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