Brief introduction

The Internet “enables people to have access to information and services, to connect and communicate, and to globally share ideas and knowledge. It provides the essential tools for participation and consideration in political activities and other public interest activities[1].”

According to the European Court of Human Rights, the Internet is “an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life….. is certainly higher than that posed by the press[2]”.

Furthermore, in the case of Ahmet Yildirim v Turkey, the European Court of Human Rights stressed that: “Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information.” [3] The Court also recognized that: “defamation and other types of illicit speech, including hate speech and violence-inducing language can be disseminated as never before, worldwide, in just a few seconds and in some cases stay permanently in the media [4]”.  

The European Court of Human Rights has sanctioned that the first and most important requirement of Article 10 of the European Convention on Human Rights is that the interference of any public authority with regard to the right to expression should be lawful. In order to comply with this important requirement, the interference does not simply require basis in the domestic law of the country. The law itself must correspond to some important “quality” requirements. In particular, a norm can only be considered a law only when it is designed with precision to enable citizens to regulate their behaviour.[5] The measure of precision depends to a large extent on the content of the instrument in question, the field for which it is designed to cover, as well as the number and status of those to whom it is addressed[6]. While the notion of predictability applies not only to the stage of behavioural implementation, but also to “formality, conditions, limitations or sanctions” that are associated with such behaviour if considered in violation of domestic law of the country[7].

Recommendations

• The approach to regulate the “internet defamation”[8] issue at the same time and with the same legal act regulating audiovisual media and electronic communications is not recommended. The regulation of audiovisual media/electronic communications and the transfer of the regulation of the defamation issue to the internet domain in them is an incorrect legislative approach.

• Human rights do not exclude the prohibition and punishment of defamation, even in the field of the internet. Freedom of expression of the individual is also applied on the internet, as is practicable in any other mean of communication. Limitations are only permissible if they pass the three-part test: legality, legitimacy and proportionality. Interferences in freedom of expression are legitimate if: a) are provided by law; b) they pursue a lawful purpose; c) are necessary in a democratic society.

• As per above, AIS is of the opinion that public authorities have all the “margin of appreciation” to regulate by law the issue of defamation on the Internet. However, this issue should be regulated only by a separate law – an integral law – dedicated and covering only this issue without setting it and adding/amending other laws, whether they are related to electronic communications or not. The UK Defamation Act model can serve as a valid model for the content and legislative technique recommended in this case.

• The new integral law should not have in itself the purpose of punishing, but the definition of development options, specified and effective legal approaches that are appropriate for the unique features of the internet. Self-regulation should be foreseen as an effective mean of addressing hate speech, defamation, extremism, etc. and as such should be promoted.

Raising awareness and educating efforts to promote everyone’s ability to be included in an autonomously, self-propelled and accountable manner on the Internet should be an incorporated element of the new integral law. In this regard, according to the international law, the state has a number of positive obligations it has to fulfill. This component is known as “internet literacy”.

• The language used in the texts of articles should be revised. The deadlines foreseen in the draft law are such and start for example: The request for the right of reply should be submitted to the OSHPE within 7 days from the date of the publication of the facts and information that are allegedly incorrect. If failed to comply with such deadline, the request is not presented or even when it is filed shall not be considered.

The deadline in this article and in other articles should not be related to the date of publication of the information, but to the date of receiving of the information by the complainant and the evidence that he has become aware of. For example, a person may become aware that he was slandered from a portal with a one-month delay (because the person does not visit at all any portal) and not within a few days of publication, as provided by the law.

• The new integral law (as well as the two draft laws in consultation) should eliminate as far as possible general wording. For example, what it means “inaccurate information for a person” or “The provider of the electronic publication service should ensure that the handling of events, including issues that are subjects of public debate, is fair to all interested subjects in these issue and be presented in a true and impartial manner.” This definition is difficult to understand and even apply. If a person opens his blog and expresses his opinions, for example, to oppose the entry into the European Union of Albania then how this blogger should properly regulate his behavior to be true and impartial ??!! The online blog according to the provisions of both draft laws is included in their area of action.

Other general terms used in draft laws and affecting the standards of precision requested by the European Court of Human Rights that must be reviewed are “the provider of the service of electronic publication: should not violate the dignity and fundamental human rights” or “to observe the rules of public morality“; or “not to affect public safety“, etc. etc.

• The new integral law and the provisions in the two draft laws in consultation should not set online the registration media, in any form, as a condition so the latter can operate in a free manner. It is understandable that registration requirements at AKEP (or any other body) may be set, for example, if these portals apply to obtain financial assistance from the state, but in any case the registration should be simple, in a transparent and politically impartial procedure, and in any case not to affect editorial independence.

• AIS deems that the only institution that can and should order the blocking/suspension [9] should be the court of the respective district court, the civil section. There is no reason, as provided in the draft-law, to add another administrative way. Moreover, the vetting procedures in the judiciary – which are in process of implementation – increase guarantees to decision-making by an independent judiciary outside of political influence and professional in this area as well. The new integral law should also contain detailed provisions for the court to ensure a fair trial. In this regard, court proceedings outside the Code of Civil Procedure have also been applied in the case of the law “On Measures against Domestic Violence”. Consequently, quick, effective, transparent procedures and in compliance with the principle of fair trial are possible to be provided in this particular integral law. The decision to block/suspend will be like any reasoned court decision where the means of appeal will be provided accordingly.

The measure of temporary suspension should also be given by a reasoned decision of the court. The new integral law, at every stage of the judicial review, should provide for quick and effective adjudication and decision-making time limits.

• The new integral law should provide that the measure of blocking/suspending access to certain Internet sites constitutes a very serious measure of interference with freedom of expression. As such, the extent of the block should be considered by law as the ultimate extreme measure that can only be undertaken in well-specified cases by the law, justifying such measure. These measures are missing in the draft law text because they relate only to a numerical criterion of the administrative offense, which hardly passes the test of extreme of violation.

• The same rights as being off-line (outside the scope of the internet) rights, obligations, behavioural rules are the same when using the Internet, especially the right to express themselves and access to information. Words, conditions and circumstances for blocking/suspending access to the Internet should be well-defined in the law and not by general wording.

Even in their interpretation by the court, the new law must sanction that such interpretations should clearly refer to the narrower and least restrictive concept.

• Any blocked/suspended website should also have the necessary information in a non-professional legal jargon about who has demanded the blocking, the reasons for the blocking decision, the court decision, the time limits when this blocking is valid, etc.

As a rule, suspension/blocking of the entire website should not be permissible. Any court order for blocking/suspension must be concrete and any other lawful information, even if it is accessory on the website, should not be subject to blocking/suspension.

AIS

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[1] Recommendation CM (Rec) (2011) 8 of the Committee of Ministers to Member States on the Protection and Promotion of Universality, Integrity and Internet Openness, adopted by the Committee of Ministers on 11 September 2011.

[2] Case Editorial Board of Pravoye Delo and Shtekel v Ukraine, decision of 5 May 2011, paragraph 63.

[3] Case Ahmet Yildirim v Turkey, decision of 8 December 2012.

[4] Case Defli AS v Estonia, decision of 16 June 2015, paragraph 110

[5] Case Lindon, Otchakovsky-Lauren, and July v France, application no. 21279/02, paragraph 41.

[6] Case Groppera Radio AG and Others v Switzerland, decision of 20 March 1990, paragraph 68.

[7] Case Kafkaris v Cyprus, application no. 21906/04, paragraph 140.

[8] “Regulation of defamation on the Internet” is the terminology that preceded the presentation of the draft laws and afterwards accompanied the drafting and the publication phase of these two draft laws that are in public consultation.

[9] Although such measures may serve to important state interests – particularly national security or public order protection – or to protect individual rights – such as freedom, security and equality – they interfere with the freedom of expression and the right of access to information and, consequently, may have negative implications on democratic values.

Freedom of expression includes the right to disseminate information or ideas that “offend, shake or disturb the state or any section of the population,” as the European Court of Human Rights states.

On the 19^th of November, AIS addressed the European Court of Human Rights, Council of Europe, asking this court to consider AIS claim against Albania as a matter of priority and examine the merits of this case for compliance with Article 6, Article 10, and Article 13 of the European Convention for Human Rights.

Such application comes at a time when the High Court, where a recourse is filed, and the Constitutional Court are non-functional.

The arguments for the case, whose merits are to be reviewed by the Court, are presented to the Court of Strasbourg as follows:

Subject:   Request to deal as a matter of priority the application AIS v Albania and to examine the merits of this case for breach of article 6, article 10 and article 13 of the European Convention of Human Rights.

On 9 June 2015, during the local electoral campaign, the Albanian Institute of Science (AIS)[1]  – an Albanian NGO – sent an official request to the three main electoral subjects, i.e. the Socialist Party (SP), the Democratic Party (DP), and the Socialist Movement for Integration (SMI) asking them for the following information:

1. list of donors of non-public funds, from whom they had benefitted since 21 May 2015 amounts above 100 000 (one hundred thousand) ALL or the equivalent value in services or goods;
2. list of every expense made since 21 May 2015 using the annual funds benefitted from the state budget in 2015.

The above electoral subjects did not respond to our request. Therefore, pursuant to Article 24 of Law no. 119/2014 “On the right (access) to information”, AIS filed a complaint with the Commissioner for the Right to Information and Protection of Personal Data on 7 July 2015.

The Commissioner for the Right to Information and Protection of Personal Data informed us on 25 July 2015 of its decision no. 44, dated 22.07.2015 on “Rejection of complaint”. The Commissioner rejected our request no. 675, dated 9.07.2015, arguing that “the requested information is to be administered by the organizations foreseen by this law and it’s Article 2, which are not defined as public authorities in terms of how they are organized, how they operate, and their regulatory legal framework”. 

Pursuant to Article 25 of Law no. 119/2014 “On the right to information”, the Albanian Institute of Science filed a lawsuit with the Administrative Court of First Instance of Tirana.

Upon completion of the court hearings, the Administrative Court of First Instance of Tirana delivered the decision no. 5687, dated 10.11.2015 according to which: “The court rejects the lawsuit of the Albanian Institute of Science against the Commissioner for the Right to Information and Protection of Personal Data, the Socialist Party of Albania, the Democratic Party of Albania, and the Socialist Movement for Integration of Albania, which claims the “Abrogation of decision no. 44, dated 22.07.2015 of the Commissioner of the Right to Information and Protection of Personal Data as a lawsuit not based on evidence or law. The court forces the political parties (electoral subjects), i.e. the Socialist Party, the Democratic Party, and the Socialist Movement for Integration to provide the Albanian Institute of Science with the information requested about the financing of their electoral campaigns as per its (AIS’) request dated 9 June 2015.” 

The Albanian Institute of Science complained against the decision of the Administrative Court of First Instance by addressing the Administrative Court of Appeal on 25 November 2015. The Administrative Court of Appeal by decision no 5236, date 22.11.2017 decided to uphold the decision of Tirana First Instance Administrative Court.

The case now is pending before the Supreme Court of Albania.

AIS addressed the European Court of Human Rights on 18 May 2016, asking this Court to express itself on this adjudication process, and whether they constitute a violation of Articles 6 and article 13 of the European Convention of Human Rights.

As you may know on July 22, 2016, the Parliament of Albania approved 17 constitutional amendments required to reform the justice system, aspiring to change its image by making it more independent, accountable and efficient. These constitutional amendments, inter alia represent the implementation of the Vetting Law, known as the temporary re-evaluation of the judges and prosecutors of the Republic of Albania.

The process of reassessing members of the judiciary system, otherwise known as the vetting process, started in November 2017 and will include over 800 judges and prosecutors, as well as a number of other employees of the justice system.

Up to nowadays the results of the vetting process are for the Supreme Court only 4 judges passed the vetting, and two of them are still under review procedures at the Appeal Chamber.

So far, the Constitutional Court is the institution that has been hit hardest by the vetting process. Out of nine members, only two have successfully passed the verdict and one of them is in the appeal process before the Appeal Chamber.

No one in Albania is able to predict when there will be established and become functional, both the Supreme Court and the Constitutional Court. Consequently no one in Albania can give an answer when the AIS appeal in the Supreme Court and eventually in the Constitutional Court will be judged. Meanwhile the topic of the request and of the whole thing loses the actuality because the request for the transparency of the finances of the political parties in the elections was made in 2015, still has no final answer from the Administrative College of the Supreme Court/ Constitutional Court and meanwhile there are also next local elections to be held in June 2019.

Furthermore we want to add in the AIS application the legal arguments and request to consider the claim for breach of article 10 of the European Court of Human Rights by Albania.

The European Court of Human Rights in the case Magyar Helsinki Bizottsag v Hungary did recognize that such a right to information or obligation to provide information may arise in two categories of cases: (1) where disclosure of the information has been imposed by an enforceable judicial order, and (2) in circumstances where access to the information is instrumental for an individual’s exercise of their right to freedom of expression, and where its denial constitutes an interference with that right.

The Court went on to set out four principles, drawn from its more recent case law relating to access to information, that could be relied on to determine whether a denial of access falls within the second category of case.

– The purpose of the information request: it is a requirement, before Article 10 can come into play, for the information sought to be necessary for the exercise of the right to freedom of expression. The right to vote can be considered as freedom of expression and knowing in advance before the election date the financing of political parties is a precondition for free and fair election. This can be demonstrated where the denial of the information would hinder or impair and individual’s exercise of the right.

– The nature of the information sought: the information to which access is sought must generally meet a “public-interest test” for the disclosure to be necessary under Article 10.

– The role of the applicant: where the individual is seeking access to the information with a view to informing the public in a capacity as a public or social watchdog, this will be an important consideration in determining whether Article 10 applies.

– Ready and available information: the extent to which the information being sought is ready and available will also be an important criterion when determining whether Article 10 is applicable to a case where an individual has been denied access to information.

Based on these conditions, please consider our request to examine also the merits of the case in the application AIS v Albania at the European Court of Human Rights submitted on 18 May 2016 regarding the breach of article 6, article 10 and article 13 of European Convention, and please consider as well the possibility of expediting the procedure for AIS application examination in Strasbourg, as soon as it is possible.

Hoping that our request will be taken into consideration.

Aranita Brahaj

Executive Director of AIS

Legal representative Viktor Gumi  Attorney at Law

Prior phases of the Court process of AIS vs Political Parties for transparency on electoral financies

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[1] Albanian Institute of Science (AIS) is an Albanian registered NGO. Its mission is to promote scientific activity and applied research in Albania to solve socio-economic problems, increase transparency, and strengthen civic engagement and respect for human rights. Financing of political parties during electoral campaigns and informing the public in a capacity as a public or social watchdog has been for many years one of the main activities by AIS. 

In the framework of its Promoting Transparency in Public Spending – Open Local Government Procurements  Project , AIS organized a press conference on 29 October in Voskopoja presenting are open procurement data of the Albanian Development Fund and red flag index for private contractors of public companies For Journalist working on the field in Albania. The tools presented to Journalist will help them to easly monitor and identify possible risk for corrupation. This project is supported by NED- National Endowement for Democracy .