The Council of Europe commissioned to the Swiss Institute of Comparative Law a comparative study in respect of filtering, blocking and take-down of illegal content on the Internet in the 47 member States of the Organisation. This study describes and assesses the legal framework but also the relevant case-law and practice in the field. It is divided in two main parts: country reports and comparative considerations
The study points out that Montenegro does not have a law that specifically regulates blocking, filtering and take-down of illegal content. The Internet is rather regulated within several different legal documents, on various levels ʹ from Constitution, via various laws, such as Law on Media, Law on Electronic Media, The Criminal Law, the Law on Electronic Commerce, towards the self-regulatory mechanisms of the Agency for Electronic Media and Media Council for Self-Regulation.
On the other hand, it is said that there is no single body responsible for monitoring the content of the Internet in Montenegro. There are several bodies that are, from various aspects, viewing online content and assessing its compliance with various laws.
„The Police Directorate of Montenegro, Forensic Center monitors the implementation of the Criminal Code. The Agency for Electronic Media is in charge of implementing the Law on Electronic Media which defines electronic publications as „Internet pages and/or portals that have editorial control and consists of electronic versions of print media and/or information from media to wider public, not matter of its scope“. The Agency is in charge of issuing broadcasting licenses via digital or analogue, terrestrial, cable, Internet or satellite transmission. However, the broadcasting of the programme via global information network (Internet webcasting) does not fall under the obligation to obtain the license.“
As an example, The Agency for Electronic Media had noticed that in October 2011 there was the expansion of information that contains direct description of violence and its consequences or videos of victims that can be disturbing for audience on both Internet portals and in Montenegrin electronic media. The Agency also observed that there were an increased number of warnings to disturbing content before broadcasting it than before, but there was also much more illegal content, explicit violence and its consequences in both broadcast video as well as in comments by audiences. The Agency warned that such a practice seriously threats the implementation of legal and ethical framework as well as possibility that the public is informed true, objectively and timely. As a result, the Agency published the Press Release where invited electronic media and Internet portals to respect and protect the public interest, especially of minors, the respect of privacy and ethical values of citizens of Montenegro. The Agency had stressed that if the practice like that continued, it would have to undertake not only preventive, but also other legal measures in order to protect the public interest and citizens of Montenegro.“
The study also adds that the Media Council for Self-Regulation is an independent self-regulatory body that monitors the broadcasting, print and online media in Montenegro. The aim of the Council is to develop and improve the media self-regulation in Montenegro in order to protect citizens from non-ethical reporting in media and raises the awareness on the importance of truthful and timely reporting. The Media Council monitors the implementation of Codex of Montenegrin Journalists in media and acts as a mediator between unhappy readers and media. In addition, the Media Council decides on citizens’ complaints on media and protects the public from unprofessional and manipulative journalistic reporting. Finally, it publishes quarterly reports which are available on its web site.
Finally, the Agency for Electronic Communications and Post monitors the implementation of the Law on Electronic Communications. In case of fraud or misuse, the operator has the obligation that, upon the request of the Agency or on its own initiative but with the Agency’s approval, blocks the access to certain numbers and services.
The Ombudsman monitors the protection of children on the Internet and has made several recommendations in his above mentioned report. The Ombudsman recommends the establishing of the unique database on all cases of abuse of children on the Internet ʹ in all segments, from oral reporting to cases that were processed. The Ombudsman is of opinion that it would enable monitoring of cases related to abuse of children on the Internet, as well as better data flow between various institutions.
The main issue in Montenegro seems to be the publishing of UGC (user generated content) comments on the web portals, especially mass media web sites where many times the European Court of Human Rights standards are not met. The Media Council for Self-Regulation (MCSR) publishes quarterly reports on the work of Montenegrin media in that period. The last part of every report is related to Internet portals of media outlets that are subject to monitoring. The main remark of most of the reports is a problem of hate speech or insulting comments, published on media portals. The Media Council for Self-Regulation invites media to strengthen the rules on nonpublishing of such a speech, rather than to react once the illegal comments are already published and sometimes voluntarily remove it or not.
The Media Council explains that „despite the fact that the Codex of Journalists of Montenegro does not explicitly mention online journalism, bearing in mind that it deals with ethical standards of journalists profession (mass media, social networks, whatever), the Media Council has taken the stand that the ethical rules apply to portals and comments of readers as that relationship opens a great interaction between media and readers, and is often a place where freedom of expression is abused. The Media Council stand point is that the media editorial is responsible for content published on Internet portal. It often breaches internal „Users’ maula“ that it will not publish the information that call for racial, religious and national hater or use them in any context of bad language and call for violence“. The Media Council stresses that media portals that want to open the public debate „has to take into consideration not only their own dignity but also of consequesces of public words that can threat someone’s life, destroy the family and the public debate itself“. The Media Council has recommended that some categories of news should not be commented at all, such as chronics when someone dies or gets killed, or when someone is called guilty without trial, etc.
This approach is in line with the European Court of Human Rights stand point, especially with the latest „Delfi vs Estonia“ case where Delfi, news portal, was held liable for the offensive comments that its readers were leaving online.
To conclude, even though in some cases, such as self-regulatory mechanisms at the Media Council, the regulatory framework has precise and specific rules on the scope of the restrictive measure of blocking/filtering, this still does not necessarily mean that these rules will be implemented in practice. The best example are the rules that almost every media with Internet portal has, about nonpublishing hate speech, insults, etc., and then when real comments arise, there is no editorial control over them.
