Author: FoNet
The draft amendments to the Law on Public Order and Peace, which – according to the proposal of the ombudsman Zoran Pašalić, provides for the inclusion of offenses in this area on social networks – are seen by lawyers, media and human rights experts as an opportunity for numerous abuses, indicating at the same time that this area is not the competence of the ombudsman as Pašalić sees it. Milena Vasić, a lawyer and executive director of the Committee of Lawyers for Human Rights, notes that such a proposal violates citizens’ rights to freedom of expression and notes that such regulations are under the jurisdiction of the police and should be proposed by the Government of Serbia, while the Ombudsman could offer his opinion on the matter.
“We now have a completely reversed situation – the Ombudsman is proposing a ban, and a very broad ban, which is very dangerous. We have a Ombudsman who protects the state, not the citizens,” points out Milena Vasić.
She also believes that freedom of speech must allow some things that are outside the bounds of good taste and decency, when it comes to public officials, politicians and political criticism.
“You don’t have to like everything, you don’t have to be nice and polite. Cursing is also allowed, some slightly radical ways of expression are also allowed, as long as they do not directly call for violence. Simply, there is a certain width of freedom of expression on social networks, which the introduction of such violations would significantly narrow, and therefore citizens would lose one of the very important spaces where they can express their dissatisfaction,” she assessed.
He also adds that there are misdemeanors that are already traditionally abused when there is no reason to prosecute activists who criticize the current government, so it is expected to be the same with these regulations.
“We did an analysis of freedom of expression in the digital space of Serbia and managed to prove that the greatest number of threats to security through the Internet and criminal proceedings, in fact, come against the president of the state and public officials, and that the fewest criminal reports and convictions for criminal offenses were made against women, who suffer the most threats and insults on social networks, and those criminal proceedings last the longest”, said Milena Vasić.
She also reminds that the European Court of Human Rights has established a standard related to the restriction of freedom of expression, when and how this restriction can be allowed.
“Before the European Court of Human Rights, it is tested in each individual case whether the restriction met the conditions or not. I believe that this restriction would not pass the test of the European Court of Human Rights, when we are talking about freedom of expression – whether the restriction is legal, whether it is proportionate, whether it serves a legitimate goal. I am afraid that this legitimate goal would be seriously undermined,” said Milena Vasić.
For her, the provision according to which a person who is suspected of having committed an offense on a social network, and claims that someone else did it, must, within eight days, provide complete and accurate information about the identity of the person who used the social network and a certified written statement confirming that the person used the social network instead of the suspect.
She believes that it is “completely absurd” to ask citizens to undertake investigative actions and determine who committed the offense, as this should be done by state authorities, not citizens.
“It is completely contrary to the presumption of innocence, because – if you think that a citizen has committed some violations – you need to prove that he is guilty,” emphasizes Milena Vasić.
Such regulations, Vasić adds, would be an additional burden for the judicial system and would require a lot of resources because it cannot be expected that someone really constantly monitors social networks and the inscriptions of individuals in public speech.
The representative of Civic Initiatives, Uroš Jovanović, estimated that the draft from the ombudsman’s cabinet actually legalizes the behavior of the police during the protests on the streets last year, and now it is also being transferred to the field of social networks.
He recalls that in the past year, the police have intercepted people, identified them, brought them to informational interviews, calls were received for protest participants to report to the magistrate.
If the social network really becomes a public space, if this draft is adopted by the Parliament, we will look at it again, Jovanović said
“The police will now monitor social networks, they will scan what is written. You don’t have on social networks what you have in public space – a context, a certain tone, some behavior that is sanctioned, some message. And very easily a message, which is written through sarcasm, irony, some lyrics of a song – you can interpret as an insult, impudent, rude behavior,” Jovanović noted, adding that “every criticism” could be interpreted that way.
“When you see the range of penalties – including fines and prison terms – people will think twice about how to write something and whether to write it at all. This stifles social networks. It is one space that is still free from the authorities, and they want to put it under control,” Jovanović pointed out.
He notes that social networks were founded by private companies and anyone who registers their profile enters into a contractual relationship with that company and accepts the terms of use.
“Everything that the Ombudsman stated in the Draft Law and that he now wants to defend to the citizens is already provided for in those conditions and the regulations of that company are prohibited,” Jovanović pointed out.
He also points to the effect of fear that spreads to social networks, and affects people’s solidarity.
“People will also wonder if they can even call for donations, for help, for solidarity, all that we saw that students did in previous years, that is exactly the goal of the law,” said Jovanović.
He expects the Ombudsman to do his job, and “instead of dealing with the rights of social network users, he deals with punishing people for what they write on social networks.”
Before he wrote the draft and its explanation, says Jovanović, if he already wanted to enter that field, he should have read the act on digital services of the European Union.
“The state can regulate platforms in the domain of their transparency, user protection, but not in this way – to take over the social network, to turn it into a public space and to put full police surveillance on it,” Jovanović points out.
The Secretary General of the Independent Journalists’ Association of Serbia (NUNS), Tamara Filipović, does not dispute the right of the ombudsman to initiate changes to certain laws, but considers the manner in which it was done controversial, as it spreads the problem beyond the media community.
“As far as the media and journalists are concerned, the burden of proof is being shifted to the citizens, not the institutions. You have to go to a notary, to make sure that you did not publish it. This opens up space for pressure on journalists and on the environment in which journalists work, on their sources, contacts. All of this is very complicated and opens up space for enormous abuse and additional pressure, and can also encourage self-censorship,” said Tamara Filipović.
She announced that NUNS, if there is a public discussion at all, will have its position and comments.
“Honestly, I’m not really convinced that there will be an open public hearing,” said Tamara Filipović.
She also points out that in the countries of the European Union, the regulations on public order and peace do not cover the digital space, but there are special regulations for that.
Earlier, in December, the ombudsman proposed a regulation that includes a ban on the use of mobile phones in primary and secondary schools, even during recess, so that teachers would be in charge of communicating with parents, if necessary, except in the case of students who, due to their health condition, prove, with a doctor’s certificate, that they need to use a mobile phone at school as well.
Uroš Jovanović sees it as a soft way to make communication difficult, especially for high school and high school graduates, who were active in supporting students.
“I believe, if this happens, that high school students, high school graduates, will find a way to communicate. But this should show them who actually has the power, to make them afraid of any future organizing, as they had in previous years,” Jovanović points out.
The Draft Amendments to the Law on Public Order and Peace, drawn up in the office of the ombudsman, stipulates that, apart from in a public place, indecent and insolent behavior that disrupts public order and peace or offends the morals of citizens, will be treated as a misdemeanor on social networks as well, which would also apply to insults and threats.
Among other things, the law would deal with fortune-telling on social networks, interpretation of dreams or other deceptions that deceive citizens, mediating or organizing prostitution, but also endangering the well-being of citizens by collecting donations without the approval of the competent authorities.
Penalties provided for in the draft range from 10,000 to 150,000 dinars, community service from 80 to 360 hours or imprisonment for 10, 30 or 60 days is provided for.