УНС вести

The Public Information Law of 2003 (the “2003 Law”) generally provides for freedom of the media, subject to some limitations. The Draft Law on Amendments to Public Information Law of 2009 (the “Draft Law”) makes two major changes. First, it requires registration of media outlets with the Register of Media Organizations. Second, it dramatically increases the amount of fines imposed for certain violations of the law.

The Draft Law requires, first, that media organizations register with the Register of Media Organizations. See Amendment 1 to Draft Law. Registration serves the dual purpose of allowing the government to keep tabs on certain organizations while making it easier to impose sanctions on outlets for any number of transgressions. The first such transgression is failing to register: “[I]n case a media organization operates without being registered in the Register of media organizations, the competent public prosecutor shall, without any delay, launch the economic transgression proceedings before the competent court and shall request measures of temporary suspension of publishing activities be pronounced.” See Amendment 2 to Draft Law. The punishment for failing to register is thus twofold: publishing can be stopped, and fines governed by the new Article 92a, can be imposed.

Under this registration scheme, the government has greater access to founders’ information and is provided another mechanism to fine an outlet or stop publication. Proposed

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 2 

Article 14v provides that the Register of Media Organizations “shall submit a monthly report... with data on media founders” at the request of the “republic administrative agency in charge of the public information affairs.” Draft Law, art. 2. If a founder’s account has been blocked for more than ninety days in the past business year, and the founder has not willingly ceased publication, this information can then be used to institute proceedings against the founders and halt publication. The registration requirements and the Draft Law’s new scheme is a heavy burden on the media.

 The amendments also provide that the founder of a media outlet “may not transfer or in other way dispose of the right to a media outlet or the right to the publishing of a media outlet.” Proposed Article 14a, Draft Law, art. 2. This paragraph will make investment in a media outlet difficult because any amounts invested can never be monetized at a future time; its purpose is not explained by the government.

The draft amendments to the Law both establish fines for newly created violations such as failing to register and also significantly increase fines for certain existing violations.

The fines for new violations include fines for failing to register, for registering a media outlet under the same or similar name as an existing outlet, and for failing to voluntarily discontinue publishing where a founder’s account has been blocked for more than ninety days in the previous business year. See Amendment 3 to Draft Law. For all three of these offenses, the founder will be fined in a range from one million to twenty million dinars. Additionally, the “responsible person” within the founder will be fined in a range from 200,000 to two million dinars.

The Draft Law also increases fines for existing violations. A violation of Article 37, which prohibits a media outlet from alleging that a person is guilty of a crime before such person has been so proven, will result in a fine of “25% to 100% of the accumulated value of the publication as delivered to distributors on the day on which information was published and the value of the advertising inventory sold in that particular issue” on the founder. An additional 200,000 to two million dinar fine will be imposed against the responsible person in the founder as well as the editor-in-chief. A violation of Article 41, which protects minors, will result in an imposition of the same fine. Articles 93 and 95, and the range of fines imposed on the founders for the various violations contained therein, were increased from 100,000-1,000,000 to 1,000,000-10,000,000 and from 30,000-200,000 to 1,000,000-10,000,000, respectively. See Amendments 4-5 to Draft Law. The fines for certain other violations, such as distribution of unclearly labeled pornography as governed by Article 96, were not similarly increased. There is no general rationale offered for why some fines were increased while others were left alone, and there is no general rationale offered for why the fines were increased so heavily.

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 3

A. Standards of Serbian Law

Serbia is bound by the 2006 Constitution of the Republic of Serbia (“Serbia Constitution”). Its provisions guarantee the freedom of expression, the ability to receive information through writing, freedom of the media, and freedom from censorship:

• “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.” Art. 46.

• “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.” Art. 50.

• “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.” Art. 50.

The Serbia Constitution also provides a test for judging the constitutionality of any restriction on human rights. It requires “all state bodies, particularly the courts,” to “consider the substance of the restricted right, pertinence of restriction, nature and extent of restriction, relation of restriction and its purpose and possibility to achieve the purpose of the restriction with less restrictive means.” Art. 20. Because the Draft Law’s burdensome requirements would likely bar the entry of some independent print media outlets into the marketplace, a Serbian court would likely deem the Draft Law a restriction subject to this constitutional test.

The Serbia Constitution also makes clear that international law is directly enforceable in national courts. Once Serbia has accepted an international obligation, that rule becomes directly enforceable in national courts. Specifically, “[g]enerally accepted rules of international law (e.g., jus cogens) and ratified international treaties shall be an integral part of the legal system in the Republic of Serbia and applied directly.” Art. 16 (emphasis added). Moreover, courts are bound by the Serbia Constitution and “the ratified international treaty and regulation passed on the grounds of the Law.” Art. 145. The Serbia Constitution also binds “foreign policy of the Republic of Serbia” by “rules of international law.” Art. 16.

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 4

The European Convention on Human Rights (the “ECHR”) guarantees freedom of expression, including the right to receive information through any medium. Article 10 of the ECHR provides that:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Section (1) thus guarantees the fundamental rights associated with freedom of expression while section (2) defines certain limitations that come with those rights.

The European Court of Human Rights has held that freedom of expression “constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfillment. Subject to paragraph (2) of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society.’” See Handyside v. United Kingdom, 1 Eur. H.R. Rep. 737, para. 49 (1976). This freedom is subject to the exceptions set out in art 10(2); these limitations, however, must be construed strictly. Furthermore, the need for any restrictions must be established convincingly. See, e.g., Karhuvaara and another v. Finland, Eur. Ct. H. R. 53678/00, para. 37 (2004); Nilsen & Johnsen v. Norway, Eur. Ct. H. R. 23118/93, para. 43 (1999); Lingens v. Austria, Eur. Ct. H. R. 9815/82, para. 41 (1986).

Article 10 therefore places a high burden on governments that may interfere with the right to free expression. Any such interference must meet the following three criteria: (1) it must be prescribed by law; (2) it must have as its aim a goal which is legitimate under Article 10, section 2; and (3) the specific restriction must be “necessary in a democratic society” to achieve that goal. See e.g., The Sunday Times v. United Kingdom, Series A, No. 217, 14 Eur. H.R. Rep. 229, para. 45 (1992).

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 5

The European Court has interpreted the first prong – that any interference be prescribed by law – to mean that legal requirements must be accessible and that legal consequences must be reasonably foreseeable as to enable citizens to manage their activities. See The Sunday Times, para. 49. Thus, a law will infringe Article 10 if it is so vague as to provide effectively no guidance to citizens as to the bounds of legal conduct.

The registration requirements are established clearly, and those seeking to comply will likely be guided sufficiently. However, the Draft Law provides that the Minister of Public Information Operations will pass a rulebook on the manner of keeping the Register after it is enacted. If this rulebook affects how founders and other responsible persons in media outlets complied with the register, then it must be sufficiently clear as to the compliance requirements. As the Draft Law contains no guidance, it is possible that the rulebook would be too vague for citizens to comport with the standards of legal conduct. Additional enforcement mechanisms that might be prescribed are also subject to the possibility of abuse. The Minister’s rules must be subject to the same clarity requirement.

The fines, however, are vague and unlikely to be found to be prescribed by law. Many of the fines – because they have been increased so greatly – now have a large gap between the minimum and maximum that can be imposed. See, e.g., Amendment 3 to Draft Law (imposing a minimum of one million dinars and a maximum of twenty million dinars). This is meant to give a court imposing the fines greater discretion. There is no further guidance in these provisions, however, on what factors the court will consider and what will guide its decision. A nineteen million dinar range – a greater range by far than anything under the existing Law – is thus a minefield for potential violators who have no reason to know if they will be fined at the minimum or maximum level. Such a large gap may violate the requirement that legal consequences are reasonably foreseeable. There is no way to know if a person committing a violation will be fined at one end or the other – and no one can see how future, less democratic regimes might abuse the discretion they are afforded in determining where a particular person’s conduct should fall. Without any further guidance, the disparity between the minimum and maximum penalties may not satisfy the requirements of this prong.

Neither the registration requirement nor the significant fines aim to achieve goals that Article 10 deems legitimate. Article 10, paragraph 2 of the EHCR describes such goals as those “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The government has claimed that, by instituting the registration requirement, it is seeking to increase efficiency in enforcement and create a better way to hold founders accountable for violations of the law. This goal fits into those prescribed by paragraph 2.

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 6 

However, making the government’s job of enforcement easier is not a legitimate goal. Registering with the media register will not make it any easier to track down outlets when such outlets are already required to provide certain identifying information in each publication. Instead, it only serves as another oversight mechanism allowing the government to keep track of an outlet’s activities in intrusive ways.

There does not appear to be a similar rationale offered for increasing fines for certain violations over others. This arbitrariness only underscores that these new provisions do not seek to achieve legitimate goals. Why are fines for some violations increased so exponentially while others are not? Why is there now a huge fine for publishing material that could offend the intellectual and social development of a minor and not for publishing pornographic material that is not appropriately labeled? Though the government’s motivations in this respect may not be clear, what is clear is that such arbitrary changes to the law without any rationale cannot be considered permissible interference with freedom of expression when the changes do not seek to achieve legitimate goals as set out by Article 10, paragraph 2.

The registration requirement and fines also do not satisfy the most important requirement of Article 10 – that any measures must be “necessary in a democratic society.” The European Court has stressed that exceptions to freedom of speech “must be narrowly interpreted and the necessity for any restrictions must be convincingly established.” The Observer and the Guardian v. United Kingdom, Series A, No. 216, 14 Eur. H.R. Rep. 153, para. 59 (1992). Thus, for a restriction on speech to be “necessary in a democratic society,” a government must demonstrate: (1) a pressing social need; (2) proportionality between the restriction, including legal penalties, and the aim pursued; and (3) that the reasons for the restriction are relevant and sufficient under Article 10, section 2. See, e.g., The Sunday Times v. United Kingdom, Series A, No. 217, 14 Eur. H.R. Rep. 229, para. 62 (1992); see also Tolstoy Miloslavsky v. United Kingdom, Series A, No. 323, 20 Eur. H.R. Rep. 442, para. 51 (1995).

The first prong requires that “the interference… correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression.” See The Sunday Times v. United Kingdom, 2 Eur. H.R. Rep. 245, para. 67 (1979). That is not the case here. Judging by the government’s proffered rationales – ease, efficiency, and accountability – the draft provisions do not reflect such a need. Although it may be the case, as the government claims, that administration of the previous law was not entirely efficient, that does not create a “pressing social need” that outweighs freedom of expression. That the government has trouble enforcing compliance with the 2003 Law’s provisions does not give them license to implement requirements that may chill speech. More importantly, because these freedoms are paramount, the need for restrictions must be established convincingly; the government bears a high burden. That burden has not been met here. Even taking the government’s rationales at face value, the reasoning is not so compelling that the need for the restrictions becomes apparent.

The second prong, requiring proportionality between the restriction and the aim being pursued, is similarly not met here. In other cases, proportionality has been considered in

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 7

light of monetary penalties called for by other crimes. Measuring a crime and its penalty against another crime and its penalty gives a good sense of whether the fine suits the violation. For example, it has been noted that the maximum fine on perpetrators of serious violence, as given to their victims, is approximately 16,819 Euros. Karhuvaara and another v. Finland, Eur. Ct. H. R. 53678/00, para. 37 (2004) . This would equal roughly 1.387 million dinars. Under the draft law, in contrast, the maximum penalty possible for failing to register one’s media outlet, or for registering an outlet under the same name as an existing outlet, is twenty million dinars. See Amendment 3 to Draft Law. This is approximately 242,484 Euros – more than fourteen times greater than the awards to victims of serious violence. This is greatly excessive. One can imagine that there must be other ways to keep tabs on media outlets for enforcement purposes short of intrusive registration requirements that lead to state control and interference. These are extreme measures to take in light of the purported goals. The proportionality prong is not met.

The third prong is also not met. The new provisions in the Draft Law are not relevant or sufficient under Article 10, section 2. They are not narrowly tailored to achieve the government’s goals, which are arguably not even legitimate themselves. The registration requirements are burdensome. The fines are similarly excessive. And, perhaps the worst penalty in light of the spirit of Article 10, is that for any violations of the new requirements, the outlet must either voluntarily stop publishing or be forced to do so. Even if the publishing ban is only temporary, it may have a waterfall effect whereby other outlets become concerned about the penalty and thus comply without question to the requirements. This would not bode well for the future; complying without question would severely impact the free expression and free speech.

The heavy fines for publishing in violation of Article 37 also impose too great a restraint on freedom of the press. Article 37 prohibits a media outlet from “proclaim[ing] a person guilty of or responsible for an offense prior to a final ruling by a court or another competent body.” Public Information Law, Official Gazette RS 43/03, art. XXXVII (April 22, 2003). The new and enhanced penalties for violating this section are particularly heavy: a fine of “25% to 100% of the accumulated value of the publication as delivered to distributors on the day on which information was published and the value of the advertising inventory sold in that particular issue” will be imposed on the founder. See Amendment 3 to Draft Law (amending art. IV of the Draft Law and creating art. XCIIc in the Law). If the allegation is published on the front page of a publication, the founder faces a fine totaling the accumulated value of circulation as delivered to distributors as well as the value of the advertising inventory over a seven-day period starting on the day of publication. An additional 200,000 to two million dinar fine will be imposed against the responsible person in the founder as well as the editor-in- chief of the outlet. There are thus many ways an outlet will be penalized for this offense, and the fines are quite encompassing.

Furthermore, there is no guidance offered on the manner of deciding whether there has been a violation of Article 37 in the first place. The prohibition on proclaiming a person “responsible for” an offense prior to a court’s ruling is quite vague. A publication could claim that a person is responsible for an offense in a broad sense without actually accusing that person of committing a crime. For example, one might say that the government is responsible for a population’s unrest and rioting because it is not serving its people. Yet, this is not actually

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 8

accusing the government of committing riots. Similarly, if a publication references the opinion of another person or publication that an alleged perpetrator has committed a crime before being so proven, shall that also be considered a violation? At what point does a journalist’s value judgment cross the line in such a way that there has been a violation? The law’s vagueness provides no guidance.

The new monetary penalties bring this problem into stark relief. They are manifold and tremendous. The founder, the responsible person, and the editor-in-chief will all face large fines. The range in which a founder might be fined increases from 25 to 100 percent. The range in which a responsible person and an editor-in-chief might be fined is from 200,000 to two million dinars. Those are very large ranges, and, again, there is no guidance. The proffered justification is to allow a court discretion to consider the circumstances of each case -- but discretion is not always a good thing. If it can be used to impose the maximum penalties in a case where the court -- or the government -- simply does not like what a publication had to say, then that discretion is being used to punish speech in violation of Article 10. The practical effect of this provision will be the stifling of the media, and a greater tendency toward self-censorship by media outlets that cannot remotely afford the fines that could be imposed after the amendments. Outlets publishing opinions that a court decides are violations may be forced into bankruptcy. Outlets considering publishing opinions that might be violations will censor themselves for fear of being prosecuted and going bankrupt. This restraint on freedom of the press is too great.

The registration requirements also will result in too much interference with the media’s independence. International Law has been recognized as requiring that media bodies be independent from state control. See Global Campaign for Free Expression, Article 19,

COMMENTS ON THE DRAFT BROADCASTING ACT OF THE REPUBLIC OF SERBIA, at 5, available at

http://www.article19.org/pdfs/analysis/serbia.bro.01.pdf (Campaign for Free Expression”) Although the media outlets themselves may not be directly state-controlled under the Draft Law, the practical effect of proposed Article 14 heavily diminishes media independence. Article 14 requires the registry of media outlets to submit a monthly report with data on media founders at the request of the “republic administrative agency in charge of the public information affairs.” Draft Law, art. II. This agency, because it is characterized as republic and headed by a Minster, is presumably run by the state. The information can then be used to institute proceedings against the founders and halt publication; thus, even if the media registry were maintained by an independent body, it can be used by the state to interfere with and curtail free expression.

Furthermore, the media registry itself is not sufficiently independent. Regardless of who ultimately runs the registry, it is subject to the government’s control. One of the proposed amendments requires the Minister in charge of public information operations to pass a rulebook on keeping the Register of Media Organizations. See Amendment 6 to Draft Law (amending art. VII of the Draft Law). There is no further guidance; this leaves an enormous amount of discretion to the Minister. This discretion creates potential for abuse and even greater state control, particularly when the press outlets in question are reporting on the actions taken by the government. The government could deny registration or revoke registration according to whatever provisions appear in this rulebook, thereby controlling what is printed in the media by

ANALYSIS OF 2009 AMENDMENTS

July 28, 2009

Page 9

allowing only approved outlets to publish. This is certainly not necessary in a democratic society, nor is it desirable.

Moreover, as a general matter, it is important to concentrate on what the effects of the registration requirement will be. The European Court has frequently and consistently emphasized the importance of a free and vigorous press. Jersild v. Denmark, Series A, No. 298, 19 Eur. H.R. Rep. 1, 31 (1995). The independence and vigor of the press will be undermined by provisions that permit the government new powers to shut down publications or impose potentially ruinous fines. This is even truer if the government is proposing the new provisions in an attempt to deter potential violations. Even if a publication would not violate any provisions of the law, if its founder or editors are concerned about that possibility and the result for a potential violation is a very hefty fine, this will lead to self-censorship. Outlets will be overly cautious to avoid possible infringement. The Draft Law’s new provisions, therefore, do not comport with the international norms set forth by Article 10 of the European Convention on Human Rights.

It also is instructive to note that registration requirements that could force media outlets to cease publication are outside the norms of other European states. See Organization for Security and Co-operation in Europe (OSCE), SPECIAL REPORT ON REGISTRATION OF PRINT MEDIA IN THE OSCE AREA (March 29, 2006) (the “OSCE Special Report”). By choosing a registration system in lieu of basic notification, a state grants itself “discretionary powers over the existence of a single newspaper” or the “shape and scope of the whole media space.” Id. As a result, registration allows a government to refuse registration arbitrarily, on the basis of personal or political considerations.

If Serbia were to implement the Draft Law, it would join only Uzbekistan, Tajikistan, Belarus, Kazakhstan, and the Russian Federation in requiring print media outlets to register in a substantive way that could lead to loss of the right to publish. In Uzbekistan and Kazakhstan, for example, all forms of media must submit details about the outlet, its intended audience, tasks, goals, equipment suppliers, and sources of financing, and must provide additional documentation about the founding documents themselves. Belarusian law also requires non-governmental media outlets to repeat the entire registration process after certain changes in publication details. Not only would a burdensome informational requirement bar many independent outlets from initial registration, but it may also prohibit many such outlets from remaining in the market following insignificant changes to structure or audience. Tajikistan allows the registration authority to interpret fees on a case-by-case basis, based on other national laws. This arbitrary, subjective regulatory scheme opens the door for government discrimination against the independent media for nearly any reason. Uzbekistan’s registration process requires payments on a sliding scale of up to fifty times the national minimum wage. See OSCE Special Report at 7 (stressing that unlimited or disproportionately high fees are discriminatory alone).

In other states, print media outlets must notify an independent governmental body that they have entered the market. In Bulgaria, for example, new print media outlets send