The analysis by Dr. Joan Barata Mir, an independent media freedom expert, underlines significant improvements compared to the previous versions that were also reviewed and shared with the authorities in January and June this year.
The Representative underlined, “It is necessary that the future legislation respects the international standards and OSCE commitments on freedom of expression and that it does not impact negatively media freedom in the country”.
“My Office has been involved in a long process of consultation during the drafting of this legislation,” said Désir, “I appreciate the constructive co-operation with the authorities that led to many improvements."
“Nevertheless, further improvements to the law are still needed”, said the Representative, expressing hope that this will be done during the parliamentary process.
Désir welcomed the fact that under the draft law the electronic publications service providers are not obliged to register in order to perform their activities.
He stressed that “the Audiovisual Media Authority (AMA), the regulator of audio-visual media must not be a substitute for the independent judiciary or proper self-regulatory mechanisms on issues of freedom of expression,” adding that this also applies to the blocking of content, fines for breaches of the law and the modalities of the right to reply.
The legal analysis states that the regulation of electronic versions of written media, and more broadly of “electronic publication service providers” should not be the same as that of audiovisual media services. It is recommended to exclude the former from the scope of this draft law.
The Representative reminded that blocking or suspending online publications is considered an extreme state measure vis-a-vis the right to freedom of expression, and therefore it is accepted by international standards only in cases of very serious violations of other human rights or democratic principles, or when other measures cannot be applied.
The Representative pointed out that the AMA’s competencies regarding “temporary blocking/limiting access to the internet” may only apply in the three clear-cut cases stated in the law: child pornography; encouraging terrorist acts; and national security breaches and where such measures are considered as necessary and proportionate, considering the existence of an imminent risk.
The Representative also indicated that “proper appeal and review mechanisms before the judiciary need to be established as a safeguard for publishers and citizens. In other circumstances, such measures should be dealt with by the criminal justice system. The competences of the AMA should not be extended to dealing with issues such as defamation”.
Furthermore, the legal review recommends the clarification of the whole process of the AMA’s decision-making with the National Authorities for Electronic Certification and Cyber Security, NAECES, and the Electronic Communications Regulatory body, APEC.
“My Office stands ready to continue providing assistance on this important law. It is of utmost importance that the public consultation process is open and inclusive for all media professionals, journalists’ organizations and other relevant domestic and international media stakeholders,” concluded the Representative.