Dragan Milic, Attorney at law

SRB | ENG

CONSTITUTIONAL OR OTHER LEGAL GUARANTEES OF MEDIA INDEPENDENCE

Having in mind the kind of legislative act that it is, the Constitution of the Republic of Serbia addresses the freedom of media, as well as the people’s right to be informed, in quite a detail. The Constitution also guarantees the right to thought and expression.

Following the Constitution as the supreme legal act, the next level of providing guarantees for freedom of the media are laws, that is, the most general media law among them – the Law on Public Information and Media (LPIM) which, at the very beginning, through its principles and its very aim, stipulates that public information is free and is not subject to censorship, that the public has the right and the interest to be informed on issues of public interest, that monopoly in the media is not allowed, that information on the media is public.

Once again through the principle of separation of powers into legislative, executive and judicial, the independence of the regulatory authority is provided first and foremost by the Constitution, since, under the provisions of the Law on Electronic Media, members of the Regulatory Authority (REM) are elected in the National Parliament.

The law stipulates that a member of the REM Council cannot be a person who performs a public function or one in a political party in terms of legislation governing the rules relating to the prevention of conflicts of interest in the exercise of public functions. 

The law also stipulates that members of the Council are nominated by committees of the National Parliament and of the Parliament of the autonomous province. 

Accredited universities, competent associations of electronic media publishers, professional associations of film, stage and theatre artists and professional associations of composers, associations dealing with freedom of expression and protection of children, national councils of national minorities, churches and religious communities submit their proposals based on an agreement at the level of the university, that is, association.

It is also emphasized that Council members do not represent the views or interests of the bodies or organizations that nominated them, but perform their duties independently, according to their knowledge and conscience.

Additionally, a certain percentage of the budget of the Republic of Serbia is earmarked for the media and these funds are granted by means of competitions for projects in the field of public information as an attempt to secure media freedom and independence.


 

CONSTITUTIONAL PROVISIONS ON THE FREEDOM OF PRESS, THOUGHT AND EXPRESSION


The Serbian Constitution stipulates the following:

The freedom of thought and expression shall be guaranteed, as well as the freedom to seek, receive and impart information and ideas through speech, writing, art or in some other manner.

Freedom of expression may be restricted by the law if necessary to protect the rights and reputation of others, to uphold the authority and objectivity of the court and to protect public health, morals of a democratic society and national security of the Republic of Serbia.


Media freedom is guaranteed under the same act:

Everyone shall have the freedom to establish newspapers and other forms of public information without prior permission and in a manner laid down by the law.

Television and radio stations shall be established in accordance with the law.

Censorship shall not be applied in the Republic of Serbia. Competent court may prevent the dissemination of information through means of public informing only when this is necessary in a democratic society to prevent inciting to violent overthrow of the system established by the Constitution or to prevent violation of territorial integrity of the Republic of Serbia, to prevent propagation of war or instigation to direct violence, or to prevent advocacy of racial, ethnic or religious hatred enticing discrimination, hostility or violence.

The law shall regulate the exercise of right to correct false, incomplete or inaccurately imparted information resulting in violation of rights or interests of any person, and the right to react to communicated information.


The Constitution also guarantees the right to information:

Everyone shall have the right to be informed accurately, fully and timely about issues of public importance. The media shall have the obligation to respect this right.

Everyone shall have the right to access information kept by state bodies and organizations with delegated public powers, in accordance with the law.


 

MEDIA FREEDOM IN PRACTICE

Even though, formally speaking, the legislative, judicial and executive powers are separated in the Republic of Serbia, they overlap in practice and the spillover of influence from one branch to another is inevitable. Regarding the media, particularly important is the influence of the executive branch on the legislative branch and vice versa.

As members of the REM Council are elected by the Parliament from the ranks of distinguished experts in the fields of importance for the performing of duties in the jurisdiction of the Regulator (media experts, economists, lawyers, telecommunication engineers, etc.), the Parliament is the one that has the final say regarding their election, therefore, this leaves room for persons who suit the interests of the parliamentary majority to be elected as Council members.

Also problematic is the nominating procedure, because the law envisages joint mutual agreement on the nominated candidates at the level of universities and associations where the influence of political interests is possible.

Since the Parliament also elects the Government of the Republic of Serbia as the highest executive authority, by the same, absolute majority, it is de facto very difficult to secure independence and objectivity of the Regulatory Authority’s work.

 

INDEPENDENCE ON MEDIA AUTHORITIES

REM has its own budget, that is, financial plan, which is adopted by the Council and approved by the Parliament.

Revenue of the Regulator are the proceeds of the fees that media service providers pay for the issuance of broadcasting licenses.

The law stipulates that excess of revenues over expenses in a calendar year is to be paid into the budget of the Republic of Serbia. Over the past few years REM operated with a significant surplus and each year it was obliged to pay the profit into the republic budget. If the difference between income and expenditure is negative, the missing funds will be provided from the state budget.


 

RESPONSIBILITIES ON MEDIA AUTHORITIES IN REPUBLIC OF SERBIA


 

ISSUING OF LICENSES

The Regulator decides on an application for a license with a decision.

If an application submitted is in accordance with the law, REM issues a license for the provision of media services and enters it in the Register of Media which is kept and updated by the Regulator.

If legal requirements for the issuance of a license are not met, REM will reject the request with a decision.

The decision is final and cannot be appealed. However, an administrative dispute can be launched against it.

 


REVOKING OF LICENSES

In the event of reasons exhaustively listed in the law  because of which license validity is terminated before its expiry, the Regulatory Authority passes a decision on revoking the license. The decision to revoke the license is made by a two-thirds majority.

This decision is also final and an administrative dispute can be launched against it.


 

SANCTIONS FOR BROADCASTING WITHOUT A LICENSE

The Law on Electronic Media envisages both economic offenses and offenses.

In addition to a warning from the Regulator regarding the presence of a media pluralism violation which was discussed earlier, a fine of RSD 2,000,000 to RSD 3,000,000 RSD will be imposed on a legal person for an economic offense of providing services without a license issued by the Regulator, while a responsible natural person will be fined with RSD 150.000 to RSD 200.000 RSD.

Along with a fine the Regulator can also impose on a legal person a protective measure prohibiting it to perform certain activities for a period of up to 3 years.

The Law on Electronic Media also lists a number of offenses for failure to adhere to the provisions relating to the prohibition of hate speech, protection of minors, specific technical duties or failure to obtain prior consent in relation to change in ownership structure.


 

TRANSPARENCY OF MEDIA AUTHORITIES

The Regulatory Authority is obliged to post on its website, free of charge, all decisions, that is, general and individual legal acts as well as other information within its scope, such as the strategy for the development of radio and audio-visual media services, bylaws defining in detail the implementation of the Law on Electronic Media, public competition for granting licenses and decisions made at public competitions, data from the Register, administrative court rulings in proceedings initiated against a decision of the Regulatory Authority, decisions imposing measures in accordance with the law, decisions on complaints, annual report, financial plan, financial reports and authorized auditor's reports, expert opinions, minutes from meetings, studies and analyses commissioned by REM as well as information on public debates.


 

STATE ADVERTISING IN REPUBLIC OF SERBIA


Advertising of state bodies and publicly-owned companies is not regulated by a special law nor is it incorporated in the Law on Advertising , which is a big legal void and paves the way for major irregularities, that is, for indirect influence on media content by enabling or disabling advertising of the state which, in market conditions in the Republic of Serbia, is one of the most important advertisers.

Due to the specific qualities of electronic media, the Regulator has passed a special Rulebook on advertising and sponsorship in electronic media , which regulates this field in more detail than the aforementioned Law.

Advertising of state and public companies is done through the public procurement system, which also applies to all other public purchases. With the help of criteria set up front that the media are required to meet, a large number of unsuitable media are tendentiously eliminated and doors are opened to those who suit better the different interests of the advertisers, in this case of the state or publicly-owned companies controlled by the Government. 


ADVERTISING ALLOCATION MONITORING

This form of allocation of funds through state advertising is formally monitored by the relevant ministry but only in the part concerning the regularity of the implementation of the rules and procedures for public procurement and not by including other parameters that would ensure a transparent and free allocation of public funds.

Whether competitions and state advertising are financially-wise carried out in line with the plan and budget is controlled by the State Audit Institution, which, however, does not focus on the criteria for the allocation of funds but only checks the financial side of business deals.


 

MEDIA CENSORSHIP IN REPUBLIC OF SERBIA

The freedom of media and the ban on censorship are proclaimed by the Constitution of the Republic of Serbia and by media laws, as described in detail at the beginning of the report, thus laws do not give the state the possibility to directly influence the media’s editorial policy or to block websites in order to limit freedom of speech.

However, with the help of mechanisms for the election of Regulatory Authority Council members, and due to the lack of regulations on state advertising, irregularities and unclear criteria for the awarding of funds by the state and local self-governments at public competitions, the state indirectly influences the media.

This influence seldom comes in the form of direct censorship, but rather in the form of the media workers’ and editors’ awareness of the need to report in a certain fashion, so self-censorship is very present in the territory of the Republic of Serbia.

It is not easy to prove concrete pressure and influence by individuals that trigger self-censorship, but it becomes very obvious even when superficially monitoring the media, especially during an election campaign.

Since the media are privately owned, it is up to the editor and owner of the capital to adapt their editing policy to whomever and however they wish, and there are no sanctions for this.  Except for market sanctions maybe, imposed by the readership group that insists on unbiased reporting, in the form of their refusal to use the services of the medium in question.

When it comes to media freedom, Serbia is in the 66th place on the Reporters Without Borders 2017 World Press Freedom Index. This means that it has dropped 7 points from 2016.

In addition to self-censorship, also very present is a form of soft censorship that is a result of the non-transparent, uncontrolled and unequal access to state assistance, including selective access to subsidies and advertising funds from state sources.

Having in mind the grave financial conditions for the functioning of the media in Serbia, it is practically impossible to operate on the market and achieve full independence for which the media have still not found a sustainable model. This is why the media have become dependent on state, that is, budget funds which have become one of the most important and most desirable sources of financing the work of the media.