REGULATING THE RELATIONSHIP BETWEEN THE GENERAL (SYSTEMIC) MEDIA ACT AND SPECIAL (SUBJECT-SPECIFIC) MEDIA ACTS

155 UDK: 340.137:316.774(497.11) UDK: 351.751:316.774(497.11) UDK: 659.3:34(497.11) DOI: 10.5281/zenodo.17799908 Miloš Prica, LL.D.,* Associate Professor, Faculty of Law, University of Niš, Republic of Serbia REGULATING THE RELATIONSHIP BETWEEN THE GENERAL (SYSTEMIC) MEDIA ACT AND SPECIAL (SUBJECT-SPECIFIC) MEDIA ACTS** Abstract: This article examines the relationship between the basic (systemic) media act and other special (subject-specific) media acts in the legal order of the Republic of Serbia. In line with the constitutional principle of unitary legal system, special media acts must comply with the legal principles and legal institutes of the basic (systemic) media act. On the other hand, special media acts are subject to the application of the basic media act (as a general legal act) in matters which are not regulated by subject-specific acts. Consequently, it is important to determine the scope of application of the general media act in relation to subject-specific media acts. The relationship between the media acts currently applicable in the Republic of Serbia is not properly regulated, and there is no clear awareness of the criteria that could be applied in regulating the relationship between individual media acts. Bearing this in mind, this article elaborates on the meaning of subsidiary and corresponding application of the general (systemic) media act, and identifies the common points of reference indicating the importance of mutual compatibility of media acts within the system of media legislation. Keywords: basic (systemic) media act; individual (ordinary) media acts; general act; special (subject-specific) act; direct, subsidiary and corresponding application of the general media act. * [email protected], ORCID ID 0000-0002-2393-9091. ** This paper is the result of theoretical research within the project �inancially supported by the Ministry of Science, Technological Development and Innovation of the Republic of Serbia (Contract No. 451-03-137/2025-03/ 200120, dated 4 February 2025). �������� ������� ������ ������� ��������� � ���� | 2025 156 1. Introduction The legal order of the Republic of Serbia comprises systemic and special laws. Systemic laws are basic (generic, organic) laws which regulate an area of the legal order in a teleologically comprehensive (integral) manner, while special laws cannot do the same. In the Serbian legal order, the Public Information and Media Act1 is a systemic (basic) media law which regulates the area of public information in a teleologically comprehensive manner. In addition to this basic legislative act, the Serbian legal order encompasses several special legislative acts regulating the legal regime of speci�ic types of media, such as the Electronic Media Act2 and the Public Media Services Act,3 They are special media laws, while the Public Information and Media Act is a general media law. The Public Information and Media Act (the PIM Act) is a systemic (basic) law in the �ield of public information which regulates: (1) the positive law concept of the media; (2) the basic legal principles of public information; ands (3) the general legal regime (basic legal institutes) of public information as an area of the legal order. Special media laws must comply with the basic media law in terms of the fundamental legal principles and basic public information institutes, which is in compliance with the constitutional principle of the unitary legal order.4 Legal principles, as teleological legal positions, express the basic legal ideas and guide legal awareness in the �ield of public 3 The Public Media Services Act,Official Gazette of RS, no. 83/2014, 103/2015, 108/2016, 161/2020, 129/2021, 142/2022, 92/2023 and 51/2025. 1 The Public Information and Media Act, Official Gazette of the RS, no. 92/2023 and 51/2025. 2 The Electronic Media Act, Official Gazette of RS, no. 92/2023 and 51/2025. 4 From the positive law perspective, the doctrine on differentiation between systemic (generic, basic) and subject specific laws derives from the Constitutional Court of the Republic of Serbia (hereinafter: the Constitutional Court) which specified its legal position on the unitary legal order as a constitutional principle in its Decision IU-z-231/2009 dated 22 July 2010 (Official Gazette of RS, no. 89/10) as follows: “Starting from the provisions of Article 4 (para. 1) of the Constitution which defines the principle of unitary legal order as one of the basic principles that the constitutional law system of the Republic of Serbia rests upon, the Constitutional Court points out that, even though the existing legal system does not differentiate between the so-called organic, general or basic laws that have stronger legal power that other “ordinary” subject-specific laws, which ultimately implies that the Constitutional Court is not authorized (under the provision of Article 167 of the Constitution) to assess the mutual compatibility of laws, the constitutional principle of the unitary legal order dictates that the basic principles and legal institutes envisaged in legislative acts which systemically regulate an area of social relations should be observed in subject-specific legislative acts as well, except if the systemic law explicitly prescribes the possibility of regulating such issues in a different manner.”M. Prica, Jedinstvo pravnog poretka kao ustavno načelo i zakonsko uređivanje oblasti pravnog poretka – Ujedno izlaganje o unutrašnjem pravnom sistemu (The Unity of Legal Order as a Constitutional Principle and Statutory Regulation of the Legal Order), Zbornik radova Pravnog fakulteta u Nišu, br. 78. str. 103-126. М. Прица | стр. 155-167 157 information, de�ining the legal ground of legal norms as regulatory legal positions and the legal grounds for the activities of the media as subjects of the legal order. The legal norms contained in media laws regulate the course, scope and reach of the legal regulation and activities of speci�ic types of media, as well as the authorizations and legal obligations of the media as subjects of the legal order.5 The PIM Act is the basic media law which guarantees the freedom of information and the existence of the public sphere as preconditions for a democratic society in the order of a legal state (Rechtsstaat, state of law). It protects media pluralism, the public nature of information on the media, the freedom of public criticism of public servants and political appointees, and prescribes the journalists’ duty of care for the purpose of establishing unconditional validity of objective, impartial and truthful public information. Moreover, in terms of public information activities, this basic media law takes into account the interests and needs of speci�ic vulnerable subjects in the territorial community, such as minors, people with disabilities and national minorities. The basic principles of public information should be supplemented by special legal guarantees within the scope of public information system, which are envisaged in the PIM Act, such as: the presumption of innocence, ban on hate speech, ban on public display of pornography, respect for personal dignity, privacy and private domain in general. Furthermore, the PIM Act de�ines the primary objectives in the �ield of public information which, along with the aforesaid principles of public information, represent the basic content of public interest, the starting point and foundation for building the edi�ice of public information. As a systemic law, the Public Information and Media Act de�ines the concept of the media by enumerating the features that are included in or excluded from the positive law concept of the media. In the positive law sense, one of the essential features of the media is a set of media content conceptualized by the editorial staff, as a result of which the internal organizational structure of the media implies relations between media publishers/ broadcasters, editors-in-chief, and journalists. Nevertheless, one should bear in mind that internal organizational structure is not identical for all media. Unlike the printed media and a vast majority of electronic media (where the internal organizational structure implies relations between media publishers, editors-in-chief and journalists), the republic and provincial media services (as electronic media) have their own managing bodies (the board of directors, the general manager, and the program council), 5 M. Prica, Pravni principi u poretku pravne države: kanoni pravnog poretka i unutrašnjeg pravnog sistema (Legal Principles in the Order of a Legal State: Canons of the legal order and the internal legal system), Zbornik radova Pravnog fakulteta u Nišu, br. 80. str. 135-180. �������� ������� ������ ������� ��������� � ���� | 2025 158 which entails their special status. Additionally, the legal regime of supervision is not identical for all media. For instance, the Regulatory Authority for Electronic Media (RAEM) supervises the work of electronic media. However, in case of public media services, the RAEM supervision activities have been reduced to a minimum, and they have been completely excluded in case of printed media. From the perspective of the positive law, it means that the media are differentiated on the basis of the legal regime of their organizational structure, activities and supervision, which ultimately de�ine the type of media. Thus, the Public Information and Media Act is not only the basic but also the only legislative act applicable to printed media, which regulates all aspects of their operation. On the other hand, the legal regime pertaining to electronic media has been regulated by the Electronic Media Act, while the legal regime governing public media services (as electronic media) has been regulated by the Public Media Services Act. It has generated the need to establish several legal regimes governing the media and insist on the mutual legal correlation between the enacted media laws (the systemic and special legislative acts). In that context, it would be of crucial importance to determine the criteria for establishing the media legislation system by de�ining the relations between the systemic (basic) media law and special media laws. In addition to de�ining the concept of the media and legal principles, the Public Information and Media Act regulates the general legal regime which applies to all media, including as follows: (1) the relationship between publishers, editors-in-chief, and journalists; (2) media register; (3) basic information about the media (imprint, short imprint, etc.); (4) distribution and storage of media content; (5) information retraction and information correction; (6) liability for damage, and (7) co-�inancing the projects in the �ield of public information. All provisions of the Public Information and Media Act are directly applied to all media, while special laws may prescribe speci�ic legal regimes for a particular type of media, provided that the speci�ic legal regimes are in compliance with the provisions of the PIM Act. In the Republic of Serbia, the two special media legal regimes have been established for electronic media and public media services as a type of electronic media. The purpose of these special media legal regimes is to strengthen and expand the implementation of the general legal regime of public information. Consequently, it would be ideal to establish circular connection between the special legal regimes and the general legal regime by ensuring full compliance of all media laws in the media legislation system. The Electronic Media Act regulates the establishment of electronic media, their status, scope of activities and supervision. The primary feature М. Прица | стр. 155-167 159 of the legal regime governing electronic media are extensive authorizations of the Regulatory Authority for Electronic Media (RAEM), which performs regulatory, supervisory and quasi-judicial tasks. The special legal regime envisaged in the Electronic Media Act should fully comply, in all aspects, with the general legal regime envisaged in the Public Information and Media Act. Depending on the scope of broadcasted media content, the electronic media can be classi�ied into: a) media with national (state-wide) coverage, and b) regional (local, non-central) media. Television stations that broadcast TV programs on the entire territory of the country have a special legal status. In a legal state, the greatest impact is attributed to electronic media, especially television stations with state-wide (national) coverage and the socalled public media services, as media which should accomplish special goals in the �ield of public information. In the Serbian legal system, the status and activities of public media services are regulated by the Public Media Services Act, which has the status of a special legislative act in relation to the Public Information and Media Act as the general legislative act. Moreover, considering that public media services are a type of electronic media, the Electronic Media Act is regarded as a hierarchically higher (general) legislative act in relation to the Public Media Services Act. Television stations with state-wide (national) coverage primarily aim to accomplish general interests; they are bounded by the special content of the public interest and, thus, they have a signi�icantly wider scope of duties than other televisions. Unfortunately, the current circumstances in the �ield of public information in the Republic of Serbia prove otherwise. 2. Regulating the relationship between the general (systemic) media act and special (subject-specific) media acts The relationship between the general (systemic) media act and special (subject-speci�ic) media acts may be based on the regime of legal subordination and the regime of legal referral. It further leads to the distinction between subsidiary and analoguous application of the general law, which is the author’s original standpoint. Analogous application entails the application of the general law in accordance with the nature of the relationship between the legal procedure rules and the subject matter of legal regulation, whereas subsidiary application entails the application of the general law as a whole in all matters which are not regulated by a subject-speci�ic law.6 The legal regime governing electronic media is different from the legal regime governing printed media. It primarily refers to the fact that the status and activities of electronic media are regulated and supervised by the Regu6 M. Prica, Pravna država i medijikanoni medijskog prava (Legal State and the Media: Media Law Canons), Pravni fakultet Univerziteta u Nišu, Niš, 2021, 97-116. �������� ������� ������ ������� ��������� � ���� | 2025 160 latory Authority for Electronic Media (REAM), as an independent subject in institutional order of the Republic of Serbia. This body is also authorized to make decisions on issuing licenses and permissions for establishing electronic media, except for the electronic media which may be established without obtaining a license or permission. Here, we may observe the difference between the legal regime governing the registration of printed media and the legal regime governing the establishment of electronic media, which con- �irms the distinctiveness of the legal regime pertaining to electronic media. The Regulatory Authority for Electronic Media (RAEM) is an independent organization. As such, it is not supervised by the Government or any state administration authority but the activities of such independent bodies may be controlled by the National Assembly and the courts. On the other hand, autonomous institutions and bodies are subject to the Government supervision. This shows the difference between independence and autonomy as two distinctive features of the legal status of the institutions and bodies in the legal order. Having in mind that these concepts are mutually exclusive and that a body cannot be both independent and autonomous at the same time, it is rather baf�ling that the Electronic Media Act de�ines the Regulatory Authority for Electronic Media as “an independent and autonomous organization”. Therefore, the legal de�inition is contradictory (like oxymorons “cold �ire” or “wooden iron”). This RAEM authorities are so extensive that we can freely say that that the Regulatory Authority for Electronic Media performs regulatory, supervisory and quasi-judicial tasks, which is a legal curiosity. This Regulatory Authority (RAEM) performs continuous supervision over the electronic media by controlling the operations of electronic media content providers in terms of consistent application and development of the principles governing the relations in the �ield of electronic media, as well as in terms of meeting the requirements for providing media content, ful�illing the obligations of media content providers envisaged in the Electronic Media Act and by-laws, and taking the prescribed measures without delay. In particular, the Regulatory Authority (RAEM) is obliged to ensure that media content providers comply with the obligations referring to program contents envisaged in the Electronic Media Act and conditions under which the license for their operation has been issued, especially in terms of type and nature of the program. Moreover, the Regulatory Authority for Electronic Media has the authority to initiate action and exercise meritory control. Media law is de�ined as a system which comprises teleological, systemic and regulatory legal positions. Public information is based on the public interest as a regulatory, ethical and democratic determinant; hence, it means that media activities are based on written law as a regulatory deter- М. Прица | стр. 155-167 161 minant, the public as a democratic determinant, and virtues as an ethical determinant of public interest.7 The presence of various legal regimes governing speci�ic media is the result of the fact that there are different goals which have to be achieved within the public information system as an area of the legal order. Consequently, legal regimes which have been regulated by special media laws re�lect the speci�icity of the content of public interest in speci�ic types of the media. The basic content of the public interest within public information has been determined in the systemic (basic) media law, on the basis of which the legislator may develop special legal regimes of public information regulating the activities of speci�ic media. In this context, one of the most prominent examples refers to public broadcasting services and televisions with national (state-wide) coverage as electronic media with particular duties within the public information system. The core public interest in the area of public information is stipulated in Articles 15, 16 and 17 of the Public Information and Media Act, which was the starting point for determining the content of public interest which would be applied to televisions with national coverage and public broadcasting services in line with the special legislation. Televisions with state-wide (national) coverage are subject to the legal regime regulated by the Electronic Media Act on and the Rulebook on Requirements and Criteria for issuing a license for providing media services (2024).8 In terms of program requirements, the Rulebook establishes the minimum requirements that should be met by a television aspiring to obtain the status of the media with national coverage. Televisions with national coverage are bounded by the special content of the public interest; thus, they have broader obligations than other televisions, except for public media services with the highest obligations in the �ield of public information. By performing their primary activities, televisions with national coverage should ensure the attainment of special interests in the area of public information 7 Today, the primary issue is not how to safeguard the freedom of the media from state interference but how to ensure that the media serve to uphold and develop the state governed by the rule of law. “Nowadays, the traditional meaning of freedom of the press, which is limited to protecting the press from the state abuse of power, is no longer sufficient. According to the traditional conception, as noted by Maurice Duverger, freedom of the press resembles freedom in the jungle: all animals are protected from being hunted (by the state) but who will protect small and medium-size animals from tigers or elephants (financially powerful individuals)? The press is not free if it is protected only from the state but not from the impact of financial tycoons.” R. Marković, Ustavno pravo i političke institucije (Constitutional Law and Political Institutions), 25. ponovljeno izdanje, Službeni glasnik, Beograd, 2020, 480. 8 Rulebook on Requirements and Criteria for issuing a license for providing media services, Official Gazette of the RS, no. 43/2024. �������� ������� ������ ������� ��������� � ���� | 2025 162 and provide general and comprehensive media services including informative, educational, cultural and entertainment contents for all audiences. In view of the foregoing, the essence of subject-speci�ic legal regimes is to strengthen and enhance the implementation of general legal regime of public information, whereby it would be ideal to establish circular connection between the special legal regimes and the general legal regime by ensuring full mutual compliance of all media laws in the media legislation system. The Public Information and Media Act (PIM Act) does not regulate the relationship between the provisions of the PIM Act and the provisions of other media laws, which is a major drawback in terms of the media legislation system. As the basic legislative acts, the PIM Act should contain the legal grounds for adopting special media laws, but its provisions should also clearly de�ine the limits and range of legal regimes which would be established by a special law. Furthermore, in the part regulating the general media regime and legal institutes envisaged in this Act, the PIM Act should regulate the possibility of divergence from its own provisions (i.e. explicit referral to provisions of other media laws). The essence of the systemic law is to shape the possibility of developing the legal regimes within the legal order, not only to use it as a general legislative act which is applied to issues that have not been regulated in the special law. The Electronic Media Act does not appropriately regulate the relation between its own provisions and the provisions of the basic media law (PIM Act), nor does it regulate the relations between its own provisions and the provisions of the Public Media Services Act. In turn, the Public Media Services Act refers to the concurrent application of the PIM Act and the Electronic Media Act (!) when it comes to matters which have not been regulated this Act, but it provides no further clari�ication or explanation. The concurrent application of the two media laws is neither correct nor possible. In terms of public media services, it would be legally appropriate to envisage the subsidiary application of the basic media law (PIM Act) and the analogous application of the Electronic Media Act. In view of the aforesaid and considering that the PIM Act does not regulate the relations between its own provisions and provisions of other media laws, it cannot be said that the legal order of the Republic of Serbia has a comprehensive media legislation system. This conclusion may be supported by the fact that media laws do not clearly de�ine the relations between various subjects in the area of public information, which particularly refers to the relations between the National Assembly, the Ministry in charge of public information, the Regulatory Authority for Electronic Media, and public media services. However, electronic media are subject to substantial supervision and control by the Regulatory Authority for Electronic Media (hereinafter: the М. Прица | стр. 155-167 163 RAEM). Bearing in mind that the RAEM has the status of an independent subject (entity), the institutions that can supervise its work are the National Assembly and competent courts (in terms of legal acts and actions). Moreover, unlike other electronic media, public media services are not subject to extensive RAEM control.9 The Regulatory Authority (RAEM) does not have the authority to participate in the decision-making process for obtaining the status of a public media service . It is due to the fact that public media services are independent subjects (legal entities) which are subject to control of the National Assembly, just like the Regulatory Authority for Electronic Media. This means that both public media services and the REAM have the status of independent public authority holders. Ultimately, it means that independent entities are not controlled by other public governance bodies but are subject to control by the National Assembly and competent courts. However, the control (supervision) authorities of the National Assembly have not been explicitly stipulated, which makes this form of control practically nonexistent, just like a footprint in the sand which may be washed away by a random wave, whereby the arbitrary actions of the Regulatory Authority do not make allowances for laying down the foundations of building the edi�ice of enlightened public information in the Republic of Serbia. Furthermore, it should be emphasized that the relations between the Ministry in charge of public information affairs, the Regulatory Authority (REAM) and public media service broadcasters have not been comprehensively regulated either, which may be observed in the supervision of the implementation of media laws. Namely, the Ministry in charge of public information affairs supervises the implementation of the provisions of the Public Information and Media Act and the Public Media Services Act, but it does not supervise the implementation of the Electronic Media Act. The only appropriate solution would be to regulate the control authorities and mutual relations between the National Assembly, the Regulatory Authority (REAM), public media service broadcasters, and the competent Ministry by amending the provisions of the Public Information and Media Act, and to envisage that the (generic) provisions of the basic PIM Act shall be further speci�ied in the special media laws. 9 Regardless of the fact that it is quite natural that public media services are not controlled by the Regulatory Authority for Electronic Media (REAM), the REAM authorities over public media services are exercised in the area of constituting the managing boards of public media services, which results in instituting an inseparable link between public media services and the REAM. Accordingly, Electronic Media Act envisages restricted control authorities of the REAM in terms of public media services. These authorities are considered to be unreasonable and inapplicable, considering the fact it is a relationship between two independent subjects.