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LEGISLATION

Law No. 97 on Audiovisual Media in the Republic of Albania, 2013 [(1) This law regulates the activity of audiovisual media and their support services in Albania on the basis of the technological neutrality principle (Article 1).  (2) According to Article 3, “Electronic communication network” is the systems of broadcasting, including satellite networks, fixed networks with cycle commutation or package commutation, including internet, mobile land networks, the electric cable systems when they are used for the transmission of signals, and the networks used for radio television broadcasting, irrespective of the information transmitted. (3) According to Article 42, (i) Audiovisual commercial communications must be as recognizable as possible. Surreptitious Audiovisual commercial communication shall be prohibited. (ii) Communications of a commercial nature in audiovisual broadcasting must not use ways of seducing viewers in an unconscious way, and must not use suggesting techniques. (iii) Audiovisual commercial communications must not:

• affect human dignity;
• include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
• encourage behavior that damages individuals’ health or physical safety;
• encourage behavior or actions that damage the protection of the environment; (iv) All forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited. (v) Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages. (vi) Audiovisual commercial communication for medicinal products and medical treatment available only on prescription shall be prohibited. (vii) Audiovisual commercial communications shall prevent the causing of physical or moral detriment to minors, and abusive exposure of minors to situations that are dangerous for them. Therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, and shall not expose minors to situations that are dangerous for them.] Law No. 10128 on Electronic Commerce, May 11, 2009 [(1) The object of this law is to establish rules for conducting commercial transactions electronically, through services offered by the information society for the protection of persons participating, the legal protection of customer confidentiality of confidential data to its participants, as and to ensure the free flow of information services, defining the responsibilities of providers of information society services. (2) "Information society services" means services provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. (3) Responsibilities of intermediary service providers are governed by Articles 15-20. (4) The simple transmission (mere conduit) (Article 15). 1. Where the provision of information society service consisting of transmitting a communication network of information provided by the recipient of the service, or providing access to a network, the service provider is not liable for the information transmitted if the service provider:
• does not initiate the transmission
• does not select or modify the content of information transmitted
• does not select the receiver of the transmission2. The acts of transmission and provision of access under paragraph 1 of this Article shall include the automatic, immediate and temporary information transmitted only monitoring the transmission in a communication network, providing storage of information as long as necessary for transmission. (5) Temporary storage of information (Caching) (Article 16). When transmitting information in a communication network, the service provider that offers the transmission of information, is not responsible for temporary storage, intermediate and automatic, perform only to increase the efficiency of information transmission to other recipients of the service, at their request, if the offeror:
• does not modify the information;
• satisfies / acting in accordance with the terms of access to information;
• meet / comply with the rules for updating the information in a specified manner, well known and widely used;
• does not interfere through the use of legal technology known and widely used by electronic communications industry, to obtain data on the use of information;
• act expeditiously to remove or disable access to the information stored, as recognized by the fact that the information at the initial source of the transmission has been removed from the network, access has been disabled or responsible authorities have ordered the removal or deactivation. (6) Hosting (Article 17). 1. "Where an information society service consisting of the storage of information provided by the recipient of the service, the service provider of the information society is not responsible for the information stored at the request of the recipient of the service, if the service provider:
• does not or may not be aware of the illegal activity of the recipient or content of information and, as regards claims for damages, it is not aware of facts or circumstances from which the information derived or illegal activity;
• upon receipt of this information, acts expeditiously to remove or disable access to the information.2. Paragraph 1 of this Article shall not apply when the recipient of the service is acting on behalf or under the control of the service provider. (7) Information search tools (Article 18). Service providers, who create, through electronic means, access to information to third parties are not responsible for this information, if:
• they did not know or may not be aware of the illegal activity of the recipient or about data that contains information;
• by making aware of illegal activity or data, remove or deactivate access to this data. (8) Cessation or prevention of violations (Article 19). Notwithstanding the provisions provided in the law, in particular Articles 15, 16, 17 and 18, the service provider is required to terminate or prevent an infringement, if requested by the court or by the responsible authorities, in accordance with legislation in power. (9) Obligations of the service provider (Article 20). 1. Providers of information society services have no obligation to monitor the information they transmit or store, as well as the investigation of facts or situations that indicate an illegal activity. 2. Service information society immediately notify authorities if they have reasonable suspicions that service users:
• they are carrying out illegal activities;
• reported illegal information.3. Service providers’ responsible bodies were present at their request and in accordance with applicable law, all information that enables identification of the recipients of these services. Law No. 9918 on Electronic Communications in the Republic of Albania, May 19, 2008 [Law No. 9918 on electronic communications includes certain provisions on obligations and criteria for telecommunication operators relating to the safeguarding of fundamental rights and freedoms. The Law also includes provisions on technical security parameters of telecommunication networks, and liability provisions for providers of public electronic communications networks and services. The provisions pertaining to service providers include data retention, the safeguarding of the secrecy and confidentiality of electronic communications, the provision of unsolicited commercial communications, and the lawful eavesdropping of telecommunications.] Law No. 9887 on Protection of Personal Data, March 10, 2008 [(1) This law aims at defining the rules for the protection and legal processing of the personal data.  (2) According to Article 2, the legal processing of the personal data shall respect and guarantee the fundamental rights and freedoms of persons and in particular their right to privacy.  (3) Obligations of the Processor (Article 20). The controllers may recruit processors to process personal data. The processor shall guarantee lawful and safe use of data. All personal data processors shall have the following obligations:
• to process data only according to the instructions of the controller; not to transmit data unless so instructed by the controller;
• to take all required safety measures, in compliance with this law and to employ operators who are bound by confidentiality;
• to create in agreement with the controller the necessary technical and organizational requirements for the fulfilment of the controller’s obligations to ensure the protection of data subjects’ rights;
• to hand over to the controller after the completion of the processing service all the results of processing and documentation containing data or to keep or destroy them on controller’s request;
• to make available to the controller all information necessary to control the compliance with the obligations stemming from the abovementioned provisions.  Law No. 9380 on Copyright and Related Rights, April 28, 2005 [The copyright law provides protection to rightholders for copyright infringment. The law targets primary infringers but secondary liability might be extended to third parties facilitating, aiding or abetting infringement.] Constitution of Albania (approved by referendum on November 22, 1998), November 28, 1998 [(1) According to Article 22, freedom of expression and freedom of the press, radio and television are guaranteed. Prior censorship of means of communication is prohibited. The law may require authorization to be granted for the operation of radio or television stations.  (2) The Constitution contains a special provision (Article 17), which provides for the regulation of the limitations of all human rights and fundamental freedoms, including the freedom of expression. Limitations of Constitutional rights and freedoms may be established only by law in the public interest or for the protection of the rights of others. The restriction must be proportionate to the situation that has dictated it. These limitations may not infringe the essence of freedoms and rights and in no case may exceed the limitations provided for in the European Convention on Human Rights. This article, by defining the cases and conditions as may restrict the rights and fundamental freedoms, in fact reinforces the constitutional guarantee of these rights, while avoiding arbitrary restrictions of their own. Thus Article 17 has determined that the conditions for limiting the rights are:
• The restriction must be prescribed by law.
• Limits should be placed on protecting the rights of others.
• Limits should be in accordance with the situation that has dictated it.
• Limit must not violate the essence of freedoms and rights.
• Limitation in any case should not exceed the limits laid down in the European Convention of Human Rights.] Law No. 7895, Criminal Code of the Republic of Albania as amended, January 27, 1995 [(1) Article 7 Implementation of the law on criminal acts committed by foreign nationals – letter j) - applies to criminal acts related to technological information field.  (2) Article 74(a) - titled computer dissemination of materials pro genocide or crimes against humanity - states that "public provision or distribution of deliberate public through computer systems, materials, to deny, minimize, significantly approve or justify acts that constitute genocide or crime against humanity, punishable by imprisonment of three to six years." (3) Recent amendments to the criminal code included specific legal provisions that are relevant to electronic communications, training for acts with terrorist purposes, public incitements, and to propagandize actions with terrorist purposes. The possession of content involving “terrorist propaganda” materials is also criminalized. The maximum prison terms provided by law for such offenses are 10 years for public incitement. (4) The Albanian Criminal Code includes provisions governing matters relating to libel and insult (defamation), including the designation of insult against an individual or group of persons, insult through computer systems based on special motivations, and libel against an individual or a group of persons. The law envisages sanctions including fines and imprisonment for contraventions of the pertinent provisions. The highest penalty envisaged by Article 119 is imprisonment of up to one year; and by Article 120 up to two years.]

Administrative RegulationRegulatory Entity: Albanian Authority on Electronic and Postal Communications (AKEP) [AKEP is an administrative body in charge with implementing websites blocking orders or content takedown in Albania.]

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.]

DECISIONS

Superior Courts

[There are currently no known superior courts' decisions on the issue of intermediary liability.]

Lower Courts[There are currently no known lower courts' decisions on the issue of intermediary liability.]

OTHER RESOURCES

Albanian Authority on Electronic and Postal Communications, www.akep.al

CONTRIBUTORS

Sofjan JaupajEmail: sofjan.jaupaj at gmail.com[personal page]

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