SLOVENIA

Expert assessment: Sanctions

The reference to APEK’s sanctioning powers is not accurate. Only some of the sanctioning powers mentioned in the statement are actually assigned to APEK, while one (banning advertisements) was dismissed in 2006, and the other (imposing fees) inaccurately represents the context of this regulation. The provision allowing APEK to ban advertisements was deleted from the Mass Media Act when it was amended in 2006.252 Furthermore, while APEK can impose a fee for use of a broadcast or telecommunications frequency,253 the statement above implies the authority can “sanction” with fees; however, the fees for frequency usage are not a punishment. APEK has no power to impose fines for violations to content-based requirements in the media laws. Its sanctioning powers do include license revocations, although APEK has never done so.

It is also not accurate to describe APEK as “Slovenia’s regulatory body” as there are a number of additional bodies responsible for overseeing media in Slovenia, including the Media Inspectorate, the Broadcasting Council, and the Ministry of Culture, each with different competencies and sanctioning powers over different areas of media. APEK is the regulatory authority for broadcast media. The Media Inspectorate has a wider scope of authority over the media in general, including print and broadcasting, and can impose fines and sanctions not only on broadcast and print media outlets but in some cases on the responsible officers of these media as well.254 The Mass Media Act in fact specifies numerous violations for which leading officers can be sanctioned.255

APEK (the Agency for Post and Electronic Communication) was created in 2006 as a “convergent” regulatory body for (broadcast) media, telecommunications and postal services.256 Its powers to supervise implementation of regulations in the field of broadcasting are established in the Mass Media Act (adopted in 2001 and amended in 2006). Its power to manage the radio frequency spectrum is established through the Electronic Communications Act (2004), which has been amended several times. According the previous version of the Mass Media Act (2001), prior to amendments adopted in 2006, APEK had the power to “temporarily prohibit the publication of commercial advertising (advertisements, sponsorship) for a maximum of three months if it determines that the publisher, despite a warning and the stipulation of a period as specified in the first indent of this paragraph, is infringing the provisions of the act governing advertising or sponsorship.”257 But that provision was deleted from the Mass Media Act when it was amended in 2006. According to the current Electronic Communications Act, APEK has power to collect annual fees from broadcasters for the radio frequencies they use.258 The same Act grants APEK the power to impose fines on operators for breaches to technical rules established through the regulation. But these fines are not based on content.

The Mass Media Act (2006) includes content regulations for all media under that law’s scope—newspapers, magazines, radio and television programmes, electronic publications, teletext and other forms of edited programming and materials (written, audiovisual) disseminated to the public.259 These regulations include restrictions related the protection of minors, prohibition of incitement to inequality and intolerance, particularly detailed and controversial provisions on the right to correction and reply, as well as programme quotas for proportion of Slovenian, European and independent audiovisual works, and restrictions on product placements and advertising.

APEK’s supervisory and sanctioning powers are established clearly in the law.260 APEK can sanction broadcasters by using graduated sanctions, which start with written warnings and gradually grow more severe. In sanctioning violations of the Mass Media Act, including for failing to fulfill programme requirements, APEK can issue a written warning to the broadcaster, can temporary suspend a license to use a frequency for a maximum of three months and can revoke a license of the broadcaster for performing activities.261 Thus far, APEK has never revoked the license of a broadcaster. At present, APEK uses mild sanctions, such as written warnings, and as a next step, the temporary suspension of a license. APEK’s suspensions have never lasted for the maximum period of three months anticipated in the Mass Media Act.262 The procedure allows for appeals of APEK’s decisions in administrative court.

As noted previously, the Mass Media Act delineates various supervisory powers to the Media Inspector, the Broadcasting Council and to Ministry of Culture itself; and the Broadcasting Council. The Media Inspector is a supervisory body with power to impose sanctions not only on broadcast media but also on other media covered by the Mass Media Act. The Media Inspector can impose a fine on a broadcaster, operator or publisher but in some cases on a responsible officer of a broadcaster, operator or publisher.263 The fines range from as low as EUR 125 to as much as EUR 100,000 (amounts are still based on the old Slovenian tolars). If the Inspector issues a warning or non-fine sanction, the decision can be appealed to the ministry. When an inspector issues a fine, it can be appealed in a district court as a minor offense.

It is worth mentioning that APEK has no collective decision-making body, but has only a director with governing powers. Since the director is appointed by the Government, there have been many controversies over replacements of APEK’s directors with the changes of the government. The role and performance of Media Inspector is also controversial, partly because it entrusts supervision over a wide range of provisions and media outlets to a single individual and partly because the Media Inspector in general has not effectively utilized its sanctioning powers when necessary. While the law seems to give the Inspector too much power, in practice the most common complaint is that there is insufficient monitoring of the many provisions in the Mass Media Act. Some have said one inspector is not enough.

All decisions by these regulatory bodies can be appealed in the administrative court, in which case, the decision is suspended. The administrative court’s decision can be further appealed to higher courts. There have been number of cases in which broadcasters used the appeal procedure to oppose APEK’s decisions. Although most appeals in court have gone in APEK’s favour, some have been overturned. One well-noted case involved “Kmetija slavnih” (“Farm of Celebrities”), a daily prime time commercial TV programme on POP TV. The case escalated in October and November 2009, when APEK received complaints from viewers and the public service broadcaster RTV Slovenija claiming that the program violates provisions in the Mass Media Act on protection of minors. After reviewing programme requirements and restrictions, APEK decided to issue a written warning to the broadcaster, requesting the station cease the infringement of the provisions on protection of minors in the Mass Media Act within the period of one month (the shortest period anticipated in the law). The broadcaster claimed it had not violated the law and appealed APEK’s decision in the administrative court. The court decided in the broadcaster’s favor.264

251 This example was cited by the Hungarian Government under “Criticism 1” and “Criticism 18,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 252 The Mass Media Act (2006), available at: http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 253 Article 6 of the Electronic Communications Act (2004), available at: http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/electronic_communications_act_official_consolidated_version_zekom-upb1_unofficial_translation_english.pdf. 254 See the Inspectorate for Culture and Media within the web site of the Ministry of Culture at: http://www.mk.gov.si/en/ about_the_ministry/bodies_under_the_responsibility_of_the_ministry/. 255 Article 129 to Article 148a of the Mass Media Act contains provisions on fines that shall be imposed upon a publisher or broadcaster for a certain infringements, available at: http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 256 APEK (the Agency for Post and Electronic Communication), available at: http://www.apek.si/en. 257 Article 109(3) of the 2001 version of the Mass Media Act, available at: http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 258 Article 6 of the Electronic Communications Act. http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/electronic_communications_act_official_consolidated_version_zekom-upb1_unofficial_translation_english.pdf. 259 The scope of the Mass Media Act (2006), according to Article 2(1), is: “newspapers and magazines, radio and television programme services, electronic publications, teletext and other forms of editorially formulated programme published daily or periodically through the transmission of written material, vocal material, sound or pictures in a manner accessible to the public; (2) Under the present Act programme comprises information of all types (news, opinion, notices, reports and other information) and works under copyright disseminated via mass media for the purpose of informing the public, satisfying the public’s cultural, educational another needs, and communicating on a mass basis.” 260 Article 109(2) of the Mass Media Act (2006). 261 Article 109(3) of the Mass Media Act (2006), http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 262 Article 109, Mass Media Act (2006), http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 263 See Article 108 of the Mass Media Act (2006) where power of administrative and inspection supervision of the Act is given to the Ministry. See also Chapter Five of the Mass Media Act – “Penalty Provisions” (Article 129 – Artitcle 148b) for information about fines, http://www.apek.si/sl/datoteke/File/2007/osebna%20izkaznica/public_media_act_official_consolidated_version_zmed+zmed-a_unofficial_translation_english.pdf. 264 The decision of APEK and press release related to the case are available in Slovenian language on APEK’s website at: http://www.apek.si/datoteke/File/2010/monitoring/0604.44.2009.23.pdf Press release: http://www.apek.si/sl/agencija_za_posto_in_elektronske_komunikacije_ugotovila_krsenje_medijske_zakonodaje_v_resnicnostni_oddaji_kmetija.