BELGRADE, 29.09.2018. – The quality of work of the regulatory authority, particularly its independence, at the same time guarantees the independence of the media outlet whose work is being monitored.
The situation as regards the independence of the Regulatory Authority for Electronic Media (REM) is far from ideal. To improve its position, a number of mechanisms need to be established with the aim of securing functional, financial and organizational independence, as well as “legal apartness” from the system of classic (state) administration, with clear determination that this body must perform its tasks in an unbiased and transparent manner and not receive any instructions regarding the completion of its tasks from any power center (including the legislative and executive branches), but that this in no way entails the exclusion of its accountability.
Starting from the problems identified in various analyses and reports,[1] the IJAS has drawn up proposals for amendments to the Electronic Media Act, which would ensure that the Regulatory Authority for Electronic Media fulfilled the purpose of its existence.
- Legal Status
With the adoption of the Electronic Media Act in 2014 and implementation of the Public Administration Act, it seems that REM’s status as a public administration “outpost” has finally been cemented (keeping in mind the authorities of public administration bodies toward REM, i.e. that this position of REM enables the competent ministry to strip the Regulator of the assigned tasks at any moment).
Also, in reality the (in)activity of the legislative branch has a significant impact on REM’s independence, for example, refusal to appoint certain members of the REM Council, denying consent to the REM Statute or delays in approving the Financial Plan.
Recommendation: Separation of REM from the system of public administration bodies and changing its task classification.
- Independence
REM has two bodies, specifically: the Council and Council president. The Council is appointed by the Assembly, based on nominations by authorized nominators in accordance with the law. Nine members are appointed in total, and as many as four of them are appointed on the grounds of nominations by “political bodies,” two are nominated by the competent National Assembly committee on culture and information, one is nominated by the competent committee of the Assembly of the Autonomous Province of Vojvodina, and one is jointly nominated by the national councils of national minorities (comprising political representatives of national minority parties). Basically, the four Council members nominated by political bodies, despite not constituting the majority, can make almost all the decisions. The REM Council is still working in an incomplete form. Namely, three Council members were appointed under the Broadcasting Act in May 2011 (which envisages six-year terms in office), meaning that their term in office expired in May 2017.[2] According to the information found on the REM website, this body currently functions with six members (of the total nine).[3] It is interesting to point out that in the event that the Council loses another member for whatever reason, REM’s work will largely be blocked, because it will no longer have a two-third majority, which according to the Electronic Media Act is required for the following: election of the Council president and vice president,[4] adoption of bylaws under REM’s jurisdiction (including the Statute, Rules of Procedure and other bylaws),[5] issuing decisions on revoking licenses,[6] deciding on the suspension of a Council member (even with this number suspension is impossible, because the member to be suspended also needs to vote for the suspension).[7]
Recommendation: Reducing the influence of legislative and public administration bodies on the Regulatory Authority for Electronic Media.
- Implementation of the Law
Besides authorities pertaining to initiating the appropriate procedure, REM also has at its disposal the ordering of measures to media service providers due to their violation of obligations pertaining to program content.
In the implementation of the Electronic Media Act so far, REM has ordered a total of 48 measures, specifically 28 preliminary warnings, 19 warnings, one temporary ban on the broadcasting of a certain program, and has not revoked licenses on the grounds of violation of program obligations.
REM has so far also filed 1020 misdemeanor charges, the court has handed down 491 verdicts, 310 of which suspended further proceedings due to the fact that the statute of limitations had been exceeded. Since about 63% of proceedings end on the grounds of exceeded statute of limitations, it is questionable how deterring this authority of REM can actually be for media service providers to not violate provisions of the Advertising Act.
The measures at REM’s disposal are insufficient to ensure adherence to the law, thus the introduction of measures with monetary implications needs to be considered, as they could be more effective than preliminary warnings and warnings that are erased after two years, and which are not as drastic as a ban on broadcasting program up to 30 days and license revocation.
Recommendation: Introduction of new measures with financial implications to the Regulatory Authority for Electronic Media.
- Accountability
The accountability and professionalism of the regulatory authority itself should be strengthened. Numerous national and international reports criticize REM’s choice to conduct supervision of the work of a media service provider only on the grounds of a report, which is especially problematic in the period of monitoring electronic media during an election campaign.
The criterion of “a renowned expert in areas of importance for conducting affairs under the jurisdiction of the Regulator” is not clear enough, and listing the professions from which Council members are selected does not help to clarify it. The term “renowned expert” itself is ambiguous enough that it can rule out “politically unfit individuals” in advance because, ultimately, the evaluation of “renown” is completely up to the parliamentary majority. In that sense, it is not clear what documents prove that a particular candidate is a renowned expert. Instead of “renowned,” the term that should be used is “proven” expert.
Recommendation: Creation of conditions for REM’s more professional and responsible work: defining the criterion of expertise for the appointment of REM members, improving transparency and accountability, establishing the organ of director in order to relieve the Council of unnecessary work.
[1] http://safejournalists.net/wp-content/uploads/2018/01/Indikatori-za-nivo-slobode-medija-i-bezbednosti-novinara-2017-Srbija.pdf
http://rem.rs/uploads/files/PDF/REM%20Report%20Indireg.pdf
[2] V. page 5 of REM Annual Report for 2016, published in 2017 and available on the REM website via the following link: http://bit.ly/2FjhtwY
[3] V.: http://www.rem.org.rs/sr/o-nama.
[4] Article 19 of the Electronic Media Act.
[5] Article 33 of the Electronic Media Act.
[6] Article 90 of the Electronic Media Act.
[7] Article 19 of the Electronic Media Act.
