Reasons for the return of law no. 92/2019 “For some additions and changes to the law no. 9918 dated 19.5.2008, “On electronic communications in the Republic of Albania” as amended ”

Reasons for the return of law no. 92/2019 “For some additions and changes to the law no. 9918 dated 19.5.2008, “On electronic communications in the Republic of Albania” as amended ”

D E C R E E

ON RETURN OF LAW NO. 92/2019

“ON SOME ADDITIONS AND AMENDMENTS TO LAW NO. 9918, DATED 19.5.2008, “ON ELECTRONIC COMMUNICATIONS IN THE REPUBLIC OF ALBANIA”, AS AMENDED ”

Pursuant to Articles 85, paragraphs 1 and 93, of the Constitution, I hereby:

D e c r e e

Return to the Assembly for reconsideration of Law no. 92/2019, “On some additions and amendments to Law no. 9918, dated 19.5.2008, “On electronic communications in the Republic of Albania”, as amended, for the purpose of reviewing on the reasons attached to this decree.

No. Decree 11414
Tirana, on 11.01.2020

PRESIDENT OF THE REPUBLIC

ILIR META

 

Reasons
for the return of law no. 92/2019 “For some additions and changes to the law no. 9918 dated 19.5.2008, “On electronic communications in the Republic of Albania” as amended ”

Honorable Members of Parliament,

The Assembly of Albania, at its plenary session on 18 December 2019, approved law no. 92/2019 “On some additions and amendments to Law no. 9918, dated 19.5.2008, “On electronic communications in the Republic of Albania”, as amended ”.

By letter no. 4490, dated 26.12.2019, of the Assembly, administered in the Institution of the President of the Republic with no. 5081 prot., dated 26.12.2019, this law is forwarded for decree and promulgation.

According to published parliamentary practice, it turns out that this bill is part of a legal package publicly called “anti-slander package” and was originally drafted by a working group, with representatives from the Ministry of Justice, the Ministry of Infrastructure and Energy and experts in the field.

From the consideration of the parliamentary practice on the proposal, consideration and approval of the draft law, as well as the content of the provisions of law no. 92/2019 “On some additions and amendments to Law no. 9918, dated 19.5.2008, “On electronic communications in the Republic of Albania”, as amended “, adopted, it is noted that according to the report of the Council of Ministers and the report of the Committee on Education and the Media, in the capacity of the committee responsible for reviewing of the draft law, this law aims to reflect the proposed and already approved amendments to law no. 91/2019 “On some amendments and additions to Law no. 97/2013 “On the audiovisual media in the Republic of Albania” as amended ”, regarding the regulation of electronic publishing services.

From the preliminary review of the official website of the Parliament of Albania, it is concluded in advance that the Assembly has not yet published the content of the legal acts of the “anti-slander package” adopted by it, such as Law no. 91/2019 “On some amendments and additions to Law no. 97/2013 “On the Audiovisual Media in the Republic of Albania” as amended, and Law no. 92/2019 “On some additions and amendments to Law no. 9918 dated 19.5.2008, “On electronic communications in the Republic of Albania”, as amended “, adopted at the same time on 18.12.2019.

This constitutes a significant lack of transparency towards the public and is appropriate to highlight in this reasoning document.

From the examination of the content of the law no. 92/2019, it turns out that it consists of four articles through which additions and changes to the provisions of the current law are made, mainly to enforce decisions taken by the Appeals Council and the AMA Board, which contain sanctions or austerity measures imposed by these administrative bodies vis-à-vis online publications service providers.

Specifically, through Articles 3 and 4 of Law no. 92/2019, the Electronic and Postal Communications Authority, as the responsible authority that administers the cc.TLD.al domain, is empowered to enforce the decisions of the AMA bodies, while obliging Internet access service providers to enforce these decisions.

Specifically, these provisions expressly provide that:

Article 3

In Article 12, after paragraph 2, paragraph 3 is added with the following content:

“3. AKEP shall cooperate with the AMA in accordance with the provisions of this Law and other by-laws, as well as ensure the implementation of the decisions of the Appeals Council and other AMA bodies, obliging the suppliers of internet access service to apply the relevant acts / decisions of these authorities, in accordance with the time limits and procedures provided for in the applicable legislation. “

Article 4

In Article 137, at the end of Chapter V, after paragraph 19, paragraph 20 is added with the following content:

“20. Do not comply with the orders / decisions of AKEP related to the implementation of acts / decisions of the AMA Appeals Council or issued by any other body with legal competence in this field, pursuant to Article 4 of this law. “

According to the above definitions, the Electronic and Postal Communications Authority will serve as the final segment of the coercive force of the AMA administrative process, as the means by which decisions adopted by its organs will be implemented (Appeals Council, Board).

Moreover, through Article 4 of Law no. 92/2019, AKEP is empowered that in case the media service provider fails to comply with AKEP’s orders / decisions related to the implementation of non-final acts / decisions of the Appeals Council and the AMA Board – or issued by any other body with legal competence in this field, according to Article 4 of this law, then a private legal entity shall be fined in the amount of 1 000 000 ALL.

Thus, through this provision, the coercive force against electronic media service providers grows under the simultaneous supervision of the two bodies.

In reference to the position taken in the reasoning of Decree No. 1413, dated 11.01.2020, of the President of the Republic, on the return for reconsideration of Law no. 91/2019 “On some amendments and additions to Law no. 97/2013 “On the audiovisual media in the Republic of Albania” as amended ”, it becomes mandatory that the legislator together with the review of the law no. 91/2019, to review also the law no. 92/2019, as these two new legal acts are part of the same package procedurally and materially related to each other.

If the Assembly of Albania will review and approve Decree no. 11413, dated 11.01.2020, on the return for reconsideration of Law no. 91/2019 “On some amendments and additions to Law no. 97/2013 “On the audiovisual media in the Republic of Albania“ as amended ”, this affects and makes it compulsory to review and reflect the position also in Law no. 92/2019 “On some additions and amendments to Law no. 9918 dated 19.5.2008, “On electronic communications in the Republic of Albania” as amended ”.

In the reasoning for the return of law no. 91/2019, the President of the Republic has put forward arguments on the necessity for the Assembly to review financial sanctions, the manner of decision-making, the body empowered to make the decision, and the manner in which such sanctions are enforced, or other punitive measures.

Concerns about spreading fake news, or the negative impact of misinformation, must be addressed in such a way that any remedies against these phenomena do not in any way endanger, impose imbalances, or create the risk of misuse of these tools. legal rights to infringe on the right to information, freedom of expression and of the media or even freedom of economic activity, rights that enjoy special protection under the Constitution and international acts.

While delegating by law an administrative body of powers that the Constitution does not allow, the lack of transparency in decision-making procedure, and the application of disproportionate sanctions without going through judicial review, it is not in the balance between the public interest in protecting from false news / information, and the right to information, freedom of expression and the development of economic activity in the field of electronic publications.

In this logic, also Articles 3 and 4 of Law no. 92/2019, will have to be re-evaluated in the context of the review by the Parliament of Albania of the respective provisions of Law no. 91/2019, concerning measures against media service providers in cases of violation of legal provisions.

As the above, for the sole purpose of improving this law in accordance with constitutional provisions and international acts and in accordance with the provisions of law no. 91/2019, pursuant to the Constitution and pursuant to Article 85, paragraph 1, I have decided to return for reconsideration Law no. 92/2019 “On some additions and amendments to Law no. 9918, dated 19.5.2008, “On electronic communications in the Republic of Albania”, as amended, in order to be re-evaluated in accordance with Law no. 91/2019, which make the changes conditional on the inclusion of strict rules for the establishment and operation of independent administrative bodies, the reassessment of the level of administrative measures envisaged in the analysis of the economic reality in which service providers are established and operate. the media, reviewing the evaluation process and taking administrative measures and their execution, as well as reassessing the direct effect they will have on the day-to-day work of electronic media service providers from new legal provisions.

Respectfully,

Ilir Meta