The Government of the Republic of Serbia invalidated its Conclusion 05 no. 53-2928/2020 (“Conclusion“) which centralized the publication of information on the current state and consequences of the infectious disease COVID-19 through the Crisis Staff for suppression of the Infectious Disease (“Crisis Staff“) headed by Prime Minister Ana Brnabić,.
The Government announced the Conclusion on March 28 and it was published on March 31 in the Official Gazette of RS no. 48/2020.
On April 3, the Government invalidated the Conclusion (by adopting new Conclusion 05 no. 53-3010/2020, published in Official Gazette of RS no. 50/2020).
Let us first remind you of what was stipulated in the original Conclusion.
The Conclusion began by recognizing that informing the public about the current state and consequences of the COVID-19 pandemic is in itself a measure of protection against the disease. However, after that statement, the responsibility for informing the public was placed under the sole responsibility of the Crisis Staff. The local authorities as well as local crisis staffs were responsible to provide all information exclusively to the main Crisis Staff, which, as stated, was responsible to verify the information and conduct other appropriate measures prior to publication. The same process applied to health care workers and health institutions, but information coming from them was subject to “a double filter”. Information coming from medical workers would first be sent to the competent public health institute and then to the Crisis Staff. Finally, the Conclusion stated that information disclosed by unauthorized persons (that is, all information not published by the Crisis Staff) could not be considered accurate, and opened the possibility that those who publish and/or disclose unauthorized information could be considered liable and subject to legal consequences under regulations related to spreading misinformation during the state of emergency.
Although the Conclusion was invalidated (after being implemented for one full day), it is necessary to clarify all legal aspects of this situation which raised important questions.
The statement that informing the public is a measure of protection against disease was used to subsume such a decision under the Protection of the Population Against Infectious Diseases Act (the “Act“), which stipulates that the Government may determine appropriate measures and the manner of their implementation in order to prevent and control the disease. It is undisputable that disclosure of information in these circumstances is indeed a kind of a protection measure. What is contentious and even contradictory with the aforementioned aim of the Conclusion, is that the Conclusion strictly centralized disclosure of information. So, paradoxically, by the same act, one measure was proclaimed and restricted.
There are two reasons why it is unclear why the Conclusion, in its final part, mentions existence of legal consequences for spreading misinformation.
The first reason is that the Conclusion does not previously discuss misinformation at all. The Government tried to regulate publication of information, not misinformation. Accuracy is inherent to the concept of information. “Inaccurate information” is an oxymoron, as common as that phrase might be. An information cannot be deprived of its accuracy by the Conclusion regardless of the manner of its disclosure. Furthermore, the Conclusion itself does not contain any sanctions if, for example, a doctor or a mayor reveal some information that is not disproved as inaccurate, which is logical because such incrimination would be contrary to the Constitution. If the intention was not to punish those publishing accurate information, the Conclusion should have been written much more skillfully. In practice, the norm contained in this legal act had only a disposition without a sanction.
Secondly, the fact that the Conclusion mentioned regulations regarding spreading of misinformation (hence, false news or claims) is not only superfluous, because those regulations certainly exist and apply, but also requires further clarification. At least when it comes to specific incrimination (Causing panic and Disorder), the Penal Code stipulates that whoever by, disclosing or disseminating untrue information or allegations causes panic, or serious disruption of public peace and order, or frustrates, or significantly impedes, enforcement of decisions of government authorities or organizations exercising administrative authority, shall be punished. A qualifying circumstance is the commission of this criminal act through the media. An under-emphasized aspect when it comes to incrimination of the spreading of misinformation is that this is a consequential crime. Therefore, firstly, it is necessary that the published claim is inaccurate. Secondly, in order for a criminal deed to exist, it is necessary that a consequence occurred, i.e. that panic was spread and other stipulated consequences actually materialized.
Regardless of the fact that no sanction for information disclosure outside the Crisis Staff was stipulated, the very instruction on the behavior of local authorities and medical workers restricted freedom of the media and the right to be informed, which are guaranteed by the Constitution of the Republic of Serbia. The Constitution stipulates that there is no censorship in Serbia, and that competent court may prevent spread of information through means of public information only when this is necessary in a democratic society to prevent incitement to violent overthrow of the system established by the Constitution, to prevent violation of territorial integrity of the Republic of Serbia, to prevent propagation of war or instigation of direct violence, or to prevent advocacy of racial, ethnic or religious hatred inciting to discrimination, hostility or violence. Everyone has the right to be accurately, fully and timely informed about issues of public importance and the media is obliged to respect this right.
While restricting disclosure of information, the Government was likely guided by the general authorization that constitutional rights can be restricted if that is allowed by the Constitution to the extent necessary to satisfy the constitutional purpose of a restriction in a democratic society and without encroachment of the substantially guaranteed right. In the case of aforementioned rights, the possibility of their limitation by law is not stipulated. Moreover, these restrictions were not imposed by an act rendered by Parliament but by the Government’s Conclusion. Furthermore, our Constitution does not belong to the type of constitutions that provide for the authority of rendering decrees with the force of a parliament act. In addition, the Government haven’t even rendered a decree but a Conclusion. All of these points reopened many of the debates that exist in all democratic states now regarding questions of limiting constitutional rights in extraordinary circumstances.
For more information, please contact us via covid19@geciclaw.com.
