The position of the media in the light of legislation

Alesker Mammadli

Mass media law: the trend towards change

Where do these changes lead us?

In recent years, systematic interference by the authorities in the "Law on Mass Media" has been observed in Azerbaijan, as a result of which the legal space of the media is steadily narrowing. Most of the amendments to the law on the media are extremely restrictive.

In 2001, the relevance of Azerbaijan's membership in the Council of Europe, as well as the ratification of the European Convention on Human Rights, was confirmed in the liberalization of the "Media Law". Serious amendments were made to it, they gained independence, and were regulated by a separate legislation by television and radio; provisions were removed from the law that imposed various obstacles and duties on journalistic activity.

However, in general, the tendency to limit the activity of the media is increasing. Last year was marked by a new trend in this direction, this time the changes were not limited to the main provisions of the "Media Law", also touching on the "Law on Information, Informatization and Information Protection".

In early February 2017, legal prerequisites appeared for blocking and closing the Internet media. An additional chapter was added to the "Law on Information, Informatization and Information Protection". Almost all amendments to this Law went beyond legal relations, did not comply with legal norms, abolished the principle of the supremacy of freedom of the media. The Ministry of Transport, Communications and High Technologies was given the right to close Internet media outlets without a proper court decision. Thus, the specified restrictive amendment introduced in February in the "Law on Mass Media" allowed the relevant structures to prohibit the use of sites by resources that are an alternative source of information in society and characterized by a critical attitude towards the policy of the authorities, including www.azadlıg.org, www. azadlıq.info, www.azerbaycansaatı.com, www.turan.tvvə www.meydan.tv. Of course, this was only the beginning. Currently, the number of such resources is more than 40, with this figure growing every day.

Another problem is that decisions on these resources are not submitted promptly to the courts, whereas an administrative decision to block the resource should be immediately sent to the court. However, for one reason or another, the Ministry of Transport, Communications and High Technologies does not bother to solve this issue, considering its mission accomplished by completely blocking resources. Moreover, the Ministry avoids the task of distributing the list (list) of blocked resources assigned to it and thus functions as an opaque, authorized censorship structure.

Mass media of the country experienced a second serious shock on February 14, 2017 after the adoption of the Law on "Martial Situation." After the abolition of official censorship in 1998, the legislation was again amended to apply censorship. Whereas in accordance with the Article 50, paragraph 2 of the Constitution, adopted in 1995 and entered into force since 1998, "state censorship in the mass media, including print media" was prohibited. " Meanwhile, according to the Constitution, censorship is prohibited. For this reason, censorship is not allowed even in exceptional cases, including the use of restrictive sanctions. Military censorship is state censorship. State censorship is prohibited by the Constitution, which embodies the highest legal norm. Thus, censorship provided by the Law "On Martial Situation" constitutes a gross violation of the Constitution. Guided by the provisions on censorship under the Constitution, the Milli Mejlis, far exceeding the limits established by the Constitution, limits the rights and freedoms of citizens. Meanwhile, Article 71 of the Constitution imposes a ban on all three branches of power, including the Milli Mejlis.

Despite the fact that until recently some restrictions on the freedom of the media could apply to certain restrictions in the martial law regime, direct application of censorship has so far seemed impossible. However, in accordance with Article1.0.3 of the Law on Martial Law, preliminary approval by military structures, other state bodies and relevant officials in connection with media reports and materials is required. Thus, the mass media should report to state structures and officials that they are going to report / not to report taking into account their worldview, legal knowledge and democratic views. Meanwhile, according to Article 10 of the Law, the measures envisaged by the martial law regime, in particular, military censorship according to information and media materials, are envisaged. In a separate order, it is envisaged to regulate the activities of the media in the front-line zone within the limits of the available powers.

In May 2017, the Milli Mejlis approved amendments to the "Law on Mass Media" regulating the legal relations of journalists. In the said law, the above-mentioned and legitimate amendments were introduced. In addition, Internet information resources related to print media have been added to Article 3, and thus the possibility of abuse in this area has increased. In the provisions of the Law, which provide for the inadmissibility of promulgation and protection of personal secrets, clauses have been added on the vague in meaning and "prohibited to disseminate information." The decisions of the European Court clearly state that the law should be open, clear and accessible to citizens of the country. "You can add anything you like to the information you send. Given that this provision establishes cases that form the responsibility, every journalist is obliged to understand that this is a specific responsibility. In the presence of restrictions of this kind, the emergence of responsibility brings chaos into the theory of law.

Another amendment to the "Media Law" also distorted the essence of this law, ignoring the fact that modern media actually function on the Internet. In other words, the information resources of the Internet were limited to the Law on Information, Informatization and Information Protection.

Adopted in February, restrictive and illegitimate amendments clearly manifested in the "Law on the Media." Thus, in 2001, the provisions of the Mass Media Law, which were the cause of extensive discussions and passed legal expertise, and subsequently undergone a number of positive changes in connection with Azerbaijan's admission to the Council of Europe, were subsequently subjected to rapid distortions and deformations, taking the form threatening journalistic activity generally.

In October/December 2017, the Milli Majlis made changes in administrative and criminal responsibility, outlined new forms of punishment, thereby toughening penalties for crimes and increasing fines for certain offenses. In accordance with the new provisions of the Code of Administrative Offenses and the Criminal Code, journalists and persons whose activities are related to freedom of speech may be restricted in their actions, suspended from investigation, etc. In December, two separate Articles (388-1 and 370-1) were added to the Administrative Offenses Code. One of them concerned the placement of the information on the Internet and "prohibited to disseminate information," and also provided for the responsibility for preventing the dissemination of this information. For violation of the provisions of this Article, including the dissemination of the name of the owner of the Internet information resource and the name of his domain, officials are subject to a fine in the amount of 1500-2000 manats, legal entities - a fine of 2000-2500 manats. In the said Article there is a note: "The person is brought to justice for the action provided by Article 388-1.1.1 of this Code on the basis of the relevant Articles of the Criminal Code of the Republic of Azerbaijan." In other words, this action gives rise to criminal liability.

In accordance with Article 370-1, the Ministry of Transport, Communications and High Technologies is authorized to punish the faulty provider or operator. The country's parliament believes that the provider and operator deserve a smaller penalty as a punishment in comparison with individuals. Thus, officials are fined AZN 1,000, legal entities AZN 1,500. So, if the violation is committed by "Azercell", the fine is 1500 manats, if the average citizen - 2000-2500 manats. In fact, the differences in the size of the fine indicate that the main target of the adopted amendments is the intimidation of citizens with their independent position, as well as the owners of information resources.

Attention is drawn to the fact that the Parliament shows unprecedented generosity in setting the size of fines for ordinary citizens and journalists. Meanwhile, the amount of fines imposed on officials for deliberately hampering the activities of the media in accordance with Article 381 or for violating journalists' rights under Article 382 of the Code of Administrative Offenses fluctuate within only 100-150, 300-500 manats. However, the size of the mentioned fines did not change in 2017. However, the penalties specified in Articles 147 (libel), 148 (insult) and 148 (slander and insult in the media) of the Criminal Code, the size of fines, the main target of which are journalists, October 2017 three times - from 300-1000 to 1000-1500 manats. Providing appropriate penalties for disseminating the privacy of personal correspondence and private life, Articles 155 and 156 of the Criminal Code directly threaten the activities of the media and journalists. The year 2017 was remembered by the fact that the sanctions provided for by the said Articles intensified in 5-10 times. Former fines in the amount of 100-500 manat reached 1,000-2,000 manat.

It should be noted that on May 2, 2018, the Milli Majlis made another attempt to restrict media activities, namely, censorship of the media in accordance with the Law on Martial Law, thus violating Article 50 of the Constitution. In addition, additional Article 517-2 of the Code of Administrative Offenses provides for toughening of administrative sanctions, which testifies to the authorities' desire to muffle the voice of freedom and finally suppress the activities of the mass media in the country.

It is not accidental that the organization "Reporters without Borders" published the index of freedom of the media the other day. Azerbaijan is depicted on the map in black and is on a par with countries in which freedom of speech and expression is suppressed. Neighboring Armenia ranks 80th in the list, while our country lags behind it by 83 steps, taking 163rd place. To our great regret, our country shares an "honorable place" with anti-democratic regimes like North Korea, Eritrea, Djibouti, Equatorial Guinea, Saudi Arabia, Somalia and Iran.

The last year was remembered by the fact that a new type was added to the types of responsibility for which journalists can be held accountable for defamation (slander and insult). So, Mehman Huseynov, Ikram Rahimov and their source of information were sentenced to various terms of imprisonment. Unfortunately, the issue of the decriminalization of defamation has not been resolved for a long time. On October 20, 2017, a new sanction for imprisonment for a period of three years was added to sanctions under Article 147.2 of the Criminal Code. A similar addition took place under Article 156.2, when an additional sanction was introduced providing for two years of imprisonment. Thus, the scope of application of both sanctions directly relates to freedom of expression. It is no coincidence that in 2017 bloggers Mehman Huseynov, Ikram Rahimov and others were convicted under Article 147.2.

Studies show that interference in the law on the mass media is becoming systematic, and this trend is becoming more and more reactionary every year. There is an urgent need to slow down this process, to conduct a repeated monitoring of the relevant legislation, to create a free space for the media and thereby to bring the legal justification for the results obtained. If this process is not suspended, information security can face enormous difficulties and threaten the national security of the country. The problem is that the mass media inside the country become unattractive from the information point of view, and the internal audience is forced to use information flows from outside the country. In the absence of free journalism, free media, the society can face serious cataclysms. The admitted shortcomings should be eliminated, and the law on the media should be liberalized taking into account international obligations and approaches provided for by the decisions of the European Court.