By Vladana Jaraković
The Regulatory Authority of Electronic Media (REM) opened a public debate on the adoption of a binding by-law on what public broadcasters – RTS and RTV – should do according to the law during the election campaign. At the same time, instead of doing its job and making sure that commercial broadcasters abide by the law, the REM decided to recommend to commercial broadcasters how to behave. Both documents that the REM intends to adopt contain significant omissions that we need to discuss publicly.
The former Rulebook that the REM repealed at the beginning of this year, contained provisions that applied to both public service broadcasters and commercial broadcasters. The old Rulebook was neither ideal nor applied. Indisputably, the new one was indispensable. In the following months, throughout the summer, there were talks about electoral conditions and the REM was able to hear serious and well-argued criticism of their work, if for some reason it had failed to hear it earlier. More importantly, besides criticism, a wide range of constructive recommendations were addressed to the REM. If adopted, this authority would truly fulfil its role in the election process.
Instead, the REM did not desist from the viewpoint that it was not a participant to the election process. Consequently, two documents that were published on their website did not show a genuine interest to regulate the electronic media obligations during the campaign in a way that truly contributes to equality of all participants to the elections.
As soon as Olivera Zekić announced that all private TV stations would be recommended to provide equal slots to all participants to the elections, it was clear that commercial broadcasters’ obligations would be regulated by non-binding documents. She added that “a recommendation cannot be binding as we are not programme editors and there are no legal sanctions foreseen if anyone fails to observe them”. However, our legislator did not reduce the REM’s role to issuing opinions and recommendations. It gave them real regulatory authority to pass general by-laws that further establish detailed rules according to which media service providers need to fulfil legal obligations in relation to programme contents (article 60 of the Law on Electronic Media).
The REM has no authority to set standards below those prescribed by the Law. All commercial media service providers, as well as public broadcasters, are required to comply with several general obligations foreseen by the very legislator. Consequently, each media service provider is, inter alia, held to ensure information freely, truthfully, objectively, fully and timely and to ensure to all registered political parties, coalitions and candidates, representation without discrimination during the election campaign. We must not forget that these are not standards that the REM can establish and repeal at its own will.
The role of the Regulator, especially during the campaign, is not at all simple. It pertains to the Regulator to find a balance between respect for editorial independence on the one hand and the need to respect rules that guarantee the equal representation of candidates in the media, on the other. The right to be timely, truthfully, fully and objectively informed about the programmes and activities of the electoral list submitters and the candidates from those lists is an integral part of the electoral right of each of us, and the Regulator is competent to provide for us an environment in which we will be able to realise our constitutional right in full capacity – i.e. the right to information and the electoral right.
The encroachment on this jurisdiction, which emanates unequivocally from the Law on Electronic Media, clearly indicates that the REM is not up to its task. The Regulations and the recommendations it has published, both in form and content, serve solely to maintain the status quo in the media, the consequences of which being quite predictable.
This text has been prepared by Ivan Vladana Jaraković within the project “Rule of Law Reform in the Western Balkans: Reinventing the Rules of the Game” implemented by Politkon Network, in cooperation with CRTA and Tim Institute, and with the support of the European Fund for the Balkans (EFB).
Read the full analysis: “Media in (Trap of) Election Campaigns: The Case of Serbia“.
Read the Serbian version of the text at CRTA.
About the author: Vladana Jaraković currently holds the position of Senior Researcher at CRTA. Her research is mostly focused on the regulation of elections, media and free access to information. As of 2017, Vladana has been a Legal Analyst of the CRTA Observation Mission, responsible for providing an analysis of the legal framework governing the elections in Serbia in accordance with international commitments and obligations applicable to democratic elections, focusing primarily on monitoring media aspect of election campaigns, analyzing the enforcement of media laws during election campaigns and preparing recommendations for improvement of media environment during the campaign. Vladana earned her Bachelor’s Degree from the University of Belgrade – Faculty of Law in 2013. From 2014 to 2016 she worked as a legal intern and passed the Bar Exam in 2016.
Photo credits: CRTA