A story by CINS which was publicized on April 9, 2019 focuses on the findings of a report by a service of the Regulatory Body for Electronic Media (REM). According to the information, the REM Supervision and Analysis Service found that Pink TV and Studio B violated the rules during the 2018 campaign for the local election for the Belgrade City Assembly. However, according to this information, the REM Council ignored the findings of its own expert service and did not make any decisions in the cases where legal violations were detected. After the article’s release, the REM Council denied the authenticity of the findings and conclusions of its expert service, while CINS pointed out that it could not reveal its source of information and called on REM to publicize all of its documentation “from the moment when complaints were submitted to the moment when the REM Council sessions were held,” as well as transcripts or audio recordings from the REM sessions, which did not happen. REM publicized a report by the Expert Service, which it claims is the original (for one of the cases described in CINS’ story).
A Longer Presentation of the Journalistic Story
The CINS article presents suspicion that the REM Council during the 2018 Belgrade election sided with the broadcasters which aired reports favoring the ruling Serbian Progressive Party, i.e. which led campaigns against the opposition and independent observers of the election process, by not penalizing them in line with applicable regulations. According to these allegations, the REM Council did all this contrary to the findings of its own Supervision Service.
Pink TV led a campaign against journalist Tamara Skrozza, which can be linked to her position in the Center for Research, Transparency and Accountability (CRTA) NGO. The attacks began a day after the publication of a CRTA report that highlighted the favoring of the authorities in the Belgrade election relative to the opposition. The television aired the feature, but did not air CRTA’s statement on the occasion and then, a few days later, released a response to the statement.
According to CINS’ claims, in its report the Service concluded that Pink TV had deliberately shortened Skrozza’s statements on Vučić, so that their context would not be understood and that she would be depicted as biased. According to the same source, the television denied Skrozza and CRTA the right to be heard, put parts of the organization’s press release in an ironic and demeaning context and did not clearly separate facts from opinions and comments. The REM Council, the CINS article says, reviewed these reports at four sessions and made a decision not to launch proceedings against Pink TV, but without providing any explanation.
The REM Service reports quoted by CINS also point out other transgressions committed by televisions ahead of the 2018 election. At the time, both Pink TV and Studio B reported negatively on the main opposition candidate for Belgrade mayor. According to the findings of the Service, in both cases the televisions violated the Rulebook on Human Rights and the Rulebook on Obligations of Media Service Providers During Election Campaigns, but those violations went unpunished.
Complaints by 750 citizens against Happy TV and Prva TV, for airing a Serbian Progressive Party spot outside of election campaign, in which actors playing Dragan Đilas and Vuk Jeremić take money for protests from a tycoon, met a similar end (dismissal). An appeal for the Culture and Information Committee of the National Assembly to review REM’s work was not accepted either.
The journalists recall that the REM Council recently abolished the Rulebook on Obligations of Media Service Providers During Election Campaigns and that it is working with six instead of nine members. In the words of a former REM Council member, this body lost its independence when it did not punish the televisions Pink, Happy and Studio B for a live broadcast of the assembly marking the seventh anniversary of the founding of the Serbian Progressive Party. The article also mentions the “written warning” to Pink TV for broadcasting live 24 minutes of Aleksandar Vučić’s speech during an election campaign, as part of its news program.
In relation to the issues covered by this article are the Public Information and Media Act, the Electronic Media Act, the Advertising Act, the regulations adopted on the grounds of said laws, and acts regulating the work of the Regulatory Body for Electronic Media itself.
How the Work of Media Service Providers Is Checked
Oversight of media service providers is regulated by articles 24-32 of the Electronic Media Act (Official Gazette of RS, No. 83/2014 and 6/2016).
The Regulator (Regulatory Body for Electronic Media, REM) checks the work of media service providers “as regards the consistent implementation and enhancement of the principles whereon the regulation of relations in the area of electronic media is based, as regards the meeting of conditions for providing media services, as well as in fulfilling other obligations of the service providers under the provisions of this law and bylaws.”
The Regulator is obligated to take particular care that media service providers respect the obligations pertaining to program content envisaged by this law and the terms under which their licenses were issued, which particularly pertains to the type and nature of the program.
The Regulator “takes the prescribed measures without delay.” That means, among other things, that the Authority initiates proceedings before a competent court or other state body against a media service provider or responsible person, if their action or inaction had the characteristics of an offense punishable by law.
Article 25 stipulates that the Regulator adopts rulebooks, instructions and recommendations for more effective implementation of the laws, and explains what each of these acts regulates.
Article 26 regulates the review of complaints. All natural persons and legal entities, including media service providers, may file a complaint to the Regulator regarding the program contents of media service providers, if they believe said contents offend or jeopardize their personal interests or general interest. The deadline for filing a complaint is 30 days as of the first or repeated broadcast of the controversial content.
Once it has received and reviewed a complaint, the Regulator delivers it to the media service provider which broadcast the controversial content, with a request that the MSP issue a statement on the complaint within eight days. The obligation of delivery is not foreseen in the event that in REM’s opinion a complaint does not indicate a violation or endangerment of the rights or legal interest of the complaining party. Mechanisms designed to protect the complaining party are not prescribed either. Once it has determined that a complaint is justified, the Regulator imposes measures contained in the law or files a request for launching misdemeanor and criminal proceedings or for initiating other proceedings before a competent state body. REM also instructs the complaining party how they can exercise and protect their rights.
Article 27 regulates REM’s cooperation with state and other bodies and organizations.
Article 28 provides measures which REM hands down to the media service provider. They include warnings, a temporary ban on the airing of program content, license revocation due to the violation of obligations pertaining to program content (related to articles 47-71 of the law, or related to the terms stated in the license or permission given). The document underlines that the Regulator imposes measures regardless of whether the injured party will also use some other forms of legal protection.
When imposing measures, the Regulator is obligated to respect the principles of objectivity, impartialness and proportionality. During the procedure, a media service provider must be allowed to state its position on the facts that served as the occasion for initiating the procedure.
A mild warning is given to the media service provider that has violated an obligation. A more serious warning is issued when the violation in question is severe. A temporary ban on airing program content is handed down to the media service provider that has committed a particularly severe violation of an obligation.
When imposing these measures, the Regulator particularly takes into account the level of responsibility, the manner in which an obligation was violated, the motivation behind the violation, the level of endangerment or violation of a protected good, the severity of the consequence caused by the violation, the frequency of repetition of the action, the circumstance that a media outlet was handed down a measure earlier, and the conduct of the media service provider after the violation.
In the decision on handing down a measure, the Regulator explicitly states the obligation that was violated and orders the taking of measures toward remedying the violation.
A temporary ban on airing program content is placed for 30 days as of the date when the decision on the measure became final, especially keeping in mind the frequency of broadcasting parts of the program content the providing whereof constituted the violation of a particular obligation.
The measures imposed are documented in the Media Services Register, but warnings are deleted two years later, after which they can no longer be taken as an aggravating circumstance.
As regards the existence of a criminal offense, economic offense and violation, as well as responsibility for them, REM is bound by a court verdict that finds the defendant guilty.
Article 31 regulates the manner of imposing of measures and allows for the stipulation of more detailed rules as to the manner of their imposing.
Article 32 provides the option, but does not prescribe the obligation for the Regulator to revoke the license of a media service provider which, despite the warning given, i.e. the temporary ban on airing program content, continues not to implement provisions of this law or regulations based thereon, or not to respect the terms envisaged by the license, or which does not act according to the measures for eliminating the violations identified by the REM council.
Rulebook on the Manner of Imposing Measures
The Rulebook on the Manner of Imposing Measures, adopted in March 2015, envisages that proceedings may be initiated ex officio or upon receipt of a complaint. Where launching proceedings ex officio is concerned, the Regulator does so “based on a justified report noting a violation of obligations pertaining to program content, regulated by articles 47-71 of the law, or a violation of the terms contained in the license or permission for providing a media service.” This provision is incomplete in terms of who can file the report. The REM Council probably had reports by its Supervision Service in mind.
As for launching proceedings upon receipt of a complaint, the Rulebook, besides reiterating legal provisions, also prescribes the content and method of filing. Thus, a complaint is filed in writing and contains the following:
1) full name of the media service provider whose program content the complaint pertains to;
2) date and hour of airing of the program content the complaint pertains to;
3) allegations that offend or jeopardize the personal interest of the complaining party or general interest;
4) first and last name and address of the natural person, i.e. name and head office of the legal entity filing the complaint, and
5) signature of the natural person, i.e. signature of the authorized person and stamp of the legal entity filing the complaint.
Complaints must be filed on a prescribed form, handed directly to the Regulator or sent by mail, fax or e-mail.
Upon receipt, the Regulator ascertains whether the complaint is timely and complete. The Rulebook states a difference in further conduct depending on whether the complaint points to the violation of an individual right or general interest. In the former case, the complaint is delivered to the media service provider, while in the latter the Regulator itself takes the claims made in the complaint into account when considering whether to launch proceedings ex officio. With this provision, the Regulator cites Article 114 of the General Administrative Procedure Act (Official Gazette of FRY, No. 33/97 and 31/01, and the Official Gazette of RS, No. 30/10) which is no longer valid.
This difference could lead to failure to launch proceedings upon receipt of a complaint for the sake of protecting general interest, if the Regulator does not agree with the opinion of the complaining party.
The Regulator carries out a procedure in which it determines all the crucial facts and circumstances relevant to decision-making. The media service provider in question is invited, along with being delivered a report (again, it is not clearly stated what report is being referred to), to a session of the Council at which the imposing of a measure will be discussed, for the purpose of stating its position on the facts relevant to decision-making. If the procedure was launched on the grounds of a complaint over offending or endangering personal interest, the complaining party is invited to the Council session along with a representative of the media service provider. During the procedure, the Council may also question the complaining party. Both the media service provider and the complaining party may also submit a written statement to the Regulator by the date of the session they have been invited to. The session may be held in the absence of regularly invited media service providers or complaining parties.
The Rulebook states that the types of possible decisions include suspension of procedure, rejection of a complaint as unfounded or the imposing of a measure. The decision on suspension is made when the Regulator’s Council, “after the procedure initiated based on the report,” determines that the media service provider did not commit a violation. When a complaint is filed for offending or jeopardizing personal interest, and the Council finds that the violation was not committed, it makes a decision whereby it rejects the complaint. This decision (unlike the one on suspension) must be justified and is delivered to both the media service provider and the complaining party. The Rulebook also supplements the law as regards the content of the measures imposed. It stipulates that the enacting terms of the decision shall state: 1) the title of the program content whereby the media service provider violated an obligation; 2) the date and time of airing of the controversial program content; 3) provision of the regulation stipulating the violated obligation; 4) the measure the media service provider is obligated to take for the purpose of eliminating the violation of the obligation; 5) the text of the imposed measure which the media service provider is obligated to publicize in its program, and which is published in daily newspapers; 6) the media service providers’ obligation to publicize the text of said measure; 7) the media service provider’s obligation to submit a recording of the program in which the defined text was publicized; 8) the media service provider’s obligation to publish the text of the imposed measure in a daily newspaper distributed in the area covered by the media service provider’s broadcasting license, as well as the obligation to submit a copy of the daily newspaper in which the text was published.
How the Work of the REM Council and Expert Service Is Regulated
The bodies of REM are the Council and the president of the Council. REM has the following powers:
1) defines a draft strategy of radio and audio-visual media services in the Republic of Serbia and delivers it, abiding by the legally determined procedure, to the government for adoption;
2) adopts the Statute;
3) enacts general bylaws foreseen by the law;
4) issues licenses for providing the media service of television and the linear media service of radio;
5) thoroughly regulates the procedure, terms and criteria for issuing licenses pursuant to provisions of this law and stipulates the form and content of the license;
6) issues permissions for providing a media service by request and thoroughly regulates the procedure of issuing permissions;
7) manages the Media Service Register and keeps records of media service providers by request;
8) oversees the work of media service providers and ensures that provisions of this law are consistently implemented;
9) imposes measures on media service providers in line with this law;
10) sets rules which are binding for media service providers, especially those ensuring the implementation of the Strategy of Development of the Media Service of Radio and Audio-Visual Media Services in the Republic of Serbia;
11) decides on complaints regarding the program activities of media services providers;
12) thoroughly determines the logical numeration of channels;
13) provides an opinion to the competent state bodies as regards accession to international conventions pertaining to the area of providing media services;
14) provides initiative for the adoption and amendment of laws, other regulations and general acts for the efficient performance of tasks under its jurisdiction;
15) defines detailed rules pertaining to program content, in relation to the protection of personal dignity and other personal rights, the protection of minors’ rights, prohibition of hate speech etc.;
16) conducts analyses of the relevant media market, in collaboration with the body competent for the protection of competition, in line with the methodology defined by the act adopted by the Regulator;
17) investigates the needs of media service users and protects their interests;
18) cooperates and coordinates with the body competent for electronic communications and the body competent for the protection of competition, as well as with other regulatory bodies in accordance with this law;
19) incites the preservation and protection of the Serbian culture and language, as well as the culture and languages of national minorities;
20) incites the improvement of media service accessibility to persons with disabilities;
21) incites the development of creative work in the fields of radio, television and other audio-visual media services in the Republic of Serbia;
22) incites the development of professionalism and high level of education of electronic media employees in the Republic of Serbia, as well as the enhancement of editorial independence and autonomy of media service providers;
23) other affairs in accordance with the law.
The Council, among other things, adopts the Statute of the Regulator, the Council Rules of Procedure and other general acts of the Regulator. These acts are adopted by a two-third majority of votes of the total number of council members (i.e. by at least six votes, regardless of whether all nine members of the Council have been appointed. The National Assembly gives its consent to the Statute of the Regulator.
The Electronic Media Act states that “an expert service of the Regulator is formed for performing expert and administrative tasks, the basic organizational rules and work method whereof are provided by the Statute.”
At the session held on October 30, 2014, the Council adopted the Statute, which was forwarded to the National Assembly for approval in line with legal procedure. As the National Assembly did not consent to the Statute, the Regulator applies provisions of the RRA broadcasting agency Statute and acts on systematization and internal organization. In line with the current Rulebook on Systematization and Internal Organization, the executive director performs tasks under the jurisdiction of the Council president regarding management of the Expert Service and the Agency’s operation in the event of absence and inability of the Council president, i.e. deputy president, as stated in the Fact Sheet.
The Regulator’s Expert Service comprises the Council Office, General Affairs Service, Legal Service, Supervision and Analysis Service and Financial Service. The organizational units are headed by chiefs.
The Supervision and Analysis Service organizes, gathers, systematizes and analyzes data on broadcasters’ programs, ensures that general program standards are met and conducts oversight of broadcasters’ operations for the purpose of checking the implementation of provisions of the terms under which a license was issued to a broadcaster. The Supervision and Analysis Service performs the following tasks: enters data on a broadcaster’s program; classifies programs according to predefined parameters; checks whether broadcasters are fulfilling the obligations defined by the Broadcasting Act, Advertising Act, Broadcasters’ Code of Conduct, recommendations, instructions and generally binding instructions; puts together periodic reports which are submitted to the Council; analyzes the programs of bearers of the public broadcasting service as regards the fulfillment of their obligations in realizing general interest; prevents the broadcasting of programs containing information that instigates discrimination, hatred or violence. The Supervision and Analysis Service analyzes broadcasters’ programs according to all parameters and criteria stemming from the legal and program obligations of broadcasters, and analyzes, prepares and makes comparative and other reports on broadcasters’ programs based on provisions of the Broadcasting Act, Broadcasters’ Code of Conduct, Advertising Act, as well as recommendations, instructions and generally binding instructions of the Council. The Supervision and Analysis Service draws up an independent justified report whereby it notes that a broadcaster has violated the Broadcasting Act, Advertising Act and regulations adopted by the Agency. The Supervision and Analysis Service acts on applications and objections related to broadcasters’ work, and submits justified reports to the Council. This Service creates a quality, accurate, verified and reliable database on broadcasters’ programs, based on which complex analytical and comparative reports on broadcasters’ programs are made. This organizational structure overview was provided in line with the current Statute and Rulebook on Internal Organization and Systematization. “Updates and harmonization with the new Statute and general acts will be carried out immediately upon receipt of consent from the National Assembly.”
As one can conclude from this description, the rules of organization of the REM Service are outdated and do not fit the current legal situation, i.e. environment in which this body works. However, due to similarities between the legal competencies of RRA and REM in the previous Broadcasting Act and current Electronic Media Act, as well as due to the similarity of the terms used (e.g. supervision/control, broadcaster/media service provider), the Service still has grounds for action.
Implementation of Rules by REM in This Particular Case and Potential Points of Contention
Determining whether the REM Council violated the law when it found there was no room for launching procedure against Pink TV, Studio B TV and others in the specific cases mentioned in the CINS article goes beyond the scope of this legal analysis.
The key point of contention regarding the main news story is whether the REM Council took a decision that was contrary to the findings of the body’s expert service, and whether it was obligated to explain that deviation. Since there is currently no way of checking the authenticity of the Supervision Service’s findings, which CINS had access to, nor checking entire minutes or audio recordings of the particular REM Council session, both possibilities must be taken into account – that the expert service found that the broadcasters had violated the law, which the REM Council ignored, or that the Council confirmed the findings of the Service, according to which there had been no violation of the law.
According to the law, complete responsibility for detecting potential violations of the law by media service providers lies on the Regulatory Body for Electronic Media (as a whole), while the responsibility for imposing measures belongs to the REM Council. That means that the Service’s findings are important, but not crucial for the content of a decision, because it is made by the REM Council with the prescribed majority of votes. Hypothetically speaking, the REM Council could – and that would be in line with legal provisions – make a decision completely contrary to the findings of the expert service. In reality, the situations in which REM is to justify its decision would be a problem.
Things, however, become more complex when provisions of the Rulebook are taken into account, too. Namely, this bylaw, adopted by the Regulator’s Council itself, stipulates that the procedure for imposing measures ex officio is launched “on the grounds of a justified report.” Since the report being referred to is probably the one by the expert service, the conclusion can be reached that with this bylaw the REM Council “tied its own hands,” waiving the ability to launch proceedings ex officio based on an initiative by members of the REM Council itself.
The quoted provision of Article 3 of the REM Rulebook on Imposing Measures may also be the cause of a dispute on the authenticity of the REM Service report. Namely, the report referring to the Pink/Skrozza/CRTA case concludes that all the citizens’ complaints pertain to a possible violation of general interest rather than their own personal interests. While the Electronic Media Act mentions the initiation of proceedings based on complaint review (Article 26, paragraph 4), without distinguishing between violations of personal or general interest, the REM Rulebook, in Article 5, paragraph 3, speaks only of taking these complaints into account during the possible launch of proceedings ex officio for the purpose of protecting general interest.
With these provisions of the Rulebook in mind, the opinion of the expert service becomes more important. If the Service’s opinion from the “report” is negative in terms of existence of violation of the law, then no procedure is launched, either ex officio or on the grounds of a complaint. When the Service’s findings on legal violation are positive, then the REM Council must at least discuss at a session whether to launch proceedings ex officio.
This case points to the harmful consequences of non-conformity of provisions of the Rulebook on the Manner of Imposing Measures on Media Service Providers with the Electronic Media Act. Those harmful consequences are particularly noticeable in the narrow understanding of the purpose of applications pertaining to violations of general interest and the absence of possibility of leading proceedings on applications by such individuals in the event that the REM Service does not confirm the existence of rule violations.
The CINS article raises many other questions which were not analyzed in detail here. The primary question is REM’s transparency of work. This body publicizes a large number of documents, but not information on actions regarding complaints (which used to be publicized), while the reports on the work of broadcasters/MSPs during election campaigns are much narrower than they were during the election processes monitored by the previous Serbian Broadcasting Agency. Besides, as stated in CINS’ article, REM did not hand the journalists a portion of the data requested, including audio recordings or transcripts of its sessions. The practice of unveiling data of that kind did not exist in past years and compositions of this body, even when there was great interest in that.
The rules pertaining to MSPs’ conduct during election campaigns have been withdrawn for the time being. We would like to point out that the previous text of those rules should have been improved conspicuously, for which Transparency Serbia presented concrete proposals in the course of 2016. Also, the general advertising rules which apply to advertising during election campaigns are largely unsuitable for these ads.
No less important is the fact that REM’s status still has not been regulated by legal provisions (for the fifth consecutive year), nor has the process of forming the Council been completed.
REM’s controversial conduct following citizens’ complaints against the violation of general interest by electronic media during the 2018 election campaign, addressed in the CINS story, was partially caused by provisions of a bylaw adopted by the REM Council as regards the imposing of measures on media service providers. These rules have shrunk the possibility of citizens’ effecting the initiation of proceedings against TV and radio stations which violate rules, which are not sufficiently elaborated in the Electronic Media Act itself.
The insufficient transparency of certain aspects of REM’s work, especially regarding the non-existence of the practice of proactively publicizing the findings of the Supervision and Analysis Service of this body, diminishes the possibility of the citizens’ gaining confidence that all reported violations of general interest will be investigated and fuels suspicion of selectivity.
Although the Regulatory Authority for Electronic Media itself needs to enhance the rules, comprehensiveness and efficiency of its conduct regarding political advertising and the conduct of MSPs during election campaigns, a solution to that problem must primarily be sought in specifying legal norms, especially as regards the behavior of public officials during election campaigns and the media presentation of their activities.
The rules of organization of the REM Service are outdated and do not fit the current legal situation, i.e. environment in which this body works. However, due to similarities between the legal competencies of RRA and REM in the previous Broadcasting Act and current Electronic Media Act, the Service still has grounds for action. The incompleteness of RRA’s transformation into REM after the adoption of the Electronic Media Act, which has been going on for five years now, as well as the incomplete makeup of the body’s Council, also make the implementation of regulations under the jurisdiction of this institution difficult.