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Transparency Serbia: Unpunished Violations

30. Apr 2019.
The Center for Investigative Journalism of Serbia (CINS) is publishing a legal analysis conducted by the Transparency Serbia organization, which is based on our findings presented in the article headlined REM’s Concessions to Televisions to the Detriment of Children

A CINS article publicized on March 27, 2019 tackles the phenomenon of televisions, including free-to-air ones, to broadcast content that might be harmful to minors without the appropriate rating. According to the article, the REM software has over the course of three years registered at least 1,000 violations by televisions in labeling the age group for which a TV program is designed. These reports did not result in the punishing of media service providers. The reason for irregular rating is commercial by nature, the option of airing a movie with inappropriate content before midnight, when it can count on more viewers. Also, in many cases the misdemeanor proceedings launched end by exceeding the statute of limitations, because REM initiates them months after the violations in question.

According to a report by REM, many televisions mislabeled film and other content, and the article listed several specific examples. Having looked at the misdemeanor proceedings resolved between 2015 and the end of 2017, CINS realized that proceedings were launched due to unpermitted advertising, but that REM also had specific data at its disposal on violations of the regulations pertaining to the protection of minors. Namely, once it has initiated court proceedings, REM submits to the court monitoring for the month in which the violations occurred, which clearly shows which articles of the law were violated and how many times. REM also submits a report containing a detailed description of the violation for which it is launching the proceedings, often with accompanying photographs. The journalists noticed that the monitoring had identified violations which were absent in subsequent reports.

Software solutions have enabled the monitoring of violations of these rules since 2011. On the other hand, in the words of a former REM Council member, as of 2015 violations were tolerated, with the explanation that the obligation in question was a new one.

From 2015 to the end of 2017, REM submitted 181 requests for initiating misdemeanor proceedings, according to data from a Belgrade court. Of that number 112 cases were solved, taking into account that some of them had been bundled. More than two thirds of the cases exceeded the statute of limitations, or judges dismissed requests for the proceedings. According to the claims made in the article, REM often launched proceedings nine or more months after a violation, while in some cases it took the court several months to award a case to a judge, so that the trial court start. The absolute statute of limitations ran out two years later. When launching proceedings, instead for each one individually, REM launched proceedings for bundles of several hundred violations by the same TV station, which the former REM Council member explains is due to a deficit of employees.

 

Relevant Legal Framework and Its Implementation in Examples from the CINS Article

The relevant legal framework for reviewing the facts dealt with in this story are the Public Information and Media Act, Electronic Media Act, Advertising Act, the regulations REM passed in order to implement these legal norms, regulations pertaining to the internal work organization in REM, and the Misdemeanor Act.

The norms of relevant regulations that were not covered in the analysis titled Findings of REM Service’s Supervision and Their (Non-)Use will be presented here.

 

Misdemeanor Penalties in the Electronic Media Act

The Electronic Media Act regulates economic offenses and violations, as well as the penalties handed down by a court. It should be recalled that, aside from these, there are also measures which may be imposed on media service providers by the REM Council.

Economic offenses are stated in the form of hefty fines in the event of providing media service without a license (Article 107). A fine of between 100,000 and one million dinars is set for the legal entity in a Media Service Provider (MSP) which fails to act according to a warning from the Regulator in the procedure of determining the existence of a violation of media pluralism (Article 108). The same fine is set for the legal entity – operator in Article 109.

For legal entities, violations are stipulated by Article 110 in a narrow range (1:4 as opposed to the usual 1:10) of between 500,000 and 2,000,000 dinars. A fine is handed down if a legal entity: 1) fails to act in line with provisions of this law as regards the prohibition of hate speech (Article 51); 2) fails to act in line with provisions of this law as regards obtaining prior consent from the Regulator related to a change in ownership structure (Article 78, paragraph 3).

Somewhat milder, but with an even smaller range (from 500,000 to 1,000,000 dinars) are fines for a legal entity if it: 1) fails to act in line with provisions of this law as regards special technical obligations (Article 48); 5) fails to act in line with provisions of this law as regards the protection of minors (Article 50, paragraph 3 and Article 68, paragraphs 1, 2, 6, 7, 8, 10 and 11); 7) fails to act in line with provisions of this law as regards special obligations of operators of electronic communication networks for the distribution of media content (Article 100).

In all of the aforementioned cases, penalties are also provided in a smaller range in cases where the perpetrator of a violation is an entrepreneur, as well as penalties for the responsible person in a legal entity.

 

Misdemeanor Penalties in the Advertising Act

The current Advertising Act provides numerous violations for which media service providers may also be handed down fines. The range of the fines is much bigger here than in the Electronic Media Act – from 300,000 to 2 million dinars. It includes violations of the rules banning the advertising of certain persons, goods, services and activities, rules banning the incitement of discrimination, rules banning the incitement of endangerment of health and safety, rules banning deceptive advertising, native advertising, advertising without a label identifying the advertising message, comparative advertising, incorrect advertising of sales incentives, hidden phone tariff, protection of minors, abuse of inexperience, lack of knowledge and impressionability, protection of health and development, protection of the integrity of minors, advertising in educational institutions, advertising in electronic media, product marketing, TV and radio advertising, direct response TV, advertising of alcoholic beverages and tobacco products, games of chance, prize draws, goods and services that have health, healing or nutritional properties, advertising of opioids, pornography, weapons, direct advertising, sponsorship, failure to keep an ad for a period of 30 days, and failure to implement a decision made by a competent inspector.

Entrepreneurs and responsible persons in a legal entity are punished for the same violations, but receive milder penalties.

 

Rules Contained in the Misdemeanor Act

Can several misdemeanors be prosecuted in a single proceeding?

One of the controversial issues tackled by the CINS article is the launching of a single misdemeanor proceeding against a media service provider who has committed a large number of violations. The Misdemeanor Act allows that in Article 46. According to that provision, the so-called “extended violation” exists if the perpetrator “commits, with single intent, several of the same temporally-linked violations, which constitute a whole due to at least two of the following circumstances: sameness of the injured party, sameness of the subject of the violation, use of the same situation or lasting relationship, unity of place or space in which the violation was committed.”

This provision “may be applied only with violations the nature of which allows merging into one whole.” A violation causing damage to the non-substantive legal assets of a natural person or legal entity may be committed for an extended period of time only it has been committed against the same person. The violation not encompassed by the extended violation in a final court judgment constitutes a separate violation, i.e. is part of a separate extended violation. A penalty twofold higher the one provided may be handed down for an extended violation.

Cases where media outlets incessantly violate the law (e.g. regarding advertising) contain some of the elements provided in Article 46 of the Misdemeanor Act, primarily the perpetrator’s single intent – the intent to make more profit by violating the law. Oftentimes, albeit not always, these are the same violations, which constitutes one of the required elements. It also seems like the second condition required – unity of place or space in which the violation was committed – will always be met. On the other hand, the injured parties will only partially be the same persons (those who constantly watch a particular television’s program), so the fourth circumstance will not be present – the use of the same situation or lasting relationship. The existence of the two circumstances described provides sufficient conditions for holding a unified trial.

That will be possible whenever violations of the same kind end up before a court. On the other hand, courts should not accept a single request for launching misdemeanor proceedings in cases where a media outlet is violating the law on two grounds.

If a media violation causes damage to the non-substantive legal assets of natural persons or legal entities (e.g. honor, business reputation), case bundling would be allowed only if the damage was caused to the same persons, and one could expect exactly that to be the case. 

An extended violation should not be confused with the concurrence of offenses contained in Article 45, although the effects can be equal. Namely, concurrence pertains to the situation in which the violator by one or more actions commits several violations, which they are tried for simultaneously. Then the penalty for each of those violations will be defined first, after which a single penalty will be handed down.

A single fine cannot be bigger than the double amount of the biggest fine envisaged by this law. Since the general maximum fine for a legal entity is 2 million dinars, this single fine cannot exceed 4 million.

 

Statute of Limitations for Launching and Conducting Misdemeanor Proceedings

Article 84 of the Misdemeanor Act envisages that misdemeanor proceedings cannot be launched or conducted if a year has passed as of the time when a violation was committed. The statute of limitations is interrupted by each process action taken by the competent court to conduct the misdemeanor proceedings, and after each interruption the statute of limitations resumes. The absolute statute of limitation runs out once double time has passed.

The Misdemeanor Act has left the possibility of a longer statute of limitations for violations in certain areas – up to five years. Those violations are in the areas of customs, foreign trade, foreign currency operations, public revenue and finances, public procurement, trade in goods and services, the environment, prevention of corruption, and air traffic.

As the statute of limitations related to violations committed by media service providers is frequently exceeded, it would be appropriate to consider a supplement to the Misdemeanor Act and media regulations so that this also allows for conducting proceedings after more than two years have passed.

 

Is REM the Only One Who Initiates Misdemeanor Proceedings?

According to the Misdemeanor Act, there are always several authorized initiators of misdemeanor proceedings. Article 126 states the possibility of proceedings being initiated by the person whose personal or property rights have been breached or jeopardized by the violation. An injured party who is a minor but over the age of 16 may request the launch of misdemeanor proceedings on their own.

The injured party has the right to do the following, on their own or through their legal representative or proxy: 1) submit and represent a request for launching misdemeanor proceedings; 2) present evidence, put forth proposals and file a legal request for damages or return of items; 3) appeal the verdict, i.e. the decision made regarding their request for initiating misdemeanor proceedings; 4) present evidence based on which the court may order the defendant not to come near the injured party, facilities or the site of the violation during the misdemeanor proceedings.

If the public prosecutor drops the request, proceedings may continue at the request of the injured party or other organ.

Article 127 establishes rules for the situation in which the public prosecutor acts as a party to the proceedings. The public prosecutor with local jurisdiction does the following: 1) takes measures to discover, find and obtain the evidence necessary to prosecute the perpetrators of the violation and successfully conduct misdemeanor proceedings before a court; 2) files a request for initiating misdemeanor proceedings, an appeal or extraordinary legal remedies against the court’s decisions; 3) takes other actions for which they are authorized under this law and special regulations. Their actual jurisdiction exists if they have filed a request for the launch of misdemeanor proceedings. If the public prosecutor drops the request, the proceedings may continue by request of the injured party or other organ.

Although they are always authorized to initiate misdemeanor proceedings, public prosecutors very rarely do so. The reason for that is a staff deficit and the existence of other competent bodies, which is why they favor conduct aimed at discovering and preventing criminal offenses, even when they receive information that a misdemeanor or violation was committed.

That is why other competent bodies play a key role in initiating misdemeanor proceedings. Those other competent bodies are designated either explicitly or implicitly in the laws prescribing misdemeanors. Thus Article 179 of the Misdemeanor Act states that a request for launching misdemeanor proceedings is filed by a competent body or the injured party. The competent bodies are “bodies of the administration, authorized inspectors, the public prosecutor and other organs and organizations, who exercise public powers and whose jurisdiction encompasses direct implementation or supervision of implementation of regulations envisaging misdemeanors.”

So, Article 76 of the Advertising Act stipulates the powers of (market) inspectors in conducting oversight, as well as REM’s rights in conducting oversight under its jurisdiction. Among other things, paragraph 2 explicitly prescribes REM’s authority to initiate misdemeanor proceedings against the conveyor of an advertising message (media service provider) and “notify the competent body if there are reasons for taking measures towards the advertiser.”

The Electronic Media Act is nowhere near as clear. It mentions (Article 26, paragraph 4) the possibility of REM, having reviewed a complaint, filing a request for the launch of misdemeanor proceedings. However, no such provision exists where the launch of misdemeanor proceedings ex officio is concerned!

REM’s authority could be drawn from the fact that REM, as an organization exercising public authority, conducts oversight of implementation of the Electronic Media Act. However, things get complicated again due to the fact that this law does not use the term “oversight,” but rather check (“8) checks the work of media service providers and ensures that provisions of this law are consistently implemented; ). Although it is not known that misdemeanor courts have ever disputed REM’s authority for initiating misdemeanor proceedings ex officio, it would certainly be useful to eliminate that possibility by making the law more specific.

Based on the aforementioned, the conclusion can be drawn that REM was not the only one who could have initiated misdemeanor proceedings against media service providers. The basic public prosecutor in Belgrade could have done that, and before that any citizen (including minors over the age of 16) who believed that their rights had been endangered by the illegal conduct of the media (e.g. as regards wrongly rating the age-appropriateness of content).

On the other hand, misdemeanor courts could not act against media service providers solely based on the fact that material indicating other violations had been attached to the request for initiating misdemeanor proceedings. Things would not have changed much even if convictions had been handed down in proceedings covering several hundred violations, because the penalty measures for another several dozen or several hundred violations probably would have remained the same.

 

Is There Accountability for Failure to Launch Misdemeanor Proceedings or for Delays?

All the laws prescribe the launch of misdemeanor proceedings as an option rather than an obligation for the bodies. That means REM, as a body, is not obligated to initiate proceedings for every violation of the law under its jurisdiction either. However, failure to launch misdemeanor proceedings, the same as any other action ex officio, if proven to have been done intentionally, for the purpose of benefitting a media outlet that violated the law, may constitute malfeasance.

That criminal offense would have to be individualized, it probably would not be easy to prove, and both REM Council members and Service employees could be held accountable for it. For example, for the criminal offense of dereliction of duty contained in Article 361 of the Criminal Code the person held accountable is “the public official who by violating the law or other regulations or general acts, by omitting the duty of oversight or in another way apparently acts unconscientiously when performing office, even though they were aware or were obligated and had to be aware that the result may be a more severe violation of the rights of another or damage to property, and such injury, i.e. damage in the amount of over four hundred and fifty thousand dinars does indeed occur.”

The key points of distinction between the situation in which REM simply lacks capacity and consequently does not launch misdemeanor proceedings fast enough and the situation in which there is a criminal offense, are both objective and subjective. The objective circumstance is the existence of knowledge that violations were committed (e.g. the Supervision Service delivered its detailed report to the REM Council, but no further steps were taken in the matter). The subjective circumstance is the intent that is to be proven – to benefit a media outlet or damage the budget by not initiating proceedings. The “subjective – objective” circumstance is the practice of conduct – whether REM is equally late in initiating misdemeanor proceedings and whether it has the same reach, regardless of which media violated the rules.

In any case, the situation presented in the CINS article points out the need for a change. Probably the easiest and most logical measure would be to enable and obligate the REM Service to file requests for the launch of misdemeanor proceedings, in short and regular intervals, and to inform the public about them.

 

Main Conclusions

The CINS story about failure to initiate proceedings for certain media violations despite their being detected by the REM expert service, as well as about the large number of misdemeanor proceedings past the statute of limitations, raises numerous questions about the work of this regulatory body. After this article, REM should present complete data on its conduct, so that the public may be assured that conduct is equal in equal circumstances.

Also, this article creates the need for REM to speak about its capacity to increase efficiency in launching misdemeanor proceedings, given that the software at its disposal enables the identification of more violations than are actually brought before a court. It would be logical to authorize and obligate the REM Service to initiate misdemeanor proceedings in regular and short intervals, which will be presented to the public and the media. Prescribing that obligation would significantly increase legal security, diminish suspicion of arbitrary conduct and eliminate the situation in which the media against which proceedings were not launched enjoy privileges and reap illegal benefits relative to their competitors, against which proceedings were launched in time, especially relative to those who abide by the law. If REM believes that the penalties facing media service providers are too high and for that reason avoids initiating a larger number of misdemeanor proceedings, then it should argue for reducing the amounts of the fines.

Besides that, the analysis identified the incompleteness of the legal framework regarding REM’s supervisory powers and capacity for launching misdemeanor proceedings, with norms of the Advertising Act being more complete than those contained in the Electronic Media Act. The issue that is particularly unregulated is the launch of misdemeanor proceedings when REM detects them ex officio (without a complaint).

Although injured parties may initiate misdemeanor proceedings in cases of violations of rules by the media, they do not exercise that right sufficiently. Implementation of the law would be greater if injured parties were given an opportunity to learn about cases in which they had been exposed to the violation of media regulations, through access to the findings of the REM Supervision Service.

The problem of the statute of limitations might be mitigated by implementing the Misdemeanor Act, but the primary attempt should be aimed at increasing the efficiency of REM and the courts, because fines handed down to MSPs lose their preventive effect if a lot of time has passed.

 


The story was produced within the project supported by the ‘Freedom of Expression and Public Informing’ Programme of the Open Society Foundation Serbia.

From November 2018 to September 2019 the work of CINS is supported by Sweden, within the Belgrade Open School program “Civil Society as a Force for a Change in the Serbia’s EU Accession Process.”

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