05. 05. 2010

ANEM PROPOSAL FOR THE CREATION OF SUPPORTING MEASURES FOR THE MEDIA SECTOR DEVELOPMENT

Advocating for the improvement of the overall media situation and representing the interests of its members, ANEM has prepared a proposal of basic assumptions for creation of supporting measures for the media sector development, in cooperation with law office "Zivkovic&Samardzic". ANEM finds it is still necessary for the Government to introduce measures so as to improve the media situation. Considering that the last year's Government measures to assist the media in the condition of crisis failed to reach the expected results, resulting in a continued decline of the media system in 2010, the Government needs to introduce new measures in order to prove it has understood the severity of the problems the media are facing and that it will do everything necessary to improve their situation. On April 16, 2010, ANEM submitted its written proposal to the Ministry of Culture.

The essence of ANEM proposals is the following:

I              DRAWING UP THE MEDIA SECTOR DEVELOPMENT STRATEGY - The Media sector development strategy is a vital precondition for the further development of the media and must be passed without further delay; simultaneously with the preparative activities undertaken by the Ministry of Culture in cooperation with the European Commission Delegation in Serbia, the Government needs to hold an urgent meeting with the representatives of the media sector and agree upon the tasks, time frame, principles and values that must be upheld in the area of information; the Government also needs to appoint the members of the working group; pending the adoption of the Strategy, all legislation pertaining in any way to the media - especially media laws - must be tabled for public debate, with the participation of the media sector and members of the working group, in order to avoid passing regulations that would be out of sync with the basic pillars of the future Strategy.

II            PUT A STOP TO UNLAWFUL BROADCASTERS - The issue of unlawful broadcasting need to be addressed urgently and Government measures to that end would provide an additional boost; pirate broadcasters are committing criminal offences provided for by Article 149, paragraph 2 of the Criminal Code of the Republic of Serbia (unlawful obstruction of or interference with radio and television broadcasting) and Article 353 of the Criminal Code (unlawful activity for the performance of which a permit of the competent authority is required under the law or other regulations adopted on the basis of the law); therefore, the regulatory authorities need to be ensured the appropriate support of the Ministry of Interior and the competent prosecutors' offices, including the criminal prosecution of unlawful broadcasters and temporary seizure of unlawful broadcasting equipment as the object for the commission of the criminal offence, namely as objects that may serve as evidence in the criminal proceedings; the competent authorities also need to identify and penalize cases where unlawful pirate broadcasting is funded from the budget, or where budget funds are spent on advertising and purchase of time slots on pirate media.

III           LOWER BROADCASTING FEES AND PROVIDE EQUAL FEES FOR PRIVATE AND STILL UNPRIVATIZED STATIONS - With a consistent application of the Broadcasting Law, the RBA fee must be reduced so as to enable the independence and financial autonomy of that regulatory body, namely to a degree that would allow it to cover its real expenses and mandatory reserves for carrying out its tasks; any surplus from the collected fees must be repaid to the broadcasters so as to enable their development; moreover, the privilege of municipal and city media of not having to pay the broadcasting fee must be revoked, since the deadlines for mandatory privatization have long elapsed;  the above will, along with the stipulation of fees for cable broadcasting, contribute to a justified increase of RBA income, which must inevitably result in a considerable reduction of the fees that commercial broadcasters pay for their broadcasting rights; the privileges of municipal and city stations to pay lower fees to collective organizations for the protection of copyright and related rights, as if these stations were public services - which they are not - are absolutely legally unfounded and hence need to be scrapped.

IV           FINALIZE THE MEDIA PRIVATIZATION PROCESS - The Government needs to secure, as soon as possible, the finalization of the privatization of public media, particularly since the conditions have long been met for revoking the broadcasting licenses of unprivatized media; if the state is intent on supporting the public service status of these media, although they are not meeting the preconditions for enjoying that status, citizens need to be told how much they need to pay for this and how; they need to be told what mechanisms will guarantee full-fledged managing, editorial and content independence of such media, as well as how they will be accountable to the public.

V             EDUCATION AND FINANCIAL SUPPORT OF THE STATE FOR TRANSITION TO DIGITAL BROADCASTING - The Government, namely the competent ministry, needs to elaborate on and implement the appropriate mechanisms for informing and educate local and regional media and local self-government about the digitalization process, the challenges, costs and activities they will be facing; mechanisms need to be identified for helping the media addressing the obligations entailed by digitalization; the new emission company needs to be urgently provided conditions - through staffing and other appropriate ways - for becoming functional and empowered to tackle the challenges of switching to digital broadcasting; all these measures are necessary for the transition to digital television broadcasting scheduled for the April 4, 2012, to take place on time and be adequately prepared and for all players in this process to be able to timely undertake the necessary activities and implement the required changes; however, all that is threatened by the delay in the state's activities in fulfilling its commitments under the Action Plan.

VI           FINANCING FROM THE BUDGET, ADVERTISTING IN THE PUBLIC INTEREST AND ADVERTISING OF PUBLIC COMPANIES - The co-financing of public information from the budget, which is, under the current regulations, the obligation of the state and local self-government, needs to be regulated with the aim of allotting these funds in a public, non-discriminatory and objective procedure; for the time being, this is being done in a way that is discriminatory against commercial media and favoring state media, which means that the media are under constant threat from being manipulated for the petty interests of local and minority oligarchies; furthermore, the campaigns of the Government, ministries and other state authorities to promote various socially beneficial activities or for pointing to or addressing social issues or themes need to be intensified; the said campaigns also need to be funded in a transparent, non-discriminatory and objective way, which principally concerns the advertising of public companies, since the omission of advertising from the public procurement regime has opened the way to potential manipulation.

VII         A MORE LIBERAL ADVERTISING LAW AND MORE PRECISE BYLAWS PENDING THE ADOPTION THEREOF - Restrictive advertising regulations and the inadequate interpretation thereof are a serious hurdle for the development of the media market, so consequently, the new Advertising Law needs to contribute to overcoming the legal gap and to the harmonization of existing rules from this area with the European standards; at issue is also RBA's supervision of the application of advertising rules and the Agency's capacity for this task, which also entails the adoption of adequate measures; pending the adoption of the new Advertising Law, it must be insisted on the separation of the accounts of the Public Services' revenues and expenditures in order to know what exactly is funded from the subscription fee and what is funded from other sources; it must be defined a clear and logical set of advertising rules that all electronic media, including the Public Service, must adhere to, which must be passed by the Republic Broadcasting Agency; this also entails a consistent application of legal restrictions imposed upon the Public Service (six minutes of advertising per program hour, as opposed to six minutes of advertising per program hour on each network), as well as consistent monitoring of the compliance with such rules and with the restrictions imposed upon the Public Service concerning the sale of advertising time in advance and the sale of advertising time to one person or a group of connected persons; the aim of all the above measures should be to fully realize the function of the Public Service, as well as to develop the advertising market and have fair competition in place.

VIII        AMENDMENTS TO THE LAW ON PUBLIC INFORMATION - The Government may demonstrate its good intentions (if any) for the media sector by proposing amendments to the Law on Public Information to the Parliament, even before the pending decision of the Constitutional Court is delivered under the request for the assessment of the constitutionality of last year's Law on the Amendments to the Law on Public Information; the said Law contains an array of controversial provisions and threatens freedom of expression to such an extent that it is an obstacle to establishing confidence between the media and the Government; apart from having been criticized by the media sector, the provisions of the Law have been denounced by the Ombudsman, who launched an initiative for the assessment of the constitutionality thereof;  the said controversial provisions of that Law, which are not in line with the Constitution: a) stipulate that only a domestic legal entity may establish a public media outlet; b) prohibit the transfer and disposal of the right to a public media or the right to publish a public media; c) provide for a ban on the publication of a public media that is not registered in the public media register and impose a fine for commercial offence where the said ban is not complied with; d) provide for commercial offences, although a violation of public information regulations is not considered as a commercial offence under the applicable law and they also provide for fines exceeding the highest amount of fines for commercial offences; finally, these fines are laid down in a manner that is not in line with the Law on Commercial Offences.

IX           THE LAW ON UNLAWFUL MEDIA CONCENTRATION - The Law on Media Concentration and Transparency of Media Ownership needs to be adopted; a good starting point could be the Draft adopted back in 2008 by the Ministry of Culture's working group, but the said Law should be conformed to the new context of switching to digital radio and television broadcasting; although the concentration of ownership does entail some positive aspects, the above mentioned Law should introduce certain restrictions;  the aim of these restrictions is to prevent that several media owners or media groups find themselves in the position to abuse political pluralism and the democratic processes in society, so as to steer the public discourse imposing the themes as they see fit, shaping the public opinion in the process; the existing rules do not regulate this matter adequately and that is why this Law is needed; it should also regulate the matter of media ownership transparency, as a necessary prerequisite for addressing media concentration, since the latter remains inadequately regulated by the existing laws.

X             ALIGNING OTHER REGULATIONS WITH MEDIA LAWS - Regulations, which are contrary to the Law on Public Information and the Broadcasting Law and which have contributed the stoppage of the process of mandatory media privatization and prevented that a functional media market be established, need to be aligned with media legislation. At the same time, media legislation should be aligned with the European legal framework and particularly with the Directive on Audiovisual Media Services; the latter should be particularly borne in mind in the current drafting of new regulations - the Broadcasting Law and the Advertising Law.

XI           SECURING RESOURCES FOR THE CO-FINANCING OF PROJECTS IN THE AREA OF INFORMATION AND AFFORDABLE LOANS FOR SUPPORTING THE MEDIA - The Government needs to provide the Ministry of Culture with additional funds from the current budget reserve, which will be intended for the co-financing of projects from the area of public information. At that, these funds do not have to be disbursed under the code 221 (trade in services), because they do not pertain to services and because the recipients of these funds are VAT taxpayers. The latter, together with these recipients' obligatory share, significantly reduces the incentive potential of such a measure. The manner of disbursing these funds to the media must be transparent, non-discriminatory and objective. On top of the said resources, the Government needs to provide generally more affordable conditions for extending loans to the media.

At the meeting of ANEM representatives with Assistant Minister of Culture for the media, Natasa Lesendric-Vuckovic, held on May 4, 2010 in the Ministry of Culture, all ANEM proposals from this letter were discussed, along with how to process the same as quickly as possible. The conclusion was that most of the measures proposed were addressed in the future Media Sector Development Strategy, to be formulated by mid-July.  It was also concluded that the proper way, and also the quicker one,  to put the said recommendations into effect was the participation of ANEM in round tables organized by the OSCE as of May 24, where it would have the opportunity to present and defend its positions as described hereunder. The goal will be to have these positions incorporated in the Strategy, whereas the typical procedure would require more time and obtaining the opinions of all relevant ministries. The parties agreed that everything else that would ultimately remain outside the Strategy might be subject to further discussions. In that respect, since the Strategy might not concretely solve the problem of broadcasting piracy, ANEM forwarded on that same day to the Assistant Minister of Culture its letter sent to the Minister of Internal Affairs dated on February 2, 2010, which contained a proposal to effectively address this issue, with the participation of the Ministry of Interior and the competent prosecutors' offices, in order for the Ministry of Culture to join these activities as well and contribute to faster dealing with unlawful broadcasters.

ANEM will keep on advocating for improvement of media situation and represent the best interests of its station through activities aimed at adoption both of Media Sector Development Strategy and other measures needed for media problems solving and media reforms continuation. In all these activities ANEM will stand for all its principles contained in above proposal of basic assumptions for creation of supporting measures for media sector development.

ANEM proposals (only in Serbian) are available here