From: Alice Elizabeth Taylor
OSCE: ‘Anti Defamation’ Draft Law Still Doesn’t Protect Freedom of Expression in Albania

The OSCE Representative on Freedom of the Media has concluded that the changes made to the latest “anti defamation” draft law still requires further improvements.

In a statement issued today, the Representative Harlem Desir made it clear that there are still issues that require attention to “clarify safeguards to freedom of expression and avoid any risk of undue restrictions or sanctions on electronic media providers.” 

Some of the criticisms include the fact that electronic publications can enjoy “fiscal benefits” should they decide to register with the government. This said the report, “imposes an important degree of pressure on those actors, as in many cases non-registration would not be an economically feasible option.” 

Plans to include “political or other belief” as a form of hate speech, thus potentially infringing the right of individuals to levy fully legitimate and harsh criticisms against political or social opponents have been highlighted as an issue in the current draft. This, said the report, could limit freedom of expression and the exchange of ideas in Albania. The report adds that any so-called “attacks or abuses” in this area, can be tackled using provisions and mechanisms already covered by existing defamation laws. The OSCE recommend that this reference is eliminated.

Another important point that “has already been expressed in the previous opinions” yet has been ignored by Albanian lawmakers, relates to the imposition of administrative fines up to 1,000,000 leke. This said the report “could, in fact, be seen as an indirect way to force the closure or create serious survival problems” to operators. It is recommended that sanctions for administrative contraventions include additional criteria to ensure that fines are levied in consideration of the size and economic capacity of the media outlet in question. 

Also mentioned was the new competencies of AKEP that enforce platforms to respect “obligations related to the protection of the country’s interests, public security, including in case of war or extraordinary situations, and guarantee the individual rights and freedoms, as well as every obligation provided for by the legal framework applicable in the Republic of Albania.”

The Albanian government ignored the OSCE recommendation to remove or change this section due to the “very broad empowerment” given to AKEP which would allow them to block or prevent access to any piece of online content available to individuals online in Albania. This can be done on the basis of an  “alleged violation” of an “infraction of whatever norm included in the Albanian legal system”.

The OSCE raised further concerns that the vague principles of harming “the country’s interest” or “public security”, noting that this could be used to abuse freedom of expression. They note that there is no reference to the role of the judiciary or the existence of any appeal or review mechanism. This means that someone alleged to have published allegedly defamatory statements could be blocked immediately without any prior judicial or administrative decision.

It was also noted that “AKEP is a regulatory body in charge of electronic and postal networks and services and has no competence regarding the content of the services provided through electronic communications networks” and is not justified in taking decisions on matters relating to freedom of expression.

The report notes “this proposed new competence gives AKEP powers that are completely inconsistent with international standards of legal certainty, proportionality and necessity, which need to be respected when establishing limits to the right to freedom of expression.”

Also recommended is the fact that any decision made by AMA can be appealed before the competent court, something that is not currently provided for in the draft law.

Desir stated that: “I hope that the draft amendments will continue to be improved during their examination in parliament, including by taking into account public consultations with civil society, journalists’ associations and media actors.”

“Much will also depend on the implementation of the new legislation. It is important to ensure that the regulatory agency, AMA, can perform its competences and duty in a fully independent manner, free from any kind of political interference. My Office and I will monitor it with careful attention,” he added.

Whilst it is clear that the latest draft is still severely lacking and still poses a “chilling threat” to media freedom in Albania, this legal review does not include the statement made by Prime Minister Edi Rama on 6 December.

After announcing the law would be passed on 19 December, giving little time for further review, he said he will introduce harsher punishments for those that he deems to have published “fake news”.

“Defamation in the ordinary state is punishable, the definition in a state of emergency must be super punitive. Fake news and media games in situations like the one we went through are criminal,” he said.

Rama imposed a so-called “state of emergency” on 27 November, one day after the Magnitude 6.3 earthquake that killed 51 people. Unfortunately, Rama did not follow the legal and constitutional procedure to impose such a state as it requires a vote in Parliament which did not happen. Instead, it is believed he meant a situation of “extraordinary measures” that can be a result of a natural disaster, as per the Constitution Article 170 (1).

Since then he has shut down or restricted access to a portal, investigated journalists, arrested an activist and made regular threats towards journalists and the media. 

In fact, two media freedom alerts have been registered on the Council of Europe platform, detailing government threats towards media workers and “exploiting the emergency situation caused by 26 November Earthquake”.