Post-Soviet Media Law & Policy Newsletter
Issue 19 Benjamin
N. Cardozo School of Law June 27, 1995
Moldovan Press Law
CHAPTER I GENERAL PROVISIONS
Article 1. The Freedom of the Press
(1) In Moldova Republic the freedom of the press represents
a fundamental right, confirmed by the constitution. The State guarantees
to every person the right of free expression of opinions and ideas and
the right to truthful information from periodicals and press agencies,
which are inherent in political pluralism and are subject to copyright
legislation.
(2) Censorship of any kind concerning periodicals
and press agencies and interference with their preparing and spreading
information is prohibited.
Article 2. The Judicial Statute of the Periodicals’ and Press
Agencies’ Editorial Boards
The editorial boards of the periodicals and press agencies
are legal entities and they exist pursuant to the present legislation and
their statute.
Article 3. Presentation of the Information by the Officials
The officials of the public offices should present efficiently
the material and the required information by the periodicals and press
agencies, except the materials and information enumerated in Article 4
or considered state secrets.
Article 4. The Freedom of Expression and the Limitation of Publicity
(1) The periodicals and the press agencies may publish,
at their own discretion, any kind of materials and information, except:
a) materials that contain contestation to and defamation of the State
and People; urge wars of aggression, national, racial or religious hate,
inciting discrimination, territorial separatism or public violence; and
any other manifestations that violate the present constitutional regime;
b) false materials, whether or not they disparage the honor and the
respect of a person, as well as materials that contradict the present legislation
and the general principles of international conventions concerning human
rights;
c) pornographic materials;
d) information about adoption without the permission of the adoptive
parents, and in case of their death, without the permission of the adoptive
child or of the guardian and trustee.
(2) Violation of this article leads to sanctions stipulated
herein.
CHAPTER 2 THE ORGANIZATION OF THE ACTIVITY OF PERIODICALS
AND PRESS AGENCIES
Article 5. The Right to Establish Periodicals and Press Agencies
(1) Any legal entity of Moldova Republic or any natural
person who is a citizen of Moldova Republic who has reached the age of
18 and lives in its territory has the right to establish periodicals and
press agencies.
(2) A periodical or a press agency may be founded
by two or more legal entities or natural persons, who are considered cofounders.
(3) Foreign natural persons and legal entities have
the right to take part in the founding of periodicals and press agencies
only as confounders owning at most 49% of the statutory capital.
(4) If the periodical or the press agency has two
or more cofounders, the statutory capital is shared in subscribed amounts
and is formed on the basis of an agreement among them, confirmed by the
constitutive contract. The profit is distributed proportionally, according
to each founder’s share.
(5) Periodicals and press agencies that are financed
by the State are founded only with the approval of a competent agency.
(6) The founder or cofounders have the right to
reorganize the periodical or the press agency in accordance with this legislation,
subject to their duties to subscribers and readers.
(7) The publisher of a periodical or another natural
person or legal entity can be a founder or a cofounder.
Article 6. Registration of Periodicals and Press Agencies
Entrepreneurship and enterprise laws control the registration
of periodicals and press agencies.
Article 7. Cessation of Activity
(1) Periodicals and press agencies may cease their activity
only at the will of the founder or cofounders or pursuant to a court decision.
(2) When a founder or cofounders decide to cease
activities and do not establish a new periodical or press agency with the
same name, or do not register the new periodical or press agency within
30 days from the date of cessation of operation, the editorial staff, the
editor or editor-in-chief and the head of the agency may establish a new
periodical or a press agency under the same name.
(3) The Attorney General has the right to initiate
or bring an action for the cessation of operations.
(4) A court’s decision to close a periodical or
press agency can only be based on systematic violation of this law.
(5) The decision regarding the ceasing of a periodical’s
or press agency’s operations must be made within three months of the knowledge
of the violations. It can be appealed to a higher court within 10 days.
Article 8. The Leadership of the Periodicals and Press Agencies
(1) Periodicals and press agencies are led by the founder
or cofounders, or by a person appointed by the cofounders.
(2) The founder or cofounders must approve the statute
and the mission statement of the periodical or the press agency.
(3) Periodical and press agencies have professional
autonomy.
(4) The founders, cofounders or publishers independently
establish the periodical’s or the press agency’s profile, general orientation,
periodicity, price and other conditions, as well as the employees’ salary
scheme.
(5) The professional leadership of the periodical
or of the press agency is exerted by the editor or editor-in-chief and
by the head of the agency.
(6) An editor or editor-in-chief of a periodical
and the head of a press agency must be Moldovan citizens.
(7) An editor or editor-in-chief of a periodical
and the head of a press agency are appointed and terminated by the founder
or cofounders, as specified in the job legislation and the statute of the
periodical or press agency.
(8) An editor or editor-in-chief of a periodical
and a head of a press agency leads the editorial board and either the editorial
staff of the periodical or the staff of the press agency, representing
them in relations with the founder or cofounders, the publisher, the authors
and other natural persons and legal entities, as well as in courts of justice.
(9) The editor or editor-in-chief of a periodical
and the head of a press agency are responsible for its activities.
Article 9. The Regulation of Relations between the Founder (Publisher)
and the Editorial Staff of a Periodical or of a Press Agency
The relations between the founder or publisher and
the editorial staff of a periodical or press agency are determined by this
law, the work legislation, the statute of the periodical or of the press
agency and its bilateral contract.
Article 10. The Statute of the Periodical and of the Press Agency
(1) The statute of the periodical or press agency is
accepted under this legislation, by a majority of those present and the
founder’s approval. The vote is valid if at least two thirds of the periodical’s
editorial board or of the press agency are present.
(2) The statute determines the relations between
the founder or publisher, the editor or editor-in-chief of the periodical
or the head of the press agency and the editorial staff. It also defines
the rights and duties of the staff of journalists. In addition, the statute
determines the modes of financing, distribution and usage of the income,
as well as other matters concerning the periodical’s or press agency’s
organization.
Article 11. The Bilateral Contract
The bilateral contract is arranged between the founder
or publisher and the editorial staff of the periodical or of the press
agency, and determines:
a) the amount necessary for production expenses;
b) income distribution among the editorial staff, the reporters and
the founder or publisher;
c) the founder’s duties to ensure adequate production conditions, along
with adequate social and living conditions for employees;
d) the duties of the employees;
e) other conditions.
Article 12. Financing
(1) Periodicals and press agencies are financially self-administrating.
Periodicals dedicated to children of pre-school age are subsidized as a
rule by the State; the respective ministries or departments become their
founders or cofounders. Children’s publications can be tax exempt.
(2) Periodicals and press agencies founded by public
authorities are financed from the respective authorities’ budgets.
(3) While the yearly budget is being approved by
Parliament, some periodicals and press agencies can be partially or entirely
tax exempt.
(4) Periodicals and press agencies may accept charitable
donations from foreign natural persons. These financial donations must
be deposited in the periodicals’ or press agencies’ bank accounts, and
the recipients must publicize the value of the donations, including non-financial
ones. Failure to properly deposit and report these foreign donations will
result in termination of the periodical’s or press agency’s activities.
Article 13. Reference Data of the Periodical
Each issue of the periodical must include the following
reference data:
a) the name of the publication;
b) its founder;
c) the name of the editor or editor-in-chief or his or her replacement;
d) the issue number and date of printing;
e) the price of a copy;
f) the headquarters of the editorial board and printing office;
g) the index (for publications distributed through the telecommunication
network);
h) the number of copies printed;
Article 14. Keeping the Materials
The editorial boards of the periodicals and press agencies
are required to archive materials pursuant to the Moldova Republic Archive
Fund Law.
CHAPTER 3 THE DISTRIBUTION OF THE PRESS
Article 15. The Means of Press Distribution
(1) The distribution of the press is organized by the
founder or cofounders on the basis of a contract, made with natural persons
or legal entities.
(2) State publishing houses or printing-offices
must send samples of periodicals to libraries and other institutions listed
by the Government.
(3) Distribution of periodicals that have no reference
data is prohibited.
Article 16. Approval of the Information Distribution
(1) Each issue of a periodical and all information released
by a press agency may be distributed only after the editor or editor-in-chief
or the head of the agency approves a press proof of the issue or the information,
abiding by the legal rights and interests of editors and founders or cofounders.
Where information from another publication is cited, the other
publication’s name should be indicated, along with its issue number and
date of publication.
(2) Prevention of the legal distribution of a periodical
by partial or total confiscation, or by another way, is prohibited.
Article 17. Publication of the Decisions of Judicial Courts
The periodicals of public authorities are obliged to
publish, gratis and in due time, the judicial courts’ decisions approved
for publication.
Article 18. Non-disclosure of the Source of Information
Periodicals and press agencies have no right to disclose
the source of information or an author’s pseudonym without the consent
of the source or author. The source of information can be disclosed only
when the distributed material contains constitutive elements of a crime
and only after the decision of the judicial court.
CHAPTER 4 THE RIGHTS AND DUTIES OF THE JOURNALIST
Article 19. The Profession of a Journalist
A journalist is a person who deals with literary works
and journalism in the framework of mass-media, employed pursuant to a contract
or by another means, according to this legislation.
Article 20. The Rights and Duties of the Journalist
(1) For the purpose of practicing his or her profession,
the journalist has the right:
a) to obtain and distribute information;
b) to obtain audiences with officials;
c) to make audio-visual recordings, to film and to photograph;
d) to attend public meetings of courts of justice at any level;
e) to have access to disaster areas and to attend meetings, demonstrations
and other public gatherings;
f) to check facts with any institution;
g) to renounce the preparation and signing of any material that contradicts
his or her beliefs;
h) to withdraw his or her signature from any material which he or she
believes was falsified during editing;
i) to require anonymity;
j) to obtain benefits from facilities, transportation and telecommunication
priorities and hotel accommodations throughout the Republic.
(2) Confiscation of journalists’ notes is prohibited.
Journalists’ technical devices can be confiscated only for use as evidence
in a criminal case.
(3) The State guarantees the defending of journalists’
honor and dignity and protecting his or her health, life and property.
(4) A journalist’s duties are founded on the legislation
in force, this law and professional ethics.
Article 21. Accreditation of Journalists
(1) Foreign journalists are accredited in Moldova Republic
by the Ministry of Foreign Affairs on the basis of a demand presented on
behalf of periodicals, press agencies and other interested organizations,
according to the rules approved by the Government. The refusal of foreign
journalists’ accreditation can be appealed.
(2) Periodicals and press agencies can accredit
journalists, in the statutory manner, as can public authorities and arts
and sports organizations.
(3) Agencies and organizations that accredit foreign
journalists should inform the journalists beforehand of the procedures
to be followed, offering them the opportunity to review the relevant documents.
CHAPTER 5 THE RIGHT OF FOREIGN JOURNALISTS IN THE
REPUBLIC OF MOLDOVA AND OF JOURNALISTS OF THE REPUBLIC OF MOLDOVA ABROAD
Article 22. The Guaranty of the Right to Professional Activity
for Foreign Journalists
Foreign journalists accredited in the Republic of Moldova
by the periodicals and press agencies of other governments are guaranteed
the right to professional activity.
Article 23. Equal Rights of Journalists
Foreign journalists in the Republic of Moldova have
the same rights and duties regarding information and documentation as journalists
from the Republic of Moldova.
Article 24. The Judicial Basis of the Activity of Journalists
from Moldova Republic Abroad
The fulfillment of professional activities by Moldovan
journalists abroad is subject to both the conditions of this law and the
law of the countries where they are accredited.
Article 25. Suspension of Accreditation of Foreign Journalists
(1) The Ministry of Foreign Affairs can suspend the
accreditation of a foreign journalist who has violated the constitution
or other laws of Moldova Republic, as well as international conventions
on political and civic rights.
(2) A foreign journalist has the right to appeal
the decision of the Ministry of Foreign Affairs to suspend his or her accreditation
in Moldova Republic.
CHAPTER 6 RESPONSIBILITY FOR VIOLATION OF THIS LAW
Article 26. Responsibility of Officials
The officials of public authorities may be punished
for:
a) frustration of the legitimate professional activity of a journalist
by groundless refusal of accreditation or by groundless withdrawal of accreditation,
or by other means;
b) putting pressure on a journalist in order to influence the distribution
or non-distribution of information;
c) betrayal of information sources or of an author’s pseudonym without
his or her consent.
Article 27. Exoneration
The founders, editors, journalists and authors are not
responsible for the distribution of information that is:
a) comprised of official documents and communiques of public authorities;
b) reproduced verbatim from public speeches or their suitable abstracts.
CHAPTER 7 INTERNATIONAL COOPERATION IN THE PRESS FIELD
Article 28. International Contracts and Agreements
(1) International cooperation in the press field is
obtained by means of contracts and agreements entered into by periodicals,
press agencies or other organizations of creative people from Moldova Republic
with similar foreign organizations.
(2) International contracts and agreements are a
primary means of fulfilling the stipulations of this law.
The Head of the Parliament
Petru Lucinschi
Chisinau, 26 October 1994
NR. 243-XII
A Critique of the Moldovan Press Law
Alexandru Cantir, the President of Moldova’s Committee
for Press Freedom, has written a comment on the Moldovan Press Law. He
recently spoke about the law at a conference on Central and Eastern European
Media, held in Leipzig, under the auspices of Wolfgang Kleinwachter’s Netcom
Institute. The following is from a March release by the Committee.
The Press Law of the Republic of Moldova was published
and placed in force on Jan. 17, 1995 after being approved by the Parliament
on Oct. 26, 1994. The draft of the Press Law aroused negative reactions
among Moldovan media when it was examined and approved after the first
reading in a semi-secret way.
Our objections follow:
1. The Press Law of the Republic of Moldova contains
ideological interdictions unacceptable in a democratic law. According to
Article 4(1)a, the publication of materials “that contain contestations
to and defamation of the state and the people” are prohibited. This means
the exchange of opinions and ideas on a large spectrum of ethno-historical,
social, economic and political problems is in danger of being punished.
A similar situation existed during the period of Soviet domination, when
the smallest deviation, for example, from the official concept of ethno-genesis
and the population’s history between Nistru and Prut, was persecuted by
the respective governing bodies. If this stipulation is connected with
the purpose of protecting the independence of the Republic of Moldova,
it is an occasion to remind ourselves that no cause is won by ideological
interdiction, the experience of the former USSR providing a sufficient
example. Even the church today does not forbid the dispute of the existence
of God; however, its purpose is to persuade us in the opposite direction.
2. The Press Law imposes a very complicated and
expensive registration procedure for periodicals and press agencies, according
to “the Law about Entrepreneurship and Enterprises.” Thus the process of
registration and publication of the independent press is dependent on bureaucratic
whim, as the law allows the refusal of the request for registration, actually
creating a mechanism for anticipated censorship. A recent study shows that
no other country requires State approval for initiating a newspaper or
a periodical. (The study: “Press Law and Practice— A Comparative Study
of Press Freedom in European and other Democracies” by the International
Center against Censorship.) For example, in Austria, periodicals are exempt
from having a commercial license that is required for publishing and printing
books. In some countries (France, Spain, Great Britain) where registration
is practiced, the authorities have no power to refuse. For example, in
Spain, the publisher has to obtain a registration number, which is issued
automatically. In Sweden, the publisher must register the name of the person
who is legally responsible for the content of the publication. This is
optional if the owner will accept personal responsibility for any offenses
caused by the publication.
3. The government maintains the ability to repeal
any periodical or press agency “...in case of a systematic violation of
the present law.” This confusing requirement offers enough ground for arbitrary,
subjective interpretation and emotional actions. Such a punishment for
a periodical was considered excessive even before Perestroika.
4. Besides the fact that the Authorities have
the right to start their own newspapers and press agencies, financed from
the budget (Article 12.2), they are offering another way of influencing
the media, allowing “some periodicals and press agencies exemption from
taxes partially or totally” (Article 12.3). The exemption from taxes of
mass media, especially in present-day conditions, would be welcomed, of
course. The thing that cannot be accepted in this case is the wording “some”
(read as “those obedient”). That wording opens the door to ideological
or other preferences. Financial support for the press is practiced in other
countries too, but on the basis of undoubted principles. For example, in
Austria, the financial subsidies are distributed among all the periodicals
without any exception. The State’s special protection is offered to daily
newspapers (again without exception) in the form of postal tax reductions
and, for some of the smallest newspapers, “a special importance in forming
the public opinion.” In Sweden, “newspapers of second size” get governmental
subsidies. Through this action the Swedish government promotes pluralism
and counteracts the possibility of media monopolies. In our case, the exemption
from taxes continues to be at the discretion of the Executive Power, which
will follow its political interests.
5. The Press Law does not ensure the right of
journalists to contest refusal of information by State officials. In the
absence of such a stipulation, the journalist’s right “to get and distribute
information” (Article 20.1) does not have sufficient legislative clout,
and may be considered declarative. According to the experience of democratic
states, freedom of information procedure is necessary. For example, in
France there is a special commission— The Commission for Access to Administrative
Acts— where various cases of obstruction of access to information are examined.
A journalist who is not satisfied with the decision of this commission
can appeal further to the administrative law court. In Sweden, such disputes
fall under the jurisdiction of a Special Counsel approved by Parliament.
6. Free circulation of information will suffer
because the present Law does not mention the free import and export of
periodicals (with the exception of those which contain obscenities or promote
violence and terror). Thus, the press is to be treated in import/export
operations as any other ordinary product, subjected to financial limitations
and discriminations (taxes and excises) depending on the prevailing economic
orientation of the Republic of Moldova.
7. The mass media in our country belongs mainly
to the State. In these conditions certain limitations of political advertising
are necessary, as is the practice in other countries. It is not necessary
to have a special kind of intellect to notice that State-owned media (using
taxpayers funds) are responsible for political advertising for governmental
party leaders. This creates the impression of an endless electoral campaign.
8. The Press Law does not contain, in spite of
the acute necessity, an anti-monopoly clause; its immediate action would
be to suppress the state monopoly in the field of public-opinion information
and, in perspective, to counteract the excessive concentration of the media.
CONCLUSIONS:
The approval of the Press Law should be depend on stringent
judicial necessities of finding the optimum relation between the right
to a free press and access to information, on the one side, and other individual
and social rights and interests, on the other.
The Press Law of the Republic of Moldova does not coincide
with the rights that are to a be protected by its present-day spirit and
content. Although it is improved in some ways with the variant examined
at the first reading by the present Parliament, the present Law offers
to the Executive Power, both by formulation of some articles and by the
absence of others, enough advantages and possibilities to influence the
media and to impose its ideology and will.
Generally speaking, from a functional point of view,
the present Law has a unilateral character; it is concrete in restrictions
and it is more declarative in rights. Its elaboration and endorsement in
a form that expresses not a will for democratization, but an intention
to feign this process. Without essential modifications and completion of
this Law, the right to “free expression of opinions and ideas, to truthful
information on the events” (Article 1) risks simply being a declarative
sentence.