Number: 021-01-00327/2018-02 Date: 27 September 2018
Acting within the framework of legally prescribed competencies to monitor the implementation of the laws concerning the prohibition of discrimination and recommending to public authorities and other persons measures for the achievement of equality, the Commissioner for the Protection of Equality sends to the Internet portal
recommendations on measures sent to internet portals registered in the Media Register kept by the Business Registers Agency
RECOMMENDATION ON MEASURES FOR THE ACHIEVMENT OF EQUALITY
The Commissioner for the Protection of Equality recommends to the Internet portal ______________
– To take all necessary measures to prevent the publication of content and comments by users on the Internet portal and profiles on social networks, as well as to remove the comments that have already been published, which makes such content and comments available to the public which by their nature may incite hatred or violence against an individual or a group of individuals on the grounds of their personal characteristic or cause fear or hostile, degrading and offensive environment.
No appeal may be filed against this recommendation on measures for the achievement of equality or any other legal remedy, because it does not decide on the rights and obligations of legal entities.
Statement of reasons
Acting on the basis of a complaint filed by an organisation for the protection of human rights, the Commissioner for the Protection of Equality noticed that certain Internet portals, through various communication channels of online media and online editions, publish content on their social media profiles as well as users’ comments which by their nature can incite hatred or violence against an individual or a group of individuals on the grounds of their personal characteristic, or cause fear or hostile, humiliating and offensive environment.
In this regard, the Commissioner reminds that the Constitution of the Republic of Serbia prohibits any direct or indirect discrimination based on any grounds, particularly on race, sex, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability.
The constitutional prohibition of discrimination is elaborated in more detail by the Law on the Prohibition of Discrimination which describes discrimination as any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics. Article 11 of the Law on the Prohibition of Discrimination prescribes that it is forbidden to express ideas, information and opinions inciting discrimination, hatred or violence against an individual or a group of persons on account of his/her or their personal characteristics, in public organs and other publications, in gatherings and places accessible to the public, by writing out and displaying messages or symbols, and in other ways, whereas Article 12 prescribes that it is forbidden to expose an individual or a group of persons, on the basis of his/her or their personal characteristics, to harassment and humiliating treatment aiming at or constituting violation of his/her or their dignity, especially if it induces fear or creates a hostile, humiliating or offensive environment.
The Law on Electronic Media in Article 4(1)(19) prescribes that electronic publication means editorially designed website or web portal. Article 5(1) prescribes that the Regulatory body for electronic media, established by this Law, is an independent regulatory organisation as a legal entity that exercises public authority for the purpose of: the effective implementation of the defined policy in the provision of media services in the Republic of Serbia, improving the quality and variety of electronic media; contribution to the preservation, protection and development of freedom of opinion and expression, in order to protect the public interest in the field of electronic media and the protection of electronic media users, in accordance with the provisions of this Law, in a manner suitable for a democratic society. The competencies of this body are defined in Article 22(1), thus item 8 prescribes that the Regulator shall control the operation of media service providers and ensure the consistent application of the provisions of this Law. Article 51 of the same Law prescribes that the regulator shall ensure that the programme content of the media service provider does not contain information which overtly or covertly encourages discrimination, hatred or violence based on race, colour, ancestry, citizenship, national origin, language, religion or political beliefs, sex, gender identity, sexual orientation, economic status, birth, genetic characteristics, health status, disability, marital and family status, criminal record, age, looks, membership in political, trade union and other organisations, and other actual or presumed personal characteristics, whereas Article 54 of the Law prescribes that a media service provider shall be responsible for content, regardless of whether it is produced by a provider or other person.
The Law on Public Information and Media in Article 29(1) prescribes that media are means of public information using words, images and/or sounds to convey editorially shaped information, ideas and opinions and other content intended for public distribution and for an indefinite number of recipients, whereas paragraph 2 of the same Article prescribes that, for the purpose of this Law, media are, in particular, dailies and periodicals, news agency services, radio and television programmes and the electronic editions thereof as well as independent electronic editions (editorially shaped websites or Internet portals), entered in the Media Register in accordance with this Law. Article 30(1) of the same Law prescribes that, for the purpose of this Law, media are not books, films, carriers of audio or audio-visual content, scientific and technical magazines intended primarily for the information and education of specific groups of professionals, other printed publications, catalogues exclusively containing notifications, classifieds, commercial advertisements and information intended for the market or bulletins and similar publications intended for internal information, electronic publications of state authorities and organisations, institutions, public enterprises and companies, entrepreneurs and associations thereof, official gazettes, printed material such as leaflets, posters and similar means of public information, other publications defined under legislation governing publishing, or Internet browsers or aggregators. Paragraph 2 of the same Article prescribes that, for the purpose of this Law, media are not: platforms such as Internet forums, social networks and other platforms enabling free exchange of information, ideas and opinions of their members, or any other independent electronic publication such as blogs, website and similar electronic presentations unless they are entered in the Media Register, in accordance with this Law. Furthermore, Article 31(5) of the Law on Public Information and Media prescribes that any independent electronic edition is considered one medium.
Therefore, from the quoted articles of the Law on Public Information and Media follows that Internet portals are media using words, images and/or sounds to convey editorially shaped information, ideas and opinions and other content intended for public distribution and for an indefinite number of recipients. Also, it prescribes that any independent electronic edition is considered one medium.
The Law on Public Information and Media prescribes the responsibility of the editor or the responsible person for the content published on Internet portals as a type of media, and Article 48 prescribes that the media must have an editor-in-chief, that the editor-in-chief of a medium has the capacity of the editor responsible for that media, and that an editor responsible for a specific issue, section or programme unit shall be responsible for the content he or she edits.
Article 75 of the Law prescribes an obligation of each medium to take care of the content it publishes and/or that ideas, opinions or information published in the media do not incite discrimination, hate or violence against an individual or a group of individuals on grounds of their race, religion, nationality, sex, or their sexual orientation or other personal inclination, notwithstanding whether a criminal offence has been committed by such publication.
In addition, the Code of Journalists of Serbia defines professional and ethical standards which contribute to raising the reputation of the journalistic profession, promoting advocacy for freedom of thought, speech and expression, as well as the independence of the media. In the part of the Code entitled Responsibility of Journalists, it is stated that a journalist must confront all those violating human rights or advocating any type of discrimination, hate speech and provoking violence. In the part entitled Journalist’s Attention, it is prescribed that a journalist must be aware of the dangers of discrimination that can be disseminated by the media and shall do his best to avoid discrimination based on, among other things, race, gender, age, sexual orientation, language, religion, political or other views, national or social origin.
When publishing any content, care should be taken that such content does not incite discrimination, hatred or violence against an individual or a group of individuals on the grounds of any personal characteristic. In this regard, the Commissioner for the Protection of Equality points out that verification of content can be done in several ways, in particular verification of the content created by users such as comments, which when published become an integral part of the content published on the Internet portal. The Guidelines for the implementation of the Code of Journalists of Serbia in the online environment recommend that online media and online editions, regardless of the type of moderation they use, make rules for publishing user-generated content in which they will clearly state what types of content (behaviour) on their communication channels are not allowed and explain how the moderation system works. Depending on technical capabilities, Internet portals can develop a system for the notification of users about why certain user’s content has not been published (previous moderation), or why certain user’s content has been removed (post-moderation). The Guidelines specify that user’s content which the online media decide to publish falls under the editorial responsibility of the media. In addition, the Guidelines emphasise that, in the case of post-moderation, the removal of relevant content is carried out after learning that the content is not allowed, or after a notification has been received by a third person, and in case such content is not removed, it will be considered to fall under the editorial responsibility of the media.
Portals most often have their profiles on social networks which are followed by a large number of users and through which various content and information are published. Considering that social networks are used by an increasing number of users and are significant channels of communication and, in accordance with existing legal provisions, they are not classified as a medium, the Commissioner indicates that when publishing content on these networks, it is necessary to ensure that publication does not incite discrimination, hatred or violence against an individual or a group of individuals on the grounds of any of their personal characteristics. Accordingly, in order to ensure expedient implementation of ethical standards and prevent and reduce discrimination and hate speech, the content of users placed on social profiles of online media should undergo pre- or post-verification. Namely, the same principals in terms of ethical standards must apply to all forms of digital communication that make content available to the public and part of the public space. This must be especially taken into consideration in a situation where a large number of users follow a particular medium on its social page, because in this case, the potentially discriminatory content becomes visible and accessible to a large number of citizens or the public. For example, the Press Council determined violation of the Code of Journalists when it comes to the content that a particular medium made available on the social network. The Press Council states that discriminatory content was available to a large number of readers and that the editorial staff was obliged to remove it after having received a notification by a third person and that, in this case, there is responsibility for published comments.
Some European Union countries adopted legal solutions according to which social networks commit to removing content which represents hate speech or other illegal content from their platforms and, in the event they do not do it, they will be sanctioned. In addition, the European Commission’s Recommendation on measures to tackle illegal content online envisages that provisions should be laid down on mechanisms for sending information about illegal content online which would be easily accessible and easy to use, through which users could provide precise information on the basis of which it would be decided whether this content is considered illegal, whether access should be made available or whether it should be removed. Also, the Code of conduct on countering illegal online hate speech which envisages that online companies (Facebook, Twitter, Youtube) involved in the EU online forum, together with other platforms, bear collective responsibility for promoting and facilitating freedom of expression online. According to this Code, the stated online companies and EU countries accept the obligation to curb illegal onine speech and online companies point out that this Code is intended to guide their activities and take the lead in curbing illegal online hate speech. This Code establishes obligations such as that online companies need to establish clear and effective procedures for examining notifications about illegal hate speech within their services in order to prevent access to such content or to remove such content. If an online company finds that such content is illegal, it will remove it within 24 hours of receiving a notification about it. 
Bearing in mind the role of the media, in the Regular Annual Report for 2017, based on insights gained in the procedure conducted on the basis of complaints in 2017 and on the basis of other relevant available data on problems in achieving equality, the Commissioner pointed out that special attention should be paid to responsible reporting which must not be characterised by hate speech, sensationalism, sexism, misogyny, discriminatory attitudes, and offensive reporting. The media make a significant contribution to discussions on many issues of public interest, as well as to providing different information and attitudes. According to the public opinion survey “Public Perception of Discrimination in Serbia” conducted by the Commissioner within the framework of Twinning Project “Support to the advancement of human rights and zero tolerance to discrimination”, citizens stated that one of the most important actors that can contribute to the promotion of equality in the society, but also to increased discrimination, are the media.
In view of all the above stated and pursuant to Article 33(9) of the Law on the Prohibition of Discrimination, the Commissioner for the Protection of Equality sends this recommendation on measures to the internet portals registered in the Media Registry kept by the Business Registers Agency.
 The Law on the Prohibition of Discrimination (“Official Gazette of the RS”, No. 22/09), Article 33(1) (7) and (9)
 “Official Gazette of the RS”, No. 98/06
 The Law on Electronic Media “Official Gazette of RS”, No. 83/14, 6/16
The Law on Public Information and Media “Official Gazette of RS”, No. 83/14, 58/15, 12/16 – authentic interpretation
 Guidelines for the implementation of the Code of Journalists of Serbia in the on-line environment, Press Council, 2016 Belgrade, content available at www.savetzastampu.rs/doc/smernice-za-primenu-kodeksa-novinara-srbije-u-onlajn-okruzenju.pdf
 Decision available at: http://www.savetzastampu.rs/latinica/zalbeni-postupci/4844
 Germany (Germany’s Network Enforcement Law, so-called. NetzDG content available at: http://dip21.bundestag.de/dip21/btd/18/130/1813013.pdf
 Commission Recommendation (EU) 2018/334 dated 1 March 2018 on measures to tackle illegal online content
 Content available at: https://edri.org/files/privatisedenf/euhatespeechcodeofconduct_20160531.pdf
 The survey is available at: https://drive.google.com/file/d/0B1QaDisvv7K3c19yTVd3Z1ZuQ0U/view
COMMISSIONER FOR THE PROTECTION