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

[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].

***

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.  

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; 

fresh media reforms raise concern [updated]

On January 12, President Ilham Aliyev signed a decree “on deepening media reforms in the Republic of Azerbaijan.” As a result, the newly established Azerbaijani Agency for Media Development will replace the State Support Fund for Mass Media Development and will have all the rights of the former institution. In tandem, new media law is also being drafted by the Administration of the President for the President’s review in two months.

The decree was welcomed by many mouthpiece media, including the SES [Voice] media group. Its director, Bahruz Guliyev said, there was a need for fundamental reforms, transparency, and public demand. “Since the Azerbaijani law on mass media fails to meet the demands of the time, it requires to be revised, should be improved, and one of the main tasks of the new body is to develop a draft law ‘On media’ replacing the outdated law,” he added.

Guliyev has been a long advocate of the government of Azerbaijan. SES was established in 1991. In 2015, Guliyev in an interview with YAP [Yeni Azerbaijan Partiyasi – the ruling New Azerbaijan Party] said, the platform had a tough path having survived the “pressure and censorship from the government.” The reason for the pressure faced in the hands of the government claimed Guliyev was that “the newspaper was writing about Azerbaijani realities.”

Two years prior, Guliyev was shouting at ODIHR representative in the aftermath of the rigged presidential election in Azerbaijan accusing ODIHR of having prepared the entire preliminary statement long before coming to Azerbaijan. Just two months earlier, Guliyev was among the recipients of a free apartment by President Aliyev in the new government-built residential complex for journalists. 

The charter

The Media Development Agency is a public legal entity carrying out activities to support the development of media, organise the training of media specialists and their additional education, stimulate the activities of audiovisual, print, online media and information agencies (media subjects), journalists and other media workers, as well as the introduction of new information and communication technologies and innovations in the field of media.

The agency’s tasks include organising the implementation of projects that are important for the state and society, aimed at developing, strengthening economic independence and improving the activities of these media entities, as well as in accordance with the “Concept of state support for the development of the media in the Republic of Azerbaijan.” The organisation also takes measures to strengthen the economic independence of media entities, creates financial support for the development of media, acts as a state customer for the production and distribution of audiovisual products, and holds competitions for this purpose.

Punitive measures

According to its charter, the agency can take measures to protect state and commercial secrets. In case of non-compliance with the information published in the online media within the requirements provided by law, the agency can contact the relevant authorities in order to take measures in this regard.

It also has the authority to take measures in accordance with the Code of Administrative Offenses in case of detecting signs of an administrative violation in the field of print and online media, and in case of detection of signs of a crime – to provide information to the appropriate authority [the powers are similar to the National Council on Television and Radio which can and has in the past deprive radio and television companies of air hours]. 

It will also be accountable to the head of state.

The agency’s governing bodies – a Supervisory Board of six members – and the executive director, are appointed by the head of state. Ahmed Ismayilov, is the executive director of the new fund. In April 2020, he was appointed the executive director of the now defunct Media Development Support Fund. Ismayilov, 40, is a lawyer by education. Previously he has worked in various government institutions, including the Heydar Aliyev Foundation, managed by the first lady and the first vice president Mehriban Aliyeva. He is a member of the ruling Yeni Azerbaijan Party. 

Previously, the central executive body supervising the media in Azerbaijan was abolished when the country joined the Council of Europe in 2001.

Reactions

In his Op-ed, the director of Turan News Agency, Mehman Aliyev wrote

Until now, the press supported by the state legally and illegally, has served the interests of the authorities, but not society; it has led to a deplorable situation in various areas, including the media themselves.

In the meantime, notes Aliyev, while the new fund’s focus is on technological aspects of media development there is no mentioning of protection of free press whatsoever. Lack of avenues for independent media in the country and impunity is the challenge, not the lack of technological equipment notes Aliyev.

Alasgar Mammadli, the media law expert, criticized the new agency’s broad, it’s vaguely defined legal powers and the absence of any wider preliminary discussions in the society ahead of its approval.

In an interview with ASTNA, lawyer Khalid Aghaliyev said while it is too early to say anything about the new agency, the role its predecessor played in Azerbaijan, should not be underestimated: 

State Support Fund for the Development of Mass Media, established 11 years ago, was one of the institutions that played a key role in controlling the media in Azerbaijan. This organization gradually began to penetrate the media in 2009 and was able to make the print media almost completely dependent on it in a short time. 

[…]

The image of this Fund, especially in the last 2-3 years, was seriously damaged, and its main mission was fully exposed. In this regard, it was entirely expected that the government would liquidate the Fund or present it in a new image. Therefore, I do not see a serious difference in principle between the abolished and the newly created institution. The new body will likely carry out the same mission as the Fund in reality. 

[…]

Powers such as punishment with regard to the content and directing the content are very dangerous. Empowering an institution created by the state with such powers is incompatible with the right to freedom of expression. Legislation already delineates the boundaries of freedom of expression, and any other interference is unacceptable.

Two days after the decree was signed, Vugar Safarli, the former fund’s executive director [Ahmed Ismayilov’s predecessor] who was dismissed from his post in April 2020, was arrested on charges of embezzlement. During the investigation, the prosecutor’s office seized some 6million AZN [3.5million USD] from Safarli’s personal bank accounts. Safarli was expelled from the ruling party on February 15. 

Now, the critics, and media practitioners must wait until the new media law is drafted. Given the country’s recent history of media crackdown, the chances of having transparent legislation are slim, while its implications worrying.   

arqument.az Facebook page hacked

June 24, editor of an online news platform arqument.az Shamshad Agha reports that the platform’s Facebook page was hacked. 

The damage was significant Agha told AIW. Around 11,000 page likes were deleted as well as some 12,000 followers. All of the platform’s posts until March were also removed. 

The admins were able to restore access to the page since the attack.

Arqument.az website was blocked in August 2018, following a decision issued by Sabail District Court. A few days later, Baku Court of Appeal annulled district court’s decision. However, the website was blocked once again in April 2019 by the Ministry of Communication, Transportation and High Technologies after publishing the story about protests in Jalilabad district. This time, the blocking took place without a court order.

According to the editor, he was informed that unless he removes the reported story, the blocking will remain in place. However, the news platform refused and instead filed a lawsuit against the Ministry of Communication, Transportation and High Technologies. After that, the blocking was lifted by the Ministry while the platform’s lawsuit continues.

The website was also subject to cyber attacks following blocking.

government rolls out an e-permission requirement for journalists

June 20, the Cabinet of Ministers rolled out a new requirement for journalists and mass media resources during the two weeks of strict quarantine regime effective between June 21 and July 5. According to the new regulation, journalists must register with an e-permission platform icaze.e-gov.az  The requirement concerns freelance and full-time journalists. Critics say the new regulation intends to limit the work of independent journalists and therefore access to independent information. 

According to the government website, before a journalist can obtain the permission slip, first, the person with the “seal of authority” of the media platform must apply. However, the majority of independent and opposition news sites operating inside and outside the country, work online and often do not carry the “seal of authority”. They are also likely not to be registered as platforms with the Ministry of Justice. 

Speaking on the issue, the media law expert Alasgar Ahmadoglu told Voice of America that in the absence of the state of emergency [Azerbaijan never declared the state of emergency but only imposed a strict quarantine regime] the Cabinet of Ministers cannot introduce such a requirement. Such regulation may only be possible according to article 112 of the constitution that states, the professional work of journalists can be limited during a state of emergency. 

The same day, Chief of the Public Relations Department of the Main State Traffic Police Department, Colonel Kamran Aliyev added further clarifications to the list of requirements. Aliyev noted that first, the media platform itself must register their journalist online using the e-registration system. If the media platform is registered in Baku, then in addition to the capital, it can dispatch journalists to Sumgayit and across Absheron region. However, the journalists will require a separate permission slip if they intend to travel to other regions in the country during the quarantine regime explained Aliyev. For this, the journalists [in addition to the registering online] must obtain a permission slip from his/her media platform indicating that the journalist is going a business trip on specified dates. The rule also applies to television channels inviting a guest – the gust’s name must also be registered within the system. This will help to identify whether the person was indeed invited to speak in case he/she stopped by the police for control. 

The online permission system was introduced on April 2 for institutions and organizations considered eligible to continue working during COVID19. No further explanations were provided on the storage of the personal data and the duration this platform will keep records of organisations, institutions, and the names of their staff.