Media in the Enlarged
Europe”, University of Bedfordshire, United Kingdom, 2007
93
   Civic Coalition for Free and Fair Elections – Coalition 2007, Statement on the abuses of the police
forces, dated 28 March 2007, http://www.alegeri.md/en/2007/coalition2007/.
94
   Info-Prim Neo, Media-Monitor Agency, 2008 Outlook for Moldovan Media with Directors of
Association of Electronic Press, Association of Independent Press and Access-Info Centre, January 18,
2008
95
   http://www.parliament.md/download/drafts/ro/4350.2007.doc.


                                                    67
and diplomatic community for the government to reconsider some decisions
or undertake genuine reforms in the field. Teleradio-Moldova serves as the
most relevant example in this respect. For example, in May 2005, Western
diplomats published a joint statement calling on the country‟s leadership to
develop a more vibrant and free media. One year later, they urged again the
government to “move from words to deeds” and respect “the spirit of
common European values” when implementing broadcasting reforms; and in
2007, diplomats concluded that “Teleradio Moldova has still, many years on,
made little progress towards becoming a truly independent public-service
broadcaster”.96 Given the lack of independence among judges and a heavily
politicized court system, journalists and media organizations find it hard to
oppose abuses from the government.

2. The AVMSD in the Moldovan context

          The new Audiovisual Media Services Directive (AVMSD) comes
to replace the Television Without Frontiers Directive (TVWF)97 in order to
“take account of the impact of structural change, the spread of information
and communication technologies, and technological developments of
business models […]” and because “rules applicable to activities such as on-
demand audiovisual services contain disparities, some of which may impede
the free movement of those services within the European Community and
may distort competitions within the internal market”. Therefore, the
Directive gives member states the right to “restrict the retransmission of on-
demand audiovisual media service similar to those established by the E-
commerce Directive” arguing that this, for example, “would allow member
states to take measures against certain forms of Nazi-propaganda that are not
banned in all member states” (AVMSD, Articles 1, 2, 23).
          Thus, new rules are affecting on-line content of “TV-like services”
and web-streamed TV programmes, which will be covered by such rules as
child protection, product-placement or production of European content for
cultural diversity promotion. Traditional television regulation might now
become valid for Internet-based services as part of a non-linear/on-demand
category.
          So far, public discussions in Moldova over the Internet regulation
are incipient and mainly linked to the usage of Internet materials as

96
   Joint Statement in the Occasion of World Freedom Press Day,
http://moldova.usembassy.gov/050307.html.
97
   The TVWF was passed in 1989, amended in 1997. A new legislative proposal was adopted in 2005
reaching political agreement in 2007 in the form of the AVMSD.


                                                 68
advertisement in elections. For instance, during the local electoral campaign
in spring 2007, both members of the opposition and the ruling party raised
concerns over a lack of regulation of web content. Regrettably, there were
no discussions in Moldova with regard to the draft of the AVMSD, or the
new regulation on on-demand services (i.e., content supplied on the viewer‟s
request).
          Both representatives of the regulatory body BCC and media NGOs
displayed scepticism during interviews over possible ways to regulate the
Internet in the near future, citing the complexity of the issue, lack of legal
provisions, lack of any monitoring, and the likely difficulty in reaching a
political consensus for the Directive to be re-enforced with a “light touch”.
This principle was especially outlined by the EU Commissioner for
Information Society and Media, Viviane Reding, when asking member states
not to add too many stricter national provisions, which would prevent their
audiovisual industries from fully benefiting from the freedom brought about
by the AVMSD.98
       Therefore, the leading argument of all those interested in ensuring
freedom of expression and free flow of information in Moldova should
constitute the lack of justification for regulating audiovisual content supplied
at the viewers‟ request, except when respect of public interests linked to
consumer rights, protecting minors or encouraging diversity has to be
respected. Government officials and MPs should be influenced and
convinced of the importance of this aspect when solving the issue, which, if
not dealt with, might bring about unwanted restrictions in an already
worsening Moldovan media environment.

3. Options to AVMSD implementation

       Communication trough the Internet is not regulated in Moldova by a
special law, but there are few provisions in the 2006 Law of Electronic
Communications. The Broadcasting Coordination Council, whose main
instrument is the Audiovisual Code, does not cover the Internet, since the
law applies to traditional radio and television broadcast only. At the same
time, the Central Election Commission deals with the Internet mainly in
terms of electoral advertising.
       A crucial question, as raised by Eve Salomon, would be the one on the
sort of standards that could be imposed to non-traditional audiovisual service
providers. Some think that the Internet and other new informational services

98
     See SPEECH 07/560; http://ec.europa.eu.


                                               69
should comply with general law, and not with the audiovisual one. Others
argue that commercial providers should follow the same rules regardless of
the means of content distribution. Finally, there‟s a group of those who
pledge for a combination of regulatory mechanisms, such as the rating
systems or public educational programs.99
       There are few options to address potential conflicts when
implementing the AVMSD. First, the Moldovan government might choose
to keep at a minimum the regulation of content supplied on viewers‟ request
(on-demand). Second, self-regulation could be developed to serve as an
alternative for the Internet content providers. At the moment, self-regulation
among journalists is low (while self-censorship is high!) and does not
represent a viable solution to political interference, economic pressure and
censorship. However, several media NGOs are working to increase the level
of self-regulation, which might lead to a situation when these would be
efficient to prevent and stop any abuses linked to the implementation of the
Directive. Third, co-regulation on the Internet content providers could bring
together the BCC, National Agency for Regulations in Telecommunications
and Information, Ministry of Informational Technologies, CEC and other
authorities. To achieve consensus among various regulatory bodies,
competencies should be clearly distributed and mentioned, according to the
knowledge and expertise of the particular industry/field.
       Media NGOs should initiate discussions with regulatory authorities
and conduct consultations with members of governments and parliament
responsible with design of draft national provisions. In addition, expert
analysis and further research should explore related models that have
similar objectives, whilst advisory panels and peer-to-peer exchanges could
identify the most suitable co-regulatory regime, which would be broadly
accepted by stakeholders.

4. Conclusions and recommendations

       Although Moldova is not obliged to transpose the new rules of the
AVMSD by December 2009 (as are the member and candidate states), the
Directive might raise concerns over on-line content of “TV-like services”
and web-streamed TV programming when the extension of traditional
television regulation to Internet-based services will be set on public agenda.
       Member states should enforce the Directive with a “light touch”, i.e.,
not to add too many stricter national provisions, which would limit the

99
     Eve Salomon, Convergence, Recommendations for Audiovisual Regulation, IJC, p. 77, 2006.


                                                   70
freedom brought about by the AVMSD. Accordingly, this should become
the main argument for Moldovan media NGOs and media service providers
when dealing with the authorities, given the wide belief that the government
will use any opportunity to restrict pluralism of opinion in advance of the
parliamentary elections of spring 2009. Also, this should serves as a basis
for the Council of Europe when revising its Transfrontier Television
Convention, which should encourage its member states to limit to basic
public rights safeguards when regulating on-demand content.100
The lack of an independent judicial system in Moldova leaves journalists
unable to counteract government abuse. Hence, self-regulation should
become a crucial instrument in tackling the issue. Co-regulation is another
option that media service providers, NGOs, on-line media organisations,
regulatory bodies such as BCC, CEC, government representatives and
Members of Parliament should explore.

    In order to make sure that national measures will not bring further
restrictions on the media landscape under the AVMSD, the following actions
are recommended:

       to initiate public discussions with media service providers, regulatory
        bodies, other stakeholders on issues addressed by the AVMSD
       to conduct consultations with members of governments and
        parliament regarding the most appropriate approach to the “light
        touch” enforcement into national legislation
       to examine legal traditions of EU member states
       to consider self-regulation and co-regulation as core principles when
        discussing measures to transpose the AVMSD
       to encourage clear distribution of competencies of various regulatory
        bodies
       to facilitate exchange of information and cooperation between
        regulatory bodies
       to organize a series of seminars for public servants, members of
        regulatory bodies to explain the reasons behind lighter regulation for
        on-demand media audiovisual services
       to create a working group/advisory panel to come up with a co-
        regulatory regime that would satisfy the interests of stakeholders


100
  The Republic of Moldova has been a fully-fledged member of the Council of Europe since July 13,
1995.


                                                 71
 to increase media literacy, especially on such matters as copyright,
  neighboring rights,and on-demand audiovisual services
 to support research and expert analysis to put forward
  recommendations to the Council of Europe on the challenges the
  expansion of television regulation to non-linear, on-demand content
  might bring to new/weak democracies.




                                72
Country Report: Montenegro
Jovan Poleksic, Montenegro Media Institute

1. On the AVMS Directive

       The Audiovisual Media Service Directive (AVMSD) presents an
attempt to keep pace with developments in audiovisual technology and
advertising. This Directive shall regulate all television services, as well as
services of television program broadcasting through the Internet (streaming
content). Without new regulations, on-demand audiovisual services would
only be subject to regulations on electronic trade and competition, without
regard to their cultural dimension. The Directive‟s aim is to treat audiovisual
services as cultural, and not only as economic goods. The right of access to
short reports on events that are of high importance should strengthen the
right to access information. The Directive should set the balance between
respect for consumers and additional economic freedoms for companies.
Considering the increased possibilities for viewers to avoid advertisements
(thanks to new technologies such as digital personal video recorders and
increased choice of channels) the Directive provides milder regulations on
television advertising. The Directive allows product placement. Still, EU
member states may prohibit it, if they so decide. However, product
placement is only allowed under strict conditions and only in certain types of
programming. In addition, the AVMSD prohibits the placement of tobacco
products and medicinal products which are available only on prescription.
Furthermore, viewers must be notified of the existence of any product
placement at the start and the end of each program, and after any advertising
break.
       The period between two advertising breaks in films and informative
programming is shortened from 45 to 30 minutes. In programs for children
lasting less than 30 minutes there must not be any advertising. In addition,
an hourly limitation on 12 minutes of advertising is retained, but new
regulations no longer provide a daily limitation of 3 hours. Member states
would have the possibility to tighten these rules. The Directive does not
increase the amount of hourly acceptable advertising, but offers broadcasters
the flexibility to insert advertising where it does not impede the integrity of
programs.
       EU member states should harmonize their national legislations with
provisions of this Directive by the end of 2009.



                                      73
2. Justification for extending traditional media regulation in
Montenegro

       In Montenegro, there is justification for retaining the part of the
country‟s traditional media regulation which concerns already accomplished
program standards and citizens‟ rights towards information and freedom of
expression. Certain aspects, however, should necessarily be improved.
       First of all, Montenegro did not have any public discussion on the
draft of Audiovisual Media Services Directive. In December 2007, the
Montenegrin Parliament passed the Law ratifying the European Convention
on Transfrontier Television, which had been adopted in Strasburg on May 5,
and amended in line with provisions of the Protocol (ETS no. 171), which
had entered into force on March 1, 2002. In the same month, the
Montenegrin Broadcasting Agency adopted the Digital Switchover Strategy
of Montenegro draft (the strategy of transferring broadcasting systems from
analogue to digital in Montenegro).
       The Council of the Broadcasting Agency has sent an invitation to all
interested parties to a public discussion on this draft. The public discussion
will last until March 3, 2008. Being aware that this process has been in delay
in Montenegro, the Broadcasting Agency (which was creator of the Digital
Switchover Strategy draft) is trying to involve more actively in this process
the government, university, electronic media, public experts and citizens.
       The Director of the Broadcasting Agency, Abaz Dzafic, estimates that
the Montenegrin Public Broadcasting Service could encounter significant
problems when it comes to digitalization. The reasons are a shortage of
trained staff, poor financial state, outdated studio equipment and
transmitters.
       One of the goals to be achieved with this more rapid process of
digitalization is also a decrease in the consumption of electricity, which is
especially important for Montenegro, because it has to import a significant
amount of total electricity expenditure, which impacts on the cost of
electricity .
       In December 2007, the Broadcasting Agency of Montenegro also
adopted the Book of Rules on the Licensing Procedure and Conditions for
Use of Licenses for Distribution of Radio and Television Channels to End
Users through IPTV and DHT platforms. Program standards are the same as
with KDS/MMDS distribution, or almost the same as with analogue
broadcasting.
        In Montenegro there is only one broadcasting operator with a
considerable role in the market; it is state-owned and was established in

                                     74
accordance with a set of media laws introduced in 2002. It was set up as a
former branch of the Montenegrin Telecom company, before its
privatization. This public enterprise Broadcasting Center transmits and
broadcasts signals from 125 transmission sites. It also rents out its
infrastructure (objects, antenna systems and power supply systems) to
commercial TV and radio broadcasters, GSM/G3 operators, state agencies
and other clients for transmission of their signals.
        The public enterprise, Broadcasting Center of Montenegro, is
currently undergoing modernization of its broadcasting objects and their
system of microwave connections. The reconstruction of a number of their
facilities (premises, antennae systems, power supply systems, road
infrastructure) is on course and others are planned. In August 2007, the
Broadcasting Center signed a contract on development of a system of digital
connections in Montenegro with the Norwegian company, NERA Networks.
The contract includes buying, mounting and putting in motion a digital
system of radio-relay connections based on state-of-the-art IP technology.
This system offers numerous privileges and possibilities for a wider range of
telecommunication operators. Transmission capacities will thus be available
to existing and future commercial TV and radio broadcasters, state
institutions such as the Ministry of Interior Affairs, the Army, the customs
service, public ambulances, etc. This system is based on an Internet protocol
platform, which supports a digital flow of up to 622 MB. The system could
be used for all purposes: transmission of radio and television signals,
Internet and any other data, as well as networking national systems of health
care, education, judiciary, security and border management agencies, traffic
monitoring, electronic government and fast electronic banking. Anyway, this
system will be the basis for the future digitalization of radio and television.
The Director of RDC, Jovan Ivanovic, expects that a part of the system
covering the southern and central part of Montenegro, as well as three
southern cities, would be activated in January 2008.
        In order to make the offer of non-linear services possible, Montenegro
would have to update or change the existing legal regulation. Still, the
decision on the scope and characters of those changes, and especially the
dynamics of their introduction, should be made only based on an analysis of
the existing legislation and trends on the market of AVM services. All
measures to be taken should be directed at stimulating the introduction of
these services to the market and the quality of offered services.




                                      75
3. Danger of censorship

       Objectively, there is no great possibility for the government to
significantly abuse provisions from AVMS Directive with the aim of
limiting freedom of speech and right to information, without adequate
reason. The existing legislation offers a satisfactory (but not sufficient) level
of mechanisms for the protection of the right to freedom of speech and flow
of information. In any case, the government‟s next steps should be
monitored closely.
       Until this moment, the Government has not practiced any censorship
of Internet communication, nor has ever made any such attempt. Here we
should bear in mind that until recently, the number of Internet users in
Montenegro was very small, and has rapidly increased over the last several
years. Still, the available official statistics, provided by the secretary of the
Secretariat for development, Dusan Simonovic, which says that over 47% of
Montenegrin households own computers and that more that 29% of the
population uses the Internet, should be taken with caution (as too high).
Considering the financial possibilities of Montenegrin citizens, Internet
services are expensive – and this fact could also be taken as factor of
limitation when it comes to the right of the freedom of information. The
reason for the high price of Internet services is the fact that until recently
there has been no market competition between Internet service providers.
       A free press exists – though it would be more precise to say that there
are media outlets which are not under government control; in Montenegro
the big influence of political parties is generally present in all areas of life,
including the media. Here the term “partytocracy” is often used to describe
the unequally large power and influence of political parties in society.
       Government and other officials often recourse to legal claims against
journalists and the media, for insult, defamation or for compensation for
non-material damages caused by acts against one‟s honor. Insult and
defamation are legally defined as criminal offences for which the law
prescribes high fines (according to Montenegrin standards), without any
possibility of a prison sentence. The lowest fine for insult is €3,000, or
€5,000 for defamation performed through the media. In civil litigations,
claims often contain extremely high requests for compensation of damages
caused by criminal acts against honor and reputation (the Montenegrin ex-
prime minister recently filed a private claim against the editor of Daily
Vijesti, suing him for €1 million). This opens up the possibility, which
should not be ignored, that certain media could be forced to close, unable to
recover from payments made according to such court decisions.

                                       76
       Civil society, though, is growing and strengthening its capacities.
Non-governmental organizations are active protagonists in social
developments, and their statements, announcements and critical attitudes are
heard in Montenegrin media. The government does not foster sufficiently
open relations toward the NGO sector and it does not recognize it as real
partner in significant projects and processes. The most recent illustration of
this is a statement from the President of the Parliament who said that non-
governmental organizations are disguised political parties.101
       In the new Montenegrin Constitution, adopted in October 2007,
protection of the right of communication is envisaged in the following
articles:
        Freedom of expression

        Article 47

        Everyone shall have the right to freedom of expression by speech, writing, picture or in
        some other manner.

        The right to freedom of expression may be limited only by the right of others to dignity,
        reputation and honor and if it threatens public morality or the security of Montenegro.

        Freedom of press

        Article 49

        Freedom of press and other forms of public information shall be guaranteed.

        The right to establish newspapers and other public information media, without approval,
        by registration with the competent authority, shall be guaranteed.

        The right to a response and the right to a correction of any untrue, incomplete or
        incorrectly conveyed information that violates a person‟s right or interest and the right to
        compensation of damage caused by the publication of untruthful data or information shall
        be guaranteed.

        Prohibition of censorship

        Article 50

        There shall be no censorship in Montenegro.

        The competent court may prevent dissemination of information and ideas via the public
        media if required so to: prevent invitation to forcible destruction of the order defined by

101
   In December 2007, the Parliament refused to verify nominations for members of the Council of Radio
Television of Montenegro, appointed mainly from the non-governmental sector.


                                                  77
        the Constitution; preservation of territorial integrity of Montenegro; prevention of
        propagating war or incitement to violence or performance of criminal offences;
        prevention of propagating racial, national and religious hatred or discrimination.

        Access to information

        Article 51

        Everyone shall have the right to access information held by the state authorities and
        organizations exercising public authority.

        The right to access to information may be limited if this is in the interest of: the
        protection of life; public health; morality and privacy; carrying of criminal proceedings;
        security and defense of Montenegro; foreign, monetary and economic policy.102

       The new Constitution does not fully provide the efficient protection of
freedom of expression. Limitations to freedom of expression are too broadly
defined. Also, the definition of the right to freedom of expression from
Article 47, in accordance with international standards, and above all, the
European Convention on Human Rights, beside the right to express
information, should have also included the right to ask for and receive
information and ideas. Local creators were obviously focused on the
protection of the rights of “the giver”, and ignored the rights of “the
receiver” of information, or those to whom the information was intended, as
well as those who are potentially unfairly deprived of them.
       The Broadcasting Law (Articles 56–59) prescribes special rights and
obligations of broadcasters in regard to their broadcasted programs. They are
obliged to inform the public of events and matters of public importance in
the country and abroad in a truthful, complete, impartial and timely manner;
to respect and promote the fundamental human rights and freedoms,
democratic values and institutions and pluralism of ideas; to promote the
public dialogue culture and observe linguistic standards; to respect the
privacy and dignity of citizens. Also, they have the right to network two or
more broadcasters, for the purpose of simultaneous program broadcasting,
for the duration of up to three hours daily in continuity or in total, if it does
not interfere with the program broadcasting of other broadcasters. The Law
also defines those rights and obligations concerning conditions for granting
an exclusive right to broadcast an event of great importance for Montenegrin
citizens.


102
   The Constitution of Montenegro, (2007),
http://www.legislationline.org/legislations.php?jid=62&ltid=14.


                                                 78
       Article 3 of the Broadcasting Law prescribes that the regulation of
relations in the field of broadcasting shall be based, among others, on: the
principles of prohibition of all forms of censorship or illegal interference in
the work of broadcast media; free and equal access of broadcasters to the
telecommunication infrastructure for the purposes of broadcasting and
application of international standards; and principles related to the field of
broadcasting.
       In November 2005, the Law on free access to information was passed,
but the two-year period of its implementation showed certain insufficiencies
and limitations. The most emphasized one is the absence of sentencing
measures for persons and bodies who breach the law, and the inadmissibly
long duration of judicial procedures for practicing this right. According to
the reports of the non-governmental organizations, Association of Young
Journalists and MANS (Network for Affirmation of the NGO Sector), which
performed the monitoring of implementation of the Law, state
administration bodies did not reply to 50% of requests for access to
information submitted by NGOs, media, journalists and citizens.
       For these reasons, NGOs are more and more articulate in advocating
changes of the Law on free access to information. One of the most
significant changes includes the establishing of an independent institution –
a Commissioner for access to information, who would have the possibility to
give orders to administration bodies to provide requested information, whose
decisions would be binding and who would have the authority to enforce
decisions on his own.
       The European Commission report on the progress of reforms in
Montenegro explicitly states that political influence on the judiciary system
is still strong. Unfortunately, despite instructions given by the Venice
Commission, the new Constitution did not provide a good solution for
preconditioning the establishment of an independent and fair judiciary
system. Namely, the Constitution provides that the President of the Supreme
Court shall be elected on the consensual proposal of the President of the
State, the President of the Parliament and the Prime Minister, which leaves a
possibility for the ruling political coalition to keep control over the proposal,
election and dismissal of court management and judges. The President of the
Supreme Court, by default, presides also over the Judicial Council – which
is the body that has the authority to elect and dismiss judges, presidents of
courts and lay judges, to decide on the immunity of a judge, deliberates the
report on a court‟s work, files and complaints to the work of the court, etc.
According to new Constitution, no one from the judiciary system shall
participate in proposing candidates for the presidency of the Supreme Court.

                                       79
The authority to propose to the Parliament candidates for the presidency and
judiciary of the Constitutional Court belongs to the President of the State.
And they, from their part, would have sole authority to decide whether the
President of the State has, in certain situations, violated the Constitution.
These kind of constitutional solutions do not need special comment.
       It has been observed that judges rarely base their decisions on ratified
European conventions, nor do they refer to them in their decisions, although
the national legal system offers them such a possibility. They still firmly
hold to the local positive legislation. European emancipation of the
Montenegrin judiciary system could certainly not be performed by the
judiciary system itself, which is already burdened with serious problems.
This process requires serious engagement from the other two branches of
state governance, which are partly responsible for the crises of the judiciary
system, considering their existing public authorities regarding the financing
of courts and election of judges. The support of the NGO sector is also
necessary. The President of the Basic Court in Podgorica, Zoran Pazin,
claims that leaving the judiciary system in crises, to solve their problems
alone and closing the system from inside, would lead to its further
deterioration. Therefore, the political influence, aimed at reforms and
rehabilitation of courts, is necessary, however absurd it sounds, to build an
independent, highly professional judiciary system and make it perform the
groundwork of social stability. The rule of law is also problematic, because
laws are being passed in an extremely short period, with not enough time for
public debate. Consequently, problems emerge in their implementation.
       In the past, the government has shown tendencies to keep the
independent broadcasting and telecommunication regulatory bodies under its
control. Namely, in its 2006 Draft Strategy of the sector of electronic
communication, the government declared its intention to restructure the
regulatory bodies (the Broadcasting Agency and the Agency for
Telecommunications) by merging them into one body – the Agency for
Electronic Communications with a head council whose members would be
nominated by the government‟s representative (the Minister of Economy).
This was the solution which would enable illicit government interference in
the work of regulatory bodies, and which contravened Council of Europe
Recommendation (2000) 23 on independence and functions of regulatory
bodies. This also contravened the Montenegrin Broadcasting Law, which
institutionalized the Broadcasting Agency as an independent regulatory body
presided over by the Council, whose members are delegated from the
University, government, Association of Broadcasters and non-governmental
organizations. This attack from the government and the political

                                      80
establishment, which aimed at increasing control over the media scene in
Montenegro, has failed and this makes an important point when it comes to
the fact that the existence of an independent regulatory body is a
precondition for the successful implementation of the EU AVMS Directive.
Regarding the issue of whether it is necessary to merge the two existing
regulatory agencies into one, the arguments are strong on both sides.
       The government is still not ready to give up its influence over Radio
Television of Montenegro (RTCG), which should present the national public
broadcasting service of its citizens. Informative programs of this service give
partial, non-critical and affirmative reports on the government and its
accomplishments, as shown in the analyses from July and September
performed by Association of Young Journalists.103
       Currently, the election of members of the Council of RTCG, who
represent the NGO sector, has been blocked by Parliament‟s refusal to
confirm their appointment. This is especially worrying considering that the
public broadcasting service is going through a generally difficult situation,
and that the survival of its role in this new social circumstances is of vital
interest.
       The government abuse of the AVMS Directive is, to a certain extent,
more likely in young democracies, such as Montenegro, than in older
members of the EU. The information society, new technologies,
digitalization and fast development, awareness of one‟s own rights in this
area are not topics that an average Montenegrin citizen is familiar with. But
here we should bear in mind that states that have not yet become EU
members have more time for the implementation of the Directive, and space
to learn from the experience of others.
       It is hard to say if the independent press, civil society, constitutional
protection of the right to communication, positive legislation and courts in
Montenegro could prevent the possible abuse of the Directive by the
government. If the Government would be persistent in its intention, only a
strong campaign of civil society, coupled with continuous independent press
reports on the problem, could prevent such intentions.




103
  Monitoring reports of the Public Broadcasting Service TVCG (July and September), Association of
Young Journalists, www.amncg.com.


                                                 81
4. Plans for implementing the Directive

       In Montenegro, there are no existing official plans for the
implementation of the AVMS Directive at this point. The Broadcasting
Agency is preparing strategic documents, which would provide certain
solutions for implementing this Directive. Planned updates of program and
advertising standards will be in line with the Directive. Montenegro has
separate laws that regulate the broadcasting area (broadcasting of radio and
television programs), and Internet and electronic trade. The Assistant
Director of the Broadcasting Agency, Jadranka Vojvodic, for the purpose of
this research announced the following: “The question of phases in the
implementation of this Directive will be the subject of the strategy of
development of the broadcasting and audiovisual sector whose creation and
adoption is expected in 2008. Since the purpose of the strategy is
harmonization of Montenegrin framework with EU audiovisual policy, the
strategy will also provide guidelines for implementing the AVMS Directive.
At this point we do not have any information as to which bodies would be in
charge of implementation of the Directive or its specific parts, since this
question will be the subject of the forthcoming analyses.”104
       The Broadcasting Agency, together with the Broadcast Center will be
the main carrier of development and implementation of the concept of digital
television in Montenegro. Representatives of the Montenegrin Broadcasting
Agency are keeping themselves updated on the activities of ERG and EPRA,
which enables them to share the information and experiences that would be
very useful in the process of harmonization of Montenegrin legislation with
EU regulations in the area of electronic communication and audiovisual
services. Also, the Broadcasting Agency has formed the Monitoring Sector
which periodically controls broadcasted programs in order to determine
whether the broadcasters respect advertising limitations as well as program
and professional standards.
       Montenegro has not yet adopted the Law on Electronic
Communications. Its creation is on course, which now also implies its
harmonization with EU directives, and it is expected to be passed this year.
Another two bills have entered the parliamentary procedure; Montenegro
can expect to receive the Law on the Protection of Personal Data and the
Electronic Documents Law soon.


104
   Interview with the Assistant Director of the Broadcasting Agency, Jadranka Vojvodic, performed by the
author on January 8, 2008.


                                                  82
      Montenegro has already adopted the Law on Electronic Signatures
and the Law on Electronic Trade. The Strategy for Information Society
Development was adopted in 2004 and the Consumer Protection Law (2007)
defined basic rights of consumers in purchasing goods and services, as well
as methods and procedures for their protection.

5. Self-regulation as the alternative choice

        Montenegro does not have self-regulatory system/body for control of
the Internet content. There is, though, the Journalists‟ Self-regulatory Body,
formed on the initiative of several Montenegrin associations of journalists,
which started work on January 1, 2004. This Association adopted the Codex
of Montenegrin journalists, the implementation of which was their main
activity in the past. Despite these first steps in instituting self-regulation, this
Association has not yet managed to achieve any significant authority in the
media, or Montenegrin public life, nor has achieved the expected results.
“Self-regulation is now faced with another challenge, the challenge of
strengthening its position among the media and society in general, and with
the need to develop a better strategy for their work and for its future
sustainability,” stated Ambassador Paraschiva Badescu, Head of the OSCE
Mission in Montenegro, on a forum organized on the topic of self-regulation.
The Journalists‟ Self-regulatory Body is faced with problems of financing
and the unwillingness of a number of media to participate. Their public
appearances and analyses are infrequent, occasional and untimely.
Generally, the most important measure for implementing a certain standard
is the existence of a legal sanction for its violation.
        The media in general do not enjoy great public trust in Montenegro,
according to the opinion polls performed by CEDEM on a representative
sample of 1030 interviewees. One fifth of them, or more precisely 21%, do
not trust television, while 45% do not have trust in radio, or they never listen
to this type of media. 38% said that they do not trust print media in general.
However, it is important to say that this poll was conducted three years ago
and the author was unable to find a similar relevant poll with a newer date.
Still, the fact remains that self-regulation should be given a new stronger
impulse, in order to, among other things, boost media credibility and the
respect that this institution of society should have. Citizens are not
sufficiently aware of their rights, or the possibility of influencing the
professionalization of media by addressing their complaints to the
Journalists‟ Self-regulatory Body.



                                        83
       In Montenegro, the number of broadcasters and those who hold the
right to broadcast total 76: a national public broadcasting service with 2
television and 2 radio channels (RTVCG); local public broadcasting services
(2 television and 14 radio stations); 18 commercial television stations and 41
commercial radio stations.
       Measures that would be taken in accordance with the AVMS
Directive with the aim of protection of minors and human dignity should be
carefully introduced with the right on freedom of expression defined in the
European convention on human rights.

References

Book of Rules on Advertising and Sponsorship in Broadcast Media, Broadcasting
Agency, (May 26, 2005)

Book of Rules on the Licensing Procedure for Distribution of Radio and Television
Channels with comments (from December 25, 2007), Broadcasting Agency

Broadcasting Law, “Official Gazette of the Republic of Montenegro”, no. 51/2002

The Constitution of Montenegro, (October 2007)

Criminal Code of the Republic of Montenegro, “Official Gazette of Montenegro”, no.
70/2003; no. 13/2004

Decision on minimum programme standards in the broadcast media of the Republic of
Montenegro (from May 26, 2006), Broadcasting Agency

Draft Digital Switchover Strategy of Montenegro, Montenegrin Broadcasting Agency,
(October 25, 2007) available at www.ard.cg.yu

“Kadija tuži, kadija sudi”, interview with solicitor Goran Rodic, in Republika, (January 9,
2008)

The Law on Electronic Signatures, “Official Gazette of Montenegro”, no. 55/2003; no.
31/2005

The Law on Electronic Trade, “Official Gazette of Montenegro”, no. 80/2004

The Law on Public Broadcasting Services “Radio of Montenegro” and “Television of
Montenegro”, “Official Gazette of the Republic of Montenegro”, no. 51/2002

Majority opinion of the members of the working group for the finalization of public
discussion on the Draft Strategy for the Electronic Communications Sector (Broadcasting


                                            84
agency, Agency for Telecommunications, School of Electrical Engeenering) (from May
5, 2006), www.crf.vlada.cg.yu

Media Law, “Official Gazette of the Republic of Montenegro”, no. 51/2002

“Mediji i ljudska prava – sloboda izražavanja”, Stevan Niksic (ed.), Center for
Professionalization of the Media, (Belgrade: January 2006)

Monitoring reports of the Public Broadcasting Service TVCG (July and September 2007),
Assocciation of Young Journalists, www.amncg.com

Montenegrin media monitoring report for period January–March 2004, the Journalists‟
Self-regulatory Body, (2004)

“Novinarska etika i samoregulacija u medijima”, report from the round table organized
by the Journalists‟ Self-regulatory Body and the US Consulate in Podgorica on journalist
ethics and media self-regulation, in Pobjeda (July 8, 2004)

“Razvoj informacionog društva u Crnoj Gori”, interview with Secretary of the Secretariat
for Development, Dusan Simonovic, Radio Free Europe, (November 2007). Interview
hosted by Esad Krcic

Recommendation of the Committee of Ministers of the Council of Europe REC(99)1 on
measures for promotion of pluralism in media, (adopted on January 19, 1999)

“Smetaju im trule daske a sami ostruiraju”, interview with the President of the Basic
Court in Podgorica, Zoran Pazin, in Republika, (November 13, 2007)

“Što prije u digitalizaciju”, interview with the Director of the Montenegrin Broadcasting
Agency, Abaz Dzafic, in Vijesti, (January 5, 2008)

“U zapuštene predajnike uloženi milioni”, interview with the Director of the
Broadcasting Center, Jovan Ivanovic, in Vijesti, (January 6, 2008)

Websites
Association of Young Journalists, www.slobodanpristup.com

Broadcasting Center of Montenegro, www.rdc.cg.yu

Broadcasting Agency of Montenegro, www.ard.cg.yu

Center for Democracy and Human Rights Montenegro, www.cedem.cg.yu

European Comission, Audio Visual Media Policy, http://ec.europa.eu/avpolicy




                                           85
Foundation Open Society Institute, Representative Office Montenegro, www.osim.cg.yu

MANS, www.mans.cg.yu

Montenegrin Agency for Telecommunications, www.agentel.cg.yu

Montenegro Media Institute, www.mminstitute.org




                                        86
Country Report: Romania
Ioana Avadani


Whose Directive Is It Anyway?

1. General considerations

        Media freedom has been perceived as one of the major achievements
of the toppling of the communist regime back in 1989. Ever since, the media
have been perceived as being extremely influential on society, enjoying a
popular trust rating of over 65% (ranking third, after institutions such as the
Church and the army). As a result, the issues pertaining to media
development – with the whole array of subsequent problems: legal
framework; media policies; strategies for development; ownership
transparency and anti-monopoly mechanisms; regulation and self-regulation
– become (slowly but surely) a matter of public interest.
        The first years of press freedom witnessed a mushrooming of media
outlets – print publications in the beginning (given the more affordable start-
up costs), radio and TV later on. The successive governments have had a
rather liberal approach to the media market development: no unnecessary
restrictions have been imposed on the setting up of media companies, no
restrictions to the entry of the journalistic profession. Therefore, despite
some temporary abuses and excessive political control (over the newsprint
and distribution in the mid 1990s, or over state advertising contracts in the
early 2000s), the media market was able to develop and to consolidate into a
significant media industry.
        The media landscape in Romania is diverse and crowded, with the
number of media outlets ranging in the thousands. According to the National
Broadcast Council (Consiliul National al Audiovizualului, CNA) there are
currently 623 radio stations (out of which three are nation-wide frequencies)
and 261 TV stations (out of which two are national frequencies, a third one
being divided among several operators).105 The number of print outlets
(newspapers, weeklies, monthlies, magazines) is evaluated at about 1,500
titles, out of which 15 are national dailies. The national market is divided
among a couple of big players (Media Pro, Intact, Ringier, Realitatea-
Catavencu groups, but the public radio SRR and television SRTV are also

105
   CNA annual report for 2006, available at
http://www.cna.ro/activitate/rapanual/raport_cna_2006.pdf, accessed on February 24, 2008.


                                                87
important players), while the local markets are fragmented among small
local players.
       Following the global trend, television is the most influential medium
(with 81.2% of the population watching TV on a daily basis),106 followed by
print and radio.
       Romania has a high penetration of cable TV. Cable coverage has
increased from 66.4% in 2004 to 76.6% in 2006.107
       Digital TV services appeared on the market a couple of years ago.
Some of them started as pilots of the major broadcasters, others are
spearhead operations offering satellite digital TV services to audiences as
diverse as trendy customers in newly set-up suburbia, to the inhabitants of
more remote areas where cable has not penetrated yet, given the high costs
of the installation. Satellite has had a slight growth over the past years, from
3% of total households in 2004 to 3.7% in 2006. In 2006, just 18.5% of
Romanian households had only terrestrial television.108
       In 2007, the Internet became “statistically significant”, reaching a
penetration rate of over 25%. Still, media consumption on the Internet is
extremely weak. Only 3.4% of the population reads online versions of print
outlets on a daily basis, while 2% listen to web-based radio content or watch
TV programs on the Internet. Over 80% of the population never uses the
Internet for their media consumption needs.109

      Broadcasting is regulated via two main pieces of legislation:
       The Broadcasting Law (law 504/2002 with follow-up amendments)
       The Law on the functioning of the public radio SRR and public
         television SRTV (Law 41/1994).

   In addition to this, the Broadcasters‟ Code (a piece of secondary
legislation adopted by CNA, the autonomous regulatory body under the law)
also norms the activity of the broadcasters, including editorial aspects
(protection of minors, protection of privacy, personal data and the right to
one‟s own image, right to reply).



106
    “Habits, Attitudes and Degree of Satisfaction of the Radio and TV Audience”, INSOMAR study
commissioned by CNA, September-October 2007, available at
http://www.cna.ro/cercetari/sondaje/Raport%20final-ro.pdf, accessed on February 24, 2008.
107
    Establishment Survey 2006 (TNS-CSOP and IMAS), quoted by the EUMAP report, 2008, made
available to the rapporteur.
108
    Idem 3.
109
    Idem 2.


                                                 88
    The Broadcasting law creates legal obligations for all broadcasters to
respect and “secure” political and social pluralism, cultural, linguistic and
religious diversity, while informing, educating and entertaining the public,
with the respect of the civil liberties and the fundamental human rights (Art.
3 (1)). The law also states that all broadcasters have to provide the public
with “objective information”, by presenting fairly facts and events and by
helping create free formation of opinions (Art. 3 (2)).
    Art. 3 (3) states that the responsibility for the content of the broadcast
program stays with the broadcaster, the producer or the author.
    Article 6 prohibits any kind of censorship and guarantees the editorial
independence of the broadcasters. It also prohibits any interference from the
public authorities, as well as from any legal person or individual, in the
broadcast material.
    The law has been amended several times in order to be brought in line
with the European acquis (especially with the Television Without Frontiers
Directive), during the legal harmonization process Romania underwent
before its EU accession in 2007.

     Law 41/1994 enhances the public obligations of the public media. It
states that they have an obligation to secure pluralism, the free expression of
ideas and opinion, the free flow of information, as well as the correct
information of public opinion (Article 4). Under Article 5, the programs of
the SRR and SRTV should not serve as a means to defame the country and
the nation, should not incite to war and hatred on national, racial, religious
or social grounds, to territorial separatism and public violence. They also
should not promote obscene manifestations. Article 14 deals with the right to
reply and correction, as well as with the protection of sources.
    Public radio and TV are controlled by the Parliament. Their boards are
voted for by the Parliament, but members are nominated by the political
parties, the President and the Prime Minister. The Parliament receives the
annual activity reports of the two institutions. In case the report is rejected,
the whole board is dismissed. The public media budgets are approved by the
Parliament, but the level of the fees for the public services of radio and TV,
the way they are collected and what is considered misdemeanor under the
law is to be established by the government.

   The Broadcast Code enhances and extends to all broadcasters (be them
private or public) some of the obligations with editorial impact: protection of
minors; respect of privacy and one‟s right to one‟s own image; protection of
vulnerable people; access to correction; and the right to reply.

                                      89
   The National Broadcast Council is the regulatory body and a warrant of
the public interest in the audiovisual field. The Council is autonomous under
the law, accountable to the Parliament, but its members are nominated by the
government, the President and the political parties in the Parliament, which
has stirred concerns regarding its real independence. The Council is also in
charge of licensing the broadcasters, via open bids and public hearings.

    The Internet is regulated through a set of various pieces of legislation,
as follows:
     Law on E-commerce (Law 365/2002 amended by Law 121/2006)
     Law on Copyright (Law 8/1996, repeatedly amended, the last time in
       2006)
     Law on Electronic Signatures (Law 455/2001)
     Law on Trade Mark (Law 451/2001).

       Other general references to the Internet can be found in the body of
laws regarding advertising, data protection, e-payment, retention of data,
informational crime, pornography, electronic communications, archiving of
electronic documents and other, more specific, domains.

2. EU rules and regulations – given as such?

       Romania joined the European Union, as a fully-fledged member, on
January 1, 2007. The moment was preceded by a rather lengthy and slow
process of legislative harmonization. EU membership had been identified as
the main goal of Romania‟s foreign and domestic policy, a single point of
convergence for all political parties. Moreover, the Romanians proved to be
over-enthusiastic about EU membership, with a huge popular support of
80% shown consistently by public polls throughout the process.
       So powerful was this drive toward Europe that accession requirements
were treated as absolute obligations, with no critical apparatus behind their
adoption. “Europe has asked for it” was a strong statement that has been
regularly used as an ultimate argument for adopting or moving forth a
certain measure, rule or regulation. This was particularly true when it came
to legislation meant to transpose the European acquis. As a result, none of
the directives that were transposed into the national legislation was
questioned or submitted to public debate.
       The most blatant case is the way in which Romania adopted Directive
2003/98/CE regarding the Re-use of Public Sector Information. The

                                     90
Directive was included in the list of norms whose transposition into
Romanian legislation was compulsory, irrespective of the fact that Romania
had a previous access to information law, in force since 2001. Romanian law
was more demanding for the public authorities and allowed the requesters
more rights and more flexibility. For example, Romanian law did not make
any distinction between the commercial and non-commercial use of the
requested information, as it is not the state‟s job to question what a requester
would do with the information once obtained. The timeframe for releasing
the information was 10 days, under the Romanian access to information law,
compared to 30 days, as recommended by the Directive. Despite these facts,
the Romanian government did not notify the European Commission that the
matter had already been settled, and agreed to transpose the Directive.
Moreover, for reasons still to be explained, the Directive has been allocated
for transposition to the Ministry of Communications and Information
Technology, while the entity in charge of monitoring the access to
information practice was the Agency for National Strategies (the successor
of the reformed Public Information Ministry). The Directive was translated
almost word for word and was passed as Law 109/2007, adding to the
previous law on free access to the information of public interest and creating
a fuzzy legal environment.
       All the same, the draft of the new Audiovisual Media Services
Directive did not enjoy a public debate in Romania and the stakeholders
were not called to review it, give critique or formulate solutions.
       Some Romanian stakeholders (representatives of the Romanian
Broadcasters‟ Associations, ARCA and of the Center for Independent
Journalism, CIJ) participated in a public consultation organized by the
European Commission when the Directive was being drafted (namely, in the
focus group dedicated to the access to information and the right to short
extracts).
       Therefore, at the time of its adoption, in November 2007, the
Directive was virtually unknown to most professionals. Presentation and
dissemination events110 included in a program conducted on behalf of CNA
and coordinated by a consortium composed of Internews Europe, the Center
for Independent Journalism and the Media Monitoring Agency found that
most of the participant journalists outside the capital city Bucharest were
oblivious to the preparation of the Directive and its immediate implications.

110
   Event organized between October and December 2007 in several cities of Romania, for audiences
consisting of journalists, other media professionals, CNA monitors and staff, free speech activists,
magistrates.


                                                    91
All the same, the whole matter of digital switchover and extending the
audiovisual regulations to web-based video content was largely unknown.

3. Content control: linear vs. non-linear service

       As previously indicated, there are a few limitations in content-related
issues imposed by the pre-existent broadcast legislation. As the Romanian
legislation in the field was shaped after the European directives and other
regulation, it mirrors EU standards. Thus, there are regulations regarding the
protection of minors, the protection of privacy, the right to one‟s own image
and the right to reply. In addition to these areas, the Romanian (primary or
secondary) legislation also imposes on broadcasters obligations regarding
the fairness and balance of reporting, the accuracy of information and of
representation of various parties in a conflict.
       These provisions apply to all broadcasters, irrespective of the way
they broadcast, but, according to the law, the responsibility lies with the
author (reporter, editor, producer), not with the broadcaster. Therefore,
providers of non-linear services are not to be held reliable for the violations
of the law by the programs they offer, if they only package the programs,
rather than produce them as well. There were cases when CNA wanted to
intervene in stopping some children‟s programs, considered to be too
violent, and in an injunction with Romanian provisions regarding the
protection of minors. But as the programs were licensed in a European
country and were broadcast via satellite from another EU member state,
CNA saw its options limited to deploring publicly the degree of violence and
to discussions with the program packager to find amicable solutions.
       There has been no attempt whatsoever to regulate – or to extend
existent regulation to – web-based content. Internet content is just regulated
by the general norms in force, including the Penal Code provisions regarding
insult and calumny and the Civil Code regarding the liability and the moral
and material responsibility. But actions against Internet content are rare, as
there is a prevalent opinion that the “Internet is free and no rules apply”, as
long as the rules are not specifically designed for the new media. This
perception is not accurate, as most of the laws regulating free speech and
public communication use inclusive expressions such as “irrespective of the
form of the communication”, “via any kind of means” or similar.




                                      92
4. The Internet: is censorship possible?

       The new AVMS Directive extends obligations which have been
imposed up to now only to “traditional media” broadcasters to web-based
content (webcasting and streaming), under certain terms and conditions. It is
unclear for the time being how this will affect Romanian Internet content
providers. A better, clearer prospective on this can be given only when the
Directive is transposed into the Romanian legislation.
       Still, there are a couple of cases that indicate the fact that, when
prompted by strong motivation or political interests, the authorities are ready
to step forward and interfere with the work of online publications, or with
electronic communications.
       In 2006, the Foreign Ministry asked a private Internet provider to
close a website owned by two journalists, accusing it of “spreading
confusion among the public”. After having written a series of articles
accusing the Foreign Minister and his employees of mismanagement and
weak professional performance , the two journalists created a website
(www.mae.haos.ro) mocking the official site of the ministry
(www.mae.ro). Despite the fact that the mock site was visibly marked as
such, the ministry asked the ISP to close it down, suggesting that it would
confuse the public trying to access the official site. The request was granted
without question and without any prior notice, although the Foreign Ministry
has no jurisdiction whatsoever on ISPs and has no executive powers in this
respect. The ministry defended its decision against the protests of free
speech advocates, who underlined the fact that the pamphlet and satire are
legitimate means of criticism in the media and communication, especially
where the satirical intent is clear to the public. The two journalists were not
punished in any way.
       This was the second case of closing down a website, after one in
2004, when a site critical of the then-ruling Social Democrat Party
(www.anti-psd.ro) was shut down without warning in just a matter of hours.
The content of the site was later on “exported” to a server outside Romania
and continued to be available for readers all over the world (Romania
included).
       To these two examples, one can add reports made available to CIJ,
under the condition of anonymity, according to which companies tried to
persuade editorial teams or threatened to cancel advertising contracts with
web-based publications if negative material was not withdrawn, even if this
“negative content” consisted of comments posted by members of the public,
with completely acceptable format and wording.

                                      93
       These cases, although isolated occurrences, demonstrate the fact that
the authorities, as well as advertising clients, do not hesitate to use
censorship when they see (or even imagine) their interests hurt or threatened.
It is clear that these entities perceive themselves as being in “positions of
power” in relation to media outlets. It is also clear that they do not fully
understand the nature of the Internet and how web-based outlets function.
Moreover, it is interesting to note that ISPs do not clearly see their role as
agents of free expression and they are eager to abide by the authorities‟
requests to shut down web-based publications, even if these requests are not
formally enforceable and have no legal basis.
       Such a fragile basis invites a careful consideration of any possible
regulation that may affect web-based content, including those articles in the
AVMS Directive dealing with the regulation of webcasting and streaming.

5. Implementing the Directive: to where? and who leads the dance?

       The process of transposition of the Directive into the Romanian
legislation started very soon, almost immediately after its final vote in the
European Parliament, in late November 2007.
       CNA started to work, together with the Ministry of Communication
and Information Technology and ARCA (the broadcaster‟s association) to
draft amendments to the current Broadcast Law, to incorporate the new
Directive. The new law has not only to transpose the Directive, but also to
set up the rules and to pave the way for the digital switchover, due in 2012.
As the CNA 2006 Annual Report puts it, the digital switchover will be the
greatest challenge for the broadcast sector in the coming years and it
requires immediate and “compulsory preparations”.111
       It is the second attempt at changing the legislation in the light of
digitalization process. The first one occurred in 2006, when the working
group also included representatives of the civil society. The group produced
a draft that provided for the setting up of a set of principles for the transition
to digitalization, introduced separate licenses for content providers and
frequency operators, as well as a set of conditions limiting the number of
licenses that a broadcasting company could hold. The draft defined the
national, the regional and the local programs, respectively. Debated in the
Chamber of Deputies,112 the draft was adopted with minor modifications in

111
    CNA annual report for 2006, available at
http://www.cna.ro/activitate/rapanual/raport_cna_2006.pdf, accessed on February 24, 2008
112
    Three members of the Parliament assumed the authorship of the draft, as CNA cannot initiate
legislation.


                                                   94
February 2007. The Senate, the upper chamber of the bi-cameral Parliament,
changed dramatically the draft, when it discussed it, in September that year.
It scrapped all the anti-monopoly provisions, yielding to the government the
possibility to establish how many licenses a broadcaster could hold.
Eventually, criticism of the changes operated by the Senate from the civil
society and the crass lack of interest in the digitalization process prompted
the upper chamber to reject the entire bill in October 2007, bringing to zero
all efforts carried out for commencing the complex process of
digitalization.113 Although the draft was worked upon way before the
adoption of the AVMS Directive, it would have created the needed legal
background for digitalization.
       This recent second attempt at changing the legislation – with
digitalization and new Directive provisions all together – left outside the
working group the civil society organizations and produced surprisingly
different outcomes. If the first draft provided for open bids for the allocation
of digital frequencies and broadcast licenses (as an opportunity for
reopening and refreshing the broadcast market), the new draft calls for a
“transformation” process, allowing the licence owners to simply change
their analogical ones into digital ones – meaning maintaining the status quo.
Moreover, the owners of broadcast licences are further on given the right to
choose their own multiplex operator. The new draft also scraps all
limitations regarding the media ownership,114 a decision hard to explain
against the background of public preoccupation with media concentration.
       The draft largely incorporates the text of the Directive, in the
“traditional” word for word manner, using the official translation into
Romanian provided by the European Commission. Still, important issues are
ignored. The draft does not tackle in any way the web-based audiovisual
services, dealing just with unspecified “non-linear services”. The only
special obligations provided for these services are to respect the protection
of minors, by preventing them, via technical means, to gain access to
unsuitable content and to encourage, as best they can, the European works.
For the rest, these non-linear services have to abide by the general content
rules provided for by the Directive, but are excluded from the time
limitations imposed by commercial communication.



113
   EUMAP Report, 2008, made available to the author.
114
   According to the Broadcast Law in force, one can be a majority stockholder in one company, but cannot
hold more than 20% in any other broadcast entity. The first draft attempted to increase this threshold to
40%.


                                                   95
       It is unclear for the time being115 how the issue of web-based
audiovisual services will be dealt with in the Romanian legislation, as they
are expressly covered by the Directive, but are not subject to changes of the
Broadcast law. CNA declared that they did not see their role in regulating
nor they had the organizational capacity to monitor web-based content. In
CNA‟s view, the member states are at liberty to find appropriate solutions to
transpose the Directive in any way they see fit and that a separate regulation
on web-based content was not excluded.
       It is to be said that the draft prepared by the CNA and the working
group is just a “technical pre-draft”. CNA has no legislative initiative – they
cannot initiate legislation and submit bills to the Parliament. Therefore, the
“technical pre-draft” will be taken over by the Culture Ministry (the one in
charge of the audiovisual sector), will be (most probably) amended,
submitted to public debate, as required by the Romanian law and will finally
receive the political backing of the government. It is then when it is
submitted to the Parliament, for debate and adoption.
       Romania has until 2009 to transpose the provisions of the Directive
into its own legislation. But with the pressure of the 2012 deadline for the
digital switchover, one could expect that the legal changes will be speeded
up, to allow for further development. It is noteworthy that 2008 and 2009 are
heavy electoral years, with two ballots each (local and general elections in
2008, and European and presidential elections in 2009), therefore it is not
impossible that the law-making process will be affected and postponed.

6. Self-Regulation: how powerful?

       Another important aspect of the Directive is missing in the current
Romanian draft: the alternative offered by the European Commission
between regulation and self-regulation. The Romanian draft makes no
reference whatsoever to self-regulation, which reflects the mistrust in the
capacity of the industry and/or professionals to manage seriously and
effectively the issues at stake: content, advertising and web-based
operations.
       The fact that the new draft amendments to the Broadcast Law omit
any mention of self-regulation is not an entirely bad thing. First, it would be
bizarre to have self-regulation prescribed by law (bizarre, but not unheard
of). Secondly, in order to function, self-regulation should not only be
115
   At the time of the present report, the draft was still being debated by the CNA, in public sitting and with
the participation of the industry and the civil society organizations interested in media development and
freedom of speech.


                                                     96
prescribed, but also enforced. And this may be the soft belly of the issue
when it comes to Romania.
       Codes of Ethics and Codes of conduct are not alien to Romanian
media professionals. The major journalists associations have their own code,
even industry associations such as ARCA or the Romanian Advertising
Council have such documents - be them of general use or on specific issues
(such as ARCA‟s Code on violence representation on TV).116 Other such
documents include the Code of Ethics of the Romanian Press Club (an
association of the major publishing houses and media companies) and the
one prepared by the Convention of the Media Organizations, a joint-action
platform gathering some 40 media associations. While these codes clearly
reflect the internationally accepted standards in terms of journalistic
practice, their implementation is weak and quasi non-existent.
       Romania does not have a unique body in charge of administrating a
Code of media ethics, therefore interpretations of some cases may differ
from organization to organization. For example, where the Convention of
the Media Organizations saw a violation of the protection of sources, the
Romanian Press Club saw no less than a responsible citizen‟s action.117
       Weak as the media self-regulation may be, when it comes to the
Internet, the situation is even weaker. There are no bodies or entities
interested in self-regulation of Internet content or service providers.
Attempts by concerned leading bloggers to initiate discussion about self-
regulating conduct on the Internet have been met with mistrust and
reservation, even hostility, as it was perceived as incipient censorship.
       Despite this bumpy start, self-regulation may emerge as a reasonable
step to take in implementing the provisions of the Directive regarding web-
based television content. As the CNA declined its competence and capability
to do it, the next “natural” choice would be to include the provisions in other
pieces of legislation related to e-communications. Natural, but unfortunate
choice, as any of the current laws in force in the field do not tackle the
content of e-communication, but rather the means, the procedures, the
technicalities. The body in charge of implementation of Internet-related
legislation is the National Authority for Regulation in Communications and
Information Society (ANRCTI). ANRCTI is a strictly technical body, with
no expertise in media content. The staff involved in monitoring of the

116
    Available in Romanian at http://www.audiovizual.ro/cod22aprilie.htm, accessed on February 25,
2008.
117
    The case involved a TV crew locating an alleged perpetrator of an attack sought by the police and
asking for an interview, while another crew of the same TV station alerted the police on his whereabouts
and broadcast the arrest on camera.


                                                    97
implementation is extremely reduced, which would put serious pressure on
the institution.
       Given this apparent lack of interest and capacity of the state
institutions in regulating the Internet and in implementing any regulation,
self-regulation appears as a possible, desirable solution. The media
community, together with the Internet service providers have now the
opportunity to come up with their own vision on how web-based content
should be dealt with and create the needed reference documents and
structures that would secure the healthy development of Internet media,
striking the right balance between freedom and responsibility.




                                    98
Country Report: Serbia
Mirjana Milošević, Tanja Petrović and Ivana Bjelić



Introduction

       The new EU Audiovisual Media Services (AVMS) Directive
introduces a new regulatory framework for the rapidly changing media scene
in Europe. The changes that the new AVMS Directive introduces are
recognized in its name – it widens its scope from broadcasting to all existing
audiovisual services. As a response to the rapid technological convergence
of media services and changes in media users‟ behavior, the new Directive
introduces a “legal regime governing emerging on-demand services,
necessary, in order to avoid distortions of competition, to improve legal
certainty, help complete the internal market and facilitate the emergence of a
single information area, to apply to all audiovisual media services, both
linear and non-linear, at least a basic tier of coordinated rules.”118
       Traditional linear media are no longer considered the only area subject
to regulation since citizens and consumers increasingly use new production,
transmission and reception platforms. Television/video content is available
on mobile phone screens; cell phones are used for searching the web and
mailing; and on-demand video with time shifted viewing is on the increase,
as well as number of interactive services. As Vivian Reding, Member of the
European Commission responsible for Information Society and Media,
stated, changes in recent years and convergence of the electronic
communication networks, led the media sector to reform, and create a
conceptual bond between the questions of regulation of content and rules
regarding its infrastructure.119
       The Directive is subject to intensive public debate in EU member
countries and candidate countries, with the main concerns related to its
implementation and implications, potential interference with Internet



118
    Available at
http://ec.europa.eu/avpolicy/docs/reg/modernisation/proposal_2005/avmsd_cons_may07_en.pdf.
119
    Viviane Reding, Member of the European Commission responsible for Information Society and Media,
Le nouveau contexte des médias audiovisuels – tendances et enjeux publics [The new context for
audiovisual media - tendencies and issues for the public], at an international conference commemorating 10
years of the Belgian French Community‟s Audiovisual High Council, Brussels, September 21, 2007.


                                                   99
development and competition distortion, and whether the distinction
between linear and non-linear media is clear enough.120
      In Serbia, the media market, ITC development and media legislation
as well as its implementation are far behind major European media sector
trends. Potential implications of the AVMS Directive and its future
application have not been debated yet.

1. Traditional media regulation for linear media services in Serbia

       Several fundamental laws regulate the media and broadcasting sphere
in Serbia: the Broadcasting Act (adopted in 2002); the Public Information
Act (adopted in 2003); the Telecommunications Act (adopted in 2003); and
the Advertising Act (2005). The Law on Preventing Media Ownership
Concentration is currently being drafted by the Ministry of Culture with the
assistance of domestic and international media experts, and is expected to be
the subject of a public debate during 2008.

       The Broadcasting Act introduced a number of European models and
values: a broadcasting model, which for the first time recognized the
existence of public and commercial broadcasters in the market; an
independent regulatory body (the Republican Broadcasting Agency) with
wide competencies; a system of licensing for commercial broadcasters;
compulsory program standards and general regulations for the broadcasting
sector. It proclaims several basic principles as a guarantee of freedom of
media and expression – freedom, professionalism and independence of
broadcasters, rational spectrum usage as a limited resource, application of
international norms in this sector and full affirmation of citizens‟ rights and
freedoms, especially freedom of expression and pluralism of opinion.121
       Content provisions of the Broadcasting Act envisage that broadcasters
should not broadcast programs which could harm physically, mentally, or
morally the development of youths: programs which feature themes such as
pornography, violence, drug abuse or any kind of criminal behavior.122 The
independent regulator is obliged to pay special attention to protect minors,
monitor hate speech and ensure programs for minorities.


120
    James Purnell MP, United Kingdom Minister for Creative Industries & Tourism, speaking at a Foreign
Policy Centre seminar on the Television without Frontiers Directive, available at
http://fpc.org.uk/fsblob/677.pdf.
121
    Article 3 of the Broadcasting Act, Official Gazette of the Republic of Serbia, no. 42/2002.
122
    Article 68 of the Broadcasting Act, Official Gazette of the Republic of Serbia, no. 42/2002.


                                                 100
       The Public Information Act gives general provisions on media
freedom and journalistic independence, proclaims freedom of speech,
regulates the means of establishing and distributing media outlets, and
establishes the rights and obligations of journalists, defines editorial
responsibility, right to reply and judicial procedures regarding breaches of
these rights.

      The Telecommunication Act deals exclusively with technical aspects
of spectrum usage. According to international legal standards this act
regulates the telecommunication sector: establishing the Republic
Telecommunication Agency (RATEL); provides a legal basis for monopoly
impediment; determines procedures for granting licenses for
telecommunication purposes; controls the licence fees process under free
market conditions; regulates leases for utilizing communication lines;
determines rights and obligations for telecommunication operators; regulates
radio and international communication, with the exception of articles
envisaged by other media laws and all other issues of importance for
telecommunication development in Republic of Serbia. The new Ministry
for Telecommunication and Information Society was created in May 2007
and it is given the authority by law to strategically regulate the
telecommunication sector.

        The main provisions of the Convention on Transfrontier Television of
the Council of Europe (TWF) and a number of CoE recommendations for
the media sphere are included in existing legal texts, mostly by provisions of
Broadcasting Act and Public Information Act. However, Serbia is one of the
last European countries that will ratify the Council of Europe TWF
Convention, as this process has yet to be completed (expected by the end of
2008). Being late with ratifying the TWF Convention, already being
amended by Council of Europe bodies in relation to new AVMS Directive,
reflects the tremendous delay in contemporary media developments in
Serbia. Considering the slow progress of Serbia with regard to the EU
integration process (it is not a candidate country and it has yet to sign the
Stabilisation and Association Agreement with the EU), adjustment of the
regulatory framework in line with new EU AVMS Directive for Serbia is
still an issue for the future.




                                     101
2. Non-linear services in Serbia-access, content and regulation

       Traditional regulations in force in Serbia do not recognize the
convergence of traditional media (radio and TV) and new media (mobile
phones and the Internet). Public authorities are slow in recognizing the
importance, both economic and social, of participation in the global network
of information. Additionally, the Serbian market is very slow in adopting
new communication technologies.
The Serbian media market is very slow in introducing new services and
offers, as new media and technologies have low rates of penetration.
Traditional broadcasting media are still more influential, both in terms of
audience impact and market success. According to 2007 figures, less than
half of population, 41%, owns a computer123 with 30% using the Internet on
a regular basis, whereas three quarters of population owns a mobile phone.
Serbia still lags behind not only developed European countries, but also new
European member states in the region. 74% of Internet users still access
through a slow and expensive dial-up connection. Other types of access are
far less used – broadband cable modem is used by 15% of users, WAP and
GPRS services are used by 16% while ADSL has 15% of users.124 These
numbers appear to be low compared to analogue broadcasting with almost
the entire population, 98%, with a TV set.125 Out of 2.5 million television
households, it is estimated that around 30% has some form of multi-channel
television access, mostly analogue cable television.126
       Digital TV has already made a serious penetration into the European
market. However, Serbia lags far behind. Digital terrestrial television has not
yet been launched. The public service broadcaster, Radio Television of
Serbia, is transmitting DTT trial signals. The platform, however, has no
program and no audience, while other commercial broadcasters have not
shown any interest in offering this service to an audience. Serbia Broadband
– SBB, a cable and Internet company – was, in 2006, the first commercial
operator to introduce satellite digital broadcasting in Serbia. The platform
has around 50,000 subscribers.
       With regard to electronic communications and information
technologies, VoIP, WiMax, DTT, CDMA and triple-play will be introduced
to the market during 2008.127 3G mobile phone services are available in the

123
      Number includes both PCs and laptops.
124
      Statistical Office of the Republic of Serbia and Strategic Marketing and Media Research Institute, 2007.
125
    Statistical Office of the Republic of Serbia and Strategic Marketing and Media Research Institute, 2007.
126
    Ibid.
127
    Available at http://www.b92.net/tehnopolis/internet.php?nav_id=277055, accessed January 24, 2008.


                                                      102
market, with some 30,000 users at the beginning of 2007. The liberalization
and development of the telecommunication sector is one of the priorities.
       Only article 11 of the Public Information Act, among other linear
media (newspapers, radio, television) recognizes Internet and online editions
of traditional media as public media. Other articles of this Act relate to and
specifically mention only traditional media outlets. There is no other
mention of the Internet in this or any other media law in Serbia.
       Digitalization, as one the most important tasks which should be
carried out by 2012, is mentioned only in one of the provisions of the
Broadcasting Development Strategy.128 This document, designed by RBA
and adopted by the Parliament, envisages the future development of
broadcasting. The text covers the period till 2013, and yet, it fails to provide
comprehensive regulation or policy framework for new broadcasting
technologies, as it deals with digitalization in only a couple of provisions.
The existing Law recognizes the necessity to regulate digital broadcasting by
a new law or by amending the existing one and that application of digital
terrestrial broadcasting should follow after the preparation of the program
and adoption of the national plan for transition to digital broadcasting. 129 By
the end of 2007, relevant ministries in charge of media – the Ministry of
Culture and Ministry of Telecommunication and Information Society, along
with independent agencies, RBA and RATEL – have formed an intersectoral
working group to start on strategy plans for the digital switchover. The plans
are expected to be publicly announced in 2008.
       The Ministry for Telecommunication and Information Society, formed
in May 2007 and RATEL, are given the authority by law to strategically
regulate the telecommunication sector. So far, the Ministry has introduced a
strategically important document, a Strategy for the development of
telecommunications in the Republic of Serbia from 2006 to 2010 – adopted
by the Government in November 2006. The Strategy foresees the
improvement of ICT in the Republic of Serbia following the aims of
eEurope+ Directive and regional agreement SEE Agenda+. However, the
objectives in the Strategy and the Action Plan are not accompanied by any
deadlines for their fulfilment. When judging the progress of implementation
of European standards in the field of information society services, Serbia
shows a moderate advancement in this area, as stated in 2007 European
Commission progress report on Serbia.130 Serbia still has to adopt new laws
on information society regulating e-government, e-commerce, and the
128
    Broadcasting Development Strategy, Official Gazette of the Republic of Serbia, no. 42/2002.
129
    Broadcasting Development Strategy, Official Gazette of the Republic of Serbia, no. 42/2002, Article 7.
130
    Available at http://ec.europa.eu/enlargement/key_documents/reports_nov_2007_en.htm.


                                                   103
protection of personal data. The role of IT in the government's
communication and services to citizens (e-government) is limited at present.
       With regard to concerns that content-based regulations could be
misinterpreted by governments and that freedom of speech could be
restricted under the stamp of the new AVMS Directive, Serbia demonstrates
a lack of any Internet content-related regulation. Most of the regulation is
left to the market itself and to the editors and Internet providers.
Furthermore, content-related regulation of the traditional media in Serbia is
generally inefficient. Pornographic front-pages are daily published in
Serbian newspapers and magazines, names of minors involved or suspected
for crimes are revealed, hatred incitement statements are published, thus
breaking several laws: the Broadcasting Act, the Public Information Act and
the Advertising Act. Provisions in the Broadcasting Act are not specific with
regard of penal procedure for violation of these articles. 131
       On the other hand, self regulation of global Internet content providers
proves to be efficient. Only recently, in January 2008, the public was
shocked by a YouTube video clip: amateur footage of the burning and
vandalized bakery Violeta in downtown Novi Sad, owned by the Albanian,
Binaj Vebi. The footage shows the bakery being smashed by three men
while being accompanied by the hymn of Serbia “Good of Justice”.
Following the public reaction, YouTube withdrew the footage justifying it in
accordance with its terms of use.
       So far there have been no cases of content-related regulation abuse or
censorship by the Serbian government and regulatory bodies. Moreover, the
lack of any content-related regulation remains a serious issue for the Serbian
media scene. It is realistic to expect that Internet services will not be abused
by the government and there are no serious indications for potential
censorship. On the contrary, any new regulatory texts run the risk of not
being implemented at all due to lack of expertise and institutional capacity
of regulatory authorities. Editor Dejan Restak of the b92.net website, one of
the most visited news web sites in the region,132 says that no direct
government censorship has occurred since Milosevic‟s rule ended in October
2000. Other kinds of subversive influence over media, such as commercial
pressure and large companies refusing to advertise in media outlets are
characteristic of the Serbian media market. He pointed out that B92 has its
own internal rules and that “laws should regulate extreme cases of violation
of content standards” but that other content-related regulation of the Internet

131
      Public debate on Media Laws held at Media Center, December 18, 2007
132
      B92 homepage available at http://www.b92.net/indexs.phtml, accessed on June 4, 2007.


                                                   104
could be counterproductive and that borderline cases should be referred to
co- and self-regulation.
       Self-regulation for Internet providers does not exist in the form of an
Internet providers‟ joint agreement or codex on basic rules of content-related
regulation, but only in the form of terms-of-use rules for each individual site,
which leaves the content-related regulation of Internet sites for each site
editor‟s professional assessment.

3. Implementation

        Even though the media market and a respectable legal framework are
rather behind European trends and standards, the cause for greatest concern
in Serbia today and in the future is implementation of these laws. Adopting
laws and implementing them in accordance with European values and
standards has proved to be rather difficult in a society where democracy is
still unstable and fragile, submissive to influences and pressures.
        Authorities are slow in giving up on media ownership and have
repeatedly demonstrated unwillingness to resolve some longstanding issues.
Inefficiency of the Serbian legislative has caused serious delays in the
process of establishing a public service broadcaster and independent
regulatory authorities in the field of broadcasting and telecommunications.
Since it was established, the new regulatory authority, the Broadcasting
Agency of the Republic of Serbia (RBA) has caused controversy and
disputes. Instead of becoming a symbol of the transfer of power over
broadcasting from political bodies to an independent regulator and
cornerstone of the broadcasting reform in Serbia, because of the long-lasting
political confrontations over procedural and personal issues, the Council‟s
record of limited independence was irreparably damaged. RBA‟s decisions,
primarily the allocation of national, regional and local frequencies has
continued to provoke debates and controversy. Awarded licensees did not
receive a precise set of programming requirements for which they were
granted licenses, leaving domestic media production poor with low quality
programming.133
        In its 2007 progress report on Serbia, the European Commission
expressed particular concern for the audiovisual sector, stating that the
situation of the Broadcasting Agency in Serbia, allocation of national,
regional and local frequencies and decisions made by the Agency regarding
the Public Broadcasting Service remain a cause for concern. According to

133
      Professional magazine Republika, no. 388–389, September 2006.


                                                   105
this report, preparations in the area of information society and media are at
an early stage and further efforts are needed to meet European standards
while the capacity of the regulatory bodies remains below strength.134
       The example of establishment of the independent regulatory body
planned in line with European standards but implemented according to local
reading of those standards (with clear political and financial influences)
gives ground for concerns that future regulation of non-linear media sphere
will be done in the same manner. If done so, there is concern that it could be
used for political influences and would potentially slow down and obstruct
free development of this already underdeveloped sector.

4. Public debates

        Public debates on media laws and regulations are held on a regular
basis, supported and organized by the Ministry of Culture, media and
journalists‟ associations, non-governmental organizations, international
foundations, the Council of Europe and other European Union bodies. Due
to concerns regarding implementation of existing laws, public debates are
still primarily concerned with improving the existing legislation and most of
all, providing the means for full implementation of these laws.

       During one the recent public debates135 on media legislation in Serbia
held on December 18, media and legal experts, university professors, media
and publishers associations‟ representatives debated on the need for changes
of media laws and improvement of their implementation and efficiency.
Only in a few brief statements, participants stated the need for introducing
legislation for digital television and new technologies development.
Opinions were diverse and the subject of digitalization and new media
technologies regulation is still to be debated. Rade Veljanovski, Professor of
Journalism at the Faculty of Political Science, and member of the working
group for drafting of the Broadcasting Act, stated that Serbia will have to
adopt a law on media and digital technology and in his opinion it would be
more recommendable to pass a new law instead of amending the existing
laws. Sasa Mirkovic, representative of Association of Independent
Electronic Media-ANEM and B92 said that “New aims for new reforms will
enable pluralism in media content and technological improvement as well as
the stabil position of the Serbian publishing industry and further
134
   Available at http://ec.europa.eu/enlargement/key_documents/reports_nov_2007_en.htm.
135
   Organized by Konrad Adenauer Stiftung Foundation and Center for Support of Democratic Initiatives
[Centar za podršku demokratskim inicijativama-CPDI].


                                                 106
improvement of the media‟s role in democratic society to provide
information the public has the right to know.”
       In an interview given answering the questions of this report, Marija
Ćosić, media adviser for the Ministry of Culture stated that up to now, there
have been no public debates dealing directly with the AVMS Directive and
its respectable implementation. Regarding the issue of how amending the
Television Without Frontiers Directive will influence the Serbian media
scene, she pointed out that the question of implementing the AVMS
Directive in one or more phases has yet to be debated in media circles.

5. Recommendations

      5.1 Reinforcing the implementation of existing media laws

      Countries in transition, such as Serbia, need to reinforce existing laws
in order to achieve European standards in the media field. Simultaneously, it
is expected that the regulating mechanism would be an effective way of
ensuring freedom of information, free flow of information, diversity of
opinion and media pluralism. Respect of the existing laws should be a solid
ground before introducing new and improved regulations.

      5.2 Implementing EU media regulation standards
Serbia, being a member state of the Council of Europe and one step from
signing the Stabilization and Association Agreement with the European
Union, has to make great efforts in establishing a timely, modern,
transparent and justified framework for further media development. Being a
SEE state, Serbia still has time to make positive steps and adjust national
regulations according to new European regulations such as the AVMS
Directive.

      5.3 Enhancement of the ITC services in the market

      New entrants and investments in the ICT sector could introduce new
services and offers and thus, enhance competitiveness – diversity of content
and platforms, better quality and lower prices for the consumers.
Government should introduce measures to promote competition and
development of the sector, by further liberalization of the telecommunication
market and by introducing and enforcing a clear set of competition rules.




                                     107
       5.4 New media – access and content

      New media, the Internet and ICT still have low rates of penetration.
Therefore, developing the infrastructure and introduction of new services,
universal access to Internet and active participation in informational society
is highly important. Without access there is no new and creative content.
Simultaneously, consumers should be properly educated in order to use new
technologies in full capacity. Existing public funding including a
subscription fee given to Public Service Broadcasters should be used for
developing more quality content for new media platforms.


       5.5 Moderate regulation of the non-linear sector

       As most of the non-linear services are not yet available in the national
market, any regulation regarding these services would be premature. It is
recommended that these services should be regulated with a “light touch”, as
future overregulation could potentially be used for political influences and
could slow down and obstruct free development of this underdeveloped
sector.

       5.6 Reinforcement of mechanisms of co-regulation and self-
       regulation

      All interested stakeholders should enhance the creation of self-
regulatory organizations. Associations of Internet providers, content
providers, journalist, independent productions, etc., should set basic rules on
content-related regulations. Allegedly harmful content, as defined by
national laws and European treaties, should be sanctioned according to joint
codex. Other types of content should be left to editorial assessment.


References
Broadcasting Act, “Official Gazette of the Republic of Serbia”, no. 42/2002

Broadcasting Development Strategy until 2013, “Official Gazette of the Republic of
Serbia”, no. 115/2005
Data on usage of ICT in the Republic of Serbia 2007, Statistical Office of the Republic of
Serbia and Strategic Marketing and Media Research Institute



                                           108
Interview with Jelena Surčulija, Media Law expert, Belgrade
Interview with Marija Ćosić, media advisor, Ministry of Culture, Media Department,
Belgrade
Interview with Rade Veljanovski, Professor at the Faculty of Political Sciences, Belgrade
Interview with Dejan Restak, editor, www.b92.net
Milivojević, S. “Television across Europe 2005: Report for Serbia”, (Budapest: EUMAP,
2006)                                     available                                at
http://www.eumap.org/topics/media/television_europe/national/serbia/media_ser1.p
df
Public Information Law, “Official Gazette of the Republic of Serbia”, no. 43/2003; no.
61/2005
Strategy for the development of telecommunications in the Republic of Serbia from 2006
to 2010, “Official Gazette of the Republic of Serbia”, no. 99/2006
Telecommunication Law, “Official Gazette of the Republic of Serbia”, no. 44/2003; no.
36/2006




                                          109
Country Report: Slovenia
Brankica Petkovic

1. Justification for extending traditional media regulation

       The need to extend traditional media regulation in Slovenia has been
pointed out several times in the past few years, mostly with regard to content
published on the Internet or provided on demand through mobile phones.
Points were made by the human rights ombudsman in 2005136 and by civil
society groups dealing with protection of minors in 2005 and 2006, based on
various cases of dissemination of content containing hate speech,
pornography and extreme violence through Internet publications which had
or hadn‟t been registered as media outlets.
       The main point has been how to establish a transparent and efficient
regulatory framework, including possible co-regulatory or self-regulatory
measures, providing respect for human dignity, non-discrimination and
protection of minors in the media, including those disseminated through the
Internet. The debates included the dilemma about when content published on
the Internet can be considered to be subject to existing media regulation, and
how this regulation can be efficiently implemented.
       In that context a reference to the Draft AVMS Directive was made
during the 2006 discussion on amendments to the Mass Media Act. Civil
society groups advocating stricter and more efficient rules on the protection
of minors in the media sphere referred to the TWF Directive, and also
briefly to Draft AVMS Directive – some requesting amendments to the Mass
Media Act in Slovenia to extend provisions on protection of minors from
television programs to audiovisual media services disseminated through
mobile phones.137 Such amendments haven‟t been adopted in the Parliament.


136
      See the article “Ombudsman Targets Online Hate Speech”, September 6, 2005, available at the web site
of the Human Rights Ombusman in Slovenia, http://www.varuh-
rs.si/index.php?id=106&L=6&tx_ttnews[cat]=26%2C27%2C28%2C29%2C30%2C31%2C32%2C3
3%2C34&tx_ttnews[year]=2005&tx_ttnews[tt_news]=1663&tx_ttnews[backPid]=878&cHash=17cf6
0eb81.
137
    See Predlog Projektnega združenja nevladnih organizacij za spremembo predloga zakona o
spremembah in dopolnitvah zakona o medijih, ki ga je Vlada RS sprejela 2. 2. 2006, [Proposal of the
Project group of non-governmental organizations for amendments to the governmental proposal of the
Amended Mass Media Act from February 2, 2006]. The Proposal was submitted to the Parliament on
March 5, 2006, signed by the Association for Equal Opportunity and Plurality Vita Activa, the Association
Against Sexual Abusement and the Association of Parents and Children Sezam, and coordinated by Ms.
Renata Sribar.


                                                    110
      This means that there has been certain social context, and there have
been attempts to create a sensibility in Slovenia for extending traditional
media regulation – from television to new media – to provide respect for
human dignity, non-discrimination and protection of minors in the media
even before the adoption of the AVMS Directive.
       However, there hasn‟t been any public discussion focusing on the
Draft AVMS Directive in Slovenia as such; no discussion about proposals
for new provisions or about the justification for their introduction, and no
discussion about the process of the adoption of the Directive.

2. Process of adoption of the AVMS Directive

       Although the Slovenian Ministry of Culture has regularly participated
in consultations on the Draft Directive in Brussels, it has never reported back
to the public, or organized public discussion with regard to the proposed
solutions.
       From reports on the participation of representatives of the Ministry of
Culture in the consultations which we obtained during this research, it is
clear that Slovenia has supported the Draft AVMS Directive. In November
2006, the Government of the Republic of Slovenia has expressed “general
support” for the Draft AVMS Directive138. On November 13, 2006 the
Ministry of Culture outlined the following approach: “Slovenia agrees with
the general approach in the Draft Directive”. In a later stage of adoption of
the Directive, the Ministry repeated in all further consultations the following
approach: “The Ministry of Culture has reviewed the EU document and
following the 5th article of the Instructions for implementation of the
operating rules [poslovnik] of the Government No. 7, states that the
document is not considered to be an EU regulation which it is necessary to
challenge.”139
       From the report on the stance of Slovenia at the meeting of the EU
Education, Youth and Culture Council held on May 24, 2007 it is clear that
Slovenia has been continuously advocating solutions which allow derogation
from a fundamental country of origin principle, meaning that member states
are allowed to take measures to restrict transmissions on their territory of
audiovisual media services from other member states under certain

138
   Meeting of the Government of the Republic of Slovenia on November 23, 2006.
139
   Internal report on the Slovenian approach to the Draft AVMS Directive at the meeting of the EU
Council on Education, Youth and Culture on May 24, 2007. The document was received on January 29
from Mr. Skender Ademi, who represented the Ministry of Culture at various consultations on the draft
Directive.


                                                  111
conditions listed in the Directive which should be interpreted restrictively.
To most of other solutions, Slovenia has been flexible and supported most of
the solutions adopted in the final document.140 Skender Adem from the
Ministry of Culture, who has represented Slovenia in consultations in
Brussels, told us that major contributions of Slovenia from the earlier stage
of consultations have been related to the provision which allows derogation
from a country of origin principle in certain cases, and also to the provisions
on the protection of minors141.
        In the article “V Sloveniji brez javne razprave o novi medijski
direktivi” [Without a public discussion in Slovenia on the new media
directive], published in the Media Watch journal in Ljubljana in May 2007,
Sandra Basic Hrvatin summarized the main solutions included in the AVMS
Directive, describing also the process of the adoption, starting from 2003.
Basic Hrvatin pointed out that during public consultations in 2005 on the
Draft Directive, there were approximately 400 comments and suggestions
submitted to the European Commission and posted on its website, but none
were from Slovenia. The public in Slovenia has no information on whether
the Ministry of Culture submitted any comments or proposals related to the
solutions in the Draft AVMS Directive within consultations between the
European Commission and the representatives of the governments of the EU
member states, said Basic Hrvatin in her article. If it did submit or advocate
any proposal, it is not clear how the Ministry had come to a decision on it
without having any public discussion in Slovenia; or how the Slovenian
MEPs had participated in the debate on the Directive in the European
Parliament without having any public consultation or discussion in Slovenia,
concluded Basic Hrvatin.142
        We asked the representative of the Slovenian Ministry of Culture how
it participated in the process of adoption of the AVMS Directive. Adem told
us there was a working group established from representatives of various
sectors within the Government, and that a national delegate appointed by the
Ministry had participated in consultations in Brussels (at the working group
for audiovisual policy of the EU Council) on regular basis. “We had an idea
to organize public discussion but it was not possible because of lack of


140
    Ibid.
141
    Mr. Skender Adem from the Ministry of Culture at the meeting with the country reporter on January 23,
2008.
142
    Sandra Basic Hrvatin, “V Sloveniji brez javne razprave o novi medijski direktivi” [Without public
discussion in Slovenia on the new media directive], Media Watch Journal, Mirovni institut, Ljubljana, May
2007. See http://mediawatch.mirovni-institut.si/bilten/seznam/28/medpol.


                                                  112
organizational capacities at the Ministry where staff were preoccupied with
other tasks”, Adem told us.143

3. Danger of censorship?

       The representative of the Slovenian Ministry of Culture sees no
danger of abusing the content-based regulations of the Directive by
censorship of communication through the Internet. He even claims that the
regulation explicitly excludes from its scope communication through the
internet.
It is necessary to mention that the Slovenian media regulation within the
Mass Media Act (adopted in 2001 and amended in 2006) already includes
electronic and Internet publications,144 requesting from their publishers the
same procedure as from all other publishers and broadcasters: i.e., to register
with the media before starting operations, and to apply general content-based
regulation. It is also important to mention that, for instance, the Mass Media
Act includes hate speech provisions in programming content (in Article 8),
but without introducing sanctions for violation of the provision, different
than in the case of violation of equivalent provision on hate speech in
advertisements (provisions on sanctions in that case are provided in Article
129). Therefore, even the existing national content-based regulation in
Slovenia, which is already supposed to be applied to those Internet
publications whose publishers have declared and registered them as media
outlets, has no efficient mechanism to sanction, for instance, hate speech.
That problem was pointed out by the Human Rights Ombudsman in
Slovenia in his 2006 report Primeri sovražnega govora na internetu [Hate
speech cases on the Internet].145
       The experience with the Slovenian traditional media regulation –
which is also supposed to apply content-based regulation to Internet media
outlets (not to the Internet as such, but to those internet publications
registered as media outlets) – shows that there is a need to invest more effort
(more than the introduction of simple provisions in the law) in establishing
an efficient normative system and environment, including clear and

143
   Meeting with Skender Adem at the Ministry of Culture, January 23, 2008.
144
   According to the Mass Media Act in Slovenia (Article 115), electronic media are those media through
which physical or legal persons disseminate programming content through computer connections in a way
to make them accessible to a wider public, regardless of their volume. Based on the experience with
application of the law, it is clear that the provision of what is considered to be a media outlet on the Internet
needs further clarification.
145
      See the report on the website of the Ombudsman at http://www.varuh-rs.si/index.php?id=1224.


                                                      113
consequential rules and sanctions, independent and strong regulators,
complementary self-regulatory and co-regulatory mechanisms and
empowering citizens to have literate participation in the system.
       A major dilemma in Slovenia in the public debate on the increasing
range of hate speech in public discourse, including the media (and the
Internet), has been how to efficiently regulate hate speech and how to create
the social and political environment for the elimination of such practice. The
public debate has included confrontations between those who consider hate
speech and also the dissemination of pornography manifestations of a
freedom of expression, and those who advocate for the introduction of
stricter regulation in that field. There is a recent initiative by the political
party Zares (a left-wing, liberal political group) and the former Human
Rights Ombudsman to adopt changes of the Criminal Code in Slovenia,
introducing stricter and more precise rules on incrimination of hate
speech.146
        Considering the abovementioned social context, there is an
environment already established in Slovenia in line with the content-based
rules in the AVMS Directive for both linear and non-linear audiovisual
media services. It is clear in the debate that the major concern hasn‟t been
whether efficient implementation of such rules will enable more censorship
from the government, but how much it is possible to efficiently implement
them at all in the case of content disseminated through new media. How
should we define what media outlet is, in that case, since for instance,
telecommunications operators providing access to pornographic content
claim they are only providing a means of transporting content and their
operations should not be subject to media regulation?
       Certainly, there are various bodies in Slovenia, such as media and
courts, legal experts within public institutions, universities and civil society,
and also constitutional provisions on communication rights which can be
called upon in the event of misuse of the new content-based regulation in the
way of governmental censorship.
       It is important to mention that the recent government has been
accused of censorship in the media by numerous journalists and experts in
Slovenia, contributing to a decrease in media freedom ratings in
international organizations‟ reports, and to critical reports from the
international press. Considering the topic of this report, it should be noted
that accusations of censorship refer to the way in how the government
146
   MPs from the political party Zares initiated adoption of amendments to the Criminal Code in Slovenia in
September 2007. See the proposal and justification of the amendments (in the Slovenian language) at
http://www.zares.si/wp-content/uploads/kz_novela_sovrazni_govor_180907.pdf.


                                                  114
imposed its influence on the changes of governing and editorial structures in
traditional media, mostly in daily newspapers and public service
broadcasting.

4. Plans for implementing the AVMS Directive

       According to the representative of the Ministry of Culture, Skender
Adem, there is no clear plan for the implementation of the AVMS Directive
in Slovenia, since Slovenia is approaching parliamentary elections in the
autumn of 2008 and there is no priority given to preparation of media
regulation changes. There is a contact group established on the level of the
EU for implementation of the AVMS Directive, where representatives from
all member states report on, and can seek support in the process of that
implementation. It is most probably that, in the case, of Slovenia the
preparation of media regulation changes in accordance with the AVMS
Directive will have to wait until the period following the elections, meaning
that most activities will take place in 2009. According to the AVMS
Directive, it should be incorporated in the legislation of member states up
until December 2009 (two years after the adoption) which means that the
Slovenian goverment will have the excuse once again, to put quickly
forward media regulation changes without proper discussion.
       In Slovenia, the two most relevant items of media regulation are the
Mass Media Act (adopted in 2001 and amended in 2006) and the Law on
Radio-Television Slovenia (adopted in 2005), which were prepared and
supervised by the Ministry of Culture. There is also a law on electronic
communication (adopted in 2004 and amended in 2006), a law on e-
commerce (adopted in 2000 in amended in 2004) and a law on digital
broadcasting (adopted in 2007), which were prepared and supervised by
other ministries such as the Ministry of Economy and the Ministry of High
Education, Science and Technology (formerly the Ministry of Information
Society).
       The provisions from the previous TVWF Directive have been
implemented in Slovenia through the Mass Media Act and most probably the
same will happen with the new AVMS Directive. However, there is a chance
that the new AVMS Directive will be implemented through eventual new
media regulation since there are ideas to revise the existing system of media
regulation. The representative of the Ministry of Culture, Skender Adem, has
mentioned possible options to adopt two pieces of regulation instead of the
existing Mass Media Act, one of which would be dedicated to broadcasting,
and the other to general rules on media freedom and media pluralism.

                                    115
        At the same time there is a Draft Strategy for the Development of
Radio and Television Programs in Slovenia presented in January 2008 by the
Agency for Electronic Communications (the agency includes department on
broadcasting).147 The document was prepared on the basis of the Mass
Media Act provisions and will be delivered to the Ministry of Culture to
serve its further policy measures. In the action plan in the conclusion of the
Draft Strategy, there are several measures referring to the need for revision
of the existing media regulation and the establishment of a new, more
comprehensive system of regulation appropriate for new media development
and corrective to some obvious failures of the existing media regulation.
        Considering the abovementioned context, it seems important to
initiate thorough public debate how to revise the existing media regulation,
taking into account the needs and challenges of implementing the AVMS
Directive. The Peace Institute with its media policy department can be one
of the initiators of such a process of public consultations.

5. Self-regulation system on the Internet

       Since 2005, there have been two projects in Slovenia developed for
the purpose of promoting and supporting safer use of the Internet and new
technologies, in which besides the University of Ljubljana and its Faculty of
Social Sciences, some Internet providers also participated. Both projects
have been supported by the European Commission Safer Internet
Programme. The first one Safe.si is a national awareness node aimed at
protecting and educating children and teenagers in safe use of the Internet; it
is targeting also parents and teachers. Core operations within the project
have been developed from 2005 to 2007.148
       The other project, Spletno Oko [Internet Eye], has been operating
 since 2006 as a Slovenian hotline which provides the means for anonymous
 reporting of illegal internet contents. Spletno Oko (www.spletno-oko.si)
 deals with reports concerning child pornography and hate speech on the
 Internet. The project is a part of the INHOPE network (International
 Association of Internet Hotlines: www.ihope.org). The partners of the
 project are: the University of Ljubljana, Faculty of Social Sciences; and the
 Association for Protection of Consumers and Association of Internet
147
    The Draft Strategy for Development of Radio and Television Programs in the Republic of Slovenia was
presented at the public consultations on January 22, 2008. The document is available in the Slovenian
language at
http://www.apek.si/sl/datoteke/File/2008/informacije%20za%20stranke/strategija_razvoja_ra_in_tv_
programov_v_rs_delovni_osnutek_2_koncna_2.pdf.
148
    See www.english.safe.si.


                                                 116
Providers. In the project advisory board there are representatives of the
State Prosecution Office, the Slovenian Police Force, the media and various
institutions dealing with the protection of minors. According to the
2006/2007 annual report, there have been 212 reports received through the
project from March 1 to August 31, 2007, among which 118 were related to
the hate speech, 65 to child pornography and 29 to other illegal content.
The reports were reviewed by the project team and passed to the police and
the prosecutor if the project team thought the reported Internet content
could be considered illegal. The anonymity of the reporting person was
assured.

      Taking into account the profile of the projects – one having an
awareness role in safer use of the Internet, and the other collecting reports
on potential illegal content on the Internet and passing them to the police
and prosecutor – it doesn‟t seem that they can replace or cover all content-
based provisions of the AVMS Directive, but certainly can be considered in
future decisions about how to create regulatory, self-regulatory and/or co-
regulatory mechanisms to implement the Directive.




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