At the start of the new millennium, it is obvious that internet has transformed from being a novelty to an important part of people’s personal and professional lives. The current decade is seeing a crucial change in the relationship between the internet and society. Undoubtedly, internet has made our life become easier and more convenient but the expansion of communications technology, online world and social media poses a legal challenge. Through Internet the information is spread all over the world within a second, but the ability to instantly spread information is of a neutral benefit, because the internet can be accessed for a good or an illegal purpose. There are people who would use the ability to spread information as more of a tool to spread “fake news’’. Facing this new situation, created due to technological developments, measures have been taken both at the national and at the international level.
One of the challenges that every state and international organization is facing today, is freedom of expression online. Freedom of expression constitutes one of the essential foundations of democratic society, one of the basic conditions for its progress and each individual’s self-fulfillment[1]. And clearly, freedom of expression is as crucial online as it is offline. Initially, we will present some measures that have been taken at international level.
United Nation Human Rights Council recognized in 2012 through its Resolution that the same rights that people have offline must also be protected online. [2] It is also acknowledged that limitations on electronic forms of communication or expression spread over the Internet must be justified according to the same criteria as non-electronic or ‘offline’ communications.
The Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda[3], concerns that disinformation and propaganda mislead a population, as well as interfere with the public’s right of information, consequently harming individual reputations and privacy and inciting violence or discrimination. Therefore, in order to prevent this situation, states may impose restrictions on the right to freedom of expression in accordance with the test under international law: provided by law, serve legitimate interests recognized under international law, and be necessary and proportionate to protect that interest.
European Union has also made some regulations regarding this situation. E-Commerce Directive[4] requires that Member States should protect intermediaries from liability for illegal third parties content, when the intermediary does not have actual knowledge of illegal activity or information. But, after obtaining that knowledge, he should act expeditiously to remove or disable access to the content. The E-Commerce Directive prohibits Member States from imposing general obligations on intermediaries to monitor activity on their services.[5]
In order to prevent and counter the spread of illegal hate speech online, in May 2016, the European Commission agreed with Facebook, Microsoft, Twitter, YouTube and later on with Instagram, a “Code of conduct on countering illegal hate speech online”[6] to help users notifying illegal hate speech in these social platforms, improve the support to civil society as well as the coordination with national authorities.
European Commission has issued the Recommendation on measures to effectively tackle illegal content online[7]. The necessity for this recommendation came from the concerns that the removal of illegal content online is insufficiently effective. Online platforms need to apply a greater responsibility in content governance. The recommendation proposes a common approach to swiftly and proactively detect, remove and prevent the reapparence of content online.
Lastly, on November 2018 some important amendments were made in Audiovisual Media Services Directive[8], which included for the first time, video-sharing platforms. Video-sharing platforms are defined as a commercial service, which objective is to provide programs and user-generated videos informing, entertaining or educating the general public. This means that services such as YouTube and Facebook will fall under the scope of the revised Directive. While, newspaper websites remain outside the scope of the Directive, standalone parts of newspapers’ websites which feature audiovisual programs or user-generated videos will be considered as video-sharing platforms. The new obligations aim to protect minors from harmful content and to protect the general public from incitement to violence or hatred and content constituting criminal offences (public provocation to commit terrorist offences, child pornography and racism or xenophobia)[9].
After a slow start of the process of adopting the internet technology, Albania has witnessed a remarkable growth during the last decade[10]. After 2000, the number of internet users in Albania increased significantly. In 2000, only 0.1% of the population used Internet, but in 2017, based on statistics obtained by International Telecommunication Union, 65.8% or 1.932,024 out of 2,934,363 inhabitants in total were internet users[11].
The changes that have occurred need legal adjustments since there are many issues that have emerged. Albania has undertaken some steps in accordance with the demands coming from EU, mainly demands in terms of meeting the conditions in order to become EU member. One of these steps has to do with the approval of law no 9918, dt 19.05.2008 “On Electronic Communications in the Republic of Albania”. The Albanian Parliament has issued some other laws that directly or indirectly, regulate the activity that goes through the internet. In adherence with the European Convention on Cybernetic Crimes based on law no. 10023 of dt. 27.11.2008 some amendments are applied to the Penal Code, which supplements the legal framework on the fight against this kind of crime. Other laws that operate in the field of electronic communication or internet are also the law no. 10278 of 2010 “On Electronic Documents”, law no 9880 of 2008 “On Electronic Certification”, law no 10128 “On Electronic Commerce.”[12]
Despite the aforementioned laws there is still no law regulating the content of online media or any rule regarding the right to online expression. Based on the existing legislation, a subject whose reputation, honor or personality is violated because of the types of unlawful speech, may address the court through a civil or criminal lawsuit. According to the Civil Code based on article 625/b-liability for non-pecuniary damage[13], 647/a- ways and criteria of setting out civil liability and extent of non-property damage[14] and according to Penal Code, article 120- libel[15].
After introducing the international acts and national albanian legislation in a comprehensive manner, it is noticed that a conflict exists between freedom of expression on the internet and the right of reputation, thereby a question arises: ‘’Which of these rights will prevail’’? It is admitted by the European Court of Human Rights (ECHR) that expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression and besides the benefits, certain dangers may also arise[16]. But, what is most important, the Court has stated that both of these rights are fundamental and deserve equal respect to achieve a balance that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights[17].
In order to achieve a balance between freedom of expression and the right to private life a national court should take into account: whether the publication is a contribution to a debate of general interest; the degree to which the person concerned is known; the content, form and consequences of the publication and the circumstances under which the information is gathered. If the person had a legitimate expectation for the protection of their private life and the publication contributes little to a debate of general interest, then the balance will generally tilt in favor of the protection of personality rights If the person lives a more exposed life and the publication is in the interest of the public, the balance will generally tilt in favor the protection of the freedom of expression.[18]
In regard to Albanian legislation there should be an immediate change about the responsibility for online publication of posts or comments that violate the honor, personality, or reputation of the person. These changes should regulate the liability of the administrator to obstruct the publication of any post or comment that infringes the honor, personality or reputation of a person. First, non-restriction of publication should charge the portal administrator with responsibility for the damage caused. Second, if a post or comment that violates the honor and personality or reputation of a person is classified for publication by the administrator of an electronic portal, he or she is required to delete the comment once it has been notified by the person claiming the honor. Third, not deleting the comments, upon the request of the person affected, charges the administrator of the electronic portal with responsibility for the damage caused. Lastly, the damage caused should be classified as non-pecuniary damage for the violation of the honor, personality and reputation of the person.
In conclusion, since we are in the Internet era, the online world is changing from day to day. The states should take the necessary measures, so that the impact of online world would be positive and help the society for further developing. Finding a balance between two important rights is always a challenge in the field of justice, but proper application of the criteria will ensure the enforcement of the right. Albania should take action as quickly as possible based on the current situation in Albania and by taking into consideration on the best international practices. Also, Albania should be attentive because defamation laws that are overly protective of reputational interests and that provide for far-reaching remedies or sanctions can have a chilling effect on freedom of expression and public debate.
[1]CASE OF LINGENS v. AUSTRIA, Application no. 9815/82, 8 July 1986, p. 41
[2] HRC Resolution 20/8 on the Internet and Human Rights, A/HRC/RES/20/8, June 2012/ The promotion, protection and enjoyment of human rights on the Internet.
[3] Joint Declaration on Freedom of Expression and “Fake News,” Disinformation and Propaganda, adopted by the UN Special Rapporteur on FOE, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African/ 3 March 2017
[4] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, Article 14(1).
[5] Ibid., Article 5
[6] European Commission, Code of Conduct on Countering Illegal Hate Speech
[7] The European Commission adopted on 1st March 2018 a Recommendation on measures to effectively tackle illegal content online.
[8] DIRECTIVE (EU) 2018/1808 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 November 2018 amending Directive 2010/13/EU
[9] http://europa.eu/rapid/press-release_MEMO-18-4093_en.htm
[10] Internet development and social media in Albania- Albanian Media Institute Instituti Shqiptar i Medias, 2015
[11] https://www.internetworldstats.com/stats4.htm#europe
[12] Internet development and social media in Albania- Albanian Media Institute Instituti Shqiptar i Medias, 2015
[13] His honour, personality or reputation being impaired;
[14] The indemnification of the non-property damage in connection with the impairment of the honour, personality or reputation of a person aims at reinstating the impaired right, proportional to the incurred damage, and it shall be set out based on the circumstances of the case. In connection with setting out the civil liability and the extent of non-property damage, the court shall take account of….
[15] Intentional dissemination of utterances and/or any other information, which are knowingly false, and which affect the honor and dignity of a person, shall be a criminal misdemeanor and is punishable by a fine between 50,000 and 1,500,000 leks. The same offence, when committed publicly, shall be a criminal contravention punishable by a fine between 50,000 and 3,000,000 leks.”
[16] Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012.
[17]CASE OF DELFI AS vs ESTONIA, Application no. 64569/09 16 June 2015, § 110
[18] Cross border infringement of personal rights Dr. Jan-Jaap Kuipers (De Brauw Blackstone Westbroek)
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Gladiola Ago
Gladiola Ago is attending the master’s degree program in the field of civil law, at the Faculty of Law, University of Tirana. Gladiola joined Boga & Associates as a legal assistant in April this year. She is also Secretary General at ELSA Albania, a student’s international law organization.
Law fascinates her extensively. She is intrigued by developments in the law field and the way that it adapts to an ever-changing society. She is at her best when challenged, relishes the opportunity of lateral thinking and enjoys evaluating human relations. Gladiola is particularly interested in the areas of law related to business law, trade law, international arbitration law, human rights and is committed to expanding knowledge in these areas.
Gladiola has participated in international and national activities, trainings and conferences that have had in focus the European Union legislation, international jurisprudence, democracy & the rule of law and human rights.
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