12 Dec The government has adopted a draft law on the media, but has been “redacting it” for a while: Threats to sources and journalists
Persistent insistence on restricting the right of journalists to protect their sources, along with imposing self-regulation on the state budget and the announced changes to the laws on data secrecy and free access to information, reflect the nature of the regime that produces a captive state.
What is so annoyingly troubling the Government, its bodies and editors that the draft law on the media is still not available to the public one week after it was approved by Prime Minister Markovic’s Cabinet? And, on the same day, after the session, despite the anathema by the Serbian Orthodox Church, a bill on the freedom of religion or belief and the legal position of religious communities appeared on the Government’s website…
All the more so, as Minister Aleksandar Bogdanovic stated: “this was a fruit of the collaborative work in which representatives of the media community, civil society, academia, regulators and self-regulators, the Media Union, and representatives of state institutions participated”; plus a “broadest public debate” and a “three-fold monitoring by the Council of Europe’s experts, along with three readings by the European Commission, all in order to comply with the highest international standards.”
The formal explanation was that an editing of the text was necessary, which is ridiculous, since this regulation has been refined over a full year by the Ministry of Culture. It leaves us to speculate on a number of scenarios: either Prime Minister Dusko Markovic should fire the editors because of an unforgivable delay, or the proposal of the Ministry had to be totally decimated, or more softly, amended at the Cabinet session; or the awareness prevailed that those three rounds of control from Brussels had been bypassed and the media ignored, so time is now being bought to assess whether there would be a hands-twisting by the EU and how painful that could be. Judging by the Government and its caretakers of the media, the cause could be a minor mess-up, but betting on any option would be unrewarding.
For now, the public only has access to the version that the Ministry revealed in November, with which the opposition working group in the Electoral Reform Task Force has been operating and offering through amendments its own version. That Bogdanovic’s product, in its key segments on media freedom and media support, is a premature baby when compared to the draft with which the broad public debate was initiated.
Admittedly, certain positive steps cannot be denied, such as the insistence on the transparency of media ownership, on the elaboration how due journalistic attention and journalistic conviction could facilitate acquittal in the court, and on the strengthening of the integrity and protection of journalists who refuse a task due to objections of conscience, as well as the throwing out of unnecessary definitions about journalists and editors, along with some sort of standardization of the procedure for online commentaries.
However, even with the latest available version, the Government continues with a tendency to restrict the right of journalists to preserve the identity of their sources. In the section “Rights, Obligations and Responsibilities in Information Spreading”, the keeping of sources was further relativized. Under the existing law, this right of journalists is inviolable and does not have to be revealed even to the court. Namely, the draft has introduced an obligation for a journalist to disclose a source if the court deemed it “necessary to protect national security interests, territorial integrity, protect health and detect criminal offenses penalised by five or more years of imprisonment.” This, in creative interpretation typical for this region, means literally – everything. Even more, a novelty is inserted that the journalist would have to do it “at the prosecution’s request”, and that the decision would be made by the court. The ultimate consequence will certainly be further discouragement of the remaining scarce sources, just as has happened in the case of whistle-blowers, and making it more difficult for a journalist to work and publish in the public interest. If all this is viewed in the context of amendments to the Law on Data Protection and on Free Access to Information, the imminent impression is that an organized effort by the authorities is launched to limit the field for maneuvering by the media in the search for truth, which reflects the nature of the regime that produces a captive state.
The penal provisions do not foresee a sanction for a journalist who would invoke a conscientious objection and reject the prosecution’s request or court order to disclose the source. This may mean that the penalties provided for in the Penal Code would apply. One such penalty, even under immunity, was experienced by MP Nebojsa Medojevic, who spent two months in prison. By decision of the Constitutional Court, the immunity will in the future protect parliamentary deputies from such measure. Journalists will remain without it.
Any invoking of European practice by law-makers in the concrete case should be challenged with a few elementary questions. If that obligation did not exist in a law passed 17 years ago, why should instruments with less freedom be introduced now? Or, which experience during that period has indicated that this right needs to be restricted.
In the meantime, the proposed provisions for establishment of a media pluralism fund, although sharply criticized for its small amount, excessive arbitrariness and intention to also fund from it the media self-regulation, with the initial idea being to keep afloat the existing “state” self-regulatory organization, have been fertilized by additional regression.
The original idea of the Government was to create a fund of 0.03 percent of GDP, to be allocated for projects of public interest in the proportion of 60 percent for the electronic media and 40 percent for the print media, after which five percent of the two sums would go for self-regulation, and additional five percent to the commissions entrusted to distribute the funds. According to the newest estimate of GDP of some five billion euros, this would mean that about 1.35 million would go for all media, while almost 11 times more, or 0.3 percent of the GDP amounting to 15 million euros, would be provided to the public service alone.
Almost everyone outside the Government demanded that the amount for this Media Fund be increased several times and that self-regulation be left to the media, including its funding, because the institute itself makes no sense if someone else provides money for it. Especially, if it is funded by the Government, with the latent danger for such bodies of becoming the scourge of the regime for “disobedient” media. We had such a collective self-regulation body in the past and it disintegrated a couple of years ago for precisely that reason.
The November proposal of the Ministry presented a new solution in which the percentage for the Fund would go up to 0.8%, but of the Current Budget, not the GDP. So, the ‘more’ became – significantly less. The Current Budget for next year (2020) is about one billion euros, which means that the Fund would amount to 800 thousand euros, minus ten percent for administration and self-regulation, which is not waived. With the ratio being 60:40, the electronic media could count on 432 thousand euros and the print media on 288 thousand euros. Instead of 15 times, the public service broadcaster would receive 18 times more of citizens’ money than all other media combined. For the next year, in fact, it would be 15 million euros more, because other media can count on – zero euros. Namely, the transitional and final provisions provide for the Fund to be effective in 2021. Well, for whom survives …
In line with the proclaimed effort to improve the overall environment before the next parliamentary elections, some opposition lawmakers also embarked on a media law-making effort. In relation to the Government’s proposals, they have been better able to listen to the voice of the domestic public and the media. Thus, they simply transcribed the provision for protection of sources from the existing law, leaving this right of journalists inviolable. Under the influence of the media unions, they further the position of the journalist in the newsroom, eliminating the provision of his joint and several liability, together with the founder and editor-in-chief, to compensate for the damage caused by publishing a text or an article. They also envisaged advisory rights of editorial boards when selecting an editor-in-chief. They also propose protection, that is, a proper severance pay for the editor, if there is a change of ownership that implies a change in the editorial concept and policy.
Interestingly, both Government and these MPs have agreed that offensive online comments and hate speech should be removed after posting. Only the Government has now limited its earlier formulation of the deadline to 24 hours and the opposition to six hours. This could rejoice the portal owners who will not have to hire journalists to pre-authorize comments. This is also being harshly debated in Europe, where there are two different judgments by the European Court of Human Rights. However, this leaves the dilemma as to whether the editors of the online edition are privileged over others because they are not liable promptly for a finalised content. The question also remains when damage occurs to those offended, slandered, afflicted with hate speech – immediately, after 6h or 24 hours.
As for a future fund, the opposition lawmakers demanded that the amount be raised to 0.08% of GDP (around four million euros), with 47.5% to be equally distributed between electronic and print media, and 5% going to the so-called non-profit media. Self-regulation, which is only natural, would be the duty of the media. The idea is a noble one and probably cannot succeed because of the increase in the amount and the basic idea of the Government to provide symbolic money “make a gesture measure, but do not finish the work”.
There is also a paradox in this opposition’s fund proposal. They are, perhaps, concerned with improving the environment for the 2020 elections, while none of this about the fund will be valid in that year.
Whatever more the “editors” will have to do, it is hard to believe in the fruits of optimism.
By: Slavoljub Scekic