Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
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In this case, the Constitutional Court of the Republic of Serbia found that the provisions of the amendments of the Law on Public Information were unconstitutional since they granted the executive branch (“Minister”) the power to arrange some parts of public media without legal basis. Therefore, the provisions contradicted the freedom of media protected under Article 50 of the Serbian Constitution as well as Article 10 of the European Convention on Human Rights (“ECHR”).
On 22 July 2010, along with a declaration that certain provisions of amendments of the Serbian Law on Public Information (Official Gazette RS, no. 43/03, 61/05) from 2009 were unconstitutional, the Constitutional Court of the Republic of Serbia decided to revise other provisions of this law challenged in submitted petitions. The challenged provisions were Articles 2 and 7. The Court found that Article 2 (which added Article 14b) was unconstitutional and, since Article 7 is logically connected to Article 2, Article 2 should also be deemed unconstitutional.
Article 2 added to Article 14b in paragraph 2, which prescribed that: “The Minister in charge for the area of Public Information will arrange the details of handling the registering of public media.” Article 7 stated that: “the Minister will adopt the bylaw for manner of handling the registering of public media within the 30 days of adoption of this law” and the timeline for founders of public printed and other medias must sign in with this registry.
The provisions were challenged on the grounds that they gave the power to the executive body to arbitrarily arrange the manner of handling the pubic media registry—a constitutive element for establishing public media—and therefore, the provisions violate the freedom of media proclaimed in Article 50 of the Constitution.
The Court first stated that the Constitution of the Republic of Serbia divides the power of the state into three branches, emphasizes respect for human rights, and establishes that the government maintain freedom of media in the Republic of Serbia (Articles 18, 50, 79).
Accordingly, the Court emphasized that the Republic of Serbia is entitled to establish a system of public media, and the manner of establishing freedom of that media is protected by the Constitution, through the Law on Public Information and its amendments. For that reason, the Court found that the process of registering with the media registry did not contradict the freedom of media, since this process is not a constitutive element for a finding of public media. Further, it also stated that the fact that the Minister regulated this area with a bylaw is not disputable since it possesses this power according to the Law on Public Administration. Therefore, the Minister has the right to elaborate further the provisions that are already stipulated in law. Specifically, it has a right to arrange the details of handling the register. However, the Court found that the Law on Public Information did not contain provisions related to the procedure of signing in into this registry or the manner of handling this registry. Accordingly, these provisions are unconstitutional since they grant the Minister powers that are not prescribed by law.
As a consequence, Article 7, which governs timelines, was also ruled unconstitutional.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the Constitutional Court of Serbia emphasizes its long lasting position that the freedom of expression must be respected with regard to freedom of establishment of media. The Court found that questions of arranging and handling the registry of public media is in direct connection with establishing freedom of the media. Also, it emphasized that the manner of exercising fundamental human rights can only be prescribed by law.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The general rule is that decisions of the Constitutional Court have immediate effect from the moment they are published in the Official Gazette and from that moment the unconstitutional provisions of the law are void.
Let us know if you notice errors or if the case analysis needs revision.