Earlier this week, the Albanian government voted to pass two new laws that would essentially bring online media under state control. Against stern criticism from local journalists, local and international media organisations, human rights bodies, and political organisations, the Socialist Party majority voted in favour of the bill. Prime Minister Edi Rama then took to twitter to claim that the law was “100% agreed” by the office of Harlem Desir, the Representative on Freedom of the Media and the OSCE.
This is not true.
In an exclusive interview with Exit.al, Desir clarified his position and stated that there is still work to be done and improvements to be made. At no point did he give 100% support to the law and he told Exit that his office will be closely monitoring the implementation of the law as well as working with the government to further improve provisions within it.
Prime Minister Edi Rama has claimed that the “anti-defamation” laws that were passed in parliament are approved 100% by you. Is this the case?
As you can see from my statement on 17 December, I clearly indicated that there were improvements in the latest version of the draft laws compared to the previous ones, but that there was still work to be done, in particular on the level of the fines. I added that the application of the law must, in no way, impede freedom of expression and media freedom and that my Office will closely monitor this.
I am 100% ready to work with civil society and the government to continue to improve the laws, to resolve all remaining issues, and I will spare no effort in this endeavour.
Do you still have any concerns about the law that has been passed and do you think it still poses a risk to media freedom in Albania?
Yes, there are concerns.
Throughout the whole year, our legal experts have been addressing the problems and formulating recommendations to amend the laws. There were many issues of concern to us: these include a compulsory registration of online media; and a proposal to provide the regulator (AMA) with wide-ranging powers to suspend or block access to the Internet and electronic media on the basis of vague wording, such as “public moral” or the “dignity” of a person being affected by a publication.
It also imposed on the media an obligation to publish in a “realistic, impartial, and objective manner”, and AMA would have controlled this. AMA would also have been granted the competence of a tribunal in defamation cases, by having the power to impose an “apology formula” to online media. AKEP would have had competences on the content of electronic media publications.
All this was not in line with OSCE commitments and international standards on freedom of expression and media freedom. That is why my statements were very firm and severe, as is always the case in similar situations, irrespective of the government. Our assessments are based on the text of the legislation, or draft legislation, that we review, and the implementation of the laws.
We always offer assistance to governments to improve draft laws, if we consider that they pose problems to media freedom. That is what my Office has been doing since the beginning and until the last minute before the vote. We have worked to improve the draft laws and bring them in line with international standards and OSCE commitments. The latest draft contained many improvements when compared to the earlier versions.
Upon our request, a strong safeguard has been introduced 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”.
In addition, registration obligations have been eliminated and the possibility for AMA to take down content has been limited to three grave criminal offences: child pornography; promotion of terrorist acts; breaches to national security. Next, the references to “political belief” and “union membership” have been eliminated in the article that relates to racism and discrimination, as these references could have been used to prosecute legitimate criticism against political groups or ideas.
In addition, the regulation of the right to reply has been restricted, to avoid misuse; and, moreover, the possibility to appeal all AMA decisions and judicial oversight have been ensured; and a new attribution for AKEP to regulate content has been eliminated.
However, as I stressed before, we will have to continue to work on the reduction of the level of the possible fines. A sub-legal instrument should be discussed with the government, to ensure respect for the principle of proportionality as enshrined in international law.
Now that the vote has passed in Parliament, we will assess the version as adopted. We therefore do not consider our work to be finished. We are attentive to the remarks and concerns of civil society and media actors. Their mobilization shows their attachment to media freedom in Albania. Overall, we will closely monitor the implementation of these laws by the Albanian authorities. That is also why I stressed that it is important to ensure that AMA can perform its competences and duties in a fully independent manner, free from any kind of political interference.
During this week’s plenary session, Rama called journalists “illiterate” and “human rights abusers”, he also singled out some of the most vocal journalists who have opposed the bill and named them. What is the position of the Office on this matter?
Our position is, as always, that public figures should respect media professionals, their work and their right to fight for their rights. Public figures have to endure a higher threshold of criticism due to their public role in society.
Yesterday, your office supported a self-regulation platform in North Macedonia, whilst appearing to support state regulation in Albania- this has led to confusion from Albanians who cannot understand the seemingly contradictory approach. Can you please clarify?
I do not think that we have to oppose them in principle. Even in countries where there are a lot of mechanisms of self-regulation, there are also laws, regulators and judges to intervene in certain domains of media activities, or in the field of freedom of expression. This can even be necessary to protect freedom of expression and free speech, and this is also needed today to guarantee access to a free, open and secure Internet everywhere.
More self-regulation is desirable and can limit state intervention in many cases. It can also be supportive of the respect for ethical standards of journalism and strengthen the quality of information. However, self-regulation does not exclude the existence of legislation.
States also have concerns and responsibilities in such domains as the fight against terrorism, violent extremism, security and the fight against racism, antisemitism, certain forms of hate speech, especially online. Our role is both to encourage self-regulation initiatives, like the recent one in North Macedonia, and to ensure that current or future legislation will not restrict media freedom, investigative journalism, and the expression of critical views, and will not go beyond legitimate security goals or be detrimental to freedom of expression.
The OSCE, CoE, EU and other independent media organizations all support self-regulation. The CoE has made it clear that the fact that a state body is regulating media means the law is not in line with international standards – what is your opinion on this?
As said, my Office supports self-regulation as an important mechanism to promote quality journalism and strengthen credibility, and we have been supporting such initiatives in many OSCE participating States. Furthermore, I reiterate my statement that AMA, as a regulatory agency, cannot become a substitute for an independent judiciary.
Therefore, we have ensured the introduction in the law of provisions guaranteeing judicial oversight. The competences of regulators should be strictly bound by law and international principles and commitments.
Many of the above institutions also advocate for the removal of defamation as a criminal offence from countries’ legal systems. In Albania, defamation is both a criminal and civil matter yet, instead of decriminalizing it, they have introduced new laws, putting them even further from what is recommended. What are your thoughts on this?
Defamation should not be a criminal offence and my Office continues to urge all OSCE participating States to decriminalize defamation. Defamation must never be abused to punish or prevent journalists from performing their activities. I have made it clear from the beginning that neither AMA nor any other administrative or regulatory body, should deal with matters of defamation. This must remain under the competence of the judiciary.
Many looked to the OSCE to support them whilst this bill was being debated and they feel let down at the last minute. What can you say to reassure citizens that the OSCE cares about media freedom in Albania?
We were engaged on this issue from the beginning, and I wish to use this opportunity to recall that we were among the first ones to react publicly on the announcement of a new registration system in a public statement in October 2018.
I assure Albanian citizens that my Office will closely monitor the implementation of these laws and will continue to follow media freedom in the country.
Harlem Desir started his political career in 1999 when he became a Member of European Parliament as a part of the Progressive Alliance of Socialist and Democrats. He became the leader of the French Socialist Party between 2012-2014 before becoming the Secretary of State for European Affairs at the Ministry of Foreign Affairs. In 2017, he was appointed Representative on Freedom of the Media for the OSCE and will serve a three-year term.