A new Bill on Public Information
HOW THE LAW WAS TEMPERED
For eight months already, Serbia’s media system has existed without a single systemic documents – laws on public information.
What does this in effect mean? In essence, the existing legal framework has not been changed by political changes. The new government has prevented Serbia’s 1998 Law on Public Information from being applied, in January, the Yugoslav Constitutional Court pronounced a large number of its provisions to be non-constitutional, and the newly formed Serbian Assembly revoked it, save for the articles on registration, response and correction, in February 2001. Simultaneously, the government refunded media in the amount of 11.4 million dinars of the total 31 million dinar amount collected through application of the 1998. Law.
Nevertheless, some things have progressed. The text of the new Law on Public Information has been drafted and transferred into the domain of public discussion. However, the impression is, at least for the time being, that the new authorities and political structures have no motivation to indulge in working on this draft document.
Seemingly, the absence of this law causes no problems, except that it delays practical resolution for the numerous problems in the media domain. In the meantime, without a background of legal provisions, the media have been struggling with the existing pressures by themselves.
It was for the first time that the passing of the Law on Public Information back in 1991 had created some legal gaps that in practice were interpreted and applied according to the needs and interests vested with the ruling regime. When even this stopped being sufficient, back in 1998, a new one was passed, also known under the name of Vucic and Seselj’s Law (Aleksandar Vucic, former minister for information and secretary general of the Serbian Radical Party, and Vojislav Seselj, the then vice-prime minister and the leader of the same aforementioned Party). The law, just like its creators in fact, is still remembered to be an extremely punitive one and directly set against media and the journalist profession.
Thus, the draft new law is also a basis and promise that a systematic law will be passed after all in the near future. If this be so, then this will be the first law in this domain not created by state authorities but by experts. Specialists coming from the Independent Journalist Association (NUNS), Media Center and Belgrade Center for Human Rights non-governmental organization worked on this draft together.
The draft (available at http://www.nuns.org.yu) was based on a model made in mid-nineties by lawyers and experts brought together at the Belgrade Center. According to one of our interviewees, Mr. Vladimir Vodinelic, professor at the Faculty of Law in Belgrade, a segment of the model had also found place in that cripple Law on Public Information: ‘I was the member of a group of lawyers and professors at the Belgrade Center, and subsequently at the Center for Improvement of Law Studies, which had drafted a modern and then non-viable model. Back in 1996/97, the ruling regime was too powerful and we were drafting it for some future time. Unfortunately, a segment of this model addressing the code had been taken without us knowing and inserted into the 1998. cripple law. When I came back from Germany to Yugoslavia in March of this year, I was approached by the gentlemen from the Media Center saying that the team working on the new draft law had taken our model as a basis. Thus, the group from the Belgrade Center joined in with the law drafting group and it resulted from our joint work. The model is based on some really modern legal accomplishments and is in compliance with the European standards’, explained professor Vodinelic.
The Law itself consists of 162 articles, divided into 10 basic chapters: introductory provisions, basic provisions, public media, registration of public media, distribution of public media, credits, editors and journalists, special rights and obligations in public information, rights of persons to which the information does not pertain, and punitive provisions. This rather extensive law text brings a number of novelties. One of them that may be of decisive importance to the profession is a new institute – restriction of hate speech, or more exactly: ‘restriction of publicizing of ideas, information and opinions instigating discrimination, hatred or violence against individuals due to their belonging to a certain race, religion, nation, ethnic group, sex or sexual affiliation’.
In addition to this, it emphasizes the possibilities of protecting the sources of information, the assumption of innocence, the protection of privacy and an extensively provided right to response and liberalized registration of media. The law also addresses protection of children and restriction of their exposure to pornography, but it also deals with existence of monopoly in the distribution of newspapers and with retaining of the ownership structure by which a foreign individual can only own 49 per cent of the media’s equity share.
The attention of the newspaper guild was also drawn by the provision on the illegally obtained information, which the Draft explains as follows: ‘it is forbidden to publicize information obtained in an illegal way, except if its publication is required by the predominant interest vested in its knowing by the general public.’ It specifies that such persons may not be editors in chief who enjoy immunity from liability, and it also provides precise and extensive instruction on the actions of judicial bodies for proceeding in law suits or civil actions that can be finalized by imposing fines ranging from 5,000 up to 1.000,000 dinars (1 DM=30 DIN). In addition to the fact that it regulates freedom of public communications without censorship, the Draft does not provide prison punishments either.
However, as soon as it came onto the light of the day on September 26, the text met with various resistance and objections by the journalists, editors and professional associations, mostly due to its excessive length and detailing.
Milos Marinovic from the Association of Journalists of Serbia (UNS) believes that a drawback of this Law lies in its weak protection from various manipulations. One of the channels for possible manipulations he sees in the option whereby a foreign individual may own 49 per cent of the equity share, ‘which allows various world-wide magnates to expand their influence’. This unusual and even xenophobic remark was also joined in by other colleagues from the UNS, who found it appropriate to criticize the Draft also because this association, the ‘famous’ former president of which used to be the notorious Milorad Komrakov, had not been invited to participate in the drafting of the text?!
On the other hand, irregardless of their affiliation with or loyalty to any association, the majority of journalists are unanimous in criticizing certain terms used in this Draft. It is believed that syntagms such as justified interest or predominant interest vested by the general public or, more than necessary, can cause confusion in practice.
'Laws are drafted by law experts and this terminology must be different, but it is clear or at least it should be. It is the task of the law to set up a normal right exercising framework such as has not existed thus far. The task of the legislator in bringing the Law on Public Information is to provide a guarantee for freedom of public information, but also to have it restricted by other freedoms also guaranteed in the Constitution. The proponent of the Law, and it is the Government in this case, also provides its interpretation,' responded professor Vodinelic to the suggestions, adding that he was a little surprised at the suggestions and that he had at least expected journalists to understand the legal terminology. Nevertheless, this did not remove the dilemmas, or even apprehensions, because there were some serious disputes about the right to reply too. A subsection of the Draft addresses this right, enjoyed by individuals whose rights or interests have been violated by publicizing information, with 17 reasons to choose not to publish the answer. Steva Niksic, editor in chief of the NIN weekly, presented his position related to the right to reply for 'Media Online':
'The Draft is no good and it should not be passed at all. I believe that it was drafted by someone who does not know what media are. It is simply non-applicable, particularly the segment addressing the right to reply. It is not the same thing like the right to correction, and it sounds like the rebuttal in the parliament. Someone may not like what the media publish, so he then writes a reply… There is no rebuttal in media. Now imagine radio news that last for two minutes, and then a reply follows that has to be read in them?! This may be in some magazines cherishing this type of polemics, but I believe that this is completely non-applicable in the media logic,’ believes Niksic. Using his ‘right to reply’, professor Vodinelic answered that the right to reply needs to be in the law, because it has existed as a right since as early as from the times of the French Revolution.
On the other hand, editor Milenko Vasovic believes that a major omission of this text is that it has not defined the obligation on the part of the state administration to reply to journalists’ questions: ‘This means that my associates may send out various official letters with questions in them to various institutions, to which nobody ever replies. Thus the state administration and the state itself can go on doing whatever they want and this is the mistake in the draft,’ believes Vasovic.
Experts respond to objections and criticism of this sort by announcing yet another law to regulate the right to access state-level information and develop the principle contained in this Draft providing that state authorities, political parties, public services, cultural institutions, parliament representatives and board members have to offer equal treatment to journalists and media.
The Draft also omits laws related to the Internet, which is believed to be necessary by journalists. Otherwise, the Law will be outdated even before it is passed at all. This opens a realistic option for drafting of a separate by-law to regulate this domain, and a separate by-law for the domain of advertising is currently being discussed too.
The editors participating on the discussion have also brought up a number of objections against the segments of the Law determining how journalists should work.
In this cycle of discussion, politicians in general offered no statements, but there is an impression, maybe due to their international commitments, that the new authorities do care very much for having the Law passed as soon as possible, so they seem to be 'hasting up' on journalists.
Zarko Korac, Serbian deputy prime minister in charge of media, has only offered a brief emphasis stating that the Law on Public Information falls into the corps of fundamental laws pertaining to human rights and therefore it is necessary that it be adopted: 'We are hoping that following several more discussions on the Serbian Radio-Television programs and at the Media Center and following an analysis of the objections and remarks received, and there are quite a number of them, this Draft Law will go into the parliamentary procedure in November,' as briefly explained by Korac.
Many are even of the opinion that we do not even need a law like this, says Vodinelic, but this is a natural reaction after the previous restrictive law: ‘The success of a law is measured by a good balance of the opposing but constitutionally guaranteed rights. Seen like this, the Gavrilovic case and publishing the news on his murder would be legal, but publishing the film on former minister Zeljko Zimic stealing is completely illegal. These rights must be understood in order for the application and practice of the law to be without major problems. And there will certainly be some problems,’ says Vodinelic.
Published by Media Plan Institute.
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