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LEGISLATION

The Law on Public Information and Media, Official Gazzette No. 83/2014, August 13, 2014. [(1) This law regulates inter alia the freedom to gather, publish and receive information, freedom to form and express ideas and opinions, as well as freedom of sharing information and ideas through the internet and other platforms. (2) Article 29, par. 1 defines media as a means of public information which by words, images or sound transmits edited information, ideas and opinions and other sort of content intended for public distribution and to an unspecified number of users.  (3) According to Article 30, par. 2, miscellaneous online platforms - such as internet forums, social networks, and other platforms which enable free exchange of information, ideas and opinions - or any other individual electronic publication - such as blogs, web presentations, and similar electronic presentation - do not qualify as media under this law, unless they are registered with the Media Register. Therefore, apparently, this law would apply to online intermediaries only under these narrow circumstances. (4) According to Article 59, upon the request of a Public Prosecutor, the Court can block the distribution of information or other media content if this is necessary in democratic society and if information refers to:

• an act of direct violent overthrow of the constitutional order;
• an act of direct violence towards a person or a group of persons due to their race, nationality, political views, religion, sexual preferences, invalidity, or any other personal characteristics, if by publishing such information there is a direct, imminent, serious and irreparable harm, whose occurrence cannot be prevented in any other way. (5) Article 75 specifically provides for the prevention of hate speech by stating that ideas, opinions, or information published in media, must not encourage discrimination, hate or violence against any person or group of persons due to their race or not belonging to certain race, religion, nation, gender, sexual preferences, or any other personal characteristic, irrespective of whether by publishing such information a criminal offence has been committed or not. (6) However, Article 76 provides that there is no breach of Article 75, if the information allegedly violating Article 75 is a part of a journalistic article and has been published:
• without an intention to encourage discrimination, hate or violence against person or a group of persons, especially if such information is a part of an objective journalistic report;
• with an intention to critically expose discrimination, hate or violence  against a person or a group of persons, or to expose statements that represent or might represent an encouragement to such behavior. (7) Finally, the law emphasizes special protections of juveniles, so that media content must not harm their moral, intellectual, emotional, and social development.  The Advertising Law, Official Gazette No. 79/2005, September 24, 2005. [(1) This Law regulates the conditions and manner of advertising, rights and obligations of advertisers, producers and transmitters of advertising messages, as well as the rights of recipients of advertising messages. (2) Article 2, par, 1.5. defines that producer of an advertising message as a a legal entity, which has been registered for planning advertising activities, creating or producing advertising messages, planning or renting advertising space within public media, or for certain stages of the advertising process. (3) The Law defines various types of advertising which are strictly prohibited, such as advertising calling for a boycott of another person, advertising with prohibited symbols, advertising of pornography, advertising showing use of force, advertising highlighting the dominant position of one gender compared to a person of another gender, advertising of narcotics, alcoholic drinks, tobaccos or weapons. Moreover, abuse of inexperience, ignorance and credulity of juveniles is also strictly prohibited in advertising, as well violation of reputation and authority of family or school (see Articles from 30 to 85). (4) Article 100, par. 2 states that the advertiser and producer of an advertising message are jointly liable for damages caused by the advertisement. The Law on Electronic Commerce, Official Gazette No. 41/2009, June 10, 2009 [(1) This Law regulates the regulates the conditions and manner of information society services, obligations to inform service users, commercial messages, rules relating to the conclusion of the contract in electronic form, the responsibility of service providers of the information society, and monitoring violations. (2) Article 3, par. 1.3. defines an information society service as a "service provided at a distance, for a fee, through electronic equipment for data processing and storage, upon personal request of services users, and especially internet based commerce, offering information and advertising via the Internet, electronic search engines, as well as providing search data and services transmitted by electronic networks, providing access to a network or storage of services users’ data." Moreover, Article 3, par. 1.4. defines information society service providers as a "legal entity or entrepreneur, as well as a natural person, who has the status of dealer in accordance with the law governing trade, which offers the services of the information society."  (3) Article 16-19 provide safe harbours for online intermediaries. Mere Conduit. Article 16 that service providers transmitting electronic messages at the instructions of the user, is not liable for the content of the sent message as well as its further transmission unless he did not:
• initiate transfer;
• choose data or document which are subject of transfer;
• exempt or changed data in the message or document content;
• choose the content recipient. (4) Temporary Storage (or Caching). According to Article 17, the service provider is not liable for the automatic, intermediate and temporary storage that is performed only for efficient formation of the data transfer requested by any other user services, if:

• does not change the data;
• takes into account the conditions for access to the data;
• complies with the rules for updating;
• acts in accordance with the permitted application of technologies for data collection;
• removes or disables access to the data that is kept immediately after learning that the data is removed from the transmission through the network or is denied access to them, as well as when the court or other competent authority, ordered their removal or disabling of access.

(4) Permanent Storage (or Hosting). According to Article 18, the service provider that stores data at the request of the users, on demand services, is not responsible for the stored data, if:

• did not or could have known about illegal users' activities or information;
• immediately after learning that an unauthorized activity or information removed or disabled access to this information.

(5) Linking. According to Article 19, the service provider who through electronic linking grant access to data of another service provider is not responsible for the information, if:

• did or could not have known about illegal users' activities or information;
• immediately after learning about illegal activities or information, removes or disables access to the data.

(6) No monitoring Obligations. According to Article 20, when providing information society services, the service provider is not required to review the data that is stored, transmitted or made available, or to investigate circumstances indicating the illegal operation of the service user.(7) Mandatory Notification. Article 20 also states that service provider must inform the competent state authority if there is a reasonable doubt that:

• their services are used to undertake illegal activities;
• users provided illegal information.

The service provider must provide information on the basis of an appropriate judicial or administrative decision, disclose all the information necessary to identify or prosecute offenders, and protect the rights of third parties. (8) Notice and Takedown Obligations. According to Article 20, par. 2, notification of illegal activities or information in accordance with Article 18, par. 1. 2 and Article 19, par. 1. 2 shall contain the information about the sender of the notice, the precise description of the online location where illegal activities or information occur, as well as an explanation if the request is inadmissible.The Law on Copyright and Related Rights, Official Gazette No. 104/2009, December 24, 2009.[Article 48 states that any person shall have the right to make a temporary reproduction of a work of authorship without the author’s permission and without paying any remuneration, under the following conditions:

• reproduction is transient or incidental;
• reproduction is an integral and essential part of a technological process;
• purpose of reproduction is to enable a transmission of data in a network between two or more persons through an intermediary, or to enable a lawful use of a work of authorship; and
• reproduction does not have independent economic significance.]

The Law on Contracts and Torts, Official Gazette No. 29/1978, October 1, 1978.[Provisions of this law are relevant in terms of civil liability of intermediaries for damages caused by breaching contractual and extra-contractual obligations provided by the law.]

BILLS AND PENDING PROPOSALS

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

DECISIONS

Superior Courts

Belgrade Court of Appeal, GŽ/101 2014, February 19, 2014[defamation, honor, reputation, hosting provider, internet portal, removal] [In this case Court decided that in order to prevent further violation of personal rights, court can order the removal from an internet portal of a text which harms honor and reputation. The court stressed that, despite the fact that only certain parts of the mentioned text were harmful to the plaintiff's honor and reputation, complete removal was necessary due to the fact that the mentioned harmful parts should be considered as inseparable from the whole (including photographs).]

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

OTHER RESOURCES

Serbian Government, http://www.srbija.gov.rs/Serbian Business Registry Agency, http://www.apr.gov.rs/eng/Home.aspx

CONTRIBUTORS

Nikola Lekic, Attorney at LawEmail: nikolalekic.lekic at gmail.com

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