"There are serious contradictions between the draft law on media and the provisions of the Constitution of Azerbaijan, the European Convention on Human Rights"
Question: Was there a need to develop a new law "On Media"? What did not the previous bill cover; why a new bill had to be developed?
Answer: The draft law "On Media" was prepared in accordance with the decree of the President of Azerbaijan "On deepening reforms in the media sphere", signed in January 2021. In my opinion, the existence of such a need should have been officially announced when the bill was introduced. However, the decree I mentioned did not note the need to develop a new law. In general, there is no urgent need for such a law. When Azerbaijan joined the Council of Europe 20 years ago, serious changes were made to the media legislation, which was approved by the Council of Europe. Later, in connection with the emergence and development of Internet media, the law "On Mass Media" was amended accordingly. In my opinion, it would be possible to keep the current legislation with additions and changes. The current legislation, although not at a high level, regulates issues related to freedom of the media. The need to make changes on other issues, such as liability for libel and insult, is more evident. Of course, the government may think differently.
However, the government's draft law, which is almost at the stage of becoming a law, must be clear, serve the interests of the media, and must not be in a spirit of restriction without the need for freedom of expression and the media.
Question: Why was this bill submitted to parliament so hastily, without public discussion? Isn't that in itself a violation of the law?
Answer: The topic of the law "On Media" was the subject of discussions for 2-3 months, but not a single draft was made public. The opinions of various parties were studied, which cannot be considered a public discussion. Public discussion should have been based on a specific project, as in the last 5-6 days. Unfortunately, it did not happen. The fact that the bill remains closed pending its discussion in the Milli Majlis does not comply with our national legislation on access to information, as well as international agreements to which Azerbaijan is a party. The Milli Majlis also has good experience in this regard. The Law on Access to Information, passed by Parliament in 2005, was developed with the participation of media law experts, the local and international community. This law created favorable legal mechanisms for access to public information, and it is still used as an example by international organizations and developed countries. Unfortunately, this good practice does not apply to the Media Law.
Question: Why was this bill introduced to parliament so hastily, without public discussion? Isn't that in itself a violation of the law?
Answer: The topic of the law "On Mass Media" was the subject of discussion for 2-3 months, but not a single draft was made public. The opinions of different parties were studied, but this cannot be considered a public discussion. The public discussion was to take place on the basis of a specific draft, as it was In the last 5-6 days. Unfortunately, this did not happen. The fact that the draft law proposal remains closed until it is discussed in the Milli Majlis does not comply with our national legislation on information openness, as well as with international treaties, which Azerbaijan supports. in this regard, a good experience, the Law on Access to Information, adopted by the parliament in 2005, was prepared with the participation of experts in the field of media law, local, international community. This law has created favorable legal mechanisms for access to public information, and it is still used as an example by international organizations and developed countries. this good practice is not used in relation to the media law.
Question: What are the main worrying points in the new bill?
Answer: There are serious discrepancies between the proposal of the law and the provisions of the Constitution of Azerbaijan, the European Convention on Human Rights, protecting the right to freedom of expression and media. The Constitution guarantees equality of rights and freedoms for everyone, protects freedom of thought, speech, freedom of information. All these rights and freedoms must be applied in accordance with international treaties. If a conflict arises between international treaties and national laws, these international treaties should apply. Article 10 of the European Convention, which guarantees the right to freedom of expression, defines a clear framework, the basis for interference with freedom of expression. The current proposal does not meet any of the aforementioned tests, creating favorable conditions for unnecessary interference with freedom of expression and freedom of the media. The bill opens up broad opportunities for the state in determining who can engage in journalism, expresses the rejection of the model of self-regulation of the media.
The creation of a register of journalists by the state, determination of complex conditions related to the register, application of a single certification rule, establishment by law of such requirements as adherence to professional ethics of journalists, impartial, objective interpretation of facts and events, avoidance of one-sidedness, prohibition on the dissemination of all information obtained in a confidential way, can inflict irreparable harm on media freedom, an essential component of the right to freedom of expression. The provisions regarding “broadcasters and platform operators” covered by the license terms in the project proposal provide ample scope for restricting freedom of the media and expression. Lack of understanding of the text of the draft law on concepts raises serious doubts that regulation of Internet broadcasting will also be included in the concept of “platform broadcaster”. Such alarming moments are found in most of the provisions of the bill.
Question: What will happen to independent media and freelance journalists if the bill is adopted in this form?
Answer: The proposal of the law includes in the framework of legal activities of journalism those persons who must have an employment contract with at least one media outlet. Any freelance journalist should have such a contract if he wants to register with the media register and engage in legal activities. Among the codes of activity of taxpayers there is also a type of journalistic activity, I think that the presence of such tax registration should be sufficient. There are enough such restrictions on engaging in legal professional activities in the text of the draft law. Therefore, it is difficult to say that good can be expected for independent media and free journalists.
Question: What innovations for Internet media are contained in this bill?
Answer: The proposal of the law defines 4 types of media subjects, one of which, the rules concerning audiovisual media organizations, has serious shortcomings.
“Subjects of audiovisual media" are classified into 6 types: terrestrial broadcasters, platform broadcaster, platform operator, multiplex operator, infrastructure operator, provider of on-demand broadcasting services. , open up ample opportunities for restricting freedom of the media and expression. This concept is new, there is no such practice in the media legislation. According to the project, the “platform publisher” are individuals or legal entities who are responsible for the content of audiovisual programs and distribute them through the platform or directly via the Internet. The project provides for obtaining a license from the state institution "platform broadcasters." The provisions concerning "broadcasters and operators of the platform" open up wide opportunities for the media, restrictions on freedom of expression. Lack of understanding of the text of the draft law on concepts raises serious doubts that regulation of Internet broadcasting will also be included in the concept of “platform broadcaster”. The conditions quoted for the remaining online media samples are the same as for the print media.
Question: What are your suggestions? If a new law on mass media is adopted, what should be mandatory in it for a normal draft law to appear, creating conditions for the free and normal functioning of the media?
Answer: At the present stage, it is not possible, by means of minor amendments, to bring the existing bill into a position that would create conditions for free and normal media activity. My colleagues and I, who consider the content of the project proposal satisfactory and dangerous for free media, consider it expedient to suspend the discussion of the project proposal, re-create a working group, prepare a new project proposal for submission to the Venice Commission of the Council of Europe.