Head of the Socialist Party Parliamentary Group Taulant Balla has misinterpreted the Venice Commission opinion on the controversial media law.
During a press conference, Balla said that the opinion didn’t reject the law as anti-constitutional and actually supported the need for such a law to regulate online media in Albania.
He added that the Commission said the law is in full compliance with the European Court of Human Rights. All that needs to be done is a few “improvements and clarifications”, Balla claims.
According to the opinion, the Authorities fall at the first hurdle by failing to define the notion of “electronic publications”. They say the current definition is “too nebulously and broadly defined” would jeopardise the clarity and foreseeability of the law. This, in turn, could be used to target individual bloggers or personal pages on social media platforms that publish media. This, they said could produce a “chilling effect on ordinary individuals that would be deterred from expressing any view online, for fear of possible sanctions.” This the Commission said, raises serious concerns and the provision should be revised.
In terms of the AMA and Complaints Committee that will be in charge of implementing the law, their selection “may raise legitimate concerns of independence.” Organisations such as this should be independent and impartial, particularly in the way that they are selected. While the AMA is independent in principle, the Opinion states that following dialogue with local stakeholders, “All members of AMA have a clear political affiliation”. It is also not clear whether they would be free of influence from big media and corporate control. The Commission said it is questionable whether the AMA should be allowed to have an input on the selection of the Complaints Committee due to its political affiliation and conflict of interest.
The Commission also questioned whether members of AMA and the Complaints Committee even have sufficient professional experience to perform the tasks they will be given, which are essentially the competence of a judge.
They also write that the procedures set forth in the current draft do not provide adequate safeguards against abuse of freedom of expression. In order for the AMA and Complaints Committee to be in line with recommendations, they should be pluralistic, enjoy political and business independence, follow the appropriate procedures that need to be revised, and be professionally apt enough to perform their duties.
The Commission also found an issue with provisions relating to Electronic Publishers. The duty to disclose identity raises the question of anonymity on the internet and infringes on the right to confidentiality. According to the European Court of Human Rights law, individuals have the right not to disclose their identity online and this doesn’t prevent states from tracing those involved in criminal acts. The Commission said this is not an absolute right in cases of child pornography and hate speech.
They state that this disclosure of identity should not be extended to all internet users, which could include individual “bloggers”. Again, the law is not clear and gives the possibility for the law to be abused. The Commission said that in the Albanian case, the right to anonymity and freedom of expression outweighs the benefits of identifying the source.
Even more concerningly, the Commission noted that some of the criteria that will be used to close or fine online media could go against international standards. There are elements that could be used to suppress critical marks against politicians or public figures on matters of public interest. For example, by including “financial standing” as a means of discrimination, those criticising wealthy businessmen or ‘oligarchs’ could be accused of hate speech and have their content blocked.
The Right to Reply enshrined in the draft legislation does not meet the ECHR Recommendations as the right should only apply to untrue factual information, not critical opinions.
In terms of Balla’s claim that the Commission supports the need for a law, in section 53 of the Opinion, they state that both the Criminal Code and Civil Code already provide legislation against hate speech and defamation. Instead, AMA and the Complaints Committee will have the power of the courts without any process of hearing evidence or assessing it. This is of significant concern to the Commission. The fact that the decision of the Complaints Committee is immediately executable is also worrying.
The legal regime would have devastating financial consequences on certain sections of the media, leading to significant self-censorship.
The Commission said that the fines put forth by the Government are “extremely problematic” and of a “debilitating nature”. They describe them as excessive and are not proportionate. Even the threat of fines may have a “chilling effect on journalists and media” and pose as much of a chilling effect as imprisonment. The fact that they must be paid immediately, before any appeals process and without any suspension of decisions is unfair.
The Commission noted that the draft law is NOT ready for adoption, is vague, and would have a “chilling effect” on the discussion of political speech and other matters online
It recommends “reconsidering the adoption of the draft amendments in their current form”. While they stop short of saying the law should be dropped completely because there are serious issues within the local media, they say there are administrative law sanctions that can be useful to combat them. They said the draft law will bring problems that outweigh its benefits and in order to mend the flaws, a “deep revision of the text of the draft” and the law must be conducted.
They said the government should support the setting-up of an effective and independent self-regulatory body involving all media stakeholders. This is something that is underway at the moment with the creation of the Albanian Ethical Media Alliance.
As you can see, the Venice Commission did not support the need for the law, nor did say it was in line with the ECHR. In addition to this, it is clear throughout the text as well as in the conclusion that there is a lot of work to be done before it is acceptable, more than just “improvements and clarifications”.
Balla has either not understood the opinion, or is not being truthful in his interpretation.