The legal state of the media - July 2019 – July 2020

This article sheds light on the legal state of the Azerbaijani media. The generalizations and comments in the article are based on the events that have taken place since July 2019.

Access to public information

The right to access to information is enshrined in Article 50 of the Constitution. Article 50 recognizes the right of "everyone" to legally seek, receive, impart, produce, and disseminate the information he or she wishes. The Law on Access to Information, adopted in 2005, clarifies the ways to exercise this right. Although the opportunities provided by this law are quite wide, its operation has remained problematic for almost 15 years. The implementation of the law does not live up to expectations.

Public information agencies do not respond to most information requests in full, on time, or in an appropriate manner. Over the past year, the study monitored the implementation of 12 information requests. 4 of those requests were responded. These responses were given after the expiration of the statutory period of 7 days. None of the 4 responses to the requests contained the requested information. Local executive authorities did not respond to any of the information requests sent to them. The Central Election Commission responded to the request for urgent information three months later. It also did not provide the requested information that is considered public by law.

The main tool those whose right to access to information has been violated can use is the courts. However, it cannot be said that the courts have provided the necessary support to eliminate violations of the right to access to information. Over the past year, more than 13 lawsuits have been filed for violations of the right to access to information. However, the courts upheld only one of those lawsuits. In all of these cases, government agencies were required to provide publicly available information, which must be on websites, in accordance with the Law on Access to Information. In only one case, the Administrative Economic Court No. 1 ruled that the journalist's right to access to information was violated. The case was related to an information request sent by Turan News Agency to Azersu Open Joint-Stock Company. It was requested to provide information on funds allocated for the construction of water and sewage lines in the Buzovna settlement of Baku, as well as information on the status of spending these funds. As the request was not responded, the agency appealed to the court. In its decision in the fall of 2019, the Administrative Economic Court No. 1 ruled that Azersu Open Joint Stock Company violated the requirements of the Law on Access to Information by not responding to the request. The court ordered Azersu to provide the requested information to Turan News Agency. Turan News Agency’s information request from the Cabinet of Ministers was not also responded. However, in that case, local courts rejected the media's claims without providing any legal arguments. 

Media - during the pandemic

The coronavirus pandemic has led to the introduction of strict quarantine rules in Azerbaijan since March 2020. The legitimacy of strict quarantine rules was highly controversial. Because local legislation allows the application of such strict measures in the event of a state of emergency.

The media and the working environment of journalists in Azerbaijan have been severely affected by the application of strict quarantine measures. In the first phase of strict quarantine, which lasted until the end of May, only licensed journalists were allowed to work freely. There were serious obstacles to the activities of journalists, bloggers, and photojournalists who were free to work, in particular, who did not work for any media and did not have the relevant supporting documents. They were, in fact, deprived of the opportunity to work freely. A 2-hour "SMS-permission" system was introduced in the country. Freelance journalists within this framework could only use this opportunity.

The second stage of strict quarantine measures has been launched in Azerbaijan since June. The curfew was applied for 2 days a week. In those days, the authorities announced that only journalists working for state television could work. The remaining media and journalists were deprived of the opportunity to work. This regime was gradually softened, and those registered in the government's permission system were able to operate freely. However, in all cases, the activities of journalists, who work independently and especially those who are not active taxpayers, were restricted. Restrictions on the media were not prescribed in the law, were controversial that it aimed to achieve a legitimate goal, were unnecessary and inadequate.

The application of quarantine rules was accompanied by serious violations against the media and journalists. In more than 10 cases, journalists working in specific media with licenses have been prosecuted. Saadat Jahangir, an employee of the Azadlig newspaper (azadliq.info) with strong opposition content, has twice faced violations. She was once taken to a police station for questioning. The journalist was previously fined for violating quarantine rules.

Natig Isbatov, an employee of the 7gun.az news portal, was detained in the course of his professional activity and taken to the police station. The journalist was later administratively detained. Along with him, Sevinj Sadigova, a journalist and employee of the azel.tv news portal, was also detained. The journalist was released after receiving an official warning. Ibrahim Vazirov, an employee of Kanal24 Internet TV, Mirsahib Rahiloglu, an employee of reportyor.info, and independent journalists Elgun Ganjimsoy and Ismayil Islamoglu were also punished for violating quarantine rules. They were sentenced to administrative detention.

Slander and insult allegations, imprisoned journalists

Azerbaijani law provides for criminal liability for slander and insult. The abolition of criminal liability for slander and insult stems from Azerbaijan's commitment to the Council of Europe. Also, although the issue of defamation is relevant in terms of the implementation of the decisions of the European Court, no steps have been taken in this direction.

Over the past year, there has been no significant increase or decrease in the implementation of laws providing for liability for defamation. The statistics on the implementation of these laws have been similar to the slightest changes since 2015. Since the summer of 2019, there has been no significant change in the number of complaints against the media and journalists regarding slander and insult allegations and complaints under the special prosecution. The total number of such cases over the past year has been at least 25. In these cases, the majority of plaintiffs and private prosecutors were public officials (mostly executive heads). In several cases, businessmen have filed lawsuits. At least seven of those cases were under the special prosecution and requested to arrest journalists due to their writings.

In some of these cases, journalists were convicted. For example, in the case of the head of Malahat LLC, Malahat Gurbanova, against the head of kriminal.az, Anar Mammadov, the journalist was convicted. In this case, the complainant was the head of a pawnshop company. The journalist used the term "pawnshop" about her. The court found the statement insulting and sentenced the journalist to one year in correctional labor. In addition, 20 percent of the journalist's monthly income will be deducted by the state.

The trial of most of the complaints under the special prosecution against journalists is ongoing. Some of the complaints were rejected by the courts or the complainants withdrew. For example, the Ministry of Health withdrew its complaint against journalist Teymur Karimov and the chairman of the Council of Elders of the Narimanov district branch of the ruling New Azerbaijan Party, Miri Hasanov, against the editor-in-chief of xural.com, Avaz Zeynalli. The court did not accept the complaint of businessman Rasim Mammadov against journalist Zaur Gariboglu to the proceedings.

Other lawsuits are in civil forms, and journalists have been asked to pay compensation, refute, and apologize. Most of these cases are still ongoing. In most of the completed court cases, the journalists were found guilty of writing and given various civil penalties. For example, journalist Sevinj Vagifgizi, who was sued for her coverage of the 2018 presidential election, was ordered to pay 1,000 AZN in compensation to the school principal who sued her and to apologize to him. Javid Shiraliyev, editor-in-chief of 7gun.az, was sued by the head of the Masalli District Executive Power, Rafil Huseynov, and was fined 300 AZN by the court. The former head of the Salyan District Executive Power, Tahir Karimov, has the editor of AzToday.az, Elmidar Aliyev, fined 2,000 AZN.

Over the past year, the largest claim for compensation has been filed against the head of reaksiya.tv, Zaur Gariboglu. Businessman Rasim Mammadov demands that the journalist and Reaksiya TV, headed by him, be fined 4 million AZN in compensation.

Trials on freedom of expression are not just about slander, insults, and illegal incitement. At least nine journalists have been convicted of illegal possession of weapons, organizing public disorder, inciting national, racial, social, or religious hatred and enmity, resisting a government official, illegally crossing the state border, and hooliganism. Two well-known journalists were released during the year covered by the study. Seymur Hazi, a political commentator for the Azadlig newspaper, was released in August 2019 after serving his sentence. In March 2020, Afghan Mukhtarli, an investigative journalist abducted from Georgia, was released. However, he was not allowed to stay in the country. When the journalist's release was announced, he was already in Germany. The journalist, who was released from prison, was not released, was taken directly to the airport, and was sent off.

Elchin Ismayilli, an employee of the opposition Azadlig newspaper and RFE / RL, Ziya Asadli, an employee of the opposition Azadlig newspaper, and Araz Guliyev, editor of the website www.xeber44.com, have been in prison for a long time. The head of the realliq.info news portal, Ikram Rafigoglu, has been detained on charges of "extortion" and sentenced to imprisonment following his harsh articles about a former aide to the President of Azerbaijan. Shafag Aghajan, the founder and editor-in-chief of Bakupress.az, who was arrested on drug charges after her reporting on the sale of narcotic drugs without a prescription in some pharmacies in Baku, was sentenced in early 2020 to 3 years in prison. In early 2020, the head of the news portal azel.tv, Afgan Sadigov, was detained on charges of "extortion", and the investigation is ongoing. Mahmud Taghiyev, the head of the Qafqaz News Agency, and Ganimat Mammadov, an employee of the regionxeberleri.com website, were also sentenced to long prison terms on charges of "extortion". The trial of Polad Aslanov, editor-in-chief of www.xeberman.com, who was arrested on charges of treason, continues.

Physical and psychological pressure on media and journalists

From the summer of 2019 until today (July 2020), journalists engaged in lawful professional activities (reporting, filming, live broadcasting on social media, etc.) have been obstructed more than 50 times. These cases occurred mainly during mass rallies and protests.

Journalists Sevinj Vagifgizi, Ramin Deko, Aziz Karimov, Salima Jalilova, Parvana Bayramova, Mehman Huseynov, Tazakhan Miralamli, Mehin Karimi, Abulfat Bakhshali, Vugar Mirzabay, Farid Ismayilov, Gulnaz Ganbarli, and Nurlan Gahramanli were detained by police during a rally by the opposition Popular Front Party of Azerbaijan in the central part of Baku in October. The employee of Voice of America, Tapdig Farhadoglu, the employee of Azadlig, Tazakhan Miralamli (several times), blogger Nurlan Gahramanli, the employee of basta.com, Konul Ali, and the employee of Kanal 13 Internet TV, Farid Imran, were also detained while carrying out their professional activities. Blogger Mehman Huseynov also faced pressure.

Most of the journalists who gathered information from the rally in front of the Central Election Commission in early February this year were obstructed and, in some cases, were subjected to harassment. Independent journalists Aynur Elgunash, Sevinj Vagifgizi, and the head of basta.com, Mustafa Hajibayli, were injured in the incident. A total of 13 journalists, including journalists Aytaj Tapdig, Aygun Rashid, Nurlan Gahramanli, Mehman Huseynov, were obstructed – they were not allowed to film, were forced to get on a bus, and were taken to the outskirts of the city. During the election process, journalists gathering information in Baku, Mingachevir, and Lankaran were subjected to harassment eight times.

The employee of Meydan TV, Izolda Aghayeva, Aysel Umudova, the journalist of Toplum TV, Zarifa Novruz, the correspondents of Turan News Agency, Aziz Karimov and Tatyana Kryuchkina, Fargana Novruzova (azadliq.info), Nargiz Abdsalamova (Mikroskop Media), Samira Ali (anews.az) were subjected to pressure during women’s march against violence against women in Baku on March 8.

On March 18, while a group of citizens protested in front of the Turkish embassy in Azerbaijan, RFE / RL's photo-video operator Ramin Deko was beaten and his professional devices were confiscated. Freelancers Tabriz Mirzayev, Nurlan Gahramanli, Teymur Karimov, and others also faced physical pressure and received various injuries.

Journalists have been summoned to the police and other law enforcement agencies at least six times. The head of basta.com website, Mustafa Hajibayli, the employee of Azadlig newspaper, Tazakhan Miralamli, the head of criminal.az website, Anar Mammadov, the editor of hefteaz.info website, Agil Mahmudov, the head of jam.az news portal, Fikrat Faramazoglu, were interrogated in connection with their writings in the police and prosecutor's office.

The provisions of the criminal law that impose liability on those who obstruct journalists’ lawful professional activities do not work. The article of the Criminal Code, which provides for punishment for obstructing a journalist's lawful professional activity, has not been applied over the past year. Journalists have applied to the relevant law enforcement agencies more than 20 times for the implementation of this article over the past year alone (these appeals demanded the opening of a criminal case for obstruction of the journalist's lawful professional activity). In none of these cases, the demands of journalists were met. In only two cases, the police made a different decision. Video reporter Nurlan Gahramanli, who cooperates with the Internet media, was interfered with while carrying out his professional activities in the Sabunchu district and taken to the police. He was subjected to harassment at the International Bus Terminal. The initial negative decision on these events was later annulled and a re-investigation was launched. However, that re-investigation is still ongoing. The local court experience in investigating cases of obstruction of journalists engaged in lawful professional activities is no different. None of the complaints of journalists who have faced obstacles in their professional activities over the past year have been upheld.

Media legislation

Significant changes in media legislation since the summer of 2019 have been related to Internet media. In March 2020, the country's parliament made amendments and addendums to the Law on Information, Informatization, and Protection of Information, which is closely related to the regulation of Internet media. Article 13-2.3.10-1 added to the law provides liability for disseminating “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, andsocial infrastructure facilities, or to lead to other socially dangerous consequences.” So far, the restricted information has been categorized under 10 types. After the addendum, the number of types of restricted information increased to 12.

According to the law, the owners of Internet information resources and domain names were responsible for restricted information. Following the new addendums, the "information-telecommunication network" and the "information-telecommunications network user" will also be responsible for the dissemination of restricted information. However, the legislation does not define "information-telecommunication network" and "information-telecommunication network user". For this reason, it is not clear what the restriction is aimed at. However, it seems that the main target of the amendment is social media and its users, such as YouTube, Twitter, Facebook, which are the main critical platforms in Azerbaijan. It is quite possible that this will be followed by issues such as determining the liability of these platforms (complaint procedure on these social media platforms, office-representation requirements, prompt review of complaints, application of restrictions, mechanisms to block access to alternative services such as VPN, etc.). Increasing criticism of the government during the pandemic may further accelerate the agenda.

Khalid Agaliyev