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.” 

Azerbaijan to license online TV channels

In January, 2021, Az-Net Watch covered the new legal development concerning media freedom environment in Azerbaijan. At the time, it was announced, that a newly established Azerbaijani Agency for Media Development will replace, marred by corruption allegations, the State Support Fund for Mass Media Development and that a new media law was drafted by the Administration of the President for the President’s review in two months. Six months down the line, the draft media law, is finally set for review, albeit much to the disappointment of freedom of the media advocates and media practitioners in Azerbaijan.

According to Azadliq Radio report, the new law, entails licensing the Internet television and radio broadcasting. The proposal spearheaded by the National Television and Radio Council (NTRC) was announced on June 17.

Specifically the draft law states that:

1) the online channel must have its own website and broadcast from this site;

2) the online channels must broadcast for not less than 6 hours as determined by the proposed new draft bill.

In addition, the Agency for the Development of Mass Media would register online news sties and news agencies.

When Turan News Agency reached out to the NTRC for a comment, the Council refuted the claims that the draft bill mentioned the Internet TV. Similarly, when the agency asked the newly created Agency for Media Development, the agency said, it had no information of such requirement mentioned in the bill. And yet, it was the NTRC that told state news agency APA about the draft bill according to Azadliq Radio report.

Several independent experts, said if true, the new bill and specifically the proposal about licensing, violate Article 10 of the European Convention on Human Rights and norms enshrined in Azerbaijan’s Constitution.

Addressing the controversial new bill, a media law expert, Alasgar Mammadli, said in addition to contradicting Article 10 of the Convention the license requirement can only be applied to broadcasters using frequency transmissions which is not the case for Internet television. In another interview, Mammadli said, “Only during the broadcast, there should be compliance with the general law, which is currently regulated by the Law on Mass Media, Criminal Law, and other laws. There are no gaps, and there are even unnecessary regulations (restrictions).” 

Another legal expert, Khaled Aghaliyev, evaluating the bill in a post on social media platform Facebook said, “It was clear that the government, which promised progressive reforms in the legal regulation of the media, worked harder than ever on reactionary regulatory mechanisms.” Aghaliyev said, in all likelihood, the lawyers working on “progressive regulations” took it upon themselves to interpret one specific sentence of Article 10 word for word. That sentence, notes Aghaliyev says, “This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” “But they [lawyers] thought wrong. The mentioning of that licensing applies only to traditional television, and radio. Therefore, the part of the new bill that we know of, is reactionary, binding freedom of expression. It does not comply with our constitutional norms or the European Convention.”

Stressing the importance of adopting a new media law, Aghaliyev instead offers a different approach. “The government should share the full text of the new draft law and let the civil society prepare an alternative. The two drafts should then go to the Council of Europe experts. Let the Council decide and adopt the one recommended instead.” [A similar initiative took place in 2017 when Azerbaijan’s civil society submitted an alternative analysis of the law on access to information as part of the Good Governance partnership]. 

Screen shot from the report “Compliance of the Republic of Azerbaijan with the International
Covenant on Civil and Political Rights”. The full report can be accessed here: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AZE/INT_CCPR_CSS_AZE_25228_E.pdf
An attempt to license online television was previously discussed in 2010, 2011, 2012, 2016. Over the past decade, the national lawmakers suggested regulating social media platforms on several occasions as well. In March 2017, Azerbaijani lawmakers approved legislation tightening rules for Internet use. Shortly after, scores of independent and opposition news websites were blocked inside Azerbaijan for access. 
*”National Television and Radio Council (NTRC) of Azerbaijan, was established by decree № 794 of the President of Azerbaijan Republic dated October 5, 2002 to ensure the implementation and regulation of state policy in broadcasting sector. The objective of the Council is to regulate the activity of television and radio companies, protect interests of the public during the broadcast, and control the observance of legislation on broadcasting.”

Azerbaijan’s desire to regulate online hate speech: What problems should Azerbaijan fix first?

This is part two in a series of detailed reports and analyses on existing legal amendments and new legislation affecting freedom of expression, media, and online rights in Azerbaijan and their compliance with international standards for freedom of expression.  

Background

On September 17, 2020, Zahid Oruc, member of the parliament and the head of the Human Rights Committee at the National Parliament, suggested parliament adopts a new law on hate speech. At the time, Oruc said the main goal was to prevent hate speech in the information space, possibly with the inclusion of social media platforms [several members of the parliament and government representatives have stressed that social networks should be regulated by law in Azerbaijan in recent years]. While stressing the urgency in adopting such a law, Oruc failed to address the exact nature of this urgency. In addition, likely in response to a possible backlash from the independent lawyers and civil society in Azerbaijan the MP said, the new bill, cannot be viewed “as a document against freedom of speech and expression”. Nevertheless, much of the responses that came following this announcement, were critical of the proposal especially in light of the legal context where plenty of other existing laws and procedures already address hate speech in one form or another.

In January 2020, the discussion on adopting the bill on hate speech was back on the agenda. Speaking at the first meeting of the spring session of the Parliamentary Committee on Human Rights the chairman of the committee Zahid Oruj noted that the spring session will focus on the analysis of world experience in the field of defamation and “hate speech” legislation.

But what about the analysis of Azerbaijan’s experience in the field of defamation? 

In Azerbaijan, a number of conceptual elements of hate speech are envisaged in the different normative legal acts, including in the Code of Administrative Offences, Criminal Code, the law on Information, informatization and protection of information and Law on Mass-Media.  In other words, several Azerbaijani laws include measures that are designed to address unacceptable online content (including hate speech), ranging from removing content, and making content temporarily inaccessible on the information-telecommunication network.

According to Article 47 of the Constitution of the Republic of Azerbaijan, everyone has the right to freedom of thought and speech. Agitation and propaganda, inciting racial, national, religious, social discord and animosity, or relying on any other criteria is inadmissible. Azerbaijan has also ratified the European Convention on Human Rights (hereinafter “ECHR”) where Article 10 provides that everyone has the right to freedom of expression.

Azerbaijan’s history is rich with examples where existing laws, were abused to restrict freedom of expression, and the national legislation so far failed to comply with international human rights standards with respect to the safety of the media workers or citizens who exercise their right to freedom of expression. That and the lack of independent judicial oversight over the restrictions to freedom of expression and thought post additional challenges in a current environment.

In 2017, when changes were made to the law on combating religious extremism, two prominent members of the Popular Front Party were arrested relying on the existing legislation, even though it was clear, it was a setup, as neither of the activists had any religious affiliation. In January 2017, a Baku court convicted senior opposition Popular Front member Fuad Gahramanli to 10 years in jail for inciting religious and ethnic hatred. Gahramanli was known for his criticisms of the government on Facebook. In July 2017 a court convicted Faig Amirli, another Popular Front member and financial director of the now-closed pro-opposition Azadlig newspaper, on bogus charges of inciting religious hatred and tax evasion. Amirli was handed a suspended sentence.

Four out of seven alerts in 2019 related to detention. Despite the March 2019 release of some wrongfully imprisoned journalists, including anti-corruption blogger Mehman Huseynov, the detention and harassment of journalists continue to this day.

During the height of the pandemic in Azerbaijan, the parliament introduced a series of amendments to existing laws that were then used to prosecute activists. Scores of activists were rounded up, including members of the opposition Popular Front [some of these arrests were captured here]. 

The government of Azerbaijan has consistently ignored the international calls, including the judgments of the European Court of Human Rights (ECtHR) requiring Azerbaijan to reform its domestic legislation with respect to freedom of expression and media rights in order to ensure that it is in line with the international standards. Instead of reforms, the government of Azerbaijan has aggravated the criminal liability for defamation and expanded the scope of the criminal liability to the online spaces (2016 amendments to the Criminal Code), adopted a criminal liability for extremist views on vague grounds, and established administrative liability for spreading false information.

These developments were contrary to the ECtHR’s findings in the Fatullayev, Mahmudov, and Agazade v. Azerbaijan cases (2008) where the Court found that application of provisions of the criminal law on defamation had been contrary to Article 10 of the Convention and the Council of Europe calls to the Member States that prison sentences for defamation should be abolished without further delay [Resolution 1577 (2007) of the Parliamentary Assembly, Towards decriminalization of defamation, to which the Strasbourg Court has referred on a number of occasions].

The country’s poor ranking on most of the rights and freedoms indexes attest to the grave reality in the country. It was also reflected in a statement issued following the Council of Europe Commissioner for Human Rights Dunja Mijatović’s visit to Azerbaijan in July 2019 where the Commissioner said, “Freedom of expression in Azerbaijan continued to be under threat”.

The key state obligations while regulating the online hate speech and general concerns for the Azerbaijani context

Despite the term “hate speech” widely used in legal, policy-making, and academic circles, there is often disagreement about its scope and about how it can best be countered [Dr. Tarlach McGonagle. The Council of Europe against online hate speech: Conundrums and challenges, p. 3.]

There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed. However, in 1997 the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (97) 20) on hate speech which stated the term (non-binding) “shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. 

In its case law the European Court of Human Rights, without adopting a precise definition, has regularly applied this term to forms of expression that spread, incite, promote or justify hatred founded on intolerance, including religious intolerance.

Key concerns for the abusive application of the hate-speech regulations

There have been growing concerns in many countries that hate speech regulations (both online and offline) are often misused or result in a violation of freedom of thought and expression. To this end, many international human rights organizations have often emphasized raising concerns on this matter and issued general recommendations, and developed standards for the regulation of hate speech to ensure that such regulations are in line with international human rights standards.

As noted, hate speech has threatened freedom of expression in many countries. Despite the importance “to prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …,” [Erbakan v. Turkey judgment of 6 July 2006, § 56] the presence of hate speech constitutes a serious threat for the freedom of expression in the process of potentially limiting the expression as such.

On May 13, 2020, Freedom of expression organization ARTICLE 19 has warned that France’s new “Avia” Law, will threaten freedom of speech in France. When a draft bill on hate speech was discussed in France, the French government has ignored the concerns raised by digital rights and free speech groups, and the result will be a chilling effect on online freedom of expression in France”. Consequently, on June 18, 2020, the French Constitutional Council (Conseil constitutionnel) the highest constitutional authority in France, declared that the majority of the Law on Countering Online Hatred, more commonly known as the Avia Law, was unconstitutional. This declaration rendered the key provisions in the law invalid. In its decision, the Constitutional Council held that certain provisions infringe “on freedom of speech and communication, and are not necessary, appropriate and proportionate to the aim pursued”.

The international human rights law provides that states may restrict freedom of expression (only) where provided by law with the condition to meet the principles of legality or necessity and proportionality.

Alongside these principles, an effective judicial review is needed to prevent any abuses of laws capable to restrict freedom of expression. The judicial review of such a measure, based on a weighing-up of the competing interests at stake and designed to strike a balance between them, is inconceivable without a framework establishing precise and specific rules regarding the application of preventive restrictions on freedom of expression [Ahmet Yıldırım v. Turkey, § 64; Cengiz and Others v. Turkey, § 62, which concerns the freedom to receive and impart information and ideas; see also OOO Flavus and Others v. Russia, §§ 40-43]. Furthermore, in some cases, for determining the proportionality, the ECtHR assesses the quality of the parliamentary and judicial review of the necessity of the measure [Animal Defenders International v. the United Kingdom [GC], §§ 108-109].

The First and foremost among these safeguards is the guarantee of review by an impartial decision-making body that separate from the executive and other interested parties.

The UN Special Rapporteur notes that “any restriction imposed must be applied by a body that is independent of political, commercial or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse” (A/67/357, para. 42).

This is not the case in Azerbaijan. For instance, the Ministry of Communications and Information Technologies is the main body regulating the internet in Azerbaijan, something that experts have called to change and share this role with an organization that is not under state control. The ICT market is also fairly concentrated in the hands of the government.

In its report (A/74/486, 9 October 2019), the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression evaluates the human rights law that applies to the regulation of online “hate speech” and notes that any restriction – and any action taken against speech should meet the conditions of legality, necessity, and proportionality, and legitimacy [Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/74/486, 9 October 2019), para. 20] and to establish or strengthen independent judicial mechanisms to ensure that individuals may have access to justice and remedies in case of restrictions. The Special Rapporteur further notes that “as a first principle, States should not use Internet companies as tools to limit expression that they themselves would be precluded from limiting under international human rights law. [para, 29]. In the meantime, the same Recommendation envisages a principle [third principle] that requires from the governments that interference with freedom of expression, in the context of combating hate speech, are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria and must be subject to independent judicial control.

In addition to discussions on adopting the law on Hate Speech, there are also plans to adopt a new law on Media at the moment. The consistent view of the government to regulate social networks with the “hate speech” law poses an additional risk to the systematically undermined freedom of expression in Azerbaijan. There is no guarantee that Azerbaijan’s government will not use lex ferenda regulations as a tool of oppression against its political opponents and civil society.

Without genuine consultations with civil society organizations, independent journalists, disregarding the constant calls of the human rights organizations and ECtHR judgments to reform the domestic laws to remove irrelevant and restrictive frameworks over freedom of expression, new hate speech, and media laws should be taken into account as a serious concern [Dr. Tarlach McGonagle. The Council of Europe against online hate speech: Conundrums and challenges, p. 29].

Instead of addressing the systematic shortcomings, in particular, rendering the restrictive legal frameworks in the sphere of freedom of conscience, freedom of expression and thought, and internet freedom, the government of Azerbaijan continues to add more restrictive regulations into its legislation that is likely to undermine last remnants of the freedom of expression – the online spaces.

In addition, while in a hurry to pass restrictive legislation against freedom of expression, the government of Azerbaijan remains inactive when it comes to the effective investigation of the smear campaigns and hateful attacks against minority groups, such as LGBTQ- communities, and feminists

Finally, having reviewed the current environment of repression and crackdown, and specifically, in the absence of effective judicial oversight and a fully independent regulatory body accountable to the public, it can be concluded that there is no urgency for any new regulations at the moment in Azerbaijan.