Summary of the Lawsuite against the Decision of the Regulatory Body of Electronic Media (REM)

September 14, 2022

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As civil society organisations that achieve their goals in the area of public interest protection in the sphere of public information as well as the protection of the constitutionally guaranteed right to information, which implies that all citizens of Serbia have the right to be truthfully, completely and promptly informed about issues of public importance, and that all means of public information are obliged to respect that right, the Slavko Ćuruvija Foundation and CRTA organisation filed a lawsuit with the Administrative Court against the Decision of the Regulatory Body of Electronic Media (REM), which granted licences for a media service of digital terrestrial TV broadcasting for the entire Republic of Serbia to TV Pink, Nacionalna Happy TV, Prva and TV B92.

The Slavko Ćuruvija Foundation and CRTA believe that the contested decision issued by the REM is based on incompletely and incorrectly established factual situation, that an incorrect conclusion regarding the factual situation was drawn from the established facts, that positive regulations were incorrectly applied during its adoption, and that in the process of adopting the contested act, the REM did not follow the rules of procedure.

The plaintiffs maintain firstly that the act that was adopted in such a way is illegal and that as such it threatens the public interest and the rights of citizens guaranteed by the Constitution, and secondly, that, as civil society organisations were founded with the aim of protecting these rights and interests, they are legitimate to oppose such an REM’s act and initiate an administrative dispute.

The contested decision stated that all 14 applicants (TV PINK, Nacionalna Happy TV, VESTI, BK TV, UNA, NOVA S, N1, PRVA, TVB92, K::CN Nacionalna, TV2, TANJUG TV, K1 and KURIR TELEVIZIJA) had fulfilled all four criteria stipulated by the Rulebook on the minimum conditions for the provision of media services and criteria for decision-making in the process of issuing a licence for the provision of media services on the basis of the conducted public competition (hereinafter referred to as: the Rulebook), namely: 1) the proposed programme concept indicates that the applicant would broadcast a high-quality and diverse programme; 2) the applicant had provided or made it likely that he would provide appropriate conditions for broadcasting of the programme from the proposed programme concept; 3) all applicants complied with regulations and professional and ethical media standards; 4) it could be reliably determined who has control over the applicant in terms of the law governing the protection of competition. Given that, according to the Regulator’s assessment, all participants in the competition met all the prescribed criteria, the decision was made by applying Article 96, paragraph 4 of the Law on Electronic Media, which stipulates that if more than one person applies for the same area who fulfil the requirements for the provision of media services, the Regulator will prefer the one for whom s/he reasonably concludes, on the basis of the documents submitted, will achieve greater quality and diversity of content.

By their lawsuit, the CRTA and the Slavko Ćuruvija foundation demonstrate that the conclusion that all applicants in the public competition fulfilled the criteria stipulated by the Law and the Rulebook was made as a result of an incompletely and incorrectly established factual situation. What is at particular issue is the manner in which the Regulator took into account the previous practice of fulfilling the obligations of four televisions that in the period 2006-2022 had licenses to provide television broadcasting media services for the territory of the entire Republic of Serbia – TV Pink, Nacionalna Happy TV, Prva and TV B92.

In point of facts, the provision of Article 96, paragraph 5 of the Law on Electronic Media, prescribes that if the applicant has already provided media services, the Regulator shall take into account this practice in the performance of duties prescribed by Articles 47 to 70 of this Law and compliance with the conditions contained in the licence when making the decision. Furthermore, when making a decision in the process of issuing a licence based on the conducted public competition, the Regulator, among other criteria, evaluates whether the applicant complies with the regulations and professional and ethical media standards (Article 28, paragraph 1, point 3 of the Rulebook), and in order to evaluate the fulfilment of that particular criterion, the Regulator appreciates the following circumstances prescribed by Article 31, paragraph 1, points 1 to 4 of the Rulebook:

• whether any of the measures provided for in Article 28, paragraph 1 of the Law on Electronic Media have been imposed on the applicant by the time of the decision-making;
• whether a fine or a measure was imposed to the applicant by a state authority or self-regulatory body in the last year due to violation of regulations governing the field of media or to violation of professional or ethical standards;
• whether the applicant undertook appropriate measures aimed at eliminating the reason for which the fine or the measure was imposed on her/him;
• to what extent the applicant complied with the programme elaboration on the basis of which the permit had been issued.

Plaintiffs believe that the Regulator incorrectly applied the provisions of the Law on Electronic Media and the Rulebook when assessing whether the applicants TV Pink, Nacionalna Happy TV, Prva and TV B92 had complied with regulations and professional and ethical media standards during the period of validity of the previous license, as it took into account only warnings and reprimands issued by the Council to the PMS in a period shorter than two years from the date of the decision to grant the licence.

As a matter of fact, Article 29, paragraph 9 of the Law on Electronic Media, stipulates that any imposed reprimand or warning shall be removed from the Register of Media Services within two years from the date of issuance and thereafter cannot be taken into account in any subsequent imposition of measures in proceedings instituted after the deletion from the registry. However, the Law on Electronic Media (or any other regulation) does not prescribe that the deleted measures shall not be taken into account if the PMS competes for issuing a licence. Quite the opposite, as    Article 96, paragraph 5 of the Law on Electronic Media stipulates that if the applicant has already provided media services (which is the case with TV Pink, TV Prva and TV Happy), the Regulator shall take into account this practice in the performance of duties prescribed by Articles 47 to 70 of this Law and compliance with the conditions contained in the licence e when making the decision. The measures imposed in the previous two years, as well as all the measures imposed before that, indicate precisely the tendency of a certain PMS to violate the obligations stipulated in Articles 47 to 70 of the Law on Electronic Media. In this sense, apart from warnings and reprimands issued in the last two years, the Regulator was obliged to review the entire practice of fulfilling the obligations prescribed in Articles 47 to 70 of the Law on Electronic Media during the entire period of validity of the previously issued permit.

• It can be seen from the publicly available data, which can be accessed on the Internet presentation of the Regulator, that in the period 2014-2022 the REM imposed a total of eight measures to TV Pink. When evaluating the fulfilment of the criteria for issuing a licence, the REM took into account only two measures imposed on TV Pink. In the period 2014-2022, the REM imposed a total of six measures u to TV Prva, but only two measures (one warning and one temporary ban on the publication of programme content) were taken into account when evaluating the criteria. The Regulator most drastically ignored the previous behaviour of the applicant when assessing the fulfilment of the criteria by TV Happy. Namely, the REM took into account only six measures out of a total of 23 which had been imposed on this television in the period 2014-2022. Data on measures issued in the period 2014-2022 are available on the website of the Regulator.

In addition, the Regulator did not accurately determine the factual situation regarding the circumstances related to whether the applicant was imposed a fine or a measure by a state authority or by a self-regulatory body in the last year due to violations of regulations governing the field of media or violations of professional or ethical standards (Article 31, paragraph 1, point 2 of the Rulebook).

The contested Decision issued for TV Pink, Nacionalna Happy TV, Prva and TV B92 states, for each of them, that the applicant “has not been imposed a fine nor a measure by a state authority or a self-regulatory body in the last year for violating the regulations governing the field of media or for violating professional or ethical standards (and in connection with that, there was no possibility for these applicants to take appropriate measures aimed at eliminating the reason for which such fine or measure was imposed, as these had not been imposed at the first place).

The lawsuit points out that such allegations of the contested decision have no basis in the factual situation. Namely, when making the decision on issuing the licence, the Regulator did not appreciate the circumstance of whether the applicants, that in the previous period were already holders of broadcasting licence in the territory of the entire Republic, violated the provisions of the Law on Advertising. It is clear that the violation of the regulations governing the field of television advertising is in fact a violation of the regulations governing the field of media, whose (non)compliance when issuing a license is evaluated in accordance with the aforementioned provision of the Rulebook.

• All four applicants that had a licence to provide media services in the field of television broadcasting for the entire Republic of Serbia (TV Pink, Nacionalna Happy TV, Prva and TV B92) in the year preceding the adoption of the contested decision were legally declared responsible and fined for having committed numerous violations referred to in the Law on Advertising[1]. These data could not have possibly remained unknown to the Regulator since the judgments of the competent courts are regularly published on its website.

Moreover, it should also be borne in mind that even after these judgments became final, the Regulator submitted new requests to the competent misdemeanour court for the initiation of misdemeanour proceedings against these televisions due to new offenses foreseen by the Law on Advertising.

Nevertheless, the Regulator did not take into account all the relevant circumstances on the basis of which it would determine whether TV Pink, Nacionalna Happy TV, Prva and TV B92 had undertaken appropriate measures aimed at eliminating the reasons for which fines or measures were imposed on them (Article 31, paragraph 1, point 3 of the Rulebook).  

Namely, as it was said earlier, in the contested decision, the Regulator flatly states that “no fine or measure was imposed by a state authority or a self-regulatory body in the last year for violating the regulations governing the field of media or for violating professional or ethical standards (and in connection with that, there was no possibility for these applicants to take appropriate measures aimed at eliminating the reason for which such fine or measure was imposed, as these had not been imposed at the first place).

Most especially, it is clear from this wording that the Regulator assessed behaviour only in relation to fines and measures prescribed in Article 31, paragraph 1, item 2 of the Rulebook (fines and measures imposed in the last year), for which the provision of Article 31, paragraph 1 point 3 of the Rulebook does not provide a basis.

In order to fully determine the factual situation, the Regulator had the obligation to look at the entire behavioural pattern after all fines and all measures had been imposed on licence holders during the period of validity of the previous licence. This is precisely why it was important for the Regulator to take into account not only the measures imposed for violating the Law on Electronic Media during the previous two years, but also to assess whether the previously imposed measures prompted PMS to improve their practice.

Besides the measures, the Regulator should have taken into account the fines imposed by other state authorities. In this regard, apart from the previously mentioned offenses for which the competent court made decisions during last year, fines previously imposed by the misdemeanour courts and the continuity in the violation of the Law on Advertising committed by TV Pink, Nacionalna Happy TV, TV Prva and TV B92 are paramount for the evaluation of the criteria referred to in Article 28 paragraph 1, point 3 of the Rulebook and Article 31, paragraph 1 point 3 of the Rulebook.

The lawsuit, therefore, pointed out that the Regulator failed to take all these facts and circumstances into account when assessing the behaviour of PMS after the established violation of regulations.

Furthermore, the Regulator incompletely and incorrectly established the factual situation and, consequently, drew an incorrect conclusion regarding the factual situation when it assessed the extent to which the applicants TV Pink, TV Happy, TV Prva and TV B92 respected the programme elaborations on the basis of which they had been issued prior licences (Article 31, paragraph 1, point 4 of the Rulebook).

The contested decision established that the applicants TV Pink, TV Happy, TV Prva and TV B92 fully respected the programme elaborations on the basis of which they had been granted the licence. The Regulator explains this conclusion by the circumstance that the Council of the Regulator did not impose any measures on the mentioned applicants for non-compliance with the elaboration[2].

Namely, the Rulebook stipulates that based on the criteria referred to in Article 28, paragraph 1, item 3 of the Rulebook, the following are inter alia evaluated:

1) Has any of the measures provided for in Article 28, paragraph 1 of the Law on Electronic Media been imposed on the applicant by the time of the decision-making (…)?

4) To what extent did the applicant comply with the programme elaboration on the basis of which the permit had been issued to her/him?

The Rulebook, thus, makes a clear distinction between a situation in which the REM imposed a measure due to violations of regulations or documents and a situation in which the REM did establish non-compliance with the elaboration during the permit’s validity period, but decided not to impose a measure to the PMS.  In its annual reports on the manner in which commercial media service providers fulfil their legal and programming obligations, the Regulator systematically determines the extent to which each of the four holders of a licence to provide television broadcasting services throughout the Republic fulfilled their legal obligations, as well as the contents of the elaboration which was the basis for licence issuing.

In the report entitled Commercial media service providers – Ways of fulfilling legal and programming obligations for the year 2020 (adopted by the REM Council at the 228^th regular session held on May 31^st, 2021) for the Nacionalna Happy TV and TV Pink, it was stated that, viewed as a whole, the programme structure of these two televisions was largely not in accordance with the contents of the programme elaborations or with Article 11 of the Rulebook on the minimum conditions for the provision of media services and the criteria for decision-making in the process of issuing a license for the provision of media services based on the conducted public competition (pages 113 and 114 of the Report). Moreover, the same Report concluded that the overall programme structure of TV Prva and TV B92 continued to be partially in accordance with the contents of the programme elaborations and Article 11 of the Rulebook (page 113 of the Report).

Deviations from the contents of the programme elaborations of all four televisions were noted in all REM reports on the way of fulfilling the legal and programming obligations of commercial media service providers between 2016 and 2020.

Finally, the lawsuit pointed out that, when assessing the fulfilment of the criteria, the Regulator did not take into account the practice in fulfilling the obligations prescribed by Article 11 of the Rulebook. Specifically, as providers of general media services with a licence to broadcast on the territory of the entire Republic, TV Pink, Nacionalna Happy TV, TV Prva and TV B92 were obliged to include the following types of programmes in their programmes: 1) informative programme; 2) scientific and educational programme; 3) cultural and artistic programme; 4) documentary programme; 5) children’s programme and programme for minors (Article 11 of the Rulebook)

• The 2020 report on the fulfilment of legal and programme obligations of commercial media service providers issued in 2021 by the REM Monitoring and Analysis Service, states the following:
• There was no cultural and artistic programme on the programme of TV B92, which continued the practice from previous years (Page 24 of the Report)
• RTV Pink’s programme did not broadcast three of the five mandatory genres: cultural and artistic, scientific and educational, and children’s, while the fourth mandatory genre, documentary programme, was broadcast in 0.03% of the total broadcast programme, which means that this media service provider violates the obligations set forth by the Rulebook (Page 51 of the Report)
• There was no cultural and artistic, nor scientific and educational programme during the observed period on the programme of TV Prva which hence did not fulfil the obligations defined by the Rulebook (Page 73 of the Report)
• Scientific and educational, cultural and artistic, as well as children’s programmes and programmes for minors (three out of five mandatory genres) were absent from the Happy TV programme, continuing the practice from previous years. Viewed as a whole, the programme structure of Happy TV is largely inconsistent with the contents of the programme elaboration and Article 11 of the Rulebook (Page 95 of the Report).

Non-compliance of four television stations with the obligations defined by the Rulebook was noted in all REM reports on the way of fulfilling the legal and programme obligations of commercial media service providers between 2018 and 2020.

Due to the key reasons stated here, but also due to other reasons stated in the lawsuit, the plaintiffs proposed to the Administrative Court to dismiss the contested decision and return the case to the Regulatory Body of Electronic Media for a new decision.

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