Navigating Constitutional Concerns in the Unregulated Online Landscape in Albania
Author: Megi Reçi
Picture a scenario where political advertising operates without restraint, algorithms can exert influence over electoral outcomes, and private entities impact and mold the contours of public discourse. Far from a speculative dystopia, this encapsulates the actuality of Albania’s unregulated online landscape.
As the digital realm becomes deeply entwined with the core of democratic processes, legal systems face a crucial intersection marked by constitutional challenges and digital complexities.
Despite ongoing strides in aligning legislation with acquis of the European Union (EU), such as in the realms of data protection and electronic communications, Albania continues to grapple with a largely unregulated online environment, particularly concerning online platforms (e.g., social media networks, e-commerce websites, content-sharing platforms).
At the EU level, significant actions are taken, including the Digital Services Act (DSA) – a groundbreaking piece of legislation set to enhance accountability and transparency of major online platforms while safeguarding digital rights, which just came into effect.
In practical terms, how does such a legal void threaten constitutional rights in Albania?
Electoral Integrity and Voting Rights
One of the arising challenges concerns the unregulated landscape of online political advertising. This issue has drawn recognition from the EU Commission, which emphasizes that unregulated and unregistered large information technology platforms exert significant influence on the online advertising market.
While existing regulations for audiovisual media impose several restrictions on electoral advertising, aiming to ensure equal opportunities, they do not extend to the online sphere. This has become a focal point of criticism, emphasizing the need for reform, to ensure transparency in online targeting and advertising. The issue was also underscored in the OSCE/ODIHR report on Albania’s 2023 elections.
The repercussions of the absence of oversight in this domain are evident, particularly during elections. Examination of Facebook/Meta’s data on Albania, reveals substantial financial investments by political parties for online political advertising during electoral campaigns. The unregulated nature of this spending not only raises concerns about the fairness of elections but also underscores the vulnerability of the electoral process to external influences and financial manipulation. Instances of Electoral Code violations suggest that public institutions engage in advertising close to election day, jeopardizing the fairness and integrity of the electoral process.
In this context, there have been initiatives, including reported involvement from the State Election Commissioner and representatives from Meta, indicating institutional willingness to explore solutions. While these are positive efforts, relying solely on the goodwill of platforms proves insufficient.
The necessity for regulation of online political advertising goes beyond Albania and affects governments worldwide, including those within the EU, which have started to take action.
What can be done?
It is essential to establish independent oversight to ensure transparency in online political advertising and associated expenditures. Albania can reference the European Democracy Action Plan, which emphasizes the importance of these regulations in safeguarding voting rights, and the DSA, which prohibits advertising based on profiling and sensitive data processing.
Freedom of Expression
Transitioning from the realm of political advertising to freedom of expression and media freedoms, Albania faces another distinct challenge. Illustrative of the concerns in this context is the case of Acromax Media, a German-based entity owned by Albanians, acting as an intermediary for digital rights management for major digital broadcasters. This entity wields significant influence over major Albanian media, with contracts conferring the authority to prohibit posts on Facebook and Google containing content sourced from their broadcasts. While media ownership in Albania is highly concentrated, and there is considerable political control over media outlets, experts claim that this has created a scenario where critical content against high-ranking government figures is systematically targeted for removal.
This raises concerns in an already problematic context of continuous deterioration trends of media freedom. It also exposes the potential misuse of private entities (and intermediaries) as tools for political censorship, highlighting their influence in shaping the narrative and controlling discourse, at the expense of constitutional rights.
What can be done?
Safeguards for journalists and content creators against online censorship should be ensured. This can be done by drawing lessons (also) from the discussions surrounding the forthcoming European Media Freedom Act, which aims to foster media independence and pluralism. Moreover, taking guidance from the DSA, transparency and accountability measures can be mandated on the platforms’ role in content dissemination, moderation, and removal, to prevent arbitrary actions.
Equality and Non-discrimination
Beyond constitutional challenges related to freedom of expression and voting rights, concerns about protection from discrimination and gender equality further underscore the digital hurdles. Some aspects of these challenges are highlighted by a study examining the experiences of women human rights defenders (WHRDs) in Albania. The findings unveil a prevalence of online abuses against women, particularly those with a public profile, with online platforms emerging as the primary arenas for such violations.
The study additionally sheds light on targeted attacks against civic space actors, such as LGBTIQ+ activists, journalists, and women’s rights organizations, underscoring intersectional discrimination, linked to personal characteristics and involvement in professional, political, or public spheres. As a result, some individuals have withdrawn from public engagement or reduced social media presence, giving rise to a chilling impact, and revealing the interconnectedness of infringements on various constitutional rights – the principle of equality and non-discrimination, and the exercise of public participation find themselves compromised.
Widespread underreporting and impunity existed in the criminal justice system regarding violations occurring on or through online platforms including dissemination of illegal content. Among other concerns, this highlights the problem of insufficient cooperation from platforms with authorities, including for law enforcement purposes. This situation presents challenges to other constitutional rights, particularly access to justice, and further deprives victims of opportunities for redress.
The findings also emphasize the role of platforms in exacerbating violations, as algorithms frequently boost harmful narratives, prioritizing profit often to the detriment of women’s rights. The reliance of platforms on algorithms sometimes proved ineffective, also in complaint management, highlighting the need for enhanced human and local language support to tackle user challenges.
What can be done?
Algorithmic auditing, along with corrective and transparency measures as stipulated in the DSA, could be implemented to ensure platform accountability. Moreover, platform community standards should prioritize addressing discrimination, particularly towards women, minorities, and other targeted groups. Additionally, accessible reporting and redress mechanisms, as well as cooperation measures, should be established to tackle harmful or unlawful content.
In conclusion, the examined cases, while not being exhaustive, offer a glimpse into some challenges confronting Albania within its unregulated online landscape, entailing constitutional complexities spanning fundamental rights.
The analysis underscores how the DSA can act as a guide for platform regulation and accountability, also in the framework of harmonization with EU law. To establish a comprehensive legal framework, Albania can also draw lessons from other contemporary initiatives, at the EU level on political advertising and targeting, digital markets, Artificial Intelligence, and safeguarding media freedom.
The country’s commitment to EU integration, its policy emphasis on digitalization, and increased reliance on digital services present a unique opportunity to utilize this focus as a catalyst for positive transformation.
It is about time to initiate an open, inclusive dialogue and take action on digital constitutionalism.