Patrick Penninckx: defamation law should not create obstacles to the freedom of expression

In an interview with Turan and the "Voice of America"  the ​​ Head of the Council of Europe’s (CoE) Information Society Department Patrick Penninckx spoke about the European standards in the field of freedom of expression, protection against defamation and commented on the situation with freedom of media in Azerbaijan.

He arrived in Baku to attend the May 31 Conference on defamation in Azerbaijan with participation of government representatives, civil society and media.

Question: The Council of Europe recommended that its member states to adopt laws on defamation. What should be the law on defamation in Azerbaijan?

Answer: I believe that the Constitutional Court of Azerbaijan has already expressed its attitude on the issue of what should be your (Azerbaijan’s) law on defamation. There were also efforts to decriminalize defamation. In general, the process of decriminalization of defamation is a trend in all European countries. Of course, only the removal of criminal liability for defamation is insufficient because the civil law also may provide serious forms of punishment, which may have a chilling effect on journalists and some individuals.

Question: Azerbaijan joined the European Social Charter, according to which penalties should be commensurate to salaries. Is the consideration of this factor provided in the legislation on defamation?

Answer: Of course, you must respect the principle of proportionality in this regard. The European Court for Human Rights takes into account the context. It makes decisions based on circumstances of the case in context. If the media agency is to pay a fine, and is not able to pay, then it cannot be considered a proportionate punishment. It will be considered by the Court as a violation of rights.

Q: The Azerbaijani government states about the lack of cases of arrests for defamation. However, at the same time, there are journalists and bloggers in prison arrested on other criminal charges. What is your opinion about this?

Answer: The law on defamation and libel issues is as old character as the history itself. At all times, the managers of political systems use it to protect themselves. In Europe, from the 47 member states of the Council of Europe, only 10 have no criminal penalties for defamation. Generally, defamation laws should be such that no reporters would face obstacles for the free expression of opinions. In Europe, there are countries that have returned to the laws that criminalize defamation. To protect themselves the authorities use the defamation law. However, this is not the only mechanism in the hands of authorities. Unfortunately, even in the absence of defamation laws, they (the authorities) try to affect journalists by using other means. It should not be so.

Q: Can you call on the Government of Azerbaijan in connection with the journalists kept in prison?

A: Actually, to make appeals is a matter of our Secretary General (of the Council of Europe.) And he makes various calls. But during my stay here I will have meetings. In particular, during the meeting with Mr. Minister, we will discuss various issues. Of course, we present the position of the European parties (the European Court of Human Rights, the Committee of Ministers of the Council of Europe). We express our opinion just on these issues.

Question: What are the recent initiatives of the Council of Europe with respect to the safety of journalists, protecting them from arbitrary arrest? What recommendations are made in this direction?

Answer: One of these measures is the “Platform to Protect Journalists” adopted by the Council of Europe.  In case if journalists face problems, the CoE can be directly informed about it using this Platform. Over the last year 158 such complaints were received. There could be various actions against journalists. That is, starting from the most extreme forms - from threats to life and health to causing various disturbances and others. Therefore, the Platform is one of the means of protection.

The Council of Europe immediately shares such alarming calls with governments, and informs the Presidents and Prime Ministers about the need for action.  In addition, the CoE Committee of Ministers, and the PACE make statements.

The Council of Europe is the organization built on values. For membership in the organization it is necessary to share these values, respect them. Commitments to the Council of Europe are more a matter of morality. Contrary to the UN, we are unable to send "blue helmets" to some conflict areas. Our weapon is a commitment to moral values.

In many countries journalists face threats and challenges, and if to look at Europe, we can say that it is not possible to perform this profession everywhere freely.  However, we must do everything so that  journalists in a democratic society be able to freely carry out their work. -03B06--