COMING OUT OF GOLEM’S SHADOW

- Media Transition in Serbia -

By Miroljub Radojkovic

Media in Serbia are presently in a “twilight zone” as the overall social situation still has not entered a new day. No paths towards change are in sight yet, although the “media darkness” created by the huge shadow of the “big brother,” personified in the Golem of the authoritarian political regime, no longer exists. Like the Biblical one, our Golem has also disintegrated into the dust that it was created from. At the same time, this means that media institutions and their employees, unfortunately, have an abundant and painful experience of living in such a shadow, but little, if any experience that would help them face the new risks inevitably related to media transition that has already started.

Consequently, an integral part of the process of Serbia’s democratization will be a big spring cleaning in the media sphere. However, any housewife knows that, before starting to clean, she must decide what needs to be cleaned and which “room” to start from. As far as the former is concerned, the “spring cleaning” should constitute a regulation of overall environment for the work of the media and journalists (legal, economic and professional), with an attempt to establish equal starting positions. For, a new time of market-driven competition is ahead, and all competitors are not lined up equally on the starting line. And, as to where to start from? From the normative framework and ownership and legal status, which determines the media position in the state and society.

 Regulation or Self-Regulation

An integral part of a regulated social life is the existence of a normative order. Among other things, democracy means existence of certain rules and procedures for solving the issue of who, when and in what conditions may make decisions. Abolishment of the latest Law on Public Information is seen as removal of chains from the media, and it does bring a lot of relief. Its application pursuant to the letter of the law with the help of obedient judiciary was the main lever in the strategy of subjugating the media and journalists. However, if we think ahead to what needs to be done further, it would be necessary first to reconcile the opposing opinions that have already appeared. Some would like a new Law on Public Information not to be passed. Their arguments are that this would eliminate the need for a Ministry of Information, which had been a “publicist policeman,” and the idea that a legal framework for media functioning can be provided through other legal documents, above all laws on enterprises, labor, government, etc. Those who oppose this view point out that laws in legally regulated states are not necessarily restrictive, and that they also guarantee certain freedoms and rights. They also admit that the media should not be “above the law” and they say that even the poorest law is a better framework than anarchy. Advocates of this argument do not reject the possibility that many aspects of work of the media and journalists can be regulated by other laws, but they wonder why all these relevant provisions should not be comprised in a single act. Existence of a ministry is not essential. But there should exist some kind of administrative body which would at least keep a record of newspapers and broadcasters, and its job would be to prevent usage of identical titles for newspapers, provide transparency of financing, prevent cacophony on the air, etc.

Democratic transition starts with respect for different interests and standing in their defense. Because of that, this dilemma should be resolved during this process. However, what cannot escape attention is that authority of sanctions should defend several principles, which we shall point out, in the spirit of the rule of law, backed by the state as a service for citizens, not something usurped by political parties.

It is true that the media and journalists can themselves determine the limits of freedom of their work through statutes and codes that they pass. Self-regulation “relieves” legal substance and prevents politics from again entering the media domain through a “small door.” A large number of provisions from all earlier laws on public information could be regulated in statutes of media enterprises and codes. But for them to become norms and for the “rules of the game” to be respected, they must be backed by authority and sanctions of those who pass self-regulations. It is precisely these subjects that are missing in our environment. Before introducing self-regulation, owners of the press, old and new, must associate in one or more differently profiled business associations. Only their code, with state help or without it, could discipline the press even without special laws.

Embryos of such associations already exist in the broadcasting field (ANEM, Spektar, Associated Radio Stations of Serbia, of Vojvodina, etc.) which, each for itself or altogether, can set down rules for advertising, political election propaganda, enforcement of copyrights and related rights, regulating piracy, etc. The same is true of journalist associations and societies (according to territorial, professional or other principles), which should make sure that codes of professional ethics are passed and adhered to. For all public media, in particular the national broadcasting system, the statute is the first letter of the “law.” It could greatly relieve the Law on Broadcasting or help to abolish it and, in its place, in the spirit of European solutions, to pass a law on telecommunications. For, a clear division of wireless, cable and digital transmission of information, entertainment and education – meaning broadcasting and online media – can no longer exist. We will show later on that this would end the need for a law on broadcasting and radio-television.

 The Role of Journalists and Journalist Associations in Media Transition

As we have seen, the above sketched courses that can be taken to regulate the legal and business environment for the work of the media do not require the existence of a ministry of information. The suggested changes would disempower it to a large degree even if it were to remain in function. However, more important than this issue is to regulate, in the spirit of the rule of law, all other social sub-systems whose influence flows over into the public sphere. Therefore, for courts to operate independently, for financing of political parties and their pre-election activities to be transparent, for the political factor to disappear from the economy and not to control that part of profit which is directed towards the media for advertising and other services, for monopoly not to be maintained over materials necessary for the work of the media (newsprint, printing houses), for the executive power to fall under the control of the legislative power, etc. If these fields are transformed in the direction of democracy, media transition will also be speedier, with media workers having the last say in this process.

This would, at the same time, be the first next step to be taken by professional associations and syndicates of journalists. Existing organizations have been forced by the circumstances to be too politicized and have taken on some tasks that belong to other subjects, especially political parties which exist in order to exercise legislative authority. The number of these organizations is unimportant, but it should be taken into account that their power depends on the size of their membership and amount of money in the striking fund. Meanwhile, with divisions along the lines of political engagement, criteria for joining the journalist profession have been neglected. Even in normal conditions, journalism is a so-called “soft” profession compared to other, highly specialized professions such as law, medicine, etc. Simply, licenses or a state exam cannot be required for being a journalist. But this is no reason to allow just anyone to become and remain a journalist.

Professional organizations themselves cannot specify minimum education required for this job or verify professional capabilities. Responsibility for non-professional journalism, which results in specific social damage (fatal ideologies, inflammatory language, warmongering propaganda, etc.) remains. The judiciary is responsible for grave violations and internationally inadmissible forms of propaganda, abuse of position and fraud. Journalist organizations can comb out and rehabilitate their ranks only if they define clear criteria of professional ethics. This includes verification of professionalism in relation to using entertainment and cultural programming as instruments, as well as the issue of open liaison with sponsors and donors for certain editions and programs. It is to be expected that under changed conditions, with a smaller number of autonomous media in a ruthless market-driven match, competition among journalists themselves will suddenly increase. It will yield a new generation of journalists, selected according to skill, not according to certain privileges or inflicted injustice, as has been done up until now.

 The Rights and Responsibilities of Journalists – Basic Principles

Society is able to limit the scope of its intervention in the media field by way of laws. In this regard, two important principles should be legally protected. First, that journalists cannot be called to responsibility and compensation of damage if they express value judgments, their own opinions or comments. This by no means frees them of responsibility for unverified claims or incorrect information. Second, that journalists are not obliged to disclose their sources of information. This helps to sharpen the critical cutting edge of investigative journalism. However, criminal acts must also be specified, of which journalists, if they have any knowledge of their preparation or execution, must warn the responsible bodies so that such acts can be prevented. Only if journalists fail to do this can they be punished, even with a prison sentence, like all other unconscientious citizens. No words need be wasted on the argument that official sources of information must be open to all media and journalists under equal conditions – this has become almost an axiom.

It is true that in many countries only independent, regular courts are in charge of protection of privacy and identity of people. There is no law. However, one forgets that these countries have the so-called common law system, i.e. precedental law, which means that courts pass judgement according to a precedent until the last constitutional-judicial resort overrules it. This is why no one denies the need to legally regulate protection of the individual, who is weaker than a medium, in different legal systems. If this is done through the Penal Code, there is no place in it for finer gradation as to who is the individual seeking protection. In a specific media law, statute or code, the following important restriction may be placed: This principle shall be implemented in the case of holders of public office in the same way as in the case of ordinary citizens, because it would make abuse of power easier for them. However, on the other hand, not all actions of public figures in their personal lives should “feed” media sensationalism, media blackmail or political defamation. And since it is precisely sensationalism and “infotainment” that will become trumps in the market-driven match, we cannot count on self-restriction of media and journalists to be an efficient means of upholding this principle. Fines remain the most efficient means for restricting sensationalist appetites, which can be very painful in market-driven conditions.

Finally, the back side of every media organization as a public institution and mouthpiece of public opinion is that it is also a business enterprise. It is clear to everyone that autonomy of journalists even in the most autonomous enterprise depends on the conduct of its owner. It is, hence, necessary for the legal media framework work to provide transparency of their financing, and to prevent underground liaison with groups that possess money, or do not use it in an entrepreneurial way, or in general interest. A law on media or law on foreign investments – it does not matter which – must take a stand on foreign investments in domestic media. Foreign investments have up until now been restricted to 49 percent. This principle has protected the cultural identity of the media and the specific characteristics of mass culture created by the media. This principle does not clash with European understanding of “independent” media, because money is also a carrier of political influence and control. Ultimately, this principle would become irrelevant in the process of harmonization and association with the European Union because it would have to be abolished for investors from this integration due to higher norms (convention) on free flow of capital.

In passing regulations, it is of utmost importance to guarantee transparency of financing in order to prevent possible processes of media concentration and centralization. Most journalists should stand behind this principle because it would help to prevent their exploitation. Practice so far has shown that, wherever money flowed in through clandestine channels – whether from the state and political parties or from foreign donors – it usually ended in the hands of the newsrooms’ “trustworthy core.” The lowest echelon of journalists, especially part-time and freelance associates, have never had any insight into financing and they were impoverished, while these “cores” easily became wealthy.

In the field of broadcasting, which is presently ruled by “Wild West” laws, “status quo ante” should be started with. The only radical cut would be to revoke all present licenses and start allocating them from scratch. Regulation of technical parameters for the work of broadcasters is still a state task in the whole world. States coordinate this task mutually as well, because the alternative would be chaos or cacophony. In Serbia even this aspect of essential control is abused for political purposes and used as a means of rewarding or punishing the media. Despite this, or precisely due to this, an impressive internal and external piracy has developed, and unintentional – but also intentional – internal and external jamming of broadcasters has also been done. International law must be called upon against jamming from abroad. But for imposing order in the national airspace, domestic legislation is in charge.

Only if status quo ante is applied can planned distribution of licenses and airwaves be carried out, because voluntarism has been reigning in this field up until now. Procedure would be carried out on the principles of maximum transparency and fairness. This task would be taken out of the hands of the state, government or ministries, and handed over to a new body or enterprise, which would be motivated to make the most advantage of this internationally recognized, natural commodity (radio frequency spectrum). The state would then only be the final guarantor that decisions passed by such a body would be implemented. The allocation task is primarily a technical task, but the opinion of other relevant users of the frequency spectrum such as the army, police, air navigation, and so on, would first have to be obtained and their interest taken into account. An independent body in charge of license allocation, in the interest of increasing revenue from this public commodity, would try to please the maximum number of users. This can be achieved by limiting broadcasting power and directing antennas, or through shared use of the same frequency, time lease, etc. License users must have maximum insurance that they will work under their conditions over a longer time period (up to 10 years). The conditions may change only under circumstances known and announced beforehand.

Use of airwaves as a natural commodity should be considered as concession allocation, which means that it would have to be paid for. An exception may be those broadcasters which are founded as public, non-profit foundations (civil society media), or as a means of access to the public arena for minority groups (ethnic, cultural, handicapped, etc.), which are in social interest and socially accepted. The concession fee depends on the size of the “market” competed for – as an ethnic, regional, local or “positively discriminated” broadcaster. In order to prevent monopoly, restrictions regarding maximum number of the same kind of concessions or their combinations may be placed upon owners.

 Ownership Transformation as a Priority

However, for the normative framework to function, an ownership transformation and definition of investment rights, not founding rights, in the media must unfold parallel with it. This would finally clear up the “muddy waters” in media financing, without which market-driven competition cannot be entered and the media sphere cannot be regulated independent of daily political events.

The strategy of transforming power into ownership was a step back because it put many media back into state hands. A step forward would be to end this form of ownership through a real and fair privatization process. It should be openly admitted that media privatization processes undertaken up until now have been fictitious. Founding rights and employee privileges were invested instead of fresh money. The consequences, therefore, are very serious. The fate of earlier “privatized” media – “Nasa borba” and “Studio B” – are paradigmatic in this regard. Only media that have had clear owners and their capital from the start cannot change their status by quasi-court decisions that suit the will of socially powerful groups, mainly political ones.

A broadcaster as large as RTS must become a public corporation, tasked with performing the role of a public service for all citizens. Due to this, it may continue to be financed from public revenue (subscription fee), with maximum rationalization in doing business. This means reducing the number of radio and television channels and employees. Local broadcasters in municipalities can be transformed in three directions. Those that make sufficient revenues may be reregistered as limited liability companies. Local authorities will only have some influence on them equal to their previous investments or amount of donations, which will be expressed through the number of their representatives in steering boards. Complete privatization of local broadcasters of this type is also possible if there are any interested financiers who will offer fresh capital. Those who cannot expect to survive from their own revenues, but still do not want to continue to be financed from the municipal budget, have a third option: To become public, non-profit foundations of the local authorities and citizens, and open society media – the so-called third sector. A non-profit character does not mean that they would work for free, but only that profit would not be placed above the interests of the local community and citizens. Private owners of national and local radio and television channels would face verification of status according to new rules of the game regarding allocation of concessions, conditions of financing, and forms of association.

The situation is relatively more clear in the press, in which privately owned media already now prevail. The biggest daily “Politika” is formally a stock company. However, since the biggest stockholders are the state and banks, it will change its ownership structure together with transformation (privatization) of these stockholders. They will most probably decide whether to maintain or withdraw their investments from a.d. “Politika” following their own transformation. There is a whole series of papers of public significance which cannot survive only following the rules of the market because it is too small for them. That is why a policy of direct state intervention may be applied on them that would not clash with European standards because it defends press pluralism.

 Conclusion: Finally Without Golem?

If the media in Serbia do not want to work in the shadow of some political Golem in the future – which can be found even in the most democratic states – they must enter the transition process systematically, starting with establishment of a normative framework and resolving property and legal status. A normative framework implies regulation as much as self-regulation. Resolving the property and legal status means a radical ownership transformation through real privatization of media organizations, which means investing fresh money, not founding rights. Does this mean that after such a “spring cleaning,” all media will automatically become free, independent and professional? Of course not, because a spring cleaning is only an essential, but not sufficient condition for media to come out of Golem’s shadow. But only after a “spring cleaning” does the decision on coming out of the shadow become a decision for the media themselves – not for Golem.

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