The European Court of Human Rights on Tuesday condemned Romania for failing to uphold freedom of expression in the case of a local journalist who was fined by a domestic court over a series of critical articles about another journalist in the north-eastern county of Bacau.
“The case concerned the domestic authorities’ decision to order the applicant, a journalist, to pay damages for having published five blog posts criticising L.B., another journalist who was the editor-in chief of a newspaper in the Desteptarea media group and producer for a local television channel belonging to the same group,” the ECHR said in a statement.
The posts were published by Gheorghe-Florin Popescu in 2011. The same year, L.B. brought civil proceedings before a court in Bacau, which ruled that two of the articles posted by Popescu lacked any factual basis when describing L.B. as morally responsible for a murder-suicide.
The Bacau court also established that Popescu had used vulgar and defamatory expressions that affected L.B.’s honour and reputation, and ordered him to compensate L.B. with the equivalent of 1,100 euros.
Popescu subsequently appealed against the verdict, but Romania’s Court of Appeal dismissed his appeal as unfounded in 2013. The journalist then took his case to the ECHR.
More than seven years later, judges at the ECHR unanimously reached the conclusion that Romania breached Article 10 of the European Convention of Human Rights, which protects freedom of expression.
According to Tuesday’s verdict, Romanian courts failed to make “a distinction between statements of facts and value judgments” when examining Popescu’s criticism of L.B.
The verdict also said that Romanian courts ignored “the fact that the applicant was a journalist and that the freedom of the press fulfilled a fundamental function in a democratic society”.
They also ignored the fact that L.B. was a publicly known figure before the controversy involving Popescu, the verdict added.
The Romanian courts ruled that some of the content of Popescu’s articles was offensive, but the ECHR concluded that “although the satirical nature of the articles had been the main argument in the applicant’s defence, the domestic courts had failed to investigate with sufficient care whether or not this was a form of exaggeration or distortion of reality, naturally aimed to provoke”.
“In the court’s view, the style was part of the form of expression and was protected as such under Article 10, in the same way as the content of the statements,” the ECHR said.
The rapid spread of the internet and growing use of social media in Albania has significantly affected the behaviour of existing or traditional media as well as native digital media. The emergence of online media outlets has dramatically changed the media landscape.
BIRN Albania’s latest report, “Internet Governance in Albania and Its Role In Media Freedom”, explores a number of topics where Internet governance and regulation intersect with online media, market conditions, financial regulations, access to information and data protection, and copyright and cyber-security.
The report aims to provide a clear overview of the rights and responsibility of online publications in the Internet environment and the governance of this environment by public institutions, while encouraging a multi-stakeholder debate with the goal of supporting and strengthening freedom of expression and the professional practice of journalism on the Internet.
Freedom of expression and media freedom under threat
Photo: Raphael Nogueira
Although there is no specific law on online media in Albania, constitutional principles on freedom of expression and freedom of the press do extend their rights and restrictions to online outlets, while the regulatory environment on Internet governance, both domestic and foreign, influences how these outlets operate and do business.
Newly proposed regulations and amendments on the subject met strong resistance from the journalistic community and rights organisations in Albania and abroad. These moves were also contested by the European Commission and the Council of Europe.
In spite of the government’s attempts to shrink the space for professional journalism, freedom of expression and media are clearly defined in the Albanian constitution as well as in the international treaties and agreements that the country has ratified.
While Albania’s broadcast media and the press are controlled by a handful of powerful families, which have affiliated businesses in regulated markets, online media outlets are more diverse.
Many are start-ups owned by journalists, and allow more diverse viewpoints and reporting angles.
But, even though online media have become one of the main sources of information in Albania, Albanian legislation currently provides no definition of online media. Nor does the audio-visual media law or the e-commerce law.
Access to the internet is vital to free speech
Access to the Internet as a means of communication to exercise freedom of expression and information is guaranteed in Albania in the context of the domestic legal framework.
A survey conducted in 2019 on the use of information technology by families and individuals conducted by the Albanian National Institute of Statistics, INSTAT, showed that 82.2 per cent of all households now have access to the Internet, compared to 80.7 per cent a year earlier, and 66.4 per cent in 2016.
INSTAT found that 68.8 per cent of all individuals aged between 16 and 74 in Albania had used the Internet within three months of the survey being conducted, 87.1 per cent of whom used it daily.
Article 1, of the Law on Electronic Communications in Albania, no. 9918, of 19 May 2008, refers to net neutrality under the principles of the law – but it contains no specific provisions on how to enforce it.
Emerging from the same problematic principles that underpin net neutrality, The Electronic Communications law does not regulate zero rating; it is left to the companies to negotiate or offer such services.
One service previously excluded by data caps from ISPs in Albania has been Facebook Zero. The lack of clarity from the government regarding zero rating is concerning, as it is particularly relevant to journalism and media organisations.
Domain registration is linked to press freedom
Domain name management and administration is central to broader Internet governance, and directly affects press and media freedom within a country.
Domain registration in Albania for the ccTLD .al is regulated in the Electronic Communications law. It stipulates that domain names are registered “to serve the general interest of the public” and “to ensure especially the protection of intellectual property”. Web hosting companies are also mainly regulated by the the Electronic Communications law.
The main institution administering the .al ccTLD and its subdomains is AKEP. This maintains and updates a list of reserved and forbidden names and collects data and documents from the physical persons and legal entities that register.
The BIRN report states that blocking domain names is a key form of censorship imposed around the world, and is often used to prevent access to information and silence dissent.
Social media companies have unfair tax advantage
Online media in Albania operate on the same financial rules and tax regimes as other businesses registered in the country. No specific tax or financial rules, subsidies, or incentives are designed specifically for online media outlets.
Albania’s legal framework does not provide for any form of subsidies for journalism and the media, either for legacy or online media outlets.
Social media companies like Facebook, Google and Twitter, along with other online media not registered in Albania, should have a registered agent in the country and pay a tax rate similar to native online media outlets.
The BIRN report notes that the lack of taxation of their advertising products gives them de facto an unfair advantage to local online media outlets; these are taxed at the rate of 20 per cent.
Online media in Albania have often been the target of verbal abuse by politicians at the highest levels of power. Research conducted by BIRN also indicates that the biggest factors influencing the Albanian media’s editorial line are the political and economic interests of media owners, which in turn place pressure on many journalists to self-censor.
Thus, media outlet ownership transparency is important for the public to identify any political and economic bias that might influence the coverage of a certain topic or issue, as well as recognise conflicts of interest.
However, Albanian legislation does not provide any specific provision for the public disclosure of the ownership of media outlets.
Restrictions on freedom of expression online
Photo: Unsplash/Laura Lee Moreau
Although the Albanian constitution and the European Convention on Human Rights recognise fundamental rights to freedom of expression and freedom of the media, they also provide for proportional restrictions.
Defamation in Albania remains a criminal misdemeanour, punished by fines, while the main legal instrument against hate speech is the provision of several anti-hate crimes and misdemeanours in the criminal code. Hate speech is also addressed, albeit indirectly, in Albania’s anti-discrimination law.
In the context of the infringements, copyright violations are considered one of the biggest problems facing the online media, followed by the lack of quality information and financial difficulties.
Criteria and conditions for copyright protection are listed in the report. Despite the legal protection granted to audio and visual products via copyright, the country’s copyright law (Article 12.1) does not protect news and press information, both offline and online, which are simply informative in nature.
Journalists safeguard the public’s right to know
The growing number and influence of online media have certainly given journalists more space and freedom to express their views and report on different issues in ways that might not always be welcome in traditional media.
Journalists have the right to inform about news of public interest, preserving the essence of information, but they are also obliged to avoid references to personal data when possible. All actions taken by journalists should be shaped by the public interest.
The report lists two sets of special instructions and considerations (Protection of minors and court and crime reporting) for journalists on how to protect personal and sensitive data.
The most recent Code of Ethics for Journalists was drafted in 2018. This was done by the Albanian Media Institute, AMI, with the support of the project Reinforcing Judicial Expertise on Freedom of Expression and the Media in SouthEast Europe, JUFREX – a joint initiative led by the European Union and the Council of Europe.
According to a set of Ethical Guidelines for Online Journalism , online journalism must respect all professional code of ethics and the core values of journalism, irrespective of the forum or format it uses.
No clear rules for content removal
Recognising that content moderation and removal policies are widely debated – and divisive – on the global level, the report provides a non limited list of potential solutions that may contribute to a healthier online environment.
In Albania, no specific law explicitly regulates the filtering and blocking of illegal Internet content. However, the provisions of several laws regulate illegal Internet content. The Electronic Communications law empowers the AKEP to enforce its requirements.
There is no official or published list of what is considered illegal and/or harmful content, or of the competent authorities that can ask the ISPs to remove illegal content. For this reason, the key institutions mandated by law to order the removal of illegal content are listed below, based on the caseload developed by AKEP.
Judicial and law enforcement agencies can request the removal of illegal content based on the relevant articles in the criminal code. One of the most problematic requests from law enforcement agencies, passed on to ISPs through AKEP, was the blocking of the domain of the popular online media Jeta Osh Qef (Joq.al) following the deadly 26 November 2019 earthquake in Albania.
The report also mentions other relevant agencies and bodies dealing with content removal, such as the Audio-visual Media Authority, AMA, and the Commissioner for Personal Data Protection.
Progress in cybersecurity legislation
Albania has made significant progress in recent years in developing the ICT sector and the use of information technology, IT.
Albania ratified the Convention on Cybercrime – known as the Budapest Convention – on 25 April 2002, with Law no. 8888. Its criminal code is mainly in line with this important international instrument, containing several specific articles dedicated to fighting cybercrime.
Although not directly related to cybersecurity, the criminal code also details the consequences of engaging in various anti-social electronic and/or online activities.
Another important law governing cybersecurity is Law no. 2/2017, “On Cybersecurity”; the entity responsible for applying this law is the NAECCES.
The law’s main aim is to achieve a high level of cybersecurity within Albania by defining security measures, rights, and obligations, as well as mutual cooperation between entities operating in the field of cybersecurity.
After drawing flak from journalistic and media associations for employing an unsuitable register of online media to select which outlets should get permits to work during curfews and ask questions at press conferences, the Information Society Ministry says it had rectified any omissions.
This ministry, which is in charge of issuing these online permits, says media outlets are now being checked directly through the country’s central registry of firms, not through a register of online media created for a different purpose by the country’s oldest and biggest media union.
Amid complaints from the Association of Journalists of Macedonia, ZNM, that the ministry had more or less hijacked its register and misused its purpose, the ministry told BIRN that its only intention had been to prevent the spread of “fake news” in the health crisis.
However, some pro-opposition online media outlets still accuse the authorities of discrimination and “silent” censorship, saying they are put in an unequal position compared to others at virtual press conferences.
Use of media register drew flak
The dispute started in late March, when the ministry issued a statement saying that only those outlets listed on the ZNM’s register of professional online media, Promedia, would be eligible to apply for permits to work during the daily curfews.
The same rule applied to outlets wanting to ask questions at government press conferences, which were already being held without the physical presence of journalists, who were only able to ask direct questions through a video conference call, or submit them online to the government press service and wait for them to be read out by the spokesperson and answered by ministers.
The ZNM and the Council of Ethics in Media, SEMM, a self-regulatory journalistic body, accused the government of using the register to select favoured online media.
The ZNM’s executive director, Dragan Sekulovski, told BIRN that the purpose of Promedia had been misused. The register of some 120 online media outlets “was intended to promote self-regulation and professional standards, help citizens distinguish professional online outlets from propagandists and fake news sites and incentivise businesses to advertise in professional outlets”, Sekulovski explained to BIRN.
“The OSCE, the US embassy and the European Union praised us for our efforts to put some order in the online media sphere. It was not fair of the state to interfere [with it] and use the [health] crisis as an excuse,” he said.
He noted that the register was never intended to be an all-encompassing media source. Media participate in it voluntarily; those who wish to be listed on it first apply and are then their basic professional and ethical standards are checked.
While Promedia lists 120 listed outlets, the state’s central business registry lists more than 400 online media outlets.
The Promedia registry notably does not include many pro-opposition outlets that formerly defended the ex-government of Nikola Gruevski, which fell in mid-2017, and continue to promote the standpoints of his now opposition VMRO DPMNE party.
Most of these are now grouped in the country’s other journalistic union, the Macedonian Association of Journalists, MAN, which was formed during Gruevski’s time in office and has also accused the current Social Democrat-led government of using double standards.
Ministry says it had no ill intent
Journalist, members of North Macedonia’s government and guests in the government press room. Archive photo: EPA-EFE/GEORGI LICOVSKI
After prolonged silence in the face of this criticism, the State Secretary at the Information Society Ministry, Adem Avziu, told BIRN on Friday that its intention had not been to discriminate against any particular online media but only to “prevent the spread of fake news and panic in this extraordinary situation.
“We all know we have many unregistered portals that are spreading all kinds of false info amid this crisis, so our intent was to prevent this,” Avziu said.
He claimed that any mistakes made earlier had now been fixed. “Control measures have now been significantly boosted. All media now apply and fill in forms on one address, at uslugi.gov.mk, and permits are issued after their data has been checked through the database of the central business registry,” he said.
Opposition outlets still cry foul
The enduring divisions between media in North Macedonia are a legacy of Gruevski’s authoritarian government’s decade-plus in office.
On one side are media that gravitate towards the ZNM, and are trying to restore professional standards and strengthen self-regulation in the media sphere. Some of them are now outlets that defend the Social Democrats-led government.
On the other side are Gruevski’s former megaphones, who received large sums in the form of government advertisements while he was in power and who formed the parallel journalists’ association MAN, which at the time was seeking to overshadow the ZNM. Most of these media have continued to support the VMRO DPMNE party in opposition and attack anyone that the party deems an enemy.
These media were asked to sign the journalistic code of ethics and join the media register created by the ZNM but have not done so.
Kurir is among the most prominent of such online outlets, and managed to survive Gruevski’s downfall in 2017, largely thanks to its recent takeover by Hungarian firms linked to Prime Minister Viktor Orban’s PR machinery, and the subsequent inflow of Hungarian advertisement money.
But despite the ministry’s insistence that it has now fixed the problem with the permits, the editor-in-chief of Kurir, Ljupco Cvetanovski, said that his outlet still feels discriminated against.
Cvetanovski told BIRN that the current form of censorship was “maybe not so evident and public as was first intended with the registry [of online media], but we still feel some form of censorship”.
While conceding that his site no longer encountered any problems with getting permits to work during the curfews, he said the way press conferences are being held did not allow them to ask direct questions through video link, like some other media, while questions submitted electronically often never get answered.
“We submit several questions daily [to the government press service] but only one of our questions has ever been read out at press conferences and answered,” Cvetanovski claimed.
He added that in this way the government was elegantly dodging “tough” questions – or at least giving itself more time to prepare suitable answers in advance.
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