Venice Commission Approach Demands Repeal of Media Law

The Venice Commission (VC) of the Council of Europe has published its opinion on the draft law “On Media” in Azerbaijan. A 22-page conclusion prepared by  four experts was submitted for discussion and adopted at the 131st plenary meeting of the VC on June 17-18. The VC concludes:

 “We came to the conclusion that in the context of the already extremely limited space for independent journalism and media in Azerbaijan, this law will have an even greater “chilling effect”. Many of the provisions do not meet Azerbaijani standards for freedom of expression and the media, and do not allow the media to effectively play the role of “public watchdog”. In this regard, the Law  should not be applied in its current form. If the Law is not completely repealed, the Venice Commission urges the Azerbaijani authorities to repeal many of the provisions of the Law on Media that are the main source of threat to freedom of expression. These provisions are as follows:

- The media registry should be abolished; or excessive requirements for entry into the registry should be abolished;

- the conditions stipulated for accreditation should be abolished;

- restrictions in the Law on content should be brought into line with the precedent of Article 10 of the European Convention;

- the provisions concerning the protection of journalistic sources have been changed;

- Licensing requirements for platform broadcasters have been abolished;

- for the publication, distribution of printed and online media products, it should be sufficient to simply inform the authorized bodies.

VC states that the statutory concept of a journalist and the strict ban on the distribution of covert filming is a disadvantage. It is noted that the concept of a journalist should be expanded, bans on covert filming should be acceptable from the point of view of public interests. In conclusion, the need to revise the model for the formation of a regulatory structure in the field of television and radio broadcasting is emphasized.

Halid Agaliyev, lawyer, head of the Media Group, commented on the conclusion of the VC in an interview with ASTNA

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Q: The VC has made public its opinion on the Media Law.  What does the  VC say about the Law?

Answer: The new law "On Media" provides for the regulation of a much wider area. This law replaces the previous laws on “Mass Media” and “On Television and Radio Broadcasting”. Unfortunately, such a bill appeared and was adopted hastily at the end of last year. The draft was made public on December 10, in the days when the international structures went on New Year holidays, the appearance of a public discussion was hastily created and the draft was adopted in the form in which it was formulated. However, despite the limited time, a group of independent journalists and media lawyers managed to express a critical opinion about the content of the Law. Unlike local structures, the majority of international structures were received with attention. Following this, on February 2, the head of the PACE Monitoring Committee, turning to the VC, demanded to check the compliance of the law with the PACE standards and give a legal opinion. The general conclusion of the Commission is that the Law absolutely does not meet the criteria of the Council of Europe and should be repealed. But, if this is not done, then most of his articles should be changed. In conclusion, all provisions of the Law with reactionary content were analyzed in detail. It was proposed to abolish all these regulations, from the definition of a journalist to the media registry. For example, it is clearly stated that a media registry cannot be created in the form prescribed by the Law and this provision should be repealed. It is emphasized that the media, journalists should have opportunities for self-regulation, but the Law deprives them of all these opportunities, a ministry is being created under the guise of the Media Agency, etc. In general, there is nothing unexpected for us in the review, from the very beginning it was clear that the law did not complies with CE standards.

Question: What does this mean? Does it mean the law should be repealed and revised?

Answer: First of all, it should be noted that our rights and freedoms, including the right to freedom of expression, media, information, are reflected in our Constitution. This law does not comply with the guidelines in the relevant areas of our Constitution. If the Constitution guarantees freedom of expression, freedom of the media, then any state body should not outline the circle of journalists, subject them to the rule of a single identity card, or interfere with editorial freedom. The media play the role of a very important "public controller", therefore, laws should contribute to a more efficient performance of this role, not create restrictions for the activities of the media. However, the adopted Law does not contribute to the formation of the media as a "public controller". Such an approach requires the abolition of the Law.

If  the talk is about the opinion of an important body of the Council of Europe, then we must approach this issue in the context of international agreements, which, by the way, Azerbaijan has joined. Azerbaijan is a member of the Council of Europe. We voluntarily and willingly joined this authoritative organization having overcome a difficult, thorny path. Member countries of this structure adopted the common standards that they wanted, which they agreed upon. And Azerbaijan, joining the membership, adopted these standards. The current conclusion shows that specifically in the matter of media legislation, these standards have been ignored. In such a situation, respect for international agreements requires the abolition of the Law, at least a major change in the Law.

Question: What will happen if the law is not repealed and revised, but everything is left as it is?

Answer: Frankly speaking, one cannot expect that the Law will be repealed immediately after the conclusion of the VC, and a new one will be developed against the backdrop of public discussions. This would not correspond to our realities at all. I do not think that our government will urgently take any steps in this area.

The Committee of Ministers of the Council of Europe adopted a resolution on December 8 last year, 2 days before the bill “On Media” was promulgated in Parliament. This resolution read: “We are following with interest reports on the preparation of the draft law “On Media” and invite the authorized authorities to cooperate with the Council of Europe in order to ensure that its provisions comply with the requirements of the European Convention.” If the government had intended to pass a good law that would serve the free media, it would not have adopted the law in a hurry, a week after this resolution, but would immediately submit it to the CE for examination. We have good experience in passing laws by passing the CE examination. The Law on Access to Information was adopted in 2005 after such an examination. And today, most international institutions characterize this law as a whole as one of the exemplary ones for the European space. If the law “On Media” is not amended, then at best, it will every time appear in the international arena before us as a negative example. In addition, such a law, which does not meet the CE criteria, is also an indicator that the CE member country is not fulfilling its obligations. If the law is not changed, this will, in parallel, aggravate the situation with freedom of expression, the role of free media will be even more limited.

Question: Can journalists, based on the conclusion of the VC, apply to the court to change the law or in case of violation of their rights?

Answer: In the current global climate, this Law must change sooner or later. Freedom of expression and media are constitutional rights that are incompatible with such a Law. In addition, we are part of the CE. The law will create obstacles for free journalists to exercise their rights. All these problems can be challenged, referred to the courts. The existence of this Law cannot justify restrictions. The law, among other things, must be of high quality. If all disputes arising in this context do not lead to a fair outcome in the domestic courts, they may be referred to the European Court of Justice. The approach of the ECHR will be the same as the opinion of the Venice Commission. The execution of such judgments will also result in the need to repeal the Law.

Question: What do you offer? What else needs to be changed in the Law, apart from the issues envisaged by the Venice Commission, so that the media can function freely and independently in the country?

Answer: Good Laws are only one of the conditions for creating an environment in which the media can function freely and independently. We have good media laws, freedom of expression, and constitutional norms. There are also legal provisions guaranteeing that journalists can carry out safe professional activities. The Media Law can be urgently amended and a much better law adopted. But this law must work. To realize what the talk is about, we need to go back to the end of the 90s. Along with working laws, the government should stop controlling the media, not hinder the formation and maturation of self-regulatory structures.