The Media in South-East Europe a Comparative Media Law and Policy Study

The Media in South-East Europe A Comparative Media Law and Policy Study

Beate Martin, Alexander Scheuer, Christian Bron (eds.) A Comparative Media Law and Policy Study The MEdia in South-East EUrope – – EUrope South-East in MEdia The The Media in South-East Europe Comparative Media Law and Policy Study

Based on Country Reports from Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Kosovo, Macedonia, Moldova, Montenegro, Romania and Serbia

Conducted on behalf of the Friedrich Ebert Foundation, Berlin – Regional Project Dialogue South-East Europe

By the Institute of European Media Law e.V. (EMR), Saarbrücken/Brussels, with the assistance of national experts from the countries concerned.

Foreword 3

Foreword ment that is both immune to a higher degree against economic vulnerability as well as un- The media are of outstanding importance for due political infl uence and better suited to our European democracies – and certainly the overarching and individual function of the also beyond them. They are considered to be (respective) media. of the highest relevance for the formation of We would wish to acknowledge the sup- opinion, both individually and collectively, and port that has been offered by national experts a basis on which the citizens rely when gath- drafting the country reports, by stakeholders ering information and, subsequently, when who were available for discussing preliminary exercising their role in the democratic pro- results of those reports as well as by the resi- cess, mainly through voting in elections and dent representatives of FES in the South-East referenda. European countries which were included in Because the potential infl uence of the me- the analysis conducted. dia hence can hardly be underestimated, it is necessary to continue efforts to bring a con- Berlin/Saarbrücken, April 2011 siderable level of transparency into the conditions under which the media, foremost the press, broadcasting, online services and fi lm, Beate Martin Thomas Kleist function – entailing both the media law and Director Attorney at law policy framework as well as other conditions FES Kosovo Director EMR which have an impact on their actual practice. Given the fact that current research on the state of the media in South-East Europe has been identifi ed as a well-timed exercise, not only because of the approximation of this region to the European Union, but also due to the eminent relevance of the media for the future development of the “younger democracies” themselves, the Friedrich Ebert Foun- dation – Regional Project South-East Europe has commissioned the Institute of European Media Law to conduct a study which should not only explore the market and legal conditions of the media sector in the countries concerned, but also identify suitable remedies that could be suggested in order to help improve, and overcome possible shortcomings in, the situation actually encountered. We fi rmly believe that the present study can contribute to an enhanced, fruitful and constructive dialogue, which should lead to achieving signifi cant progress in the short to medium term. And this should be in a number of fi elds that are crucial for a develop- 4 The Media in South-East Europe – Comparative Media Law and Policy Study The Media in South-East Europe – Comparative Media Law and Policy Study 5

Table of Contents

Foreword Beate Martin and Thomas Kleist ...... 3

Preface Alexander Scheuer ...... 7

Executive Summary ...... 11

A Context and Framework Alexander Scheuer, Christian M. Bron and Shari Kind ...... 13

B Summaries of the Country Reports Christian M. Bron ...... 31

Albania - Ilda Londo ...... 33 Bosnia-Herzegovina - Radenko Udovicic ...... 41 Bulgaria - Evgeniya Nikolova ...... 55 Croatia - Nives Zvonaric ...... 71 Kosovo - Vjollca Krasniqi ...... 77 Macedonia - Borce Manevski, Andriana Skerlev-Cakar ...... 83 Moldova - Nadine Gogu ...... 91 Montenegro - Daniela Seferovic ...... 101 Romania - Manuela Preoteasa ...... 115 Serbia - Slobodan Kremenjak, Milos Zivkovic ...... 123

C Comparative Analysis Alexander Scheuer ...... 131

D Conclusion Alexander Scheuer ...... 147

Annex Questionnaire ...... 149 List of Abbreviations ...... 153

About the Authors ...... 155 6 The Media in South-East Europe – Comparative Media Law and Policy Study Preface 7

Preface of the media law and policy situation in the ten countries covered. After the beginning of the democratisation process in the 1990s, A report on Albania, published by the Eu- these countries had to tackle a number of ropean Commission against Racism and In- challenges in order to establish a media or- tolerance, wants to see the media being en- der along the lines of democracy, the rule of couraged to employ more comprehensively law and existing European standards, e. g. the established ethical standards, particularly state broadcasting should be transferred to in the context of racist expression; the me- a public service institution, state-controlled dia authority in Bosnia-Herzegovina has had print media should become free and respon- to deal with choosing the right approach to sible, market revenue-funded and organised react to the highly controversial content of a in such a way as to ensure that they could live programme broadcast by the public service up to their “public watchdog” function, etc. media; in Bulgaria, the acquisition of an im- To bring greater transparency to whether and portant commercial broadcasting organisa- to what extent the necessary progress has tion has been closed; the Croatian Electronic been achieved, also through devising the un- Media Law, as modifi ed, now also deals with derlying media law and policy concepts and the protection of encrypted media services; in their application in practice, and what the Macedonia, the Rulebook on the protection remaining challenges are – this shall be the of minors from programmes that might harm objective of the present analysis. The study is their physical, mental or moral development based on country reports drafted by national was adopted; on complaint by journalists, the experts (“correspondents”) that have been European Court on Human Rights found that elaborated on the basis of a detailed ques- for quite some time the independence of the tionnaire developed by the EMR in order to public service broadcaster in Moldova had not allow for the greatest possible comparability been suffi ciently guaranteed; in Montenegro, of the information gathered.2 Each report fi rst amendments to the Law on Electronic Com- looks into the political and market situation munications have fi nally paved the way to an under which the different media function, i.e. additional distribution of radio frequencies; press, broadcasting, Internet and electronic the contest for fi lm project subsidies has start- communications, and fi lm, and then goes on ed in Romania; the Serbian Law on Public In- to describe the relevant legal framework and formation has been amended – these few ex- the underlying media policy options. With amples of media law and policy related news, the aim of providing for a certain matrix or reported on mainly at the beginning of 20101 “benchmark”, the EMR provided the corre- and taken as a starting point for this study, spondents with a description of the relevant raised the important question of what, beyond the importance of the individual events 2 The approach adopted for present purposes can be consid- portrayed, these developments actually mean ered well-established; it has been successfully applied also in view of a number of studies executed by the EMR in past for the situation of the media in South-East years, see for instance: EMR et al., Public Service Media Ac- cording to Constitutional Jurisprudence – The Human Rights Europe. and Constitutional Law Dimension of the Role, Remit and In- It is the primary intention of the pres- dependence, 2010; HBI/EMR, Study on co-regulation measures in the media sector, 2006; EMR/ZEI, Media Market Defi nitions ent study to undertake a thorough analysis studies, 2003 and 2005; EAO (ed.), IRIS Special “The Public Ser- vice Broadcasting Culture”, 2007; EMR/ZIK (Weber/Roßnagel/ Osterwalder/Scheuer/Wüst), Kulturquoten im Rundfunk, 2006; 1 For more (recent) information see the IRIS Merlin database, Roßnagel/ Kleist/Scheuer et al., Die Reform der Regulierung available at: http://merlin.obs.coe.int. elektronischer Medien in Europa, 2007. 8 The Media in South-East Europe – Comparative Media Law and Policy Study

body of European law instruments, covering also should be made known, and might also both the Council of Europe and the European be a feasible approach for another one. Union. It is of utmost importance for every kind In order to inform ourselves of the geo- of study, particularly in the media fi eld, to graphical scope, topics and approaches as strive for the highest possible objectivity well as the results of research that has already when it comes to portraying the factual situa- been undertaken in relation to the media in tion. However, such a goal is not always easy the countries at hand, the EMR has investi- to achieve: while it may be argued that the gated former studies – as far as these have de scription of the existing legal framework been accessible for being held in the English would cum grano salis almost obviously lend language. This has helped in particular with a itself to a neutral approach, those involved in view to the design (structure and content) of matters of law and policy, not only in the me- the developed questionnaire. dia sector, will be familiar with a certain bias The EMR is perfectly aware of the fact that that cannot always be excluded – be cause the the sample of countries chosen for this study selection of issues tackled, the manner of pre- shows a very high degree of diversity – and this senting them, or the diffi culties of interpreta- is certainly true in many ways, among others: tion that are sometimes encountered, are still some of the countries have already become an inherent feature of information processing. Member States of the Euro pean Union, while These issues are, of course, also an important others are more or less advanced in the pro- topic when it comes to media coverage (and cess of accession; some countries have made the analysis thereof). considerable progress, after democratisation, The approach adopted by EMR, also for in the formation of a stable state, others have the present study, aims at striking the right only recently undergone segregation or are bal ance in this respect, and this has been vested with a rela tively complex federal struc- made operational in several ways: correspon- ture, bringing about risks of imbalance; some dents that were addressed as contributors for countries may be considered as having ben- the respective country reports are generally efi ted from a comparatively healthy economic ex perts with whom we have already been situation for a couple of years already, in oth- collaborating some or even several times be- ers, mainly due to diffi culties following quite fore and whose related works have been suc- signifi cant political tensions, the market can cessfully scrutinised by the interested parties; be regarded as being still in an infant stage. thereafter, EMR has consulted their own or Therefore, it was seen as important to look third party information in order to assess the into each situation in its own right. Neverthe- comprehensiveness and correctness of the re- less, from the outset, there is no reason to ports; national experts have sought reac tions exclude the fact that experiences gained in from stakeholders, as well as from the repre- one or other country – irrespective of, or even sentatives of the Friedrich Ebert Foundation because of, the actually existing, determin- (FES) in the respective countries, on their draft ing political, economic and cultural factors reports and the main conclusions contained – could prove relevant for other countries, therein. too. Not least, there are a number of (almost) But – almost naturally – there remains a common denominators that, in theory, could certain leeway that should also be given to lead to the assumption that a best-practice national experts, in the way that they have model encountered in one or more countries assessed the situation at hand, and this im- Preface 9 plies that some form of value judgements must eventually be made. To give but one example, which refers to recent discussions in several Western European countries on the construction of the fi nancing instruments for public service media: it may be considered preferential for the fulfi lment of the public service mission, on the one hand, that recourse to the fi nancing by selling airtime for TV advertising is being limited or com pletely ruled out but, on the other hand, the subsequent and possibly unavoidable increase in dependency of State (government and/or parliament) decisions on the funding, which may be linked to such regulatory decision, could raise (additional) concerns as re gards the independence of organisations from undue State infl uence. In many cases, ap praisal of this or similar developments will be made, against the back ground of the underlying (implicit) culture of governance existing in a given society (or parts thereof, like media enterprises or the people working in those undertakings).

Therefore, we tend to consider national experts, especially if their conclusions are supported by feedback given to their work from the parties concerned, to be well-placed for such sometimes indispensible evaluations. In any event, it is quite clear that it will not be the actual wording of a media law, that is decisive alone, but the way that enshrined freedoms are guaranteed and lived, and foreseen responsibility is assumed, which in the end will allow us to draw the whole (big) picture. 10 The Media in South-East Europe – Comparative Media Law and Policy Study Executive Summary 11

Executive Summary The main fi ndings of the country reports are summarised in the chapter “Comparative This study on “The Media in South-East Eu- Analysis” to which the reader is kindly referred rope” is a project conducted by the Institute of for further and more detailed information. European Media Law (EMR) on behalf of the Suffi ce it here to note that quite obviously the Friedrich Ebert Foundation (FES) – Regional countries into whose media systems research Project South-East Europe. It aims at bringing has been conducted vary in numerous ways, greater transparency to the situation of media not only as regards size, economic strength, law and policy of Albania, Bosnia-Herzegov- importance of ethnic minorities etc., but also ina, Bulgaria, Croatia, Kosovo, Macedonia, when looking into the market situation of Moldova, Montenegro, Romania and Serbia and the legal framework for the media. This by describing and analysing the relevant le- latter is mainly based on some constitutional gal and regulatory framework, portraying the law provisions and specifi c laws covering the actual practice of the media and developing four media sectors. In addition, the role of suggestions on how to improve the current self-regulation, in particular as far as the press conditions. and broadcasting are concerned, differs. The study is mainly based on country re- It appears rather diffi cult to identify either ports that have been drafted by national ex- specifi c countries or specifi c media for which perts on the basis of a questionnaire devel- it could be said that the current situation oped by the EMR. Besides the present publi- presents itself as at least satisfying. The rea- cation, which contains a review of previously sons that could possibly serve as explanations conducted research on the topic as well as an are manifold: in some instances, the relevant overview of the main fi ndings of the Europe- sector(s) hardly give the impression of being an Union’s reports in the context of enlarge- economically viable to a suffi cient degree, in ment and neighbourhood policies (chapter A some others and partly in addition to this fi rst – Context and Framework), summaries of the aspect, the media seem not to be living up to country reports (chapter B), and a compara- their role – a perception which inter alia may tive analysis (chapter C), the project entails be linked to a lack of independence not only further elements, i.e. a document outlining from political, but also from economic forces the European media law and policy standards and an ensuing decrease in relevance attrib- (“benchmark”) and, fi nally, the full country uted to them by the citizens as readers, listen- reports, these latter parts are made available ers and viewers. as online publications exclusively. There remain a certain number of ele- The national experts have sought differ- ments where the national legal and regula- ent forms of feedback, both as regards their tory frameworks are not yet fully in line with initial country reports and the proposals European standards, thus, additional efforts made for remedying possible shortcomings in are needed to improve the legislative frame- regulation and practice of the media, includ- work governing the press, broadcasting, on- ing, fi rstly, through communication with the line services and fi lm. Furthermore, even in resident representatives of FES in the coun- respect to certain elements of the media legal tries concerned, and, secondly, in discussing fundaments for which the European stan- their suggestions with (representatives from) dards leave room for different solutions to be stakeholders of the sectors concerned, i.e. the found at national level, i.e. where these are press, broadcasting, online media and fi lm. not formulated in such a manner as to offer 12 The Media in South-East Europe – Comparative Media Law and Policy Study

“only one” solution, the margin of apprecia- It is on the basis of such suggestions that tion theoretically enjoyed by the legislator or it is envisaged to foster the necessary dia- other regulators in the countries concerned is logue among relevant stakeholders at nation- either not used at all or has been effectuated al level and to strengthen the freedom of the through means which cannot be regarded as media so as to ensure that they can fulfi l the suffi ciently supportive. remit which is assigned to them under condi- Of course, one should be clear about the tions that are favourable for economic stabil- fact that it is not the structure and wording of ity, diverse and culturally rich contents and a the relevant legislation and regulation per se political debate that is objective and fair and which would suffi ce to obtain the necessary thus apt to improve the democratic processes information for concluding on the situation of in the states, in the region and vis-à-vis and the media and its different sectors in a given within the European institutions. country or region – but, additionally, specifi c attention must be paid to the actual implementation in practice. Moreover, the legal and regulatory framework cannot, as such, provide for all important remedies – nevertheless, if the legislation in place does not contribute to a healthy development of the media systems, it will become increasingly diffi cult to ensure a healthy state of the media. These fi ndings draw attention to the proposed remedies for overcoming diffi culties and defi ciencies in the legal framework as well as in media practice – these recommendations are presented in their integral form in the country reports but are also summed up in the Comparative Analysis chapter. Mention should be made that for a couple of issues the regulatory approaches adopted in several countries bear the potential of best practice approaches and therefore could be of high interest for the future development in the neighbouring countries as well. Adding to the necessary action by the legislators/regulators and apart from efforts that the media need to make themselves, it could be said that there remains a need to foster the media in South-East Europe through increased support for self-regulation – in-house, within a sector, embracing several sectors – and through continuous engagement of initiatives from the relevant societal groups, such as media and political NGOs, consumers and citizenship in general. A Context and framework 13

A Context and framework I Studies already executed

Alexander Scheuer The EMR has analysed several recent media (law) Christian M. Bron studies, either covering more specifi c topics or Shari Kind dealing with more general regulatory approaches. Within this framework of relevant research on The present study aims at analysing different the media in South-East Europe, which was ac- aspects of the situation of the media in ten cessible to us because the studies are being held South-East European countries. It is based in the English language, nine studies are assessed on country reports by national experts (cor- in greater detail. These studies have been chosen respondents) that have been elaborated on as they give a vivid impression of the different ex- the basis of a questionnaire that was devised isting approaches when it comes to analysing the by the EMR. The structure of the latter3, on media (law) landscape. Mainly, they have been the one hand, has been informed by the of interest for us because these informed the ap- design and results of several studies already proaches taken in the present study.4 conducted, (infra I) which we examined at the outset of the present exercise and, on the 1 Content, main results and approaches other hand, with a view to the benchmark adopted for studies already undertaken that exists in the form of European legal and policy instruments. In order to give additional 1.1 “Media Sustainability Index 2010” insight into a further perception of the situa- 5 tion of the media in the majority of the coun- The “Media Sustainability Index 2010 (MSI)” , tries forming part of this study, the fi ndings of fi rst to mention, has recently been published the European Commission, as established in by the International Research & Exchanges the course of the preparation for accession, Board (IREX). IREX, in co-operation with the are summarily portrayed here as well (infra United States Agency for International Devel- II). This introduction concludes with the out- opment (USAID) and various media experts in line of the methodological approach that has different countries, presents an analysis of the been adopted both for the establishment of media environment in 21 countries of Europe the country reports and for the development and Eurasia during 2009 and shows trends in 6 of recommendations, which, in their turn the media sector since 2001. The MSI is the aim, at remedying possible shortcomings of 4 Currently, there are two – not yet fi nalised – studies also to be the present situation (infra III). As has been mentioned: “INDIREG – Indicators for independence and effi cient laid down in the preface, the study – besides functioning of audiovisual media services regulatory bodies for the purpose of enforcing the rules in the AVMS Directive” (http://www. offering a comprehensive stock-taking and indireg.eu/) by the Hans Bredow Institute for Media Research at the University of Hamburg et al., which deals with the issue of the analysis – purports to identify best practices independence of regulatory authorities and focuses on 43 coun- that may inform the relevant stakeholders in tries including, except for Moldova, all those here examined; and “mediadem” (http://www.mediadem.eliamep.gr/) which tries to the countries when adapting existing or for- identify policy tools and instruments that can support the development of free and independent media and focuses, inter alia, on mulating new media policy approaches. the countries examined here: Bulgaria, Croatia and Romania. As an ongoing project, also the work of the European Journalism Centre titled “Media landscapes” (http://www.ejc.net/ about/press_releases/media_landscapes_series_relaunches) should be pointed out. 5 The MSI of 2010, including the different country studies, is 3 For the sake of transparency, the approach aimed at with the available at: http://www.irex.org/programs/MSI_EUR/ questionnaire preparing for the country reports shall be pre- 6 Annual scores of the MSI for 2001 through 2009 are avail- sented here as well (see Annex). able at: http://www.irex.org/programs/MSI_EUR/archive.asp 14 The Media in South-East Europe – Comparative Media Law and Policy Study

only report that covers all the countries also of IREX show a special focus on the produc- examined within the present EMR study. tion of and access to news and information The results of the MSI are based on a scor- within traditional media as well as new me- ing system7: IREX allocates fi ve objectives that – dia (especially in the fi elds of journalism and/ in view of IREX – shape a successful media sys- or distribution). The MSI provides im portant tem. The objectives are: “Freedom of speech”, information for the media (themselves), the “Professional journalism”, “Plurality of news”, “players” in the media policy sector (policy- “Business management” and “Supporting in- makers, advocates, implementers) and the stitutions”. Each objective consists of from sev- citizens by showing the strengths and weaken to nine indicators. For example, a “freedom nesses of the media landscape in the coun- of speech” indicator in the sense of the fi rst tries observed. objective is “the existence and enforcement of legal and social protections of free speech”. 1.2 “Kosovo and the Media” Each indicator is scored from 0 (= country does not meet the indicator; government or social “Kosovo and the media”8, published by the forces may actively oppose its implementation) Macedonian Institute for Media and carried to 4 (= country meets the aspects of the indica- out by the South-East European Network tor; implementation has remained intact over for Professionalisation of Media (SEENPM) in multiple changes in government, economic 2008, is a study that nearly covers all coun- fl uctuations, changes in public opinion, and/or tries (also) examined by EMR, except for changing social conventions). The points for all Kosovo, but follows a different, more specifi c individual indicators are averaged to obtain a approach. single, overall score for each objective. These The project has mainly focused on press scores are then averaged to provide an overall analyses in the south-eastern European coun- score for the country. The overall scores range tries underlining the main characteristics of from 0-1 (unsustainable, Anti-Free Press) to 3-4 the media coverage regarding the Kosovo (sustainable). As an example: The overall score situation. Each report fi rstly presents both the for Albania is 2.11, consisting of the “freedom political events and stances of the politi cal of speech” score: 2.16, the “professional jour- parties in the single countries regarding the nalism” score: 2.18, the “plurality of news” Kosovo as well as “basic facts” of the media score: 2.19, the “business management” infrastructure (e.g. the media ownership struc- score: 1.73 and the “supporting institutions” ture, potential political infl uences and human score: 2.29. This means, in the wording of resources capacity), in order to describe the IREX, an “unsustainable mixed System”, which background against which the portrayal of de- is a country that minimally meets objectives, velopments in Kosovo has been taking place. with segments of the legal system and govern- The basic methodology was then a quantita- ment opposed to a free media system. tive content analysis of the newspaper Art.s The MSI can be qualifi ed as an overlap- written in the period around the declaration ping study that deals with different aspects of of Kosovo independence by observing mainly the media landscape. However, the objectives formal attributes of the Art.s (e.g. location of

7 The methodology of the MSI 2010 in detail is available at: 8 The English online version of the book “Kosovo and the Me- http://www.irex.org/ dia“, released on 15. November 2008, is available at: http:// programs/MSI_EUR/2010/EE_MSI_2010_Intro_ES_Methodol- www.mim.org.mk/attachments/095_media-coverage-kosovo- ogy.pdf ang.pdf A Context and framework 15 the text, text genre and author, source type, directed at the goal and could easily exchange content, occasion for the text), in order to pro- their roles.” vide grounds for identifi cation and evaluation “Kosovo and the media” (like MSI) is broad of standards for journalistic production. The in the sense that lots of countries have been fi ndings were enriched with additional meth- investigated but, more narrowly, as a specifi c ods encom passing different aspects of media topic, namely media coverage has been cho- coverage and complementing the qualita- sen for examination. The study showed that tive di mension of the research. The different the “issue” of Kosovo did receive the ap- newspapers themselves have been selected, propriate attention according to its political based on different aspects such as political or signifi cance in the media coverage, but it is ethnic affi liation of the newspaper, the edito- linked to, and therefore its coverage varies rial policy, daily circulation and infl uence on according to, the ethnic background of the readership. In Montenegro, for example, high readership and political climate (stances of media interest was present only in the pro- the state authorities). Serbian daily named “Dan”, while the other newspaper observed, “Vijesti”, displayed a 1.3 “Labor Relations and Media” balanced approach. The report con cludes that “the fact that Kosovo Art.s occupy pages The Independent Journalism Centre-Moldova reserved for world news in ‘Vijesti’, while in evaluated within SEENPM the obser vance of ‘Dan’ they are placed together with domes- labour laws in the media sector to identify tic politics creates the image of two realities problems in the way such norms were applied in Montenegro. However, as the analyses to so-called “typical” and “atypical” employ- showed, repeatedly represented stances of lo- ees, to propose solutions for the problems cal parties on Kosovo were often only a topic identifi ed and to share best practices through- in the ‘daily war’ for gaining political points out the region. The results are presented in

Graph 1: Identiﬁ ed Studies and Their Respective Geographical Scope

* Study covering all EMR observed countries 16 The Media in South-East Europe – Comparative Media Law and Policy Study

the 2008 publication “Labor Relations and presented two reports: “Television across Eu- Media: Analysing patterns of labor relations rope: regulation, policy and independence” in the media of SEENPM member countries”.9 of 200510 and the 2008 follow-up report: The country reports focused on the legisla- “Television across Europe: more channels, less tion regulating labour relations in the media, the independence”.11 implementation of the legislation in practice (in- The 2005 report includes a regional cluding the current status of typical and atypical overview and 20 individual reports focus- media workers), censorship and self-censorship ing on the state of both public service and as an effect of labour relations as well as the commercial broadcasting television, the existence and effectiveness of journalists’ trade 2008 report mapped the main changes in unions. A reference point was the “typical” or broadcasting legislation, policy and mar- “atypical” employee. Employees in this regard kets over the (then) past three years (af- were fully-employed staff of TV and radio sta- ter the publication of the initial reports in tions, newspapers, news agencies and online 2005) of nine of the 20 countries previous- publications, freelancers working for various ly analysed, and assessed the progress (or media organisations, managers of news outlets, lack of it) that these countries had made trade union representatives, staff of non-gov- in improving the independence and plu- ernment organisations and media regulators. ralism of their broadcasting systems. The “Labor relations and media” followed, like countries observed in 2005 include nearly the above-cited study “Kosovo and the me- all countries monitored also here, except dia”, an empirical approach, but was based on for Kosovo, while those observed in 2008 issues of law, with regard to a speciﬁ c topic. include only four of them, namely Albania, Within this topic, several aspects beginning Bulgaria, Macedonia and Romania. In the from the existing labour regulation up to its ap- single country reports of 2005 the follow- plication have been observed. The observations ing topics have been tackled: “the general of the country researchers showed, in general, broadcasting regulation and structure” that respect for journalists’ labour rights seems (e.g. regulatory authorities for the televi- to be better in public media outlets than in pri- sion sector, licensing and broadcasting vate ones, that the most common violations of independence), “regulation and manage- labour rights occur in relation to the duration ment of public service broadcasting” (e.g. of working hours/rest time, but also the inad- the public broadcasting system, services equate protection of journalists from dismissal and funding), “regulation and manage- and the problem of imprecise labour contracts, ment of commercial broadcasting” (the especially with regard to job descriptions. commercial broadcasting system, commercial television ownership and cross-owner- 1.4 “Television across Europe”

10 The summary of the report “Television across Europe: regula- The EU Monitoring and Advocacy Program of tion, policy and independence” of 11 October 2005 is available the Open Society Institute (OSI), in co-opera- at: http://www.soros.org/initiatives/media/Art.s_publications/publications/eurotv_20051011/summary_20051011.pdf. tion with OSI’s Network Media Program, has The single country reports are available on the OSI Website at: http://www.soros.org/initiatives/media/Art.s_publications/publications/eurotv_20051011 11 The full publication of the report “Television across Europe: 9 “Labor Relations and Media: Analysing patterns of labor more channels, less independence” of February 2009 is avail- relations in the media of SEENPM member countries” of 15 able at: February 2008 is available at: http://ijc.md/Publicatii/resurse/ http://www.soros.org/initiatives/media/Art.s_publications/pub- Labor_Relations_and_Media.pdf lications/television_20090313/1fullpublication_20080429.pdf A Context and framework 17 ship), “the European regulation” and “the ry approach. General legal topics, such as the impact of new technologies and services” relevant legislation, ownership or regulation (new media, market conditions and digital were mapped. The approach – though limited television). The country reports of 2008 to television broadcasting – is similar to that include the topics “general broadcasting adopted for this EMR study, which (also) pres- environment” (key developments in legis- ents an overarching and general regulatory lation and policy, EU legal provisions and approach with regard to the media situation broadcasting market), “regulation and li- in countries of South-Eastern Europe. censing of the television sector” (regulatory authorities and framework and the 1.5 “Media Landscape of South East Europe” licensing system), “regulation and management of PSB” (legislation and policy, The study “Media Landscape of South East governance structure, funding and edito- Europe 2002”12 was implemented by the rial standards), “commercial broadcasting” ACCESS-Soﬁ a Foundation, Bulgaria, within (regulation and management, ownership SEENPM and presents quantitative “media and cross-ownership, the advertising mar- data” of eleven countries (among which all of ket, editorial standards and independence, those that are also part of the present study) as well as regional and local broadcasting) in South-Eastern Europe to identify basic pa- and “programming” (general provisions rameters of the media scene in the region on on news, general programme production a comparative basis. guidelines, quotas, etc.). “Media data” (or general media infor- The two “Television across Europe” re- mation) in the form of information on me- ports are characterised by a general regulato- dia compa nies and ﬁ gures (such as audi-

Graph 2: Identiﬁ ed Existing Studies and Their Respective Thematic Scope

12 The publication “Media Landscape of South East Europe 2002”, published 2003, is available at: http://www.access-soﬁ a.org/ en/docs/Media%20Landscape.pdf 18 The Media in South-East Europe – Comparative Media Law and Policy Study

ence reach, relevant turn-over and number provisions of the Audiovisual Media Services of broadcasting stations) is presented in the Directive (AVMSD) on audiovisual commer- fi elds of “print media” (e.g. print media cir- cial communications14 based on country re- culation, top ten dailies), “internet media” ports. The analysis is commissioned by DG (e.g. internet penetration rate), “television” Information Society and Media of the Euro- (e.g. television companies and television pean Commission in the context of tender channels), “radio” (e.g. radio companies procedure SMART 2008/0001. The project and radio stations) and “me dia economy” includes two countries also focused on in the (e.g. share of media revenues and number present study, namely Bulgaria and Romania. of full-time media staff). Beside these “facts The fi rst part of this project presents the and fi gures”, the report provided short, to- audiovisual sector, especially the regulatory the-point narrative information on key issues framework, in the individual country and the like libel laws and broadcasting regulation in transposition measures. The second “Moni- the individual countries. toring of compliance” part covers the ac- The study “Media Landscape of South tivities of the television broadcasters and/or East Europe” followed an economic-empiri- providers of on-demand audiovisual media cal approach, as it presented various fi gures services. In the third part (“Assess ment of ef- in the fi eld of media. The quantitative data fectiveness of measures”) the actual imple- of this project show the enormous variety mentation of the relevant rules of the AVMSD of media outlets of the observed time pe- and of the measures taken by the Member riod as dozens of newspapers and maga- State concerned to ensure the application of zines and hundreds of radio and television such rules by media service providers under its stations exist in South-Eastern Europe. As jurisdiction are elaborated on the basis of the every country has one or more nation-wide results obtained during the fi rst two stages of commercial television and radio channels, the country monitoring. At this point, it is es- the broadcasting sector in South-East Eu- pecially the regulatory authorities (and ques- rope is not domi nated by a single state- tions about their independence, regulatory owned channel any more. measures taken, etc.) in the various countries which are observed. 1.6 “Monitoring of AVMS Directive” 1.7 “Political Debate and the Role of the Media” GfK Audimetrie in co-operation with the EMR and its EMR Media Network (i.e. na- In an IRIS Special, entitled “Political Debate tional experts in the media sector) presents and the Role of the Media”15, published and in its “Monitoring of AVMS Directive”13 the edited by the European Audiovisual Observa- compliance of audiovisual media service pro- tory (EAO), the issue of whether the media viders in various Member States with the should be doing what they are able to do

13 More information about the “Monitoring of the compliance by audiovisual media service providers in the Member States 14 Directive 2010/13/EU of the European Parliament and of the with the provisions of Chapter IIa (Art. 3e – 3g) and Chapter IV Council of 10 March 2010 on the coordination of certain provi- of the Audiovisual Media Services Directive (Framework Con- sions laid down by law, regulation or administrative action in tract)” is available at: http://ec.europa.eu/ Member States concerning the provision of audiovisual media avpolicy/info_centre/tenders/archives/index_en.htm. Further- services (Audiovisual Media Services Directive – codifi ed ver- more, it is expected that the results of the individual country sion), OJ 2010 L 95, p. 1. monitoring reports will soon be published on: http://ec.europa. 15 EAO (ed.), Political Debate and the Role of the Media – The eu/avpolicy/info_centre/tenders/archives/index_en.htm Fragility of Free Speech, IRIS Special, Strasbourg 2004. A Context and framework 19 when it comes to political debate was exam- which these obligations are based. The study ined. This IRIS Special is the result of a work- considered broadcasters’ (legal) investment shop under the heading “The Changing Hues obligations in 25 European countries, when of Political Expression” organised by the EAO it comes to supporting cinematographic (pro- and one of its partner organisations, the In- duction). Bulgaria, Croatia, Macedonia and stitute for Information Law (IViR) of the Uni- Romania can be named as the ones dealt with versity of Amsterdam, where partici pants dis- also in the present study. cussed various aspects of political speech and In the publication various aspects relat- the role the media plays in it. The publication ing to the broadcasters’ investments were contains, amongst others, numerous country investigated, such as obligations imposed case-studies by the work shop participants. through legal requirements on broadcasters Kosovo is one of the countries examined and in terms of support for cinematographic fi lm, the only one also dealt with within the pres- the more “voluntarily” engaged-in obliga- ent study. tions of broadcasters laid down in special fi lm “Political Debate and the Role of the Me- funding agreements, the content of the main dia” followed, like the “Labor relations and pro visions or the differences between obliga- media” study an empirical approach with re- tions on public and private broadcasters. In gard to a specifi c topic. But it was – in con- Bulgaria, for example, fi lm funding has been trast to “Labor relations and media ” – not mainly in the hands of the state-run Bulgarian based exclusively on issues of law, as it rath- National Film Centre; and only one provision er came from a socio-political background. has regulated the activity of broad casters in The country case-study dealing with Kosovo respect of direct funding concerning fi lms mapped the role of the media during the riots made for television in the period observed. of March 2004 in Kosovo beginning with the “Broadcasters’ Obligations to Invest in Cin- (not necessarily neutral) broadcast report of ematographic Production” has picked up a the disappearance of three young boys in the special theme and has given (within this spe- Iber River near Mitrovica and the violence that cial topic) an overlapping insight into various followed. It questioned the role and the defi - countries. This approach could be therefore nition of (medial) hate speech in the context qualifi ed as empirical (mainly in the sense of le- of a fragile Balkan region and presen ted vari- gal stock-taking) with regard to a special topic. ous factors that – besides the news coverage In general the study showed that cinemato- – led to the public reaction in March 2004. graphic fi lm funding remains a highly complex theme and that the remit of public service tele- 1.8 “Broadcasters’ Obligations to Invest in vision will continue to play a key role in the es- Cinematographic Production” tablishment of legal obligations as well as the adoption of voluntary obligations. “Broadcasters’ Obligations to Invest in Cin- ematographic Production”16 is another publi- 1.9 “The Public Service Broadcasting Culture” cation of EAO focusing on the ways in which the television industry is required to sup port The publication “The Public Service Broadcast- cinematographic fi lm, and the instruments on ing Culture”17, edited and published by the

16 EAO (ed.), Broadcasters’ Obligations to Invest in Cinemato- 17 EAO (ed.), The Public Service Broadcasting Culture, IRIS Spe- graphic Production, IRIS Special, Strasbourg 2006. cial, Strasbourg 2007. 20 The Media in South-East Europe – Comparative Media Law and Policy Study

EAO in 2007, examined the development of global approach is necessary in two republic service broadcasting, its raison d’être, spects, i.e. both the constitutional frame- and its perspectives in the digital media era in work (particularly with its fundamental 14 European countries to provide an overview and institutional guarantees) and the sec- of the different regulatory models developed tor-specifi c legislation must be included in throughout Europe. Bulgaria and Romania, the presentation, on the one hand and, on two of the countries portrayed, are also sub- the other, the practice of relevant authori- jects of the present study. ties, such as courts, administrative bodies, Each country report described the founda- etc. must be taken into account too; tions of the public service remit, the economic • Secondly, in order to establish an almost and fi nancing model and the decision-making comprehensive picture of the media situa- process. In addition, it examined the infl uence tion in the countries of South-East Europe, of a country’s cultural, political or social as- all relevant sectors with all relevant actors, pects on the selection of the public service in the fi eld of broadcasting, for instance, broadcasting system and its organisational state or public service broadcasters and structures. For example, the pro gramme man- commercial broadcasting organisations at date of public service television in Romania in different levels as well as regulatory bod- 2007 encompassed all general informational ies, should be looked at; and educational responsibilities as well as the • Thirdly, attention has again been drawn supply of entertainment programmes. The to the fact that the analysis of the “pub- Romanian public service television’s indepen- lic law” media order is not necessar- dent sources of income consisted mainly of ily suffi cient in order to identify possible radio and television licence fees plus dona- shortcomings in effectively implementing tions, advertising and sponsorship. Relevant the freedom of the media. Instead, the national and cultural aspects with Romanian “private” media law with the defi nition origin were repre sented with at least 30% in of “internal” relationships between e.g. the programme. journalists and publishers governing is- The study followed a general regulatory sues of working in the media, like labour perspective with a special focus on public ser- law and/or codes of ethics, has an impor- vice broadcasting. It pointed out the connec- tant role to play as well; tion between public service broad casting and • Fourthly, since for present purposes the culture by examining how national rules re- emphasis is being laid on media law and fl ect and account for an important part of the policy issues, it will be important to also actual culture of public service broadcasting. – to the extent possible – hold stock of the economic environment to be encoun- 2 Impact on the presently-adopted tered, globally for the individual econo- approach mies, but also specifi cally in the media sector. However, the present study does These already executed studies have had a not aim at intensively dealing with empiri- certain impact on the design which was cho- cal data on the economic situation, but sen for the structure and approach of the rather will contrast the legal and policy present study – in several ways: framework for the media with already ex- • Firstly, it has been underlined that – when isting market information; media law issues are concerned – a more • Finally, it appears that the general frame- A Context and framework 21

work of instruments adopted at Council the reports provide for an additional insight of Europe level, which mostly elaborates into the perception of the status quo of media on the freedom of expression as enshrined freedom and the related legal framework in in Art. 10 ECHR, but also covers issues, the countries researched in the present study. amongst others, such as the rule of law, For those countries that are already Member governance, culture etc., is merely taken States of the EU, i.e. Bulgaria and Romania, into account; however, this body of legal some recent information is given instead. In and policy acts deserves speciﬁ c attention, the case of Moldova, which cooperates with not least because the body of European the EU in the context of the European Neigh- Union law is not – for all countries pres- bourhood Policy (ENP), the available informa- ently investigated into – decisive (already tion has proven sufﬁ ciently interesting to also and fully). form a starting point in the present context.

II Transposition of the EU acquis, 1 Albania particularly the AVMS Directive Albania applied for EU membership in April It is well known that, before joining the EU, 2009. Council Decision 2008/210/EC19 re- countries have to bring their national laws quires Albania to “[a]lign Albanian legislation into line with the EU acquis, including – in the with the European Convention on Transfron- audiovisual ﬁ eld – the AVMSD. When they tier Television and the Television without Fron- do so, they become also eligible for funding tiers Directive” and to “strengthen the ad- under the MEDIA 2007 programme (cover- ministrative capacity of the National Council ing the period 2007-2013). The candidate on Radio and Television and adopt the strat- countries Croatia, Macedonia and Monte- egy for development of the radio and televi- negro (with concrete negotiations regarding sion sector and an updated national analogue the latter two countries still to start) as well and digital frequency plan for radio and tele- as the potential candidate countries Albania, vision”. The Council also calls on Albania to Bosnia and Herzegovina, Kosovo and Ser- “ensure that electronic communications leg- bia have already made substantial efforts to islation is in line with the acquis and is en- meet European standards on media, and the forced, and take measures to achieve a com- process of reform is ongoing. Information on petitive market for electronic communications their progress towards meeting the member- networks and services”. ship requirements in the audiovisual ﬁ eld is In the Commission’s progress report 2009 provided in the EU’s annual progress reports on Albania, it notices little progress in the or ‘opinions’ for the candidate and poten- area of electronic communications and infor- tial candidate countries.18 The main points mation technologies. The Regulatory Author- of discussion are represented in the follow- ity for Postal and Electronic Communications ing. Besides the studies already undertaken, (AKEP) harmonised all existing licences with the authorisation scheme of the 2008 Law

18 See Communication from the Commission to the Euro- on Electronic Communications in December pean Parliament and the Council of 14 October 2009, En- largement Strategy and Main Challenges 2009-2010, COM (2009) 533, available at: http://ec.europa.eu/enlargement/pdf/ key_documents/2009/strategy_paper_2009_en.pdf; and the 19 Council Decision of 18 February 2008 on the principles, pri- single progress reports of the countries, available at: http:// orities and conditions contained in the European Partnership ec.europa.eu/enlargement/press_corner/key-documents/re- with Albania and repealing Decision 2006/54/EC, [2008] OJ L ports_oct_2009_en.htm. 80, p. 1. 22 The Media in South-East Europe – Comparative Media Law and Policy Study

2008. However, regulations to be implement- better media climate by decriminalising defa- ed for the law on electronic communications mation and libel.21 Finally, in its opinion the are still pending adoption. Internal confl icts Commission points out that Albania needs to within the AKEPs Governing Council have “strengthen media freedom and its indepen- hindered its decision-making process, bring- dence”, and “address the prevalence of politi- ing regulatory development to a standstill. cal infl uences” in the media.22 The Commission attested Albania “progress in the area of information society servic- 2 Bosnia and Herzegovina es”. Amendments to the Criminal Code and the Criminal Procedure Code were adopted, The Commission attested Bosnia and Herze- following the requirements of the Convention govina little progress in the area of informa- on Cybercrime, as well as the Law on Elec- tion society and media. Although the UNES- tronic Commerce and the Electronic Signature CO Convention on the Protection and Promo- Law. However, there has been no progress as tion of the Diversity of Cultural Expressions23 regards legislation on conditional access. and rules on conditions for the provision and The audiovisual policy progress was, in distribution of audiovisual media services and the view of the Commission, “very limited”. radio and TV programmes has been adopted, The National Council for Radio and Television the Commission stated that (NCRT) fi nalised the draft strategy for the swi- “(...) a deterioration of media freedoms in tchover from analogue to digital broadcast- Bosnia and Herzegovina has been observed ing as well as the draft Broadcasting Law. The during the reporting period. Since January, the implementation of the Action Plan on media Free Media Helpline of the Bosnia and Her- reform (already) agreed with the European zegovina’s Union of Journalists has registered Commission and the Council of Europe needs 16 verbal assaults and direct physical attacks, to be stepped up. Measures are also required death threats and other violations of journal- to ensure sustainable funding for the public ists’ rights. This represents an increase of 20% service broadcaster as the collection of licence compared to 2008. The country is ranked in fees remains low.20 115th place on the list of Reporters without The Commission detects in its Analytical re- Borders evaluating press freedom in 173 coun- port 2010 that the main legislative acts in the tries. There has been little cooperation be- fi eld of audiovisual policies of Albania (e.g. the tween local media organisations responsible Law on public and private radio and television for media freedoms. In April the RTRS – the in the Republic of Albania, the Law on digital Republika Srpska public broadcaster – and the broadcasting, etc.) are only partly aligned with Republika Srpska daily newspaper Glas Srpski European standards on media regulation - par- walked out of the association Journalists of ticularly, they are not aligned with the AVMSD Bosnia and Herzegovina, announcing the es- and fail to ensure some of the main standards, tablishment of a separate, Republika Srpska such as guaranteeing the independence of the only, association of journalists.”24 National Council for Radio and Television (the broadcasting regulatory authority) and of the 20 SEC(2009) 1337, Albania 2009 Progress Report, pp. 40 et seq. public service broadcaster. Besides, there is a 21 SEC(2010) 1335, Albania, Analytical report, p. 67. need to ensure freedom of expression and a 22 Commission Opinion on Albania’s application for membership of the European Union, COM(2010) 680, p. 12. 23 http://unesdoc.unesco.org/images/0014/001429/142919e.pdf. 24 SEC(2009) 1338, Bosnia and Herzegovina 2009 Progress Re- 20 SEC(2009) 1337, Albania 2009 Progress Report, pp. 40 et seq. port, pp. 52 et seq. A Context and framework 23

Furthermore, efforts are necessary to imple- information society and media on 18 Decem- ment the legal framework in the area of public ber 2008. Council Decision 2008/119/EC27 broadcasting, to carry out the reform of this sec- has made it a priority to complete tor and to ensure the functional independence “(...) the alignment with the acquis concern- of the Communications Regulatory Authority. ing electronic communications, commerce, sig- The Commission notices in its progress natures and media, information security and the report of 2010 that the public broadcasting Television without Frontiers Directive” [as well system “Board of Governors” failed to adopt as] “the planned review of audiovisual media the statutes of the PBS corporation due to legislation on the basis of public consultation, disagreements over ownership of equipment ensure regulatory independence and guard and revenue-sharing. Since its statutes have against undue political interference.” not been adopted, the PBS corporation could The Commission stated that not be registered, which delayed the reform “(...) freedom of expression, including free- of the public broadcasting sector. The Entities’ dom and pluralism of the media, is provided laws on public broadcasting services are not for in Croatian law and is generally respected. aligned with the State-level law.25 However, threats against journalists working on cases of corruption and organised crime 3 Bulgaria have been increasing. Editors and journalists continue to report undue political pressure.”28 In Bulgaria, the government recently undertook The Commission attested Croatia in gen- some urgent measures in order to implement eral “good progress (...) in the fi eld of infor- the AVMSD in Bulgarian law. The Council of mation society and media”: Ministers had approached all key stakeholders “A good level of alignment has been (e.g. the Council for Electronic Media, the Bul- reached. Efforts need to continue to strength- garian National Television, the Bulgarian Nation- en the capacity of the national regulators to al Radio, the Television Producers Association, implement correctly the legal framework, as the Bulgarian Radio and Television Operators well as to sustain liberalisation of the elec- Association, etc.) to offer their opinions on the tronic communications market.”29 draft legislative acts that needed to be prepared The “good progress” in the fi eld of elec- for the transposition of the Directive.26 tronic communications and information technologies lies especially in the “necessary 4 Croatia implementing legislation” and adoption of the Electronic Communications Act. Liberali- Croatia joined the MEDIA 2007 programme sation of the sector has continued to prog- in April 2008 following the ratifi cation of the ress signifi cantly, in particular in the broad- UNESCO Convention and the alignment of band market. However, the Commission sees Croatian legislation with the acquis. In the a risk to the current EU strategy promoting light of these achievements the Council of Europe’s digital economy by a governmental Ministers (provisionally) closed Chapter 10 on

27 Council Decision 2008/119/EC of 12 February 2008 on the principles, priorities and conditions contained in the Accession Partnership with Croatia and repealing Decision 2006/145/EC, 25 SEC(2010) 1331, Bosnia and Herzegovina 2010 Progress Re- [2008] OJ L 42, p. 51. port, p. 51. 28 See Communication from the Commission to the European Par- 26 Cf. R. Nikolova, Bulgaria – Progress on the Implementation of liament and the Council of 14 October 2009, Enlargement Strat- the AVMS Directive, IRIS 2010-1:10, available at: http://merlin. egy and Main Challenges 2009-2010, COM (2009) 533, p. 36. obs.coe.int/iris/2010/1/Art.10.en.html 29 Ibid., p. 39. 24 The Media in South-East Europe – Comparative Media Law and Policy Study

initiative in the form of a “crisis tax” on mo- caster RTK (Radio and Television of Kosovo), bile services.30 the Independent Media Commission and the The Commission attested Croatia (only) media fund.” “some progress” (...) in the area of informa- The 2009 report states some progress in tion society services and electronic commerce the area of electronic communications: as well as in the fi eld of audiovisual policy: “The Telecommunications Regulatory In the area of information society services Agency has obtained spectrum-monitoring and electronic commerce equipment, enabling it to identify illegal activ- “further amendments to the Electronic ity in northern Kosovo and in the areas bor- Commerce Act have been adopted, aimed at dering neighbouring countries. Mobile tele- completing legal alignment in this fi eld and phony market penetration is at 60%; internet an e-Government Strategy for the period penetration is 5.4%. A third fi xed telephony 2009–2012 has been adopted”, licence was issued in January 2009 but has and with regard to audiovisual policy not yet become operational. Two mobile vir- “preparations for the introduction of digi- tual network operators have been licensed; tal television are under way. The Croatian Au- one is already active in the market. The im- diovisual Centre has been established and it plementation of the sector policy adopted in has joined European Film Promotion. Howev- 2007 is suffering delays.”34 er, some interference in the media landscape Information society services need, according by mainly economic and partly political inter- to the Commission, to be further developed. est groups has continued. Also, anti-compet- With regard to the progress made in the itive State aid to the national broadcaster has fi eld of audiovisual policy and media, the continued.”31 Commission stated: “Good progress” in the fi eld of audiovi- “The laws that cover the media industry - sual policy was also diagnosed in the 2010 the Law on the Independent Media Commis- progress report by the Commission. But inter- sion and the Law on the Public Broadcaster - are ference in the media landscape by economic up for amendment. Re-licensing of broadcasters and political interest groups persists in Croa- has begun: at the end of August [2009], a fi rst tia. Also anti-competitive State aid to the na- batch of 12 long-term licences was approved tional broadcaster has continued.32 for existing broadcasters. The Independent Media Commission is now assessing applica- 5 Kosovo tions for new frequencies. Cable operators in the north are not licensed by the Commission. Council Decision 2008/213/EC33 makes it a The Commission’s independence, in particular top priority to ensure as regards its staff and resources, needs to be “(...) the independence of the regulatory guaranteed in the context of possible legislative bodies in Kosovo” and “stable and sustain- amendments. The appointment of the Commis- able funding of the Public Service Broad- sion’s council member by the Assembly and the RTK board is yet to be completed.”35 30 SEC(2009) 1333, Croatia 2009 Progress Report, p. 37f. The Commission attested that, even though 31 Ibid., p. 38. 32 SEC(2010) 1326, Croatia 2010 Progress Report, p. 35. the regulation for broadcasters regarding the 33 Council Decision of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership with Serbia including Kosovo as defi ned by United Nations Se- 34 SEC(2009) 1340, Kosovo under UNSCR 1244/99 2009 Prog- curity Council Resolution 1244 of 10 June 1999 and repealing ress Report, p. 41. Decision 2006/56/EC, [2008] OJ L 80, p. 46. 35 Ibid., pp. 41 et seq. A Context and framework 25 protection of children and minors from harm- 6 Macedonia ful programme content entered into force, no mechanisms to implement and enforce it have Council Decision 2008/212/EC39 identifi es the been provided for. Also no progress on the swi- following (short-term) priorities for Macedonia: tchover from analogue to digital broadcasting - “Reinforce the independence and adminis- can be reported. The Commission allocates trative capacity of the regulatory authori- problems in fi nancing public broadcasting as the ties for electronic communications and contract by which the licence fee was collected media. via energy bills expired in November 2009. The - Ensure a stable and sustainable source of Public Service Broadcasting Law envisages an- funding for the public service broadcaster nual tenders to purchase audiovisual works and the Broadcasting Council.” from independent producers, which should ac- On the 2009 developments, the Commis- count for 20% of the programmes produced by sion attested Macedonia “good progress in RTK. This has not been fully implemented. Fur- the area of electronic communications and in- ther problems are the lack of an independent formation technologies”. Specifi cally conces- minority channel with Kosovo-wide coverage, sion contracts with operators with signifi cant the full implementation of the Law on Access to market power were terminated in accordance Information (which hampers the work of jour- with the Law on Electronic Communications, nalists) and the weak enforcement capacity of Parliament adopted the national strategy on the Press Council (a self-regulatory body which the next generation of broadband internet depends on donations for its fi nances).36 and the Agency for Electronic Communica- The 2010 report comes to the overall con- tions (AEC) made important developments in clusion that “limited progress has been made its activities.40 in the area of information society and media”. The Commission attested Macedonia also Regarding audiovisual policy and the media, “progress in the area of information society the current draft, which addresses the Indepen- services, where a good level of alignment has dent Media Commission (IMC) fails to preserve already been achieved”. the Council’s independence in line with Euro- With a view to the progress made on au- pean standards on media regulation. In addi- diovisual policy, the Commission stated that tion, the independence of the public service “(...) the administrative capacity of the broadcaster RTK and its fi nancial sustainability Broadcasting Council has improved, but is still are not fully ensured.37 Furthermore, there are not adequate to monitor the market effective- inconsistencies between the “Law on Defama- ly. The system for collecting the broadcasting tion and Insults” and the “Criminal Code”: fee has not been established yet. The sustain- “According to European standards defa- ability and fi nancial independence of the pub- mation should not be a criminal offence. lic broadcaster is therefore not ensured. The Kosovo does not apply the penal provisions legal provisions opening up the possibility of on defamation, but since they remain on the initiating bankruptcy proceedings against the statute book, legal uncertainty persists. This public service broadcaster are still in force. The will be resolved in the process of revising Broadcasting Council and the public service Kosovo’s criminal code.”38 39 Council Decision 2008/212/EC of 18 February 2008 on the principles, priorities and conditions contained in the Accession 36 Ibid., p. 42. Partnership with the former Yugoslav Republic of Macedonia 37 SEC(2010) 1329, Kosovo 2010 Progress Report, p. 46 et seq. and repealing Decision 2006/57/EC, [2008] OJ L 80, p. 32. 38 Ibid., p. 48. 40 SEC(2009) 1335, Macedonia 2009 Progress Report, p. 41. 26 The Media in South-East Europe – Comparative Media Law and Policy Study

broadcaster continue to be subject to political sequent dismissal, and high fi nes imposed interference, partly because of their depen- on local newspapers and opposition leaders dence on fi nance from the State budget. This for slander.44 In a more general way, the EU’s dependence also undermines the authority Country Strategy Paper refers to concerns of the Broadcasting Council vis-à-vis broad- raised by the joint CoE and OSCE election ob- casters. Public expenditure on State advertis- servation mission in particular over the issue ing is a signifi cant source of revenue for some of the freedom of media and administrative broadcasters, but is not suffi ciently transparent pressures on opposition candidates.45 and therefore has the potential to undermine In its Action Plan the Commission calls for editorial independence. The Broadcasting Law, Moldova to approximate relevant audiovisual including the provisions relating to concentra- legislation in full compliance with European tion of ownership of the media, has not been standards (with a view to possible future par- fully implemented. It is not yet aligned with the ticipation in the MEDIA programme if prereq- Audiovisual Media Services Directive. (...).”41 uisites are fulfi lled).46 With regard to audiovisual policy, in the More recently, in its report on the ENP 2010 progress report the Commission stated implementation progress in 200947, the Com- that the legislation on media ownership and mission Services’ staff document in its sector- concentration is not fully enforced. Especial- specifi c part mainly expands on achievements ly, sustainable funding of the public service in the area of regulating electronic commu- broadcaster and the Broadcasting Council is nications. However, in relation to the report’s not secured and the media legislation is not in part on the situation of political reform, more line with the AVMSD.42 specifi cally within the chapter on human rights and fundamental freedoms, important 7 Moldova remarks are being made: “As regards freedom of expression and The Commission stated in its country report of media pluralism, the situation worsened sig- 2004 in the context of the European Neigh- nifi cantly in the fi rst half of 2009 through, no- bourhood Policy, that Moldova tably, severe restrictions of the right of access “has an active and independent media”.43 to information and the use of administrative However, recent legislation and drafts (the means such as tax investigations, as well as 2003 amendments to the Law on Access to restrictions on freedom of media and free re- Information and a recent draft law on the porting in the context of the elections. New restructuring of the public broadcaster) had, laws on state secret and on transparency in according to the Commission, raised concern the public decision-making process entered notably on the independence of journalists: into force in 2009, as did modifi cations to problems with registration for two local radi- the Criminal Code that only partly refl ected os, a statement by the chairman of Teleradio Council of Europe’s recommendations on the Moldova about the reported imposition by decriminalisation of slander and libel. In the the Board of guarantors of the programme

“the hour of the government” and his sub- 44 Ibid., p. 9. 45 Country Strategy Paper 2007-2013, p. 6, available at: http:// ec.europa.eu/world/enp/pdf/country/enpi_csp_moldova_en.pdf 41 Ibid., p. 42. 46 EU/Moldova, Action Plan, para. 77, available at: http:// 42 SEC(2010) 1332, Macedonia 2010 Progress Report, p. 41. ec.europa.eu/world/enp/pdf/action_plans/moldova_enp_ap_fi - 43 Commission staff working paper of 12 May 2004, European nal_en.pdf Neighbourhood Policy, Country report – Moldova, SEC (2004) 47 Dated 12 May 2010, available at: http://ec.europa.eu/world/ 567, p. 8. enp/pdf/progress2010/sec10_523_en.pdf A Context and framework 27 later part of the year a number of measures icy and the Information Society), responsible were taken, aiming to reverse the situation. for information and communication technol- In November 2009, the Audiovisual Code ogy initiatives in all government bodies. The was amended – without consultation of the Conditional Access Directive has not yet been Council of Europe – to simplify the appoint- transposed and human resources at the Min- ment procedure for the members of the Au- istry for Economic Policy and the Information diovisual Coordination Council and the Su- Society are still weak. pervisory Council for Radio and Television. At In the area of audiovisual policy and the the same time, in the last quarter of 2009, media a Law on Public Service Broadcasting a private radio station was experiencing se- was adopted in December 2008, which abol- vere diffi culties in having its licence renewed, ished the steering committee of Radio Televi- and an opposition TV channel was required at sion Montenegro (RTCG) and transferred its very short notice to move out from its Gov- powers to the RTCG Council. However, the ernment-owned premises.” Commission stated that “(...) the political independence of the 8 Montenegro public service broadcaster has to be ensured. Licence fees for radio and television were abol- Council Decision 2007/49/EC48 calls on Mon- ished. RTCG is now fi nanced from the State tenegro to budget. It receives 1.2% of the annual bud- “ensure implementation of the law on get. This provides the public broadcaster with access to public information and continue stable fi nancial resources. The responsibilities the transformation of Radio and Television of of the Agency for Electronic Communications Montenegro into a public service broadcaster and of the Broadcasting Agency under the and provide appropriate means for it.” Monte- Law on Electronic Communications regarding negro should also “guarantee the operational frequency licensing remain unclear. A disagree- independence of the broadcasting authority.” ment between the two agencies regarding The Commission attested Montenegro in their competences contributed to delays in al- its report “some progress (...) on electronic locating a frequency to a private TV station.”49 communications and information technolo- With the adoption of the Law on elec- gies”. While narrowband is still predominant tronic media in 2010, the Commission at- for connecting to the internet, for instance tested Montenegro an overall alignment with in January 2009 the broadband penetration the AVMSD. But increased efforts are neces- rate was 5.5% and alternative operators sary as regards the protection of minors in the held around 20% of this important growth media.50 market. With regard to information society servic- 9 Romania es, further developments have been made, for instance a new Ministry for the Information Romania transposed the provisions of the Society was established on 3 January 2009 AVMSD as the fi rst EU Member State into (which became the Ministry for Economic Pol- its domestic law through the Ordonanþa de

48 Council Decision of 22 January 2007 on the principles, priori- 49 SEC(2009) 1336, Montenegro 2009 Progress Report, pp. 43 ties and conditions contained in the European Partnership with et seq. Montenegro, [2007] OJ L 20, p. 16. 50 SEC(2010) 1334, Montenegro 2010 Analytical Report, p. 69. 28 The Media in South-East Europe – Comparative Media Law and Policy Study

Urgenþã Nr. 181/2008 pentru modifi car- area of audiovisual policy. Serbia ratifi ed the ea ºi completarea Legii audiovizualului Nr. European Convention on Transfrontier Televi- 504/2002 (Emergency Government Decree sion and the UNESCO Convention on the Pro- amending and completing Audiovisual Act tection and Promotion of the Diversity of Cul- no. 504/2002), which entered into force on tural Expressions. Since 2008 the Broadcasting 3 December 2008.51 Agency has published all of its decisions on the internet and awarded until 2009 a total of 467 10 Serbia licences for broadcasting radio and TV programmes. A problem that is still unsolved is the Council Decision 2008/213/EC52 calls on Ser- privatisation of the broadcasting media in Ser- bia to “start approximation to the acquis on bia. This process is still blocked by certain pro- the audiovisual sector and improve transpar- visions of the Law on Local Self-Government ency and accountability, particularly of the and the Law on the Capital City.55 Republican Broadcasting Agency” and also to Also in the 2010 progress report, the “sign and ratify the European Convention on Commission stated that in the audiovisual Transfrontier Television”. sector media legislation needs to be aligned On Serbia, the Commission remarked with the acquis, and a number of provisions in its 2009 progress report that – although of the law on public information continue to progress has been made in the areas of the raise concerns; especially as some provisions information society and electronic communi- of the law include excessive fi nes for the vio- cations – lation of professional standards as well as for “(...) the digital divide in electronic ac- non-registration of media outlets.56 cess and digital inclusion needs to be addressed and a broadband strategy needs to III Approach Adopted for the Carrying- be fi nalised. IT capacity needs to be strength- out of Country Reports ened, especially at local level, with a view to e-government. Administrative capacity for In the following, the different methodological implementation of the legislation in this area steps applied for the present study are outlined: is insuffi cient.”53 • As already alluded to, the EMR – after Furthermore, the Commission attested that having fi nalised the analysis of studies al- “(...) the fi xed telephony sector is not yet ready undertaken – has developed a ques- liberalised in practice and there is still a lack of tionnaire that was intended to build the competition on this market (...).”54 basis for the country reports, which sub- The Commission reported progress in the sequently were to be elaborated by the national experts. • After having obtained and assessed the 51 See results/consequences of the transposition by M. Stoican, country reports, the EMR asked the na- Romania – Emergency Decree Amends Audiovisual Act, IRIS 2009-2:29, available at: http://merlin.obs.coe.int/iris/2009/2/ tional experts for clarifi cation and/or ad- article29.en.html; M. Stoican, Romania – Emergency Decree Defi nes European Works, IRIS 2009-3:30, available at: denda, where appropriate, and paid at- http://merlin.obs.coe.int/iris/2009/3/Art.30.en.html tention to ensuring a harmonised struc- 52 Council Decision of 18 February 2008 on the principles, priorities and conditions contained in the European Partnership turing of the reports. with Serbia including Kosovo as defi ned by United Nations Se- curity Council Resolution 1244 of 10 June 1999 and repealing Decision 2006/56/EC, [2008] OJ L 80, p. 46. 53 SEC(2009) 1339, Serbia 2009 Progress Report, p. 48. 55 Ibid., p. 49. 54 Ibid. 56 SEC(2010) 1330, Serbia 2010 Progress Report, p. 47. A Context and framework 29

• Each report, as provisionally fi nalised, was resent the summaries on the situation of submitted to the FES resident representa- the media in each country, which have tives in the respective country in order to been included in this publication. allow for thorough preparation of a meeting between those representatives and the correspondents entrusted with the execu- tion of the country report by EMR. In the course of those meetings, which in almost all instances have taken place, the opportunity has been seized to, fi rstly, obtain important initial feedback and, secondly, to enable an exchange of views regarding the formulation of possible remedies by the national experts to address shortcomings of the actual situation (recommendations). • When developing the said recommendations, the correspondents were particularly asked to take into consideration the “European benchmark”, i.e. the requirements stemming from Council of Europe legal and political instruments as well as from the EU’s acquis unionaire; the main contents of this “benchmark” had been laid down and made available to the country experts by the EMR. • The correspondents were then given the task of seeking feedback mainly from national stakeholders on the recommendations developed by them, and of noting with which representative of relevant institutions or which experts acting in a personal capacity they were able to exchange information and, where appropriate, what the essence of the reactions towards the recommendations had been. • The EMR, on the basis of the country reports, has drafted so-called “evaluation sheets”, which aim at presenting a summary of the main threads of the individual reports, and submitted those documents to the national experts for fi nal comment, enhancement and/or update. To those sheets, the recommendations have been added; in this format, the documents rep- 30 The Media in South-East Europe – Comparative Media Law and Policy Study B Summaries of the Country Reports 31

B Summaries of the Country racy, on the one hand, and also to be cultur- Reports ally rich in order to foster the overall development of the people and promote mutual un- Christian M. Bron derstanding across different cultures, beliefs etc., and (iii) to be in line with European stan- This chapter of the study aims at providing dards in the respective fi elds, so as to ensure core information on the situation of the me- sound progress in association with and future dia on a country-by-country basis. The single membership of the EU (where this is not yet summaries are neither meant to replace the the case) as well as respect for the commit- integral country reports which are made avail- ments undertaken in view of the protection able within the present project as online pub- of human rights under the relevant Council of lications, nor should it be left unmentioned Europe instruments, foremost the ECHR. that the initial reports have been enriched by concrete recommendations developed by the national correspondents, aiming at delivering proposals to remedy perceived shortcomings of the present situation in the country concerned. These summaries are all structured according to a uniform pattern: in the fi rst part (I) fi rst of all, in the form of a table, some general data on the country and its media sectors is provided (1); followed by an overview of the main regulatory instruments that are applicable to the press, broadcasting, online services and fi lm (2); thirdly the main challenges as encountered in media practice are touched upon (3). This last section, when read together with the second part (II) including the above mentioned proposals, sheds considerable light on the actual challenges that the media and also media politics are facing with a view to a sound development towards a healthy media system. Media policy and law but also media practice should strive to be able to fulfi l three main conditions, i.e. (i) to be economically viable as well as diverse, objective and trustworthy, thus being encountered, on the side of the general public, with the necessary degree of credibility, (ii) by this to be able to play its vital- ly important role for the individual and public formation of opinion and hence to serve the proper development of societies and democ- 32 The Media in South-East Europe – Comparative Media Law and Policy Study Albania 33

Albania 2 The regulatory status quo

Ilda Londo 2.1 Press

I Most noticeable characteristics in the Print media is, to a minimal extent, regulated media-sector by the Law on the Press. There is no regulation regarding content and there are no obli- In the following some of the most signiﬁ cant gations in this regard by law. The law on press characteristics of the media landscape of Al- only guarantees freedom of press and its in- bania, based on and taken from the country dependence, without making any demands report by Ilda Londo, are (brieﬂ y) given.57 on the press in return. Besides, there exists a self-regulation mechanism in form of a “code 1 General data of ethics”. However, there was never a formal

Country proﬁ le Basic data

Country population 3,200,000 Ofﬁ cial language/s Albanian Main ethnic groups 98.6 Albanians, 1.4 Greeks, Macedonians, Serb-Montenegrins (% of population)

Recognised minorities Ethnic: Greek, Macedonian, Serb-Montenegrin. Cultural: Roma, Romanian.

Religious groups N/A (% of population) Average salary per month ( €) 248.57 Media market data

Total market volume N/A advertising market ( €) Gross advertising budget in N/A 2009 (€ ) Press 26 dailies Newspapers 250 periodic publications prices for dailies between € 0.14 and € 0.36 per issue. Magazines N/A Broadcasting

Television Comm.: PSB: 2 (national coverage), 70 (regional coverage), 1 (national coverage) 2 satellite stations, 50 cable TV stations

TV advertising revenues PSB: Comm.: 2009-2010 period (est.) ( ) 3,393,770 38,456,464

57 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 34 The Media in South-East Europe – Comparative Media Law and Policy Study

PSB: 1 (national Comm.: Radio coverage) 2 (national coverage), 48 (regional coverage)

9,306,905 (total) 3,763,369 (state funding) 5,543,536 (self generated) Income TV & Radio (€ ) 2,149,766.43 (licence fee total, as part of the self generated income); 4.34 (licence fee per household per year)

96 ISPs Internet monthly tariffs between € 12.5 and € 29.16

170 productions in the last 14 years (29 long ﬁ ction, 17 short ﬁ ction, 63 documentary, 42 animated, 3 alternative, 6 development of project, Film 10 others); 6,765,546 (total state funding in the last 14 years) Ticket prices between € 1.08 and € 3.62

commitment, endorsement, or subscription lence, indirect commercials, religious or atheis- to the code by the media outlets and no self- tic commercials, and commercials for political regulatory body that would supervise the im- parties or associations, with the exception of plementation of this code. Only the four main cases provided by law. Commercials for several associations of journalists endorsed the code. products are also prohibited, including tobacco, armaments and military equipment, food 2.2 Broadcasting products that are not approved by the competent bodies, etc. Commercials may be inserted The Law on Public and Private Radio and Tele- between programmes as well as in the body of vision regulates the activities of the electronic programmes, provided that they do not dam- media, including the public broadcaster RTSH, age their integrity and value. The Law on Ra- commercial television, cable and satellite televi- dio and Television obliges both public and pri- sion, and also digital broadcasting. In addition vate broadcasters to broadcast certain content to the Law on Radio and Television, the Law on without payment. This kind of content includes Electronic and Postal Communications is also subjects of social benefi t or public interest and relevant for broadcasting, in terms of planning is defi ned by the regulator. and allocation of spectrum frequencies. RTSH is funded from several sources, such The various provisions of the Law on Public as the licence fee, contracts with third par- and Private Radio Television especially include a ties for various broadcasts, publication of chapter on commercials. The latter should not video and audio musical productions, books, be deceitful and should be clearly identifi ed as newspapers and journals related to various such, while subliminal commercials are prohib- programmes, performance activities and pub- ited. In addition to these general requirements, lic shows, advertisements and publication of the Law on Radio and Television bans commer- other paid messages, donations and sponsor- cials that infl uence the content of programmes, ship, sale of RTSH programmes to any inter- commercials that incite pornography and vio- ested party, and the State budget. Albania 35

Regulatory authorities are the Nation- 2.4 Film al Council of Radio and Television (Keshilli Kombetar i Radio Televizionit – KKRT) as the The Law on Cinematography determines the main regulatory body and the Steering Coun- basis and principles of organisation, manage- cil of Albanian Radio and Television (Keshilli ment and development of cinematography, Drejtues i Radios dhe Televizionit Shqiptar – along with economic support from the state. KDRTSH) as the highest ruling body of the The National Centre of Cinematography public broadcaster, RTSH. The KKRT is respon- (QKK), subordinate to the Minister of Tour- sible for overseeing broadcasters’ compli- ism, Culture, Youth and Sports, is the regu- ance with the Law on Radio and Television, latory body in this fi eld. The law determines administering the spectrum of frequencies, the main duties of the regulator, the sources guaranteeing fair competition, and is legally of funding, the manner of functioning of the obliged to ensure the existence and further main bodies of the centre, the main notions development of the public broadcaster, RTSH. and obligations in the relations between the The RTSH Steering Council’s main competen- main actors in the area of cinematography as cies include approving regulation of its own well as the role, duties, and structure of other activity, appointing and dismissing other gov- bodies that are subordinate to the Ministry erning posts of RTSH, such as the General Di- and that are related to fi lm. rector and Board of Administration, approv- The statute of the QKK defi nes criteria for ing the strategy, organisational structure and awarding state funds for movies or cinemato- programme structure of RTSH, monitoring graphic works; for instance that two of the main the impartiality, objectivity and comprehen- authors of the production must be Albanian citi- siveness of programming, advising the Gen- zens, or that shooting should take place in Al- eral Director concerning the programme, and bania, except for special cases, which should be drafting the annual report on RTSH activities justifi ed and motivated in the project. for submission to Parliament. 3 Main challenges in media practice 2.3 Online services 3.1 For the press Online services are regulated by Law No. 9918 on Electronic and Postal Communica- About 90% of journalists work without con- tions. The main aim of this law is to promote tracts, therefore owners can easily put pressure effi cient competition and infrastructure in the on them to engage in self-censorship. The La- area of electronic communications, by apply- bour Code in the country is generally poorly im- ing the principle of neutral technology. The plemented, and media outlets are no exception. law does not interfere with or regulate the Against a background of informal and insecure content of services offered in the networks of labour relations and total dependence on media electronic communications. owners’ policy and economic interests, qualita- There is no regulation at all for the con- tive and independent reporting could not be as- tent of online services, except with regard to sured. Especially media owners determine edi- the ratifi cation of the additional protocol of torial policy or topics to report on. the Convention on Cybercrime by Albania. There is a trend of print media in increas- Besides, the Code of Ethics can also apply in ing the numbers of newspapers, with no signs principle to online journalism. of consolidation of the Albanian print market. 36 The Media in South-East Europe – Comparative Media Law and Policy Study

The explanation for the lack of consolidation 40% of the broadcaster. The lack of any de- in print media could be seen in parallel fund- tailed press legislation means there are no ing from other businesses of the owners of restrictions on cross-ownership of print and print media outlets. Media ownership is often electronic outlets. Local commercial media not transparent. outlets face fi nancial problems and often do not submit their annual balance to the regu- 3.2 For broadcasting lator. There are no accurate and regular data on advertising, due to both a lack of media There is political infl uence on the public transparency in funding and the absence of broadcaster RTSH, especially during election regular, reliable, and comprehensive market periods. The extent of funding from the State research on advertising revenue and other budget is established in the Law on the Annu- similar data. al State Budget, based on the annual budget The independence of the regulatory au- of RTSH, as approved by the Steering Council. thority KKRT is a serious issue in Albania. Also Parliament approves the annual State budget, the performance and functioning of the KKRT which includes the sum allocated to RTSH. members is questionable, as the appointment But Parliament does not deal specifi cally with is not because of professional performance the RTSH budget, which is prepared internally. but dependent on political background. An- The level of the licence fee is established by other diffi culty is the implementation of KKRTs law and advertising income depends mainly decisions, when these decisions go to court or on RTSH itself. RTSH is still lagging behind in depend on the will and functioning of other attracting healthy advertising sums. Adver- bodies, such as the tax police. tising and notifi cation services account only for 12% of self-generated revenue in 2009, 3.3 For online services although this marked a growth compared to the previous year. The diffi culty in attracting There is no requirement to obtain a licence or higher advertising revenue shows that RTSH any other similar measures in order to broad- performance is still struggling in this fi eld vis- cast or publish news online. Nor are there any à-vis its competitors, the commercial broad- obstacles of any form for persons that wish to casters. access Internet. The regulation of electronic The Law on Radio and Television contains communications sets easy access for starting certain restrictions on ownership, which aim an Internet service as (only) a general authori- to promote media pluralism and prevent con- sation for starting a service that provides Inter- centration. The law forbids the same entity net connection is required from the regulator. from holding more than two licences for the Apart from this, there are no other forms of same (local) territory, whether for radio or regulations that affect content in the websites television. But the law allows the same person or other online services. There are no provi- to hold both a radio and a television licence sions on the liability of the owners of online for the same territory. There is no limitation services on the content that is published on on ownership stakes for a local broadcast- their website; only the regulation on defama- ing licence: the owner can hold 100% of the tion may apply to content published on the shares, whether they are a natural or a legal web or in any other online content. person. Only in the case of a national licence, no legal or natural person can own more than Albania 37

3.4 For fi lm islation is related to provisions in both the Criminal and the Civil Code in relation to libel QKK has allocated funding since 1996, but and defamation. Both Codes need to be re- this funding remains limited and insuffi cient, vised and amended in order to meet European and it is very diffi cult to fi nd a production Convention on Human Rights standards and supported only by QKK funds. In principle all freedom of expression standards in general. registered movie production houses can apply Currently there is a proposed bill for amend- for funding. Nevertheless, it is impossible to ing the relevant legislative sections, which has speak of independent productions, both with been lingering in Parliament for several years. private funds and state funds as almost all cin- The bill is intended to completely repeal insult ematographic productions realised in the two and libel from criminal law and extend nec- last decades result from co-productions, rath- essary and reasonable protection of citizens’ er than works funded from a unique source, rights to dignity by amending the civil law. refl ecting also the economic situation in this Due to other priorities and to a lack of po- regard. Allocation of funds from QKK, espe- litical will, Parliament has failed to pass the cially with regard to the transparency of the bill through the years, in spite of constant decision-making process, is another problem. criticism in EU progress reports on Albania on this matter. Hence, in the context of the II Proposals for remedying the situation overall media legislation reform, passing this bill or amending the libel and defamation 1 Constitutional law aspects provisions through another bill needs to be a priority. This amendment would bring legisla- No specifi c suggestions are to be made for tion on defamation in line with the European this section. standards and would contribute to greater freedom of expression. As such, it should be 2 Cross-cutting issues amended as soon as possible, and training for judges on this issue should follow approval in The continuous amendments and improve- Parliament. ments in media legislation have addressed Along with this proposed amendment, different aspects of media development, but other amendments to the Law on Classifi ed In- an en bloc media legislation reform has never formation have been proposed to Parliament. taken place. In 2007, Albania and the Council The proposed draft expands the obligation of Europe agreed upon an Action Plan that of bodies that are required to provide infor- would address precisely the media legislation mation to the public, in an effort for greater reform in the country. However, the imple- transparency over the use of public funds. In mentation of this Action Plan has been de- addition, other changes have been proposed, layed signifi cantly, due to different reasons. such as a shorter period for issuing informa- The media reform according to this plan is still tion, the establishment or strengthening of a ongoing in Parliament at the moment. In ad- regulatory authority that would enforce the dition to this process in Parliament a discus- law, and the application of a public interest sion opening the legal amendments debate test as the only rule for disclosing or withhold- to relevant stakeholders and the general pub- ing information. Although the amendments lic is essential to the success of the reform. to the current law on access to information The most troubling current sector in leg- are not as urgent as the provisions related to 38 The Media in South-East Europe – Comparative Media Law and Policy Study

defamation and libel, the amendment of this and media professionalism. A problem per- law is equally important in assuring a more taining not only to the media sector, this is an appropriate legal framework for securing citi- issue that needs to be addressed by regular zens’ rights to information. monitoring of appropriate state authorities, In addition, better functioning of infor- and stronger and more organised movement mation offi ces and a more open and trans- of the journalistic community. parent policy of state bodies in the matter The signing of a collective agreement or of providing information would be essential the establishment of contracts of media out- in order to have more transparent and ac- lets with their personnel is an urgent issue in countable governance. Finally, continuous this regard. To this effect, further consolida- monitoring of the implementation of the tion of the trade union of journalists is essen- laws on defamation/libel and access to infor- tial in implementing the Labour Code and ne- mation by other bodies, such as freedom of gotiating collective agreements with the me- expression organisations, would be essential dia outlets in the country. In addition, civil so- in providing constant pressure on correct en- ciety organisations should support individual forcement of the laws. journalists whose rights are violated by media Transparency of ownership, or more im- owners, State authorities or other parties. Fi- portantly, transparency of media funding, nally, apart from a safer working environment remains an unresolved issue in the media for journalists, more should be done in terms sector, and one that leaves an indelible mark of separating editorial content from economic on media independence and professional- or other pressures that might exist inside the ism. The lack of transparency regarding media outlet. media funding has cast signifi cant doubts In this regard, self-regulation is also an im- and questions on editorial independence. In portant aspect. Continuous training of jour- this context, it is essential to increase me- nalists and editors on ethical issues, along dia transparency and guarantee continuous with a more general public debate on media transparency in this area. Apart from stricter ethics would be helpful. However, any at- regulations on the transparency of media tempt at self-regulation in the media would ownership and media cross-ownership, a be useless without media owners recognising better enforcement and monitoring mech- the importance of this process and the ne- anism would be essential to realisation of cessity for their media to become part of the this purpose. overall effort. As a result, all efforts should be Along the same lines, the issue of state made for them to engage in the debate on advertising and the criteria used to allocate self-regulation and facilitate a genuine com- state funds to the media have been and con- mitment to self-regulation as a situation that tinuously are a point of controversy. In spite of benefi ts all. the attempts made to increase transparency More specifi cally, other methods of en- in this area, more should be done for a clearer couragement in the realm of self-regulation and more accountable overview of the whole would be adopting personalised codes of eth- process and criteria used to allocate such ad- ics in newsrooms, and especially implement- vertising. ing mechanisms, such as Readers’ Advocates, Apart from transparency of funding, a an Ombudsman, Council of Ethics, etc. better observance of the Code of Labour is crucial in reinforcing editorial independence Albania 39

3 Sector-specifi c regulation b) Role of the regulatory authority in practice Another key issue remains guaranteeing 3.1 For the press greater independence and better functioning of regulatory authorities. Past legal reforms No specifi c suggestions are to be made for have attempted to address this issue, but this section. over-politicisation of the issue has not led to satisfactory results. Moreover, providing the 3.2 For broadcasting necessary competencies and mechanisms or tools for strengthening the authority of the There is an ongoing reform of the current regulator is also a priority. This is an issue Law on Public and Private Radio and Televi- that needs to be openly debated and solved sion, which is expected to be discussed soon through inter alia consultation of relevant in Parliament. The amended law will have to stakeholders, as this remains an obstacle that bring the existing provisions in line with EU re- needs to be overcome. quirements, more specifi cally the Audiovisual Although a Law on Digital Broadcasting Media Services Directive (AVMSD). As such, it was approved in 2007, and the Strategy of will have to properly address and reform ar- Switching to Digital Broadcasting is being eas such as programme quota, advertising, drafted, no legal or administrative steps have sponsorship, product placement, protection been taken in this regard by the regulatory of minors, etc. authority. In this context, an urgent drafting, discussion, approval and implementation of a) Public services broadcasting the Strategy is crucial, along with the need to The next urgent issue is related to the over- reform the 2007 law, if necessary. all reform of the public broadcaster. While In this regard, effi cient and fair imple- the current law provides some guidelines mentation of the Strategy would be essential and general principles on the mission of the in strengthening the authority and indepen- public broadcaster, better defi ned provisions dence of the regulatory authority. Moreover, on RTSH’s public duty and tools for guaran- the public broadcaster should be thoroughly teeing its accountability to the public would and properly supported in this respect, given be appropriate. In order to increase account- the current diffi culties to economically and ability and effi ciency of RTSH, a clearer, more professionally carry out this reform on its transparent funding scheme of the public own, and its role of catering to public interest broadcaster would also be necessary. In this in this important reform. regard, better collection of the fee paid by the In addition, the regulatory authority public and increased transparency regarding should show particular attention in the licens- this matter would be helpful. Programme di- ing process. Given the peculiarity of the exist- versity and quality as well as visibly increased ing market of digital broadcasters, the licens- independence from political factions are also ing criteria should consider the current stage key priorities in the overall reform. Finally, the of development of this market and its history whole process should involve the discussions and experience, along with the need to pro- by and support of journalists’ associations and tect the public against interests of a purely intergovernmental organisations, producing a economic nature. Mechanisms should be in continuous public debate on this issue. place for guaranteeing the correct conduct of the digital broadcasting operators vis-à-vis 40 The Media in South-East Europe – Comparative Media Law and Policy Study

potential competitors and, more importantly, further assist in the development of creativity the public. Finally, public information and and professionalism among Albanian movie- awareness campaigns are essential in smooth makers. In addition, increased funding is es- and appropriate functioning of the digital sential in encouraging greater creativity and switchover process, and a necessity and pub- increasing Albanian ﬁ lm production. Finally, lic duty of the regulatory authorities and other consultation with relevant stakeholders, such bodies in charge of the process. as associations of artists, producers, etc. is relevant for future improvement of this area. 3.3 For online services

Online media is slowly, but steadily developing in the country, hampered partly by the slow spread of the Internet until recently. For this purpose, ensuring wider public Internet access would also assist in the further development of online media. Neither the law, nor government or other bodies have interfered with online media content so far, hence there is no potential freedom of expression issues to address. How- ever, it would be necessary for some ﬁ ltering of language in some online media, in order to protect the public. Hence, establishment of a moderator, administrator, or some ethical supervision that would allow for correct use of the language, while preserving the right to freedom of expression, would greatly beneﬁ t these media and the public.

3.4 For ﬁ lm

The need for transparency and accountability is an urgent one for the artists’ community. Clearer and transparent, well-published and publicly accessible criteria on distribution and allocation of funds, in the past or in the future, are essential in providing a more evident overview of the situation. In this regard, publication of annual reports, decisions, and other relevant materials on websites or in other forms, is essential in order to increase transparency. Better implementation of intellectual property legislation and strengthening of authorities or associations that cover this area would Bosnia-Herzegovina 41

Bosnia-Herzegovina 2 The regulatory status quo

Radenko Udovicic 2.1 Press

I Most noticeable characteristics in the There is no law which directly regulates the media-sector operation of press media outlets. Newspa- pers are registered at cantonal and entity In the following some of the most signiﬁ cant level. The issue of journalistic professional- characteristics of the media landscape of Bosnia and Herzegovina (BiH), based on and ism and ethics is resolved through the Press taken from the country report by Radenko Code of BiH, based on self-regulation. The Udovicic, are (brieﬂ y) given.58 Code lays down the foundation for the system of press self-regulation and is considered 1 General data morally binding for journalists, editors, own-

Country profi le Basic data Country population 3,842,537 Offi cial language/s Bosnian, Serbian, Croatian Main ethnic groups (% of population) 48% Bosniaks, 33% Serbs, 15% Croats, 5% Others Roma, Jewish, Albanian, Macedonian, Montenegrins, Slovenian, Recognised minorities Chek, Slovakian, Romanian, Italian, Russians Rusinian, Polish, Ukrainian, Hungarian (only 2% in total of population) Religious groups 43% Muslims, 30% Orthodox, 12% Catholics, (% of population) (15% Atheists and Agnostics) Average salary per month (€ ) 360 Media market data Total market volume advertising 35 million market (€ ) Gross advertising budget in 2010 ( €) 587,000,000 (300 million for TV, 287 million for the press) Press 11 dailies (national coverage); 20 periodic publications, prices for Newspapers dailies between 0.53 and 0.80 per issue. 10 weekly magazines, prices for weekly magazines between Magazines € 1.59 and € 3.10 Broadcasting Television PSB: 3 (regional/local coverage) Comm.: 29 (regional/local coverage) TV advertising revenues PSB: 21 million Comm.: 31 million 2009-2010 period (€ ) Radio PSB: 3 (regional/local coverage) Comm.: 81 (regional/local coverage) Income TV & Radio (€ ) N/A N/A Internet 77 ISPs, monthly tariffs between € 3,5 – 26 5 long fi ction, 0 short fi ction, 5 documentary, 2 animated fi lm Film productions in 2010; 760,000 (total state funding per year); Ticket prices between € 2 and € 3.5

58 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 42 The Media in South-East Europe – Comparative Media Law and Policy Study

ers and publishers of newspapers and peri- television programmes in BiH. The code does odicals. The Press Council for print media is not regulate the issue of political advertis- the responsible agency in this fi eld. Besides, ing, to which the provisions of the Election the work of journalists and print media is af- Law apply as well as rules passed by the BiH fected by the Law on Protection from Defa- Election Commission. Besides, there are vari- mation (the main purpose of the law is the ous other laws and by-laws addressing the abolition of criminal liability for defamation broadcasting sector. and moving defamation to civil proceedings) The Law on Communications establish- and the Law on Freedom of Access to Infor- es the Communications Regulatory Agency mation (the law protects the media from the (CRA) as the regulatory body for all types of capriciousness of government representa- telecommunications and broadcasting. In tives who avoid providing public insight into the broadcasting fi eld, the agency allocates their work). frequencies, protects freedom of expression and independent position of broadcasters, 2.2 Broadcasting prescribes standards of professional media operation related to content and technical The broadcasting sector is regulated by vari- implementation, and promotes the princi- ous laws. The Law on Communications regu- ples of the dual radio and television system. lates the entire fi elds of telecommunications, radio and television. It constitutes the general 2.3 Online services framework for different types of broadcasting in the country, including telecommunica- The Law on Communication placed internet tions, radio, television (also cable television), services in the jurisdiction of the CRA. The and related services and resources. Radio agency defi ned requirements for general li- and television stations are not direct subjects censing of internet service providers in BiH of the law but, as the law establishes techni- which are exclusively related to the technical principles related to broadcasting as well cal segment. Any legal person registered for as rules on management and the use of the this kind of activity may apply for a licence. frequency resources, it pertains to the radio The CRA has no jurisdiction or responsibil- and television media. The Law on the Public ity for published content which appears on Broadcasting System of BiH prescribes stan- websites hosted by holders of its licences. dards for the founding and operation of pub- There is one provision, stating that “the re- lic radio and television services. The public sponsible organ should by fi nal judgement broadcasting system in BiH has three broad- order the licence holder to remove from its casters: RTV BiH (BHRADIO 1 and BHT 1), service content which is established to be in- Radio and Television of the BiH Federation, admissible, insulting, harmful or in violation and Radio and Television of the Republika of copyrights; the licence holder shall with- Srpska. The law prescribes and elaborates in out delay act according to the judgement or Arts. 17 through 20 the obligation of paying be responsible for violation of the terms of a subscription fee to RTV. The Advertising the licence”. However, untrue or defamatory and Sponsorship Code of Practice for Radio contents are regulated according to the pro- and Television should also be mentioned. It visions of the Law on Defamation and other regulates the basic principles of advertising, laws covering particular crimes (incitement teleshopping and sponsorship in radio and of violence, paedophilia, etc.). Bosnia-Herzegovina 43

2.4 Film defamation has become an example of a good legal framework for the whole region The fi lm sector is subject to the Law on and some EU countries. Courts have not yet Film Activities of Sarajevo Canton of 2001, stabilised their legal practices in this area and defi ning fi lm activities as production, fi lm- lawsuits in civil proceedings keep growing. turnovers, public screening of fi lms and safe- Media outlets are not independent in their guarding fi lms and fi lm material in the terri- editorial policy as they are often close to the tory of Sarajevo Canton. The law envisions government or the opposition or are infl u- responsibility for fi lm content, for which enced by nationalistic, religious or economic the producer is responsible with regard to lobbies/movements. There is also vertical defamation and slander. The Association of ownership which has a negative impact on Film Workers of BiH operating in Sarajevo is the press landscape. Rare are also newspa- a professional organisation of independent pers and broadcasters, including the public fi lm workers, authors and artists, who per- broadcasting services, which have well or- form work related to fi lm activities in the ganised newsrooms, independent and com- form of a profession and is supposed to be petent specialists, favourable fi nancial situa- the place for solving problems and disputes tions, and which are able to deal with all the in the fi lm branch. BiH does not have a regu- challenges of the new times. latory body for the fi lm industry (such as the CRA for broadcasters or the Press Council for 3.2 For broadcasting print media). There is no code and the As- sociation of Film Workers bases its operation BiH Federation Radio and Television is a on positive European achievements. newly-created legal subject, but the dominant feeling within it is that it is the suc- 3 Main challenges in media practice cessor to the former Radio and Television of Bosnia-Herzegovina, i.e. Radio and Televi- 3.1 For the press sion Sarajevo, and it expresses that feeling in its programmes. BiH Radio and Television is The Press Council barely manages to pub- practically a new subject, but legally it con- lish its views and press releases in newspa- tinues the former state radio and television pers. A number of political analysts believe and temporarily manages the assets from that one of the reasons is self-regulation, in the radio and television building in Sarajevo. other words absence of sanctions. Print me- The asymmetric position of the subjects and dia are not obliged to adhere to the Press the confusing legal solutions have caused Code. The Press Council may declare them numerous disagreements between the BiH unprofessional, but newspapers have already Federation RTV and the BiH RTV, including developed a mechanism saying that such ac- mutual lawsuits. The three public broadcast- cusations are politically motivated. Laws on ers have not fully succeeded in providing freedom of access to information are an im- in their programmes a balanced approach portant legacy of the citizens’ rights to be to the languages and national interests of informed about public affairs and they do af- all three constituent peoples and the inter- fect availability of information, but the pub- ests of members of national minorities. The lic sector is not yet fully able to fulfi l these proclaimed independence of broadcasters is obligations. Decriminalisation of libel and constantly jeopardised. This can been seen 44 The Media in South-East Europe – Comparative Media Law and Policy Study

in political party attempts in parliament to with regard to Internet access, statistics show appoint “their people” to steering boards, that in 2009 the dominant type was xDLS ac- in the taking of sides in internal confl icts in cess, whose number of subscribers makes up some newsrooms and programmes, and in 43% of the total number of Internet subscrib- encouraging the belief that national interest ers in BiH. Operators’ data says that fast con- is the sole guiding line of their public ser- nections have now by far exceeded 60%. This vice. Although there is a dual broadcasting information shows that BiH citizens – who were system in BiH with equal requirements for previously mostly deprived of full multimedia the licensing and market position of public use of the Internet because they were using and commercial stations, the latter point out so-called slow connections which do not allow that they are in a less favourable situation easy downloading and following audio and es- because public services are allowed a lot of pecially video contents – are now increasingly time for advertisements, taking a big part of using the latest technical achievements. the advertising share, although their function should primarily be supported through 3.4 For fi lm the collection of subscription fees. Private radio and TV stations are in a grave Before the war in the former Yugoslavia, BiH economic situation, which refl ects on their had a relatively strong fi lm industry, which programme quality. Another important thing mostly worked in collaboration with partners is that Qatar’s Al Jazeera plans to launch a from Belgrade. After the war a new genera- news channel for former Yugoslavia seated tion of fi lm directors and actors appeared, in Sarajevo for the markets in BiH and Ser- which unfortunately did not have suffi cient bia. Al Jazeera is still in the phase of exploring fi nancial resources at their disposal. That is legal opportunities in the two countries and why since 1995 not a single fi lm in BiH was it is uncertain when the programme/channel made without co-production arrangements, might start. mostly from abroad. In funding fi lms, the The CRA quite successfully oversees ad- Foundation for Cinematography of Sarajevo herence to the Broadcast Code of Practice, has become the most important place. Al- although suspicion has already appeared though it only operates at the level of the regarding its applicability to some new BiH Federation, it is the only foundation of forms of sophisticated violations of ethical its kind in the whole territory of BiH. With principles, as well as so-called street lan- regard to fi lm funding the application crite- guage which is considered something that ria state that applicants must be from BiH, should be a matter of civil lawsuits. The but technical requirements stated thereafter CRA has certainly grown into the best require candidates to be registered in the BiH equipped local institution created out of Federation. This shows that this is an entity an international body, but its reputation project rather than a state project. has already been shaken by political back- room dealing. II Proposals for remedying the situation

3.3 For online services 1 Constitutional law aspects

The upward line in the number of Internet sub- No speciﬁ c suggestions are to be made for scribers will continue. According to the CRA this section. Bosnia-Herzegovina 45

2 Cross-cutting issues has as yet been no offi cial request. It is not unusual for some countries to have several press No specifi c suggestions are to be made for councils within their borders. This is mostly the this section. case with ethnically (and linguistically) divided countries such as Belgium, Canada or Great 3 Sector-specifi c regulation Britain. However, in Bosnia-Herzegovina, a small country in which three nearly identical 3.1 For the press languages are spoken and which is inhabited by three related Slav peoples whose biggest The Press Council in BiH is a self-regulatory difference is religion, the setting up of several body for print and some online (since a few press councils could create different approach- months ago) media and consists of newspa- es to self-regulation, as well as mutual wars of per publishers, web portal owners, journal- “your” and “our” media. ists and citizens. It is a non-profi t organisa- Ljiljana Zurovac, Director of the Press tion, independent of any political or other Council of BiH, says the body is strongly sup- infl uence and has an elementary multi-ethni- ported by the Alliance of Independent Press cal approach. It was established in 2000 with Councils of Europe (AIPCE), which assesses support of the international community and the work of the BiH Press Council as very pro- acts on a whole state level. The Press Council fessional, taking into consideration the con- is a Member of the Alliance of Independent ditions in this country. Zurovac believes that Press Councils in Europe (AIPCE) and co-op- the Press Council needs to remain united at erates closely with different Press Councils the level of the country; otherwise most pro- from the EU and SEE. The main task of the fessional achievements of print media related Press Council is the protection of the pub- to adherence to the Press Code would be lic against unprofessional and manipulative eroded. She says the Press Council’s Assem- journalistic reporting: acting as a mediatory bly, Steering Board and Appeals Committee body between readers and the print media, are multiethnic (journalists from both enti- the Press Council protects the public against ties) and far from any kind of political infl u- untrue, unprofessional and manipulative ence. Zurovac also says that nearly all print media coverage. It enables – on the basis of media in the Federation recognise the Press the existing Press Code and its 16 Art.s and Council’s authority and co-operate with it. In the formal complaints procedure – persons the Republika Srpska, there are some media affected or discriminated against, to com- with which relations have cooled down, but plain cost-free at the Press Council. By this no one has fi led a request to step out of the procedure it protects the rights of individuals circle that adheres to the body’s regulations. as a part of the democratic society system. In Therefore, here are the basic principles the case of untrue media coverage a court that should be insisted on: can fi le law suits for compensation, but no - The BiH Press Council must remain at state measures for speedy moral satisfaction. level as a professional self-regulatory body However, the same as with CRA, journalis- for the whole of BiH. tic and political forces in the Republika Srpska - The director as well as members of the which want to set up an entity press council of Steering Board and Appeals Committee the RS have been gaining in strength. This is in- should be journalists with whom no politi- creasingly talked about in the public, but there cal or any other kind of bias is associated. 46 The Media in South-East Europe – Comparative Media Law and Policy Study

- The Press Council must become more 3.2 For broadcasting mobile and often hold sessions of its top organs outside Sarajevo, in other cities in a) Public Service Broadcasting BiH. Meetings should be organised with The crucial problem in this fi eld is a stale- media editors and owners to present to mate in the completion of a modern system them the principles based on which the of public service broadcasting that serves all Press Council decides on disputed and un- citizens of BiH and that is economically self- ethical contents appearing in the media sustainable. The Law on the Public Service and how it assesses sensitive, “between- Broadcasting System was passed in 2005 the-lines” cases and disputes verging on but, due to the fact that it was passed under the border of the admissible which have the pressure of the international community, political weight. Meetings of this kind some of its provisions have never been imple- would be an opportunity to exchange in- mented.59 In the ensuing vacuum, the three formation and hear the opinions of peo- public services which carry the system (BHRT, ple outside the BiH capital, as well as to RTRS and RTVFBiH) had to do what they could build mutual trust. to ensure better economic (market) and pro- The Law on Freedom of Access to Infor- gramme positions. Instead of three partners mation was passed in 2000 at state and en- that closely cooperate and share technical tity levels. The journalists’ community in BiH and fi nancial capacities through a Corpora- welcomed the law, hoping it would make it tion – the fourth subject of the system that easier to get information from government was still not created – currently there are bodies and state-owned companies and in- three, conditionally speaking, hostile entities stitutions. However, the law slowed down which are not fi nancially self-sustainable. In the regular procedure of journalists for get- terms of programme there is the danger that ting information. Namely, the law prescribes they will lose the race to commercial televi- that every physical and legal person must re- sion stations. ceive information requested within 15 days. At the time of writing this report (January Before that, journalists would get some 2011), not one of the three public broadcast- information right away, or in two or three ers had a clearly profi led position – or did not days, but now they have to wait up to 15 announce its position publicly, waiting for the days, which greatly slows down the process right political timing – on how and to what of day-to-day reporting and even weekly re- extent the current system should be reorgan- porting. Therefore the law must be changed ised and what kind of legal changes should so that journalists can get information re- be made as a precondition for reorganisa- quested within 7 days, whereas the 15-day tion. Everyone is aware that the law cannot timeframe should remain in effect for other be changed without consensus, but strong kinds of requests. By delaying until the last willingness to look for a mutually acceptable day, some institutions have wanted to pre- solution is lacking. vent (slow down) journalists in reporting on The current situation is such that RTRS an issue, while some have wanted to cover does not want to accept the jurisdiction of up their lack of work or slowness.

59 Explained in the media situation analysis that was delivered earlier. Bosnia-Herzegovina 47 the Corporation at any cost (and is supported never started working because this provision in that by the RS government). Radmila Co- of the law has not been implemented). What korilo, President of the RTRS Steering Board, is also undisputable for the Federation RTV is says that in 2010 the Board agreed on a so- that it must be allowed to have its own prop- called compromise statute of the Corporation erty (this is not possible under the state law which offered small, but signifi cant powers to on the public broadcasting system and BHRT the Corporation, but the plan was rejected by disposes of all property until the setting up the other two steering boards. According to of a Corporation). This would alleviate numer- her, it is unlikely that they will return to that ous disagreements between RTV FBiH and plan. RTRS Director General Dragan Davidovic BHRT resulting from the fact that RTV FBiH has a similar opinion and believes that “Sara- leases equipment and premises from BHRT. In jevo is in the habit of rejecting any proposals addition to that, RTV FBiH could invest in its from the Republika Srpska and any interna- own technical capacities with the help of any tional proposals which respect positions from donations and commercial revenue. RTV FBiH that entity, which just slows down the coun- Steering Board President Igor Soldo says it is try’s development.” The RTRS Steering Board most important that legislative changes be has announced political initiatives from the made to give his company equal status with Republika Srpska for fundamental changes to other two broadcasters and that it be allowed the Law on the Public Broadcasting System of to provide better coverage of the Federation BiH, but they have no answer as to how this by developing its technical capacities and can be done without consensus of all three correspondent bureaus. There is a dispute sides (Serbs, Croats and Bosniaks) in BiH, i.e. among the management as to whether the both BiH entities (Republika Srpska and the media outlet should open in Mostar, a strong Bosnian Federation). However, they express correspondent bureau, or a whole studio de- their willingness for a Corporation to be cre- partment from which complete programmes ated in the future with limited powers, which could be broadcast. would actually be a service to the three public As far as BHRT is concerned, its offi cials, broadcasters to help them operate more suc- at least publicly, have not taken a stand on cessfully. At the moment, they are unwilling possible changes to the system. This is not to say what those powers may be. surprising. Until a Corporation is set up, BHRT RTV FBiH is seeking a solution in future is the title holder to all property and collects changes to the law that would give it its own huge funds for leasing it to RTV FBiH. The leg- property and defi nitely allow it to keep its rev- islative solution that distributes the RTV sub- enue from marketing. Following the October scription fee at a ratio of 50% to BHRT and 2010 elections, which further deteriorated 25% to each entity broadcaster (which has political and ethnic relations in Bosnia-Her- been implemented), and the same principle zegovina, RTV FBiH has been waiting for the for distribution of marketing revenue (which government to stabilise in order to clearly de- has not been implemented), gives BHRT signif- fi ne its proposal for resolving its status. There icant fi nancial security. BHRT Steering Board is practically no dispute within the Steering President Ahmed Zilic says that he advocates Board and management that the Law on consistent implementation of the Law on the the Public Broadcasting System needs to be Broadcasting System of BiH and only then is it changed to allow each broadcaster to keep possible to change the law. He warns that the its own marketing revenue (this basically has members of the Broadcasting System Steer- 48 The Media in South-East Europe – Comparative Media Law and Policy Study

ing Board may be held legally responsible for vices’ technical, programming and organ- not implementing the current law. However, isational activities. Zilic says he too is aware that if incumbent - Collection of a radio and television sub- politicians agree on something, laws can be scription fee. changed irrespective of principles. The law should allow for the possibility of The Offi ce of the High Representative (OHR), the public services transferring other jurisdic- which is still in charge of civil implementation of tions to the Corporation if necessary for ef- the Peace Plan for BiH and under whose pres- fi cient operations. sure the current law was passed, as well as the Communications Regulatory Agency (CRA) ad- ii) Radio and television subscription fee vocate the implementation of the current law, The current system prescribed by the law on but they leave room for the possibility that the distribution of revenue from the subscription law will be changed in legal procedure. fee at a ratio of 50% for BHRT and 25% for Evidently, the Law on the Public Broad- the public broadcasters needs to be changed. casting System has become a hamper- What should be established is a ratio of 25% ing factor for further development of the for the Corporation and 25% for each of broadcasting service and changes need to the three public broadcasting services. This be made to reduce the powers of the Cor- amount would be enough for the Corpora- poration defi ned by the law. This would tion’s operations in this scope. provide some kind of binding tissue among the three public services, which are obvi- iii) Marketing ously following the fate of the country’s Marketing revenue which is stipulated to be dissolution. Based on offi cial and unoffi cial distributed according to the principle of 50% proposals by the managements of the three for BHRT and 25% for each entity broadcaster systems, as well as current (probably also should be changed so that each broadcaster long-term) political realities in BiH, we have keeps the marketing it generates. The current defi ned a number of guidelines: solution in the law is not abided by anyway and it is contrary to logic that someone who i) The Corporation should have four compe- earns something (thanks to their skill and tencies prescribed by the law quality of their programme) must share that - Management of the broadcasting net- revenue with other television stations, es- work that would be owned by the Cor- pecially because this system would give the poration. This would give all three public three broadcasting services a great deal of services equal access to the broadcasting autonomy and, therefore, it is an illusion to network. A coherent body of the public support the current solution. broadcasting system would thus be created as none of the public services would iv) Property be able to step out of the system because The broadcasters do not bring their property they would not be able to broadcast their (except the transmission network) into the programme. Corporation. As RTV FBiH does not have its - Representation at EBU, purchase of capital own property, the BHRT building needs to be foreign programmes (major international divided at a ratio of 20% for the Corporation, sports events, EUROSONG). 30% for RTV FBiH and 50% for BHRT. As this - Co-ordination among the three public ser- is a huge building, these shares would be suf- Bosnia-Herzegovina 49

fi cient for the operation of all entities seated coming primarily from Croats related to in- in Sarajevo. Movable property would be kept suffi cient representation of their language by BHRT, while RTV FBiH would have the and political views. possibility of leasing equipment from BHRT A weekly programme should also be cre- or buying equipment that would become its ated on all three public services in which rep- property. resentatives of ethnic minorities, fi rst of all Requests to create a channel in the Croa- since the most numerous among them, the tian language within the broadcasting system Roma, would be able to express their views in BiH seriously generate an unstable situation through different forms. in the system as well as destabilising the over- The second crucial problem for the public all political situation in BiH. Although Croat broadcasting system in BiH is the collection of and Serb political parties support this option compulsory TV tax, which amounts to € 3.5 for now, this is a legislative and political issue per month for each household (for each TV and it would be hard to expect Bosniak politi- set in the case of legal persons). The collec- cal representatives to accept it because they tion rate is around 70% and the tax is col- believe it to be one more step toward the dis- lected via telecom operators together with integration of the country. Thus it is necessary landline telephone bills. Although a fi ve-year to add provisions to the Law on the Public Ser- agreement on collection expired last year, an vice Broadcasting System and Law on RTV of annex was made according to which telecom the BiH Federation prescribing that BHRT and operators agreed to collect the tax in the next RTV FBiH must have a strong IT and studio six months. In the meantime, a new solution centre in Mostar (the city with the largest con- should be found or the current one redefi ned. centration of Croats, which leans on western However, especially in the BiH Federation, Herzegovina, an area nearly 100% populated there are serious problems related to collec- by Croats). For the sake of cost-effectiveness, tion of TV tax from a technical point of view. one centre could be used by both broadcast- Although the Law on the Public Broadcast- ers. The opening of the centre would consid- ing System of BiH states in Art. 25 that bills erably increase coverage of events in Herze- or statements from business books of public govina, informing citizens across the country broadcasting services regarding TV tax claims about the people, their problems and thus are valid documents under the Law on En- also the political views from that part of the forcement Proceedings, the Law on Enforce- country. The absence of such content is one ment Proceedings does not recognise these of the main objections raised by Croat politi- documents. In other words, the laws are not cal representatives. harmonised, resulting in the situation that it The law should also introduce the possi- is not possible to collect overdue tax in court. bility that all three broadcasters must have a Even the Constitutional Court of BiH in 2010 programme once a week in which they could dismissed an appellation fi led by RTV FBIH present the ethnic views of the three con- against decisions passed by cantonal courts in stituent peoples (separately for each people) Zenica and Zepce, leaving collection of TV tax on contentious issues. These solutions (the in the BiH Federation up to the good will of centre in Mostar and such programmes) citizens. It should be noted that this problem would preserve the present integrity of the does not exist in the Republika Srpska, where public service and maintain multiethnic the Law on Enforcement Proceedings was newsrooms. They would also soften requests amended more than a year ago. As a result 50 The Media in South-East Europe – Comparative Media Law and Policy Study

of this situation, all three public broadcasters in the country, the Communications Regu- in BiH, i.e. the Steering Board of the Public latory Agency (CRA) has been faced with Broadcasting System in BiH, unanimously in- criticism for quite some time now, mostly sist on the following solutions (this is a rare from the Republika Srpska. Journalists and matter on which there is full consent): politicians believe the agency favours Sara- In order for RTV FBiH to be able to sue those jevo-based media, showing understanding who do not pay the TV tax, the Law on Enforce- for them and often “forgiving them unpro- ment Proceedings must be amended in emer- fessional conduct”, whereas it has stricter gency procedure at the level of the BiH Feder- criteria for stations based in the Republika ation to recognise as valid the bills and state- Srpska. In research carried out by the Media ments from business books of RTV FBiH, which Plan Institute in 2010 through in-depth in- is in charge of collecting tax in this entity. Non- terviews for UNDP in BiH, encompassing 30 recognition of these documents creates great journalists and editors across BiH, entity diffi nancial diffi culties not just for this broadcaster, ferences in relation to CRA were confi rmed. but also for the whole broadcasting system. With regard to the CRA, there were no The amount of court tax which must be objections about the system of regulating paid right away for lawsuits should be reduced broadcasters or against the Broadcast Code (now it is € 21 per case). In light of the effi - of Practice, but only about its implementa- ciency of courts, due to the number of lawsuits tion. The majority of representatives of me- (for example in Herzegovina around 100,000 dia from the Republika Srpska maintained x € 21), broadcasters often end up with more that CRA did not react strongly enough to fi nancial harm than benefi t from suing. what they considered were certain viola- The state needs to provide greater sup- tions of professional norms. Several inter- port for the fi nancial stability of public viewees mentioned the case of Federal Tele- broadcasters. Regardless of whether the vision, which broadcast an item in the news subscription fees will continue to be collect- programme claiming that the RS political ed together with telephone bills, electricity leadership should be considered equal with bills or using payment slips issued by broad- Hitler’s government. casters and by bill collectors, it is important However, in the complex political situ- for the state to sanction those who fail to ation, criticism of CRA has a lot of political pay the tax. This obligation is not a subscrip- weight. Authorities in the Republika Srpska tion; it is a tax – a kind of tax for possess- want to minimise all jurisdictions at state lev- ing a TV set which is used to fi nance public el, including CRA. A fact in their favour is that broadcasters. It is proposed that those who as a result of disagreement within the Council have not fulfi lled their obligation of paying of Ministers (the state government), the in- the tax should not be allowed to register cumbent director of CRA has been working in their car, obtain a passport or get any oth- technical mandate for the last two years. Serb er state certifi cates. Those who fail to pay political parties have accused him of working their traffi c fi nes or various other taxes are for Bosniak interests and have demanded that already being sanctioned this way. someone from the Republika Srpska take the place of director. b) Regulatory authority In relation to these events, we contacted As a result of numerous attempts at dis- CRA and asked for their position on the latest solution targeting all institutional activities efforts to question the integrity of the agency. Bosnia-Herzegovina 51

They responded that they have not heard or and ethnic wars waged via radio and televi- received a single offi cial request for recon- sion stations where, according to the opinion struction of the agency’s jurisdiction, despite of CRA, the code has not been violated. efforts to transfer powers from the state level Therefore, the following direction should to the entities. be insisted on: “From the very founding of CRA in - CRA must remain a body at state level 2001, some representatives of political par- which performs its activities indepen- ties have unoffi cially advocated the creation dently, based on professional and expert of so-called entity regulatory bodies. How- stands and legislation. ever, an action of that kind would mean - The director of CRA should be an expert in changes to the legislative framework that the communications sector (either in pro- establishes and defi nes CRA as a state insti- gramming or technical terms) with man- tution of BiH. As the Agency is a product of agement skills and experience. It may be the international community, it continues to made offi cial that the position of director in enjoy support and protection in maintain- principle is subject to ethnic rotation (Serb, ing its independence and there is no indica- Bosniak, Croat), but that the CRA Council tion that the support will be denied. Quite has the right to appoint a director of a dif- the contrary, the international community is ferent ethnic background if he or she has even more determined in its efforts to re- the best competences and references. inforce CRA’s fi nancial and functional inde- - CRA representatives should organise pendence through revision of the Law on meetings with media editors and owners Communications of BiH and to thus enable approximately once in two months, each one of the rare BiH institutions which is suc- time in a different city, to present the prin- cessful and which has justifi ed its existence ciples of the work of CRA and to discuss to continue to operate without political disputed and unethical contents appear- pressure”, ing in media. The evidently deep politi- is a special response stated by CRA. It fur- cal divide and different views on events ther says: in different parts of BiH result in different “As for ‘objections regarding the work views on individual radio and television of CRA’ that are coming from some media, contents. Meetings of this kind, which unfortunately, most of these objections are, were customary more than 10 years ago in our opinion, unfounded. What the media when CRA was being set up, would be an community does not want to understand is opportunity to exchange information, feel that there are other institutions that also have the pulse of people outside the BiH capital powers to solve their problems. We will con- and hear their opinions, as well as to built tinue to work as we have worked before, we mutual trust. will process cases, pronounce sanctions if we establish violations of the Agency’s rules, but 3.3 For online services by no means will we encroach upon the powers of other institutions.” There are 40% internet users in Bosnia-Herze- The last part of the statement of CRA (on govina.60 In terms of popularity, the internet is other institutions) refers to processing libel and defamation in courts, as well as requests 60 Data from 2010 from different research agencies. CRA’s last for CRA to be an arbiter in various political offi cial fi gure for 2009 is 37 % users. 52 The Media in South-East Europe – Comparative Media Law and Policy Study

the no. 2 medium, just after television.61 For traditional media should also be applied to more and more citizens, the web is the pre- the web. Web portals and traditional media in dominant way through which they receive in- their web editions should carry a sign saying formation. However, although the number of they recognise the Press Code, which should internet users in BiH has multiplied over the boost their credibility. This solution is good for last couple of years, its regulation is more mod- journalistic Art.s, but looking at the overall est than for broadcasting and the press. This context of internet content, it has its limita- opens the way for a great deal of abuse on tions. Namely, the internet is a multimedia the part of individuals as well as so-called offi - platform which also contains video and audio cial media portals, and damage to credibility of content, as well as a large number of things information. Thus, to summarise different pro- that do not fall under journalistic work. How fessional debates on this subject, we propose: should this be regulated? - Self-regulation of all content on the internet a) Establishment of two levels of self-regula- The next step, due to the specifi c char- tion on the internet acteristics of the internet compared to main- - Self-regulation of journalistic contents stream media, should be aimed in the direc- There is disagreement on how and even tion of developing a specifi c code for internet whether to regulate content in internet com- communication. Relevant experience of some munication, apart from what most legislation internet media in the neighbourhood and declares as criminal acts. As this discussion elsewhere in Europe should be used, includ- continues, it is advisable to build self-regula- ing the possibility that the more developed tion standards, the media’s own responsibility portals create their own codes. In developing for what they publish as well as of the citi- these codes, one should take into account the zens who participate in it. Positive experienc- already standardised guidelines on internet es in implementation of the Press Code (BiH use in public communication, to which some Press Council) and Broadcast Code of Practice internet portals point (http://www.globalnet- (Communications Regulatory Agency) should workinitiative.org/). This would also cover be used in development of ethical standards contents related to comments on Art.s, fo- of self-regulation. Support should be given to rums and blogs, i.e. channels of communica- an initiative of the BiH Press Council to join tion that are most susceptible to various viola- internet portals to standards contained in the tions of ethics, insults, intolerance and hate Press Code in BiH. speech. Most certainly, this system would Namely, in the conference “Internet – also include various video and audio contents Freedom without Boundaries” held in Sara- which do not fall under the jurisdiction of the jevo in September 2010, the Press Council BiH Press Council. initiated the inclusion of web portals in the - Creation of a self-regulatory body for the self-regulation system. Most editors of web internet portals supported the initiative agreeing that The body should combine the fi rst two professional postulates that are in effect for principles of self-regulation: self-regulation of journalistic content according to the postulates of the Press Code and self-regulation of 61 According to a survey from 2009, carried out through a poll, all other content. The body would have juris- television was chosen as the most popular medium by 79% of respondents, followed by the Internet with 11%, radio with 7% and diction over all websites which have providers newspapers 4%, Impact of Credibility on the Informational, Public Opinion and Educational Function of Media – R. Udovicic, 2010. in BiH. This includes portals and websites of Bosnia-Herzegovina 53 traditional media and websites of individuals. tice of continuous education in specifi c forms It would operate in line with an Internet Code of journalistic expression and internet editing of Communication which should be created skills in order to make better use of the in- taking into account international experience formation advantages of the internet. Portals and the BiH context. As the internet is a world- should also foster their own journalistic re- wide medium, i.e. it cannot be controlled in sources so that they are not mainly carriers of line with national laws, if this body observes information and comments, but also their pri- content related to BiH citizens on some other mary creators, both in the written and audio- websites which incite hatred, instigate vio- visual segments. In this regard, mainstream lence and so on, it would ask the relevant media portals have a lot of work ahead of bodies of that country to react appropriately. them because they do not use the commu- The body would react to such content after nication advantages which the internet offers receiving complaints (either from an individual enough and are often just an “electronic pic- or an organisation). Unlike acceptance of and ture” of mainstream newspapers or radio and adherence to the Press Code by news portals, TV programmes. How to communicate with by the very act of appearing on the web all your users and how to best use the advan- producers of websites with providers in BiH tages of the internet should become standard would be obliged to adhere to the Communi- themes in education and exchange of experi- cation Code that this body passes. ence among journalists and media managers, The body should create a register of web as well as internet administrators, at journal- media for professional communication, i.e. a ism schools, journalism and media workshops register of what we call mass media (web por- and seminars. The media community in BiH tals and traditional media websites). This would should express its interest toward journalism make a clear distinction from websites of vari- faculties so that these issues become manda- ous companies, individuals and so on, which of- tory and more present in journalism studies, ten violate informative values on the web. both theoretically and practically. b) Continuous education in internet journalism c) Culture of communication – in the educa- Internet media administrators, journalists and tion system their web newsrooms have the opportunity to Use of computers and training in information educate themselves using the huge potential skills is increasingly becoming part of the edu- offered by the internet for acquiring know- cation system. But the BiH education system how and information skills. Most internet as a whole lags behind in conveying know- portals were created in the fi rst place thanks how and mastering practical uses in everyday to their founders’ and owners’ enthusiastic life and work, including the use of the inter- exploration of the potential of the internet net as a medium for information and free ex- and least of all through classical forms of jour- pression. nalist and media education. The culture of communication on internet Everything good and bad is visible on the portals can be built effi ciently only within a internet; what is not visible are the standards, general social movement for building an in- criteria and methods on which journalists and formation society which contains, along with administrators build their performance to- a digital culture, also a culture of communica- ward the internet audience. It would be use- tion. This process should start in elementary ful for internet media to introduce the prac- schools and encompass the entire education 54 The Media in South-East Europe – Comparative Media Law and Policy Study

process in continuity. The NGO sector and CRA its powers, in order to enable regulation media should develop activities and cam- of content on the internet. With regard to a paigns to raise public awareness on the ne- separate self-regulation body for the internet, cessity of introducing appropriate education CRA has no position on that matter, but sup- courses and advancing existing courses in the ports the idea in principle. It is willing to pass education process. on its experience related to regulation, pro- We have already presented and explained gramme rules of conduct for broadcasters, as the idea of the BiH Press Council, the main well as experience related to professional and self-regulation body for press, related to self- ethical dilemmas. regulation of news contents on the internet. As for newsrooms of web portals, most The Press Council has already started imple- editors are not thrilled by the fact that there menting the idea. However, so far only three might be a body that oversees their work. web portals have agreed to publicly state that However, everyone we talked to points out they adhere to the BiH Press Code. They say that they do not have any contentious or ethi- that at least ten others have accepted the idea, cally unacceptable content and that if such a but have not offi cially joined the initiative. The body is established by the law, either on the Press Council, i.e. its Director Ljiljana Zurovac, basis of regulation or self-regulation, they are believes that a big problem is regulation of willing to accept it. However, on the other other content on the web (video content, hand, numerous journalists and editors of non-news content, forums and blogs) and newspapers and radio and TV stations who supports the recommendation that a com- participated in research on “Multiculturalism prehensive regulatory body be established for in BiH media”, implemented by Media Plan the internet. But she says that changes need Institute in 2010, believe that regulation or at to be made to the legislative framework that least self-regulation of the internet is essential covers media and communications, which is because that is where most hate speech ap- quite hard to achieve in the current political pears. Most editors said at the time that both context. Zurovac totally supports systematic CRA and the BiH Press Council should be in- (within the education system) and individual volved in some kind of control of the internet. (within media centres and NGOs, where the Press Council could also participate) educa- 3.4 For fi lm tion in new media and ethics in the new communication context. No specifi c suggestions are to be made for The offi cial position and practice of the this section. Communications Regulatory Agency (CRA) is that it regulates only the technical aspect of the internet. At this moment they see no way that they can take over the regulation of contents on websites hosted by providers licensed by the CRA for web hosting services. Helena Mandic, Director for Legal Affairs and Broadcasting, and Amela Odobasic, Chief of the Communications Sector, say that the legal framework needs to be changed, notably the Law on Communications of BiH which gives Bulgaria 55

Bulgaria 2 The regulatory status quo

Evgeniya Nikolova 2.1 Press

I Most noticeable characteristics in the Art. 40(2) of the Constitution is an important media sector provision for the press sector. It stipulates that an injunction on or confi scation of printed In the following some of the most signifi cant matter or other information medium shall be characteristics of the media landscape of Bul- allowed only through an act of the judicial garia, based on and taken from the country re- authorities in the case of an encroachment port of Evgeniya Nikolova, are (briefl y) given.62 on public decency or incitement of a forc- ible change of the constitutionally established 1 General data order, the perpetration of a crime, or the in-

Country proﬁ le Basic data Country population 7,563,710 Ofﬁ cial language/s Bulgarian Main ethnic groups Bulgarian 83.9; Turks 9.4; Roma 4.7 (% of population) Recognised minorities N/A Orthodox 82.6; Catholics 0.6; Protestants 0.5; Muslims 12.2; Religious groups (% of population) Atheists 3.9; Jewish 0.2 Average salary per month (€) 325.19 Media market data Total market volume advertising 265.26 million market (€) Gross advertising budget in 2009 (€) 528.00 million Press 7 (main) dailies, 6 (main) weeklies Newspapers Prices for dailies BGN 0.90 (€ 0.46) per issue. 12 magazines Magazines Prices for magazines between BGN 2 (€ 1.02) and BGN 10 (€ 5.12). Broadcasting Television (terrestrial) PSB: Comm.: 1 (national coverage), 3 (national coverage); 4 (regional coverage). 16 (regional coverage). TV advertising revenues in 2009 (€) PSB and Comm.198.07 million PSB: Comm.: Radio 3 (national coverage) 16 (national coverage) 30,677,983 (State subsidy TV) Income TV & Radio (€) 24,569,486 (State subsidy Radio) 10 main ISPs; Internet Internet costs between € 8.2 Euro and € 20.5 monthly; as triple play (telephony, cable television and internet) up € 15.3.

62 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 56 The Media in South-East Europe – Comparative Media Law and Policy Study

110 feature fi lms (14 distributed by the cinemas, 94 broadcast, 2 other purposes). € 4,536,285 State fi lm funding per year; fi nancial means from Film BNT between 6% and 19%; European funds between 6% and 18%; other international funds between 2% and 23%; from international distribution companies between 1% and 11%. Ticket prices in the cinemas between € 3.6 and € 5.8.

citement of violence against anyone. Such an ket by offering different licensing regimes, injunction suspension shall lose force if not dependent on whether the broadcaster will followed by confi scation within 24 hours. broadcast its programmes through a terres- Following from this, it could be said that this trial analogue network or a digital one. Art. constitutional provision narrows the possibil- 6(3) LRT is a special provision, applicable only ity to enjoin printed material, as for example, for BNR and BNT: They have to provide me- actions by the police to confi scate print mate- dia services for all citizens of the Republic of rials are not possible. Bulgaria to foster, for example, the develop- The press content is not subject to specifi c ment and popularisation of the Bulgarian legal provisions. However, there exists a Code culture and Bulgarian language as well as of of Ethics which holds for provisions relating the culture and the language of the citizens in to the protection of freedom of speech, the compliance with their ethnic belonging. The rights of citizens to access full and reliable LRT also provides the obligation to encourage information, personal dignity and sanctity of the production and distribution of European personal life of citizens, defending the unifi ed works in on-demand audiovisual services or professional and ethical standards for journal- radio services. But no sanction is stipulated, if istic activities, etc. The provisions do not apply the obligation is not fulfi lled. Finally, the LRT if the action in question serves the public in- contains detailed provisions regarding fi nanc- terest. The “National Council for Journalistic ing through fees of the public radio and tele- Ethics” Foundation is responsible for moni- vision broadcasters as well as through state toring compliance with the Code. In cases of budget subsidies, advertising and revenues violation the Commission can only publicly from other activities related to broadcasting. reprimand the respective media by expressing There is no mechanism stipulated regarding its disapproval of the form or content of the how to calculate the amount of the subsidy contested material. There are no other sanc- and how much is really needed to fulfi l the tions that can be imposed. In consequence public remit. citizens prefer to use civil or penalty proce- The competent regulatory authority on the dures, if their rights have been abused. content of radio and television programmes is the Council for Electronic Media (CEM) regu- 2.2 Broadcasting lating radio and audiovisual activities (linear and non-linear media services) through reg- Bulgaria has a dual broadcasting system. The istration or issuing of licences for radio and Law on Radio and Television (LRT), which has television activities, and through continuous also transposed the provisions of the AVMSD, supervision over the activities of radio broad- is the main law regulating broadcasting. It casters and audiovisual media services provid- regulates the access to the broadcasting mar- ers. The CEM decides whether to impose a Bulgaria 57

fi ne on the respective radio broadcaster or amount should not be less than the total of media service providers and the extent of it, the average budgets for the previous year of or to revoke the licence or the registration, if 7 feature fi lms, 14 full-length documentaries activities are not in compliance with the legal and 160 minutes of animation. provisions or with the conditions included in the licences. Especially the current electoral 3 Main challenges in media practice procedure for the CEM does not provide suffi cient guarantees for independence from 3.1 For the press political powers or economic interests as the CEM members are directly elected by state in- The press is subject to self-regulation. The stitutions without a special legal provision for “National Council for Journalistic Ethics” has their nomination and without suffi cient legal reviewed and decided only 17 cases since guarantees for their impartiality, professional- 2006; stated violations are mostly incorrect ism and assurance that they represent the in- given information, one-sided data entry and terests of signifi cant society groups. biased selection of the sources of informa- There is also the National Council for tion. In cases of violation the Commission can Self-Regulation (NCSR), which promulgated only publicly reprimand the respective media Ethical Rules for Advertising and Commercial by expressing its disapproval of the form or Communication in 2009, addressing radio content of the contested material. There are and television commercial communications no other sanctions that can be imposed. as well as print and other types of published The main problem with regard to inde- media. pendent journalism is that the real owner relationships in press enterprises are not clear. 2.3 Online services 3.2 For broadcasting The online services are not specifi cally regulated. There are (only) Ethical Rules for Adver- Although the LRT contains detailed provisions tising and Commercial Communication, the regarding the fi nancing of the public radio and common rules of the Bulgarian Penalty Act as television broadcasters and CEM through fees, well as the Law on copyright and neighbour- the practical implementation of those provi- ing rights which apply to online services. sions has been postponed every year since 2002 through amendments of the law. In addi- 2.4 Film tion, there is no mechanism stipulated regarding how to calculate the amount of the sub- The state, through an Executive Agency sidy and how much is really needed to fulfi l the named the National Film Centre, supports the public remit. The independence of the public Bulgarian fi lm industry which, under specifi c service broadcasters is therefore not secured. circumstances, may also include co-produc- The huge number of Bulgarian television tions with countries/parties to the European and radio programmes does not automati- Convention for cinematographic co-produc- cally indicate media diversity, respectively dition or other countries Bulgaria has sealed ar- versity of opinion. There is no regulation on rangements with in the fi eld of fi lm industry media concentration, nor are there measures and audiovision, on an annual basis. Accord- or a political will to work on this subject. For ing to Art. 17 of the Law on fi lm (LFI), the example, the television market is dominated 58 The Media in South-East Europe – Comparative Media Law and Policy Study

by two major players and, moreover, they of- of the rights of defendants in criminal pro- fer similar mass-orientated formats. ceedings and the right of personal and family life. The Code of Ethics provides that pub- 3.3 For online services lic persons enjoy a lower degree of protection of their private sphere according to the Content providers are subject to the general jurisprudence of the ECtHR, whereby public legislation. This means that everything that is interest can justify appropriate information forbidden offl ine is similarly not allowed online. about the person in question. In addition to the regulations, jurispru- 3.4 For fi lm dence of the Bulgarian courts generally applies the standards set by the ECtHR in There is a discrepancy between the legal a sufficient manner. This was verified by framework for fi lm funding and actual prac- the ECtHR in the case of Rumyana Ivano- tice. The National Film Centre calculates the va v. Bulgaria (application No. 36207/03) amount of the state support due to the legal whereas the Court holds unanimously that provisions and requests it from the state. Since there is no violation of Art. 10 ECHR on the 2005 until now there has been a difference part of Bulgaria. The applicant, Rumyana between the requested amounts and the state Dencheva Ivanova, a reporter for 24 Hours, donations of BGN 19,772,066 (€ 10,109,452) one of Bulgaria’s leading daily newspa- whereas the missing fi nancial means in 2010 pers, wrote an Art. about Mr. M.D., a well- are BGN 10,900,000 (€ 5,573,167). known politician and Member of Parlia- ment, which was published in the daily. II Proposals for remedying the situation Her statements were defamatory and she published facts which she knew or ought 1 Constitutional law aspects to have known to be dubious. Ms Ivanova complained that the proceedings against No specifi c suggestions are to be made for her in Bulgaria were unfair and that her en- this section. suing conviction for defamation infringed her right to freedom of expression. The de- 2 Cross-cutting issues cisions of the Bulgarian City Court found that the applicant did not sufficiently verify 2.1 General remarks her information prior to its publication and that, in her desire to publish quickly and The content obligations of the journalists in against best journalistic practice, she failed mass media are suffi ciently regulated by the to consult trustworthy sources. The ECtHR Code of Ethics of the Bulgarian Media and was therefore satisfied that the reasons the Law on Radio and Television with one given by the Bulgarian courts for convict- exception, which will be presented below. ing the applicant were relevant and suf- The Code of Ethics determines obligations ficient and that the manner in which the for correctness of the information and for case was examined showed full recogni- distinction between value judgements and tion of the conflict between, on the one statements of fact. There are no restrictions hand, the right to impart information and, stipulated for issuing critical statements. Be- on the other hand, the protection of the sides, there are provisions for the protection reputation and the rights of others. Bulgaria 59

Radomir Cholakov63 and Grisha Kambou- sion and has not yet been adopted by par- rov64 confi rmed the conclusion that the right liament.67 The provision which is still in force and obligations of Bulgarian journalists are (amendments State Gazette No. 27 from 10 suffi ciently regulated by the Code of Ethics of April 2009) provides the same penalties, but the Bulgarian Media and the Law on Radio only in the case of incitements to national and and Television. ethnic violation as well as hate and race discrimination. The other types of discrimination, 2.2 Incitement to discrimination, violation e.g. because of gender, age, family and fi nan- and hatred cial status, are not included in the provision at present. On the one hand the adoption of the As well as the Code of Ethics the LRT provides government’s draft could be recommended content restriction for hate speech, gratuitous as a contribution to the protection of person- portrayal of violence and discrimination. Nev- al rights against violation by discriminating ertheless, the European Commission against against speech, which could not be achieved Racism and Intolerance (ECRI) noted in its suffi ciently through all the years after the Fourth Report on Bulgaria that the Commis- challenges in 1989. On the other hand it has sion is concerned about information from to be seen that the nature and severity of the ethnic and religious minorities concerning penalties could hamper journalistic work and manifestations of intolerance and incitement discourage journalists (the so called “chilling to racial, ethnic and religious hatred in the effect”). Radomir Cholakov affi rmed that this press and on television.65 The ECRI recom- amendment may have very dangerous con- mended that the Bulgarian authorities make sequences restricting the freedom of expres- every effort to prosecute and punish mem- sion. Grisha Kambourov is of another opinion bers of the media who incite racial hatred.66 and stated that such a kind of rule could have In 2010, the Bulgarian government made a a “disciplining effect”. remarkable step forward concerning this mat- Besides, the ECRI recommended that the ter by adopting a supplemented draft to the Bulgarian authorities provide the Council of Bulgarian Penalty Code. It provides imprison- Electronic Media (CEM) with human and fi - ment up to four years or sanctions from BGN nancial resources which ensure suffi cient pro- 5,000 (€ 2,556) to BGN 10,000 (€ 5,113) for fessionalism and the capacity of its members incitement to discrimination, violation and to be more aware of those issues.68 This rec- hate by mass media based on race, national- ommendation can be fully supported. ity, ethnic belonging or other characteristics. This amendment has been criticised by jour- 2.3 Protection of journalists sources nalists as a violation of freedom of expres- In 2003, the Law on protection against discrimination was adopted (State Gazette No. 86 from 63 Radomir Cholakov is chairman of the self-regulatory Ethic Commission on Printed Media and chief legal adviser of WAZ. 30 September 2003, last amendments State He is vice chairman of the working group which is preparing the Gazette No. 103 from 29 December 2009). It new draft of the law on broadcasting. He has been interviewed by the national correspondent regarding press issues and issues concerning the new draft of the law on broadcasting. 64 Grisha Kambourov is executive director of the Association of 67 Art.s available at: the Bulgarian Broadcasters (ABBRO). He has been interviewed http://www.trud.bg/Art..asp?Art.Id=648770 by the national correspondent regarding broadcasting issues. http://www.trud.bg/ 65 ECRI, Report on Bulgaria, adopted on 20 June 2008 and Art..asp?Art.Id=648733. published on 24 February 2009, p. 31. 68 ECRI, Report on Bulgaria, adopted on 20 June 2008 and pub- 66 Ibid., p. 32. lished on 24 February 2009, p. 32. 60 The Media in South-East Europe – Comparative Media Law and Policy Study

provides a special Commission for Protection be mandatory only in the case of pending court against Discrimination. The provisions of the proceedings and if the legitimate interest of dis- Law require all natural and legal persons to sub- closure clearly outweighs the public interest in mit on the demand of the Commission all avail- the non-disclosure. able information concerning a given case of dis- In the opinion of Grisha Kambourov the crimination. Refusals to submit information are journalists’ sources are protected suffi ciently liable to administrative sanctions between BGN by the private broadcaster and especially by 250 (€ 104) and BGN 2,000 (€ 1,023). This pro- the big broadcasters e.g. Nova and bTV. Nev- vision might be in confl ict with Art. 10 ECHR, ertheless, these provisions of LRT have to be conceived as a guarantee of the confi dentiality seen as critical. They could particularly impair of journalists’ sources of information.69 There- investigative journalism in the small regional fore, a special provision in the law could be and local media. provided which would protect the journalists’ sources and would require submitting informa- 2.4 Self-regulation tion in this regard only if there is a grave interest in knowing the identity of the source, which As described in more detail in the full report, overrides the interest in concealing it. the self-regulatory mechanisms are not broad- The protection of journalists’ sources might ly accepted yet, because of a lack of a long- also be contravened by Art. 15 LRT, which stip- lasting tradition and because of the missing ulates in its section (1), that the media service effective sanctions. This conclusion has been providers shall disclose their sources of informa- affi rmed by Elly Guerganova, chairperson of tion not only in cases of pending court proceed- the National Council for Self-Regulation.70 ings but also in the case of pending proceedings by CEM. According to Art. 15(2) LRT journalists a) Press are in the former case also obliged to disclose Radomir Cholakov commented on the effi - the sources of information not only to the audi- ciency of the self-regulation of the press that ence but also to the management of the media it is better to convince and educate than to service providers. And Art. 15(4) LRT says that impose sanctions. Correspondingly, the Ethic “journalists shall be obliged to keep secret of Commission on Printed Media has only re- the source of information if this is explicitly reviewed and decided 17 cases from its found- quested by the person who has provided it”. ing in 2006 up to now. Therefore, and to These regulations provide obligations which foster the acceptance of the self-regulatory weaken the freedom of expression in broadcast- mechanism and faith in it, it could be advising. Not only that they stipulate the active obli- able to intensify the publicity of the Commis- gation to disclose sources of information also in sion and its work. case of a simple authority’s demand and also to the management of the media service provid- b) Broadcasting ers, moreover the person who has provided the With regard to the self-regulation for the broad- information must explicitly request their protec- casting sector according to the new Art. 126g tion. Therefore, it is recommendable to abolish LRT, the CEM is obliged to impose penalties Art. 15(2) and (4) LRT and to amend Art. 15(1) between BGN 2,000 and BGN 5,000 on media where disclosure of journalistic sources has to

70 Elly Guerganova has been asked by the national correspon- 69 In this spirit Dinko Kanchev, IRIS 2003-10:24. dent regarding the self-regulation. Bulgaria 61 service providers who do not comply promptly media.”71 Press transparency is a problem in with resolutions of the self-regulatory authori- Bulgaria, which the cabinet intends to solve ties - Ethic Commission of the “National Coun- with new amendments on the Law on com- cil for Journalistic Ethics” Foundation and/or pulsory deposit of printed or other works National Council for Self-Regulation. But the (State Gazette No. 87 from 5 November CEM has not been authorised by law to review 2010). According to the adopted Art. 7a (1) the case again before imposing the penalties. LCDPOW every periodical printed work shall Whether such an administrative act, based publish information about the “real owner” (merely) on the violation of the Ethic Codes is of the publication in the fi rst issue of the year legal, remains to be seen in future proceedings and in case of a public company according to before the Bulgarian administrative courts. the Law on public offer of securities it shall According to data given by Elly Guer- only publish information about the compe- ganova, there are no sanctions imposed by tent regulatory authority. According to Art. the CEM according to Art. 126g LRT yet. She 7a (3) the publisher is obliged to submit a confi rmed that there are different opinions statement to the Ministry of Culture which among the media experts concerning the le- names the “real owner” of the publication gality of self-regulation, because it might con- or the competent regulatory authority. The fl ict with the legal responsibilities of CEM. effi ciency of this regulation has to be seen In order to clarify this matter a recom- as critical because of the facts that it has nei- mendation might be to adopt legal provi- ther been stipulated that documents have sions in the new broadcasting act, which to be added as proof nor is there a proce- declare self-regulation by certifi ed institu- dure for checking the statements and asking tions permissible in principle, by maintaining for additional evidence if required. The Law the competence of CEM as legal supervision does not provide content examination of the (“co-regulation”). This view was also ex- statements but only supervision if the state- pressed by Elly Guerganova, who stated fur- ment has been published and submitted thermore a will of the working group, which by the Ministry of Culture respectively. The drafts the new broadcasting law, to provide sanctions for not fulfi lling the obligations ac- rules concerning co-regulation. cording to the Law are between BGN 1,000 But both Elly Guerganova and Grisha (€ 511) and BGN 2,000 (€ 1023). There is Kambourov expressed concern over the lack of course a penalty liability for statements of dialogue with the regulatory authority with untruthful content, but the penalty pro- (CEM) on this issue. cedure strives for another goal and takes a long time. 3 Sector-specifi c regulation Otherwise, it is clear that one Ministry could not act as a regulatory authority and 3.1 For the press there is no regulatory authority on the press. Moreover, as mentioned in the main report, Transparency of the media (ownership situa- the purpose of the LCDPOW is to save the tion) has been underlined by the Committee Bulgarian cultural heritage and not to regu- of Ministers as “necessary to enable members of the public to form an opinion on the value which they should give to the informa- 71 Recommendation No. R (94) 13 of the Committee of Minis- ters to Member States on measures to promote media trans- tion, ideas and opinions disseminated by the parency, adopted on 22 November 1994. 62 The Media in South-East Europe – Comparative Media Law and Policy Study

late press ownership. However, there is no of Public Service Broadcasting, “the legal other law concerning the press. framework governing the public service The problem with transparency of the broadcasting organisations should clearly press ownership has to be reviewed to- stipulate their editorial independence and gether with the broader media concentra- institutional autonomy”. tion issue and the fact that Bulgaria does In accordance with Art. 55 seq. LRT, not have specific regulation on media con- the public broadcaster BNT and BNR have centration. The Commission on Protection a management board and a director gen- of Competition (CPC) checks media con- eral. The directors general are elected and centration cases according to the general released by CEM. The management board rules of the competition law. It has the ex- consists of five members, approved by CEM pert knowledge concerning ownership and on the proposal of the respective direc- especially media ownership and a large da- tor general. The directors general and the tabank. If Bulgaria adopts special rules for members of the management boards per- regulating the media concentration, the form their activities according to contracts CPC will be the “natural” selection as a signed by the Chairperson of CEM. There competent authority. But independent of is no independent supervisory board within this the CPC could efficiently review the the organisation of the public broadcasters ownership relations in the press and do the which controls the work of the manage- supervision. ment. Supervision of the activity of radio The amendments of LCDPOW were adopt- and television operators for the observa- ed at the beginning of November 2010. There- tion of the LRT is carried out by CEM (Art. fore, it could not be expected that the Bulgar- 32(1) No.1). ian government will change its point of view These rules on appointment and dismissal and shift the responsibility to another authority of the directors general and the members of for the immediate future, but only after having the management board as well as those on experience with the application of the Law. Ra- supervision cast serious doubts on the inde- domir Cholakov is optimistic and believes that pendence of BNT and BNR from CEM and new regulation will contribute to (increased) entail a high risk of at least indirect state in- transparency of press ownership. tervention, especially since similar doubts exist with regard to election/appointment of the 3.2 For broadcasting members of CEM. There is no specific EU legislation which a) Public service broadcasting prohibits the solution provided for in the - Structure and risk of state intervention present Bulgarian media laws. However, According to the jurisprudence of the again there is recognised European guid- ECtHR72, in which the Court refers to Rec- ance on the question of how to establish ommendation Rec. (2007)3 on the Remit of and preserve the independence of public public service media in the information soci- service broadcasters. The Council of Eu- ety and the Recommendation no. R(96)10, rope has shown the way to follow with the on The Guarantee of the Independence adoption of Recommendation No. R (96)10 on the Guarantee of the Independence of Public Service Broadcasting and has elabo- 72 Wojtas-Kaleta v. Poland, judgement of 16 July 2009, Appl. 20436/02, § 21; Manole and others v. Moldova, op. cit., § 102. rated and adjusted these basic principles Bulgaria 63 in further documents73. This Recommenda- European Commission74 is adjustment in the tion stipulates that “the rules governing light of the technological changes which have the status of the boards of management of fundamentally altered the broadcasting and public service broadcasting organisations, audiovisual markets. Therefore the Commis- especially their membership, should be de- sion emphasises the need to clarify the State fined in a manner which avoids placing the aid rules with respect to the diversifi cation of boards at risk of any political or other in- the publicly funded activities. On the basis terference”. of technological neutrality the Broadcasting A restructuring of CEM as described below Communication states clearly that Member would already help to improve the indepen- States are of course free to allow public ser- dence of BNT and BNR. However, a true insti- vice broadcasters to offer new services. But tutional autonomy of public service broadcast- the Member States can either clarify in a very ing could be much better served by BNT and precise manner the public service remit with BNR establishing their own supervisory boards respect to the application of the new tech- consisting in their majority of representatives nologies and clearly entrust public service of relevant civil society associations nominated broadcasters with these tasks or they must by law (e.g. trade unions, employers and in- introduce a new ex ante assessment before dustry associations, churches, consumers, edu- signifi cant new services are launched on the cation, science, arts, culture, sports, children market. and youth, family and political parties). Even Art. 7(5) of the Bulgarian LRT includes representatives of local, regional or national rules on the possible diversifi cation of pub- governmental institutions could be included, lic service broadcasters: “(…) National public provided that they constitute only a clear mi- service broadcasting, who: (…) 5. apply the nority. These supervisory boards should have new information technologies.” In addition the right to elect and dismiss the directors gen- Art. 45 LRT includes entrustment with respect eral, approve the appointment of the members to new activities: “(1) The Bulgarian National of the boards of management proposed by the Radio and the Bulgarian National Television directors general and supervise their activities. shall introduce and offer new radio and tele- These recommendations have been fully sup- vision services. (2) Bulgarian National Radio ported by Radomir Cholakov, the vice chair- and Bulgarian National Television shall create man of the working group, who is preparing conditions for distribution and implementa- the new draft of the broadcasting act. But a tion of digital and other new technologies in political will is needed. the radio and television activity.” - Rules with respect to new services In the light of the new Broadcasting Com- One of the main modifi cations of the new munication, these provisions of the Bulgarian Communication on the application of State LRT seem to be too broad and not precise aid rules to public service broadcasting of the enough. This could be even more problematic, since the Bulgarian law does not provide for an ex ante test for signifi cant new services. 73 Declaration of the Committee of Ministers on the guarantee of the independence of public service broadcasting in the Therefore, it is recommendable, that Bul- member states (adopted by the Committee of Ministers on 27 September 2006 at the 974th meeting of the Ministers’ Depu- garia either clarifi es in a very precise manner ties); Resolution No. 1 “The Future of Public Service Broadcast- the public service remit with respect to the ing” of the 4th European Ministerial Conference on Mass Me- dia Policy (Prague, 7 and 8 December 1994); Recommendation CM/Rec (2007)3 on the remit of public service media in the information society. 74 Offi cial Journal C 257 of 27 October 2009, p. 1-14. 64 The Media in South-East Europe – Comparative Media Law and Policy Study

application of new technologies and clearly ing Communication codifi ed the Commission’s entrusts public service broadcasters with decision-making practice. The latter was im- these tasks, or that they introduce a new ex proved by clarifying that the 10% cap for gen- ante assessment before signifi cant new ser- eral reserves was to be calculated by reference vices are launched. The ex ante assessment to the total budget, and not the level of public shall include two steps (Para. 88 of the new funding. In concrete: this means that, by way Broadcasting Communication): of exception, public service broadcasters may be - Assessment of whether the new services allowed to keep an amount in excess of 10% of meet the democratic, social and cultural the annual budgeted expenses of their public needs of society (otherwise called the service mission in duly justifi ed cases. “public value” or “character”). The assess- According to Art. 70(6) LRT, the excess ment of the public character of a service is of the income over the expenses at the end within the competence of Member States. of the year shall be included in the budget The new Broadcasting Communication for the following year. Bulgarian law does contains no restrictions in this regard; and not limit the annual amount transferable - Assessment of the impact of the service on into the following year’s budget, whereas - the market. In assessing the impact of the as described above - the Commission con- service on the market, Member States have siders 10% of the annual budget an ac- to take into account a number of criteria ceptable limit. Therefore, the amendment (the existence of similar or substitutable of Art. 70(6) LRT in this spirit is strongly offers, editorial competition, market struc- recommended. ture, market position of the public service Besides, the LRT does not include rules on broadcaster, level of competition and po- how to determine the fi nancial needs of the tential impact on private initiatives). public service broadcasting companies. The The outcome of the assessment is the inclusion of such rules designed to exclude result of a balancing exercise of both com- overcompensation incompatible with State ponents: the impact on the market with the aid rules would help to prevent incompatibil- value of the services in question for society. ity with EU State aid provisions. - Financing Also, as regards the risk of under-funding, The Commission considers in general that the setting up of an independent commission State funding of public broadcasters is nor- examining the fi nancial needs of the public mally necessary for the undertaking to carry service broadcasters, based on their legally out their public service task; as a general rule prescribed remits and their implementation it is necessary that the amount of public com- by programmes and predefi ning the amount pensation does not exceed the net costs of necessary which will be included in the State the public service mission. However, public budget for the fi nancing of the public broad- service broadcasters may retain yearly over- casters, could be considered. compensation above the net costs of the public service to the extent necessary for securing b) Commercial broadcasting the fi nancing of the public service obligations. - Licensing The new Broadcasting Communication pro- There is one considerable case about the vides for specifi c rules on how fi nancial reserves licensing procedure for radio broadcasting, can be built up, used and maintained from where Bulgaria was found guilty of infringing year to year. On this point the new Broadcast- Art. 10 ECHR by the ECtHR (Glas Nadezhda Bulgaria 65

EOOD and Elenkov v. Bulgaria75). The Court This conclusion also confi rmed the statement noted in its judgement that the NRTC (the of Grisha Kambourov that “transparency and forerunner of CEM) objective criteria are missing by ranking the “had not held any form of public hearing applicants for licence and taking the fi nal de- and its deliberations had been kept secret, decision. Therefore, the Administrative Supreme spite a court order obliging it to provide the Court repealed most of them.” applicants with a copy of its minutes. Further- - Licensing and registration procedure more, the NRTC had merely stated in its deci- The Bulgarian LRT and the Law on Elec- sion of 2 October 2000 that Glas Nadezhda tronic Communication provide four different EOOD had not or had only partially corre- procedures for broadcasters to acquire access sponded to a number of its criteria. No reason- to the media market, depending on which ing was given to explain why the NRTC came way of technical distribution is sought: the to that conclusion or why it had exercised its CEM is responsible for licensing procedures discretion to deny a broadcasting licence.” for analogue terrestrial broadcasting, differ- Furthermore, in Para. 51 ent licensing procedures for digital terrestrial “the Court notes that the guidelines ad- broadcasting, and registration procedures for opted by the Committee of Ministers of the cable and satellite broadcasting, while the Council of Europe in the broadcasting regu- CRC is responsible for the permitting proce- lation domain call for open and transparent dures for analogue terrestrial broadcasters, application of the regulations governing the which are registered by CEM. licensing procedure and specifi cally recom- Bearing in mind the European principles of mended that “all decisions taken [...] by the equal opportunities and technical neutrality, it regulatory authorities [...] be [...] duly rea- must be strongly recommended that the Bul- soned [and] open to review by the competent garian legislator provides only one content li- jurisdictions”.76 censing procedure independent of the technical It has to be noted that there was some way of distribution. Besides, such a regulation progress after these judgments. Today the would regulate the legal loophole in the Bulgar- decisions of the CEM include a justifi cation, ian legislation concerning television and radio the sessions of the members of the CEM are programmes which are only broadcasts via in- held publicly and the minutes of the meetings ternet (online streaming). According to the legal must be published on the website of CEM acts in force these programmes neither have to within three days. As the relevant court for be licensed nor registered. Therefore, CEM does the review of CEM decisions, the Administra- not supervise them at all. With respect to the tive Supreme Court takes all relevant proto- television programmes this can be regarded as cols into consideration. an incomplete transposition of the Audiovisual Nevertheless, it should be mentioned that Media Services Directive (AVMSD). there is still a lack of independence and impar- This single licensing procedure must be tiality (see above), which impacts on the ad- based on equality, transparency, non-discrimi- ministrative discretion of CEM in the licensing nation and impartiality. procedures and shows an effect in the results. - Media concentration As described in the full report, the Bulgar- ian media market and its economic ties have 75 Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, been subject to considerable changes in the judgement of 11 October 2007, Appl. 14134/02. 76 Ibid., § 50. last few years. This concerned the broadcast- 66 The Media in South-East Europe – Comparative Media Law and Policy Study

ing content as well as the terrestrial digital The representative of the private broadcaster, distribution of broadcasting. Because of non- Grisha Kambourov, considers that “the pub- existing specifi c media concentration rules, lished data in the register of CEM and the only the general competition law was ap- Registry Agency are enough and everyone plicable. The concentrations were approved can see who the owner is.” only from a fi nancial point of view, but not Media pluralism can and should be se- according to media diversity criteria. More- cured (also) by licensing through the choice over, the real owners of big players in the con- of a certain broadcaster and the selection of centration process, like the offshore company a certain programme and thereby the content NURTS (Mancelord Limited), were not clear. which will be transmitted in it. According to Nevertheless, the Commission on Protection the LRT, the multiplex operator has to trans- of Competition (CPC) decided the case with- mit three type of programmes: programmes out further investigation and without consid- which have must-carry status according to eration of other aspects than competition/ law (for the fi rst stage of digitalisation these market criteria.77 are bTV, Nova, Pro.BG, TV7 and M.Sat); pro- Concerning the diversity of media content grammes whose type and profi le have been the association of private broadcasters (AB- assigned by the CEM and programmes whose BRO) is opposed to specifi c media concentra- type and profi le have been agreed with the tion rules,78 like e.g. limiting the number of CEM. Which criteria CEM has to apply by as- licences one broadcaster may have or restric- signing or agreeing respectively the type and tions with regard to the share of audience or profi le is not regulated by the LRT. Therefore, in case of a dominant position in other media- providing criteria in the law such as the con- relevant markets. The political will to imple- tribution to diversity of opinion and the con- ment this kind of regulations yet is missing. tribution to regional and local identity could Given this, it can realistically only be recom- be recommended. Ownership could be an mended that the competent regulatory au- additional indication by reviewing this kind of thorities should at least fully implement the criteria. Moreover, clear and strict transpar- applicable law. This conclusion has been con- ency rules on this issue could be considered, fi rmed by Radomir Cholakov, who stated that especially in view of the above cited Recom- the solution of the problems is “not question mendation of the Committee of Ministers on of law, but effi ciency of the executing au- measures to promote media transparency. thorities: CPC, tax authorities and the police.” His suggestion to provide transparency with c) Role of the regulatory authority in practice regard to the ownership relations of broad- The 47 Member States of the Council of casters through a regulation which is similar Europe, including Bulgaria, have adopted a to the new regulation of press ownership Recommendation79 and a Declaration80 con- has not been taken up by the working group cerning the independence and functions of which prepared the new law on broadcasting.

79 Recommendation No. R (2000) 23 of 20 December 2000 of 77 CPC, Decision No. 709 of 22 June 2010. the Committee of Ministers to Member States on the indepen- 78 The opinion was expressed by the executive director of AB- dence and functions of regulatory authorities for the broad- BRO, Grisha Kambourov, during the discussions on the new casting sector. broadcasting law, available at: http://www.capital.bg/biznes/ 80 Declaration of the Committee of Ministers on the indepen- media_i_reklama/2010/07/30/940336_opit_poreden_gresh- dence and functions of regulatory authorities for the broadcast- ki_ne_sa_razresheni/; and personally when contracted by the ing sector (adopted by the Committee of Ministers on 26 March national correspondent. 2008, at the 1022nd meeting of the Minister’s Deputies). Bulgaria 67 regulatory authorities for the broadcasting the right to nominate members of CEM in sector. The Recommendation states that “the proportion to their seats in the Assembly. rules governing regulatory authorities for the Advantage: opposition parties also have broadcasting sector, especially their mem- an infl uence on the composition of CEM; bership, are a key element of their indepen- - The number of institutions having the right to dence. Therefore, they should be defi ned so appoint/elect members of CEM is expanded, as to protect them against any interference, preferably by civil society organisations; or in particular by political forces or economic - CEM is restructured (like the model in Ger- interests”. Furthermore, the Recommenda- many): The Council is enlarged. It consists tion demands that “the rules and procedures mainly of honorary representatives of civil so- governing or affecting the functioning of reg- ciety organisations fi xed by law, possibly also ulatory authorities should clearly affi rm and of the National Assembly, of political parties protect their independence”. or even of the government under the condi- One of the most important provisions tion that the representatives of the latter can for securing the independence of regulatory never form a majority. This new Council takes authorities (with possible subsequent effects the basic important decisions and elects the on the independence of public service broad- reinforced full-time management board, casting) is the rule on election/appointment which does the day-to-day business and pre- and dismissal of the members of its leading pares the decisions of the Council. body. The solution chosen by the Bulgarian LRT (three members elected by the National d) On-demand services Assembly and two appointed by the President Art. 19(3) LRT includes some obligations con- of the Republic) does not seem to be per se cerning the on-demand-services and sanc- in contradiction with European rules. There tions, but no sanctions can be imposed in cas- are similar examples in other European states. es where these obligations are not fulfi lled. Whether it achieves its aim of securing inde- The provision of appropriate sanctions could pendence depends very much on the interplay be considered. and cooperation of the institutions concerned and on the political culture in the country. 3.3 For online services However, the model used in Art. 24 LRT bears inherent dangers for independence At present there is no competent authority for due to the very limited number of institutions online services. As shown above, CEM does electing or appointing the Council members not have the competency to license, respec- and the possibility of a dominant political tively to monitor, content which has been power deciding on the majority of the Coun- distributed only online. With regard to televi- cil. This procedure, combined with the right sion programmes this can be evaluated as an of the Council to elect and release the Direc- incomplete transposition of the AVMSD and tors General of BNR and BNT and to approve thus a violation of European law. the members of their management boards, Concerning the commercial communica- could also have serious consequences for the tions there is a self-regulation, but it is not independence of public service broadcasting. effi cient yet. As regards protection of mi- To avoid, or at least minimise, this danger nors there is neither co-regulation nor self- different possibilities could be considered: regulation. Since especially children must be - Parties in the National Assembly acquire protected from the dangers of the use of in- 68 The Media in South-East Europe – Comparative Media Law and Policy Study

ternet81 and because of the fact that other parameters. The Bulgarian LFI includes only countries have positive experience with co- the exception in the case of low budget fi lms. and self-regulation instruments, particularly It does not defi ne “low budget” fi lms accord- with regard to the protection of minors in ing to national criteria, but according to the the internet, the following recommenda- budgets of the European fi lms and the data tions could be made: given by the European Audiovisual Observa- - CEM gets the right to license and monitor tory (EAO). broadcasting content independent of the Furthermore, with regard to this criterion, way of its distribution; the Commission is willing to accept aid incen- - The new Broadcasting Act provides co- tives of the Member States higher than 50% regulation mechanisms with regard to in the case of limited geographic extension commercial communications and protec- of certain languages and cultures, given the tion of minors, which declare self-regula- limited circulation of those cultural products tion by certifi ed institutions permissible in within the European Union and world mar- principle, while maintaining the general kets.83 Such projects must especially not be competence of CEM as legal supervision. “diffi cult” and/or “low budget” fi lms.84 Bear- These suggestions to foster the current ing in mind the specifi cs of the Bulgarian fi lm situation have been supported in principle by market, culture and language such an accep- the chairperson of the National Council for tation often is/will be the case. However, Art. Self-Regulation, Elly Guerganova. 28(6) LFI provides that the State support shall not be higher than 50% and in case of low 3.4 For fi lm budget fi lms shall not be higher than 80%. Therefore the following amendments of the The provisions of Bulgarian Law on the fi lm Bulgarian LFI to foster the Bulgarian fi lm mar- industry (LFI) concerning the State support to ket could be considered: it are in accordance with the criteria stipulated - LFI provides aid incentives higher than in the Cinema Communication82 of the Com- 50% in the case of “diffi cult” fi lms and mission. The Bulgarian provisions are even the legislator establishes a defi nition of more strictly formulated in some aspects. The “diffi cult” fi lm according to national pa- Communication provided that the aid incen- rameters; tive must in principle be limited to 50% of the - the legislator establishes a defi nition of production budget. Diffi cult and low budget “low budget” fi lm according to national fi lms are excluded from this limit. The Com- parameters; mission considers that it is up to each Mem- - LFI provides aid incentives higher than ber State to establish a defi nition of diffi cult 50% in certain cases which meet the cri- and low budget fi lm, according to national teria shown above. But in view of the current situation in Bul- garia it is unlikely that Parliament will adopt 81 Recommendation CM/Rec(2009)5 of the Committee of such amendments. As described in the full Ministers to Member States on measures to protect children against harmful content and behaviour and to promote their report, even the amount of the State sup- active participation in the new information and communication environments adopted on 8 July 2009. port due to the legal provisions in force has 82 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions of 26 September 2001 on certain legal aspects relating to cinematographic and other au- 83 EMR, European Media Law and Policy Framework, 2010, p. 60. diovisual works, COM (2001), 534 fi nal, [2002] OJ C 43, p. 6. 84 Ibid. Bulgaria 69 not been granted. There is a big discrepancy 8,610,000 (€ 4,402,291). Ten associations between the requested sum according to the expressed their protest in statements to the law and the State donations. Many distin- chairman of the Bulgarian Parliament, to the guished fi lm makers have complained to the Prime Minister and to the Minister of Culture. Bulgarian Administrative Supreme Court on The chairman of the Union of Bulgarian Film this regard. The state prosecutor defi ned their Makers confi rmed the protest in his opinion claim during the sitting on 20 October 2010 on the problems discussed. as allowable and lawful because Art. 17(1) LFI As mentioned in the full report in view of determinates mandatory the amount of the the bad fi nancial situation, the option should sum which the State has to grant. The Court be considered of creating a special cinema found the case factually clarifi ed. The decision fund, which raises new fi nancing sources such was expected, but on the next Court’s sitting as revenues from advertising, cable operators’ on 21 November 2010 the Court postponed fees and in the context of the fi lm distribution the case. The chairman of the Union of Bul- in cinemas or on DVD or VHS. The chairman garian Film Makers, Georgi Stoyanov, stated of the Union of Bulgarian Film Makers and the to the national correspondent that the court chairman of the Association of the Film Produc- postponed the case “obviously under political ers, Georgi Cholakov, also confi rmed this idea. pressure”.85 However, on 1 January 2011 new Georgi Stoyanov stated when interviewed that rules concerning the State funding for the the governing party GERB promised during its Bulgarian fi lm industry came into force. Ac- election campaign the creation of a special cin- cording to the amendments to Art. 17 of the ema fund. But from his point of view the gov- Film Industry Act the subsidy for the National ernment will not keep its promise. Film Centre – which is an Executive Agency of the Ministry of Culture – shall be granted only “if possible” and its annual rate shall be based on the sum of the average budgets for the previous year, of “up to” 7 feature fi lms, 14 feature-length documentaries and 160 minutes of animation. The addition of the phrases “if possible” and “up to” gives the Ministry of Finance the opportunity to decide alone that there is not enough money in the State budget for the fi lm industry and to determine a subsidy less than that determined by Parliament in the law. According to the three-years (2011- 2013) budget forecast of the Ministry of Cul- ture, the State support will not exceed BGN 9,090,000 (€ 4,647,715) per annum, whereas the missing fi nancial means for 2011 are BGN

85 The national correspondent interviewed the chairman of the Union of Bulgarian Film Makers, Georgi Stoyanov, and the chairman of the Association of the Film Producers, Georgi Cholakov, on the ﬁ lm issues. 70 The Media in South-East Europe – Comparative Media Law and Policy Study Croatia 71

Croatia 2 The regulatory status quo

Nives Zvonaric 2.1 Press

I Most noticeable characteristics in the The Media Law regulates the rights and obliga- media-sector tions of newspaper publishers, i.e. natural or legal persons publishing their contents through In the following some of the most signiﬁ cant printed media. Printed media are considered to characteristics of the media landscape of Cro- be newspapers and other periodicals published atia, based on and taken from the country at least once every six months, with a circula- report by Nives Zvonaric, are (brieﬂ y) given.86 tion of more than 500 copies. A printed work published occasionally with a circulation of less 1 General data than 500 copies shall be considered a printed

Country proﬁ le Basic data Country population 4,437,460 Ofﬁ cial language/s Croatian Main ethnic groups 89.6% Croatians, 4.5% Serbs, 5.9% Others (% of population) Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Recognised minorities Austrians, Ukrainians, Ruthenians, Bosniaks, Slovenians, (by constitution) Montenegrins, Macedonians, Russians, Bulgarians, Poles, Romani, Rumanians, Turks, Vlachs and Albanians

Catholic 87.83%; Greek Catholic 0.14%; Orthodox Church 4.42%; Islamic Religious Community 1.28%; Jewish Religious Religious groups Community 0.01%; Adventist Church 0.07%; Baptist Church 0.04%; (% of population) Evangelic Church 0.08%; Jehovah’s Witnesses 0.14%; Calvinist Church 0.09%; Christ Pentecostal Church 0.01%; Other religions 0.11% Average salary per month (€) 748.00 (net) Media market data Total market volume advertising 250,333,231 market (€) Net advertising budget in 2009 (€) N/A Press 2 dailies (national coverage); 3 dailies (regional coverage) Newspapers price for dailies around € 0.954 per issue. Magazines 25 price per issue around € 1.90 Broadcasting Comm.: PSB: 2 (national coverage), 1 Television 1 (national coverage) (regional coverage), 7 (county coverage), 13 (city coverage) TV advertising revenues in 2009 (€) 106,899,055

86 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 72 The Media in South-East Europe – Comparative Media Law and Policy Study

Comm.: PSB: 3 (national coverage), 1 Radio 1 (national coverage) (regional coverage), 21 (county coverage), 132 (city coverage) 197,638,534.95 (total) 0 (state funding) Income TV & Radio (€) public 45,061,585.96 (self generated) broadcaster (HRT) 152,576,948.99 (licence fee total); 10.98 (licence fee per month) 62 ISPs Internet monthly tariffs between € 5.21 and € 45.56 59 state supported fi lms in 2010 (6 feature fi lms, 2 fi rst feature fi lms, 18 documentaries, 14 animations, 19 experimental fi lms) Film € 5,174,527.71 (total state funding in 2010) Ticket prices around € 4

media if it is intended for sale. All publishers censure, contribute to the strengthening of the must respect the right of the public to be in- rule of law and participate, as a part of the pub- formed truthfully, impartially and in a timely lic, in the democratic control of political power manner on events, phenomena, persons, sub- and government. jects or activities. For this reason the media must The Croatian News Agency (HINA), a legal adhere to the rules of the journalistic profession person with the status of a public institution and ethics in publishing contents. The Law also whose founder is the Republic of Croatia, has provides the possibility for publishers, editors to collect and disseminate news agency infor- and journalists of a media organisation to adopt mation which is as factual and objective as a statute of the relevant media organisation as possible about the events in the Republic of a self-regulatory act establishing in particular Croatia and the world for the purposes of the the manner of journalists’ participation in the media and other subjects from the social, po- procedure of appointment and dismissal of the litical, cultural and economical spheres. editor-in-chief, the freedom of work and jour- There is no regulatory authority for print- nalists’ responsibility, as well as the conditions ed media in the Republic of Croatia. But the and procedure pursuant to which the editor-in- Croatian Journalists’ Association with the chief, editors and journalists have the right to a support of a German political foundation and resignation with a fair severance pay, in cases an initial board consisting of journalists, pub- where changes in the ownership or manage- lishers, broadcasters and others from different ment structure of the media lead to signifi cant spheres of the society launched a new initia- alterations in the editorial basis or content (the tive in June 2010 for the establishment of so-called “conscience clause”). The so-called the Croatian Media Council as a self-regula- Code of Honour inter alia stipulates that all the tory body, monitoring media and sanctioning obligations and rights of journalists arise from those who violate the principles of journalism. the right of the public to be informed of facts and opinions. When performing their work 2.2 Broadcasting journalists are obliged to defend human rights, dignity, freedoms and values, respect the plural- Firstly, the broadcasting sector is addressed ism of ideas and world views, resist all forms of by the Constitution as the Constitutional Law Croatia 73 prescribes that radio and television broadcast- tions). The Council, for instance, conducts the ers on national, regional and local levels have procedures of granting concessions in compli- a special task to promote specifi c targets (e.g. ance with the Electronic Media Law, the Con- understanding for members of national mi- cessions Act and secondary legislation, con- norities, producing and/or broadcasting pro- cludes contracts on granting concessions with grammes designed to inform members of na- the most advantageous bidders in compliance tional minorities in minority languages, etc.). with the Electronic Media Law and adopts de- Secondly, the Electronic Media Law regu- cisions on withdrawal of granted concessions lates the rights, obligations and responsibili- and licences in cases anticipated by the Elec- ties of legal and natural persons that provide tronic Media Law, etc. In cases of a violation audio and audiovisual media services and ser- of the provisions, the Council may issue an vices of electronic publications by electronic admonition, a warning (after the third warn- communication networks, as well as the inter- ing the Council may withdraw, temporarily or est of the Republic of Croatia in the fi eld of permanently, the concession for providing ra- electronic media. According to the Law it is, dio and television services), or a fi ne (up to € for instance, not allowed to publish or broad- 13,750 for the relevant provider and up to € cast information revealing the identity of a 1,400 for the responsible person). child up to 18 years of age involved in cases of any kind of violence, regardless of the child’s 2.3 Online services status as a witness, victim or perpetrator, or in cases of attempted suicide or committed sui- The Electronic Media Law regulates the ac- cide, or to introduce details of a child’s family tivities of providing on-demand audio and/or affairs and private life; also audiovisual or ra- audiovisual media services. Legal or natural dio programmes which might seriously impair persons must have a licence issued by the the physical, mental or moral development of Council for Electronic Media for providing minors, in particular programmes that involve such services. The licence is issued on the pornography or gratuitous violence, are pro- basis of a request of an on-demand media hibited, etc. service provider. The request must contain Public Service Broadcasting is regulated evidence that the technical conditions for by the Croatian Radio Television Law. Croa- the transmission of an audiovisual and/or ra- tian Radio (HR) and Croatian Television (HTV) dio programme are fulfi lled and information must satisfy the interests of the public on the on the editorial basis with a specifi cation of national and local level, as well as taking care the programme orientation (general or spe- of the balanced representation of current af- cialised) of the relevant on-demand media fairs, cultural, educational and entertaining service provider. To a media service provider contents by, for instance, informing the public who has not been awarded a concession and on political, economic, social, health, cultural, is not an on-demand media service provider educational, scientifi c, religious, ecological, the Council issues a licence for satellite, in- sporting and other events and phenomena in ternet, cable and other permissible ways of the country and abroad, etc. transmitting audiovisual and/or radio pro- The Council for Electronic Media is the grammes. Such media service providers must regulatory authority in the fi eld of electronic fulfi l the technical conditions for the trans- media (television and radio services, on-de- mission of programmes and the conditions mand media services and electronic publica- prescribed by the Electronic Media Law. 74 The Media in South-East Europe – Comparative Media Law and Policy Study

2.4 Film the HTV Programme were also relieved from duty. The Croatian Radio Television Law has The Audiovisual Activities Law regulates the prescribed the procedure for selecting the HRT performing, organising and funding of activities executives, according to which the Programme relating to fi lms and other audiovisual works, Council of the HRT must approve all appoint- such as production, showing in cinemas and/or ments. After several unsuccessful attempts to broadcasting. The Croatian Audiovisual Centre appoint the General Director of the HRT, four (HAVC) promotes audiovisual creativity in Croa- members of the Council have resigned their tia by, for instance, collecting and allocating posts, thus making it necessary to conduct the through public tenders the funds for the pro- procedure of appointing new members of the motion of audiovisual activities in compliance Council before a new General Director may be with the Law and other regulations, or sup- appointed and, thereafter, other executives. porting and organising expert and professional The programme of the HRT has also been un- training in the fi eld of audiovisual activities, etc. der increased criticism from the public and especially civil society organisations. It is consid- 3 Main challenges in media practice ered that it does not entirely fulfi l its remits as a public service broadcaster as prescribed by the 3.1 For the press Croatian Radio Television Law. From the establishment of the Council for Independent journalists and the independence Electronic Media up to 2010 there were no of media in the sense inter alia that editors registered complaints of the public regarding have more infl uence over editorial policies the independence of the Council’s work. and the selection of editors-in-chief in public and commercial media are the basic principles 3.3 For online services of independent journalism. In the last couple of years no threats to or attacks on journal- There are no major challenges to be reported ists, provoked by their investigative journal- for this sector. ism, have been recorded in Croatia. There are certain indications of some attempt to prevent 3.4 For fi lm publishing information but no material proof has ever been presented on the identity of the The HAVC allocated the funds for the promo- person who allegedly tried to do so. tion of audiovisual activities through public tenders to various movies in 2009. A problem 3.2 For broadcasting is that there are no large independent fi lm producers in Croatia. HRT is currently experiencing some operational diffi culties, due to the fact that the highest II Proposals for remedying the situation executive positions (operational and editorial) are occupied by acting managers. In December 1 Constitutional law aspects 2009, the Programme Council of HRT adopted a decision on relieving from duty the General The Republic of Croatia was established as an Director of HRT, while in 2010 both the Direc- independent state in 1991. The new statehood tor of HR and HTV as well as the Editor-in-Chief required the establishment of a new legal frame- of Informative Programme and the Director of work, whereby the entire range of legislative acts Croatia 75 was drafted and adopted, from the Constitution of Croatia has invested great efforts in aligning and various laws to secondary legislation. with the European countries regarding the issue The issue of media, online services and of the protection of national minorities. fi lm has been regulated by the Constitution The Government’s Offi ce for National Mi- of the Republic of Croatia, the Constitutional norities executes an Action Plan for the Im- Law on the Rights of National Minorities, the plementation of the Constitutional Law on Media Law, the Croatian News Agency Law, the Rights of National Minorities every year, the Electronic Media Law, the Croatian Radio thereby protecting national minorities by spe- Television Law, the Audiovisual Activities Law cifi c plans and actions. as well as other secondary legislation. It must be underlined here that the Repub- 2 Cross-cutting issues lic of Croatia is currently negotiating its accession to the European Union and that there- The Media Law regulates the preconditions fore Croatian legislation is still in the process for the realisation of the principles of the of being fully aligned with the acquis of the freedom of media, the rights and obligations European Union. Since many provisions of the of publishers, the rights and obligations of present laws are relatively new, there have not journalists, the method of ensuring publicity yet been many major irregularities perceived, of media ownership, as well as exercising the or a need for their immediate amendment. right to correction and replay. The Constitutional Law on the Rights of Na- It is worth noticing regarding the Media Law tional Minorities has been adopted by consen- that, although European practice was used in its sus. The Law, which has established conditions drafting, its implementation has demonstrated facilitating access to media for the members of the need to amend some of its provisions, espe- national minorities, obliges radio and television cially in connection with the protection of minors. broadcasters on national, regional and local lev- The media principles and obligations con- els to promote understanding for members of stitute an important component of this legal national minorities, to produce and/or broad- act, requiring that the media respect privacy, cast programmes designed to inform members dignity, reputation and honour of the citizens, of national minorities in minority languages, to particularly of children, minors and the family, encourage and promote the preservation, devel- regardless of their gender and sexual orienta- opment and expression of cultural, religious and tion as well as prohibiting the publishing of in- other identity defi ners of national minorities and formation which discloses the identity of a child the preservation and protection of their cultur- in cases where such a disclosure could jeop- al heritage and traditions, as well as to inform ardise the child’s well-being. However, there members of national minorities in the relevant have been cases of sensationalistic reporting region about the work and tasks of their minor- on children with complete disregard for the ity councils and representatives. Likewise, legal obligation to protect a child’s privacy, whereby entities providing public information services (the both the legal provisions and the journalists’ press, radio and television) are obliged to enable Code of Honour have been ignored. minority organisations and institutions to partici- If there were more effort invested in self-reg- pate in the creation of programmes intended for ulation in the fi eld of journalism in Croatia and if national minorities. Recent amendments to this there could be a constructive dialogue and un- legal act have also been adopted by a consensus derstanding between media owners (publishers/ whereby it may be concluded that the Republic broadcasters) and journalists, such a consensus 76 The Media in South-East Europe – Comparative Media Law and Policy Study

within the industry would raise its ethical and pro- the diversifi cation of public service broadcast- fessional standards. That would also be a valuable ing in accordance with various distribution contribution to the efforts to protect the privacy platforms and the digitalisation process. of minors in the media, enabling journalists to 3.3 For online services confi dently uphold the aforementioned principles even when they are expected to bow to the laws No specifi c suggestions are to be made for of marketing and media sensationalism. this section.

3 Sector-speciﬁ c regulation 3.4 For ﬁ lm

3.1 For the press Film production in the Republic of Croatia has been fi nanced from different sources. The Audio- No specifi c suggestions are to be made for visual Activities Law prescribes that the Funds for this section. the implementation of the National Programme are to be secured inter alia from the State Bud- 3.2 For broadcasting get, from a part of the total annual gross revenue gained by the performing audiovisual activities as The Electronic Media Law came into effect on 29 well as from a part of the total annual gross rev- December 2009, whereby the Republic of Croa- enue gained by showing audiovisual works and tia became one of the European countries which by their sales at retail levels (DVD etc.). had transposed the Audiovisual Media Services Persons who are subject to the provisions Directive (AVMSD) into their legal framework on the funding of the National Programme on time. As mentioned above, it is still too early have an obligation to conclude a Contract to discuss eventual signifi cant problems which with the Croatian Audiovisual Centre on the might surface in the course of its implementation payment from their total annual gross reve- or to propose any amendments to the relatively nue gained by performing audiovisual activi- new provisions. However, a more liberal proce- ties in the preceding year. Such a Contract is dure of granting concessions for providing radio to be concluded on the Centre’s request for and television services (free to air) should be con- an indefi nite period of time. sidered, since the present procedure obliges the In practice, this obligation has proven to be a Council for Electronic Media, in accordance with diffi cult issue. Although the Law has prescribed the Concessions Act, to conduct a viability study court protection in cases where this obligation on any concession prior to announcing the rel- is not fulfi lled, the very procedure of drafting evant public tender for granting it. such a Contract is an exhaustive activity, which The Croatian Parliament adopted a new requires both parties to concur. It would be Croatian Radio Television Law, which came into therefore more practical to amend the Audio- effect on 8 December 2010. The period from visual Activities Law in line with the Electronic the adoption of the preceding Croatian Radio Media Law. Namely, it would be much simpler Television/HRT Law in 2003 to the present Law to ensure the prescribed fi nancial resources. The has brought signifi cant changes regarding the Centre should have the possibility to adopt, on approach of determining the content and re- the basis of annual fi nancial data provided by mit of a public service broadcaster with a view the authorised bodies, annual decisions on the to its public function as well as regarding the relevant amounts required to be paid by per- technological development which anticipates sons subject to the aforementioned provisions. Kosovo 77

Kosovo 2 The regulatory status quo

Vjollca Krasniqi 2.1 Press

I Most noticeable characteristics in the The press sector in Kosovo is subject to self- media-sector regulation. The “Press Council” is the self- regulatory body in this fi eld. Its mission is laid In the following some of the most signifi cant down in the journalism Code of Ethics adopted characteristics of the media landscape of by press journalists aiming at enhancing ethical Kosovo, based on and taken from the country and credible journalism in Kosovo deriving from report by Vjollca Krasniqi, are (briefl y) given.87 the agreement by the journalists themselves. The Press Code of Kosovo fosters factual and 1 General data truthful reporting. It bans incitement and hate

Country profi le Basic data Country population Estimated around 2,100,000 Albanian, Serbian; Turkish, Bosniak and Roma have the status of Offi cial language/s offi cial languages at the local/ municipal level. Main ethnic groups Albanians 92%, Serbs 5.3%, other ethnic groups (Turkish, (% of population) Bosniaks, Roma, Ashkali, Egyptians (RAE), Gorani) 2.7% Recognised minorities Serbs, Turks, Bosniaks, Gorani, RAE Religious groups Muslim 90%, Catholic 4%, Orthodox 5.2%, Others 0.8%. (% of population) Average salary per month (€) 240 Media market data Total market volume advertising Around 10,000,000 market (€) Gross advertising budget in 2009 (€) Around 10,000,000 Press 8 dailies; 3 weeklies/periodicals; Newspapers Price for dailies between € 0.10 and € 0.30 per issue; for weeklies € 1.5 per issue. Magazines 4 prices between € 2 and 3 Broadcasting Comm.: PSB: Television 2 (national coverage) 1 (national coverage) 16 (regional coverage) TV advertising revenues in 2009 (€) PSB: 2,541,000 Comm.: Radio PSB: 2 (national coverage) 2 (national coverage) 90 (regional coverage) total – 7,080,000; 3.5 (broadcasting Income TV & Radio 2009 (€) fee per household per month?), 42 (licence fee per year)

87 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 78 The Media in South-East Europe – Comparative Media Law and Policy Study

3 main ISPs; Internet 1 month of broadband Internet access to households (for two computers) ranges from € 10 to € 15 More than 12 ﬁ lms of different genres received ﬁ nancing from the Film Public Fund on Cinematography in 2010; Only 1 cinema; ticket price: € 3

speech; it guarantees the right to reply; it pro- RTK is funded from the licence fee, supple- tects children and minors, respects privacy; etc. mented by other sources, such as programme services and sales, advertising (limited to a max- 2.2 Broadcasting imum 20% of an hour of broadcasting) and sponsorship as well as state support to cover The Law on RTK regulates the public broadcast- programmes for minorities and for Kosovars ing service. The Law on the Independent Media living abroad, to support cultural, scientifi c and Commissioner regulates all broadcasting services. educational projects sponsored by a govern- Other regulatory measures for broadcasting are ment ministry and to maintain the transmis- the Broadcasting Policy, the Code of Conduct for sion network. The RTK Law sets the monthly the Broadcast Media, the Advertising Rule Book, licence fee at € 3.50. The Energy Corporation and the Regulation on Minor Protection. of Kosovo responsible for collecting the licence RTK is required by law to dedicate 10% fee for the RTK objected to the collection on of its budget and no less than 15% of its total the grounds that the fee increased the average schedule, including primetime news coverage, to electricity bill by 11%, contributing to decreas- minority communities. On the other hand, coming payment rates for the electricity supply. mercial media outlets are not obliged to provide Commercial media outlets and platforms programming in minority languages. Instead, reach diverse audiences in Kosovo and can rely there is an unwritten quota that commercial on secure funding, mostly from advertising. But broadcasters are to have 40% of the program- the lack of data about the advertising market ming with domestic production. RTK is prohibit- makes is diffi cult, if not impossible, to provide ed from broadcasting any material that could in- a solid analysis of the media industry, in gener- cite national, religious, racial or sexual hatred, or al, and commercial broadcasting, in particular. intolerance or discrimination against individuals The Rulebook on Advertising imposes a limit or groups. Protection of the physical, mental and on advertising of 20% of broadcast time and moral development of children is also required. bans advertising of tobacco and prescription- Pornography and the dissemination of false or only medicines. It also regulates the manner misleading information are also prohibited. of interrupting programmes for commercial The Advertising Rule book regulates the breaks and forbids sponsorship of news, cur- content and the quantity of advertising in rent affairs and religious programming. broadcasting. It especially bans advertising The Independent Media Commission during news programmes shorter than 30 (KPM) is the sole regulatory body for the radio minutes, prohibits subliminal and deceitful and television sector. Its mandate is given by advertising and limits the amount of advertis- the Broadcasting Law, which defi nes the KPM ing and teleshopping on RTK to six minutes as “a body independent of any political infl u- an hour as well as totally banning advertis- ence, of whatever type it may be”. The Con- ing and teleshopping on RTK from 07:00 to stitution guarantees the independence of the 09:00 and 18:00 to 23:00. KPM. It consists of three separate bodies: the Kosovo 79

Council, the Offi ce of the Executive Manager criticised for offering protocol news, a defen- and the Media Appeals Board. The KPM over- sive strategy that some outlets employ to avoid sees the distribution of broadcasting frequen- clashing with political parties, the Government cies and issues licences for public and private and international institutions. Self-censorship broadcasters. The KPM also issues rules and remains a problem, with many journalists fearful regulations for the broadcasting sector. of tackling issues deemed to be close to strong political and business elites. There have been 2.3 Online services cases of threats against journalists and media organisations facing intimidation. Regulation No. 2003/16 on the promulgation Foreign direct investment in the press of a law adopted by the assembly of Kosovo sector is non-existent. The newspapers are on telecommunications provides legal grounds rendered dependent on advertising rev- for the functioning of the Telecommunication enues. Lack of investment and the fragile Regulatory Authority (Autoriteti Rregullativ i business environment make the Govern- Telekomunikacionit, ART) and on regulation ment of Kosovo the biggest employer and supervising the telecommunication services. advertiser. Regarding this, the Government The distribution of Internet access in “rewards” and “punishes” the newspapers Kosovo has spread rapidly in recent years. To- by giving ads in different quantities to dif- day, the Internet reaches more than 63% of ferent media, mostly by the ‘formula’ of the Kosovo households. political proximity of the newspaper and the political party in power. 2.4 Film There are several media and journalists’ associations, but journalists lack a proper The Law on Cinematography aims at sup- trade union, making them more vulnerable to porting cinematography/fi lm productions outside pressure. in Kosovo. The Qendra Kinematografi ke e Kosovës (CCK) manages all fi lm activities that 3.2 For broadcasting refl ect the public interest. The main criteria set out by the CCK for fi nancial support The de-coupling of the monthly licence fee to fi lm projects are that fi lms should have a from the electricity bill, following a decision Kosovo theme, with 51% of the composition of the Constitutional Court of Kosovo, made of the team being from Kosovo, and the fi lm the RTK fi nancially vulnerable and prone to a producer, director, script writer and the actors subservient position vis-à-vis the state. The fi - also being from Kosovo. The Law on cinema- nancing of the RTK through the fee is the only tography forbids censorship as well as ideo- guarantee for the public broadcaster to fulfi l logical, political, and pressures in production, its role and to not be subjected to state and distribution and public screening. political infl uence. Thus, the amendment of the RTK law on fi nancing is needed. Another 3 Main challenges in media practice source of income for the RTK is advertising. But the new regulation of advertising, which 3.1 For the press bans any advertising in prime time RTK programming, has had a negative impact on the Most newspapers are not fi nancially sustainable RTK’s overall work, and especially its editorial and over-politicised. Media outlets have been policy/independence. The State has been in- 80 The Media in South-East Europe – Comparative Media Law and Policy Study

terfering in the election of the board of the II Proposals for remedying the situation RTK. In the last round of nominations, the deputy head of the government took part in 1 Constitutional law aspects the Assembly committee meeting responsible for selecting the RTK board. No specifi c suggestions are to be made for There are no research and no data on the this section. advertising market, nor is there a monitoring mechanism to evaluate whether the broad- 2 Cross-cutting issues casters are fully implementing the advertising rulebook. An information campaign should take place The KPM stands for an impartial and in- to increase awareness of the Law on Access dependent media regulator. But it lacks ca- to Offi cial Documents and its signifi cance for pacities and resources to monitor compliance all citizens, as well as training for local gov- with legal provisions and the professional ernment offi cers that have to implement it. conduct of the broadcasting media. The KPM A database of media experts and organ- is fi nanced by the Kosovo budget. The man- isations should be developed and make the agement of the KPM argues that the budget data base available to the public. is too small and the salaries of KPM staff are The Government and the Assembly should too low. This makes the staff, especially ex- establish an advisory committee, comprising perts, move away from the KPM in search of representatives of media outlets, civil society better paid jobs. groups and the KPM, to deal with issues of media independence, protection of journal- 3.3 For online services ists, access to public information and media compliance with legislation. There has been a rise in web blogs in Kosovo, The Government and the Ministry of Cul- but little debate and discussion on the news ture should establish an agency for intellectu- or information which is presented thereon. al property rights responsible for implementing legal provisions on IPR in the media sector. 3.4 For fi lm The KPM should adopt secondary legislation against concentration of ownership and The Ministry of Culture in accordance with on cross-ownership. the law on Cinematography fi nances the Pub- Public and private broadcasters, media lic Fund managed by the CCK. But there is no associations and associations of journalists public information on the amount of the Pub- should work together to adopt self-regulatory lic Fund on cinematography. Only the bidding mechanisms for the profession, such as oblig- process for fi nancial support with the CCK is atory codes of conduct. opened through a public announcement. The Association of Professional Journalists There is no data available on the average bud- of Kosovo, the Press Council, AMPEK and the get of the Public Fund or data on the average KPM should actively pursue and monitor com- budget of a fi lm project. pliance by journalists with codes of conduct. There is only one cinema in Kosovo, the cine- International media associations and or- ma ABC in Prishtina. It is not fi nancially viable ganisations such as the IFJ, Freedom House, due to lack of funding and a limited number the Open Society Foundation and Reporters of movies screened during the year. without Borders, and donor organisations Kosovo 81 should strengthen the Kosovo journalists’ as- 3.2 For broadcasting sociations through training. They should aim at making journalists’ associations relevant Legislation on new technologies, in particular actors in the media policy scene. on cable television and digitalisation, should be developed and implemented. The Govern- 3 Sector-specifi c regulation ment should prioritise the adoption of a plan for digital broadcasting. 3.1 For the press The RTK Law should be amended to introduce a clear system of collection of the li- Associations of journalists, NGOs and other cence fee. civil society groups should foster a broader The Government and the KPM should en- dialogue among each other and with interna- hance their work to secure Kosovo’s member- tional and European organisations on how the ship of the ITU. media affect the daily life of ordinary citizens The KPM should encourage and provide and the overall development of society. This support for continuous research on audience debate should focus on the depoliticisation of and advertising. the media and on mechanisms to guarantee The Government and the Assembly should freedom of expression and of the journalistic secure more fi nancial and human resources profession. It should also seek mechanisms and monitoring technical equipment, so that against interference and coercion against the KPM can fulfi l its duties as stipulated in journalists. the Broadcasting Law. The KPM should adopt secondary legisla- The KPM should adopt secondary legislation against concentration of ownership and tion against concentration of ownership and on cross-ownership. on cross-ownership. The Association of Professional Journal- The KPM should develop and allocate the ists of Kosovo should work more energetically capacity to monitor the compliance of broad- to protect the rights of journalists through casters and cable operators with legislation education projects that respond to concrete and licence conditions. needs of the profession. The KPM should develop public service The Association of Professional Journalists obligations and local production quotas for of Kosovo, the Press Council, AMPEK and the commercial broadcasters. KPM should actively pursue and monitor compliance by journalists with codes of conduct. 3.3 For online services Newspapers should diversify their content to better serve their audience. No specifi c suggestions are to be made for The Government should stop unbalanced this section. advertising where some newspapers are directly sponsored and some others discrimi- 3.4 For fi lm nated against. The Press Council of Kosovo should amend The Ministry of Culture and the CCK should its Press Code to regulate and limit political in- make public the budget and funding available fl uence over print media. for fi lms. The CCK should develop further funding criteria. 82 The Media in South-East Europe – Comparative Media Law and Policy Study

The CCK should publish the appraisals of funded ﬁ lm projects. The CCK and the Ministry of Culture should appoint female professionals and female ﬁ lmmakers in the decision making structures (steering committee, jury, etc.). Macedonia 83

Macedonia 2 The regulatory status quo

Borce Manevski 2.1 Press Andriana Skerlev-Cakar There is no legal act that regulates the press I Most noticeable characteristics in the in form of a law on media or informing the media-sector public. The only mechanism for detailed regulation of content in the printed media In the following some of the most signiﬁ - is self-regulation in the form of a “Code of cant characteristics of the media landscape Conduct of Journalists”. This Code sets ba- of Macedonia, based on and taken from the sic rules, which every journalist has to re- country report by Andriana Skerlev-Cakar and spect and comply to, which are monitored by Borce Manevski, are (brieﬂ y) given.88 the Association of Journalists of Macedonia (AJM). Besides, general laws apply such as 1 General data the Criminal Code, which stipulates sanctions

Country proﬁ le Basic data Country population 2,100,000 Ofﬁ cial language/s Macedonian Main ethnic groups 64.2 Macedonians, 25.2 Albanians, 3.9 Turkish, 2.7 Roma, 1.8 (% of population) Serbs, 2.2 others. Religious groups (% of population) N/A Recognised minorities Albanians, Turks, Roma, Serbs, Vlachs and Bosniaks Average salary per month (€) 273.58 Media market data Total market volume advertising N/A market (€) Gross advertising budget in 2009 (€) N/A Press Newspapers 11 dailies; prices for dailies between € 0.08 and € 0.24 per issue Magazines 4 main weekly magazines Broadcasting Comm.: PSB: 17 (national coverage), Television 3 (national coverage) 10 (regional coverage), 47 (local coverage) TV gross advertising revenues 471,823,989 2009 (€) Comm.: PSB: 3 (national coverage) Radio 6 (national coverage) 16 (regional coverage) 58 (local coverage) 38,008,224 (total) 5,901,639 (state funding) Income TV & Radio (€) 29,746,610 (self generated) N/A (licence fee total); 2.11 (licence fee per household per year)

88 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 84 The Media in South-East Europe – Comparative Media Law and Policy Study

Internet 2 main ISPs monthly tariffs around € 10 79 fi lm projects supported (27 feature fi lms, 20 short featured, 25 Film documentaries, 7 animated fi lms) in total in 2008, 2009 and 2010 N/A (total state funding) Ticket prices between € 1 and € 3

for those who commit crimes against honour The Broadcasting Council, as the regula- and reputation. According to the provisions in tory authority for broadcasting, has several the Criminal Code a journalist will not be held tasks. For instance, it decides on the alloca- responsible for libel or defamation if he/she tion, revocation and renewal of licences to has published untruthful information, due to pursue broadcasting activities; supervises the violation of his/her right to free access to the work and operations of the entities involved relevant information. in the pursuit of broadcasting activity in terms of their compliance with the provisions of 2.2 Broadcasting the Broadcasting Law, the licence to pursue broadcasting activity, and the by-laws adopt- The Broadcasting Law (with its by-laws) is the ed by the Council regarding the programme only legal act, which regulates the conditions content; adopts decisions, rules, conclusions, for and the manner of pursuing broadcasting recommendations, instructions and other acts; activity and matters of public interest in the adopts views and proposals for implementa- fi eld of broadcasting. The law established the tion of the Law on Broadcasting Activity. Broadcasting Council as a regulatory authority and the Macedonian Radio and Television 2.3 Online services (MRT) as a public service broadcaster and sets rules for the protection of pluralism, diversity The online audio visual media services are and the transparency of the work of broad- not regulated. The current Broadcasting Law casters as well as programme standards, and other legal acts stipulate no regulation in the right to reply, etc. MRT, for instance, is the creation, distribution and consumption obliged to broadcast one television proof online media services. The other areas of gramme service in the Macedonian language, the online services are regulated by the Law and one programme service in the language on Electronic Management, the Law on E- spoken by at least 20% of the citizens that Commerce, the Law on Free Access to Public is different from the Macedonian language, Information, the Law on Electronic Communi- as well as in the languages of the other non- cations, the Law on Privacy Protection and the majority communities. The broadcasters that Law on Construction. hold a licence to pursue broadcasting activity for television programme services at national 2.4 Film level are, for instance, obligated to provide for representation of European audiovisual works The Law for Culture is the basic regulation for to the amount of at least 51% of the total an- the fi lm sector as this law sets the rules for the nual broadcast programmes. The total annual forms of realisation of “culture”, the manner broadcasting time does not include the air- and the conditions for its funding, as well as time dedicated to the broadcasting of news, other issues of interest. The Law for Audio vi- sports events, game-shows, advertising, tele- sual Goods regulates the conditions and man- text and teleshopping services. ner of work of the fi lm libraries, performing of Macedonia 85 the activity of fi lm libraries, establishment and 09:00 to 14:00 on the radio programme ser- types of fi lm libraries, organisation, coordina- vices, with the exception of live coverage or tion, rights and duties of the owners of audio integral recording of a sport matches, cultural visual goods, supervision, professional titles demonstrations or major events laid down in and other common questions important for compliance with the Law on Broadcasting. Pub- the protection of audio visual goods. There lic broadcasting cannot run advertising for po- is also a Law for Film Fund which provides litical parties and candidates. mechanisms for good quality and continuous In general, the media landscape in the fi lm production, transparency of the market, country is pluralistic, so the audience is of- accountability and transparency in working. fered different opinions. But this does not mean that all the media outlets could serve as 3 Main challenges in media practice a role model for professional journalism. Some of the main media outlets are infl uenced by 3.1 For the press different business and political lobby groups. The editorial policy of the broadcasters that Print media suffer from fi nancial diffi culties. are one asset of the overall businesses their They are in principle not regulated and there owners have, supports the business interests is no offi cial information about their gain/loss of their owners. balance (as is the case with the broadcasting The EU 2009 Progress Report underlines industry). the following: the Broadcasting Council is Some of the main players on the press underfunded due to the lack of an effective market are connected with TV channels. This system for the collection of the broadcasting violates the Broadcasting Law’s provisions as fee. The media regulation authority is subject regards media concentration, but the Broad- to political interference and did not fully im- casting Council has no legal means to obtain plement the Law on Broadcasting. The most evidence of hidden joint ownership, because problematic areas are the provisions relating it has no authority over the print media. From to the concentration of ownership of me- a formal legal point of view, newspapers and dia, which were not fully implemented, and TV stations have different owners, but cross- that the Broadcasting Council could not re- promotion reveals the hidden relations. search the media market in a proper manner because, although the administrative capac- 3.2 For broadcasting ity of the Council was improved, it is still not adequate to monitor the market effectively MRT does not fulfi l its obligations as a public (the Research Department is functioning with broadcasting service. The Law on Broadcasting no head and only with one assistant). Due to Activity does not have specifi c provisions that the lack of stable fi nancing the Broadcasting determine the representation of various political Council is also seriously understaffed, which viewpoints by percentages. The public broad- causes ineffective implementation of the legal casting service is not allowed to interrupt pro- provisions in the broadcasting sector. grammes for the purpose of advertising, except for fi lm, sport and entertainment programmes. 3.3 For online services Advertising on the public broadcasting service is not allowed in the period from 17:00 to 21:00 Internet content and new media content are on the television programme services and from not regulated in the current legislation. All 86 The Media in South-East Europe – Comparative Media Law and Policy Study

major broadcasters have websites and besides have been rather high (up to € 25,000) and textual information they also offer multime- could endanger the existence of a whole media content. But there is no separate online dia outlet. Limitation of the amounts could editorial policy: the web content strongly de- improve this. pends on the offl ine content of the mother media outlet. The websites of the printed me- 3 Sector-specifi c regulation dia do not have online desks, which would produce online specifi c content. The print me- 3.1 For the press dia use their website for publishing the Art.s from their offl ine editions by just “copy and Bringing about regulation for press media paste”. The content does not fulfi l the basic would be recommendable. criteria for online texts, which are: topicality, multimedia, individuality and hypertext. The 3.2 For broadcasting content is updated by comparing the content of the printed edition once per day. The provisions of the Broadcasting Law, which foresaw the possibility of bankruptcy of the 3.4 For fi lm public broadcasting service, were taken out in 2010. Due to the rapid technological devel- There are no signifi cant indications that there opments, the Broadcasting Law, although ad- are irregularities in the operation of the Film opted in 2005, needs provisions which would Fund and in the manner in which this institu- allow new media services to enter the market. tion divides the assets, except the few debates It is a promising fact that a working group on at the time when competition is announced the preparation of a new Law on Audio-Visual and resources are shared. However, given that Media Services started its work in November the fi lmmakers did not raise any serious issues 2010. In general, for the audiovisual sector in public, it appears that they are not so dis- transposition of the EU Directive on Audiovi- satisfi ed by the application of the respective sual Media Services (AVMSD) will bring a ben- criteria in general. efi t in this fi eld.

II Proposals for remedying the situation a) Public services broadcasting Bearing in mind the results of the analysis re- 1 Constitutional law aspects garding Macedonia, the public broadcasting service should increase the representation of No speciﬁ c suggestions are to be made for various political viewpoints in its program- this section. ming. Taking into consideration the intensity and the signiﬁ cance of the Government’s ac- 2 Cross-cutting issues tivities, it is expected that they shall be most common, but the public service has to be With prison sentence having been abolished careful not to turn itself into a service to the for libel and defamation for journalists, the Government and its programmes should not general pressure on media outlets has de- serve as an instrument for promotion of most- creased, although also in the past there was ly governmental policy and projects. Actually, no imprisonment of journalists. However, as it is pointed out in Recommendation R the amounts which have been demanded (2007)3 of the Committee of Ministers to the Macedonia 87

Member States on the remit of public service broadcast the ads of the Government are not media in the information society, public ser- chosen through a transparent process. The vice media should play a leading role in public Government should choose the broadcasters scrutiny of national governments and interna- that will broadcast its commercials through tional governmental organisations, enhanc- a transparent tender procedure. The general ing their transparency, accountability to the public opinion is that usually those media public and legitimacy, helping eliminate any which support the Government get the busi- democratic defi cit, and contributing to the ness with the Government’s commercials. development of a European public sphere. c) Role of the regulatory authority/ies in practice b) Commercial broadcasting The funding of the Broadcasting Council In general the media landscape in the country needs to be improved; the regulatory author- is pluralistic, so the audience is offered differ- ity needs to be better protected against politi- ent opinions. However, this does not mean cal interference. These most important mea- that all the media outlets could serve as a sures are indispensible foremost for allowing role model for professional journalism. Some the necessary improvement in implementing of the main media outlets are infl uenced by the existing regulation. different business and political lobby groups. In general more clarifi cation is needed re- The editorial policy of the broadcasters that garding “media concentration”. Art. 13 of are one asset of the overall businesses their the Broadcasting Law should be specifi ed. owners have, with no hesitation would sup- The Art. sets out what is considered as “il- port the business interests of their owners. legal media concentration” in terms of the Nor do the owners shy away from being in- Broadcasting Law. Art. 15 of the Broadcast- terviewed by their journalists and presenting ing Law stipulates that the existence of ille- their opinion on certain issues in politics. Art. gal media concentration is determined by the 11 of the Broadcasting Law, which stipulates Broadcasting Council, except in cases where who cannot perform the broadcasting activ- the Competition Protection Commission is re- ity or be a founder of a TV or radio station, sponsible in accordance with the Law on Pro- should be clarifi ed, since the term “public of- tection of Competition. However, the Law on fi ce holders” in Art. 11 is subject to different Protection of Competition does not operate interpretations. with the term “illegal media concentration”. The general trend for revenues of the “Concentration” in terms of competition law broadcasting industry is a rising one. Com- is assessed in terms of distortion of the compared to 2009 one can notice that the eco- petition in a market (i.e. concentration that nomic crisis has had certain negative effects is caused by change of control of long-term on the revenues. One should also not under- basis of undertakings or parts thereof in their estimate the money which the Government merger, etc.). Therefore, a specifi cation of the has paid to some media for broadcasting provisions of the Law on Protection of Com- the commercials of Government or State in- petition as well as of the Broadcasting Law is stitutions, which are over € 15,000,000 per desirable. This could especially lead to a clear year (according to the offi cial price lists of distinction between the competencies and the broadcasters; it is not unusual for the the conduct of each of the regulators. Among broadcasters also to give discounts for cer- other provisions, it may be benefi cial to be tain clients). The broadcasters which would more specifi c when it comes to determining 88 The Media in South-East Europe – Comparative Media Law and Policy Study

“illegal media concentration”, or in cases of market monitoring activities and started co- “confl icts of competencies”. With regard to operating with the competition authority. This the latter, both regulatory bodies should es- cooperation led to the identifi cation of a few tablish a mutual working group with precise cases of breaches of competition rules. How- competencies. This working group should ever, the legislation on media ownership and present its fi ndings to the regulators, so they concentration is not fully enforced. The regula- would be able to build their own opinions tor is not able to monitor the market effective- and bring up relevant decisions within their ly. The re-introduced system for collecting the competencies. broadcasting fee has started to yield results, It is also necessary to determine stricter pen- but sustainable funding of [...] the Broadcast- alties for the violation of Art. 13 of the Broad- ing Council still needs to be secured.” casting Law in a case where the Broadcasting The Revenue offi ce that is in charge for Council detects the existence of illegal media collecting the broadcasting fee should con- concentration. At the moment there is (only) tinue to be determined in collecting it. The Art. 15(2) of the Broadcasting Law, stating that register of the broadcasting fee payers should “if the Broadcasting Council has deter- be fulfi lled and clarifi ed. mined the existence of illegal media concen- According to this report the Broadcasting tration, it shall order the broadcaster to bring Council must also revise its licensing policy. into accord its operations with the provisions Non-payment of the allowance for licences of this Law within a deadline not longer than should not be the only reason for withdraw- three months from the day the existence of the ing the licences for broadcasting, but also the illegal media concentration was determined.” non-fulfi lment of other criteria stipulated in Only in the case where the broadcaster the licence and relevant provisions from the does not act on the indications of the Broad- Broadcasting Law. The EU concluded in its casting Council under Art. 15(2) of the Broad- 2010 report: “The broadcast licensing process casting Law may it be deprived of the licence is strongly infl uenced by economic and politi- as the Council could apply Art. 63(1) (line 3) cal interests.” The Broadcasting Council will of the Broadcasting Law. This provision allows have to make more efforts in implementing the withdrawal of the licence, if “circum- the Art. 21 of the Broadcasting Law, which stances arise representing legal obstacles to states: prevent the holder from pursuing the broad- “The Broadcasting Council, in the course casting activity”. So in cases where the broad- of performance of its competencies laid caster is found to be in an illegal position con- down in this Law, shall ensure the freedom cerning media concentration, but follows the and pluralism of expression, existence of di- orders of the Council under Art. 15(2) of the verse, independent and autonomous media, Broadcasting Law, it will not be punished for economic and technological development of its violation (i.e. the existence of illegal media broadcasting activity, and protection of the concentration). Only if the broadcaster does interests of citizens in broadcasting.” not respect the orders of the Council could it The offi cial nominators must also pay be sanctioned in the proper way. attention to the profi les of the experts they According to the EU 2010 Progress Report, nominate to be members of the Council, and the Broadcasting Council is still not able to thus fully implement Art. 24 of the Broadcast- monitor the broadcasting market effectively: ing Law. The number of the members of the “The Broadcasting Council stepped up its Broadcasting Council should have the same Macedonia 89 amount as in most of the regulatory authori- sis, they are rather courtesy agreements that ties in the Republic of Macedonia. Instead of all players on the market will play fair. nine, fi ve members would be optimum. There is a small active blog-community, The process for employment of the Gen- whose representatives also participate in dif- eral Manager of the Agency for Electronic ferent public discussions on e-Society issues Communications should be more transpar- and are working on the raising of public ent. The Law for Electronic Communications awareness about the blogs in developing the stipulates that the Commission of the Agency, e-Democracy jointly with some NGOs, active which consists of fi ve independent experts, in this area. However, there is a need for the chooses the General Manager of the Agency. blog-community to develop an effective self- The general public opinion in this regard is regulatory mechanism in order to prevent us- that every Government infl uences the selec- ing abusive language, spreading intolerance tion process of the General Manager of the towards different social groups, xenophobia Agency. The change of the offi cial nomina- or the like. tor stipulated in the Law for Electronic Com- The civil sector could contribute a lot in munications should overcome this problem. educating the bloggers in how to support the Instead of just the Commission of the Parlia- democratisation efforts in the country instead ment for elections and nominations, which is of supporting social exclusion. the only offi cial nominator of the members of the Commission of the Agency, different 3.4 For fi lm offi cial nominators should be introduced in the Law. The provisions from the Broadcast- There are no signifi cant indications that there ing Law for nomination of the members of are irregularities in the operation of the Film the Broadcasting Council should be a good Fund and in the manner in which this institu- example (only nominating different profi les tion divides the assets. In order to fi x some of the experts). This can also contribute to a other criteria for asset-sharing, it would be higher degree of independence of the Agency a good idea to organise public hearings and for Electronic Communications. debates to improve the criteria and make the The offi cial nominators of both regulatory process of creation of the criteria more trans- authorities should ask on a regular basis for ac- parent. In this process, the Film Fund should countability of the experts that they nominate. have a more signifi cant role. The fi lmmakers and the civil sector should be more active and 3.3 For online services contribute more with their propositions.

The internet content and the new media content are not regulated in the current legislation. The transposition of the AVMSD, at least to a certain extent, should ﬁ ll these gaps. Those operators which want to offer on-demand services should sign protocols with the Broadcasting Council, which serve as a legal basis for guaranteeing minimal standards, like the protection of minors, prevention of hate speech, etc. These protocols have no legal ba- 90 The Media in South-East Europe – Comparative Media Law and Policy Study Moldova 91

Moldova 2 The regulatory status quo

Nadine Gogu 2.1 Press

I Most noticeable characteristics in the The press sector is subject of a diverse regu- media-sector lation. The Law on Freedom of Expression, which provides for guarantees for exercising In the following some of the most signiﬁ cant the right to freedom of expression, the Press characteristics of the media landscape of Mol- Law, which guarantees political pluralism, dova, based on and taken from the country freedom of the press and freedom of expres- report by Nadine Gogu, are (brieﬂ y) given.89 sion, and which establishes advertising limits, the Contraventional Code, which upholds the 1 General data contraventions of “insults” and “calumny”,

Country profi le Basic data Country population 4,320,748 Offi cial language/s Moldovan, Romanian Main ethnic groups 78.2 Moldovans/Romanians, 8.4 Ukrainians, 5.8 Russians, 4.4 (% of population) Gagauz, 1.9 Bulgarians, 1.3 Others Recognised minorities Ukrainian, Russian, Gagauz, Bulgarian, Roma Religious groups (% of population) 98.5 Eastern Orthodox Church, 1.5 Others. 163.7 (2009) Average salary per month (€) 182.3 (2010) Media market data 32,000,000 (in 2009) Total market volume advertising 50% TV advertising market, 24% outdoor commercials, 26% are market (€) distributed among radio, print and online media and cinemas. Gross advertising budget in 2009 (€) N/A Press 36 weeklies and 5 dailies prices for dailies: Lei 3 (€ 0.2); for Newspapers weeklies between Lei 3 and 6 (€ 0.2 and € 0.4). 38 magazines; Magazines prices for magazines between Lei 15 and 35 (€ 0.9 and € 2.2) Broadcasting Television PSB: 1 (national coverage) Comm.: 59 TV advertising revenues 2009 PSB 16,000,000 and Comm. (€) Radio PSB: 1 (national coverage) Comm.: 50 Income TV & Radio (€) 3,383,879 (state funding) 1,200,000 (self generated) 40 ISPs monthly tariffs between € 13 (for legal entities) and € 65 Internet (for individuals) Film (€) 310,000 (average budget of a feature fi lm); ticket price € 2.2

89 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 92 The Media in South-East Europe – Comparative Media Law and Policy Study

and the Law on Fighting Extremist Activities, of public and commercial broadcasters, ad- which provides for legal liability of the media vertising, exclusive rights, protection of jour- for disseminating extremist material and con- nalists, consumer’s rights etc. It provides for ducting extremist activities, especially are to the independence of the editorial policies of be mentioned. Advertisements in print media the public broadcasters, the right of a person as well as in broadcast media and cinema are to have free access to broadcasters, and for regulated by the Law on Advertising. It states socio-political pluralism. The Code guaran- that advertisements in periodicals funded tees protection of morality and of minors and from the state budget and in those that do prohibits programmes that may incite hatred not specialise in disseminating advertising based on race, religion, ethnicity and sex. The materials should not exceed 30% of the total public service broadcaster, Teleradio Moldova, space of one issue. is especially addressed by the Broadcasting Self-regulatory bodies are the National Code. In this regard, the Code includes Art.s Commission of Professional Ethics of Jour- on the legal statute of the public broadcast- nalists, which mainly monitors the manner in er and stipulates that it should provide pro- which the norms and ethical principles of the grammes to the whole society, covering the Code of Professional Ethics for Journalists are entire territory of the country; its programmes observed, but which does not have any ex- should promote human dignity and tolerance, ecutive prerogatives, and the Press Council of and take into account the moral, political and Moldova, which considers complaints about religious convictions of the population, etc. editorial activities of Moldovan newspapers, The Broadcasting Coordinating Coun- magazines, news agencies and information cil (BCC) is the regulatory body for radio and portals as well as making recommendations television stations. It submits warnings, applies for strengthening professional standards in the fi nes, and grants/withdraws licences. The BCC media, proposes public policies for the media is an autonomous public authority. It is the pub- and conducts campaigns for promoting re- lic representative that guarantees public inter- sponsible journalism. The Code of Professional est in the audio visual fi eld. It is responsible for Ethics for Journalists, especially, urges journal- implementation of, and securing compliance ists not to allow discrimination against individ- with, the Broadcasting Code, with internation- uals and groups of individuals on the basis of al treaties in the present fi eld which Moldova racial, ethnic or religious affi liation, to respect is party to. The public service broadcaster Tele- the right of individuals to privacy, to observe radio Moldova is supervised by a Supervisory the presumption of innocence, to respect the Board, which is responsible for approving the honour and reputation of the individuals who company’s statute and “task book” (which are subjects of their professional interest, etc. includes its fi nancial plan and broadcasting plan), monitoring its performance, appointing 2.2 Broadcasting sector the company’s director and the radio and television directors, meeting with viewer’s panels Broadcasting media are regulated by a series and issuing annual reports. of laws; more specifi cally these are the Broad- casting Code, the Broadcasting Coordinating 2.3 Online services Council Statute, the Law on Authors’ Rights, and the Law on Electronic Communications. There are no specifi c laws that regulate online The Broadcasting Code regulates the activity media. But online services could be subject to Moldova 93 the laws common for print or broadcasting a self-censorship as some editors/media out- media, especially the Contraventional Code, let owners refuse to publish or broadcast Art.s the Law on Freedom of Expression, and the for fear of being sued in court or because of Law on Fighting Extremist Activities. “friendly pressure” from politicians who may There is no regulatory body for online ser- ask journalists not to publish certain items or vices. In terms of self-regulation, complaints to promote a specifi c point of view on impor- about online media content are examined by tant issues. In many cases, journalists agree to the Press Council of Moldova. comply with the editorial policy that is established by their employers, i.e. to promote the 2.4 Film positive image of certain actors or to harshly criticise others. The Law on Culture, the Law on Cinematog- The Law on Access to Public Information raphy and a series of decisions and ordinances does not provide a distinct delimitation be- of Parliament regulate the fi lm sector. The Law tween information on public personalities that on Culture sets out the state obligations in the can be released by the media and data that can cultural fi eld by providing rights and freedoms, be perceived as interference in their private life. defi ning the national cultural patrimony, and In some cases, public offi cials do not know the regulating the economic aspects in the fi eld. provisions of the law or they simply ignore the The Law on Cinematography regulates the law in an effort to hide their professional inactiv- cinematography industry. It establishes the rel- ity. Although most offi cials no longer refuse to evant State policy that is based on such prin- release information, many of them rely on a set ciples as freedom of creation and of artistic ex- of formal answers to requests for information. pression, promotion of national cultural identity and of ethnic minorities, protection and 3.2 For broadcasting development of cinema patrimony, etc. The Ministry of Culture is the main regula- Teleradio Moldova is not able to fulfi l its pub- tory body for the fi lm industry. lic mission. Among the major reasons there is a lack of fi nancial revenues, poor logistics, 3 Main challenges in media practice and a lack of professional abilities. The public broadcasting service is fi nanced by public 3.1 For the press money, from the state budget; by donations and sponsorships for specifi c projects; by Most print media face a diffi cult economic revenues from advertising; by income gen- situation, especially regional and local me- erated from organising public events; from dia; the latter cannot provide their employees transferring the right on properties, including with competitive salaries. programmes. No licence fees are applied in The Code of Ethics contains general and Moldova. Besides, actions by the Supervisory specifi c provisions, but journalists often do Board of Teleradio Moldova were sporadic, not know them. There are also cases where a superfi cial and lacking in impact. clear understanding of what an “ethics code” There is no internal pluralism in the media, means, seems to be lacking. Some journal- i.e. pluralism of content offered by individual ists confuse a code of professional journalists’ media. The fi nancial situation of commercial ethics with the “labour code”. broadcasting media, especially those with The Moldovan press is subject to a kind of nation-wide and regional coverage, is good. 94 The Media in South-East Europe – Comparative Media Law and Policy Study

The major commercial TV stations are pros- does not fund projects that promote slander pering, in some cases being backed either by against the state or nation, incite violence or businessmen or political parties. No cases of hatred on national, race, class and religious insolvency of commercial broadcasters have criteria, discrimination on ethnic, confession been registered in Moldova so far. or sex basis, or incitement to territorial sepa- The current term of the broadcasting li- ratism. In addition, movies that may defame cences (7 years) does not appear to stimulate a person, or that are antisocial and may be the activity of news outlets. qualifi ed as electoral, political or religious pro- paganda are not supported by the State. 3.3 For online services II Proposals for remedying the situation The number of internet subscribers increased in the second quarter of 2010 up to 235,000 1 Constitutional law aspects users; it was expected that by the end of 2010, the number of Internet subscribers would reach There are some laws and draft laws that do not 270,000. People in rural areas have limited ac- correspond to European norms and, in the excess to Internet mainly because of fi nancial perts’ opinion, unreasonably limit the right to reasons. Most people in villages do not have freedom of expression. In order to comply with computers, i.e. means to access the Internet. commitments pledged by the Republic of Mol- There are no specifi c regulations and laws dova as a member of the Council of Europe, with regard to the liability of content of online i.e. to ensure full exercise of access to informa- services. Online media are subject to the Code tion, of freedom of expression in general, and of Ethics, and complaints against online content of press freedom in particular, a series of laws, may be fi led with the Press Council. Managers including the Moldovan Constitution, should of online media are responsible for ensuring be amended so as to bring them in line with moderation of the forums and chat pages so as Art. 10 of the European Convention on Human to avoid language that infringes human rights Rights and Fundamental Freedoms (ECHR).90 and liberties and incites hatred and violence. There are several provisions in the Moldo- van Constitution that are ambiguously formu- 3.4 For fi lm lated and leave room for interpretation. For example, Art. 32(3) says that Teleradio Moldova cannot afford to contrib- “the law shall forbid and prosecute all ute to fi lm funding because of its own fi nan- actions aimed at denying and slandering the cial situation. Telefi lm-Chisinau Studio, which State or the people. Likewise shall be forbid- used to operate under the premises of Telera- den and prosecuted the instigations to sedi- dio Moldova, has therefore temporarily sus- tion, war, aggression, ethnic, racial or religious pended its activity. hatred, the incitement to discrimination, ter- Every individual and legal entity can apply ritorial separatism, public violence, or other for State funding in order to conduct cinema actions threatening constitutional order.” projects and products according to State or-

der. In fact, independent cinema producers 90 Recommendations were developed based on a review of a do not have access to the National Fund on series of studies and reports conducted during recent years, as well as on consultations with the media law experts: Doina Cinema as the whole budget is distributed Costin, the legal coordinator with the Independent Journalism Centre, and Eugeniu Rabka, the chairman of the Supervisory to support Moldova-Film Studio. The state Board of the public service broadcaster Teleradio Moldova. Moldova 95

Most media and legal experts believe the seminate information and ideas of any kind, wording “slandering the State and the na- including the ones which offend, shock and tion” can be used by those in power as a tool disturb, or which can be considered by many, to repress freedom of expression. According including the government, to be partial, in- to international standards, the State and the exact or false. The State should not interfere nation are not untouchable and should le- in the relation established between the media gitimately be subject to criticism; otherwise and (members of) the public and should not the freedom of expression of a person will identify the media as a provider of offi cial in- be infringed. A person can criticise the State, formation. while the State and the nation are not personalities in law and cannot be defamed per 2 Cross-cutting issues se. Also, the wording “other actions” is too broad and vague. By its broadness, it may im- In general, the Law on Access to Information ply that many public demonstrations against complies with the international standards in governmental policies can be sanctioned or the fi eld. However, the implementation of the prohibited. law is diffi cult. There is a series of laws and Art. 34(4) on the right of access to infor- legislative documents that contradict and im- mation stipulates that “the State and private pede the enforcement of the Law on Access media are obliged to ensure that correct in- to Information. formation reaches the public.” This provision The Law on the Code of Conduct of the raises questions related to the status of me- Public Servant provides that “communica- dia: the State should not have ownership in tion with the media in the name of public print media, while broadcasters funded by the authorities is done exclusively by the civil ser- state budget should have the status of pub- vant empowered with this right” (Art. 8(3)). lic institutions. Consequently the term “State The law stipulates that any breaking of the media” is not an appropriate one, especially Code constitutes a disciplinary infringement after the state broadcasters were either trans- that falls under the incidence of the Law on formed into public ones or privatised and also the Public Function and the Statute of the after the Parliament passed the Law on dena- Civil Servant. Media and legal experts believe tionalisation of the public print publications that the above provision aims at intimidating in 2010. In order to align the Constitution of civil servants against speaking out their opin- Moldova with the European standards, para ions and criticism or reporting some frauds. (4) should be omitted from Art. 34. A new The named provision is in contradiction with provision should tackle the relationship be- the Moldovan Constitution that clearly states tween the public authorities and media – the that “The right of a person to have access to former should not be owners of periodicals, any information of public interest shall not while the latter (specifi cally broadcasters) be restricted” (Art. 34(1)) and infringes the should have the status of public institutions if Universal Declaration of the Human Rights funded by the state budget. that stipulates: “Every person has the right to From another perspective, since it is not freedom of opinion and expression” (Art. 19). a state institution, the press is not obliged to Also, Art. 10(10) of the Law on the Code of guarantee the right of an individual to have Conduct of the Public Servant says that “in access to information. In accordance with Eu- respect to representatives of other states, the ropean law, media have the mission to dis- civil servant is forbidden to express his per- 96 The Media in South-East Europe – Comparative Media Law and Policy Study

sonal opinion about national aspects or inter- The law does not comply with international national disputes”, which is in contradiction standards on freedom of expression, mainly with the International Convention on Civil because it does not comply with the principle and Political Rights: “No one shall suffer be- providing that speech can be prohibited only cause of his opinions” (Art. 19). if there is a strong relationship between the The Law on State Secrets establishes re- speech and the imminent risk of violence or strictions on materials that can be published other social danger that can derive as a result. by media and limits public access to offi cial The anticipated malice should not be hypo- information. The Law defi nes “state secrets” thetical and must be of real danger for the and different categories of State secrets in public safety/order. In accordance with Euro- broad terms, with the effect that a wide va- pean standards, speech that incites hatred or riety of types of information may be classi- violence should be prohibited. However, be- fi ed as State secrets. This is in confl ict with cause the notion of “extremist speech” in the the right to information provided for by both Moldovan law is too large and vague, there the Moldovan Constitution and the Moldo- is a risk that speech that should be tolerated van Law on Access to Information. The Law in a democratic society will be prohibited and on State Secrets provides extensive power to punished. According to the ECtHR, a law shall public authorities and the Security and Infor- be formulated in a precise way, so that people mation Service through enabling them to list are able, when necessary with the help of ad- as classifi ed any information they consider to vice, to predict in a reasonable way the conse- be a state secret. The Moldovan authorities quences that their actions can lead to. were notifi ed by international organisations The Contraventional Code provides for that the document needed improvement be- insignifi cant sanctions in cases when a pub- cause the law did not encourage access to lic servant restricts access to information. Art. governmental information; however, noth- 71(1) says that infringements of legal provi- ing has yet been done in order to resolve the sions on the access to information by public problem. servants are to be sanctioned with fi nes from The Law on Fighting Extremist Activi- 40 to 50 conventional units (1 conventional ties provides for accountability of the media unit = MDL 20 / € 1.25). Art. 71(2) specifi es for dissemination of materials that promote that those servants who deliberately provide extremism. Experts believe its provisions are the solicitor with erroneous information will too general and vague and under the “ex- be sanctioned with fi nes from 45 to 55 con- tremist activity” category expressions and ventional units. However, these provisions are actions may be listed that are usually toler- not functional and are not applied in practice. ated in democratic societies. Such sanctions Also, the Contraventional Code contains pro- as ceasing the media outlet for “extremist ac- visions according to which a person may be tivities” (Art. 7) may lead to censorship and sanctioned for an unlawful exercise of the right self-censorship and discourage the media to freedom of expression with fi nes from 80 to from participating in debates over matters of 120 conventional units or unpaid community public concern. If used in bad-faith, the Law work from 20 to 60 hours or may serve up to can restrict some human rights, especially the 15 days in prison if found guilty of “calumny” right to freely express opinions and the right (Art. 70). For “insults”, including through the to freedom of creation, both provided by the media, one may be sanctioned with fi nes from Constitution of Moldova (Art. 32 and Art. 33). 50 to 100 conventional units or with unpaid Moldova 97 community work of up to 60 hours (Art. 69). person who disseminates the information. A Given these provisions, journalists will be more mechanism that would make Art. 71 of the cautious while gathering evidence in investiga- Contraventional Code functional should be tive reports and in some cases may refrain from developed and introduced in the Code. It will conducting investigations. make the implementation of Art. 71 more ef- Therefore, the Law on Publishing Activity, fi cient, ensuring that sanctions are applied ev- the Law on the Code of Conduct of the Public ery time the Law is infringed. Servant, the Law on State Secrets and the Law There is a series of Government decisions on Fighting Extremist Activity should be amend- setting fees for receiving information from ed so as to exclude the unreasonable limitation the State Registration Chamber, State Enter- of the right to freedom of expression. prise Cadastru which, in the experts’ opinion, The Law on Publishing Activity should restrict access to information. Therefore, the clearly specify the categories of literature that Government decisions setting fees for receiv- “infringe the legislation in force”. ing information from State institutions should Art. 8(3) and Art. 10(3) should be omitted be amended in accordance with the Law on from the Law on the Code of Conduct of the Access to Information that provides that “fees Public Servant. shall not exceed the costs incurred by the pro- The types of state secrets and type of in- vider for making copies, sending them to the formation that has to be kept secret should solicitor and translating them upon request by be defi ned more narrowly. The categories of the solicitor.” information listed as state secrets should be Although calumny was decriminalised reduced, clear provisions on the priority of in 2004, the Criminal Code still contains a public interest should be included, effi cient number of provisions that limit the right of mechanisms for desecretisation of informa- people to freely express their thoughts. Thus, tion should be established. Art. 347 provides for fi nes of up to 700 con- The expression “extremist activities” and ventional units or imprisonment up to 1 year “extremist speech” should be clearly and nar- for profanation of state symbols. Also, Art. rowly defi ned so as not to allow for interpre- 177 incriminates the illegal gathering and dis- tations and exclude abuses by those in power semination on purpose, without a person’s against the media. consent, of private information and provides The Contraventional Code should be for sanctions: fi nes of up to 300 convention- amended so as to omit from Art. 69 the pro- al units or unpaid community work of up to vision that stipulates unpaid community work 240 hours. Dissemination of such information and from Art. 70 the provision that stipulates through the media is punished with a fi ne of unpaid community work or administrative up to 500 conventional units or with unpaid arrest for up to 15 days. This is an excessive community work of up to 240 hours. When mechanism for protecting the professional examined from the perspective of freedom reputation that contradicts European prac- of expression, the imposition of such harsh tice. The dissemination of certain information penalties, especially the sanction of imprison- should not attract even civil responsibility, un- ment, is unacceptable. less malicious intent can be proven. In defa- Art. 347 should be excluded from the mation suits the primary purpose must be the Criminal Code. Art. 177 should be amended compensation of the damages done to plain- so as to omit unpaid community work. tiff’s reputation and must avoid punishing the 98 The Media in South-East Europe – Comparative Media Law and Policy Study

3 Sector-specifi c regulation do not affect the content and do not infl u- ence editorial points of view. 3.1 For the press The Press Law should be abolished as it is an obsolete one and many of its provisions are The Law on Publishing Activity was amended included in other relevant laws. Those specifi c in 2008 with the goal of banning printing lit- provisions that are not found in local legislation erature that defame the State or, as was for- should be preserved and included in other leg- mulated in the fi nal reading, literature that islative acts, such as the Law on Publishing Ac- “infringes the legislation in force” (Art 12(2)). tivity or in the Law on Freedom of Expression. Most publishers, writers and NGO represen- According to recommendations of the tatives believe the main goal of the amend- Council of Europe, Member States should ments was to censor the literature published sustain and promote media pluralism and di- in Moldova and, in this way, to limit freedom versity, through indirect and direct fi nancial of expression. The wording “infringes the leg- means, in conditions of full transparency, un- islation” is too broad and may have the so- der the supervision of independent structures. called “chilling effect” on publishers and, in In order to limit (unhealthy) competition this way, hamper their work. Also, this provi- in the print media, the Draft Law on the State sion is not in line with Art. 10 ECHR, which Support for Print Media should be enacted by clearly states that everyone has the right “to Parliament. If adopted, it would enforce the hold opinions and to receive and impart in- support and promotion by the State of the eco- formation and ideas without interference by nomic development and editorial independence public authorities”. of print media, the protection of fair competi- The Press Law of the Republic Moldova tion by public administration, and it would fi ght has been changed eight times since its adop- the actions of public authorities aimed at limit- tion. There are numerous amendments to ing the competition in print media. this normative act designed without taking The Draft Law on amending the Law No. into account international practice. Accord- 96-XVI of 13 April 2007 on Public Procure- ing to media and legal experts, the law does ments, which aims to establish legal guaran- not guarantee the independence of periodical tees for the transparent and responsible use publications; it only describes their structure of public money in media within the public and contains provisions that may endanger procurement procedures, should be passed. principles of freedom of press and plural- This Draft Law will allow the creating of equal ism of opinion. The provision that regulates conditions for all media outlets in terms of ac- fi nancing of periodicals and press agencies cess to public funds, including those used for may serve as an example in this respect. It advertising by institutions and businesses sub- says that “fi nancing or sustaining periodicals sidised in different ways from public funds. by governments of foreign states in any other The Law on Advertising will be supple- form is prohibited, but cases provided for in mented with a new defi nition – “public ad- bilateral interstate treaties” (Art. 12(4)). This vertising – advertising purchased with public provision is in confl ict with the position of the money”. A delimitation among “commercial ECtHR which held that the fi nancing or any advertising”, “social advertising” and “pub- other form of foreign support of the media is lic advertising” defi nitions should be made interpreted as activity in favour of freedom of through providing a series of obligations for expression, because the fi nancing institutions the public sector. Moldova 99

3.2 For broadcasting b) Commercial broadcasting The Code will be amended in order to have Art. XIX Global Campaign of Free Expression as clearer provisions related to media ownership well as OSCE assessed the Broadcasting Code so as to ensure media pluralism and transpar- passed in 2006 and came to the conclusion ency of ownership and prevent concentration that it does not comply with EU recommenda- of proprieties, in accordance with the recom- tions and some provisions are far from being in mendations of the Committee of Ministers. accordance with European standards. Thus, there are problems related to ensur- c) Role of the regulatory authority in practice ing the independence of the regulatory body A legal mechanism that will ensure the trans- – Broadcasting Coordinating Council, to the parency of issuing broadcasting licences will funding and managing of the public service be developed and included in the Code. broadcaster, to the licensing procedure, to en- A legal mechanism that would ensure the suring transparency of media ownership etc. accountability and transparency of the selec- Also, some Art.s are in confl ict with provisions tion of members of the Broadcasting Coor- of other laws, for instance Art. 47 regarding dinating Council should be developed and the annual taxes of covering the regulatory ex- included in the Code. penses trespass provisions of Art. 7 of the Fiscal A legal mechanism to ensure that can- Code that states that “the general State and lo- didates to the membership of the SB of the cal taxes and fees shall be imposed, modifi ed or public broadcaster Teleradio Moldova are des- cancelled exclusively by amending this Code”. ignated on non-political criteria should be developed and included in the Code. It should a) Public services broadcasting guarantee the transparency of the designa- Genuine fi nancial independence of the public tion process as well as a credible representa- broadcaster Teleradio Moldova should be en- tion of the SB. sured by developing and adopting multi-annual budgets for periods longer than the govern- 3.3 For online services ment term as well as by introducing a fee for the public broadcaster’s services. Provisions on There are no specifi c laws that would regulate ensuring fi nancial transparency of the public the Internet and online media in Moldova. service broadcaster should be added. Since the Internet is seen as a provider of mul- Attributions of competencies of the Su- tiple possibilities for access to information, for pervisory Board (SB) and TRM management self-expression and exchange of opinions, for should be delimited so that each of them has participation in debates, the State will take clear obligations and responsibilities. The pos- the necessary steps to promote the public ser- sibility of institutionalisation of the SB should vice value of the Internet by ensuring access be assessed and considered. to it, in accordance with the Council of Eu- The Code will be amended so as to elimi- rope’s recommendations. nate the interference of the state (govern- To enhance the protection of freedom of ment representatives) in the editorial policy of expression, information and communication, Teleradio-Moldova. the State should adopt the European stan- A new provision on the status of the com- dards and strategies to promote guidance munity broadcasters should be developed and and assistance to the individual users of Inter- included in the Broadcasting Code. net technologies and services. 100 The Media in South-East Europe – Comparative Media Law and Policy Study

Although the Internet favours freedom of cinematographic heritage, adjusting the norms expression, the European trends are to limit and practices of Moldova to EU standards, es- some online content, through developing tablishing a partnership among the state insti- clear and strict regulations and self-regulation tutions, private sector and civil society in the through codes of conduct and monitoring ﬁ eld of safeguarding cultural heritage. the content. The government should examine possibilities of establishing some legal mechanisms on ensuring protection of minors when using the Internet, in accordance with CoE recommendations.91

3.4 For ﬁ lm

The legal framework in the cinema fi eld does not ensure the good functioning of the movie industry in the Republic of Moldova. In order to revitalise the cinematographic sector, a series of steps that would ensure the speeding- up of reforms should be undertaken. The Law on Culture and the Law on Cin- ematography should be amended and brought in line with European standards. The Regulation on the State order should be re-examined so as to make it more effi cient. A mechanism on ensuring transparency in administering fi nancial means aimed at implementing the State order should be developed and included in the Law on Cinematography. Other amendments should focus on stimulation of competition between the State and the commercial sector in cinematography, as well as on promoting reforms at Moldova-Film Studio, according to national and European priorities in the fi eld. Funds should be identifi ed to implement the Programme on Safeguarding the Cultural Heritage of the Republic of Moldova, developed in 2010. Among other objectives, it provides for developing a State strategy on safeguarding the cultural heritage, including the

91 Recommendation CM/Rec(2009)5 provides that the states shall ensure that there are safe and secure spaces for children on the Internet and develop the responsible use of labelling systems for online content, for example by creating a pan-European trustmark for labelling systems of online content. Montenegro 101

Montenegro 2 The regulatory status quo

Daniela Seferovic 2.1 Press

I Most noticeable characteristics in the The work of the press is regulated by the media-sector Media law. This Law guarantees the right of free founding and undisturbed work of In the following some of the most signiﬁ cant media based on freedom of expression, in- characteristics of the media landscape of Mon- vestigation, collection, dissemination, pub- tenegro, based on and taken from the country licising and receiving information. For in- report by Daniela Seferovic, are (brieﬂ y) given.92 stance, Art. 10 of this law prescribes free distribution of domestic and foreign media 1 General data in the Republic, Art. 22 protects the integ-

Country proﬁ le Basic data Country population 670,000 Ofﬁ cial language/s Montenegrin, Serbian, Bosnian, Albanian and Croatian Main ethnic groups 5% Albanians, 8% Bosniaks, 4% Muslims and 4% Croats (% of population) Recognised minorities Albanians, Bosniaks, Muslims and Croats Religious groups (% of population) 74 % Orthodox, 18% Muslim, 4% Roman-Catholic Average salary per month (€) 504 Media market data Total market volume advertising 6-8 million (est.) market (€) Gross advertising budget in 2009 (€) 12,000,000 – 14,000,000 Press 3 dailies; 1 weekly Newspapers prices for dailies € 0.5 about 12 Magazines prices for magazines € 1.5 Broadcasting Television PSB: 1 (national coverage) Comm.: 19 TV advertising revenues 6 million in total (incl. commercial TV) (see left column) 2009-2010 period (€) Radio PSB: 1 Comm.: 43 Income Radio & TV (€) 9,700,000.- (state funding in 2008 for pbs) N/A Internet 1 main ISP monthly tariffs around € 20 N/A (state funded productions in 2009 or 2010) Film € 345.000 (total state funding in 2010) ticket price € 3.5

92 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 102 The Media in South-East Europe – Comparative Media Law and Policy Study

rity of minors in a manner that any media tory body. This new body is to replace the programming that could endanger health, existing Broadcasting agency which, ex- moral, intellectual, emotional and social cept for the one year period of legal confu- development of a child shall be previously sion and drafting of new law, was and will clearly and visibly marked as such and dis- remain eligible for issuing of broadcasting tributed in a way with the least possibility licences in a procedure of public tender. for a child to use it, and Art. 23 of the Law The Law on Electronic Media also contains forbids publication of information and opin- provisions encouraging media pluralism ions that instigate discrimination, hatred or through allocation of funds for commercial violence against persons based on their be- broadcasters from the revenues collected longing or not belonging to a certain race, from games of luck. religion, nation, ethnic group, sex or sexual The Agency for Electronic Media func- orientation. The Law also contains provi- tions as an independent regulatory body, sions that regulate the advertising content established by the State. The competen- in media in general. cies of the Agency include the designing The Montenegrin Journalists’ Self-regula- of the programme for development of the tory body (NST) monitors the practice of me- audiovisual media services sector and pre- dia and its compliance with the Code of Eth- paring, in cooperation with the Agency for ics. Based on its periodic reports, the Council electronic communication, the planning of of this organisation continues to warn jour- allocation of radio frequencies, in part re- nalists and media on most common forms of ferring to terrestrial broadcasting, issuing violations of the Code of Ethics. licences for broadcasting stations as well as for providing audiovisual media services 2.2 Broadcasting on request, determining the amount of compensation for renting and using licenc- The broadcasting sector is regulated by the es for providing audiovisual media servic- Law on Electronic Media, the Broadcasting es, keeping registries of audiovisual media Law and the Law on Public Services Broad- service providers and of electronic publica- casting Radio and Television of Montenegro. tions, and making decisions on complaints The Law on Public Service Broadcast- and objections filed by physical and/or le- ing abolished the steering committee of gal person(s) regarding the work of audio- Radio Television Montenegro (RTCG) and visual media service providers. transferred its powers to the RTCG Coun- cil, which has nine members appointed 2.3 Online services by Parliament. Licence fees for radio and television were abolished and RTCG is now Montenegro does not have a separate law financed from the State budget. It receives regulating the work of online media. Those 1.2% of the annual budget, which pro- services fall into the scope of the Law on vides the public broadcaster with stable Electronic Media, which defi nes a special cat- financial resources. The Law on Electron- egory of electronic publication, as an “edi- ic Media regulates, amongst others, the torially formatted web page” and/or “portal competencies, status, and financing of the that contains electronic versions of print me- Agency for Electronic Media, as the regula- dia” and/or “information from the media in Montenegro 103 a way that it is available to the general public potential pressure and risk of self-censorship. regardless of its range”. Defamation was partly decriminalised in the The regulatory body in the fi eld of online Criminal code in 2003, abolishing prison sen- services is the Agency for electronic commu- tences for this deed. However, defamation is nications and postal affairs, which controls still punishable by fi nes of up to € 14,000. the work of operators. When it comes to on- This hampers the freedom of expression. line media services, the operators are subject Practice shows that most often the penalties to the Law on Electronic Media, which defi nes are brought upon those media who are more them as electronic publications. Adherence to critical towards the work of the government. content regulations shall be monitored by the In privately-owned media outlets there are Agency for electronic media. no collective contracts that would proscribe There are neither legal obligations to in- minimum conditions for journalists’ labour ternet service providers regarding the con- rights. Journalists conclude individual content, nor an eligible body that would deal tracts with employers, which private employ- with content control of Internet services. ers tend to violate. There is also no code of conduct that the ISPs may stick to. 3.2 For broadcasting

2.4 Film The major problem for the public broadcaster RTCG is its fi nancing. 84% of its total The Law on Cinematography of Montenegro income is state funded. Therefore the inde- regulates the fi lm sector. The law stipulates pendence of the public service broadcaster openness for overseas fi lm productions in is not safeguarded and the situation could Montenegro and defi nes conditions for fi lm lead to “state television”. The procedure for distribution and licensing, as well as for the appointing members of the governing RTCG cinema network. The task of safeguarding of Council is problematic, as it does not en- fi lm archive material has been allocated to the sure the independence of the public service Montenegrin Cinematheque (National Film broadcaster, since Parliament has the fi nal Archive). decision over the candidates for the RTCG Council, despite the fact that they are nomi- 3 Main challenges in media practice nated by various institutions, including aca- demic bodies and NGOs. 3.1 For the press There is a variety of private broadcast outlets in Montenegro, and their role is crucial The Law on media defi nes media as free, es- for media pluralism in the country, although pecially “censorship free”. But judiciary prac- often criticised as bipolarised with a division tice raises doubts on this formal approach as into government supporters and government there are forms of censorship and self-cen- critics. The economic situation of private sorship in/on journalistic works. Montenegro broadcasters could generally be described as guarantees the freedom of information in not-prospering. The majority of commercial line with standards contained in international broadcasters are dealing with substantial fi - documents on human rights and freedoms. nancial problems. Penalties for defamation still remain to pose The independence of regulators in the 104 The Media in South-East Europe – Comparative Media Law and Policy Study

electronic media fi eld is questionable after the II Proposals for remedying the situation procedure of issuing broadcasting frequencies has stopped for more than two years 1 Constitutional law due to legal changes. Besides the Journalists’ self-regulatory body, which has no stable fi - Regarding the freedom of expression, this nancing, there are other media associations question was addressed by a legal team93 in Montenegro (UNEM, AKEM, ULES) de- gathered by a Montenegrin NGO – Human signed to protect member interests, but their Rights Action (HRA) – which defi ned the sug- engagement is temporary and insuffi cient. gested improvements through the Reform Media do not invest funds in associations. Proposal for Liability for Violation of Honour Therefore, performance is usually limited to and Reputation in Montenegro94, which was individual campaigns for legislative changes delivered to the Montenegrin Parliament. or fi nancial assistance. In this Proposal, HRA starts from the Con- stitutional provisions regarding the Freedom 3.3 For online services of expression (Art. 47) and Freedom of the press (Art. 49). The Agency for electronic communications Art. 47 states that: has no legal grounds as a regulator to act "Everyone shall have the right to freedom in cases of illegal internet content that may of expression by speech, writing, picture or in harm human dignity. Thus, there are no ini- some other manner. tiatives for establishing a system of content The right to freedom of expression may be control of internet services under way or fore- limited only by the right of others to dignity, seeable yet. reputation and honour and if it threatens public morality or the security of Montenegro." 3.4 For fi lm Reform proposes that in paragraph 2 the words “by the right of others to dignity, repu- A lack of financial means to support film tation and honour and” should be replaced production as well as insufficient and/or with words “in order to protect the reputation or rights of others or”, so that paragraph non-existent institutions that would have 2 would read as follows: capacities to round up the cinematograph- "The right to freedom of expression may ic process (production, distribution, screen- be limited only in order to protect the reputa- ing) limit the development of Montenegrin tion or rights of others or if it threatens public cinematography. Public and private broad- morality or the security of Montenegro." casters in general do not contribute to film The proposed change would thus mean production funding. There is no indepen- ensuring accordance with the provision of Ar. dent or commercial film funding institu- 10 (2) of the European Convention on Human tion, nor are there related programmes. Thus, the film financial support system is concentrated in the hands of the Ministry 93 Ana Vukovic, judge of the Higher Court in Podgorica, Du- of Culture and Media, which makes it the san Stojkovic, lawyer from Belgrade, Tamara Durutovic, lawyer from Podgorica, Veselin Radulovic, lawyer from Podgorica, Tea sole decision-maker in awarding the finan- Gorjanc-Prelevic, executive director of Human Rights Action cial support. and project editor, and Peter Noorlander, lawyer, Director of Media Law Defense Initiative from London, project advisor. 94 Content available at: http://www.hraction.org/wp-content/ uploads/reform_proposal-3.pdf Montenegro 105

Rights (ECHR) and Art. 19 (3) of the Interna- that pluralism, tolerance and broadminded- tional Covenant on Civil and Political Rights. ness without which there is no ‘democratic Both of these international agreements society’”. allow the limitation of freedom of expres- In order to limit the debate of general in- sion in order to protect both general public terest, for example, about the democratic de- and individual interests so as to protect “the velopment of the country which has recently reputation and rights of others”, but restric- gained sovereignty, in its verdict protecting tions on freedom of expression permitted by individual rights, the Court requires to prove the Montenegrin Constitution to protect the “a pressing social need” for such restrictions, interests of society are much narrower than emphasising thus the overall importance of those provided by international treaties, while freedom of expression at the cost of protec- the restrictions in order to protect individual tion of subjective feelings and violation of the interests are prescribed so as to allow a broad dignity of the individual. Given the complexity interpretation. Restriction of freedom of ex- of establishing a balance between the protec- pression by “others’ right to dignity, reputation of these freedoms and personal rights tion and honour” leads to the broad interpre- of individuals, HRA believes that the broad tation of allowable restrictions on freedom of wording of allowed restrictions on freedom of expression under international agreements expression, which may lead to erroneous in- “in order to protect the reputation and rights terpretations of international standards in this of others”, especially in combination with a area, should be kept to a moderate wording particularly arguable guarantee to the right to used by international instruments for protec- damages for publishing false information or tion of human rights, binding on Montene- notice under Art. 49 (3). gro, and thus ensure their proper implemen- Protection of “dignity” of a person, includ- tation, that is, the protection of human rights ing privacy and personal rights, is prescribed in accordance with international standards. in Art. 28 of the Constitution, while the right According to HRA, changes are necessary to privacy is particularly protected in Art. 40. to the Constitutional provision regarding the HRA ﬁ nds it excessive to emphasise dignity and Freedom of press (Art. 49) which states that: honour in the context of permitted restrictions "Freedom of press and other forms of on freedom of expression, especially because public information shall be guaranteed. it can lead to neglecting the jurisprudence of The right to establish newspapers and the European Court of Human Rights (ECtHR). other public information media, without ap- According to this court’s practice, freedom of proval, by registration with the competent expression in the proper context may involve authority, shall be guaranteed. a degree of exaggeration and provocation, The right to a response and the right to which may lead to an interference with the a correction of any untrue, incomplete or in- honour and dignity of another person (i.e. the correctly conveyed information that violates subjective perception of oneself). a person’s right or interest and the right to The ECHR has ruled many times that free- compensation of damage caused by the pub- dom of expression protects not only informa- lication of untruthful data or information shall tion that is favourably received or regarded as be guaranteed." inoffensive or something that does not cause Reasoning that the Constitution introduc- reactions, “but also those that offend, shock es a guarantee that is not fully consistent with or disturb, because such are the demands of European standards set forth in the practice 106 The Media in South-East Europe – Comparative Media Law and Policy Study

of the ECHR, and in view of the provisions only being practised through other mecha- contained in the Law on Obligations, because nisms. Therefore, he calls upon an incessant it neglects the standard of “reasonable publi- public debate on the necessity of changes to cation”, HRA proposes deletion of paragraph the Criminal Code96 in order to decriminalise 3 of Art. 49. This ECHR standard means that defamation, while strengthening responsibil- if a journalist acts in good faith, i.e. adheres ity for violation of honour and dignity through to the standards of professional ethics, even laws on civil responsibilities and media. As a defamatory statements on matters of public consequence, “those who write and speak interest can be protected from liability. would not be compared to criminals” when Also, Art. 205 (2) of the Law on Obligations it comes to penalties, and the responsibility (Offi cial Gazette of Montenegro, No. 47/2008) would be transferred to the civil law sphere contains the following provision: and public debate as a space for demystifi ca- “One shall not be liable for damages tion of all kinds of manipulations. caused by a false statement about another As an alternative for decriminalisation of person if one was unaware that the state- defamation, Rastoder suggests reform of the ment was false, and if the one or those to Criminal Code, by making Art. 196 (“A jour- whom the statement was communicated had nalist and editor who acted with due profes- a serious interest in the matter.” sional care shall not be punished”) more pre- This formulation is in accordance with the cise in reading and application. What should above international standards, but not in ac- be guaranteed is that any possibility of con- cordance with the disputed constitutional viction for value judgment, overcriticising, in- provision, which “guarantees” the responsi- complete information, or simple quoting of bility for publishing false information. someone’s words or attitudes is ruled out. On the other hand, the law should support the 2 Cross-cutting issues publishing of all information which is of public interest. Montenegro has laws more or less harmon- Rastoder also pointed out that in Mon- ised with European standards, as well as rec- tenegrin legislation there is no protection ognising supremacy of international norms, afforded to journalists in cases of journalists but, according to Mirsad Rastoder95, head of being hindered in executing their professional the Montenegrin Journalists’ Self-regulatory tasks. Body, in Montenegro freedom of expres- The President of the Association of In- sions is being suppressed both directly and dependent Electronic Media (UNEM) Ranko indirectly. Another contradiction is that media Vujoviæ97, also agrees that differentiating val- are free to publish anything, and still the real ue judgments from facts in court practice pos- freedom is missing, together with the quality es a problem. This difference has never been of public debate. The problem lies, accord- clarifi ed in relevant laws. The Law on media ing to Rastoder, in inadequately transposed enables judges to call upon the practice of the regulation in subordinate, secondary acts and ECtHR, but Vujoviæ suggests that the differ- in practice. He claims that a habit of media ence should be defi ned in the Criminal Code. being used by politicians, parties and other

infl uential groups has not vanished but it is 96 Criminal Code, Offi cial Gazette of Montenegro, No. 70/2003, 13/2004, 47/2006 and Offi cial Gazette of Montenegro, No. 40/2008 and 25/2010 95 Interview from 17 December 2010. 97 Interview from 28 November 2010. Montenegro 107

The Montenegrin Criminal Code (CC) Arts. 28-30) that was suggested by the HRA is (Art. 195 – Insult) prescribes that anyone who trying to align these provisions fully with EC- insults another person shall be punished by tHR practice. It refers to continuous calls from a fi ne to the amount of € 1,200 to 4,000, the Court which say that State parties should while if the insult is made through media or resort to criminal liability for publishing false at a public gathering, the fi ne increases to information only in extreme cases. As an opti- the amount of € 3,000 to 10,000. Exceptions mal solution, the working group of HRA pro- are statements given within serious critique poses complete decriminalisation by deletion in a scientifi c, literary or artistic work, per- of all criminal offenses against honour and formance of a public service, or journalistic reputation, provided for in Chapter XVII of writing, political activity, or to defend a right the CC (Art. 195 - Insult, Art. 196 - Defama- or protect justifi able interests, if the manner tion; Art. 197 - Spreading information about in which the statement is expressed or other private and family life; Art. 198 - Damaging circumstances indicate it is not done on the the reputation of Montenegro (fl ag, emblem, grounds of discrediting a person. anthem); Art. 199 - Damaging the reputation Provisions on Defamation (Art. 196) say of people, minority groups and other minor- that anyone who speaks or transmits untrue ity ethnic groups; Art. 200 - Damaging the information about someone that may harm reputation of a foreign state or international his/her honour and reputation shall be pun- organisations), including Arts. 28 to 30 - Spe- ished by a fi ne to the amount of € 3,000 to cial provisions on criminal liability for crimes 10,000, while the amount of punishment in committed through the media, providing for case of media rises to € 5,000 to 14,000. If the liability of editors and liability of publish- untrue information said or transmitted has ers, printers and manufacturers. caused or could have caused signifi cant harm In such a way, HRA argues, inability to to the injured party, the perpetrator shall be clearly and precisely defi ne the crimes would punished by a fi ne to the minimum amount be removed. The subjective nature of the of € 8,000. In order not to be punished for crimes of Insult, Defamation and Spread- charges with defamation, the perpetrator ing information about private and family may prove to have had well-founded reasons life, makes it diffi cult to defi ne the notion to believe in the truthfulness of what he/she of these crimes by the law, and that their said or transmitted, while a journalist and edi- defi nitions are inevitably too general and tor has to prove that he/she “acted with due allow for arbitrary interpretation by courts, professional care”. which is not in accordance with the principle Very similar provisions (Art. 197-200) re- of nulla poena sine lege certa, stating that fer to the criminal acts of stating information imprecise norm be avoided as much as pos- from personal and family life, damaging the sible (certus-precise), also accepted by the reputation of Montenegro, damaging the ECHR. Another reason is the availability of reputation of the people, minorities and oth- more lenient, alternative solutions. Although er minority ethnic groups and damaging the the previous reform of the Criminal Code in reputation of a foreign country or an interna- principle excluded prison sentence for crimi- tional organisation nal offenses against honour and reputation, The Reform Proposal of the Criminal Code except for the criminal offence of Damaging of Montenegro (Chapter XVII: Criminal of- the reputation of Montenegro, there is still fences against honour and reputation and a realistic danger in Montenegro that a per- 108 The Media in South-East Europe – Comparative Media Law and Policy Study

son convicted of any of these crimes spends are not of general importance, and where some time in prison, if he/she does not pay the state has no interest in taking prosecu- the fi ne by a deadline set in the verdict. The tion of those crimes. case of Milorad Mitrovic, president of the Instead, HRA proposes new criminal of- Ecological Society “Breznica”, whose fi ne fences: Prevention of journalists from per- of 5,000 Euros has recently been replaced forming professional duties, and Assault on by imprisonment, proves that this danger is journalists in the performance of professional not just theoretical.98 The very possibility of duties in order to level the protection of pub- serving prison sentences for these crimes, in lic offi cials and journalists on duty. the opinion of the ECHR, has the effect of Since the last year reform of the Criminal censorship and is especially discouraging for Code in principle excluded prison sentence freedom of expression. for criminal offenses against honour and rep- Further arguments are disproportion of utation, and introduced exceptional provision punishment, due to double prosecution and or, better, wording “due professional care” sanctioning in criminal as well as in civil pro- which defends journalists and editors from ceedings, and the fact that the offender is guilt, HRA proposes for this phrase to be de- considered to be convicted of a crime. Ac- fi ned in the Media Law.99 cording to current legal solutions in cases of The proposed new Art. (Due professional insult and defamation it is possible to have care, Art. 4) would state that: two separate proceedings, as most often “A journalist is obliged to reasonably happens in practice. Starting from the pre- verify the truthfulness and completeness of scribed range of fi nes for such offences (for any information before its publishing. Be- insult € 1,200 to 4,000, and for defamation fore publication of information, a journalist € 3,000 to 14,000), and unlimited amounts and responsible editor has to make a rea- that may be imposed in a civil law action for sonable effort to give an opportunity to the compensation of non-pecuniary damage, it person, to whom the information relates, to is almost certain that the total amount in any express his/her opinion, if that does not pre- case will be disproportionate and excessive vent timely disclosure of the information. A when compared against the standards set journalist is obliged to publish other people’s by the ECHR. Also, the penalties for these information, ideas and opinions credibly and crimes, prosecuted by private action, have completely and, if the information is taken a predominantly retributive character, since from other media, a journalist is obliged to the penalties are paid to the state budget cite that media. and do not represent any sort of compen- The degree of due professional care is pro- sation for the victim. The fact that the of- portional to the gravity of the possible conse- fender is being convicted and that his/her quence of the published information.” offense remains in the criminal records has According to HRA, specifying standards a stigmatising effect on that person and may of due professional care is necessary for this also have other negative consequences: for duty to be prescribed as a legal one and to example, in employment, although these are ensure proper understanding of the stan- less serious offenses, a result of issues that dard of accountability by both the courts and the media.

98 Veèernje novosti, Ponovo u aps (Back to the joint), 13 No- 99 Media Law, Ofﬁ cial Gazette of MNE, No. 51/2002, and vember 2010, p. 19 62/02, Ofﬁ cial Gazette MNE 46/10. 14 Montenegro 109

Another disputable provision concerns - of public interest, transmitted as a quote the liability for damages caused by the me- from other media or published within an dia. Art. 20 of the Media Law prescribes authorised interview; that the founder of the media is responsi- - from private life, true or complete, and ble for the published programme content. the circumstances of the case show that If the media publishes programme content the author in good faith concluded that that violates legally-protected interests of the damaged party agreed to its publi- a person to whom the information relates, cation; or harms the honour or integrity of an - from private life or personal recording, individual, states or transmits false state- which may have been published without ments about his/her life, knowledge and authorisation of the person in question; abilities, the person has a right of action to - an opinion of the author, whose publica- the competent court for damages against tion was of public interest, and if given in the author and against the founder of the good faith. media. HRA proposes that the responsibility of HRA proposes that the author, respon- state authorities should also be the subject of sible editor and founder of the media should Media Law, stating that it would provide the have the joint responsibility for damage state’s liability for all damages caused by the caused by publication of false, incomplete publication of false, incomplete or other infor- or other information, whose publication is mation published by its organ. In this sense, prohibited by this Law, and which violates the responsibility of journalists for damages the reputation or rights of a person, if it is resulting from the publication of false, incom- proven that the author or responsible editor plete or other information is excluded, since acted contrary to due professional care. Also, journalists cannot be required to verify infor- the media founder, editor and author of the mation obtained from the authorities. Fur- programme content should not be liable for thermore, it would be useful to provide that damages if they acted with due professional state authorities are not allowed to ﬁ le claims care, and especially if the programme con- for harm to reputation. tent that caused the damage was - essentially true, and false only in unim- 3 Sector-speciﬁ c regulation portant elements; - based on facts that the author had rea- 3.1 For the press sonable grounds to believe were complete or accurate, while there was a legitimate Press falls under the general Law on media public interest to be familiar with this in- which has been harmonised with European formation; standards. However, despite the proper le- - accurately transferred from discussion at gal norms, their implementation is obviously the session of the legislative, executive or problematic, starting from the fact that the judicial authorities, bodies of local self- Law forbids the state ownership over media government or at a public meeting; or while one of the three existing dailies, Pob- from the act of the state bodies or other jeda, is still state-owned. legal persons entrusted by public author- In addition, the obligation of the press ity, and its meaning has not been changed media to publish their print circulation is com- by the journalistic editing; pletely neglected in daily papers. 110 The Media in South-East Europe – Comparative Media Law and Policy Study

3.2 For broadcasting ship structure in the media, capital origin, as well as some kind of protection of domestic a) Public service broadcasting media from aggressive productions from the The latest changes to the Law on PBSs (Decem- neighbouring region. Also the income from ber 2008) provided a stable fi nancing mecha- political marketing and donations for pro- nism for national PBS. With a fi xed percentage gramme production and sustainability should from the national budget, Radio-Television of be made public. Montenegro got preconditions to become a The non-existence of a special law on illegal promoter of democratic needs in society. media concentration brings into question the Public service Radio and Television of Mon- quality of regulation on market transparency, tenegro, according to Rastoder, has not yet monopolistic behaviour and editorial central- become a true guardian of public interests, ism, which should be more strongly regulated. nor is it a measure of professionalism in the The Law on Electronic Media from De- media scene. Its effi cacy and transformation cember 2009 (Art. 128) demands from AVM depend on some legal and statutory correc- service providers to publish data on all legal tions, but mostly they depend on the will of and physical persons with direct or indirect political elite to cease to infl uence (indirectly) share in its ownership, exceeding 10% of to- the management of PBS. tal ownership in companies that are provid- The unsuccessful implementation of the ers of AVM services, as well as their owner- fi nancing model for PBS in which the citizens ship share in other companies which provide would pay for programmes they watch on AVM services. public service channels, due to the general The Law (Art. 130) also defi nes cases of economic situation in the country, discour- illegal media concentration, i.e. if a broad- aged a more demanding behaviour of con- caster or persons related to him/her own(s) sumers, which might have given a boost to a share in the founding capital of another better quality programming. broadcaster, a publishing company involved Improvements to the functioning of PBS in the publication of a daily newspaper, or are not only of a legal nature, but might in- vice versa, or in a news agency and vice ver- clude other mechanisms of satisfying public sa. Illegal media concentration is also exis- interests, such as introducing the institution tent when a broadcaster owns at the same of an in-house Ombudsman, for example. time more than one broadcaster license; when it is simultaneously involved in broad- b) Commercial broadcasting casting radio and television programmes, The fact that Montenegro has 8 television sta- or when it is simultaneously involved in tions with national coverage, and that there broadcasting radio and/or television pro- are over 60 radio stations has not yet given grammes as well as in the publication of a the expected quality. This fact, nevertheless, daily newspaper distributed on the territory proves the premise that the foundation of covered by the broadcast radio and/or televi- media is free. However, some examples from sion programmes or conducts the activities practice where there were obstructions in is- of a news agency. The existence of illegal suing licenses to broadcasters show the ne- media concentration is also determined if cessity of further improvements to regulation. the broadcasters are established by natural These changes should provide for a clear posi- or legal persons that simultaneously appear tion of the regulators, open access to owner- as founders of other broadcasters; founders Montenegro 111 of a publishing company that publishes a transferred the ownership shares to the em- daily newspaper distributed on the territory ployees of the media.100 covered by broadcast radio and/or television In April 2004, the Government of Mon- programmes, or founders of a news agency. tenegro signed the initiative on drafting the To be regarded illegal (Art. 131) media Law on Media concentration with the Coun- concentration must be such that a broad- cil of Europe and the European Agency for caster licensed for broadcasting on the na- Reconstruction. Several versions were draft- tional level of coverage has more than a 25% ed, but none of them ever became a bill. share in the capital assets or voting rights of The Ministry of Culture, Sport and Media another broadcaster with the same kind of li- said that there was no need for it since, in cense; owns more than a 10% share in the 2005, Parliament passed the general Law on capital assets of a publisher of a daily news- protection of competition. The Broadcasting paper with a circulation exceeding 3,000 cop- Agency, however, said that nothing in the ies or in a company involved in news agency existing legislation forbids someone to buy activities, or is simultaneously a publisher of all three Montenegrin dailies. This proved a daily newspaper with a circulation exceed- a possible scenario when German concern ing 3,000 copies. In cases of local or regional WAZ (Westdeutsche Allgemeine Zeitung), broadcasters, illegal media concentration re- at the time owner of stakes in Daily Vijesti fers to more than a 30% additional share in (2003-2007), also negotiated the purchase the capital assets of a broadcaster licensed for of another national daily Pobjeda. broadcasting on the regional or local level of The broadcasting sector has to be more coverage in the same area, or simultaneous strongly regulated when it comes to the publishing of a local daily newspaper, in the protection of intellectual property rights, same or neighbouring areas. especially considering the transformation The only study that has been done on of this market into the digitalised world, this topic was “media ownership”, published where the role of the regulator (the Agency in 2004 by the Montenegro Media Institute for Electronic Media) must be greater. The which states that “the legal provisions on il- Law on the protection of author’s rights in legal media concentration have been broken preparations and its adoption is strongly in several cases of intertwined media own- needed, considering the speed at which ership”. Among the biggest cases of media the market is developing. This would clarify owners, this study mentions the company Ju- the situation when it comes to broadcast- media Mont which owns daily Dan, weekly ing rights and protect domestic TV stations Revija D and Radio D. Another case was that from losing their viewership against the of Miodrag Peroviæ, professor at the Univer- programmes of foreign media broadcast via sity of Montenegro, who was the founder cable operators. and co-owner of several Montenegrin media: This might eventually provide a healthier daily Vijesti, Vijesti television, weekly Moni- atmosphere on the market of AV operators tor, and radio station Antena M. The Direc- and test its viability, which proved to be very tor of Jumedia Mont later explained that Ra- fragile in the last several years where the dio D did not have national frequencies and market in particular has suffered from the the Law therefore was not broken. Miodrag Peroviæ also later explained that this legal mo- 100 Weeekly Monitor, Without Clear Rules (Bez jasnih pravila), ment was only temporary and that he later March 12 2010, p. 24-26 112 The Media in South-East Europe – Comparative Media Law and Policy Study

global fi nancial crisis. As a consequence of broadcasting which was drafted in Decem- this poor state in media funding, in Febru- ber 2010.101 ary 2011, the government of Montenegro announced the Media Aid Package, consist- c) Regulatory authorities with an impact on ing of a total support amount of € 5.2 mil- the media sector lion. (This includes € 880,000 debt reliefs to Montenegro’s policy in the fi eld of electronic the biggest press distributor “Bega Press”. communications is set out in the fi ve-year 85% of this money went to three dailies: strategy for the electronic communications Dan, Vijesti, Pobjeda and weekly Monitor.) sector, adopted by the government in June The state wrote off all broadcasters’ debts 2006. Based on this strategy, the Law on elec- to the Broadcasting Centre for 2009 and tronic communications (LEC) was adopted in 2010, worth € 3.4 million, as well as to the July 2008, replacing the Telecommunications Agency for Telecommunications, amount- Law of 2000 and establishing a new legisla- ing to € 0.9 million. Another step in the Me- tive framework aiming for alignment with dia Aid package was a 20% decrease in the the EU regulatory framework. Amendments transmission tariffs paid to the Broadcasting to the LEC and the Law on Electronic Media Centre. were adopted in July 2010, which are aligned This move was motivated by the an- with each other and together clarify the fund- nouncement of the Broadcasting centre on ing of the future Agency for Electronic Media cutting out the signal of 15 TV and radio sta- (formerly Broadcasting agency) and its role tions in an attempt to force them to pay over- in the procedure for granting broadcasting due debts. This situation showed that a large licenses. However, as the amendments en- number of media organisations were unable tered into force only in August 2010, their to pay the basic costs of their business, and actual implementation cannot be assessed at consequently forced the Government to in- this stage. Implementation of the LEC so far, tervene. through the adoption of secondary legislation Although necessary to secure the survival and through the enforcement of regulatory of several media these measures, however, decisions, is still at an early stage. However cannot be regarded as a trend as otherwise the provisions on the transparent, represen- they could make the media dependent on tative parliamentary election of the manage- state support, thus questioning their editorial ment council, and transparency of the licens- policy and independence. Although this can ing procedure are promising the adequate be attributed to somewhat special circum- functioning of this regulator. However, their stances, it still shows that a stronger frame- other important function – monitoring of me- work for a functioning media market is need- dia content – should be strengthened, consid- ed in order to preserve their plurality. ering the entrance into the market of a large An additional burden to commercial number of media starting via cable operators broadcasters would be the digital, switcho- in the previous years. ver scheduled for the end of 2012, when, Despite the alignment of the LEC with according to the current strategy, the state the Law on Electronic Media, there are still is not planning to help them with the trans- concerns about several provisions of the LEC, formation. This calls for special attention to the legal framework concerning the digi- 101 Full text of the Draft Law on digital broadcasting: http:// tal switchover, primarily the Law on digital www.mid.gov.me/biblioteka/nacrti-zakona Montenegro 113 regarding the other regulatory body – the legal grounds as a regulator to act in cases Agency for electronic communications and of illegal internet content that may harm hu- postal services (EKIP). man dignity. Finally, there are no initiatives for The LEC established the EKIP, which be- establishing a system of content control of in- came operational at the end of 2008. The fi ve ternet services under way or foreseeable yet. members of the agency’s board are appointed The legislation on conditional access will directly by the government, which carries the need to be improved and brought into line potential risk of political infl uence. The regu- with the acquis. latory oversight function of the ministry over the regulatory authority brings into the ques- 3.4 For fi lm tion the latter’s independence. This appointment procedure is also not in For the Montenegrin fi lm industry a new legal line with the EU regulatory framework, which framework has been set up by adopting the aims to ensure that national regulatory au- Law on Cinematography. The last year proved thorities are protected against any external to be very successful, with 4 full-length fea- intervention jeopardising their independent ture fi lms produced. functioning. The LEC further grants compre- However, further development of the fi lm hensive supervisory powers over EKIP to the industry is strongly limited by numerous fac- Ministry of Transport, Maritime Affairs and tors. As the Ministry of Culture states in its Telecommunications, which also endangers National Strategy for development of cul- the agency’s independence. ture, the problems range from non-existence of institutions and infrastructure that would 3.3 For online services round-up the process of production, distribution and broadcasting of fi lms, to the lack In the fi eld of information society services, of technical and technological conditions for Montenegro adopted a strategy on the in- work, which makes fi lm workers dependent formation society 2009-2013 in early 2009; on foreign services. Domestic producers em- however, broadband policy is not addressed. bark on new projects only when they secure The Ministry for the Information Society, initial fi nancial support from the state, be- established at the beginning of 2009, is in cause in the small Montenegrin market it is charge of its implementation and co-ordi- impossible to make any signifi cant return on nation with other government bodies and investment from exploiting the fi lm works. institutions. A dedicated budget is avail- There are fewer cinemas in Montenegro to- able, but the administrative capacity of the day than half a century ago, and they are for ministry is limited. the most part archaic. In the capital Podgorica Considering the fact that Montenegro there is only one modern cinema, the private- does not have a legal framework for online ly owned multiplex “Ster”, visited last year media, meaning that there are neither legal by 230,000 visitors, by the way, which is the obligations to internet service providers re- population of the capital city! garding the content, nor a competent body The ministry admits that state grants are that would deal with content control of Inter- too small and that they make it diffi cult for net services, there is no doubt that this sector cinematographers to make any co-operation should be regulated as soon as possible. The with surrounding countries. Cinematographic Agency for electronic communications has no human potential is growing, thanks to the 114 The Media in South-East Europe – Comparative Media Law and Policy Study

Faculty for drama, but in the current situation it is impossible for all of them to be professionally engaged. There is a lot of criticism in the country, due to the weak co-operation with other countries and funding fi lm production (Daily Vijesti, October 16 2010, Out of all European cinematographic streams (Izvan svih evrop- skih fi lmskih tokova), p. I, III). For example, Montenegro is the only ex-Yugoslavian country which is not a member of Eurimages, the Council of Europe’s fund for co-production, distribution, exhibition and digitalsiation of European cinematographic works. In its National Programme for Develop- ment of Cinematography, the government of Montenegro plans to join Eurimages and the MEDIA programme of the European Union by 2012 at the latest. The problem is the discrepancy in the range of values. The membership fee for joining Eurimages would cost Montenegro not less than € 100,000, which is comparable with the total amount the state provides for funds to the fi lm industry annu- ally, and there are no guarantees that Monte- negro would benefi t from this organisation in fi nancial terms. However, only by being enabled to enter a wider market could this sector prosper. Romania 115

Romania 2 The regulatory status quo

Manuela Preoteasa 2.1 Press

I Most noticeable characteristics in the The print media is self-regulated through dif- media-sector ferent codes of conduct, but there is no implementation unit for those codes. The Convention In the following some of the most signifi cant of Media NGOs, an informal alliance of about characteristics of the media landscape of Roma- 30 NGOs across the country, has strongly ad- nia, based on and taken from the country report vocated the implementation of the adopted by Manuela Preoteasa, are (briefl y) given.102 Unifi ed Deontological Code (Codul Deontologic Unifi cat – CDU) and the implementation of a 1 General data Certifi cate of Good Journalistic Practices (Certi-

Country proﬁ le Basic data Country population 21,400,000 Ofﬁ cial language/s Romanian Main ethnic groups (besides Romanian:) 6.6% Hungarians, 2.5% Roma (% of population) Hungarian 6.6%, Roma 2.5%, other recognised minorities, totalling 2%: German, Ukrainian (0.2 percent each), Serbian, Recognised minorities Russians (Lipovan), Turkish,, Jewish, Crimea Tatar, Serbs, Slovaks, Bulgarians, Croats, Greeks, Albanians, Italians, Polish, Czechs, Armenians 86.7% orthodox, Romano-catholic (4.7%), Protestant (3.7%), Religious groups (% of population) Pentecostal (1.5%), Greek-Catholic (0.9%) Average salary per month (€) 319 Media market data Total market volume advertising N/A market in 2010 (€) Net advertising budget in 2010 (€) 308,000,000 Press N/A (dailies) Newspapers N/A (periodic publications) price for dailies around € 0.28 per issue. Magazines N/A Broadcasting Comm.: more than 25 (national Television PSB: coverage), > 3 (regional 1 (national coverage) coverage), > 6 satellite stations, N/A cable TV stations TV advertising revenues in 2010 (€) PSB: 8,388,468 Comm.: 209,000,000 Comm.: 3 (national coverage), PSB: Radio 12 (regional coverage), 6 1 (national coverage) networks of local licences

102 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 116 The Media in South-East Europe – Comparative Media Law and Policy Study

N/A (TV:) 135,080,000 (total) 41,820,768 (state funding) 16,912,016 (self generated) 76,347,216 (licence fee total); 20 (licence fee per household Income TV & Radio (€) per year); 90 (licence fee per company per year) (Radio:) 94.4 million (total) 46.9% state budget, 52.6% own revenues, 0.1% susbidies, 0.4% fi nancial income 1,061 ISPs Internet monthly tariffs between € 10 and € 20 10 state supported long fi ction fi lms in 2010 18 feature fi lms were produced in 2009; 11 were state supported, 7 were co-productions, 32 short fi lms, documentary Film and animation fi lms in 2009; 24 were state supported € 7.5 million (total state funding in 2009) Ticket prices between € 3 and € 5

fi catul de Bune Practici Jurnalistice – CBPJ) for Code of Conduct with regard to advertising. those editorial products, publications and/or in- Other branches of the communication indus- stitutions which implement the CDU, in order try interacting with the broadcasting system to encourage the self-regulatory process. The oriented themselves towards self-regulation. CBPJ is going to have no implication other than One example is the Code of Advertising Prac- in terms of a symbolical warranty with regard to tice, adopted by the Romanian Advertising the implementation of the Code in parallel with Council (RAC), a document which has been publicly-made positioning against those break- offi cially recognised by the National Council ing the ethical and deontological standards. for Audiovisual (Consiliul Naþional al Audiovi- zualului - CNA) since October 2003. 2.2 Broadcasting The Ministry of Culture and National Heri- tage is the fi rst policy maker with regard to The Law on Audiovisual No. 504/2002 regu- broadcasting media. The Audiovisual Coun- lates public and commercial broadcasting ac- cil has the mission of securing the imple- tivities. All audiovisual media service providers mentation of the provisions applying to the must ensure the objective information of the broadcasting segment (especially those of the public by correctly presenting the facts and Audiovisual Law) and is the authority which events. They must also nurture free formation grants licences (after a technical authorisation of opinions. Apart from the obligation to pro- is issued). The body in charge with the spec- vide balanced news and to refl ect all sides as trum administration, the National Authority well as the obligation to protect minors that for Management and Regulation in Commu- apply to all broadcasters, commercial broad- nications (ANCOM – Autoritatea Naþionalã casting media in Romania do not have special pentru Administrare ºi Reglementare în public service obligations. Romania has a dual Comunicaþii) is signifi cantly important in the broadcasting system with the public broadcast- light of the 2015 digital switch-off. The CNA er Societatea Românǎ de Televiziune (SRTV). is the main watch-dog both in terms of fulfi ll- Apart from the existing Codes of Conduct, ing the legal provisions with regard to neutral, the broadcasting landscape has a specifi c balanced reporting, as well as in terms of en- Romania 117 suring the transparency of ownership in the 4% of the advertising contracts of televisions, broadcasting market and of preventing the 3% contribution from monthly income from abuse of dominant positions. screening fi lms in cinema halls or other public places, 1% of the monthly income from ca- 2.3 Online services ble and satellite TV transmission, 20% of the revenues obtained from privatisation of the Online services are not regulated through spe- state-owned real estate in the fi lm industry. cifi c legal provisions, but a set of obligations de- The fee payers should also have the option to rives from the existing laws; especially from Law contribute with up to the half of the amount 506/2004 on the processing of personal data in the direct fi nancing of the movie industry. and the protection of privacy in electronic communications, and Law 677/2001 on the protec- 3 Main challenges in media practice tion of individuals with regard to the processing of personal data and the free movement of such 3.1 For the press data, which closely follows Directive 95/46/EC. Print media products are not expensive to pur- 2.4 Film chase, but the print media business is hardly profi table on its own and autonomous from The Ministry of Culture and of National Heri- other affairs (not necessarily commercially- tage is the policy maker in the cultural fi eld. linked). The legal framework does not ensure a The implementation of the regulations con- market which favours real investment in quality cerning the fi lm industry is ensured by the Na- media. There is no legal support for a fair com- tional Center for Cinema (CNC) and the Na- petition within the media market, although tional Film Archive (Arhiva Nationalã de Film – apparently the provisions on competition are ANF). The ANF is, amongst others, responsible in line with European legislation. Mechanisms for the collection, cataloguing, preservation to prevent cross-concentrations not only in the and restoration of fi lms, and operated with print media market, but transversely in mar- a budget of € 1.2 million in 2009. The CNC kets such as distribution and printing facilities counts the publication of specifi c instruments should be revised. Especially print media pub- for raising awareness of fi lm heritage such as lishers left the market not only because of the fi lmographies from the inter-war period and decline in advertising spending, but apparently dictionaries of cinematography, and also the because of the dominant positions of media allocation of 3% of the national cinematog- owners with strong political ties, which turned raphy fund for fi lm preservation and restora- the Romanian environment into an unfriendly tion. The CNC is the main public institution one in the news provision sector. awarding public funding to Romanian producers. Apart from that, Romania is a party 3.2 For broadcasting to the Fund for Movies of the Council of Eu- rope, Eurimages, and the CNC informs fi lm The main challenges for the broadcasting makers on Eurimages rules concerning the sector are the same as for the press: the le- co-fi nancing procedures. Government Ordi- gal framework does not ensure a broadcast- nance 39/2005 established the contributions ing market which favours real investment in for movie production as follows: 2% of the quality media and there is no legal support ticket prices and of the sold/rent recordings, for fair competition within the broadcasting 118 The Media in South-East Europe – Comparative Media Law and Policy Study

sector. Another challenge is also cross-owner- to contributions in internet forums and stories ship and the lack of transparency. The adop- published by media houses. This led to a policy tion and the implementation of rules for the of vague moderation of comments by the big transparency of funding should be obligatory. publishing houses, which prefer to warn users Economic and fi nancial vulnerabilities seem that their comments are their own responsibility. to have become more and more relevant for media autonomy towards pressures, and the 3.4 For fi lm transparency of funding might give an idea on the fi nancial independence of the so- The media agencies should retain 4% of TV called independent media outlets. advertising in order to fi nance the national In August 2010, the Romanian Govern- cinematographic fund, managed by the CNC. ment decided to postpone the digital switcho- A supplementary fee of 15% of its advertising ver from analogue free-to-air transmission in revenues is provided by SRTV, according to its the television fi eld to digital terrestrial broad- mission of supporting the Romanian fi lm in- casting. The Government justifi ed its decision, dustry. In 2009, no contest was held, due to based on the diffi cult socio-economic situa- the public appeals on behalf of the directors, tion that Romania has faced. including members of the jury. There is no re- Three big foreign investors (Lauder’s striction of cross-ownership with the fi lm sec- group, ProSieben Sat.1 and the French La- tor in the legislation concerning the media. gardère), whose broadcasting outlets have a nationwide coverage, do not want to get into II Proposals for remedying the situation the news business and rather focus on info- tainment, entertainment, sports and movies, 1 Constitutional law aspects mainly for advertising purposes. CNA has been monitoring the audiovisual Most of the media outlets are dependent on content, and it often issues warnings, which obscure sources of fi nancing, despite Art. 30(5) the TV networks have to air in their broad- of the Constitution, which holds for the possi- casts, or even fi nes for breaking the audiovi- bility that the media fi nancing sources be made sual code or other CNA decisions. transparent by law. Media groups should make their ownership and fi nancing sources transpar- 3.3 For online services ent. In the audiovisual industry, the broadcasting regulator CNA should make the transpar- Ordinance 181/2009 introduced on-demand au- ency of the fi nancing sources compulsory. diovisual media services, defi ned as a non-linear audiovisual media service provided by a media 2 Cross-cutting issues service provider for the viewing of programmes chosen at the moment by the user and at his in- Media professionals have noticed an increas- dividual request on the basis of a catalogue of ing lack of relevance in media reporting, both programmes selected by the media service pro- in print and in broadcasting. Media groups vider. These services are not yet effective. should enforce the existing deontological The liability for content of online services is codes and participate in the process of being not a big issue, although there are thousands granted the certifi cate of good practices by of comments containing abusive language, professional associations, as part of the self- with potentially libellous content, with regard regulatory process. Media NGOs should con- Romania 119 tinue the efforts of raising media accountabil- tributed to an increasing lack of trust in local ity through self-regulatory mechanisms. and national print media. The NGOs advocat- The practice of mixing information and ing self-regulatory mechanisms should con- opinion has continued to be largely used, espe- tinue their efforts to encourage and support cially by news channels, which have started to good journalism. They should continue to transform all pieces of information into endless, work closely with the industry for the imple- often partisan debates. NGOs should continue mentation of professional standards and of the efforts of putting pressure on the industry to relevant qualitative journalism. clearly separate information from opinion, both The distribution of the print outlets is in print and in broadcasting media. concentrated by companies and/or groups Although transparency of media owner- of companies, whose ownership is not well- ship has increased in the broadcasting sec- known. The Ministry of Culture and the Na- tor, there are print outlets whose ownership tional Heritage, together with the broadcast- is still obscure. Media outlets should publish ing regulator, should extend to the distribu- their ownership on their websites in order tion sector the obligation of transparency of to be accessible by the general public. In the ownership. Through self-regulatory mecha- broadcasting sector, the CNA should continue nisms, the media NGOs should extend the re- to monitor the broadcasters’ ownership and search and the need for good practices to the publish the data on its website. distribution industries, from the transparency A few MPs have tried to initiate bills of ownership perspective. meant to regulate the Internet information. Newspapers sell discounted collections of All attempts at regulating the press and/or the books and DVDs together with newspapers. online media should be dropped and those The sale of books and DVDs overpasses the fi elds should be subject to a more consistent limits of sampling and promoting materials regulatory process. and potentially interferes with other markets, Investment in the training of journalists, disturbing the fair competition in those mar- editors and managers is rare in the majority kets as well. The Competition Council should of newsrooms. Media NGOs, working closely look into the practices of selling different with the industry, should continue to encour- goods together with newspapers and should age young journalists, editors and managers take measures against such practices, when- to adopt professional standards and to apply ever such practices are confi rmed to be anti- good practices, despite the lack of profession- competitive, following specifi c investigations. alism in the rating-oriented media. 3.2 For broadcasting 3 Sector-specifi c regulation With a few exceptions, most of the broadcast 3.1 For the press news programmes have become highly populist-oriented, have lost neutrality and become Print media have signifi cantly lost readership; involved in a series of highly populist social in the past, most of the newspapers were campaigns. In the broadcasting sector, the launched to serve their owner’s business and regulator should defi ne the public interest and political interests and, during recent years, closely monitor how the news programmes most of the newspapers have involved them- serve the public interest. Moreover, the cover- selves in political campaigns, which has con- age of local news, a compulsory condition for 120 The Media in South-East Europe – Comparative Media Law and Policy Study

the granting of the licences, should be clearly on cross-concentration between media and enforced by the CNA. sectors related to the media industry (i.e. distribution and advertising sectors). a) Public service broadcasting Key Art.s in Law 41/1994, with regard to SRR c) Role of the regulatory authorities in practice and SRTV, make the mechanism of subordi- The Audiovisual Law is rudimentary with re- nation in the public service broadcaster de- gard to the anti-concentration measures in pendent upon the political will. The cumula- the fi eld of the distribution of the signals. The tion of the positions of chairperson of the Ministry of Culture, together with the broad- board and of the executive position, on the casting and telecommunications regulator, one hand, and the possibility that the Parlia- should draft amendments to the Audiovisual ment dismisses the board of its own will, on Law to be applied in the fi eld of signal distri- the other hand, are among the most impor- bution and to prevent any diagonal economic tant. Parliament should amend Law 41/1994 concentration. with regard to public services broadcasters in The government decided to postpone order to separate the positions of the chair- digitalisation by cancelling the on-going ten- person of the board and that of the man- der for the fi rst multiplex. The Ministry of aging director. The separation is necessary Culture, the broadcasting regulator and the to ensure the independence of the execu- media NGOs should advocate a fi rm sched- tive position towards a board composed of ule for the digital switch-over. The Ministry of people nominated by the political groups in Culture, the Ministry of Information Technol- the national Parliament. Moreover, Parlia- ogy and Communication, the broadcasting ment should not have the right to dismiss regulator and ANCOM should initiate a wide the board based on a simple lack of approval public debate on the date of the digitalisa- of the yearly activity report. Instead, mecha- tion of terrestrial TV, the necessary steps that nisms of external editorial audit should be such a complex process requires, and on the initiated and enforced, based on which Par- effects of the process, on the amendments of liament should potentially make recommen- the existing regulatory framework – in order dations to the board. to avoid abuse of economic concentration and to ensure a fair process of awarding the b) Commercial broadcasting licences for multiplex operations and for the The cable operators allegedly abuse dominant licences for content producers. positions in different areas of the country. The cable operators have started to launch their 3.3 For online services own TV channels, which compete with the existing TV channels. The cross-concentration See above under I 3.3 between media and advertising agencies is also frequent, although there is no research 3.4 For fi lm or analysis of this sector. The Competition Council, in cooperation with ANCOM, should A few major fi lm producers consider that the launch a broad investigation with regard to procedure of awarding the grants for the Roma- the claimed economic concentration on the nian independent productions is subjective. The cable network operating market. Media Ministry of Culture should initiate amendments NGOs should initiate independent research to the existing procedure of granting national Romania 121 subsidies for the Romanian fi lm producers in order to ensure fairness of the process. Only a few big companies are aware of the fi scal incentives applicable in the case of sponsorships for the Romanian fi lm productions, while awareness among the majority of companies has remained signifi cantly low. The NC, in cooperation with the specialised NGOs, should promote the fi scal incentives of which a company might benefi t when it sponsors an independent movie producer. 122 The Media in South-East Europe – Comparative Media Law and Policy Study Serbia 123

Serbia 2 The regulatory status quo

Slobodan Kremenjak 2.1 Press Milos Zivkovic The press sector is mainly regulated by the I Most noticeable characteristics in the Law on Public Information (others are the media-sector Law on Free Access to Information of Public Importance, the Criminal Code and the Law In the following some of the most signifi cant on Protection of Competition). The Law on characteristics of the media landscape of Ser- Public Information sets out public informa- bia, based on and taken from the country re- tion principles, defi nes media outlets as well port by Miloš Živkoviæ and Slobodan Kremen- as the distribution of media outlets, imprint, jak, are (briefl y) given.103 rights of the person the information refers to, omission to publish information, infor- 1 General data mation on the outcome of criminal proceed-

Country proﬁ le Basic data Country population 7,300,000 Ofﬁ cial language/s Serbian Main ethnic groups 82.86 Serbs, 3.91 Hungarians, 1.82 Bosniaks (Muslims), 1.4 (% of population) Romany, 1.08 Yugoslavs, 0.92 Montenegrins, 1.0 Albanians

Albanians, Ashkali and Egyptians, Bosniaks Bulgarians, Croatians, Recognised minorities Czechs, Greeks, Hungarians, Jews, Macedonians, Roma, Romanians, Rusyns, Slovaks, Slovenians, Ukrainians,Vlachs

Religious groups (% of population) 84.1 Serbian Orthodox Church, 6.24 Catholic Church, 4.82 Islam

Average salary per month (€) 340 (net) Media market data Total market volume advertising N/A market in 2009 (€) Net advertising budget in 2010 (€) 175 million (est.) Press 18 dailies, 58 weeklies, 36 bi-weeklies, 125 monthlies Newspapers price for dailies around € 0.20 per issue. total: 312 36 bi-weeklies, 48 bi-monthlies, 2 bi-annuals, 56 weeklies, Magazines 125 monthlies, 19 quarterly editions, 18 annuals, 6 magazines without advertising space, 2 uncategorised editions Broadcasting Comm.: PSB: 6 (national coverage), 26 Television 2 (national coverage) (regional coverage), 67 (local coverage) TV advertising revenues in 2009 (€) 95,000,000 (total)

103 This evaluation is not intended to give an exhaustive overview but rather a brief insight. Please see the detailed country report for the “whole picture”. 124 The Media in South-East Europe – Comparative Media Law and Policy Study

Comm.: PSB: 5 (national coverage), 30 Radio 4 (national coverage) (regional coverage), 158 (local coverage) N/A (total) N/A (state funding) N/A (self generated) Income TV & Radio (€) N/A (licence fee total); 60 (licence fee per household per year); Lz 60 (company licence fee per receiver per year) 61 ISPs Internet monthly tariffs between €10 and € 135 7 produced ﬁ lms in 2009 Film € 1,500,500 (annual state funding)

ings, pecuniary compensation of damages, 2.2 Broadcasting supervision, and punitive provisions. Ac- cording to this law, newspaper media out- Serbia opted for a dual system of broadcast- lets shall not enjoy the status of a legal pering. There are public service broadcasters son, but its founders are those who are held and commercial broadcasters. The Broad- responsible in criminal and civil proceedings casting Law regulates the broadcasting for the breach of the law caused by news- sector. It defi nes broadcasting as a general paper media outlets. A special provision is term for radio and television mass media Art. 41 of the Law on Public Information. It provision by analogue or digital transmis- addresses the principle of protection of mi- sion of text, speech, sound, or moving im- nors with respect to all media outlets. They age in the form of programme content via have to take into special consideration that radio waves or cable distribution systems to their content and manner of distribution do adequate reception devices and intended not impair the moral, intellectual, emotion- for the general public. al and social development of minors. Broadcasters are especially obliged to There is also a Code of Conduct of Jour- ensure the production and broadcasting nalists, a Court of Honour of the major as- of quality programmes, both in terms of sociations of journalists, Council for Print technology and of programming content, Media and a Press Council. The Council for by applying international and national stan- Print Media is a self-regulatory body estab- dards or to refrain from broadcasting pro- lished by the Agreement of The Indepen- grammes, the content of which may impair dent Association of Journalists of Serbia, the physical, mental or moral development Association of Journalists of Serbia, The of children and youth, as well as to clear- Media Association of Newspaper Publish- ly mark such programmes and, if they are ers and Electronic Media and Local Press. broadcasting them, to do so only between The Press Council is an independent entity 24.00 and 06.00. The Code of Conduct for whose main competence is to monitor ad- Broadcasters stipulates the obligation for herence to accomplished standards set by the broadcasters that at least 50% of the the Journalists’ Code. broadcast material has to be in the Serbian language and that at least 50% of the ma- Serbia 125 terial has to be produced by the broadcast- 2.3 Online services ers themselves. The Republic Broadcasting Agency (RBA), Electronic mass media are encompassed un- an autonomous legal entity and function- der the term “broadcasting” in the sense of ally independent of any government body as the Broadcasting Law. Provisions of this law well as any organisations and individuals in- are applied to online services accordingly. The volved in the production and broadcasting of Public Information Law proscribes that Inter- radio and television programmes and/or re- net and other electronic editions of newspa- lated activities, is authorised to pass by-laws pers, radio and television programmes are to which should enable implementation of the be considered media outlets. Therefore, the Broadcasting Law in practice. It passed, for provisions of this law are also applicable to instance, the Regulation on Issuing Broad- online services. casting Licences, which stipulates a detailed The Law on Broadcasting with respect to procedure in accordance with the Broadcast- content obligations is explicitly applicable to ing Law, or the Regulation on Standards for dissemination of content analogous to radio Determining the Amount of Radio or Televi- or television via Internet (webcasting). sion Broadcasting Fee. Besides, the Law on There is no special regulatory body. The Electronic Communications prescribes terms Council for Print Media may practise its advi- and conditions regarding the technical as- sory competencies in this fi eld, especially for pects of broadcasting and has established media publishing information online. the Republic Agency for Electronic Com- munication (RATEL), an independent regu- 2.4 Film latory body. Both RBA and RATEL grant the frequencies for broadcasting and withdraw The fi lm sector is, fi rstly, addressed by the rights of usage in cases where the require- Law on Culture. The Act prescribes the list of ments stipulated by the Law on Electronic cultural activities and, among these, cinema- Communications are not fulfi lled. tography as one of them. According to it, the It should also be mentioned that a law funds for cultural activities will be provided in on media concentration as such has not the state budget as well as in funds, founda- been enacted. Instead, the general Law on tions and endowments. The Government will Protection of Competition is applicable and provide the funds for special awards for en- contains rules pertaining to media concen- hancement of the culture, as well as for the tration, irrespective of the sector where it lifetime reimbursement for a premium contri- occurs. The Broadcasting Law provides more bution in this domain. Secondly, the fi lm sec- specifi c rules for electronic media and cross- tor is subject to the Law on Cinematography ownership of media when a broadcaster is and the Law on the Ratifi cation of the Euro- involved. This law provides that a prohibited pean Convention on Cinematographic Co- concentration of media ownership exists production. when a founder of a newspaper-publishing The highest authority in this fi eld is the company or of a company performing the Ministry of Culture. In the Ministry there is a activities of a news agency violates the prin- special sector named Sector for Contemporary ciples of pluralism of opinions in mass media Art, Cultural Industry and Cultural Relations, by taking part in the founding capital of (i.e. which is also specialised for cinematography. has a stake in) a broadcaster. Some of the most important competencies of 126 The Media in South-East Europe – Comparative Media Law and Policy Study

the Ministry are supervision of implementa- lation. For example, the clear distinction be- tion of Law on Public Information, and control tween reporting facts and value judgements, if the entities are acting in accordance with even though it exists in the legislation, is still the provisions of the Act on Culture and the lacking from a number of court decisions. The Act on Cinematography. Besides, there is the same applies to obligations of public offi cials National Culture Council where the members to show a higher level of tolerance towards of the fi lm industry (writers, directors and ac- criticism compared to ordinary citizens. tors) have their representative. It is founded to perform an advisory function, primarily by 3.2 For broadcasting analysing and giving its opinion on cultural issues and by suggesting the course of the na- There is a common notion that RTS is en- tional cultural policy. gaged in the race for ratings and competing with commercial broadcasters in areas not 3 Main challenges in media practice related to its public remit, through content offers such as reality programmes and cheap 3.1 For the press entertainment. There is a problem with the collection of broadcasting fees that is at the There is political pressure on press media out- level of 44%, and the overall income from the lets. This is mostly due to the weak economic collected fees is far from being suffi cient to standing of the media in Serbia as a result cover the public broadcaster’s expenses. of an over-saturated market and the recent The commercial broadcasting media is fi nancial crisis, which resulted in an overall over-saturated. There is a lack of media di- drop of the circulation of most print media, versity. Commercial broadcasters are forced and is even more apparent in local media that to fi ght for ratings and produce programmes are becoming increasingly dependent upon that are cheap and likely to gain high audi- local administration subsidies for fi nancing. ence fi gures, instead of contributing to me- A number of press organisations still oper- dia pluralism. RBA has not developed mecha- ate as state-owned public enterprises, where nisms to impose any regulatory obligations government and local government offi cials towards commercial broadcasters besides typically hand-pick the managers and editors Serbian language programme quotas and in- and do exercise infl uence on content in that house production quotas provided in the law. way. Crimes against journalists remain insuf- RBA lacks fi nancial, human and techni- fi ciently prosecuted, due to the ineffi ciency cal resources to seriously engage in monitor- of the court system. Journalists still routinely ing. It more or less only monitors the way the face and suffer harassment and even serious broadcasters report on elections and their threats when addressing issues of public im- compliance with the Advertising Law. RBA portance. This leads to self-censorship and ab- is also politically infl uenced, as three out of staining from the coverage of certain contro- nine Council members are direct candidates versial issues, such as sports-related violence, of the political parties, proposed by the Par- organised crime, fi nancing of political parties, liamentary Board for Culture and Media. Ad- or even topics related to the Kosovo status ditionally, four members of the Council are process. An ineffi cient court system contrib- appointed upon the proposal of the Parlia- utes to the much slower changes of the court ment of the Province of Vojvodina. Finally, the practices compared to the changes of legis- requirement provided for in the Broadcast- Serbia 127 ing Act that council members are to be ap- are currently some of the renowned Serbian pointed from the ranks of reputed experts in directors. This commission should decide on fi elds relevant to conducting the affairs within distribution of funds dedicated to movie pro- the Agency’s competencies (media experts, duction. advertising experts, lawyers, economists, telecommunication engineers, etc.) is not ob- II Proposals for remedying the situation served at all during the nomination processes, thus allowing for the council to be easily in- 1 Constitutional law aspects fl uenced. Regulatory measures are often not proportional. Some of the council members The Serbian Constitution proclaims the free- have stated that the sanctions available to dom of thought and expression, as well as the the Agency (reprimands, warnings and either freedom to seek, receive and impart informa- temporary or permanent revocation of broad- tion and ideas through speech, writing, art casting licences) are not fl exible enough, thus or in any other manner. Such freedom may they would not allow for respect of propor- only be restricted by law, if necessary to pro- tionality. tect the rights and the reputation of others, to uphold the authority and objectivity of the 3.3 For online services court and to protect public health, morals of a democratic society, and the national security No licence is required to distribute audiovi- of the Republic of Serbia. sual mass information via the Internet. The The Constitution further proclaims that Internet market in Serbia is constantly grow- human and minority rights guaranteed by the ing and according to RATEL’s 2009 report, it generally accepted rules of international law is expected that broadband penetration will and ratifi ed international treaties shall be di- be at the 2009 EU level as soon as in 2013. rectly implemented in Serbia, and interpreted This means that Serbia is still lagging behind to the benefi t of promoting values of a demo- in this fi eld. cratic society, pursuant to valid international standards on human rights, as well as the 3.4 For fi lm practice of international institutions which supervise their implementation.104 Content regulations for the fi lm sector are Such guarantees are showing their effect in hardly existent. The Act on Cinematography practice and have resulted in the 22 July 2010 offers only a declarative obligation for pro- decision of the Constitutional Court of Serbia, duction of fi lms of public interest for the de- declaring a number of the Art.s of the 2009 velopment of culture, modernisation of the Law on Amendments and Additions to the cinema network, development of audio visual Law on Public Information as being a violation communications and aiding of young talents of media freedom and freedom of expression, in the area of cinematography. and their non-compliance with Art. 10 ECHR. There are no specifi c rules on fi lm fund- The constitutional proclamation that hu- ing in the current legislation which are ap- man rights guaranteed by the ratifi ed inter- plied. Therefore, the current situation regard- national treaties shall be directly implementing state subsidies is related to the practice ed and interpreted pursuant to the practice of an ad hoc commission established by the

Ministry of Culture, the members of which 104 Art. 18(3) of the Constitution. 128 The Media in South-East Europe – Comparative Media Law and Policy Study

of international institutions which supervise legal framework provides for the mandatory their implementation remains insuffi cient. Es- privatisation of the broadcasting media in Ser- pecially judges dealing with the right of free- bia (the Broadcasting Act) and for the prohibi- dom of expression and information through tion of funding of the media outlets (besides the media are not familiar with the practice the public service broadcasters) either directly of international institutions, and in particular or indirectly by the state, a territorial auton- with the practice of the ECtHR with regard to omy or by an institution or company, which Art. 10 ECHR. is prevalently state-owned or which is fully or predominantly funded from public revenues. 2 Cross-cutting issues However, the Law on Local Self-Government and the Law on the Capital City do allow Serbia is currently in the process of adopting funding of the media outlets by local self- its general media strategy, which would try to governments and the City of Belgrade. This provide answers to the challenges its media has blocked the privatisation of the media in sector is facing. Those challenges are techno- Serbia and has been recognised as a problem logical, but also to some extent related to in- in the European Commission progress report. herited inconsistencies of the applicable legal Media ownership in Serbia is far from be- framework. It was expected that the Ministry ing transparent. An attempt by the Govern- of Culture would publish the fi rst draft of the ment to solve this issue through a “Public Me- Strategy by the end of February 2011. The dia Register”, introduced in accordance with Draft is to be based on the Media Study pre- the 2009 Law on Amendments and Additions pared by European experts under the auspices to the Law on Public Information, has been in- of the European Commission. During the con- suffi cient. Non-transparent media ownership sultation process and in particular with regard disables members of the public from forming to the round tables organised with stakehold- an opinion on the value which they should ers in September 2010, the issues of State aid give to the information, ideas and opinions to the media sector, the future of the non- disseminated by the media. Non-transparent privatised media outlets and their possible media ownership also disables effective mea- transformation into regional public services sures against media concentration, media were among the most discussed. monopolies and dominant market positions In accordance with Council of Europe res- among the media. olution 1636 (2008) “Indicators for Media in Finally, as recognised during the consulta- a Democracy”, a high number of court cases tion process related to the drafting of the new involving the right to freedom of expression media strategy, State aid for the media sector and information through the media is an in- and in particular direct or indirect subsidies, dication of problems in the implementation in a way that distorts competition among the of national media legislation and does require commercial and state-owned media, remains revised practice. The practice of the courts in a serious issue in Serbia. The Commission for Serbia still does – to some extent – protect State Aid Control has not yet dealt with sub- state offi cials against criticism and insult in sidies for the media. comparison to ordinary people. In order to improve the current status, Ser- An additional problem exists with regard bia would need to: to the inherited inconsistencies of the appli- - increase the capacity of its judiciary for cable legal framework. Namely, the Serbian the implementation of the media-related Serbia 129

legislation pursuant to the practice of the cently, in a way that would allow for ECtHR with regard to Art. 10 ECHR; the high number of court cases involv- - increase the capacity of prosecutors and ing the right to freedom of expression courts to deal adequately and in a timely and information through the media manner with cases where journalists have to decrease through the involvement received threats or have been attacked; of the Press Council in mediation and - solve the issue of the confl icting legisla- through the work of Press Council’s tion that has blocked the privatisation of Complaints Commission; the media in Serbia in a way that would - providing applicable aid schemes for small allow the transfer of media from state circulation, minority language and local ownership; newspapers in order to promote media - revise its legislation in order to provide pluralism. for the transparency of media ownership and economic infl uence over media in all 3.2 For broadcasting sectors; - revise its legislation in order to provide for In addition to the already mentioned sugges- effective measures against media concentrations that are also of relevance to broadcast- tion, media monopolies and dominant mar- ing, Serbia would need to ket positions among the media in all sectors; - oblige the Republic Broadcasting Agency - take concrete positive action to promote to develop and publish detailed, unam- media pluralism both in traditional and biguous and measurable criteria for issu- new media, including support measures ing broadcasting licences, assessment of granted on the basis of objective and non- broadcasters and for other decisions with- partisan criteria within the framework of in its jurisdiction, with thorough state- transparent procedures and subject to in- ments of reasons for all its decisions; dependent control; - revise its broadcasting legislation in order - increase the capacity of the Commission to increase the regulatory capacity of the for State Aid Control for more effective Republic Broadcasting Agency. The Agen- dealing with the subsidies provided for cy should be legally allowed and obliged, the media. through regulation, to have an infl uence on raising the degree to which the needs 3 Sector-specifi c regulation of different programme content are met, at least through the policy of broadcasting 3.1 For the press fees, by establishing production or programme quotas and by establishing rules In addition to the already mentioned sugges- related to advertising, through a code of tions that are also of relevance to the press conduct of broadcasters, binding instruc- (e.g. transparency of media ownership, media tions and recommendations; concentration, promotion of media pluralism, - precisely defi ne obligations of the public etc.), Serbia would need to improve the cur- service broadcasters, which must be verifi - rent status in the press sector by able and measurable, and establish clear - encouraging the self-regulatory re- indicators that would serve as a basis for gime, in particular through the Press the assessment of the fulfi lment of their Council that has been established republic service remit; 130 The Media in South-East Europe – Comparative Media Law and Policy Study

- ensure a higher collection rate for the 3.4 For fi lm broadcasting licence fee in order to ensure sustainable funding for the public service In order to foster improve the current status in broadcasters and, at the same time, en- the fi lm sector, Serbia would need to sure regular and effective control of the - revise its outdated legislation in the fi eld use of public funding to prevent over- of cinematography in order to allow the compensation and cross-subsidisation; transition to “digital cinematography” - protect both public service broadcasters that would not be detrimental to cultural and state-owned media – until they have diversity and national and European cin- been transferred from state ownership – ematography; against political interference in their daily - establish aid schemes that would be fair, management and their editorial work. transparent and compliant with State Aid Control legislation; 3.3 For online services - establish a clear legal framework for the functioning of the Film Centre of Serbia In order to improve the current status in on- as a body steering the process of strategic line services sector, Serbia would need to development and reconstruction of the - fully implement its existing Information Serbian fi lm industry as well as establish- Society Development Strategy; ing indicators that would serve as a basis - harmonise its legislation with the recom- for the assessment of its work. mendations of the Council of Europe related to Internet content as well as with the Audiovisual Media Services Directive (AVMSD); - strengthen the independence of the regulatory bodies in the area of broadcasting and electronic communications; - consider the issue of merging the two regulatory bodies, given the convergence of networks and services, and make a decision on it after previously conducted analysis and consultation with all interested parties, bearing in mind the paramount interest of strengthening regulatory capacity, as well as independence of regulators; - increase citizens’ awareness of possibilities offered to them by the online services as well as their awareness of the existing dangers (e.g. the protection of privacy, protection of minors, etc.). C Comparative Analysis 131

C Comparative Analysis • in the fi lm sector, the number of productions over all genres varies from within a one-digit Alexander Scheuer range to 30-50 per year on average; • the prices of “media products” (dailies, The countries, into whose media systems re- weeklies, journals, Internet access, cinema search has been conducted for the purposes tickets) are largely comparable, except for of the present study, clearly vary in size and the amount of the broadcasting licence number of inhabitants, distribution of ethnic fee, where applicable; groups and (recognised) minorities, affi liation • the gross advertising budget in Bulgaria of religious beliefs (of the majority and other and Macedonia is about € 550 million, in parts of the respective society), and economic Croatia and Romania € 250-300 million, strength. while in Moldova it is “only” € 35 million Likewise, media markets vary signifi cantly and in Kosovo and Montenegro about € 10 in terms of both offering and revenue105: million, respectively; • in the print sector, the range of newspaper • PSB have at their disposal revenues, either offer is from three dailies in Montenegro, in the form of direct State subsidies from to about fi ve in Croatia (including regional the budget or as income from licence fees ones) and Moldova, to 18 in Serbia and - in both cases combined with advertising 26 in Albania; sales - between € 5, 7 and 9.5 million in • as far as broadcasting is concerned, as re- Moldova, Kosovo and Albania or Monte- gards radio the number of programmes negro, respectively, € 40 million in Mace- with national coverage edited by public donia, € 55 million in Bulgaria, and € 140 service broadcasters (PSB) ranges from one million and € 200 million in Romania and in almost all countries to four in Serbia and Croatia, respectively. six in Macedonia, while in the commercial radio sector with the same coverage area I Legal framework for the media and the number of stations mainly is two to observations on practice three, when it comes to programmes with a regional or local coverage the offer by 1 General private broadcasters is much higher; a similar overall picture can be seen when televi- Bulgaria and Romania, already being Mem- sion broadcasting is at hand; ber States of the European Union, Albania, Bosnia-Herzegovina, Croatia, Kosovo, Mace- • the number of main Internet Service Pro- viders is relatively low (one to three), but donia, Montenegro and Serbia being can- the numbers go up to between 40 and didate and potential candidate countries, almost 80 if smaller (local) providers are respectively, and Moldova, which cooper- included, the offer of Internet news con- ates with the EU in the context of ENP, the tent is mainly driven by traditional me- state of implementation of the acquis union- dia, i.e. newspapers and other periodical aire differs among the countries concerned. print products as well as broadcasting All the countries are member states of the organisations; Council of Europe, thus they have ratifi ed the European Convention of Human Rights and Fundamental Freedoms (ECHR), among 105 It should be noted that data is not, or has not been made, available for all countries/all individual sectors. the guarantees of which Art. 10 on the free- 132 The Media in South-East Europe – Comparative Media Law and Policy Study

dom of expression and the media bears ut- following, the applicable legal and regula- most importance for the relevant commit- tory framework is looked at according to the ments undertaken. sectors of the media.

Accordingly, the constitutions of all 2 Sector-specifi c legislation/regulation South-East European countries analysed in and challenges in practice this study contain the guarantee of freedom of expression/speech and, in the vast 2.1 For the press majority of cases also the freedom of the press and other media, the freedom of (ac- In many countries of South-East Europe, rules cess to) information as well as the prohibi- on the activity of press organs are based tion of censorship are expressly mentioned. solely (Bosnia-Herzegovina, Bulgaria, Koso- In some countries, the relevant constitu- vo, Macedonia and Romania), or in addition tional provisions already entail stipulations to existing legislation, on codes of ethics or as regards the permissibility of establishing conduct on which some or all of the relevant an authorisation regime for broadcasting stakeholders have agreed among themselves, activities, the responsibility of the media, sometimes going beyond the print media particularly the prohibition of hate speech sector and encompassing other media, such or of discriminatory statements, and the as broadcasting and Internet publications. right of persons being the object of media Nevertheless, in half of the countries (Alba- coverage to reply to (in-)correct informa- nia, Croatia, Moldova, Montenegro and Ser- tion provided by the media, when the for- bia), indeed there is legislation on the press, mer’s legitimate/legally protected interests though with divergent levels of detail in what are negatively affected. is being regulated. The general ordinary-law legal frame- Press Councils or other bodies that are en- work relevant for the media can be subdi- trusted with monitoring compliance with the vided into mainly two groups of legislation, relevant code of ethics exist in the vast ma- i.e. (1) “public law” instruments, including jority of countries (except for Albania, Croatia provisions of the Penal or Criminal Code, (talks on its establishment pending) and Ro- such as cartel and State aid law, acts on ac- mania), but nevertheless coherence in this as- cess to public information law and on classi- pect is not very high: for instance, not all such fi ed information/State secrets, provisions on bodies may be vested with the competence to defamation or slander (where such have not “sanction” infringements upon norms laying yet been fully transferred to the Civil Code down responsibilities of journalists and own- or similar acts), protection of minors and of ers of (print) media outlets. minorities, and prohibition of incitement to The appraisal of the effectiveness of press violence or hate speech as well as discrimina- councils shows some differences among the tory statements, etc.; and (2) “private law” SEE countries but, overall, it is not overwhelm- instruments, such as copyrights and neigh- ingly positive, and there seems to be an inher- bouring rights legislation, provisions on libel ent tension in two ways: fi rstly, it may be said and defamation, rules on unfair business that a general perception exists according to practices and on consumer protection (gen- which the work of journalists should be (abso- eral and/or product-/service-specifi c advertis- lutely) free, which means that not only politi- ing acts), labour codes, etc. However, in the cal and economic infl uence should be fought C Comparative Analysis 133 against, but also that there should be no in- press appears to be over-politicised and/or terference with the journalists’ work, neither predominantly occupied with the viewpoints by owners of media outlets nor by outside fo- of only one ethnic or other group, thus not rums (except for the civil law courts); second- contributing to a climate of tolerance but ly, often the lack of sanctioning powers is felt possibly fostering to a considerable extent to be detrimental to a greater acceptance of the existing tensions among different groups the press councils’ work by both the general of society – instead of promoting better mu- public as well as the professionals involved; tual understanding through the provision of one outcome of this situation seems to be unbiased information. Furthermore, a clear- that there are more incentives for claimants er separation of information/reporting and to go to the courts instead of entrusting the commenting/value judgements is advocated, respective council with handling a complaint so that the public would be in a better posi- on an alleged disrespect of the rights of those tion to individually and collectively form their concerned by media coverage. In the same di- opinions. rection, it is criticised that press councils who In many cases, a lack of transparency of issue public reprimands barely receive atten- actual media ownership (also beyond the tion for those, not to mention a lack of will- print media sector), and too high a level of ingness on the part of media outlets to pub- cross-ownership is being complained about. lish such fi ndings in their publications, and, contributing to this, a lack of willingness at 2.2 For broadcasting the stage of drafting the relevant rules of the codes of ethics or the statutes of the councils, In all countries analysed in the present study, to commit to any such powers entrusted to legislation exists in order to provide for a legal the latter. framework for broadcasting activities (radio Further matters of high concern relate and television), partly entailing regulation of to the precarious working conditions for other electronic media or being general in na- journalists (the non-existence of powerful ture so as to cover all kinds of publications. trade unions may add to this, and vice ver- In half of the countries (Bosnia-Herzegovina – sa), to a lack of independence from owners also at entity level, Croatia, Kosovo, Montene- (and their political and/or economic inter- gro and Romania), separate legal frameworks ests) when decisions are at hand on wheth- are in place for public service media. Quite er or not and, if so, how reporting should occasionally, separate specifi c legislation has take place, and to interference by political, been enacted to establish and describe the economic or other forces (including threat- competences of media regulatory authorities ening by criminals) – and, accordingly, to a in this sector. tendency of self-censorship. Besides, legislation adopted in order to Frequently, concerns were voiced that regulate electronic communication networks print media are not economically viable, and services has a bearing on the entry into hence a negative impact on actual indepen- the market by broadcasters, because in most dence is suspected; this obviously represents instances it defi nes the rules for obtaining a a situation in which the practice of distribu- frequency-usage right, which is most impor- tion of State advertising markets cannot go tant in the context of terrestrial conveyance of unobserved (and remain unregulated and su- broadcasting signals. It should be mentioned pervised). In addition, in many countries the fi nally that almost all of the SEE countries have 134 The Media in South-East Europe – Comparative Media Law and Policy Study

either devised strategies in the form of policy atia, Kosovo, Macedonia, Romania and Ser- options or already enacted corresponding leg- bia) have opted for funding of PSB through islation in order to prepare for the switch-over licence fees, though sometimes in combina- to digital (terrestrial) broadcasting (mainly as tion with direct contributions from the State regards frequency allocations for broadcast- budget. In these cases among other reasons, ing TV programmes) and, subsequently, for still, the unsatisfactory level of willingness the defi nition of a switch-off date for ana- to adhere to the payment obligations and/ logue (television) broadcasting. or diffi culties in collecting the money from Some negative trends or clear problems those obliged to pay contribute to fi ndings that are of a more general nature have al- that the funding provided is insuffi cient. This ready been mentioned above in relation to perception also holds true in some cases in the press. Suffi ce it here to refer to these, which the legislator opted for funding di- since they are certainly of relevance also when rectly from the budget. Some restrictions public service and commercial broadcasting is imposed on the possibility of PSB to have re- at hand. course to funding from the advertising markets – this relates mainly to the permissibil- a) Public service broadcasting ity of a lower amount of advertising space Where there exists a catalogue of specifi c when compared with commercial broadcast- positive content obligations (Albania, Bul- ers – contribute to the enduring economic garia, Croatia, Kosovo, Macedonia, Mol- diffi culties of PSB and make them more vul- dova, Montenegro and Serbia), including nerable towards undue interferences with requirements as regards minority program- their programming freedom. ming, these mainly relate to the public service On occasion, criticism is raised in con- broadcasters’ mission, although – not least nection with the programming achieve- in the fi eld of promotion of audiovisual pro- ments of PSB, and this in two directions: duction through the prescription of program- fi rstly, the PSB partly are considered actually ming quota – in several instances commercial not to live up to their programming obliga- broadcasters also have to fulfi l the same or at tions, in particular objectivity of and plural- least similar obligations. ism in information, and a positive contribu- The defi nition of the remit, the safeguard tion to democracy, secondly, because of the of (programming) independence, the means programming policy pursued, which would of control over the fulfi lment of content re- give rise to the impression of entering into quirements as well as over the fi nancial op- a “race for audience shares” by airing more erational behaviour, and the preservation of or less the same content as contained in the a function-adequate level of funding of the offer of commercial broadcasters. However, public service broadcasters remain a matter of the vicious circle underlying these problems lively debate and, moreover, of high concern is often well seen: In order to achieve a high- in many of the countries analysed for the pur- est possible level of acceptance by the gen- poses of the present study. eral public both for their mere existence, More specifi cally, as far as fi nancing including funding through “public” money, aspects are concerned, in addition to the and for their high-quality programming, PSB possibility to raise income from the sale of have to continue to offer content which is advertising space, the majority of countries largely attractive among all audiences. If, (Albania, Bosnia-Herzegovina, Bulgaria, Cro- however, as has been the case in many of C Comparative Analysis 135 the countries, not only initially (when the er negative appraisal of the actual practice. “new character” of a public service broad- Commercial broadcasting stations appear to caster instead of a state broadcaster was not be quite closely linked to a specifi c viewpoint fully believed in by all) but also recently, au- (political, economic, ethnic, or religious) and dience share fi gures of PSB programmes are seem to lack more balanced reporting, thus going down, the conditions for funding and failing in many instances to contribute to the maintaining in their programming sched- values whose achievement is deemed of con- ules some more-demanding content – which siderable importance for the inclusion of all dif- should allow them to distinguish themselves ferent groups in society and for democracy in from the competitors – are far from optimal. general. In some of the countries analysed, it is Another relevant aspect in this cycle is the ascribed to the economically diffi cult situation dependence on funding decisions, which are of commercial media, which is perceived as a in most cases taken by the legislator: in order problematic factor in terms of independence. not to overthrow current political majorities Moreover, a frequently encountered theme in the parliament, PSBs may endeavour to of concern is the lack of transparency of own- ensure a generally positive relationship vis-à- ership, depriving audiences from informing vis the politicians of the ruling party/ies – an themselves about the circumstances on the approach which may also fi nd its expression basis of which affi liation a specifi c kind of in the programmes. Thus, audiences may programming policy might have been formu- perceive a lack of critical reporting, which lated. In addition, the same lack of ownership could add to a decrease in the supportive transparency seems to nourish an appraisal basis for PSB. according to which there exist too high levels of cross-ownership – among broadcasting b) Commercial broadcasting markets in radio and television and on differ- Privately-owned broadcasting stations are ent levels (nationwide, regional and local) as subject to specifi c legislation, which in some well as when upstream or downstream mar- countries (Albania, Bulgaria, Macedonia, Mol- kets (e.g. distribution) are concerned and, fi - dova and Serbia) forms part of the general nally, in view of simultaneous shareholding in legal framework for radio and television also print media companies. A reason for this may applicable to PSB. be seen in the fact that either provisions on The provisions applicable to commercial media concentration and/or cross-ownership broadcasting are foremost of interest in view are entirely missing or that there is a lack of of licensing procedures, transparency of and parallel stipulations as regards the press so (prohibited) concentrations in (cross-)owner- that regulatory authorities do not dispose of ship, safeguards for diversity, content obliga- the necessary means to really implement an tions and, when it comes to funding, com- existing legislation. mercial communications. The main lines of criticism relating to com- c) Media regulatory authorities mercial broadcasting are surrounding a recur- The legal framework for regulatory authori- ring topic that also has a bearing for the press ties in the broadcasting sector, which is sector: although in many countries there is a only in a couple of the countries concerned multiple offer of radio and television stations, (Kosovo and Moldova) laid down in specifi c diversity remains an issue of concern, as does legislation and otherwise contained in the independence – all of this resulting in a rath- broadcasting laws, is important subject-mat- 136 The Media in South-East Europe – Comparative Media Law and Policy Study

ter for a number of reasons. For example, funding of PSM have a direct impact on the the relevant provisions on the competen- income of the regulators. cies (with regard to both sides of the dual broadcasting system or to the commercial 2.3 For online services side only), the powers (including licensing and withdrawal of licences, monitoring and With very few exceptions (Croatia, Montene- sanctioning), the setting-up and the rules gro and Serbia), the countries of South-East on the appointment of the main decision- Europe covered by this study do not have making body within the authority, and the specifi c legislation in place that would hold co-operation with other authorities, such as stipulations for media content provided over the one competent in the fi eld of electronic “the Internet”. Instead, the general legal communications (where there does not exist framework may apply, comprising provisions a “convergent” regulator) and the ones in on the protection of minors, on defamation, charge of implementing competition law or on consumer protection, on copyright etc. consumer protection law, respectively, have In some instances (such as Albania and Ser- a decisive impact on the question of whether bia), the rules laid down in a press or media the legal framework generally can be consid- code of ethics will become applicable, and in ered contributory to promoting freedom of a clear minority of countries (e.g. Bosnia-Her- this sector of the media. zegovina and Moldova), the content which is It should be noted that, when it comes offered online by those, who are already sub- to public service broadcasting, some compe- ject to monitoring by a press council or similar tencies are vested with internal bodies of the institution, may also be supervised by those respective organisations, such as the Steer- bodies. Of course, an important caveat must ing Council (KDRTSH) in Albania, the Coun- be made in respect to so-called ‘non-linear’ or cil of Croatian Radio Television, the Supervi- ‘on demand audiovisual media services’ which sory Board of Teleradio Moldova, or the RTCG are covered in some aspects by the AVMSD, Council in Montenegro. where the transposition of this into national In the majority of cases, the media regu- law has already taken place or is underway latory authorities are either criticised for not (like in Bulgaria and Romania). being suffi ciently politically independent Where with regard to online (news) media (this, too, is a relevant issue with regard criticism is being raised, it relates in many in- to the governing bodies of PSB), an aspect stances to a lack of tolerance in the postings which may fi nd its roots foremost in the made in blogs (hostile, discriminatory speech) provisions regarding standards for qualifi ca- which would too often go “unsanctioned” be- tion of members as well as in the provisions cause no action is taken by moderators or the dealing with the nomination/appointment like. Another point of concern is the protection process, or are facing criticism because they of minors from unsuitable content, particularly apparently lack the necessary fi nancial re- extremist speech or bad language. Overall, the sources in order to ensure proper function- perception of online media (not necessarily of ing, an aspect which will be linked in some a professional provenance) is rather positive countries to a funding mechanism based on because they are felt to add to the available the licence fee income. Thus, the diffi cul- outlets for information and discussion. In some ties encountered in the collection of such instances, it is claimed that traditional media money which is primarily destined for the outlets do not yet fully embrace the potentials C Comparative Analysis 137 of the new technology, restricting their offer to feature fi lms, documentaries, etc. and which making available more or less the same con- should not be underestimated, this trend is tent which has already been distributed in print considered unsatisfactory. or broadcasting media. Some comments see a In collecting the necessary contributions problem in the fact that overall the regulatory to the funds, in some countries the problems frameworks for the press and for broadcasting which appear to occur can be attributed to are considered much stricter than in the case one or more of the following reasons: in few of online media – a level-playing fi eld would instances, the actual amount transferred does be missing, particularly in view of monitoring not coincide with what has been stipulated in and probably sanctioning. By this, the possi- the relevant law or in the parliamentary deci- bility would be provided for to disregard the sion on the State budget; in some other cas- elementary rules for information made avail- es, it is diffi cult to enforce existing obligations able to the general public. Very frequently, on those who should additionally contribute self-regulation of the online media sector is to the fi nancing of the fi lm institution. When advocated. Generally, the main trend of higher it comes to the actual practice of allocation of availability rates of Internet access and, subse- subsidies, criticism is raised with regard to a quently, higher percentages of actual Internet lack of transparency in several fi elds: precision usage is welcomed. of criteria to be fulfi lled in order to qualify for funding, clarity of rules for the decision-mak- 2.4 For fi lm ing process, level of integration of representatives from the profession into different stages In all of the South-East European countries of taking decisions, justifi cation and publica- that were covered by the present study, specif- tion of tender results. ic legislation on cinematography has been enacted (for Bosnia-Herzegovina more precision II Proposals for (regulatory or other) is advisable: the relevant rules were enacted actions to remedy the situation by the Canton of Sarajevo in the Federation BiH, on the one hand, and by the Republika The national experts who had initially pre- Srpska, on the other). For the purposes of this pared the individual country reports were analysis, the relevant rules are mainly of inter- subsequently asked to provide suggestions est in the context of fi lm funding systems. for initiatives of a legal/regulatory and/or There is largely the perception that public other nature, that would help remedy the funds made available for the support of fi lm shortcomings that had been identifi ed in the production (at different stages and in view course of assessing the actual practice of the of different genres) are insuffi cient to really media. In many instances, the proposals have have a positive impact on the development of been opened to discussion with representa- this sector of the media, which is considered tives of relevant stakeholders and other me- economically weak and hardly sustainable dia experts in order to seek their views on the without making recourse to co-fi nancing and suggestions already formulated or to provide co-production on large scales. Given the long- for the opportunity to have further proposals standing tradition of fi lm making in the coun- for remedies included. On behalf of the Fried- tries of the region and, more specifi cally, the rich Ebert Foundation, the resident represen- impetus for culture and public debate which tatives were also invited to share their views may come from audiovisual works such as on these suggestions. 138 The Media in South-East Europe – Comparative Media Law and Policy Study

Within the present section, not only the rection), the suggestion is often made to proposals shall be portrayed, but there is also provide greater clarity of the exceptions some room to present a couple of solutions foreseen from the freedom of speech/the found in the existing media law and policy of press and, in the end, to narrow down South-East European countries which may be the possibility of unjustifi ed recourse to considered best practice approaches. such reasons, on the one hand, and to foreclose the option of not entering into 1 Constitutional law aspects a balancing of the rights affected with the interest in a society to have certain infor- It is noticeable that only for a minority of mation published. countries (Moldova and Montenegro) pro- Best practice approaches that could be posals have been made in view of a possible identifi ed relate to modifi cation of the constitutional law aspects - the constitutional protection of the media relating to the media. Possible explanations in the case of alleged violation of respon- for this can be found fi rstly in the fact that in sibilities, e.g. in Bulgaria: an injunction most of the countries the guarantees of free on or a confi scation of printed matter or speech and freedom of the media are gen- another information medium shall be al- erally in line with the European standards, lowed only through an act of the judicial mainly Art. 10 ECHR – while it should be no- authorities in the case of an encroachment ticed that in some South-East European states on public decency or incitement of a forc- there is even a primacy of inter national norms ible change of the constitutionally estab- over national legislation, making such guar- lished order, the perpetration of a crime, antees directly applicable –, and secondly in or the incitement of violence against any- the observation that the level of detail of the one. A similar level of protection is offered constitutional law stipulations is not very high, according to the Montenegrin and the leaving it up to ordinary legislation to estab- Serbian constitution; lish the legal framework in greater detail. - the constitutional protection of the right The few proposals made mainly surround to receive information also relating to ob- issues for which a lack of coherence may be es- taining information from public authori- tablished with the jurisprudence of the ECtHR ties (right to access information) in several in cases relating to the freedom of the press countries; and freedom of expression (Art. 10 ECHR) - the constitutional protection of minorities: and clarifying the extent to which the media e.g. in Croatia, the (constitutional) Law on can be held responsible for the provision of minorities prescribes that on the basis of information and statements on grounds enu- the laws and secondary legislation which merated in paragraph 2 of this Art.. regulate public information services, pro- - More concretely, where the existing con- duction and broadcasting of radio and stitutional provisions establish reasons for television programmes, education, mu- which a publication can either be held il- seum, archive and library services as well legitimate (slandering of the state, attacks as the preservation and protection of cul- on certain groups, etc.) or where it could tural heritage, conditions must be created lead to a claim by a third party (liability for improved awareness of all citizens of and ensuing obligation for compensation the state, and particularly of children and of (moral) damages, right of reply or cor- minors through educational programmes C Comparative Analysis 139

and mandatory and optional school cur- - Besides, it is specifi cally suggested that riculum subjects, of the history, culture better training of prosecutors and judges and religion of national minorities; is needed in order to foster the correct - the constitutional protection of the inde- application of distinguishing between pendence of the media authority, e.g. in statements and value judgements, and of Kosovo, and of the public service media, exceptions to generally forbidden media such as in Romania; coverage where the public interest in a - the stipulation that there should be trans- free political debate so requires. parency in media ownership and funding An approach that theoretically could be – though subject to further elaboration by considered best practice stems from Bosnia- specifi c legislation on this matter. Herzegovina: - the law from 2002 abolished criminal li- 2 Cross-cutting issues ability for defamation (decriminalisation) and moved libel regulation to civil law Under this heading, different aspects will be and proceedings. A journalist cannot be addressed that range from legislation on libel held accountable for expressing an opin- and defamation, over access to public infor- ion and can only be required to answer mation and protection of journalistic sources, for defamation, if he or she did not apply to working conditions and transparency and professional methods of work in investi- limitations on media ownership. gating facts and in writing. If a court fi nds First, the (de-)criminalisation of libel and a journalist guilty, no prison sentence can defamation remains an important subject. be pronounced and the journalist may Though in some countries the incorporation only be penalised fi nancially. of the legal instruments, aimed at protecting It appears that a further best practice sce- the right of others which could be affected by nario can be found in Croatia: media coverage, into civil law and the abolition - as a rule, non-material damage is com- of criminal law provisions in this respect has al- pensated by correcting the inaccurate in- ready taken place or is underway, there remain formation, publishing a correction and an a certain number of problems. The remedies apology of the publisher. The right to take suggested in order to address these are mainly legal action for compensation of non-ma- concerned with two sets of shortcomings: terial damage is obtained by a person who - compared with the standards developed has previously unsuccessfully submitted to in the jurisprudence of the ECtHR, there the relevant publisher a valid request for is over-protection of public fi gures, in- the publication of a correction of the including offi cials, leading to a threshold of formation at issue. what kind of criticism through media cov- A word of caution is needed, however, erage should be considered acceptable in when it comes to putting the protection of the a democratic society which is too low and rights of others under civil law instruments: therefore to be considered untenable; the “chilling effect” which may be inherent in - furthermore, the terms employed in rel- criminalisation of published information will evant legislation are often phrased too also be encountered where law suits aimed broadly, giving too much room to fi nd a at recovery of (moral) damages under civil law prevalence of the protection of a person’s are at hand, because of the amounts claimed dignity over the freedom of speech. for compensation that could lead to ruining 140 The Media in South-East Europe – Comparative Media Law and Policy Study

journalists and/or media outlets fi nancially defamation cases has an interesting connec- or, at least, either may make them seize from tion to freedom of information law: reporting or conceding too easily to (out-of- - According to the provisions of the Crimi- court) claims with the aim to prevent similar nal Code a journalist will not be held re- coverage in future. sponsible for libel or defamation, if he/she - Therefore, it should be envisaged to imple- published untruthful information due to ment the necessary safeguards, both pro- violation of his/her right to free access to cedurally and in substantive law, against the relevant information. the making use of such instruments in or- Thirdly, the protection of the sources of der to silence the media through “threat- journalists is also a recurring topic. ening” them with severe economic con- - In some instances, greater clarity of the sequences. provisions giving the reasons for which Secondly, the legislation on access to in- – (only) when ordered by a court – the formation which is held by public authorities disclosure of sources can be requested is or undertakings in which public bodies hold suggested. shares is an important pillar of the rights of - In addition, proposals have been made the media and, either in parallel or subse- to the effect that, within the legislation, quently through the intermediary service of a duty is established to balance the inter- the media, of the general public to exercise ests of state authorities to have access to control over the administration etc. While the the sources with the interest of the media general framework for seeking such access to keep those protected – even if not re- also by the media may generally be in place, quired by those who provided the infor- it is sometimes contradicted by legislation on mation. classifi ed documents or State secrets. In addi- What the Croatian Media Law offers in tion, the implementation of the legal frame- this respect may be considered a best practice work for accessing publicly held information example: appears to be rather poor in some countries, - A journalist, an editor-in-chief, an edi- leading for instance to a tendency to exhaust tor or an author who is not a journalist the fi xed maximum delay within which an- is not obliged to provide data about the swers on such requests must be handed down source of published information or the in- even if the information were available at an formation he/she intends to publish. Prior earlier stage, thus preventing the media from to publication, the journalist is obliged to investigating and reporting on the outcome inform the editor-in-chief, in the manner of their research as early as possible. stipulated in the relevant media organisa- - It is advocated that inconsistencies of dif- tions’ statute, of the fact that the infor- ferent legal provisions should be removed mation at issue is from an unidentifi ed and awareness should be raised, among source. In that case all the provisions on the general public but also specifi cally the protection of the source of informa- among public offi cials, of the rights and tion also apply to the editor-in-chief. The duties that derive from the access to infor- State Attorney Offi ce may, where such mation legislation. limitation is imperative in the interest of Seen from a specifi c angle, it transpires national security, territorial integrity and that a provision in Macedonia that refl ects other previously prescribed exceptional on the possible means of defence in libel and circumstances, lodge a request with the C Comparative Analysis 141

competent court to order the relevant - apparently, respective legislation is hardly journalist to disclose data on the source of implemented to the necessary extent, or the published information or the informa- for some important aspects, legislation is tion he/she intends to publish. The court missing. Both issues therefore should be may order the journalist to disclose data remedied. on the source of the published informa- Furthermore, concentration of media own- tion or the information he/she intends ership is perceived as a problematic situation to to publish, when deemed necessary for which both a lack of applicable legislation and the protection of public interest, where it poor implementation may contribute. concerns particularly important and seri- - Thus, where the relevant norms are not ous circumstances and where it has been yet in place, it is suggested that these indisputably established that a reasonable should be enacted and, where the imple- alternative measure for disclosing data on mentation shows defi cits, these should be the source of information does not exist, properly addressed. or that the State Attorney Offi ce seeking - Finally, in order to assess and, possibly, the disclosure of the source of informa- remedy unacceptable levels of cross-own- tion has already used that measure as well ership, the legal framework to tackle this as that the legally-based public interest for issue should be comprehensively put in disclosing data on the source of informa- place and enforced. tion clearly prevails over the interest of While, theoretically-speaking, i.e. judg- protecting the source of information. ing from the texts of existing legislation, it is Fourthly, as regards the working conditions strictly forbidden that State or regional/local for journalists, great diffi culties are attached entities directly own media outlets (and not to insuffi cient protection offered by law and/ only found them as, for instance, in the case or poor implementation of labour code stipu- of public service broadcasters enjoying formal lations, inter alia due to a lack of monitoring/ independence as legal persons kept separate control by supervisory bodies. Besides, the from the regular State organisation), never- relatively weak position of staff councils, jour- theless in some countries this is still the case. nalists’ associations and trade unions is seen - Therefore, ownership of public authorities as a hampering factor for a more independent in media should be terminated. position of journalists, foreclosing the nego- While the above-mentioned topics will tiation and signing of collective agreements, mainly require the adoption of additional/ for example. In turn, economic vulnerability better legislation or more adequate enforce- of journalists may make it more diffi cult for ment, it should be noted that a couple of them to become collectively organised. suggestions also address other stakeholders, - Therefore, journalists’ associations should including particularly media professionals be strengthened and higher rates of inclu- themselves. One issue is about the quality of sion in trade unions should be striven for, reporting, which can be subdivided into dif- while support should be offered for the or- ferent elements: ganisation and training of representatives. - it is suggested, fi rstly, that information Fifthly, very frequently reiterated proposals provided through the different media relate to issues surrounding media ownership, should be relevant, for instance, not be a particularly in the press and broadcasting sec- mere copy of offi cial State or party politi- tors. As regards greater transparency, cal statements; 142 The Media in South-East Europe – Comparative Media Law and Policy Study

- secondly, that the media should not en- the current practice is seen as a means to re- hance one-sided coverage or even (con- ward friendly media coverage and to give in- tinue to) enter into discriminatory treat- centives to the press outlets to whom advertis- ment of persons, groups or events; ing is awarded for maintaining a generally be- - thirdly, that greater respect should be nevolent line of reporting on government and/ shown towards the rights of minors or or ruling political party action, and vice versa. those suspected of having committed a - Therefore the establishment of clear criteria crime, and that they should abstain from is advocated, on which the media can qual- sensationalist reporting; and, ify for receiving advertising orders and for - fourthly, that due attention should be the safeguard of transparency of public pro- paid not to mix up information provision curement procedures and their outcome. and value judgements. Interestingly, there is a divergence among A further issue relates to the engagement experts from different countries about the for the profession itself, including the follow- advantages or disadvantages of having spe- ing elements: cifi c legislation on the press in place. Appar- - fi rstly and most importantly, it is submit- ently, in the case of countries which do have ted that more emphasis should be laid on adopted press laws, the dissatisfaction with the necessary support of self-regulatory this kind of approach is not fundamental, means, such as codes of ethics and their but rather related to sometimes too broadly implementation through press councils phrased rights and obligations, redundancy and the like; when compared with other laws that will ap- - secondly, training of journalists, editors ply to the press sector, and a lack of compre- and managers should be improved. hensiveness of norms or a lack of proper im- Not least in relation to the latter aspect, plementation of what has been stipulated in many suggestions see room for (political or the relevant laws. On the other hand, where specialised) NGOs to support the future de- there is no dedicated legislation on the print velopment of professionalism in the media media as yet, partly its enactment is advo- sector. cated, partly it is considered more appropriate to foster existing codes of ethics and in 3 Sector-specifi c regulation particular their enforcement. A further concern is related to the means, 3.1 For the press specifi cally the ownership in these, of distribution networks for press products. Here, It should be noted, fi rst, that all of the sug- too, greater transparency is called for as well gested remedies under the above heading as a proper observation through the compe- “Cross-cutting issues aspects” are important tent (competition) authorities. for the press sector as such. Therefore, in the Another point which has been addressed, following only those additional proposals though in a limited number of suggestions shall be dealt with, that are seen as (predomi- only, relates to public support schemes for the nantly) sector specifi c for improving the situa- press. Here, the economically diffi cult situation of printed media. tion particularly of smaller print outlets is the A major issue of concern is the distribu- relevant background. tion of advertising space purchased by State or - In this vein, it is submitted that support public authorities/bodies. As already outlined, schemes through open, non-discrimina- C Comparative Analysis 143

tory and transparent State aid funding Where a licence fee-based system is in mechanisms be implemented, foremost in place, which is accompanied by income from order to ensure the diversity of print pub- the sale of advertising space and, in some lications stemming from or being directed cases, by additional direct State subsidies, the to niche markets such as minority groups, means for collecting and the level of payment or to outlets active in regionally and/or lo- are addressed. cally smaller markets. - It is recommended that enforcement of Again, there are also numerous proposals the obligation to pay the broadcasting li- that relate to the practice of the press itself. cence fee become a matter of priority and - Rather frequently, it is suggested that the that, where existing legislation forms an reporting should be more balanced, that obstacle to swift collection, this should the choice of topics should show higher also be addressed. relevance, and that, in general terms, the In more general terms, the need to fi nd interests and needs of the readers as a the right approach to ensure both, clarity of signifi cant part of the general public be the fi nancial needs of PSB as well as transpar- better served. ency in procedures leading to their fi xation is - In many instances, support for self-regu- often highlighted. latory means is felt to show the need for - Accordingly, the relevant proposals aim at increase, which includes better balanced establishing a system of independent ex- representation of stakeholders, greater ef- perts that assess the amount of funding forts to defi ne well-suited and convincing necessary for the PSBs to fulfi l their mission. professional rules, more assistance in edu- Secondly, the governance of PSB is a mat- cating those concerned about their rights ter of concern in many countries of South- and obligations, and abstinence from un- East Europe. This point may be subdivided founded, “mechanical” criticism of fi nd- into a couple of relevant aspects, starting ings of press councils which is capable of from the procedures for appointing general unreasonably putting their decisions and directors or recruiting other high-level senior the institution as such to a state of mistrust. management, reaching out to the oversight over the fi nancial conduct of broadcasters 3.2 For broadcasting and, in relation to the latter point, to the def- inition and subsequent control of fulfi lment Besides the issues that are relevant also for of the public service remit in terms of what public service as well as commercial broad- kind of content is delivered. In all these as- casting and which have already been dealt pects, great concern is attached to securing with under the heading “Cross-cutting issues independence of the PSB from State/political aspects” (see above), the focus in this section infl uence. Therefore, the following sugges- will relate to public service media and the me- tions have been made: dia authorities. - Defi ne, after public consultation and debate, as clearly as possible (according to a) Public service broadcasting verifi able and measurable parameters) the In the context of PSB, fi rstly, it should be not- remit of public service media, including ed that insuffi cient funding is a concern in al- their mission as regards new media ser- most all countries and that therefore several vices/platforms; suggestions relate to this issue. - Set-up an independent expert commission 144 The Media in South-East Europe – Comparative Media Law and Policy Study

in order to fi x the necessary funding for c) Regulatory authorities in the broadcasting fulfi lling its mission; sector - Entrust separate commissions with moni- With respect to media regulators, it should be toring the fi nancial/business conduct on noted that there are some common threads one hand and the fulfi lment of the PSBs with the funding and governance of public remit in content terms on the other; service broadcasters: - Ensure (editorial) independence of broad- - fi rstly, media regulatory authorities must casters, particularly through adequate safe- be suffi ciently funded in order to provide guards for pluralistic decision-making pro- for the necessary organisational and tech- cesses in appointing and possibly dismissing nical basis for proper handling of the tasks lead staff, which is kept entirely free from attributed to them; undue State/political party infl uence; - secondly, their independence from politi- - Introduce a system of shared, clear-cut cal interference must be secured and, in competencies between the management addition, the independence from the sec- and steering/governing boards within tor which is regulated should also be safe- broadcasting organisations. guarded; In terms of programming, diverse and unbi- - thirdly, and in the same direction as the ased offers catering for the needs of all citizens second proposal, it is suggested that the is called for. More specifi cally, programmes for qualifi cations that members of the gov- minority groups should become a mandatory erning bodies of regulatory authorities part of the public service broadcasters’ offer. must fulfi l should be legally defi ned, to make the process of appointment fully b) Commercial broadcasting transparent and, ideally, to base it also on As has already been said, (introduction and) nomination by groups that are represen- due enforcement of legislation on transpar- tative for the society’s forces, and to en- ency of ownership, on illegitimate levels of sure a balanced, pluralistic representation concentration in the broadcasting sectors and of the relevant groups in society among on illicit cross-ownership in media markets, members/experts on the boards; including inter alia between broadcasting op- - fi nally, the reasons for dismissal of the erators and the press and/or distribution sec- board or individual members should be tors, are high on the list of suggestions when stipulated by law and be restricted to cas- the remedies for shortcomings in commercial es of incompatibility or severe malfunction broadcasting regulations are concerned. in offi ce. Besides, the public service character or The independence of the regulatory au- public value of commercial broadcasting is an thority fi nds its manifestation mainly in two issue which has been raised by some experts. aspects: - They recommend that a limited set of - The issuance of licences for broadcasting clearly defined public service obliga- as well as decisions on their revocation tions be introduced for providers of must be based on clearly-defi ned criteria commercial broadcasting services, and laid down preferably in legislation, deci- that the existing content obligations, sion-making processes must be held in a either positive or negative, be better transparent manner and decisions must monitored and, where applicable, also be duly justifi ed; an ensuing right of ap- enforced. peal and/or subsequent assessment by a C Comparative Analysis 145

competent court should be construed in Where the content offered online is at such a way as not to make them meaning- hand, there are several proposals related to less, i. e. particularly the challenged deci- the dangers of using this medium, mainly in sions should not be effectuated in order the areas of protection of minors and preven- to avoid fait accompli situations. tion of hate speech or discrimination. - The application and enforcement of deci- - While generally agreeing that there is sions on transparency of ownership and need for action in these fi elds, experts on undue concentration of ownership – are not unequivocal about whether or the latter may also become an issue al- not this should be an issue for adopting ready in the context of licensing – must specifi c legislation (where the existing sec- be based on (existing and/or newly to be tor-specifi c legislation does not expressly adopted) legislation and should be a mat- cover this or where the general legislation ter of effi cient and effective co-operation is not suffi ciently clear), or whether this is between the media regulator and the mainly a matter of self-regulation. competition authority, where appropriate. - Sometimes the introduction of a registra- Lastly, it should also be mentioned that action scheme for professional online media countability of the media regulatory authority outlets is advocated in order to both en- is recommended, vis-à-vis the general public, sure transparency as well as increase ac- stakeholders and Parliament, e.g. through pub- countability of the editors of information/ lication of decisions and of annual reports etc. news and/or entertainment portals. - In view of the engagement of traditional 3.3 For online services media also in the Internet environment, suggestions have been made that programmes As regards online services, it is fi rst relevant apt to increase the skills of journalists and to bear in mind the necessary distinction be- other professionals with regard to the (partly) tween infrastructure- and content-related changed patterns of communication and matters. employed technologies should be stipulated - In view of the former, experts have called in order to make full use of the opportunities for devising Internet/Information Society offered and to enhance user satisfaction. strategies, where such do not yet exist, or - Government support schemes have also for fully implementing such programmes. been called for that enable the establish- - In particular, enhancing the availability of ing of secure surfi ng areas for children, high speed (fast) Internet connections in which should provide well-targeted con- all parts of the countries is suggested. tent and assist in educating safe usage of - Furthermore, it was considered advisable the Internet. that the competent authorities, together - Finally, showing greater efforts to make with societal groups, should increase their the Internet media also a more genuine efforts to lower the barriers for actual In- experience for users is recommended, ternet access subscription, including me- i.e. not to merely providing copies of ei- dia education initiatives for those who are ther existing and already broadcast pro- not fully able to use digital technologies grammes or of Art.s that have already and thus are prevented from benefi ting been published in the print media. from the opportunities that the Internet With regard to the liability of intermedi- may offer in many aspects. aries, such as Internet access providers and 146 The Media in South-East Europe – Comparative Media Law and Policy Study

host providers, the need to stipulate “safe eﬁ ciaries as well as awarded amounts of harbour” principles for some activities un- support. der speciﬁ c conditions were partly referred Furthermore, greater engagement of the to, for instance linking, hosting of blogs State in the area of preservation of cultural which provide the possibility of commentat- heritage is advocated. ing etc., in accordance with the eCommerce Directive. Some experts have pointed to the fact that the transposition of the AVMSD would bring about legislation/regulation on part of the content services offered online, i.e. non- linear audiovisual media services, covering issues such as imprint obligations, protection of minors, prohibition of hate speech, and protection of consumers in respect of audiovisual commercial communications.

3.4 For ﬁ lm

In the opinion of several experts, State support for fi lm production funding is insuffi cient in order to create an economically viable sector. In this respect, it is proposed to - increase and make the funding provided to fi lm production as well as to technological adaptation of the cinemas independent from actual budget restrains; - explore possibilities to broaden the basis of fi nancial contributions to fi lm funds, e.g. by including more of the players that benefi t from the development of fi lms into the respective schemes. With regard to the subsequent distribution of aid, a number of experts have reported on dissatisfaction in the domain of fi lm professionals with a lack of transparency. Therefore, different proposals were made, in particular: - to clarify in the relevant legislation which criteria are to be applied when the opening of tender procedures for subsidies as well as the decision-making on projects are at hand; - to ensure transparency on the outcome of funding decisions both in respect of ben- D Conclusion 147

D Conclusion high-quality, professional journalism and diverse and culturally-rich media offers. Alexander Scheuer As has also become apparent from the documents issued by the European Commis- When summing up the results of the pression in the context of the enlargement of the ent study, one might feel tempted to con- European Union and neighbourhood policies, sider that the situation of the media in there are some positive trends in the media South-East Europe may mainly be charac- situation of the South-East European coun- terised by having recourse to the existing tries. It should be noted, however, that there economic problems: similar to the picture of remain a certain number of elements where the “poor man” under the conditions of the the national legal and regulatory frameworks industrial revolution of the late 18th and the are not yet fully in line with European stan- early 19th centuries, sketched-out in order dards, thus, additional efforts are needed to to demonstrate that the growing welfare improve the legislative framework governing was not available to each and every citizen the press, broadcasting, online services and initially, despite the continuing democra- fi lm. Furthermore, even in respect to certain tisation of the countries concerned and elements of the media legal fundaments, for some upward trends in the economy, and which the European standards leave room for that there is still no “wealthy state” for the different solutions to be found at national media. In other words, it may be said that level, i.e. where these are not formulated in “one has to be able to afford good journal- such a manner as to offer “only one” solu- ism and diverse media offerings”. – But, of tion, the margin of appreciation theoretically course, this is not the whole picture which enjoyed by the legislator or other regulators in fact does present itself in a much more in the countries concerned is either not used graduated and diversifi ed manner, showing at all or has been effectuated through means divergences that are neither restricted to which cannot be regarded to be suffi ciently borders, nor to media sectors. supportive. The study’s subject matter and its primary It has become rather clear that every na- focus has been media law and policy. In this tional situation must be seen in its own right respect, the results show two important fac- – in some cases, the existing general politi- ets of this theme: fi rstly, it is not the struc- cal circumstances will give rise to issues which ture and wording of the relevant legislation (fortunately) are of no paramount concern and regulation per se which would suffi ce for others. Overall, although the situation of to obtain the necessary information for con- the media in other (Western or Central) Eu- cluding on the situation of the media and its ropean countries has not formed part of the different sectors in a given country or region present analysis, a point should be made here – but, additionally, specifi c attention must be on the fact that most certainly due observa- paid to the actual implementation in practice; tion of their media law and practice condi- secondly, the legal and regulatory framework tions would bring to the fore similar or other cannot as such provide for all important rem- problematic issues as well. edies – nevertheless, if the legislation in place When comparing the fi ndings, it seems is not contributory for a healthy development that many countries, in one way or another, of the media systems, it will become increas- are striving to identify and formulate the ap- ingly diffi cult to ensure economically viable, propriate mechanisms to deal with culturally 148 The Media in South-East Europe – Comparative Media Law and Policy Study

and ethnically rich citizenships and, particu- edging their importance for individual and larly when translating the ensuing challenges collective formation of opinion. into provisions for the media, to fi nd the just In all these aspects, the legal framework balance between the protection of minorities is of great importance, which can be dem- and the safeguard of their representation in onstrated when referring to subject-matters and/or access to the media, on the one hand, such as freedom of access to publicly-held and the preservation of a political climate information and the protection of journalists’ that is neither exclusively nor predominantly sources on one hand, and to the safeguard of characterised by discussions along the lines pluralism in society and of the rights of others of ethnic groups and affi liation to a specifi c on the other. religion or belief, on the other. While in the Besides necessary action being taken by practice of some media the latter approach the legislators/regulators and apart from ef- is apparently taken as a non-negligible pillar forts that the media need to take themselves, of the editorial policy, it should nevertheless it could be said that there remains a need be stressed that the freedom of the media is to foster the media in South-East Europe not an absolute one, but that it carries with through increased support for self-regulation it certain responsibilities too. In this same – in-house, within a sector, embracing several vein, while it is important that the states do sectors – and through continuous engage- not interfere with decisions on the editori- ment of initiatives from the relevant societal al line of a given publication and although groups such as media and political NGOs, it is diffi cult for the legislator to formulate consumers and citizenship in general. general content obligations and, moreover, Refl ecting on the numerous suggestions for the courts/authorities to enforce them, that have been made by the national experts orienting oneself at the generally-accepted responsible for the country reports, it appears standard of unbiased or objective, diverse safe to conclude with the expectation that the and truthful information provision seems to ground which has been laid also by the pres- be a goal for which to attain greater efforts ent study should be used in a constructive and must be made. As has been highlighted by positive manner to enhance the public debate several experts, the term “independent me- on the future of the media in South-East Eu- dia” may be attributed multi-faceted mean- rope and to deliver sustainable improvement ings, among which the possible standpoint for a sector which is of such vital importance that what is being published, broadcast, put for the “new democracies”. online or dealt with in fi lm must by all means be “in opposition”, mainly in contrast to the viewpoint of a (currently) ruling force. Still, while it is without doubt that presumably the most important role of the media is the “public watchdog”, a function that entails to a large extent following critically the conduct of the government etc., the mission of the media for society and democracy does not restrict itself to this: guarantees and in- demnities which are stipulated for the media have the broader background of acknowl- Annex 149

Annex II The relevant regulatory framework for the media sector Questionnaire The present questionnaire requires informa- I The political and market situation tion about the “regulatory framework” in the media sector. This primarily comprises the The introduction is intended to include in a legal framework. In addition to, or instead short form basic data, sociological character- of this (if there is no legal framework), there istics, historical development, the situation should also be given some information about of the offi cially acknowledged language and administrative regulation and/or other provi- ethnic groups; etc., as far as being important sions, for example codes of conduct, dealing for the comprehension of the media regula- with media. tory system. Please describe also briefl y your To facilitate the understanding of the national press/broadcasting/online services/ general regulatory approach, the underly- fi lm system. ing media policy options should be described in order to foster the understanding “why” 1 General remarks or “for what purpose” a certain provision is drawn. 2 Brief overview of the political situation 1 Introduction

3 Overview of the market/media sector 2 Constitutional law

The overview of the “media sector” shall Description of constitutional law provisions cover at least the following subsectors: relevant for the media sector (i.a. freedom of Press, including newspapers, magazines, expression, youth protection, provisions relat- etc.; Broadcasting, i.e. radio and television, ing to public service broadcasting and media including technical services; Online ser- regulatory authorities). vices, offering content for the public; and Brief outline of actors and procedures of Film. With regard to the subsectors, please legislation (where applicable, speciﬁ cations outline briefly your national broadcasting for media legislation/regulation should be market (such as production market, adver- mentioned) tising market, broadcasters, audience quota, foreign influences and potential (cross-) 3 Sector-speciﬁ c regulation ownership of the (major) press, broadcasting and film enterprises) and some facts 3.1 The legal framework for the press about the audience share/usage figures. The same level of detail and a similar struc- Regulatory framework (Legal provisions, Ad- ture should be applied with regard to the ministrative regulation/rules, other provisions, printed press (sold newspapers and maga- especially co-regulatory or self-regulatory zines, etc.) and the film market in both lat- measures (codes of conduct), protection of ter cases; also the quota of the advertising minors and human dignity; advertising; qual- market. ity, ethics, diversity of media; access, standard setting) 150 The Media in South-East Europe – Comparative Media Law and Policy Study

3.2 The legal framework for broadcasting (ra- 5 Regulatory authorities/bodies with dio and television) an impact on the media sector

Regulatory framework (Legal provisions, Ad- Authority/ies, Legal basis, Functions/compe- ministrative regulation/rules, other provisions, tencies, Organisation, Self- and/or Co-regula- especially co-regulatory or self-regulatory tory body/ies measures (codes of conduct), protection of minors and human dignity; advertising; qual- 5.1 For the press ity, ethics, diversity of media; access, standard setting) 5.2 For broadcasting (radio and television)

3.3 The legal framework for online services 5.3 For online services

Regulatory framework (Legal provisions, Ad- 5.4 For fi lm ministrative regulation/rules, other provisions, especially co-regulatory or self-regulatory 6 Appraisal/Evaluation measures (codes of conduct), etc.) Is the legal framework contributory to the ful- 3.4 The legal framework for fi lm fi lment of the media’s role and remit? Please elaborate on why you think so/not. Regulatory framework (Legal provisions, Ad- ministrative regulation/rules, other provisions, III The accomplishment of the media’s especially co-regulatory or self-regulatory tasks in practice measures (codes of conduct), etc.) On the basis of the presented relevant legal framework for the media in part II, it is now 4 (Positive) Content obligations necessary to see how these provisions are fi lled in practice. This section therefore intends Description of existing (legal) content obliga- to show how close the different players in the tions in the media sector. E.g. is there a press media (are able to) stick to the possibilities code or a code of conduct for journalists? Are and obligations which the framework holds there legal provisions to safeguard balanced/ up for them, or if there is a gap between the proportional public broadcasters’ program- “law of the books” and the empirical status ming? Are there legal provisions to safeguard quo when it comes to “real life”. This gap can national culture, European productions/works have several reasons, e.g. a lack of fi nancial in the broadcasters’ programmes and/or for means, insuffi ciently qualifi ed staff, or maybe the fi lm industry? because of politically intended measures/restrictions. According to this, please describe 4.1 General remarks/facts your view of the “practical side”. If it is pos- 4.2 For broadcasting (radio and television) sible, please also allocate all of your fi ndings/ results with practical examples that can be 4.3 For the press/online services verifi ed and (should) be documented with traceable references (in a footnote). 4.4 For fi lm In the following, different points or ques- Annex 151 tions according to which, in our view, the ac- prices, what is the relation to the per capita complishment of the media’s task in practice income of the population? Please provide us can be assessed are presented. This should with some fi gures in order to get an idea of not prevent you from adding further, or con- the actual relationships. centrating on different, facts that in your view What is the economical/fi nancial situa- seem to make the actual accomplishment in tion of the (major) press enterprises? Are they practice clearer. mostly broke/bankrupt or prospering? Are there also other business areas the (major) 1 For the press press enterprises are involved in?

Is there independent journalism? How far are 2 For broadcasting journalists bound to guidelines of their employers when it comes to “critical journalism”? 2.1 Public service broadcasting What is the economic situation of journalists, particularly their average monthly/annual in- Is/are the public service broadcaster/s able to come (what is the ratio of this in relation to fulfi l its/their public remit in practice? Is/are average salaries)? How strict are the rules/ the public broadcaster/s able to keep its/their code of conduct/ethic guidelines that journal- independence or are there (state/political/oth- ists have to face? Is there in practice (partial) er) infl uences on the decision-making process censorship by the state/other organisations/ (e.g. content of the programme, budget, em- employers? Is there journalistic “privileged ployees, etc.)? Are the revenues of the public information”, making media outlets immune broadcaster/s suffi cient to fulfi l its/their remit? from liability in relation to their content (e.g. And, according to this, is/are the broadcaster/s editorial requests for information of public of- able to live its/their independence in fulfi lling fi cials, leaders of political parties, etc.)? Are the public remit because of being fi nancially there possibilities for disseminating informa- independent? tion about the private life of a person and his/ How is public service broadcasting fi - her pictures in cases where “it is necessary to nanced? Are there broadcasting licence fees? protect public interests”? Is there a distinction If so, what is the monthly/annual amount of between reporting facts - even controversial the fees and what is the relation to the per ones - capable of contributing to debate in capita income of the population? Is there, a democratic society and reporting details of and if so, what is the amount of the monthly/ the private life of an individual who does not annual commercial/advertising contingent of exercise offi cial functions? What about the the public broadcasters? What other forms of protection of the confi dentiality of sources fi nancial means exist (rent of buildings, inter- by the editorial offi ce? Are there cases of sus- est on investments, etc.)? pension of a press enterprise or a ban on the coverage of certain events or journalists/other 2.2 Commercial broadcasting persons in the press context (e.g. court case coverage)? Is media diversity an issue in your country? If What are the (average) prices for (daily/ not, are there reasons for this? Is there, and if monthly) newspapers, magazines? Or in which so, what is and how far does the actual con- “price-range” are (daily/monthly) newspapers tribution of the commercial broadcasters go and magazines available? According to the to media pluralism? 152 The Media in South-East Europe – Comparative Media Law and Policy Study

What is the economical/ﬁ nancial situa- are the (average) tariffs/models for Internet tion of the (major) commercial broadcasting access? (please also set the prices in relation enterprises? Are they mostly broke/bankrupt to the per capita income of the population) or prospering? Are there also other business How is the liability of content of online- areas the (major) commercial broadcasters services shaped/developed? Is there, and if so, are involved in? Are there cases of suspension under what conditions, a liability of the own- of a commercial broadcasting enterprise or a ers of Online-Services for statements of the ban on the coverage of certain events? readers/viewers made on the forums and chat pages of an Internet site, for instance? 2.3 Role of the regulatory authority/ies in practice 4 For ﬁ lm

Is there a certain kind of state infl uence on Existence of fi lm funding programmes/institu- the regulatory authority/ies or are they fully tions? Is there a public/private broadcasters’ independent when it comes to practice? contribution to fi lm funding? Prerequisites/ What are the regulatory measures (sanc- Conditions of fi lm funding (meaning: who tions, others) that the regulatory authority/ies gets the support?, what types of works are usually has/have recourse to? Do such mea- supported?, do they have to promote inter- sures provide for a real remedy to the per- cultural dialogue with their works or present ceived shortcomings? national cultural works?, repayment of support?, support of co-productions?)?, What is 3 For online services the (average) budget of fi lm funding in relation to the particular genre of the funded pro- Are there offers of online-services by the pub- duction (e.g. feature fi lm, documentary, etc.)? lic service broadcasters and/or (other) jour- Are there (major) independent fi lm pro- nalistic-editorial offers outside of broadcast- ducers? Do they have access to the (public) ing and outside of traditional newspaper and fi lm funding institutions? magazine publishing houses? What kind(s) of What are the (average) box offi ce ticket them? (please give some examples) Do you prices for a feature fi lm (also in relation to the need any kind of a licence (like a broadcaster’s per capita income of the population)? licence) to distribute audiovisual mass information (e.g. news, etc.) via the Internet/in a non-linear/on-demand manner? How far does the (total) distribution of In- ternet access go in society? Are there different groups or classes of users in society that do not have the possibility to access that can be identifi ed? How good/bad is the quality of Internet access? Is Internet access warranted all over the country or are there particular regions where there is no access? Are there strategies for the improvement of Internet access (e.g. availability of broadband Internet access, other forms of improvements)? What Annex 153

List of Abbreviations

AVMSD ...... – EU Directive on Audiovisual Media Services CDMC ...... – Steering Committee on the Media and New Communication Services CM ...... – Committee of Ministers (Council of Europe) CoE ...... – Council of Europe Comm...... – Commercial (broadcaster) DVB (-T/-C/-S/-H) . . – Digital Video Broadcasting (terrestrial/by cable/by satellite/handheld) EBU ...... – European Broadcasting Union EC ...... – European Community eCD ...... – eCommerce Directive ECHR ...... – European Convention on Human Rights and Fundamental Freedoms ECtHR ...... – European Court of Human Rights ECJ ...... – Court of Justice of the European Union ENP ...... – European Neighbourhood Policy EU ...... – European Union ISP ...... – Internet Service Provider NGO ...... – Non-Governmental Organisation OSCE ...... – Organisation for Security and Cooperation in Europe PACE ...... – Parliamentary Assembly of the Council of Europe PBS ...... – Public Broadcasting Service(s) PSB ...... – Public Service Broadcasting/Broadcaster(s) PSM ...... – Public Service Media 154 The Media in South-East Europe – Comparative Media Law and Policy Study About the Authors 155

About the Authors Bonn in 2005, fi nished his practical legal education (Referendariat, intern clerkship) at the EMR Higher Regional Court of Dusseldorf in 2008 and obtained a post-graduate Masters diplo- Alexander Scheuer, Attorney at law, General ma from the Europa-Institut at the University Manager, Member of the Executive Board of of Saarland in 2009. He had been working as the Institute of European Media Law (EMR), scientifi c researcher at the Institute of Euro- Saarbrucken/Brussels (2000 to date). Mr pean Media Law (EMR) in Saarbrucken from Scheuer is a member of the Advisory Commit- 2009 to the beginning of 2011; currently, af- tee and of the IRIS Editorial Board, both at the ter having fi nished his PhD thesis, he is prac- European Audiovisual Observatory, Strasbourg. tising as a lawyer (solicitor) in Switzerland. Since 2003 he has been a member of the Sci- entifi c Advisory Board (Kuratorium) of the Vol- Shari Kind, Ref. iur. (Assistant researcher). Mrs untary Self-Regulation of Private Televisions in Kind obtained her graduate diploma in law stud- Germany (Freiwillige Selbstkontrolle Fernseh- ies from the University of Saarland and is cur- en, FSF), Berlin. Editor and author of the Com- rently undergoing her practical legal education mentary “European Media Law”, Castendyk/ (Referendariat, intern clerkship) at the Higher Dommering/ Scheuer, Alphen a/d Rijn 2008; Regional Court of Frankfurt/Main. Her contribu- co-author of the Commentary on the TEU- and tion to the study, more specifi cally to the Coun- TFEU- Treaties, Lenz/Borchardt (eds.), Köln, Ba- cil of Europe’s legal framework for the media sel, Genf, München, Wien (1999, 2003, 2006, as refl ected in the “European benchmark”, was 2010; chapters on free movement of work- elaborated during her 4 months’ traineeship at ers, freedom of establishment). Scheuer has the EMR in summer/autumn 2010. been responsible for several major studies in the area of media and telecommuniations law, Albania commissioned – at European level – e.g. by the European Commission (co-regulation; media Ilda Londo has worked as a research coor- market defi nitions), the Committee of the Re- dinator at the Albanian Media Institute since gions, and the Council of Europe, as well as, 2001. She has been dealing with various me- at the national level, by different media au- dia research projects, focusing on media own- thorities in Germany, Austria and Switzerland. ership and concentration, coverage of ethnic He has published widely on European media, minorities, media landscape surveys, broad- telecommunications, protection of minors and casting development trends, self-regulation copyright law. Scheuer has given numerous and ethical issues, freedom of expression, speeches at international and national confer- digitalisation, etc. She has also participated in ences and acted as a speaker and panel chair- roundtables and training events for journalists person/moderator among others in several me- on topics related to media legislation, policy, dia expert seminars organised by the respective and development. EU Council presidencies. (for more information on EMR see www.emr-sb.de) Bosnia-Herzegovina

Christian M. Bron, LL.M. Eur. (project co- Radenko Udovicic is the programme direc- ordinator). Mr Bron graduated in law from tor of Media Plan Institute from Sarajevo. the Rheinische-Friedrich-Wilhelms-Universität From 2004-2007 he was director of High 156 The Media in South-East Europe – Comparative Media Law and Policy Study

College of Journalism Media Plan, where law offi ce (2004 - 2006) she was involved he taught the subject “Synthesis of Infor- in a number of high profi le project fi nance mation”. He started working in journalism cases such as the privatisation of the national in 1991 at the private local radio station fi lm-making monopolist Boyana Films EAD Studio 99. During the war he was a news acting for the Nu Image and Universal Stu- programme editor for this media outlet. dios, California, USA. Today she is acting as He moved to Media Plan Institute in 1996, an independent consultant in the media fi eld. where he started specialising in analysis of She has participated at several European and media contents. The topic of research and Bulgarian projects concerning the media leg- analysis later expanded to other social and islation and environment. Dr. Nikolova has economic fi elds. During his professional ca- many related publications. She is a founding reer, he worked in all media – from radio member of the Parent Union of the German- and television, through to the press and Bulgarian School for Culture Exchange Sofi a web. He worked as a correspondent for (German School Sofi a) established at the Ger- many media outlets from the region and man Embassy in Sofi a and was Board Member Radio Free Europe in Southern Slavonic Lan- until March 2010. She speaks Bulgarian (na- guages. He has an MA in Social Sciences tive), German, English and Russian. from the fi eld of journalism and is following a programme for a PhD in Media and Pub- Croatia lic Opinion. He is author of the book Public Relations and Journalism: INFORMERS WITH Nives Zvonariæ, was born and lives in Za- DIFFERENT GOALS, December 2007, and greb, Croatia. In 1997 she graduated from editor of the books “The Stumbling of the the University of Zagreb, Faculty of Law; the Media in Times of transition” (2006), “Indi- theme of her thesis was “Networking of cator of Public Interest” (2007), “Children public administration and legal institutions”. and Media” (2009). He was born in Sara- From 1999 to 2002 she worked at the Minis- jevo in 1969. try of Culture, as adviser in the Legal Depart- ment, inter alia on the draft of the fi rst Media Bulgaria Law in Croatia. Between 2002 and 2005 she acted as the Head Secretary of the Croatian Evgeniya Nikolova was born in 1977 and Television and the Secretary of the Council of has been a qualifi ed lawyer for more than 8 HRT – the Croatian Radio and Television. Since years, who has received her diploma for Mas- 2005 she has been working at the Agency for ter in Law at the Sofi a University “St. Kliment Electronic Media as Secretary of the Council Ohridski” and at the University of Hamburg. for Electronic Media. In 2007 she complet- She obtained her doctor’s degree in 2009 ed training for Public Relations Managers at from the University of Hamburg. Her disser- the Experta Business Academy, Zagreb. She tation concerns the digitalisation of televi- has written for IRIS – Legal Observations of sion in Europe and especially in Germany and the European Audiovisual Observatory since Bulgaria. In 2004 Dr. Nikolova was a lector 2004, where she has been the Croatian rep- in telecommunications and media law at the resentative since 2005. She has participated Institute for European and German Law with in various seminars in the fi eld of media as the Faculty of Law at Sofi a University. As a well as in meetings of the European Platform senior consultant at Kambourov & Partners of Regulatory Bodies (EPRA). About the Authors 157

Kosovo the University St. Cyril and St. Methodius – Skopje, Law Faculty Iustinianus Primus, Mace- Vjollca Krasniqi is a sociologist. She is a Ph.D. donia. His professional experience includes candidate at the Department of Social Work, Head of the Sector for European and Inter- University of Ljubljana. She has an M.Sc. de- national Affairs and Public Relations at the gree in Gender, Development, and Globalisa- Broadcasting Council of Macedonia, Skopje, tion from the London School of Economics Macedonia (April 2009 to present); Senior and Political Science (LSE). She is a lecturer in Media and PPI Assistant at OSCE Mission to Sociology at the Faculty of Philosophy, Univer- Skopje, Skopje, Macedonia (February 2004 – sity of Prishtina. She has written on political, April 2009); and Editor at the Deutsche Welle, social, and gender developments in the Bal- Bonn, Germany(September 2000 – December kans. Her recent publications include: “The 2003). Gender Politics of Post-War Reconstruction in Kosova”, in Christine Eifl er and Ruth Seif- Andriana Skerlev-Cakar was born on 16 ert (eds.), Gender Dynamics and Post-Confl ict March 1966 in Skopje, Republic of Macedo- Reconstruction (Bern, New York, Oxford: nia. She graduated from the Faculty of Law, Lang Publishers, 2009); “Imagery, Gender St. Cyril and St. Methodius University, Skopje, and Power: The Politics of Representation in in 1990 with B.A in law sciences. In 2009 she Post-War Kosova” Feminist Review, 86 (July post graduated and got her MSc in Human 2007):1-23; The Politics of Remembrance and Resource Management. Since July, 2007, she Belonging: Life Histories of Albanian Women is a Mediator. She is a memebr of the Media in Kosova [co-author with Nita Luci] (Prishti- Law Group, Media Law Advocates Pro- na: CRGP, 2006); “Gender and the Politics of gramme – Oxford. From 1990 to 1992, she Peacekeeping,” in Jelisaveta Blagojevic, Kat- was a trainee lawyer at the “Trpkovski” law erina Kolozova, and Svetlana Slapšak (eds.), fi rm. From 1992-1993 she worked as a law- Gender and Identity: Theories from the and/ yer at the Legal Division in “RZ- KPOR” a.d. or on Southeastern Europe (Athena, 2006), Skopje. From 1993-1998 she was the Gen- pp. 363-384. She has also been active in the eral legal representative for “Uni Prokom women’s movement in the Balkans and has Vemax”. Between 1998 and 2005 she was organised and participated in a number of in- Legal expert at the Broadcasting Council of ternational conferences on political and gen- the Republic of Macedonia, fi rstly in charge der issues. of international cooperation, then in charge of the legal rebroadcasting affairs and, from Macedonia 2004 to 2008, Head coordinator of the Le- gal, Economic-Financial and Administrative Borce Manevski was born in 1978 in Skopje, Department at the Broadcasting Council of Macedonia. He has a BA in Germanic Studies, the Republic of Macedonia. Since 2008 she graduated in 2003 at the University St. Cyril has been Executive Head of Departments in and Methodius – Skopje, Faculty for Philology the Broadcasting Council. She was working Blazhe Koneski, Macedonia; a BA in Online on the composition of the Election legisla- Journalism, he graduated in 2004 from the tive, Media legislative, Freedom of infor- University Studiengemeinschaft Darmstadt, mation legislative within the representative Germany, an MA in Media and Communica- institution in Republic of Macedonia. She is tions, graduation expected in spring 2011 at dealing with research and writing articles on 158 The Media in South-East Europe – Comparative Media Law and Policy Study

the development of media law and other law RTV Atlas. She is also the author of a number related policy development in Macedonia in of Art.s in media analysis publications, such domestic and foreign publications. as the Montenegro section of Kosovo and the Media, published by the Macedonian Institute Moldova for Media, Skopje, 2008, Mediji o svakodn- evici (“The Media on Everyday Events”), pub- Nadine Gogu is the Executive Director of the lished by Novi Sad School of Journalism, Novi Independent Journalism Center, a media NGO Sad, 2007, and “Footprint of Financial Crises that supports the independent press, moni- In Monte negrin Media”, FOSI ROM, London, tors media behaviour as well as abuse against 2009. She graduated from the Faculty of Moldovan journalists. Nadine is also a trainer Philoso phy of the University of Montenegro. with the Chisinau School of Advanced Jour- nalism, where she teaches Media Ethics and Romania Diversity classes. She was involved in several media monitoring projects that assessed me- Manuela Preoteasa is an assistant profes- dia behaviour during election campaigns and sor with the Faculty of Journalism and Com- coverage of the protests of 6-7 April 2009, as munication Sciences at the University of Bu- well as media self-regulatory practices in Mol- charest. As a journalist, Manuela Preoteasa dova. Mrs Gogu has been a correspondent for is currently working with the Brussels-based Reporters without Borders for the last 8 years. website EurActiv.ro, which covers EU policies, Before her experience at the Independent and the HotNews.ro news portal, a leading Journalism Center, Gogu worked for Timpul website on Romanian affairs. Mrs. Preoteasa weekly newspaper and FLUX News Agency. has also worked as a media researcher with Nadine Gogu earned her Master of Science in the Center for Independent Journalism (CJI) Mass Communications from Oklahoma State in Bucharest, she has authored several stud- University School of Journalism and Broad- ies on media. Mrs. Preoteasa also worked as casting. She speaks Romanian, Russian, Eng- a journalist with the business weekly Capital. lish and French. In 2006, she participated in the Marshal Me- morial Fellows Programme, a joint German- Montenegro USA programme for Young Leaders, aiming to strengthen trans-Atlantic relations. Daniela Seferovic, media consultant, journalist and editor. Working as independent Serbia consultant within KRUG Communications & Media since 2008. She was previously en- Slobodan Kremenjak graduated from the gaged as training and international relations Law Faculty of the University in Belgrade in coordinator and later as a programme direc- 1996. He is associate partner with Zivkovic tor at the Montenegro Media Institute, where & Samardzic Law Ofﬁ ce in Belgrade, with a she managed numerous educational and consulting focus in the areas of electronic research projects aimed at professionalisa- communications, media, intellectual prop- tion of media and public relations, as well as erty and competition. Slobodan has been a public advocacy campaigns. Since 2002, she media law adviser for a major association of has also worked as a journalist in MINA News Serbian broadcasters (ANEM) since 1998 and Agency, and is currently engaged as author at for Serbian local print media association (Lo- About the Authors 159 cal Press) since 2004. He was a member of the expert group founded by Serbian Minis- try of Telecommunications and Information Society for drafting of the Electronic Com- munications Act and member of the expert group founded by the Serbian Ministry of Culture for drafting of the Media Concentra- tion Act and Broadcasting Act. He is 2005 ANEM Lighthouse Award laureate for personal contribution in development of the media sector in Serbia.

Miloš Živkoviæ, born 1972, graduated and got his MSc and PhD in law from the Belgrade University School of Law, where he teaches Civil Law (General Part and Property Law). Since the mid-nineties he has been involved in legal representation of independent media in Serbia, which made him a pioneer in the areas of media law, advertising law and broadcasting law in the country. After the political changes of 2000 Miloš was involved in drafting the new legal framework for the media in Serbia – he was one of the main draft- ers of the 2002 Law on Broadcasting and the 2005 Law on Advertising, and also participated in drafting the Law on Public Informa- tion (general Media Act), the 2003 Law on Telecommunications and the 2003 Rulebook on Assigning Domain Names within Serbian CCTLD. Even though his professional activities have shifted to other areas of law lately, he is still active in legal representation of broadcasting media and telecommunication companies, and is still deemed to be one of the leading legal experts in the ﬁ eld in Serbia.

The Media in South-East Europe A Comparative Media Law and Policy Study

Beate Martin, Alexander Scheuer, Christian Bron (eds.) A Comparative Media Law and Policy Study The MEdia in South-East EUrope – – EUrope South-East in MEdia The