30. 10. 2014

TENTH ANEM MONITORING PUBLICATION PRESENTED!

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The event was attended by some 40 representatives of media/journalists' associations and media, NGOs, responsible authorities, judiciary, international organizations and donors, and other interested parties.

The round table was organized within ANEM project „Legal Monitoring of the Serbian Media Scene", successfully implemented for five years now. In 2014 the project is financially supported by Civil Rights Defenders and the Open Society Foundation, Serbia.

In the first part of the round table the Publication was presented by the authors: Slobodan Kremenjak, attorney-at-law (article: New Media Laws - Achievements and Future Challenges; Miloš Stojkovic from the law office „Živkovic & Samardžić", Belgrade (article: The Right to be Forgotten - Six Months of the Implementation of the ECJ Judment); Nemanja Nenadić, program director of Transparency Serbia (article: The Financing of Media); Siniša Važić, judge of the Appellate Court in Belgrade (article: Dilemmas Related to Recording and Releasing Footage from Criminal Trials). After the presentation of the articles, a discussion ensued on the issues covered in the Publication.

New Media Laws

Attorney-at-law Slobodan Kremenjak said that his article analyzed some of the key requests that media associations brought to the public debate about the adoption of the media strategy and the new media laws and that his conclusion is that a majority of these requests materialized in the new laws.

However, Kremenjak noticed a sort of a calm after the adoption of the laws. The associations have not clearly defined their further steps, although it is necessary to work on other very important issues considering that media laws are only a part of the framework for the functioning of media in a society. No matter how good media legislation is, Kremenjak noted, it is not enough to solve all the problems that media in a society face. He stated his wish that his article in the Publication be a sort of a call to renew the activities of the Media Coalition that successfully operated for several years on the changes of media regulatory framework, which brought about the adoption of new laws. It also showed that results can be achieved by clearly defining viewpoints and goals and persisting in joint endeavors.

Implemenation of the laws and defining the direction of the activities toward improving other elements of the framework for the functioning of the media in Serbia are very important in Kremenjak's view.  In his opinion, it is important that associations attempt to carve out systemic solutions that would enable better quality media and improved business environment for media industry where media currently operate with enormous losses.  

The Right to be Forgotten

Miloš Stojković from the law office „Živković & Samardžić" and a member of the monitoring team, spoke about the effects of the European Court of Justice ruling in the case Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, which pertains to so-called right to be forgotten. Stojkovic said that the ruling caused a turmoil in European countries as two human rights collided in it - the right to privacy, e.g. protection of personal data, and the protection of the right to free expression on the Internet. Stojković stressed that the right to be forgotten is not a new institute. However, the ruling of ECJ was the first time that such a high-level court regulates it. He explained that in European countries, particularly in France and Germany, the right to be forgotten has existed already, but it pertained to the rehabilitation of persons who served a prison sentence.

Explaining the case he analyzed in the article, Stojković said that a Spanish citizen requested that Google removes from its search results certain information about him, and that the information be removed from the newspaper La Vanguardia where it was originally published. Stojković noted as important that the judgment pertains to the old principle regarding personal data protection - as long as there is a consent by a private person for data processing, the data may be processed, but when the consent is withdrawn every data controller should cease processing the data. This was one of the grounds of the judment, as Stojković said, and thus the right to be forgotten was reaffirmed, e.g. the right that personal data, in this case the name and surname, be deleted from Google search results. The judgment did not interfere with the editorial responsibility of media, and thus it did not forsee the removal of the personal data from the article in La Vanguardia, Stojković explained. Moreover, the links are deleted under a geographical principle and hence they will be unavailable only on localized google services (such as those bearing the extension .uk, .es or .fr), while they remain available outside of the EU4.

Numerous organizations involved in protecting freedom of expression voiced their concern over this judgment, Stojković said. Their concern has been related to the issue of public interest and removing content from the Internet, e.g. from search results. Namely, there is a concern because Google, as a private entity, is in the position to assess whether the public has the right to know certain piece of information. As Stojković explained, the issue of public interest remains controversial in this judgment because the latter did not provide the criteria and it brought Google in the position to set them. Only some of the criteria that Google uses when excluding articles from its search results are known. They are used to assess whether information in question is in the public interest (whether the information concerns a public figure, whether it originates from reputable sources, whether it contains information on professional conduct relevant for the audience, and whether it pertains to a conviction in criminal proceedings).

Stojković also said that Google founded an Ethical committee to deal with the issue of public interest with respect to the removal of information from search results. The Committee comprises some well known individuals from the media industry, the field of personal data protection and freedom of expression - among them are an editor of Le Monde, former director of the Spanish regulatory body for data protection, and Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression.

As in some cases Google did not consult the media that originally published contentious information and it simply removed the information from search results, informing the media thereof, now large media lead a campaign with the aim to be consulted before such removal from search results, Stojković explained.

Finally, Stojković said the the ECJ judgment still does not pertain to Serbia - fortunately or unfortunately. Fortunately - because it would be problematic to have one more technological means of removing unpleasant articles from politicians' past in the state of fragile media freedoms in which we live, Stojković noted and expressed his hope that by the time Serbia begins to implement the right to be forgotten it will have a well-defined practice on this issue. Unfortunately - because the right to be forgotten entails an already high degree of media freedoms, while in Serbia we still deal with some basic issues related to, for instance, censorship, self-censorship, opaque financing of media etc, Stojkovic concluded.

Responding to the Stojković's presentation, Nevena Ružić from the Commissioner for Information of Public Importance and Personal Data Protection said that the key issue in the case analyzed by Stojković is whether Spanish Google was responsible or not, particularly because this search engine is not registered in Spain, but in the USA, and the question was whether the relevant directive related to a legal entity registered in the USA and whether such entity is a data controller. Ružić added that „the right to be forgotten" is now called „the right to be delisted" and it pertains only to the cases when the search is performed based on the name and surname of a person, and not based on some other personal data (such as nickname, place of birth, date of birth or a unique ID).

The Financing of Media

Nemanja Nenadić from Transparency Serbia talked about the financing of media starting from its importance for the citizens. If the basic premise is that the interest of the citizens, as media consumers, is to recieve complete, updated, objective information, then media financing is obviously a factor that can influence the selection of topics to be presented in the media, the extent to which individual topics will be covered, and the viewpoint during reporting, Nenadić said. The second reason why media financing is important for the citizens is the fact that some media are partially funded from the public budget, so the interest is obvious that we should get information on financing of media based on which we can form an opinion whether tax payers' money is spent in accordance with the law and the purpose for which it was earmarked, as well as in the most efficient way, Nenadić explained.

Nenadić then outlined different forms of media financing and some of the risks for the media independence related to them.

The first form of financing is direct payment by consumers (for example, financing newspapers from the sales) and it seems to be the model that carries the least risk for independence, said Nenadić. However, as he explained, this model does not necessarily mean that media will be independent because it is not only money that creates dependence. Media need information (that will be processed and presented to the audience) and the information is not always easy to aquire by regular means. What is more, the unknown information, that is not available to all, is particularly valuable for the media, and thus the newspapers can be sold with the help of information from the sources „close to the government" or „close to the investigation".

Media are also financed by advertising, where there is also danger to independence, Nenadić explained. The first reason is that advertisers are interested that their products, companies, business policy etc. is reported on in positive terms, or at least not in negative terms. This is where the danger arises of aspirations to buy not only media space, but also media information space. This is particularly visible in political advertising. The second factor that can significantly influence media independence is the lack of balance of forces in the Serbian market, in Nenadić's opinion, where the advertisers can condition the media by deciding not to place advertising in them. What additionally aggravates the fulfillment of the media independence is the role of an intermediary where the media are not dependent only on one large advertiser, but on all its partners and thus their reporting may hurt the interests of intermediaries, such as a marketing agency through which advertising is conducted.

Nenadić is of opinion that even donations, as a form of media financing, may influence media independence, primarily in the choice of topics to be covered, considering that in a certain period a certain topic can be „popular" with donors, which could lead to the media reporting about it more than they would do otherwise and neglecting other, equally important topics.

Financing by the state is usually considered the most problematic, Nenadić said and outlined the forms of such financing. Direct budgetary funding, the model that will be abandoned with the new legislative changes, has the gravest consequences for independence as it directly creates dependence; this mainly depends on the integrity of those leading media outlets, Nenadić said. The second form of budgetary financing is project-based, envisaged by the new media laws, where the risks are similar as in the case of donations - they pertain, primarily, to the choice of topics to be covered (what will be defined as a priority during a certain year, how much money will be earmarked for each of the public interests defined by the Law on Public Information and Media), but there are other risks, as well, Nenadić said. One of those is defining criteria for allocating funds. The law says that the criteria are defined for each individual call for proposals, so we still do not know what the criteria will look like. Nenadic expects this to be clearer with the adoption of a relevant bylaw and hopes that the situation will be avoided where different criteria are defined for each individual call for proposals. There are other forms of state aid, apart from budgetary financing - these are, for instance, financing in kind, giving preferential treatment for the import of raw material, lower taxes, debt reschedulling (a frequent form of state aid that is practically not subject to control). Also, another form of financing is when state institutions and public enterprises pay the media for services, such as advertising public procurement or property sale, which opens up numerous questions - e.g. what criteria should be used to choose a media outlet to advertise in (one could choose based on the lowest price, but it seems that it should not be the only criteria when deciding in such cases).

Nenadić said that bylaws are being awaited regarding media financing because the law left some issues unresolved. One of these is sources of media funding that are not public. Nenadic said that we now have a regulation that will introduce media ownership rules, so we will know who invested in a company that is a media outlet founder, but we will still not know who finances the media outlet. Also, the problems of buying media influence and complete lack of transparency of sources of income have not been solved. Additional problem are insufficiently developed provisions on the implementation of calls for proposals and that is where a bylaw can be very important - it should leave as little space as possible for various interpretations during its implementation, Nenadic said.

Recording and Releasing Footage from Criminal Trials

Judge Siniša Važić outlined the main points of his article in the ANEM Publication about dilemmas regarding recording and releasing footage from criminal trials. He first stated his position on the matter - that he supports releasing footage from criminal trials, although he bears in mind all the dilemmas and problems related to the topic. He then talked about the legislation that pertains to the matter, stating that there is also the issue of written consent which must exist before a footage from a trial could be broadcast. This written consent is „almost mission impossible", said Važić, because it has to be provided by all the participants in a court proceedings, and it is likely that one or more persons will not provide it. 

Regarding the influence of the media on the participants in a criminal proceedings, Važić stated as the essence of the problem the need of the legislators (if the latter decides to regulate this issue) to find the proper balance between undisputable and very important need to inform the public about the course and the content of court proceedings and the interest of the court proceedings, primarily its legality and efficiency.

As one of the problems regarding this he stated the possibility that witnesses who have not yet been heard in the proceeding may be in some way prepared for their testimony by watching the footage of the trial. They could adjust their statements, even unintentionally, by following the proceedings (the manner in which the questions are asked and what is required from the witnesses who already gave their statements). This affects the very essence of a trial, that is the proceedings and the parties in it, Važić said and added that those who are against recording and releasing footage from criminal trials say that in this way court proceedings are trivialized. The second argument against broadcasting trials is that attorneys, judges and prosecutors may become interesting to the public via media, which can influence their professional and personal life as they may become recognizable in the public, vulnerable and possibly succeptible to incovenient situations, including provocations and threats, Važić said.

One of the issues that ought to be solved, said Važić, is the issue of the choice of trials to be recorded and broadcast and the issue of who should make such a choice. He suggested one solution - that media outlets decide individually what trial is interesting for them. Another option is to include the public or a public body (which could be comprised of representatives of judges', prosecutors' and lawyers' organizations) in the selection of trials, with the presence of media outlets and with the help of independent media experts, Važić said.

Regarding the influence of the media on the public in the criminal proceedings, Važić said that the media are already present in court proceedings and they impart to the public what they hear and see there. The question is whether to curtail the possibility to those who were not present in the courtroom to hear and see the same as those that were present, Važić said. Is the unavoidable selection of information by journalists needed, and is it not enough to let cameras do that, he asked and gave the example of broadcasted parliamentary sessions where viewers often see as important information different than that reported by the media.

Recording and releasing court proceedings would make the work of the courts and judiciary on the whole more transparent and it could help assess the work of the judges, their conduct and attitude towards work; it would be a chance to acquaint oneself better with judiciary and judicial branch of government in general, which would make judiciary more understandable and accessible to ordinary citizens; this certainly has an educational element, Važić said.

As for the influence of the public on court proceedings and justness thereof, Važić said that the public can have a certain influence on court proceedings and that possible consequences regarding the legality and justness of court proceedings depend on many factors. The latter are, in his opinion, the number of reports on the court proceedings in the media, the degree of objectivity in reporting, statements by public figures, and especially politicians and political parties, particularly those in power, regarding a court proceedings. In the latter case, politicians or other influential public figures may state that a person is undoubtedly a perpetrator of a crime although only the charges have been pressed against the person or the investigation has only been initiated; they may also state that a court proceedings will be completed by a certain deadline. Such claims not only directly violate the presumption of innocence of the defendant, but may also undermine the lawfulness of the criminal proceedings.

The impression that the public may influence the course of the trials and the outcome thereof becomes even greater when the courts start making "expectative" rulings, after being exposed to justified and unjustified criticism (often inappropriate and containing foul language) in a situation where a decision adopted by the court is not "liked" by the public. These are typically decisions to release someone from custody, which are usually interpreted as freeing the defendant from all charges; or the decision to postpone a hearing or inappropriate commenting the severity of a prison sentence. The public typically looks for the reasons for such rulings and decisions in "illegal" and "unfair" views and conclusions of the court, explained as corruption, political bias of the judges, negligence and incompetence. The legitimacy of the courts' arguments is seldom accepted. The consequence is that the courts may begin to make decisions that satisfy the wishes and views of the public, primarily the "lay" public, while not excluding the "political public", Važić said. Naturally, the key element for concluding if such pressure really exists is the "degree of resistance" of the courts to such perceived or actual influences, Važić commented. It is easy to conclude that all the aforementioned actors of this important public work - the judiciary in particular, followed by the media and the politicians - must strengthen their professional capacity and integrity.

As for the trust in the work of the judiciary, Važić said that there is no dilemma that Serbian judiciary has been in a crisis for a while. One of important questions is to what degree citizens trust their judiciary, and the response is predictably unfavorable for the judiciary.

As one of the remedies that could boost the healing process and restore at least part of the trust in the judiciary is, in Vazic's opinion, the introduction of cameras in the courtrooms, namely the filming and broadcasting of certain trials. He is convinced that it would help the public get to know better not only the work of the courts and judges, but also prosecutors, attorneys, court experts, the police and various agencies and inspectorates; in a nutshell, all those appearing in court proceedings. It would be an opportunity to have better insight in their work and contribution to the successful completion of trials, Važić said.

Stating the examples of countries which allow recording and releasing footage from trials, such as the U.S.A, Canada, Australia, New Zealand and some European countries, such as Norway, Važić said that it would be good for Serbia to take a courageous step towards allowing cameras in courtrooms.  Pilot project and ensuing analyses could help us reach conclusions on such trials, he said and added that it presupposes a form of education of all participants in a proceedings, including media. He noted that there would be certain limitations because the trials would not be broadcast live, so the necessary trimmings would trigger the questions of bias towards certain party, but Važić is of opinion that such issues are to be dealt with on the go.

Finally, Važić said that trust in the judiciary and the rule of law is, after all, one of priorities on the road to the European Union and that nothing will build trust in the courts better than transparency and openness.

Judge Omer Hadžiomerović commented that direct broadcasting of trials is „naked" information, while the public requires added value to the information, provided by journalists who either posses their own knowledge to do so or they consult experts in order to present the information to the public that can help them see a broader context. He also said that it is not enough that the public watches a trial, it has to understand it. However, in practice, a viewer will skip some parts of the televised trial and will not understand the entire proceedings, said Hadžiomerović and addedd that he thinks that the media have a special role and importance in bringing the judiciary closer to the public and that there is a room for cooperation between the judiciary and the media regarding giving information to the media and educating journalists about trials. He emphasized the role of professional associations in this - journalists' and judges' associations. Replying to Hadžiomerović, judge Važić said that the question if the citizens will understand court proceedings well is valid, but that the essence of the matter is something else - whether citizens should have the right and the opportunity to be present at a trial since a trial is a general public good.

Dragan Kremer from the Open Society Foundation, Serbia, said that, from the contemporary view on the media, it is not about „broadcasting" the trials (because in this case we talk about traditional media), but it is about the access to information for the public. He said that it is not necessary to broadcast sessions of the parliament and thus „sacrifice" one channel of the public service broadcaster. Instead, the footage should be made available on the website of the Parliament, and the same goes for the courts. The footage could be examined by an expert body in order to remove information that could potentially harm the course of the proceedings. Websites could additionally feature court documents, interpretations, expert opinions, anything that is needed for ordinary citizens to understand trials, Kremer said and concluded that the media should report where reporting is allowed, but that courts should be modernized so as to provide access to information to the public.

Omer Hadžiomerović noticed that comparing the work of the parliament and the court is inadequate. As he said, the parliament discusses and adopts general acts that affect all citizens, while courts decide in specific cases. The public may be interested in a specific case for various reasons, but it does not mean that trials should be televised as a viewer cannot make conclusions based on simply viewing the trial, particularly when broadcasting is fragmentary. Thus, the public will again build the trust in the courts based on media reporting, said Hadžiomerović and added that we must ask why we wish to record trials. He expressed concern that we cannot have a clear answer at present; instead, the level of legal and political culture in Serbia should be raised before we can have it.

In the opinion of Nemanja Nenadić, if an event is initially public and if anyone, at least in theory, could have been present at it, there can be no reason that could justify depriving the person of such information later. He said that we can only discuss technical aspects of recording trials (where the cameras will be positioned, whether there should be one camera or more), but the issue whether trials should be recorded is beyond debate as it stems from the public nature of trials. However, he noted that there is the issue of whether something that was public once should remain public in the future because there is a serious collision of regulation in Serbia on the matter - the regulation pertaining to publicity of trials and that pertaining to erasing information from criminal records. According to Nenadić, it is impossible to join the two principles.

10th ANEM Monitoring Publication is published on the ANEM website and available here.

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The views presented at the round table are the sole responsibility of the authors and do not necessarily reflect the views of the Civil Rights Defenders.

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The views presented at the round table are the sole responsibility of the authors and do not necessarily reflect the views of the Open Society Foundation, Serbia.