The new Audio-Visual Media Law, which is part of the “anti-defamation package” announced by Minister of Justice Etilda Gjonaj on July 3, expands the attempt of the Rama government to capture and control all online media.
The first version of this new law, presented in 2018 and which would allow the Albanian Media Authority (AMA) to shut down any website without court order, led to the protest of multiple local and international organizations.
Although the new draft law no longer allows the AMA to shut down a website, except in certain well defined cases, it at the same time casts a wider net. In a press conference last week, Minister of Justice stated clearly what the anti-defamation package is actually about:
Now it is known that one worry observed in our society is the real-time publication of fake news, which is transforming every day into a problem for the independence of journalists, the dignity of citizens, and family life. The absence of transparency of a number of online platforms, the absence of their registration as in every European state [sic!], have been the reasons to review the existing legal framework with the aim of the prevention and reduction of the negative effects that misinformation and the publication of fake news cause society.
The registration of portals first of all serves the transparency about media owners, the avoidance of conflicts of interest, improper influence of political actors, guaranteeing the independence of journalists, and the pluralism of the media.
This obligatory registration, which contrary to the claims of Minister Gjonaj is unheard of in the rest of Europe, is reflected in art. 54 of the Audio-Visual Media Law:
The Register of Media Service Providers is a national register where providers of audio [and] audiovisual services and providers of electronic publications are registered.
Possibly aware of the fact that the government cannot force all “electronic publication service providers” (OShPE) publishing news on Albania to register in this national register, the law explicitly covers not only media registered in the Register of Media Service Providers, but any electronic publication “operating” in Albania.
Art. 17/1. The Electronic Publication Service Provider (OShPE) is a physical or juridical person who, independently of whether it is registered or not as such in the Register of Media Service Providers, offers electronic publication services, as defined under point 26/1 of this article.
In order to “capture” any OShPE, whether registered or not in Albania, the law casts a very wide net as to what it considers an “Albanian” OShPE. I translate here all the pertinent articles:
Art 30(2). A media service provider is considered in the jurisdiction of the Republic of Albania if:
a. It is founded in the Republic of Albania;
b. If it is not founded in the Republic of Albania but:
[…] iii. Uses a domain administrated by AKEP [i.e. a .al domain]
(3) A media service provider is also considered under the jurisdiction of the Republic of Albania if:
a. Its office or management structure is on the territory of the Republic of Albania and the editorial decision making is realized within this territory;
b. If its office or management structure is on the territory of the Republic of Albania, but its editorial decision making for media services is done in an EU country, the media service provider is assumed to be under the jurisdiction of the Republic of Albania, under the condition that the majority of the personnel engaged in media service activities operate in Albania;
c. If a considerable part of the staff engaged in media service activities acts in the Republic of Albania and an EU country, the media service provider is assumed to be located in the Republic of Albania if its headquarters are in the Republic of Albania;
ç. If a considerable part of the personnel [engaged] in media service activities operates neither in Albania nor in an EU member state, the media service provider is assumed to be located in the Republic of Albania, if its activity started for the first time in this country, in accordance with the Albanian legislation, under the condition that it keeps sustainable and effective relations with the Albanian economy;
d. Its main profitable interests are related to market actors founded according to the Albanian law or operate in the territory of the Republic of Albania;
dh. Over 50% of the users/followers/subscribers are residents in the Republic of Albania;
e. Its first publication toward the broader public happens in/about Albania.
As may be clear from this utterly exhaustive list, the government has tried to include any media outlet writing about/for Albania, with the exception, perhaps, of large international news outlets covering world news. So any news provider writing about Albania or in Albania, whether located inside or outside the country, with or without a .al address – as soon as anyone publishes considerable amounts text about Albania – are considered “under the jurisdiction of the Republic of Albania” and are therefore forced to register. This definition is of course bound to conflict with other jurisdictions in which these media outlets, possibly located in other countries, may legally operate.
The legal demands on OShPEs have been reduced considerably in this new draft law. Whereas the 2018 version demanded that electronic media outlets “secure that publications are shown in a true, impartial, and objective manner” and demanded that they “secure that the treatment of events, including issues that are themes in the public debate, is right for all interested subjects in these issues and is represented in a true and impartial manner,” thus basically imposing state control over the content of online media, the new draft has removed that language. Contrary to what Minister Gjonaj claims, there is no longer any reference to “fake news.”
Furthermore, whereas the 2018 draft law demanded the publication of the names and addresses of the journalists involved in the media outlet, thus significantly increasing the risk of personal attacks on journalists, the new draft law only requires the public of an official address of the media outlet.
One of the major problems with the 2018 draft law was the fact that it included the injunction that online news outlets should not “threaten the dignity and fundamental human rights of man,” thus offering a way to shut down media outlets simply by accusing them of slander. The new draft law expands this language, which will no doubt be abused by politicians and other officials to shut down media:
Art. 33/1(2). An electronic publication service provider should respect the privacy and dignity of the citizens […]
For example, when Albanian media publish more wiretaps showing former Minister Damian Gjiknuri or Prime Minister Edi Rama engaged in vote buying and intimidation practices, does that harm their “privacy and dignity”?
The 2018 draft law allowed AMA to block Internet access for 24 hours up to a week for infractions of the media law (such as harming a politician’s “human rights”). In the new draft law, this language has been removed. AMA is only allowed to block a website when it encourages criminal acts, distributes child pornography, or terrorist acts.
Thus, the new media law draft appears to have removed one controversial aspect, namely the capacity of AMA to shut down a website. At the same time, the law maintains the registration of online media outlets while at the same time claiming a much broader jurisdiction. It continues to provide ways in which politicians, public officials, businessmen, and other people often featured critically in the media are able to appeal to AMA, which in the end is still able to fine media outlets with fines between 100,000 (€820) and 1,000,000 lekë (€8,200).
The fact that Minister Gjonaj insists on calling this Audio-Visual Media Law part of an “anti-defamation” package, suggests these elements remain the core of this updated draft law, aimed not at the independence, but at the intimidation and silencing of journalists.