New Media Law: implications for online media/journalism in Azerbaijan

In this legal analysis of the recently adopted media bill, AzNet Watch together with an independent human rights lawyer looks at the implications of the new law specifically on online media and journalists in Azerbaijan. 

On February 8, 2022, the president of Azerbaijan Ilham Aliyev approved the new Media Law. The law was adopted by Parliament on December 30, 2021. It was heavily criticized by local and international rights organizations who made repeated calls on the government to refrain from adopting the New Media Law given its restrictive nature. Critics of the draft law worried the new legal document would seriously threaten media freedom, including online media resources, as it contains provisions granting a discretionary power to the state, to regulate media excessively, and especially online media, as well as introduce further restrictions on journalists’ work, media companies, and relevant entities. Critics were also vocal about the absence of a broad and meaningful public consultation of the law prior to its adoption.

Despite concerns and criticisms, the government of Azerbaijan said the Media Law met international standards and went ahead with adopting the law anyway. And yet, our legal analysis in the context of a broader reflection on the state of media freedom in Azerbaijan, indicates, the new law is as far from international standards as it could be.

The new law empowers media regulatory authorities to issue sanctions for online media outlets located outside of Azerbaijan. The order also instructs the cabinet of ministers to prepare a draft law establishing administrative responsibility for violating the Media Law along with an additional list of powers of the media regulatory authority added to the law.

The new media law further consolidates government control over the media environment and journalistic activity, making it easier to punish media subjects and journalists.

The new law imposes numerous requirements and regulations on audiovisual media, print media, online media entities, news agencies, and journalists.

The bill also comes at a time, when the state’s media regulatory policy was already restrictive. Its attempts to control media began in the 2000s. Scores of journalists have been prosecuted and persecuted as a result. According to the Council of Europe’s Platform to Promote the Protection of Journalism and the Safety of Journalists,  currently, there are 4 journalists in detention and there are two cases of impunity for murder in Azerbaijan. Numerous news websites have been blocked for access. The most recent World Press Freedom Index by Reporters Without Borders ranks Azerbaijan 167th out of 180 countries.[1]

How did we get here?

In Azerbaijan, the media landscape has always been under the formal and de-facto control of an administrative system similar to the Soviet era. However, since the early 2000s, attempts to control media became more systematic. This was due to a government policy of “state care” for the media through state funding. Just to be clear, the media never had favorable conditions that would otherwise enable them to access unhindered funding and support. Instead, the state consistently funded private and state media in the country in an exchange for favorable coverage of the ruling government and its policies.[2]

This policy enabled the state, to control national and international (foreign media platforms) media on the grounds this was necessary for the sake of national security. As a result, with a few exceptions, even international media based outside of Azerbaijan was under direct or indirect control by the state or by some branches of the state.

Until 2009, the state pursued a policy of controlling media by issuing one-time financial assistance to the press.[3]  Other forms of state funding included presidential decrees awarding the journalists with honorary diplomas[4], individual scholarships[5], and various orders and medals[6].

This policy became more systematic with “The concept of the state support of the development of mass media in the Azerbaijan Republic” approved by the presidential order on July 31, 2008. In the preamble of the concept it is noted, “it has become a necessity of the modern times, to provide state support to mass information services’ development and activities.”[7]

On April 3, 2009, in accordance with a presidential decree, a state support fund for the development of mass media was established. The Presidential Administration was authorized with the overall control over the fund’s operation.

The fund implemented state control and regulation of media until, its now-former executive director was arrested, charged with embezzlement, money laundering, and abuse of office and the body was dissolved. The arrest came at a time when fresh reforms to media regulation were introduced.[8]

Immediately after, President Ilham Aliyev signed a decree “on deepening media reforms” in Azerbaijan. The decree included the creation of a new agency, the Media Development Agency as successor to the State Support Fund for the Development of Mass Media under the President of the Republic of Azerbaijan.

Preparation of the new media law

Although the January 12, 2020 presidential decree called for a new media law to be drafted within two months, the government only made general statements on several provisions of the new bill in July 2020.[9] The new law was not publicly shared until December 2021, when it was sent to the parliament for debate and later for its approval. Only a handful of people, carefully selected by the government, saw the full text of the draft law before it was enacted. Media analyst Alasgar Mammadli who was among the group of experts invited to review the text said that although there were some 40 proposals made for the new Media Law, only two were taken into account.

In a letter dated January 18, 2022, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, invited the President of Azerbaijan, to use his authority to return the recently adopted media law to the national parliament.[11] On February 10, 2022, the Committee to Protect Journalists called on Azerbaijan to repeal a newly enacted media law.

None of these international calls were taken into account.

The implications of the new Media Law for online media and journalism in Azerbaijan

While the new media law raised a number of concerns for the overall media environment, it introduced adverse consequences for online media platforms and journalism. The initial analysis of the text of the law reveals numerous problems as outlined below:

1.     Poorly worded definitions and excessive requirements and prohibitions for online media content

Article 14 of the Media Law requires that information published and (or) disseminated in the media (including online media) must meet at least 14 requirements. The law also requires that content published by media outlets should meet the requirements of the Law on Protection of Children from Harmful Information and the Law on Information, Informatization and Protection of Information which provides an exhaustive list of requirements criticized for vagueness.

For instance, Article 14.1.6. of the law prohibiting media from using “immoral lexical (swearing) words and expressions, gestures” contradicts the requirements of the European Court of Human Rights standards as “prescribed by law” on the account that it lacks sufficient clarity and precision. The article also does not comply with a standard, “necessary in a democratic society,” “found in Articles 8-11 of the European Convention on Human Rights which provides that the state may impose restrictions of these rights only if such restrictions are ‘necessary in a democratic society’ and proportional to the legitimate aims enumerated in each article.”  The text authorizes the authorities to consider any impugned statement or general criticism as an “immoral lexical (swearing) words of expressions”. With such a broad definition, this requirement has a chilling effect on journalists.

Article 14.1.11 of the law reads, “facts and events must be interpreted impartially and objectively, and one-sidedness must not be allowed.” A duty to impartial and accurate reporting and one-sidedness is likely to result in journalists refraining from exercising their right to freedom of expression without self-censorship. A failure of this requirement subjects the journalist to heavy sanctions. Furthermore, taking into account the existing political atmosphere in the country, such broadly defined restrictions can prevent journalists and other professionals working for online media from staying impartial without any interference.

Article 14.1.14  concerns published content according to which, “publication (dissemination) of information about the crime committed by a person in the absence of a court order that has entered into force should not be allowed.” Such a direct ban in general form could limit the freedom of expression, in particular, where certain cases are widely covered in the media on account of the seriousness of the facts and the individuals. The journalist also can be subject to disproportionate sanctions for publication or dissemination of information, which is already known to people, for instance in case of scandalous news about the corruption of officials. This clause heavily limits the primary duty of ensuring diversity and plurality of voices in the media.

Any imposed restrictions must meet the requirements as prescribed by law pursuant of legitimate aims (allowed by the international human rights law), necessary in a democratic society, such as proportionality, and non-discrimination.

2.     Requirements for staff at online media outlets and freelance journalists working for online media – power of the Media Registry

According to the new law, Azerbaijan must establish a registry system of online media outlets and journalists working for online media platforms or working as freelance journalists. This and other additional provisions of the law raise a number of questions regarding the compliance of the law with the international standards on media freedom.

Article 62.1 reads that permission from state bodies is not required for setting up online media. But Article 62.2 requires that an online media entity must apply to the relevant executive authority (Media Registry) 7 days prior to the publication or dissemination of the relevant media material.  In other words, while there is no need to apply for creating an online media platform, there is a requirement to apply for a permit once the online resource becomes operational and starts publishing. Article 62.4 requires an additional opinion issued by the State Committee for Work with Religious Organizations before an online media focusing on religion and religious content is set up. In addition, Article 78.3 obligates online media to apply to the Media Registry within 6 months since the platforms become operational.

Article 60.5 requires online media to publish at least 20 articles per day to qualify as an online media platform.

Article 26 obligates the founder of the online media to be a citizen of the Azerbaijan Republic permanently residing in the Azerbaijan Republic. In case the founder is a legal entity, then the highest share (75 percent) in the authorized capital must belong to a citizen (citizens) of Azerbaijan permanently residing in the country.

The Cabinet of Ministers has been instructed to prepare regulation on the provision of registration at the Media Registry within 3 months as per presidential order “on the application of the Law of the Republic of Azerbaijan ‘On Media’ and regulation of a number of issues arising from it” dated February 8, 2022. And Article 60 of the new law requires that online media outlets disclose their organizational information on their respective websites. Article 60.2 also requires online media to register with the tax authorities, identify and appoint a person responsible for editorial.

Article 26.3 prohibits previously convicted individuals from setting up media platforms. The list of previous convictions is exhaustive including serious or especially serious crimes; crimes against public morality; persons whose convictions have not been expunged or revoked; including political parties (excluding print media); and religious organizations (excluding print media). Prohibiting religious and political organizations from establishing online media is a failure to comply with the international standards on the right to freedom to seek, receive and impart information and ideas of all kinds.

3.     Importance of registering with the Media Registry for online media platforms

The Media Register is an electronic information resource managed by a Media Development Agency which is managed by the Supervisory Board consisting of the Chairman and 6 (six) members appointed by the President of the Republic of Azerbaijan. In order to be registered at the Media Registry as a media entity (subject), a media entity can apply either as a legal entity or as a sole entrepreneur (Article 74).

Article 74.2 sets out a list of requirements journalists must comply with for their inclusion in the registry. These requirements include a degree in higher education as well as another number of different merit-based criteria. Article 74.2.5 requires that journalists obtain and provide an employment contract with a media entity. Individuals or freelance journalists must have a civil contract with at least one media entity registered at the Media Registry in order to be able to register at the media registry.

Those outlets who succeed at registering with the Media Register are issued certificates (which grant access to government events, press conferences and etc.), and journalists are issued press cards (valid for three years and subject to renewal upon request). Media entities, including online media outlets not included in this registry, will not be considered mass media, and subsequently, unable to hire journalists. Also, in case the online media platform is not registered by the registry, journalists who have contracts with these online media platforms, won’t be admitted to the Media Registry and won’t be issued press cards.

Registration with the Media Register is one of the main guarantees for the free operation of media outlets and journalists. For example, according to Article 72.6 of the Law, only media entities and journalists included in the Media Register may carry on with their work during military and/or state of emergency situations, in special operations against religious extremism, and in operations against terrorism.

In the absence of certificates issued exclusively by the register, journalists may also not be allowed to conduct polls on the streets.

These and other requirements as outlined in the law, create additional challenges for freelance journalists working (on contracts) with international media outlets or local online media outlets not registered with the Media Register.

4.     Suspension of online media outlet

Another issue of concern under the new law is the rules governing the suspension or termination of the activities of online media entities or distribution of media products by a court decision. According to the law, the activities of online media entities and the distribution of media products are suspended on the following occasions:

–       if a foreigner or stateless person, as well as a person without higher education, is appointed to the position of the head of the governing body of online media entity;

–       if a person who has received an administrative sanction for abuse of freedom of activity in the field of media and the right to be a journalist repeats the same mistake within one year from the date of entry into force of the decision of administrative sanction;

–       when online media entities violate the requirements of articles 13.1 and 13.2 of this Law[12] after being warned 3 (three) times in a year;

The suspension of the online media outlet based on abuse of freedom in the field of media rights or journalist rights is quite vague, and the law does not provide further definitions as to what constitutes the abuse of freedom in the area of media rights. Such vague provisions are likely to empower state authorities to consider any possible media activity as an abuse of freedom in the media field.

Furthermore, the law authorizes the state to suspend the activity of the online media where the online media entity commits the violations after three consecutive warnings. However, it is questionable whether there is a role for a court to challenge or review the issuance of such warnings. In practice, authorities can issue warnings or requests in the form of letters, to the online media platforms asking them to “correct flaws” and can use these warnings to suspend the work of online media outlets. Such warnings can be considered as ex-ante suspension or termination decisions if repeated within one or two years. Despite being a legal ground for further severe sanctions, the law does not clearly clarify on which basis such warnings can be issued.

To sum it up

An analysis of the law, in general, suggests that an already challenging environment for online media and journalism will get worse once the new law is fully implemented by the end of this year. Thus, only media entities and journalists included in the media register established by law will be able to enjoy the privileges provided by the state in the field of media activities.

In addition, the law gives the government broad powers to suspend or liquidate online media entities, resulting in severe penalties for “media and journalists who do not follow the rules.” From the international standards point of view, suspension or termination of media in such broadly defined circumstances and terms is severe and unlikely to comply with the standards necessary in a democratic society established by the ECHR case law. Furthermore, having a dissuasive effect, such disproportionate restrictions can be seen as an effective means of censorship over online media.

Furthermore, due to the strict state control over the activities of media outlets in Azerbaijan, their economic resources are limited, often forcing them to operate with insufficient financial resources which is not sustainable long term. Measures such as increased taxes and other additional state duties are likely to create further challenges for the activities of online media entities.

The overall analysis of the law reveals that its main purpose is to regulate online media and journalism the way authorities regulate print media, ignoring the features and needs of ICT-based online media. The new law gives the power to suspend and/or terminate the activities of online media and impose severe sanctions.

Relevant international standards

There is a valuable and solid interpretative jurisprudence in the CoE, established in the course of decades by the European Court of Human Rights, which also includes the provision of journalistic activities and media services in an online environment. Article 10 of the European Convention on Human Rights applies to the Internet as a means of communication (Delfi AS v. Estonia [GC], cited above, § 131), whatever the type of message and even when used for commercial purposes (Ashby Donald and Others v. France, no. 36769/08, § 34, 10 January 2013).[13]

A free, uncensored, and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other human rights and freedoms.[14]  This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. [15] Furthermore, journalism is a function shared by a wide range of actors, including professional full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the internet, or elsewhere. And general State systems for registration or licensing of journalists are incompatible with paragraph 3 of the International Covenant on Civil and Political Rights ensuring the right to freedom of expression which also includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.[16]

In its Resolution  2213 (2018), the Parliamentary Assembly of Council of Europe observes that “a drop in the revenue of most media, the casting around of publishers for new business models and the virtually systematic outsourcing of work have all substantially contributed to the boom in the number of freelance journalists. The latter are confronted with a lack of professional recognition: although working in the same conditions as journalists employed on full-time contracts, they do not have the same rights and, in several countries, cannot be represented by trade unions and negotiate their rates.”  The Assembly, therefore, called on Council of Europe member States to review their domestic legislation on the status of journalists with a view to (i) identifying any areas to be updated, taking recent technological and economic developments into account (6.3.1), and (ii) providing a legal definition of journalists wide enough to encompass all forms of contemporary professional journalistic work, including internet-based work (6.3.3).[17]

In another Resolution 2256 (2019) on “Internet governance and human rights”, the Parliamentary Assembly of Council of Europe recommends to the member states to “avoid concentrating powers exclusively in the hands of public authorities and preserve the role of organizations tasked with technical aspects and aspects of internet management, as well as the role of the private sector.”[18]

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[1] https://eurasianet.org/azerbaijan-to-implement-new-media-restrictions
[2] As of 2019, there are two state-funded TV channels, which are not meeting the population’s information needs. In 2018 31.8m Azerbaijani manat was allocated to AzTV and AZN11.6m to ITV. Nevertheless, the result is that these amounts do not provide citizens with pluralistic information, since AZTV and ITV represent the interests of the government that funds them, not of society. Their news programs are not objective, alternative views are not included, the opposition and independent voices are not invited to the airwaves. 
[3]http://www.e-qanun.az/framework/15194;http://www.e-qanun.az/framework/10495;http://www.e-qanun.az/framework/907; http://www.e-qanun.az/framework/2915
[4]http://www.e-qanun.az/framework/30362;http://www.e-qanun.az/framework/6675;http://www.e-qanun.az/framework/6532; http://www.e-qanun.az/framework/11729;http://www.e-qanun.az/framework/21153
[5] http://www.e-qanun.az/framework/30359
[6] http://www.e-qanun.az/framework/30360
[7] https://cis-legislation.com/document.fwx?rgn=23907#A000000002; http://www.e-qanun.az/framework/15193
[8] https://oc-media.org/head-of-azerbaijans-state-media-fund-arrested-ahead-of-controversial-reforms/
[9] https://benefisiar.org/manset/17509/media-haqqinda-qanun-layihəsinin-bəzi-detallari-aciqlandi.html   
[11] Azerbaijan: new media law raises serious human rights concerns and should be changed. The Commissioner noted that “the newly adopted law further deteriorates the situation as concerns freedom of expression and media freedom in the country by granting discretionary powers to state authorities regulating the media sector, including through licensing, excessively restricting journalists’ work, … “
[12] the requirement to use the information of other media entities on a subscription or contract basis and, in the absence of a subscription or contract, with reference to not more than one-third of information.
[13] The Court has made the following observation (Delfi AS v. Estonia [GC], cited above, § 133):  (…) the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63).
[14] See UN HRC general comment No. 34, para., 13
[15] See General Comment No. 25 on article 25 (Participation in public affairs and the right to vote).
[16] See General Comment No. 34. para., 44
[17] Parliamentary Assembly of the Council of Europe, Resolution 2213 (2018). The status of journalists in Europe. https://pace.coe.int/en/files/24735/html
[18] Parliamentary Assembly of the Council of Europe, Resolution 2256 (2019), Internet governance and human rights. https://pace.coe.int/en/files/25407/html

Journalist fined over published article

The list of social media users warned or fined as a result of their public posts on social platforms continues to grow in Azerbaijan. The latest case involves journalist and editor-in-chief of an online news platform jamaz.info, Ibishbeyli Fikret (Fikret Faramazoglu).  On January 12, Faramazoglu was summoned to the Prosecutor General Office where he was accused of “disseminating forbidden information on the internet”, an administrative offense under Article 388-1.1.1. The journalist was fined a total amount of AZN 500 [USD 295] following the court decision. The Prosecutor General Office alleged that the article published on jamaz.info website [“Shusha is under fire from Khankendi”] on January 11, caused confusion, and fear wrote the journalist following his release in a post on Facebook. The journalist intends to appeal the decision. 

Previously, AzNet Watch reported on other similar cases. Below is the summary: 

December 21, the Prosecutor General’s Office of Azerbaijan issued a statement that four citizens – Abushov Zamig, Mahmudov Ilgar, Ibrahimov Mehdi, and Safarsoy Rza – were invited to the prosecutor’s office for allegedly disseminating biased information on social networks. All four were warned that in case they repeat the offense, they could face more stringent measures reported Turan News Agency.

December 21, secondary school principal Hikmet Aghajanov was warned by the Prosecutor Office, over alleged online dissemination of prohibited information on suicide according to reporting by Report.az.

December 21, a statement by the Prosecutor Office further urged media entities and users of social networks to refrain from publicizing inaccurate and distorted information, warning that further measures would be taken otherwise.  

December 18, websites olke.az, and manevr.az, were fined in a total amount of AZN 1500 [USD 882] each for violating Article 388-1.1.1 of the Code of Administrative Offenses. 

December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a late-night trial, on charges of publishing prohibited information on an information resource or information/communication network in violation of Article 388-1.1.1 of the Code of Administrative Offenses. 

In a comment to AzNet Watch, an independent lawyer Emin Abbasov said, “Although Article 54.2 of the Code of Administrative Offenses stipulates that the prosecutor shall initiate proceedings on certain categories of administrative offenses, the last sentence of that article authorizes the prosecutor to initiate proceedings on any other administrative offense. Apparently, the Code of the Administrative Offences (articles 54.2 and 99.3) empowers the Prosecutor General’s Office with wide powers including launching administrative offenses in any administrative offense cases. The wide discretion of criminal prosecution body beyond the criminal offenses, and in particular over the information distributed online puts huge pressure over freedom of expression and free flow of information.”

In Azerbaijan the parliament is discussing the controversial law on media – the bill already passed its second reading [Updated January 26]

[Update] On December 30, Azerbaijan’s parliament approved a new media law after its third and final reading. The law was passed despite mounting criticism from local journalists and is set to be signed by President Ilham Aliyev and become effective as of January 1, 2022. Hailed by its proponents as a reform bill, critics of the law warn that the new law’s will have an extensive impact on media freedom and independence in Azerbaijan [more here].

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The plans to roll out a new Media Law in Azerbaijan were announced in January 2021 following a Presidential Decree “on deepening media reforms in the Republic of Azerbaijan.” Now, almost a year later, despite local advocacy by journalists and news platforms to reconsider adopting the legal document, the law passed its second reading on December 20, 2021. Although the law has not been finally approved and signed by the president, the local media already reported several citizens fined or warned over the content they have shared online. 

The controversy of the new law

On December 16, two days after the draft law passed its first reading a group of civil society representatives issued a statement urging the lawmakers to reconsider the draft law in its current form. According to the statement, the law “opens up a wide range of opportunities for the state to determine who can engage in journalism and rejects the model of media self-regulation. It inflicts incurable wounds on freedom of media, which is an important component of the right to freedom of expression.” 

According to Eurasianet.net reporting

Among the many new regulations: The state will now create a registry of journalists, who have to fit specific criteria (including lack of a criminal record) to be included. Owners of media outlets will have to live in Azerbaijan, which would effectively ban many of the country’s independent media which are run by Azerbaijanis who fled the country. Online news outlets will be required to publish at least 20 news pieces on a daily basis.

There are also a wide variety of content restrictions in the new law. Journalists will be prohibited from “propagating superstitions.” “Tarnishing a business’s reputation” will also not be allowed. Section 14.1.11 stipulates that “facts and events must be interpreted impartially and objectively, and one-sidedness must not be allowed.”

The intent appears to be to give the government more freedom to block media it deems unfriendly.

Reactions

Media law expert Alasgar Mammadli told Kanal13 in an interview that the law now grants a right to block online content on a whim. Azerbaijan is already blocking a wide range of independent and opposition news websites since 2017. The most recent findings were released this summer by AzNet Watch in partnership with OONI. But media censorship is an ongoing issue according to Qurium Media Foundation that released another report, this summer, documenting a decade of media censorship in Azerbaijan based on the organization’s work assisting targeted, and blocked news platforms in the country. 

In an interview with Toplum TV, journalist Seymur Kazimov said, the new provisions are “backward.”

On December 22, a human rights organization “Defense Line”, said in a statement that the new law was also in violation of the Azerbaijan Constitution: 

Part I of Article 7 of the Constitution states that the Azerbaijani state is a democratic, legal republic, Article 50, Part II guarantees freedom of mass information, as well as prohibits state censorship of the press. However, in recent years, dozens of journalists have been subjected to politically motivated administrative and criminal prosecution, ill-treatment, and illegal interference in the activities of electronic and written publications by administrative bodies.

In its statement, the organization further made calls on the government of Azerbaijani and its legislature to comply with the requirements of Articles 10 (freedom of expression), 47 (freedom of thought and expression), and 50 (freedom of information) of the European Convention.

Gubad Ibadoglu, professor of economics, who manages an online YouTube platform Biz told Azerbaijan Service for Radio Liberty that the new law aims to restrict the media and increase the risk of blocking critical television programs broadcast from abroad. 

First signs of controlling online content

On December 21, the Prosecutor General’s Office of Azerbaijan issued a statement that four citizens – Abushov Zamig, Mahmudov Ilgar, Ibrahimov Mehdi, and Safarsoy Rza – were invited to the prosecutor’s office for allegedly disseminating biased information on social networks. All four were warned that in case they repeat the offense, they could face more stringent measures reported Turan News Agency.

In addition, several websites were issued a fine in violation of Article 388-1.1.1 of the Code of Administrative Offenses. According to reporting by Report.az, on December 18, olke.az, and manevr.az, were fined in a total amount of AZN 1500 [USD 882] each over alleged illegal dissemination of information that promotes suicide as a solution mechanism, “while substantiating, inciting, and explaining the methods of its commission.” 

Lawyer Khaled Aghaly said the decision was embarrassing. In an interview with Meydan TV, Aghaly said that both websites were fined over publishing exact same text. “Manevr.az” website copied the story published by “olke.az.” According to the law on Mass Media, in case, information was shared from another resource [rather than published as an original text], the news outlet republishing the content should be freed from any responsibility. It is unfortunate that even the courts ignored this [when issuing their final decision],” explained Aghaly.

In addition, on December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a late-night trial, on charges of publishing prohibited information on an information resource or information/communication network in violation of Article 388-1.1.1 of the Code of Administrative Offenses. 

In March 2020, Article 388-1 of the Code of Administrative Offenses was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal owners of internet information resources and associated domain names as well as against users of information-telecommunication networks for the placement, or the violation of provisions of the Information Law aiming at preventing the placement, of prohibited information on such internet information resources. 

Commenting on Sakhavat Mammad’s case, media law expert Alasgar Mammadli told Meydan TV that the new law is already being put to use even though it officially enters into force next year. “Calling the journalist to the prosecutor’s office, and then hastily fining him in court [in the absence of an investigation, explicit mentioning of which law was violated, and which secrets were spread], is nothing but a pressure on freedom of speech and is the violation of freedom of expression,” Mammadli added. 

But this is also not the first time that a journalist faced punishment over their work, reported Azerbaijan service for Radio Free Europe. In 2019, Mustafa Hajiyebli, editor of opposition bastainfo.com received an administrative sentence. He was accused of instilling chaos among the public. Around the same time, the editor of criminal.az website, Anar Mammadov faced similar charges. A number of other cases were documented in the most recent Freedom on the Net report published by Freedom House. 

Finally, one secondary school principal Hikmet Aghajanov was warned by the Prosecutor Office, over alleged online dissemination of prohibited information on suicide according to reporting by Report.az.

December 21 statement by the Prosecutor Office further urged media entities and users of social networks to refrain from publicizing inaccurate and distorted information, warning that further measures would be taken otherwise.  

[Update] Over the next month the Prosecutor Office continued issuing warnings. Most recently on January 24, a group of social media users was warned while one social media user was sentenced to a month in administrative detention. Also, on January 24, activist and member of the opposition Musavat party’s youth branch, Aziz Mamiyev was questioned at the police according to reporting by Meydan TV. Mamiyev said it was his social media posts that had him questioned. The activist said police showed him the printout of his TikTok video too telling him he mentioned President Ilham Aliyev there. “They told me, it is your problem if you are criticizing the government but be careful about your writing. Be careful in your struggle,” wrote Mamiyev in a Facebook post adding that regardless he considers the nature of this visit political and pressure by the government against freedom of speech.

In a comment to AzNet Watch, an independent lawyer Emin Abbasov said, “Although Article 54.2 of the Code of Administrative Offenses stipulates that the prosecutor shall initiate proceedings on certain categories of administrative offenses, the last sentence of that article authorizes the prosecutor to initiate proceedings on any other administrative offense. Apparently, the Code of the Administrative Offences (articles 54.2 and 99.3) empowers the Prosecutor General’s Office with wide powers including launching administrative offenses in any administrative offense cases. The wide discretion of criminal prosecution body beyond the criminal offenses, and in particular over the information distributed online puts huge pressure over freedom of expression and free flow of information.”

Gag order around “Terter” case

In another warning issued by the Prosecutor General’s Office, the Interior Ministry, and the State Security Service of Azerbaijan, the government institutions warned of spreading false information on the ongoing Terter Case. According to the wording of the warning, “representatives of mass media, users of social media platforms, as well as participants in criminal proceedings [shall be] informed that the dissemination of preliminary investigation information without proper permission creates liability under criminal law.” The government institutions also warned that measures will be taken against those who disseminate biased and distorted information in order to overshadow the activities of government agencies and the victorious Azerbaijani Army, influence the investigation, and deliberately mislead the public.

The Terter Case refers to 2017 events surrounding a group of Azerbaijani servicemen accused of collaborating with the intelligence and security services of Armenia. At the time, the Military Prosecutor’s Office of the Republic of Azerbaijan launched a criminal case, under Article 274 (treason) of the Criminal Code on treason and other criminal acts. The faith of these men remained largely unknown until the following year, when “persons who claimed to have been illegally detained, interrogated and tortured” began talking about what happened to them on social media platforms. Since then, the case has been widely referred to as the Terter case. 

According to a statement by the OMCT issued in April 2021, following the investigations, it was possible to identify that at least “78 Azerbaijani citizens [were] detained and sentenced to between 12 and 20 years in prison, with multiple cases of torture, including 11 deaths in custody of Azerbaijani military personnel and civilians.” 

In June 2021, 24 members of the Parliamentary Assembly of the Council of Europe (PACE) signed a motion, requesting to appoint a rapporteur to investigate the reported torture and ill-treatment in the Terter case.

On November 1, Lieutenant General of Justice Khanlar Valiyev, deputy prosecutor general and military prosecutor of Azerbaijan “admitted to local media that more than 100 servicemen were tortured during the investigation of Terter case.” 

On November 5, 2021, the case was discussed during a meeting of the Committee on Legal Affairs of PACE according to reporting by Turan News Agency. 

What’s next?

The new media law enters into force on January 1, 2022. Media law experts and journalists, say instead, the authorities should have focused on decriminalizing defamation and libel, adopting a law on defamation and relying on existing legal structures rather than draft a new law, which was largely kept away from public discussions and despite demands by independent and opposition journalists and other representatives of civil society, refused to open the draft bill for review and recommendation process as has been the case with the Law on Access to Information, passed by Parliament in 2005. In an interview with Turan News Agency, lawyer Khaled Aghaly explained that at the time, “[the bill] was developed with the participation of media law experts, the local and international community.” Unfortunately, this practice was dismissed this time around explained Aghaly. 

Local experts believe it is possible to change the course as long as there is an interest on behalf of the government. Meanwhile, on December 24, the parliament is scheduled to discuss the existing law on Information, Informatisation, and Protection of Information and the list of proposed amendments published on the parliament’s website on December 20. If approved the following changes will be made to the existing bill: 

  • in its present form, the law does not oblige the regulatory body to provide the information resource owners, internet and host providers, or other sites’ substantiated opinion reasoning for the content prohibited. In other words, the regulatory body and other state authorities can request to remove the content or block access to websites without any obligation to substantiate their demands;

    • The proposed amendment calls for clear reasoning behind the content removal request;
  • Previously a whole website could be closed for access for publishing “prohibited information”;
    • The proposed amendment calls blocking specific content; 

what’s new in the new media law

The plans to roll out a new Media Law in Azerbaijan were announced in January 2021 following a Presidential Decree “on deepening media reforms in the Republic of Azerbaijan.” In addition to a new Media Law, the decree also called for an establishment of a brand new body, the Azerbaijani Agency for Media Development replacing the State Support Fund for Mass Media Development. 

Six months after the initial announcement, the law is ready, but not for the public eye or independent journalists. The critics say, the law will further restrict the work of independent and opposition media platforms, while supporters argue the law will strengthen the media environment in the country. 

According to Ahmad Ismayilov, the Executive Director at the newly set up Agency for Media Development, the law – which is currently being developed behind-closed-door discussions – will be evaluated by the parliament in its final form, and only after the reading at the parliament will be open to public debate. 

What is known about some of the provisions

  • one unified registry system for media outlets, their offices, and journalists in order to systematize information on media entities, their offices and staff (this specifically has caused dissatisfaction among independent journalists and bloggers, according to Turan News Agency reporting);
  • the registration process requires that all print, online media platforms, news agencies, and journalists apply for registration;
  • a separate body – Audiovisual Council – will register audiovisual media platforms;
  • all media platforms and journalists registered through the system will receive certificates and press cards (valid for three years) respectively;
  • the registration system does not apply to foreign journalists who will require to receive approval from the Ministry of Foreign Affairs;
  • all media platforms must be legally registered and show proof of sustainability with registering;
  • journalists registering through the system, will be required to meet a set of requirements – those without higher education, previous convictions won’t be registered; journalists must provide contracts with media platforms that must be registered within the system; journalists must provide at least three years of work experience or relevant work experience;
  • the registry may remove media platforms and journalists already registered;  
  • the draft law will require internet television to obtain licenses in order to operate;
  • the draft law will be submitted to the national parliament (no dates announced yet); put on the agenda and posted on the Parliament’s website. Only then will there be a discussion on the main provisions and assessments of the overall bill;
  • the draft law prohibits state censorship and financing of the media; 
  • the draft law ensures pluralism and freedom of the media; 
  • according to one of the provisions, illegal interference in the work of journalists, their persecution, and harassment are inadmissible; 

According to Rustam Ahmadov, director of the Media Development Agency’s Department for Work with Media Entities and Journalists and Media Support Projects, it is possible that the bill will be adopted in the first reading. But it is also possible the draft will be returned for revision, to address suggestions and comments. “Unfortunately, I can not say exactly when the bill will be submitted to the parliament,” Ahmadov told Turan News Agency in an interview. 

Pundits’ response

Until the bill has been made public, it is hard to comment on its transparency said media lawyer Khalid Agaliyev in an interview with Turan News Agency. So far, the closed discussions are only creating doubts and eliminating optimism about the progress of the law, said a media lawyer. 

Aghaliyev pointed to three issues about the draft law that is especially worrying, “unified registry of journalists, licensing of online media, the creation of a media register (that would also require registration of their staff). All three are seriously controversial in terms of the concept of the right to freedom of expression, and there are elements of discrimination.”

On the provision about single press cards Aghaliyev said, this provision would allow the government to choose who keeps tabs on the work the government does because, under normal circumstances, it is the media and journalists who exercise public control over government activities. Aghaliyev also pointed out that the right to access, prepare and disseminate information is not only given to journalists but to every citizen according to the Constitution and international agreements Azerbaijan signed. Enforcing the single card rule is not an additional opportunity. “There are editorial offices established in accordance with the law, there is an editorial policy, their press cards should suffice to take advantage of the opportunities created by the state for journalists,” said Aghaliyev.

On the provision about licensing internet television and one single registry, Aghaliyev said this would go against the right to freedom of expression. “Rules such as the creation of a register of all media outlets and the registration of those included in the register as journalists are seriously problematic and discriminatory in terms of the right to freedom of expression.”

Aghaliyev also reminded that a media registry already exists in Azerbaijan as newspapers must inform the Ministry of Justice and once approved, start operating. “In this case, the creation of a separate register indicates the intention to more easily control, direct and suppress the media and journalists.”