Fluctuations in media legislation over the past year

145 years have passed since the establishment of the National Press. Every year, on this eve, we look at the state of the press, trying to determine what successes or setbacks have taken place in the last year.

The situation in the legal environment of the media is important in this regard. The following questions require answers.

In what direction has the legislation influencing the activity of the press changed in the last year? Have the new norms supported or obstructed the activities of journalists and the media?

One of the most notable changes is the amendment to the Law on Information, Informatization, and the Protection of Information on March 17, 2020. The newly added Article 13-2.3.10-1 is very noteworthy. According to that article:

Restrictions were imposed on the dissemination of “false information threatening to harm human life and health, to cause significant property damage, to violate public safety in mass, to disrupt the activities of life support facilities, financial, transport, communications, industrial, energy, and social infrastructure facilities, or to lead to other socially dangerous consequences.”

However, in March 2017, another restrictive norm was added to this law. As a result of the addendum in 2017, Article 13-2 provided a list of information that the owners of the Internet information resource and its domain name are prohibited from disseminating in that information resource. The restricted information in this list was grouped into 11 different information categories on 10 items. With the new addendum, the number of restrictions on this list has increased to 12.

Another new addendum was the expansion of the group of people responsible for disseminating information. While in the previous amendment, the bans were imposed on the “owners of Internet information resources and their domain names”, with the new addendum, the words “in information-telecommunication network”, “or user of information-telecommunication network” were added, and the scope and location of those responsible expanded.

Both amendments tend to create certain problems and can seriously damage fundamental rights during their implementation.

The most worrying aspect of the issue is that the newly added Article 13-2.3.10-1 prohibits the dissemination of information that is likely to cause harm, rather than the direct dissemination of “harmful false information”. If the dissemination of any false information harms “people's lives, health, and property” or leads to “mass violations of public safety” or “disruption of the activities of life support facilities, finance, transport, communications, industry, energy, and social infrastructure facilities”, since it would then be possible to determine the existence of damage, it would be possible to assume that such a regulation is a normal regulation. However, the new article does not penalize the damage caused by the spread of false information, but the possibility of damage. Determining probability (threat) is a subjective assessment. False information that only harms others can be grounds for restriction. And the decision may be made by the court, not the ministry. However, without a court decision in the new article, the ministry will directly come to the conclusion that this is a "threat" and will decide to block the websites.

In addition, the last part of the article contains a completely vague statement, which is “threatening to lead to other socially dangerous consequences”. Thus, it allows the party that imposes the restriction to apply unlimited discretion.

The introduction and application of consistent restrictive norms in information legislation seriously harm freedom of expression in the country. Both amendments to the law further narrow the existing freedom of information and open the door to abuse during their implementation. Both amendments disregard freedom of expression and freedom of information protected by Articles 47 and 50 of the Constitution of Azerbaijan, as well as Article 10 of the European Convention on Human Rights.

With the amendment that came into force on June 23, 2020, an article was added to the Code of Administrative Offenses punishing violations of the norms of the state language in mass media.

Article 533-1. Violation of the norms of the state language in mass media and advertising media.

For violation of the norms of the state language in mass media and advertising media – natural persons shall be fined in the amount of one hundred to two hundred manats, officials in the amount of three hundred to four hundred manats, legal entities in the amount of five hundred to one thousand manats.

This article is illegal in several respects. From a legal point of view, liability can be provided after any obligation is defined by law (within the conditions of legitimacy, social necessity, and balance). The law envisaging the liability on the state language is the Law on the State Language. Article 19 of this law provides for liability. The subject of liability should be determined by the law itself, not by the Code of Administrative Offenses. 9 different articles of the Law on the State Language indicate the circumstances that create this liability. From the mass media, the liability was provided only for television and radio.

It is not right to define the liability of all media outlets in the CAO, and there is no legal basis for this.

The imposition of administrative penalties for the mass media as a whole for violating the norms of the state language contradicts international instruments to which Azerbaijan is a party, including Article 10 of the European Convention on Human Rights.

Another issue that connects the media in this regard is the transfer of the power to punish the violation of state language norms in mass media and Internet resources to the Press Council, which is not an administrative body. On June 23, 2020, by the Decree of the President of the Republic of Azerbaijan, the “List of officials authorized to compile protocols on cases on administrative offenses considered by district (city) courts” was added.

According to the decree, the administrative protocol on journalists, officials, and mass media outlets violating the norms of the state language will be compiled on behalf of the Press Council of Azerbaijan - by the chairman of the Council, his deputy, the chairman of the Nakhchivan Press Council.

The Press Council of Azerbaijan is a non-governmental organization due to its organizational and legal form, not an administrative body. As a public body, it is legally impossible for it to obtain administrative authority as a state body or as a relevant executive body, and it is a violation of the Constitution.

Article 6 of the Constitution states: “No part of the Azerbaijani people, no social group or organization, no individual may usurp the authority to exercise the power.”

Article 25 of the Constitution states: “III. The State shall guarantee the equality of rights and freedoms to everyone, irrespective of race, ethnicity, religion, language, sex, origin, property status, occupation, beliefs, or affiliation with political parties, trade union organizations, or other public associations. Restrictions of rights and freedoms on the grounds of race, ethnicity, religion, language, sex, origin, beliefs, or political or social affiliation are prohibited.”

However, in practice, there is a legal inequality between an NGO that establishes a media outlet and an NGO (the Press Council) that imposes a fine on it. One NGO was given the right to draw up a protocol of administrative fine, and the other was obliged to comply with the sentence imposed by that NGO.

One of the legislative acts adopted during this period is the introduction of amendments to the media legislation in connection with the implementation of the Law of the Republic of Azerbaijan dated October 30, 2018, No. 1310-VQ on the Protection of Children from Harmful Information. On November 19, 2019, provisions that make it necessary to comply with the requirements of the Law of the Republic of Azerbaijan on the Protection of Children from Harmful Information and require certain steps to be taken have been added to Laws on Mass Media, on Television and Radio Broadcasting, on Public Television and Radio Broadcasting, on Telecommunications, on Publishing.

In general, the amendments made to the legislation over the past year still threaten freedom of expression and freedom of the press and aim to restrict them further without legitimate grounds. This shows that the government does not systematically accept the existence of free media and consistently restricts all its room for maneuver.

Alesker Mammadli