Introduction:
Nowadays, Albania is embracing quickly the most innovative technological advances; thus, striving to reach the level and standards of the most developed and powerful countries in Europe in this aspect. Of course, these developments have been reflected even in the domain of media, for example, through the technology of live-streaming, or by written articles posted on the respective website of each media making possible that the information that the latter decides to publish is accessible for and known by everyone worldwide, just by simply having access to Internet. These technological developments have led to a trend of establishing media portals by each and every person that desires to contribute to informing the general public. It is sufficient only to Google the word “news” and just by scrolling up and down, one will see hundreds of online portals that sometimes in their news share the same content of the article; thus, competing among them by plagiarizing one-another and so, violating the copyright, which constitutes another issue not subject to this paper.
Since in Albania the main legislation for the sector of media, is the Law 97/2013 on “Audiovisual Media” (with focus on traditional media, i.e. TVs, radios, etc.,) then the online mediums remained out of the scope of the law and thus, no regulatory measures were applied upon them. Freedom of expression is not absolute and therefore may be subject to certain restrictions and conditions imposed by the state, provided by the law 91/2019 “On some amendments and additions” to the law 97/2013. So, online mediums had unlimited freedom of expression and it was seen as necessary a draft-law in the content of which are amendments that if voted, will affect the current law’s provisions. There exist, currently, debates whether the proposed amendments fail to be in the same line with the international instruments and standards, or not. The OSCE, local journalists and civil society have repeatedly raised their serious concerns that this package would be detrimental to freedom of expression online.[1] On the other hand, it is the draft-law itself, that according to article 6, states that “Provisions of this law may not be interpreted in such a way that can give the right to censure, or restrict the right to free expression.”[2] This sentence leaves (de jure) one understand that the law complies with international standards and article 10 of ECHR, as will be discussed below.
Overview of the draft-law:
Regarding the draft-law, the object of the law is about to expand the regulated entities under its scope; thus, besides audio and audiovisual, it will include even services of electronic publications, known simply as online medias. Thus, every media, either audiovisual, or electronic will have the duty to submit its data (i.e. NUIS) and other documents to be administered at a register by AMA (Audiovisual Media Authority), according to article 19 of the Draft-Law.[3] Harlem Désir, the OSCE media freedom representative has stated in an interview that, “States should not impose mandatory registration to online media as a precondition for their work which can have a very negative effect on media freedom. This practice, when applied, could seriously restrict public access to diverse sources of information, the plurality of voices, and erode the right of freedom of expression and information online.”[4] A similar case has occurred even in 2004 with a draft-law intending to reform the press, which required the press to be registered at the respective district court. According to a report compiled by OSCE, “The provision had to be changed, since according to the international law, it is unacceptable that the state determines/decides who publishes and who does not – ECHR does not allow the licensing of the press media.”[5] Coming back to our case, giving such a detailed information to AMA, may increase the premises for prejudices to the media services by the public especially in the conditions where media today is facing several insults.[6] In addition, the amendment provides that the medias that fail to comply with such provision or that have not updated their data in the register according to AMA’s rules, will not profit any favorable tax treatment.[7] The expression “favorable tax treatment” leaves that part of the provision too broad; thus, permitting potential to a subjective interpretation of the provision that somehow may lead to bias and so, violating a very important principle elaborated by the Constitutional Court, the principle of juridical security.
Another amendment proposed is the one provided by article 21 of the draft law, regarding the procedure to be followed for the scrutiny of complaints by the Complaints Committee, one of AMA’s new organs established by this draft-law.[8] This Committee may be seen as an arbiter that will strive to balance the rights and interests of the media and the complainants. What is very worrying, is the fact that the deadlines attributed to the parties in cases of complaints are quite short, for example from 48 up to 72 hours; hence, not leaving sufficient time for the parties to prepare their claims duly and thoroughly. According to Erida Skëndaj, “This procedure violates the principle of contradiction and that of equality of judicial means between the complainant and the media, since the latter may be required to make submissions only when deemed necessary by the council and not at every case.”[9]
In cases when the media fails to comply with the rules provided by articles as mentioned above, it has the obligation to publish an apology, to remove the content violating the rights, insert a pop-up notice, pay a fine imposed by the authorities, up to the removal of the authorization, or license.[10] The latter is the harshest and the most extreme measure that a state may take, that obviously violates the right to freedom of expression and it is not in conformity with the international standards and universal principles. There are some observations that need to be made in respect to the powers granted to AMA. Firstly, article 33/1 of the law to the “respect of privacy and dignity of citizens” is too general and poorly defined and therefore could be interpreted as an empowerment to the regulator to adopt very restrictive decisions on an almost discretionary manner and in areas where a decision must be taken by the competent judge and not an administrative body.[11] So, this implies that every person complaining with regards to a violation of his/her privacy and dignity by a specific media, induces AMA to oblige the media to remove such content in the frame of anti-defamation package. Secondly, the obligation to publish an apology is to be considered an inappropriate measure to restore or compensate possible damages or violations of the rights of individuals.[12] By doing so, the media would be seen as unreliable in the eyes of the public in the future and would damage its reputation and interests. This measure should be replaced with a reference to the obligation to include a correction or reply according to what is established in article 53/1 regarding the right to respond.[13] Lastly, the regulation of the so-called right to respond in the new article 53/1 gives AMA the power to adopt binding decisions for service providers in these cases. It needs to be noted that despite the fact that there are no specific international standards with regards to the entity responsible to take decisions in this area, this kind of disputes is usually mediated, in best comparative international practices, either by the judge or within the context of self-regulatory mechanisms, and not by administrative regulatory bodies.[14]
The last thing which is seen as very worrying are the fines to be imposed on the media, if the latter fails to comply with the new provisions, provided by article 26 of the draft-law. The fines vary from 100,000 up to 1,000,000 ALL.[15] In addition, such fines may increase up to 50% of the sum, if the violations of the provisions are repeated up to 3 times during the same year.[16] These fines are quite high if we consider the standard of living in Albania, which is one of the lowest in Europe. Although the fines are applied to the operator, exists the risk that through regression lawsuit, these fines are taken out of the journalist’s salaries, in a time when the latter are facing an informality in the labor market.[17] Logically, this would cause a high probability of bankruptcy for a media facing such fines and a restriction regarding the freedom of expression.
Political Support & Criticism:
The first final draft was presented for voting before the Parliament of Albania on December 18th 2019. It got approved with a majority of 82 MPs who voted in favor of it, whereas 13 were against and five others abstained. Media freedom organizations caution that the package is likely to replace the current self-regulation of online media by state-regulation, and argue that cosmetic changes made at the last minute do not address all the concerns raised by the European Union, the Council of Europe and Human Rights Commissioner Dunja Mijatovic.[18]
On 12 January 2020, Albanian President Ilir Meta vetoed the latest amendments to the two laws “On audiovisual media” and “On electronic communications” arguing that both laws violate the fundamental constitutional principles of a democracy, the right to freedom of expression, freedom of the press and the right to information, the previous decisions of the Constitutional Court, the European Convention on Human Rights. According to the President, the new legislative package “would produce intimidation and self-censorship, unlawful closure or suspension of electronic media, directly affecting the quality and objectivity of information, which would result in providing the public with information other than facts, which would mislead the society not only in seeking their rights, but in fulfilling civic responsibilities for building and preserving the democracy.”[19] Following the President’s decision, the Parliament could either accept his decree and start over the legislative process, or dismiss it with a simple majority. Indeed, the Parliament still has not decided, but there exists a high probability that it will not take into account the President’s recommendations and will strive to revote it.
The OSCE Representative on Freedom of the Media, Harlem Désir, received on January 13th 2020 from the President of Republic of Albania Ilir Meta’s Office explanatory documents on the reasons for the return to Parliament of the laws on Audiovisual Media and the Law on Electronic communication in the Republic of Albania. In view of the new examination of the laws by Parliament, the Representative confirms that “He stands ready to continue working with Albania’s authorities to improve the laws, in particular on the issue of the level of the fines and the respect of the principle of proportionality as enshrined in international law. Nothing in the new legislation should impede the freedom of expression and media freedom. He hopes that the new reading will allow for further clarification and improvement of the laws to ensure their full compliance with international standards and OSCE commitments.”[20]
On 22 January 2020, the Monitoring Committee of the Parliamentary Assembly requested an opinion of the Venice Commission concerning the Albanian Law no. 97/2013 ‘on Audiovisual Media Service.’ On 19 June 2020, the Venice Commission adopted an opinion on draft amendments to the Law n°97/2013 on the Audiovisual Media Service. “While acknowledging the efforts of the Albanian authorities to be transparent, to respond to the criticism and to improve the text of the draft amendments, the Commission considers that the draft amendments are not ready for adoption in their current form.”[21]
General Rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) on media freedom and the protection of journalists urges the Albanian parliament to drop the current proposals and restart the whole process. “The legislation proposed by the Albanian Prime Minister as an ‘anti-defamation package’ aims to create an administrative body that will be empowered to order media to take down news reports over issues such as ‘infringing the dignity of individuals’, under the threat of heavy fines. It is obvious that such a law may have a chilling effect on media freedom due to its broad terms,” said the rapporteur.[22] Furthermore, Mr. Schennach added that the text of draft amendments unless revised with attention, will cause the freedom of expression of online media to be at stake. This claim is backed up through Venice Commission’s opinion no. 980/2020.
On 16 September 2020, in the light of some clues and fearing that the Parliament plans to reconsider the amendments to law 97/2013, several international rights organizations, submitted an open letter to the Albanian Parliament requesting their inclusion throughout the process.[23]
Conclusion:
To sum up, this draft-law has its positive and negative sides. The positive side is the fact that it aims to include the online media under its scope and to regulate it by applying the same standards just like in the case of traditional media, such as TVs and radios. On the other hand, the negative side relates to some provisions that directly violate article 22 of the Constitution of Albania (which guarantees the freedom of expression by the media and prohibits the presence of censorship) and article 10 of the ECHR guaranteeing the same right. If the draft-law will be approved for the second and last time by the parliament, then the concept of “freedom of expression” might be seriously threatened.
[1] “Albania: Government Should Withdraw ‘Anti-Defamation’ Legislative Package Introducing State Regulation of Online Media Outlets,” Reporters Without Borders (Reporters Without Borders, July 26, 2019), https://rsf.org/en/news/ albania-government-should-withdraw-anti-defamation-legislative-package-introducing-state-regulation)
[2] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[3] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[4] “OSCE Media Freedom Representative Expresses Concern Regarding New Registration System and Threat of Potential Closure of Online Portals in Albania,” OSCE (OSCE, October 18, 2018), https://www.osce.org/representative- on-freedom-of-media/400271)
[5] Deklaratë Mbi Projektligjin Shqiptar Për Lirinë e Shtypit Nga ARTIKULLI 19 Fushata Globale Për Shprehjen e Lirë, January 2004, pp. 1-7, https://www.osce.org/sq/fom/34014?download=true)
[6] Erida Skendaj, “Analizë Ligjore e Disa Problematikave Të Identifikuara Në Paketën e Propozuar Ligjore ‘Anti- Shpifje,’” Komiteti Shqiptar i Helsinkit (Komiteti Shqiptar i Helsinkit, July 8, 2019), https://ahc.org.al/propozimi-per- rregullimin-e-ri-ligjor-te-medias/)
[7] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[8] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[9] Erida Skendaj, “Analizë Ligjore e Disa Problematikave Të Identifikuara Në Paketën e Propozuar Ligjore ‘Anti- Shpifje,’” Komiteti Shqiptar i Helsinkit (Komiteti Shqiptar i Helsinkit, July 8, 2019), https://ahc.org.al/propozimi-per- rregullimin-e-ri-ligjor-te-medias/)
[10] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[11] Joan Barata Mir, “Legal Analysis on the Draft Laws on Changes and Amendments to the Law on Audiovisual Media in the Republic of Albania (Proposal of a Law on Media Services)” (OSCE, July 2019))
[12] Joan Barata Mir, “Legal Analysis on the Draft Laws on Changes and Amendments to the Law on Audiovisual Media in the Republic of Albania (Proposal of a Law on Media Services)” (OSCE, July 2019))
[13] Joan Barata Mir, “Legal Analysis on the Draft Laws on Changes and Amendments to the Law on Audiovisual Media in the Republic of Albania (Proposal of a Law on Media Services)” (OSCE, July 2019))
[14] Joan Barata Mir, “Legal Analysis on the Draft Laws on Changes and Amendments to the Law on Audiovisual Media in the Republic of Albania (Proposal of a Law on Media Services)” (OSCE, July 2019))
[15] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[16] “Projektligj per disa ndryshime dhe shtesa ne ligjin nr.97/2013, ‘Per mediat audiovizive ne Republiken e Shqiperise’, te ndryshuar” (Tirana, Albania, December 2019))
[17] Erida Skendaj, “Analizë Ligjore e Disa Problematikave Të Identifikuara Në Paketën e Propozuar Ligjore ‘Anti- Shpifje,’” Komiteti Shqiptar i Helsinkit (Komiteti Shqiptar i Helsinkit, July 8, 2019), https://ahc.org.al/propozimi-per- rregullimin-e-ri-ligjor-te-medias/)
[18] “All Results,” Platform to promote the protection of journalism and safety of journalists (Council of Europe, 2020), https://www.coe.int/en/web/media-freedom/all-results?p_p_id=sojdashboard_WAR_coesojportlet.
[19] “All Results,” Platform to promote the protection of journalism and safety of journalists (Council of Europe, 2020), https://www.coe.int/en/web/media-freedom/all-results?p_p_id=sojdashboard_WAR_coesojportlet.
[20] “OSCE Media Freedom Representative Désir Recommends Further Improvements to Laws on Online Media in Albania, in Latest Review Sent to Authorities,” OSCE (OSCE, 2020), https://www.osce.org/representative-on-freedom-of-media/441500.
[21] “Council of Europe,” Venice Commission :: Council of Europe, 2020, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282020%29013-e.
[22] “PACE General Rapporteur on Media Freedom Urges Albanian Parliament to Drop Changes to Media Law,” Parliamentary Assembly of the Council of Europe, 2020, https://pace.coe.int/en/news/8010/pace-general-rapporteur-on-media-freedom-urges-albanian-parliament-to-drop-changes-to-media-law.
[23] “All Results,” Platform to promote the protection of journalism and safety of journalists (Council of Europe, 2020), https://www.coe.int/en/web/media-freedom/all-results?p_p_id=sojdashboard_WAR_coesojportlet.
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Darlin Katundi
Darlin is a law student, currently pursuing his last year of studies at University of New York in Tirana. During his studies, Darlin has been engaged in several trainings and moot courts with principal focus on human rights, organized by Civil Rights Defenders, Save the Children and European Centre. His last commitment was a remote internship done at International Chamber of Commerce, where the main task was to write a joint recommendation paper on responsible marketing and advertising in Albania. On 7th of December 2020, Darlin was co-host of a students panel concentrated on ethics in visual and verbal communication in media, organized by UNYT, ICC Albania and the Embassy of the Netherlands in Albania, in the frame of Week of Integrity 2020.
What attracts Darlin the most, is commercial law, banking law, intellectual property law, arbitration law, tax law, competition law and consumer law.
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