Recommendations

According to the Code of Good Practice, administrative bodies have the obligation to enable voters to get acquainted with the lists of candidates (VC I.3.1.b.ii). Also, in accordance with the freedom of expression, the minimum access to privately owned audio-visual media, when it comes to the election campaign and advertising, should be legally ensured for all candidates participating in the elections. (I.2.3.c). In order for these standards to be met, it is necessary to undertake the following:

1.  Improve the normative framework in the field of political advertising

   Although the current Law on Advertising applies accordingly to election campaigns, the provisions of the Law are so focused on commercial advertising that it is practically impossible to determine their meaning in the context of political advertising. This problem was noticeable during all election campaigns after the adoption of the Law on Advertising in 2016. During that period, the REM repeatedly issued opinions about the contents of the videos of presidential candidates and interpreted the provisions of the Law on Advertising. However, due to the lack of clear regulations, the way in which the REM interpreted the existence of comparative and misleading advertising was inconsistent. In order to overcome these obstacles, it is necessary to adopt amendments to the Law on Advertising or to pass a special law that would have the regulation of political advertising as unique subject. Furthermore, until the adoption of an act that would systematically regulate this area, political advertising in electronic media should be regulated in more detail by amendments to the Law on Electronic Media.

2. Clearly define the circle of entities that are allowed political advertising during the election campaign

   It is necessary to amend the Law on Electronic Media and the Law on Advertising and clearly prescribe that political advertising is allowed only during the election campaign and only to those political entities whose electoral list or candidate proposal has been announced by the competent electoral commission.

3. Improve the normative framework so that the display of promotional content that has elements of promotion of political subjects in the news programme of media service providers is considered a covert form of political advertising that is not allowed outside the election campaign

   It is an increasingly common practice for media service providers to download pre-recorded promotional videos containing elements of political party promotion from the social media accounts of parties in power or institutions before election campaigns and broadcast them in the form of news. Since this is content designed for the purpose of political promotion, it is necessary to improve the normative framework and prevent this type of promotion outside the election campaign.

4. Prohibit the broadcasting of advertising messages in which public resources are misused for the purposes of political promotion

   Due to the lack of a precise normative framework that would prevent unpunished broadcasting of advertising messages in which a political entity abuses public resources for the purposes of its promotion, during the 2020 election campaign, the REM did not sanction media service providers who broadcast advertising messages in pre-election blocs for which the Anti-Corruption Agency, earlier in the campaign, found that they were an illegal way of political promotion. Since this situation remained unregulated even before the 2022 elections, it is necessary to unequivocally prohibit the broadcasting of advertising messages of this content by amending the Law on Advertising or by adopting a special law that would have the regulation of political advertising as unique subject.

5.  Explicitly determine that the time slots leased by political subjects will be considered an advertising message, the duration of which is included in the allowed advertising space of 12 minutes during one hour on commercial television stations, i.e. 6 minutes on public media services

   Although the Law on Advertising, nor any by-law allow to media service providers to offer election participants to advertise, for the purposes of the election campaign, their electoral lists in time slots that last longer than those prescribed by the Law (6 minutes on public services and 12 minutes on commercial television stations), during the 2020 and 2022 election campaigns in the programmes of certain media service providers, programme contents lasting several tens of minutes were broadcast, which were used to promote a political entity against a certain fee. Since allowing political entities to lease time slots longer than those prescribed by the Law contributes to the inequality of election participants, it is necessary to amend the Law on Advertising and prohibit media service providers from promoting political entities for a fee outside of election advertising programmes.

6. Improve the transparency of political advertising financing

   According to the amendment to the Law on Electronic Media from December 2021, media service providers are held to publish fees for political advertising before the kick-off of the election campaign, as well as the criteria for determining the price of political advertising and payment terms. Given that this amendment does not provide sufficient transparency of political advertising during the election campaign, it is necessary to amend the Law on Financing Political Activities and the Law on Electronic Media and oblige media publishers, as broadcasters of advertising messages, to submit to the Anti-Corruption Agency no later than 15 days from the day of announcing the overall election results, contracts specifying the terms of lease of advertising space for all political entities (political parties, coalitions and groups of citizens), and other documents stipulating advertising conditions in case that they are not fully provided by the contract or that the contract has not been signed, as well as to publish these contracts or documents on its website. In the practice so far, in a large number of cases, the Anti-Corruption Agency has requested this information from the broadcasters of advertising messages after the conducted elections. This information, as information of public importance, can be requested from the Agency by any citizen, but the Agency has never proactively published it. In order for these data to be available to all citizens in a timely manner, it is recommended to determine the obligation for all MSPs where political entities advertised to submit that data to the Agency as soon as possible after the elections, and to oblige MSPs to publish them on their websites.

7. Determine indicators of unequal access to advertising

   In order for all election participants to advertise under equal conditions in the programme of media service providers, it is necessary to specify that the following will be considered creating of unequal position: a) providing one electoral list with more than one quarter of the total number of terms offered to political parties, coalitions and organisations for the promotion of a particular program of media service providers; b) different prices of political advertising for different parties, coalitions or organisations participating in the elections; and  c) more favourable or less favourable terms for publishing political advertising.

Voters must have the freedom to form an opinion, and public authorities must respect the obligation of neutrality in relation to the media (VC I.3.1.a.i).  Administrative bodies must be obliged to implement legal sanctions for violations of the obligation of neutrality and freedom of voters to form an opinion. (I.3.1.c) The Code provides for an effective system of appeals in the electoral process (I.3.3), in which there must be the possibility of a final appeal to the court (I.3.3.a). In order for these standards to be met, it is necessary to undertake the following:

1. Establish the exclusive competence of the REM in the process of monitoring the electronic media during the election campaign
   
   In order to avoid the negative effects of the parallel competence of the Supervisory Board and the REM in the oversight of public media services during the election campaign, it is necessary to amend the Law on the Election of Members of Parliament and to exclude the oversight of all electronic media from the Supervisory Board. In addition, given that during the election campaign for the elections of 2022, the Provisional Supervisory Body for Media Monitoring had certain competencies in media control, it is necessary to implement measures aimed at strengthening the independence and quality of the REM work so that it could independently and professionally exercise media control during the election process.
2. Precisely prescribe the REM obligations during the election campaignIt is necessary to amend the Law on Electronic Media and explicitly oblige the REM to periodically publish (for instance once in two weeks during the campaign) written reports on the monitoring and analysis of electronic media during the election campaign and to publish the final Report on the oversight of the work of electronic media during the election campaign no later than one month after the announcement of the final election results, on the basis of monitoring programme content broadcast by media service providers, from its competence ex officio and according to a pre-published monitoring plan.
3. Establish criteria for sampling media service providers monitored during the election campaignThe amendment to the Law on Electronic Media should stipulate that during the election campaign, the REM must monitor:- public media services;

   - all media service providers who have been issued a license for terrestrial broadcasting for the entire territory of the Republic of Serbia;

   - the appropriate sample of MSPs with local and regional coverage, taking into account the geographical distribution, where the sample is formed to include media service providers that received the highest amounts of funds through co-financing of public information projects in the period from the announcement of overall results of the last election to the day of sample determination;

   - the appropriate sample of media services with highest ratings that have a license for broadcasting via cable network, where the viewership is determined on the basis of data from an authorised agency specialised in viewership research.

4. Determine the obligation of the REM to adopt a methodology for monitoring MSP during the campaign in a transparent procedure before each election campaign and determine the mandatory elements of that methodology

   REM's obligation to determine the methodology of monitoring MSP during the election campaign must be determined by the Law on Electronic Media. The methodology would be determined in the form of a by-law, for the adoption of which, in accordance with the Law, it is necessary to hold a public debate. In addition to the measurement of actors’ display time, the methodology would particularly focus on: selection of the observation period; selection of subjects; measurement of objects as well as definition of tonality.

5.  Specify the mandatory elements of the MSP Repost on the oversight during the campaign
   
   The amendment to the Law on Electronic Media should stipulate that during the election campaign, the REM must publish reports once in two weeks and that the final report on MSP monitoring must be published no later than 30 days from the day of announcing the overall election results. It is necessary to prescribe that reporting be done on the basis of conducted qualitative and quantitative analysis of programme content, whereas reports must contain findings of the REM expert service regarding equal representation of candidates, i.e. election lists in the media, media reporting on candidate activities, records of public appearances of electoral actors in the role of state officials and candidates, the context in which a particular participant in the election is mentioned, as well as other important aspects of media work that may have an impact on objective and comprehensive informing of citizens about candidates and election programmes.
6. Ensure transparency of collected data

   In order for the public to have access to all data collected by the REM through monitoring, it is necessary to introduce clear mechanisms for the attribution and determination of the responsibilities of the REM Council and to oblige the REM by the Law on Electronic Media to publish the data collected by monitoring in the form of an open database on its website on a daily basis.

7.  Enable judicial review of all REM decisions made upon complaints

   It is necessary to amend the Law on Electronic Media and prescribe the obligation of the REM to initiate proceedings and make a reasoned decision on each complaint submitted during the election campaign, including those alleging a violation of the general interest, which may be subject to judicial review.

8. Include the report of the expert service for oversight and analysis in the reasoning of the decision

   It is necessary to introduce the obligation to include the report of the expert service for oversight and analysis in the reasoning of the decision on complaints, so that complainants can be aware of the facts and circumstances that were decisive for making a particular decision.

9. Provide short deadlines for the REM to decide on citizens’ complaints

   In order for the control of the election campaign to be efficient, it is necessary to amend the Law on Electronic Media and oblige the REM to make a decision in the procedure on complaints of natural or legal persons during the campaign within 96 hours of receiving the complaint. Aditionnally, it is necessary to consider the possibility that, even outside the election campaign, the REM decides within a short period of time in cases where complaints pinpoint hate speech or violation of the rights of minors.

10. Provide a more effective mechanism for punishing broadcasters that do not follow the rules during the campaign

    In order for the sanctions that the REM imposes on media service providers to have a greater effect on media service providers that violate the law, it is necessary to consider the possibility of enabling the REM to implement its decision through indirect coercion, by imposing monetary fines, if the MSP does not act in accordance with the imposed measure, as well as the possibility of enabling the REM to impose fines in a fixed amount, in addition to the measures that it currently has at its disposal.