Parts of electronic communications law are unconstitutional

The Media Coalition has welcomed the Constitutional Court's ruling that some legal provisions of the Law on Electronic Communications are unconstitutional.

Source: B92
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They are related to the access to retained data, which had already proved controversial during the procedure of adoption of the law.

The Constitutional Court has decided that the article 128 paragraph 1, article 128 paragraph 5, and article 129 paragraph 4 of the Law are unconstitutional. These articles describe access to retained data without decision by a court, as well as the authorization of the relevant ministry to more closely regulate requests for retained data using subordinated regulations.

"We remind that the constitutionality of these provisions was already disputed during the process of adoption of the Law on Electronic Communications three years ago, in June 2010," the Media Coalition said in a statement late last week.

"The problem was related to inconsistent and incoherent legal framework regulating the issue of retained data," the organization noted.

It explained that the retained data is information about communication that is not related to the content of the communication, while above all, this information describes the following: source of communication; destination of communication; beginning, duration and end of communication; type of communication; identification of the users' equipment; location of mobile users' equipment. Using the example of telephone communication, this information describes the caller's number; the called number; time of the beginning and end of the telephone call; duration of the telephone call; the device that is used in communication (the type of mobile phone); as well as the geographic location of the telephones used in communication.

The disputed provisions were violating the procedural guarantees stipulated by the Article 41 of the Constitution of the Republic of Serbia, which states that any deviation from the inviolability of secrecy of letters and other forms of communication is allowed only for a certain time and on the basis of a court decision, if necessary for the purpose of criminal proceedings or protection of security of the Republic of Serbia, in accordance with law.

The Law on Military Intelligence Agency (VOA) and the Military Security Agency (VBA) and the Law on Criminal Proceedings were stipulating exceptions to the rule that retained data can be accessed only on the basis of a court decision. The Constitutional Court decided in June 2012 that certain provisions of the Law on VOA and VBA were unconstitutional. These provisions had stipulated that retained data could also be accessed on the basis of a directive issued by the director of the Military Security Agency or a person authorized by him/her. According to the new decision by the Constitutional Court, certain provisions of the Law on Electronic Communications are unconstitutional because they did not stipulate a procedural guarantee i.e. access to retained data only on the basis of a court decision. Aside from this, the decision denies the competent ministry in the field of electronic communication to more detailedly regulate the area of retained data by adopting subordinate legal regulations.

This decision of the Constitutional Court has several consequences, the Media Coalition noted: first, it is beyond dispute that security services, defense institutions and internal affairs bodies will be allowed to access the retained data only on the basis of a court decision. Next, all issues related to retained data have to be regulated by laws and not by subordinate regulations. At the same time, these two decisions will have to be followed by a similar decision that will establish that certain provisions of the Law on Criminal Proceedings violate the Constitution.

"Additionally, the subordinate legal regulations being prepared by the Ministry of Foreign and Internal Trade and Telecommunications, which is intended to regulate the equipment and software support required for legal interception of and access to information, will have to be withdrawn from the adoption procedure since it now lacks a legal basis for adoption. This subordinate legal regulation – which has already been withdrawn from the adoption procedure several times at the request of the Commissioner for Information of Public Importance and Personal Data Protection and the Ombudsman – will be allowed to only regulate technical specifications of the equipment used by providers to enable legal interception of communication (the content of communication), while retaining of information will have to be regulated by amendments to the Law on Electronic Communications," the statement said.

"We remind that the Media Coalition actively supported the request to decide the constitutionality of the Law on Electronic Communications submitted in 2010 by both the Commissioner for Information of Public Importance and Personal Data Protection and the Ombudsman, because the disputed legal provisions were violating not only the privacy of citizens, but also the confidentiality of journalists' sources of information, as was pointed out in the publication entitled 'Serbian Media Scene VS European Standards'," the press released added.

The Media Coalition called on the Constitutional Court to also pronounce unconstitutional the disputed provisions of the Law on Criminal Proceedings, so that the principle of procedural guarantees from the Article 41 of the Constitution of the Republic of Serbia would be consistently applied in all laws that regulate the access to retained data.

The Media Coalition is made up of the Association of Independent Electronic Media (ANEM), the Independent Journalists' Association of Serbia (NUNS), the Journalists' Association of Serbia (UNS), the Independent Journalists' Association of Vojvodina (NDNV) and Local Press.

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