Copyright © Media Law International 2020. All Rights Reserved.
Specialist Guide to the
Global Leaders in Media Law Practice
While on one side rests the interest of a damaged subject due to the wrongful actions of the journalists, on the other side rests the protection of freedom of speech and the right to information. Finding a balance between the two is challenging.
To avoid such risks, an Albanian association named the Albanian Media Council provides a dispute settlement procedure of its own, trying to protect both the interests of media and of private parties that might be damaged by journalistic activities.
Albanian Media Council
The Albanian Media Council (AMC) is a non-governmental organization, an association whose members are journalists and journalistic organizations. It is founded based on the Albanian law on non-profit organizations. Therefore, AMC is a private entity, which makes its regulations not have an erga omnes effect.
An important body within the Albanian Media Council is the Board of Ethics. It tends to play a role of a conciliator, by receiving complaints from the broad public and giving certain recommendations which in the end are not binding. However, the Albanian Media Council remains one of the most influential organizations in the area of media.
The Albanian Media Council has created a Complaints Centre which according to this organization, aims to:
• Set up of the first Complaints Center to address complaints about specific Code of Ethics breaches from journalists;
• Reinforce the Code of Ethics by pointing out real issues through every investigated case;
• Set the first step to the self-regulation in Albania;
• Re-establish the trust of the public on the media;
• Create a database on the breaches of the Code of Ethics and put it in the disposal of the public and all the relevant organizations;
• Create reliable reports for all relevant organizations whose job deals with the media and their impact on the public;
• Create the bases for more and broader services to be set up in the future, improving regulatory and self-regulatory organisms for problems related to media;
• Create a new approach to editors in chief through offering an insight on the elaborated data of breaches of the Code of Ethics.
The Albanian Media Council does not only constitute an organization dedicated to receiving complaints and settling disputes between journalists and complaining subjects, but it is also an active and strong voice in protecting the freedom of speech in Albania from the possible interventions of the government. Thus, while the Albanian government promoted a group of draft-laws to be adopted in the near future named “The Anti-Defamation Package”, the Albanian Media Council opposed it, though unsuccessfully.
While in 2015 the Albanian government proposed to add a new criminal act in the Criminal Code, called “Defamation for high profile personalities”, the AMC made a great reaction together with other subjects, which made this project fail completely. Such activity has made the Council truly a “guardian” of media and the right to information, as well as the freedom of speech.
Code of Ethics for Journalists
The complaints of the public towards the media are not seen in the legal perspective, but from a moral and ethics one. The recommendations of Board of Ethics do not cite the law, but rather the Code of Ethics for Journalists.
This act was drafted by a group of experts in the area of journalism and with the support of European Union and the Council of Europe. It aims to guide, strengthen and improve the quality of journalism and the sense of responsibility of journalists in Albania. It is a necessary act for Albania, as the general level of journalism is remarkably low, mostly after the online news portals are booming.This code is not binding, but contains moral obligations and instructions that journalists must have in mind while exercising their professional activity.
This Code provides that its rules concerning conduct shall apply to all persons and organizations engaging in the gathering, editing, preparation and dissemination of journalistic information. The scope of the Code shall cover the individual and collective supply of information performed in the field of printed (text and photography) and electronic media. However, despite the tendencies to make the Code a comprehensive act for all journalists, practically and legally it does not apply to every journalist in Albania for two reasons:
Firstly, the Code of Ethics is not a binding act; and secondly, not every journalist or every person that exercises a journalistic activity is a member of the AMC.
Some of the principles granted in the Code of Ethics for Journalists deal with: accuracy and fairness of information; distinguishing fact from opinion; rectification and reply; relations with sources; editorial independence; pre-publications agreements; liability after publication; hate speech; intrusion into private life; conflict of interests; incitement to crime and violence; reporting of accidents and disasters; reporting of court proceedings and presumption of innocence; protection of children and people with limited abilities; intellectual property rights; relations between journalists; public interest and correct use of the Albanian language.
The complaints towards the AMC are made regarding these rules of the Code.
Bringing a claim against a journalistic subject in the AMC
The subject who claims that a journalistic subject has done a wrongful action against its interest, must firstly contact the media themselves. AMC does not proceed in a session if there has not been firstly a discussion between the journalist and the claimant. Only after the media has not accepted these claims, the damaged person can request a “judgement” in the AMC. If contacting the media in question is impossible for the person, the AMC shall help in this process, trying to make the parties negotiate.
The AMC only considers the complaints against media and journalists and must not be considered a dispute settlement body in every kind of journalistic conflict. Furthermore, the AMC does not interpret the law, but only the Code of Ethics for Journalists.
The media that acts as a “respondent” in the process is not necessarily a member of the AMC. This body accepts to investigate even the complaints against other journalistic subjects, by giving a recommendation for the dispute resolution in the end of the process.
The complaint can be done online in the website of AMC or can be sent by mail. The complaint form must always include the media that has breached the Code, the publication date of the material, a short description of the facts and most important, the complaint must include the solution that the complainant asks for.
The solutions can be the: (a) publication of refutation by the relevant media; (b) deletion of published material; (c) correction; (d) public apology; (e) something else. The received complaint is delivered to the Board of Ethics for consideration. The Board discusses the case in its next meeting, but not later than one month after receiving the complaint.
Solution granted by the AMC
After analysing the complaint, the AMC decides to accept, decline, or decline the complaint with reserves. This is a phase where the complaint is viewed only for its procedural validity. Accepting the complaint in this phase does not mean that the complainant’s claims are found right, but that the rest of this dispute settlement process shall continue.
The Board principally discusses the case alone, without the parties being present in their meeting; however it contacts the parties for additional information. AMC declares that when the media in question is a member of the association, the process can be faster than when it is not. If the dispute is not settled by this method, the parties may go to court.
The solved cases are published online in the website of the AMC. They contain the article for which the complaint was made, the breaches of the Code found by the Board of Ethics and the recommendation to settle the dispute. In other cases, the solution is given by requesting the Audiovisual Media Authority (AMA) to remove the material from all means of massive communication. AMA is a public authority and its decisions are binding for the media and journalists.
The unique nature of the dispute settlement system in the AMC
The AMC refers to its procedures as “mediation”; however the nature of mediation in Albania is completely different from this one. Law No.10385 Date 24.2.2011 “On mediation in dispute settlement” provides different rules. So, article 16 in of the abovementioned law regulates that when the parties agree to resolve the dispute through mediation, they jointly select the mediator from the list of licensed mediators.
While in the AMC process, this “mediator” is chosen before the counterparty has agreed on it. Also, even though the media would not want AMC to deal with the case, it still would give certain recommendations if the media has breached the Code.
On the other hand, this method cannot be classified as arbitration either. Arbitration is regulated by the Code of Civil Procedure of Albania. The AMC dispute settlement procedure is different from it as AMC does not issue a binding decision or arbitral award; it performs the process even without the consent of both parties; the AMC does not refer to itself as an arbitral tribunal.
Under these circumstances, the method in question is more similar with conciliation. This process has no legal standing, and the conciliator usually has no authority by law to seek evidence or call witnesses. It usually writes no decision, and makes no award. In addition, the conciliator gives recommendations on how the parties can find a solution to their conflict, just like the AMC does. However, in some cases the AMC requests the public authorities to solve the conflict, which makes it different from a classic conciliator.
The dispute settlement system organized by the AMC is a commendable effort to create a self-regulating body for the Albanian media and journalists. Since its creation, it has influenced positively in the media environment in the country.
However, the AMC has a long road to perfect its system, including formalizing its dispute settlement procedures with a bylaw regulating them and expanding the organization’s influence in more journalistic subjects. In this internet age of journalism, it is always more difficult to grant quality and ethics in giving information. Despite the AMC giving explicit recommendations, they are not always accepted by the journalists, and even when they are, the news has already been distributed in other websites, though making it useless for the media in dispute to correct or delete that material.
It is important to mention that the AMC procedures have prevented parties to go to court countless times, resulting to minimising financial loss and time consuming. This dispute settlement method should be promoted in Albania for the best interests of the media and other private parties.
Dispute Settlement System in the Albanian Media Council
The first thing that comes to mind to someone whose rights have been infringed may be to seek his right in court.That is a legitimate right for everyone; however it is not always the best solution. In the area of media and journalism, the ideal settlement of the dispute would be privately, by the norms of media’s self-regulation. As online media is getting broader on a daily basis, more people exercise journalistic activity. Despite this fact having its positive sides, it makes it easier to breach the law or lower the quality in providing information. Judging media is a delicate process for the courts, as a very hard proportionality test must be conducted in every case.
Kris Hasa is an Associate at Frost & Fire Consulting, which he joined in 2020. He specialises in Alternative Dispute Resolution, Corporate Governance and Property Law. He holds a Bachelor of Laws and Master of Science in Civil Law degrees from University of Tirana, from where he graduated with the highest honours. Kris is granted the title of Assistant Attorney by the Albanian National Chamber of Advocacy. Prior to joining Frost & Fire Consulting, he was working as a real estate lawyer. He is a researcher and a contributor to the Albanian doctrine of private law.