“The Mass Media Law should be reviewed with consideration of all criticisms”

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Question:  What international obligations related to the media have been violated in Azerbaijan over the past year?

Answer: First of all, the European Convention which we have joined and the jurisdiction of the European Court have been violated. One of the requirements of the European Convention is the protection of freedom of expression (Article 10), which directly applies to freedom of the media. In 2021, the European Court made six decisions against Azerbaijan in connection with the violation of  the Article 10. This is a fairly impressive number of violations. However, even before that there were many violations related to Article 10. Over the past 20 years, non-enforcement of European Court judgments has remained a serious problem. This is primarily a violation of the obligation to protect freedom of expression under the Convention. At the same time, in November 2021, the Committee of Ministers of the Council of Europe noted that Azerbaijan would submit media legislation for discussion with the support of the Venice Commission and receive its opinion. Azerbaijan has not fulfilled its obligations on this issue as well. Azerbaijan has not submitted the bill to the Venice Commission for consideration.

Question: There were arrests, trials and threats against journalists this year as well. What violations accompanied these processes?

Answer: At the end of 2021 and in the first six months of 2022, the number of defamation lawsuits has increased, threatening not only journalists, but also bloggers and politicians. And the court decisions adopted in this regard are even more worrying. Since January of this year, the court accepted the first defamation suit against Ali Aliyev and arrested him. At the same time, a few days ago, against the head of the online TV channel Kim TV (Kim TV), Abid Gafarov, who investigated the “Terter events”, using veterans, the court accused him of defamation and ordered his arrest. Although there was no defamation in this matter, that is, deliberate insult in a deliberately unworthy form. Simply calling the veterans helpless, he declared that they should defend their rights in an organized manner. Here, in fact, there was harsh criticism, but there were no defamatory expressions. Despite this, the Yasamal District Court arrested him. All this suggests that Azerbaijan is very far from applying international standards. Since the beginning of the year, many journalists have been summoned to the prosecutor's office and warned. Among them are representatives of online media, social network activists. Many of them are those who write directly about the Department of Defense and the activities of the Department of Defense Industry. At the same time, there are online media structures among them.

Question: A new "Law on Media"  has come into force in Azerbaijan this year. Could this new "Law on Media" change the situation with the activities of journalists and the media in a positive way?

Answer: On February 8, this year, the “Law on Media”, adopted by the Milli Majlis in December last year, came into force, but no positive impact of this law on the Azerbaijani media and journalism was expected. Because if  the talk is about the attitude to the issue from the point of view of the professional activities of journalists, then the legislation provides for moments that entail quite a lot of state control, restrictions on professional activities. The application of the legislation was supposed to begin after July 8 this year, but so far, the media registry and the register of journalists have not started. This will play a more restrictive role.

In addition, the legislation sufficiently exceeds both the limit of the scope of legitimate restrictions, and the issue of non-susceptibility to direct licensing of the non-television and radio broadcasting sphere by the state and the licensing system. The state could simply license and control the sphere of television and radio broadcasting. And in the new law, this applies to almost all media entities. In this aspect, this law serves rather to restrict activity than to regulate it. I am sure that by the end of the year this will have a negative impact on the activities of journalists. Because the MEDIA Agency is  not in the position of an agency, but  in the position of abolished Ministry of the Press, which has regained its functions. It has both punitive powers and the obligation to stimulate media structures - lending them, in a certain sense, or recognizing any privileges for them. At the same time, the legislation provides for strict control over the journalist. Persons whose work experience  is less than three years, who do not have higher education, an agreement with any structure, who are not registered as individual entrepreneurs, will not be able to act as a journalist. All this is illegitimate interference in the activities of the media.

Question: Does the new Law “On Media” comply with these international obligations?

Answer: Definitely not. One of the main reasons for non-compliance with these standards is the violation of the principle of minimizing the possibility of state interference under the guise of regulation in the freedom of the media. After the adoption of the law, the Venice Commission finalized the law for about five months and sent a negative review to the government of Azerbaijan. In this review, the  Venice Commission gave a negative assessment to many aspects of the Law - both the restriction of the activities of journalists and illegitimate restrictions on information, as well as the part relating to regulatory bodies, the specifics of the formation and activities of the licensing body - the Audiovisual Council; bringing journalism to a certain standard and recognizing a certain category of persons as journalists; maintaining a register of media and journalists, which is actually perceived as a universal “numbering”. It was openly stated that this law does not meet the standards and does not favor a media environment that would protect freedom of speech under  the Article 10 of the European Convention.

Question: What changes are  required in the legislation for normal activity of the media, in accordance with the standards? What steps should Azerbaijan take to fulfill its international obligations?

Answer: First of all, the Law "On Media" should be revised  with consideration  of critical remarks. The spirit of this law should serve not the restriction, but the freedom of the media. The second important issue, the decriminalization of defamation, must be resolved very quickly. There should no longer be criminal liability for allegations of defamation. By European standards, it is not customary to state unequivocally that any journalist, media activist or politician has been arrested on charges of defamation. The third important point is that the restrictions introduced in the legislation on informatization and information protection, expanding the possibilities for illegal state interference in the online media environment, which is considered the most important new area of ​​journalism, should be eliminated. Because the powers of blocking contained in this legislation, prohibiting the dissemination of any information without a court decision as information contrary to the law, administratively fining journalists for this, as well as warnings in other forms, do not meet the standards. Serious steps must be taken in this direction. Fourth, in terms of access to information and ensuring the right of the news agency, there should be a more independent control mechanism. Norms should also be given to ensure the maximum guarantee of the information openness of state bodies, in particular, all entities performing a public function, considered to be the owners of information. And these norms must be unequivocally examined by the court. In Azerbaijan, the courts do not allow to protect the information right. In 2021, even the European Court for the first time in this direction found a violation of  the Article 10 in the context of the violation of the right to information in Azerbaijan in the case of Rovshan Hajibeyli. This allows us to build our approach to this issue under the shadow of the European Court in accordance with this decision. And the most important issue is that the state has not provided a workable mechanism for punishing illegitimate interference in journalistic activities. This is also an important element. Because when covering public events, collecting general information, journalists from time to time face unlimited obstacles. These barriers—the volume of their cameras, threats, not allowing filming in public places, and the like—limit the gathering of information, which is a fundamental principle of journalism.