OSCE about new media law: Gives AMA power to impact on freedom of expression

“I appreciate the constructive co-operation with the authorities, even if some improvements in the draft laws should still be introduced. I hope that our recommendations will be taken into account and that modifications will be introduced during the parliamentary process to ensure better compliance of the future legislation with international standards on freedom of expression and media freedom,” said the Representative.
“I note that there have been important improvements compared to the drafts prepared earlier in the year. The last version of the draft Law on Audiovisual Media incorporates new provisions, which better and more precisely define the object and scope of the law, and mentions the need for the Audio-visual Media Authority (AMA) to respect international and regional standards when adopting its decisions. It is positive that the problematic provisions regarding domain name registration and blocking of online content have been removed, and that the proposal includes a specific adaptation of the right to reply to the new environment of electronic publications,” Désir said.
In his letter to the Prime Minister of Albania, Désir pointed to several remaining issues that still need to be addressed, which he recommends to amend in the legislative process. The legal review proposes, in particular, to modify article 132/1 that gives the AMA the power to oblige electronic publications service providers to publish an apology, remove content or insert a pop-up notice in cases of violations of provisions in particular in the new article 33/1. In this article, the reference to the “respect of privacy and dignity of citizens”, which is broad, gives to the AMA extensive new power that can have an impact on freedom of expression.
The AMA or any administrative or regulatory body should not deal with matters of defamation, which must remain under the competencies of the courts,” Désir said.

The analysis also suggests a new wording for paragraph 3 of article 132, which establishes the possibility, in cases when electronic media services “may abet” criminal offenses of child pornography, encouragement of terrorist acts or national security breach, to “block access to the internet”. The proposed wording also aims at clarifying the competencies of the National Authority for Electronic Certification and Cyber Security (NAECES), the AMA and the Albanian Electronic Communications Regulatory Body (AKEP) in this area.

The legal review raises concerns about the powers granted to AKEP in the proposal to amend the Law on Electronic Communications, regarding the adoption of measures to protect a wide range of interests, including the country’s interests, public security, fundamental rights and any provision included in the Albanian legal system. These notions are too broadly defined and can be inconsistent with international standards of legal certainty, proportionality and necessity, and do not include specific rules on the way to ensure the protection of freedom of expression.

Moreover, article 133 in the draft law still refers to the very high economic fines to be imposed in cases of contraventions.

“I hope that the legal analysis, that includes a number of recommendations, will be useful in further discussions. My Office will continue to be closely engaged in this process, which needs to be inclusive for all relevant stakeholders until its conclusion,” Désir concluded.

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