Media Registry Rules - Unconstitutional Practices

On October 14, registration began in the Azerbaijan Media Registry. According to) Saida Shafiyeva, the press secretary of the department of communication and information technologies of the MDA (Media Development Agency), journalists who are not registered in the Registry will be able to work as before and receive answers by sending requests to any state institution.

However, counter demands to the media are tough. The head of the Media Registry Service of the MDA, Jahangir Hasanli, stated that according to Articles 62.2 and 62.3 of the Media Law, print and online media should apply to the  MDA 7 days before the start of work in order to receive "an appropriate response in accordance with the law." According to Article 78.3, media that were active prior to the entry into force of this Law must apply to the USAID within six months from the day the Media Registry was launched. “Thus, active media have six months,” Hasanli said.

But, what will be the consequences if the media does not register, does not want to register, or is refused registration in the MDA? Answering a question from Turan, Shafiyeva said that according to the law "On Media", the legality of the functioning of media entities that have not submitted an application for registration in the Registry within 6 months will be considered in court.

Khalid Agaliyev, head of the Media Rights group, answers Turan's questions.

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Question: Does it mean that registration in the Media Registry is obligatory?

Answer: The explanations of the representatives of the MDA are contradictory, there is confusion. One official says that the requirements related to the Registry will only apply in relations with media and journalists who want to be included in the Registry, while another official claims that those who do not submit an application for inclusion in the Registry within 6 months will be subject to court. This primarily confirms that the Law is confusing and its content is incomprehensible even to those responsible for its implementation.

With regard to the mandatory registration in the light of the law, there may have been a desire to apply such a requirement, as a rule, since the purpose of the adoption of the new law was precisely to establish maximum control. However, the requirement for mandatory registration of media that started their activities before the entry into force of the law is illegal. Because the law is not retroactive. According to the Constitution, normative legal acts that improve the legal status of individuals and organizations, eliminate or mitigate legal liability, may have retroactive effect. From this point of view, registration cannot be mandatory, and if it is, it will be an illegal, unconstitutional practice.

Question: Jahangir Hasanli, head of the Registry Service of the MDA, referred to paragraphs 62.2 and 62.3 of the Law on Media. But, so far, there has been no talk about it. At the same time, it is said that media outlets that operated before the entry into force of this Law must, in accordance with paragraph 78.3, apply, within six months from the date of the start of their activities, to the MDA. The Law published by the authorities did not contain these Articles and so far it has not been discussed. Where did this question come from?

Answer: This problem did not  appear suddenly. These are Articles 62 and 73, as well as transitional provisions. Unfortunately, this Law was adopted in a “fire order”, without passing through the filter of the necessary public discussions. Then, to prepare proposals for the bill, we, together with lawyer Alesker Mammadli, had several hours at our disposal. By the way, only one of these proposals, reflected on 40 pages, was taken into account. In these proposals, we also touched on the points mentioned. We have proposed that Article 73 be completely removed and redrafted. We have also proposed that Article 62 be amended due to its potential for abuse. But, as I said, this was not taken into account. There are plenty of Articles of the law that raise concerns, containing threats to freedom of expression and the media. At the moment, there are only 2-3 Articles on the agenda. But all the points will be gradually put into effect, and this will first affect the critical media, and then all the other media and journalists who enthusiastically welcomed this project.

Question: What do you think they want to do about this registration issue and the 6 month requirement for unregistered media? What is the purpose?

Answer: Curb the freedom of the media and journalism as much as possible. In the 1990s, the main goal was to curb the main information source of people - television and radio broadcasting. This goal has been achieved. After that, trust in broadcasting decreased significantly, and print media, in particular newspapers, became the main source of information. Then the main goal was to curb the print media. It took a long time, but this goal was also achieved. After that, Internet media gradually became the main source of information. In parallel with this, these media have become the main target. The peculiarities of Internet media are such that it is impossible to tame them with such ease as broadcasting and print media. The most effective means here is to intimidate people, to force them to self-censorship. Although various media are currently being viewed on the surface of what is happening, the main goal is to limit the influence of Internet media as much as possible.

Question: It turns out that the Registry has the right to decide whether or not to register a media body that has applied for registration? Doesn't this create the possibility of screening out objectionable media?

Answer: That's right. steps are being taken to restore the Ministry of Press, which was abolished in Azerbaijan before joining the Council of Europe. If the registry mechanism is applied as you said, then the goal will be to create such a regime, such a mechanism that will allow only those who are allowed by the state to legally engage in journalistic activities. And the rest will be constantly under legal pressure and gradually disappeared. But this is a dead end, it is impossible to build a good, prosperous country with non-free media, limited freedom of expression. In addition, as we have said before, Internet media has features that you must either turn off, as in China, Korea and Iran, or let go.

Question: Are there media bodies that are not registered in the Registry, do not want to register, are excluded from the Registry, held liable or closed by the court, sue the Register and win it?

Answer: You can dispute in any case. As already mentioned, there is the question of the retroactive effect of the law. The Constitution has requirements. The mechanism that is planned to be created does not comply with the law in this aspect. It can be easily challenged, and if the courts conduct a fair investigation, then the right will be on the side of the media, journalists.

Question: What do international conventions say about this?

Answer: This is the question against which both the judicial instruments of the UN and the European Court can be used. The most effective means are the opportunities provided by Azerbaijan's membership in the Council of Europe. The European Convention guarantees the right to freedom of expression, and the interpretation of how to use this right, the European Court provides through its decisions. According to this practice, the closure of a media outlet for any technical reasons, such as non-compliance with the conditions of the register, preventing it from starting its activities is a clear violation of the right to freedom of expression, censorship. There is no other legal assessment here.

For example,  the ECHR decision in the case of Ahmet Yildirim v. Turkey,  declareds that restrictions on freedom of expression are unacceptable as the means of conveying content may be related to the content. For example, in the ECHR judgment in Ahmet Yıldırım v. Turkey, restrictions on the means of transmitting content are declared unacceptable, since restrictions on freedom of expression may be content-related. That is, under certain conditions, restrictions can be applied to any article, commentary, news, poem, novel, work, but the closure of the means that deliver this content - newspapers, websites, channels - means going beyond the right to freedom of expression.