The Ombudsman was not asked to comment on the amendment to the Media Act (ZMed-1) during the public debate but has nevertheless decided, after examining it, to proactively give some opinions, as the implementation of some of the provisions could have significant consequences for the functioning of the Ombudsman’s institution and the protection of rights in the field of media. The opinions were submitted to the Ministry of Culture on 31 January 2024.
The Ombudsman does occasionally receive requests from line ministries to comment on legislative proposals. He responds to them when his work done to date indicates that there are shortcomings in the area the legislative proposal wants to regulate, either in terms of the protection of human rights and fundamental freedoms or if the proposed legislative solutions relate directly to the institution or mandate of the Ombudsman. In this case, he again focused on the proposed solutions that foresee his activity in the field of rights protection and the parts that he has already addressed in the past in relation to the Media Act, and on which he has already given his views and recommendations. The Ombudsman naturally expects the provisions of the Act to be drafted in a way that is consistent with human rights and fundamental freedoms and that allows for media freedom and independence, which are prerequisites for the effective functioning of a democratic and pluralistic society. He does not exclude the possibility that a comprehensive commentary on the various changes or innovations introduced by the ZMed-1 amendment may be considered in the future, either based on individual complaints or at his own initiative.
In the Ombudsman's opinion, the draft ZMed-1 is yet another example of an Act in which the submitting party imposes tasks on the institution of the Ombudsman without consulting them first, as has already happened; for example, in the cases of the proposed Act on Assistance in Voluntary End of Life or the adopted Radiotelevizija Slovenija Act. The Ombudsman has repeatedly called on the Government of the Republic of Slovenia and the legislator not to impose powers on the Ombudsman's function that are not provided for in the Constitution of the Republic of Slovenia utilising laws or other regulations. Once again, the amendment is drafted in such a way that it is not compatible with either the Human Rights Ombudsman Act (ZVarCP) or the Venice Principles. Ombudsman Peter Svetina is convinced that this practice of drafting and adopting legislation without and bypassing the institutions and groups to which it applies is unacceptable and he, therefore, expects it to stop.
The Ombudsman considers that the proposed solution in Article 34, Paragraph 4, that the competent inspector may (also) consult the Ombudsman before issuing a temporary measure for the removal or prohibition of dissemination of objectionable content, is inadequate in several respects. First of all, the Ombudsman recalls that media broadcasters are not the holders of public authority or public powers, which the Ombudsman has the power to exercise under the Constitution and the law.
The Ombudsman, following sectoral legislation, also cannot initiate case handling based on an initiative of public authority acts (which inspectors undoubtedly are), as the Ombudsman is established precisely to protect the rights of individuals against the authorities. The proposed regulation would also be controversial from the point of view of the independence and autonomy of the Ombudsman in his work (Article 4 of the ZVarCP). According to the proposed solutions, based on the inspector's initiative, the Ombudsman would have to give “opinions, views or instructions”, i.e., he would have to deal with the case that an inspector, as the public authority act, decided to refer to him. Not only is such an initiation of case proceedings before the Ombudsman not provided for in national legislation; but such a situation would also be incompatible with international standards for the functioning of ombudsman institutions. For example, the Council of Europe's Principles on the Protection and Promotion of the Ombudsman institution (the Venice Principles) state in point 14 that “the Ombudsman shall not be given nor follow any instruction from any authorities”; point 16 also explicitly states that such an institution “shall have discretionary power, on his or her own initiative or as a result of a complaint, to investigate cases” (which would be out of the question in the case of an inspector's initiative), etc.
The Ombudsman also reminded the Ministry of Culture of the Republic of Slovenia (MK) of his recommendation on the implementation of the provision on the prohibition of the dissemination of hatred in the media; in his opinion, the MK has not sufficiently implemented it in the amendment proposal. From the proposed amendment, it is not clear that the Ombudsman's recommendation was even taken into account in the drafting process. The Ombudsman considers that the proposed first paragraph of Article 34 of the ZMed-1 amendment, which amends and supplements the existing Article 8 of the ZMed (that is still in force) on the prohibition of incitement to inequality, violence and war, and incitement to hatred and intolerance, is more specific and thus provides greater legal certainty, and therefore represents an improvement compared to the existing regulation. However, since the proposed solutions do not include sanctions for media outlets that allow hate speech to be published, the Ombudsman considers this sends a bad message to the media, as it will still be the case that a breach of this provision does not give rise to any liability on the part of the media outlet. The Ombudsman has been pointing out for years that regulation is ineffective without adequate sanctions. In this respect, he expects a significant step forward, which is not demonstrated by the amendment proposal. The Ombudsman proposes a reconsideration for the ZMed-1 to define a violation of Article 23, Paragraph 1 (once a definitive judgment has established it), as an offense and, consequently, for a fine to be set for the media (e.g. at least one comparable to, for example, the definition of conduct contrary to Article 34 (protection of children)).
In his reports on the rule of law, the Ombudsman, as well as in the European Commission's annual report on the rule of law in Slovenia, also highlights the importance of transparency of data on the media. He is committed to full transparency in the functioning of the media and therefore sees no reason to restrict the ownership data in the official records “only” to persons who have at least a 5% ownership interest or share in the capital or assets of the broadcasting or publishing company. The Ombudsman is looking for clarifications in this respect and for consideration to be given to introducing full transparency of media ownership.
The Ombudsman expects the new law to allow both the free functioning of the media and real transparency of their ownership. The Ombudsman also sees a particular challenge in the development of the information landscape and the definition of media reporting entities, as well as the issue of permanent funding for non-profit media in the public interest and the definition of criteria for state aid to the media. The Ombudsman expects that all these issues will be adequately addressed by the amendment to the Media Act. The Ombudsman also points out that progress is needed on transparency in the management of state and local authority funds for advertising in media houses. As the European Commission warns Slovenia, the country lacks clear and transparent principles on how to pay for media content, which is particularly worrying at a municipal level.
Last but not least, the Ombudsman also draws attention to the unacceptable precarisation of the journalistic profession, which restricts the freedom of journalists and reduces the quality of their work. “Concern for journalists is also a concern for the right to freedom of expression, and the state should find appropriate normative solutions to limit the precarisation of journalistic work,” emphasises Ombudsman Peter Svetina.
