Venice draft opinion on Anti-defamation package: Inapplicable!

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The Venice Commission has published a draft opinion on the Anti-defamation package, which has stirred a strong public debate in the Albanian society.

The Commission suggested that the Albanian government revise the draft as the law “is inapplicable” as the package can potentially undermine freedom of expression in Albania.

In addition, the Venice Commission emphasized that the amendment conveys extensive administrative powers to the Audiovisual Media Authority, hereinafter AMA, and on this point it calls for a revision of of the selection procedure of AMA and Complaints Committee (CC) members.

Secondly, the Venice Commission noted that it is “unclear wether AMA and CC members are sufficiently independent from big media businesses “by virtue of the rules on incompatibilities and the conflict of interest”.

The Commission made some strong accusation on some of the fines foreseen against online media outlets in case of violations.

“Extremely problematic for the media freedom in the Albanian context is the severely punitive and debilitating nature of the fines”, adding that there is not a clear line between the amount of the fines and the size or economic capacity of the media suggesting that “the nature and severity of the fines imposed must be taken into account”.

Some of the conclusions of the Venice Commission on the Anti-defamation package

  • The CC/AMA are given weighty administrative powers in relation to the online media. This is problematic with regard to the freedom of expression of online media from prior restraints and given that there are doubts about the independence of those bodies; these new powers should not be entrusted to those bodies without first ensuring that they are sufficiently independent from the political parties, big media businesses or other corporate interests connected with politics;
  • Considering that the CC/AMA can intervene per se in the exercise of freedom of expression and that their independence is questionable, the complaints procedure does not offer sufficient procedural safeguards: the CC/AMA may impose, in a very quick administrative procedure, heavy fines which are immediately enforceable, and order taking down Internet content, also with an immediate effect. The “economic capacity” of the media outlet is not a factor defining the amount of a fine, which may result in a situation where the activities of smaller media outlets (or even individual bloggers) are paralyzed by disproportionate fines. This will magnify the chilling effect of those provisions and lead to self-censorship to the detriment of the political debate essential to any democracy.
  • In the meantime, the Venice Commission encourages the Albanian authorities to support the setting-up of an effectively functioning self-regulatory body involving all relevant stakeholders in the field of media and capable of ensuring an effective and respected system of media accountability in the online media field. It will also be useful to revise the method of selection of the AMA and the CC members, in order to ensure that these bodies have a pluralistic composition, are composed of qualified individuals, represent the media community, and enjoy trustworthy autonomy from government and corporate control. It is furthermore necessary to ensure the effectiveness of the existing legal and, in particular, judicial remedies combatting defamation, and hate speech committed via online publications.

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