OSCE Media Freedom Representative Désir recommends further improvements to laws on online media in Albania, in latest review sent to authorities
VIENNA, 9 December 2019 – The OSCE Representative on Freedom of the Media, Harlem Désir, sent a legal review to the Government of Albania on the latest amendments to the Law on Audiovisual Media in Albania and the Law on Electronic Communications.
This legal analysis is part of a long consultation process between the Office of the Representative and the government during the drafting of the legislation. “I appreciate the long and constructive co-operation we have established with the authorities of Albania during the drafting process of the new amendments to the law on Audiovisual media,” Désir said.
In particular, the Representative welcomed the addition in the law of a strong safeguard, on which his Office had insisted, which states that: “No provisions in this law shall be interpreted in such a way as to accord the right to censor or restrict freedom of expression, or the right to speak out. This law shall be interpreted in accordance with the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied in the case law of the European Court of Human Rights”.
The Representative noted that the last versions of the draft also incorporate a new wording of the provisions which define the object and scope of the law. These new provisions make clear that the law applies only to audiovisual media services and electronic publications providers. Moreover, following the previous consultations with the government, the current draft amendments clearly state that electronic media providers will not be submitted to a compulsory registration mechanism to perform their activities in Albania, but only to a voluntary one.
“This is an important step forward,” Désir said. “It was also important to ensure that the regulatory agency, the Audiovisual Media Authority (AMA), will not have the same competences on the content of online publication as the broad competences it currently has on broadcasting systems. In that regard, I take note of the decision to suppress former article 132/1, in line with our expert recommendations, which would have granted AMA extensive new powers that could have had an impact on freedom of expression.”
The possibility of blocking access to online content will now be limited to three grave “criminal offenses: child pornography; promotion of terrorist acts; breaches to national security”. The legal review nevertheless recommends replacing “block access to the Internet” with “order the takedown of a specific piece of content”.
However, based on the legal analysis the Representative recommended several additional modifications to be incorporated in the current draft, so as to clarify safeguards to freedom of expression and avoid any risk of undue restrictions or sanctions on electronic media providers.
“It is paramount to introduce a provision that guarantees that all of AMA’s decisions can be appealed before the competent judge immediately after their adoption,” Désir said.
“A second important point regards the issue of fines in case of breaches of the law. Article 133 keeps referring to very high, and excessive, economic fines in cases of contraventions. Such fines could lead to the closure of media and be seen as indirect pressure. In line with the principles of proportionality and necessity, sanctions should only be adopted after proper consideration of the size and economic capacity of the media in question. This article should be amended.”
Furthermore, the references to “political belief” and “union membership” should be removed in article 33/1 which relates to racism and discrimination, as they could be used to prosecute legitimate, even harsh, criticism against political groups and ideas. Possible specific abuses in this area can be properly solved using the provisions and mechanisms already in place in the area of defamation, and adjudicated by the judiciary.
Finally, as already raised in the previous legal analyses, concerns remain about the powers granted to Electronic and Postal Communication Authority (AKEP) in the proposal to amend the Law on Electronic Communications, regarding the adoption of measures to protect a wide range of interests, including the country’s interests, public security, fundamental rights and any provision included in the Albanian legal system. These notions remain too broadly defined and do not include specific rules on how to ensure protection for freedom of expression. This is why the legal review recommends amending the related article of the draft law.
“I hope that the draft amendments will continue to be improved during their examination in parliament, including by taking into account public consultations with civil society, journalists’ associations and media actors,” noted Désir. “Much will also depend on the implementation of the new legislation. It is important to ensure that the regulatory agency, AMA, can perform its competences and duty in a fully independent manner, free from any kind of political interference. My Office and I will monitor it with careful attention.”
The legal review was prepared by Dr. Joan Barata Mir, an independent media freedom expert, in co-operation with the human rights and media law expert Peter Noorlander, as a follow-up to the previous legal analyses that the Office of the Representative on Freedom of the Media published on 11 July and 23 July (see: https://www.osce.org/
The full text of the new legal review is available here: https://www.osce.org/
The OSCE Representative on Freedom of the Media observes media developments in all 57 OSCE participating States. He provides early warning on violations of freedom of expression and media freedom and promotes full compliance with OSCE media freedom commitments. Learn more at www.osce.org/fom, Twitter: @OSCE_RFoM and on www.facebook.com/osce.rfom.