Events of particular significance for all citizens play a crucial role in the society. This is primarily the case with sports events, considering the undeniable social and integrative significance of sports, even recognized by the European Court of Justice. However, along with sports, there are other types of important events that help in the formation of the collective consciousness, the sense of connection and the society identity. These could be cultural (concerts, festivals) and political events (parliamentary elections, speeches by heads of state), as well as events that happen once in a lifetime (revolutions, natural disasters).
Bearing in mind that media access has a huge influence of the individual’s ability to participate in social life, as well as their professional and educational capabilities, it is necessary to define the minimum of events which must be available through the media to the citizen majority. That is why regulations for the transmission of major events and access to events of great public interest have been created on a national as well as on European level. Essentially, the regulations enable the exercise of rights to the freedom of thought and freedom of expression, i.e., the right of access to information.
However, considering that these rights limit other legitimate rights, first and foremost the rights of copyright holders to their economic exploitation, a certain balance needs to be found in the mutual exercise of these rights, i.e., the list of the major events must not be too broadly set.
In the domestic law, The Law on Electronic Media (“Official Gazette of RS, no. 83/14 and 6/16 – other law; hereinafter: Law) and the Rulebook on the Method of Formation of the List of Major Events of Particular Significance for all Citizens and Exercise of the Access Rights for Events of Great Public Interest (“Official Gazette of RS, no. 25/15; hereinafter: Rulebook) regulate the method of forming the list of major events, as well as the requirements for the exercise of rights of television broadcast service providers to access to events of great public interest.
However, the implementation practice for these rules to date has generated several debatable issues which need to be answered. The issues in question are as follows:
a) Who can exercise the right to transmission of events from the list of major events of special significance for all Republic of Serbia citizens (hereinafter: most important events)?
b) What if the right to transmission of major event is acquired by a domestic or foreign media service provider not fulfilling the requirements for the exercise of those rights by law?
v) What if no media service provider authorized for the relevant exercise of rights is interested in the transmission of major event?
a) Who can exercise the right to transmission of events from the List of major events?
In principle, the right to transmission of major events can be exercised by television transmission service providers with free access and whose service area includes the entire region of the Republic of Serbia (article 64, paragraph 1 of the Law). That means that it is necessary for the following three requirements to be fulfilled:
1) That the provider in question is a television broadcast service provider, and therefore this right cannot be exercised by on demand media service providers (nonlinear media services), but only by linear media service providers.
2) The access to the media service must be free. The access to the service is free if the program can be viewed without paying any additional fees to the media service provider or distribution operator. Consequently, the access to the television transmission service is not free if it is provided as a protected service, i.e., as a service with conditional access or if an additional fee is required for watching (article 6, paragraph 5 of the Rulebook). However, the obligation of paying a tax in accordance with the law governing the public media service will not be considered an additional fee, nor will the paid fee the operator for access to their basic package of distributed media services (article 6, paragraph 6 of the Rulebook).
3) That the service area of the provider includes the entire Republic of Serbia region. The following providers classify for this group:
– licence holders for providing media services on the entire territory of the Republic of Serbia. These are the holders who have been issued a license for providing media services through a terrestrial distribution network for the entire Republic of Serbia territory (national media service providers);
– media service providers whose television signal is available to 90% of citizens in the Republic of Serbia. This category includes the public media service Radio Television of Serbia, but also every media service provider providing their services, pursuant to a licence for providing media services, through a cable distribution network, IPTV, internet or other distribution networks, whose service is available to 90% of citizens in Serbian, considering the number of distribution service users, i.e., media service users (article 6 paragraph 4 of the Rulebook).
Hence, when answering the question of who can exercise the right to transmission of major events, it is of no significance whether the media service provider is domestic or foreign, what is important is whether the service provider fulfils the three specified requirements.
b) What if the right to transmission of major event is acquired by a domestic or foreign media service provider not fulfilling the requirements for the exercise of those rights by law?
The transmission rights for those events can also be acquired by a media service provider not fulfilling one of the specified three requirements, however the provider will not be able to exercise that right and is required to assign it to a media service provider fulfilling the requirements (article 64, paragraph 2 of the Law).
The assignment of that event would be executed under commercial, i.e., market conditions but in an honest, nondiscriminatory and fair manner, with the service provider preferably conducting an appropriate procedure thereby publicly offering authorized television transmission service providers the acquisitions of rights for the transmission of specific event.
There is also the question of what the sanctions would be if a certain media service provider was to exercise the right to event transmission without being authorized to do so. The approach to the problem varies depending on whether the service provider in question is under the Republic of Serbia jurisdiction, within the meaning of article 46 of the Law.
If it is under jurisdiction, the Regulator can impose any of the measures provided by law – a reprimand, a warning, a ban on publishing program content or revocation of licence (article 28, paragraph 1 of the Law).
However, if it is not under jurisdiction, the Regulator cannot impose any of the measures provided by law, although it can address the regulatory body of the country whose jurisdiction the provider is under, so that it could take the appropriate measures. Particularly considering that the EU Directive on Audio-visual Media Services (article 14, paragraph 3) and the European Convention on Transfrontier Television (article 9, paragraph 2) include regulations which the member states have transferred into their legislation, instructing countries to ensure that the media service provider would not exercise their right to transmission of major events in a manner that would deprive a significant portion of the public of another member state of the opportunity of watching such event.
The essence of these provisions is reflected in the mechanism of mutual acceptance and cooperation, with the member states having to assist one another in the implementation of regulations on the transmission of events from the lists of other member states. At the same time, the obligation of respecting and implementing the list of major events of other countries exists regardless of whether the respective member state has compiled their list. In other words, member states are not required to compile a list of major events, however in that case other states are in no obligation to respect their broadcasting rights to major events.
v) What if no media service provider authorized for the relevant exercise of rights is interested in the transmission of major event?
The transmission right to a major event can in this case be exercised by a television broadcast service provider not fulfilling the service area requirement of including the entire Republic of Serbia territory, provided that the access to the television broadcasting service transmitting the major event is free. That is, it would be unfair to withhold the possibility of exercising that right for other providers, seeing as such limitation would be unnecessary, inappropriate, and disproportionate with the goal that the specified provisions seek to achieve – and that is to enable the following of major events for the Serbian. At least that portion of the citizens which the program is available to would, thus, be able to watch the major event, since no provider covering the entire Republic of Serbia territory is interested in broadcasting.
At the same time, if no provider with free service access is interested in exercising the major event transmission right, that right could be exercised by a provider with service access that is not free of charge.
In these instances, other media service providers are also entitled access to the major event, considering that such event is still considered an event of great public interest (article 8, paragraph 2 of the Rulebook), even though the event is being transmitted by a media service provider not fulfilling one of the above stated requirements. Hence, the provisions of the Rulebook governing the means of publishing the notification that the provider has acquired the right to transmission of event (article 9 of the Rulebook), the requirements under which the access to the event is being granted (article 10 of the Rulebook) and the means of publishing a short excerpt compiled based on the exercised right to event access (article 11 of the Rulebook) will still be applied.
It should also be noted that domestic media service providers are entitled access to major events regardless of the nationality of the media service provider transmitting the event, considering that this right is guaranteed not only by the domestic legislation, but also by the EU Directive of Audio-visual Media Services (article 15) and the European convention on Transfrontier Television (article 9), and that such a right has been additionally confirmed by a ruling of the European Court of Justice in the case of Sky Austria vs Austrian Broadcasting Corporation (Sky Österreich GmbH vs. Österreichischer Rundfunk), number C-283/11 dated 22.01.2013.
