These comments are adapted from a paper prepared by Monroe E. Price and Peter Krug for the Legal Information Resource Network in Dushanbe in conjunction with a study of a proposed media law for Tajikistan. References are made to provisions not reproduced below. For the complete draft, contact the newsletter.
General Comments
There’s a confusion in the draft statute: it tries, with difficulty, to bridge the various types of broadcasting contemplated for Tajikistan (mixed private-public, predominantly state). Taking into account three basic models of media law--the American model, the European model and the Soviet model--this draft most approximates the last.
As occurs often in transition societies, a fundamental problem, running throughout the draft statute, is the absence of precise delineation of the authority and responsibilities of the vestigial (and often still strong) state television agency, in this case, “State TV-Radio” or Gosteleradio. In addition to administration of state-owned broadcasting companies, it appears also to have the power to act as a licensing authority for all broadcasting activity-a position which would permit it to block or limit the entry of competing broadcasters. Articles 6 and 13 suggest strongly that this is the case.
Many of the draft law provisions (Article 6, for example) anticipate a system based on broadcasters who are owned and controlled by the state or local organs of administration. On the other hand, Articles 7 and 8 are based on the assumption that private, independent broadcasters will be permitted to operate.
A problem that has pervaded administrative law universally occurs here as well. The statute provides in a number of places for judicial review of governmental decisions. However, it does not set forth any standards for courts to follow. For example, under what circumstances is an agency decision to be overturned: if an agency acted arbitrarily? If it acted without legislative authority? If it acted not in the public interest? In addition, the statute does not provide substantive criteria which a court could review to determine if an agency action was legal. For example, because the statute does not set forth criteria by which a licensing agency is to judge competing applicants for a license, on what grounds would a court decide an appeal by a losing applicant (pursuant to Article 10, last paragraph)?
It is hard to tell from the draft whether it is consistent with other legislation in Tajikistan. For example, its provisions touch on relations between founders and journalists. Are these provided for in a more general mass media law? Also, it deals with topics such as copyright and defamation/invasion of privacy. Are its provisions consistent with other legislation on these matters? Also, the provision must be checked against the Constitution.
Preamble
The quality that pervades is to give media too defined a set of purposes: making it the statutory responsibility of the media, among other things, to help strengthen tranquility or promote harmony among nationalities. These are valuable goals in a society, but imposing them on the media as explicit legislative goals causes tremendous problems for the press--and friction between government and the press at a later date.
Paragraph two of the Preamble includes--among broadcasters’ required duties--the “defense of state [gosudarstvennye] interests.” This ambiguous reference is susceptible to claims by governmental and administrative bodies that their policies must receive media support, rather than objective reporting and evaluation. Such an approach does not further freedoms of speech and press.
Chapter I
In Article 1, the words “regardless of departmental affiliation” suggest either that the statute contemplates a broadcasting system based exclusively on state broadcasters, or that the statute does not apply to non-broadcasters.
As to paragraph 3 of Article 2, iIf there is not a statute governing identification and procedures regarding state secrets, this provision invites arbitrary claims that all such information is protected. In contrast with Article 37 of the Russian Federation Mass Media Law, there is not an attempt to define “pornography”. Also, the reference to criminal “or other violations of law” is superfluous and could create problems.
Finally, the reference to calls for change of the
existing order could be read to include a prohibition against appeals for
non-violent removal of the government currently in power --if so, this
does not further freedom of speech and press.
In general, this paragraph appears to be based on Article 20
of the International Covenant on Civil and Political Rights (ICCPR) and
lifted from Article 4 of the Russian Mass Media Law. However, it is broader
than these. It would be better to make a specific reference to Article
20 of the ICCPR.
Article 4 is too broad and indiscriminate in terms of government power. We would suggest dividing this section between a) general powers that apply both to state organs and to independent television and radio broadcasters, and b) those powers that relate only to state organs. Another division would be among: licensing, technical standards and relationship to state organs.
As to the state organs themselves, here the question is whether these broadcasters should be “public” in the sense of the BBC or directly state administered. The international standard is to move towards “public” as opposed to state-administered broadcasting. The language here is inconsistent with that approach.
The kind of breakdown we suggest requires specific definitions of “state”, “public”, and “private” broadcasters. See for example, Article 26 of the draft Russian Federation broadcasting statute reproduced in issue 12/13 of the Post-Soviet Media Law & Policy Newsletter (page 4 of statutory insert).
Aspects of Article 6 are troubling. While it is true that at the present time state television and radio agencies are “at the foundation” of broadcasting in Tajikistan, this may not be true (nor should it necessarily be true) in the long term. The last paragraph has to be carefully written to ensure that a) whatever authority state tv and radio has over regional and local television is clearly delineated and limited and b) that it cannot mean that state television and radio has authority over the licensing of independent frequencies. Since it is likely that many independent studios use regional or oblast frequencies, the power of state television under this section can be anticompetitive.
The principle of separating state broadcasters from any authority over licensing of non-state broadcasting is established in the Ukrainian broadcasting statute, Article 5 (paragraph 5), and the Estonian broadcasting statute, Article 31(4).
Article 7. This provision should possibly be eliminated. While some of the language suggests good goals (coordination, a plan, etc.), the implications are disturbing. Do private agencies have to tie their programming plans into a long term program for the development of government television and radio? That could be a disaster for independent television and could stifle production.
Chapter II (Registration)
Article 8 (second paragraph) deals with the selection and composition of the state agency administering state broadcasting companies --an issue that has created severe problems in a number of other countries (such as Russia, Poland, and Hungary). As articulated and designed in this draft, this provision could lead to political gridlock (if the Supreme Soviet refuses to approve nominees, for example). In addition, the potential problems are made even greater because the agency is granted such broad powers, including licensing.
Although the solution is not perfect or overly elegant, one possibility is to make the agency more representative, in the fashion suggested by the National Council created under Article 5 of the Ukrainian broadcasting statute --a certain number of members nominated by the head of state, with others nominated by the Legislature, etc.
Allowing appeal from the failure to review an application is sensible. The law might say which court and also provide a basis for the court to order a rapid review.
Article 10, as well as the statute’s entire licensing scheme, does not seem to contemplate any competition for broadcast licenses. If such competition is contemplated, then criteria for the decision-makers should be set forth so as to give reviewing courts some basis for deciding appeals. For examples of such criteria, see Article 14 of the Ukrainian statute and Article 40 of the draft Russian statute cited above. As to Article 10, section 6 is unclear and possibly troublesome (see comments on the general idea of having a government-approved general scheme for radio and television programming). It sounds as though this authorizes a failure to register if the programming proposal does not fit within a desired policy of the government.
Article 11 should be amended to provide for a guaranteed minimum registration period. The current draft, by permitting a registration “for not more than five years” provides the registering authority with the right to put a handcuff on the registrant if it wants a renewal.
Article 13 seems to make it clear that the “registering
organ” is state radio and television. This seems highly problematic. The
registering organ should be independent, and independent of the most formidable
competitor, the state as broadcaster.
The authority of the registering organ to “suspend or interrupt
the activities of a television and radio agency” is too great a power and
capable of great abuse. If anything, it should be able to go to court to
have a registration suspended, and then for only very specific causes laid
out in the law. This problem is not solved by Article 15. The law should
clearly indicate which very few grounds exist for halting or suspending
broadcasts and what procedures must be followed, including review by a
court. Under the Russian Mass Media Law, Article 16, suspension can only
be ordered by a court or by the founder.
Article 14 is based on the older notions of the power of the founder and the relationship between the founder and the editorial staff. Our recommendation would be not to have this section on the ground that it raises more questions than it answers and leaves the direction of the television and radio agencies vague when the purpose is to clarify it. This is not the place to define or give the journalists and the editors a scope of authority. The statute should define the powers and limits of the state not the division of powers between founder and journalists.
Chapter III
Article 16 suggests too limited a boundary for what a radio and television station can transmit. A rule is bad that bears within it the possibility of the government debating with the station as to what is within their permitted content and what is not.
Article 17, which deals with the respect for rights of program owners, could also be eliminated and dealt with under a comprehensive copyright law or ordinary contract law.
Article 20, dealing with the allocation of frequencies could place some obligation on the government to allocate as much frequency as possible for terrestrial broadcast (and independent broadcast) use. The point here is to establish some kind of standard that would encourage or govern what the Council of Ministers does.
Article 21, dealing with satellite television, does not seem to have a category (or prioritized goal) to help strengthen nongovernment television or to provide for the distribution of programs among nongovernment as well as government television outlets. The last paragraph suggests that foreign programs have to be licensed for import in the same way as do other goods. This could cause problems, in terms of delay, tariffs, sanctions, etc.
Article 22, respecting cable television, deserves a full report in itself. Some troubling aspects include satisfaction of “guarantees and benefits presented by the local Soviet” and allotment of profits for the local budget.” In the United States and elsewhere, an elaborate set of laws have developed to allow local regulation, but to make sure that it does not result in bribery and corruption (which has happened not too infrequently). Probably, by now, there are many informal systems already in place. How will these be handled? Do they have a right to continue?
Article 24. This provision gives the government (and state radio and television) far too much power. Undoubtedly, there are state programs (the President’s addresses, certain hearings of the Parliament) that should be made available to all households. The problem here is the open-endedness of the provision. The recent Russian statute obligates only state organs, not private or independent ones, as we recall it, to carry certain public programs. There are other limitations, too, as to what can be required, in terms of hours, or under what circumstances (national emergency), that ought to be built in as checks and restraints.
The relationship between state radio and television and regional and oblast radio and television also ought to be considered to determine whether, as it seems, so much power should be at the state level.
Article 26. This provision appears to be modeled in part after Article 26 of the Ukrainian broadcasting statute. However, the Ukrainian provision is linked (by means of Article 46 of the same statute) to more specific sanctions for freedom of information violations contained in Article 47 of the Ukrainian statute “On Information”. Without a more definitive basis, the allocation of responsibility in Article 26 (paragraph one) of the Tajikistan draft statute is merely declaratory.
In addition, article 26 does not provide any basis for a reviewing court to determine what is an “unfounded” refusal to provide information. It would help if Article 26 were explicitly to establish a presumption of openness, which could be overcome only in specific circumstances. For example, article 40 of the Russian Mass Media Law says that a request for information may be denied only if its content comprises a state, trade, or other secret specifically protected by law.
Article 26 also does not provide a time frame within which officials must respond to requests for information. Article 40 of the Russian Mass Media Law establishes a three-day deadline, as well as specific information which must be included in a notice of denial.
Article 27. See comments concerning Article 24, with which this overlaps. It might be desirable to limit the applicability of Article 27 to state media and, except in the most unusual circumstances, limit the mandatory time (for promulgation of decisions, matters concerning labor disputes, etc). Articles 27 and 29 of the Ukrainian broadcasting statute differentiate, in this way, between the responsibilities of state and non-state broadcasters. In the United States, for many years, broadcasters had an affirmative duty to carry information of public importance. Ultimately, it was decided that such a requirement was difficult to enforce and was even thought to infringe the speech rights of the operators of the channels. A requirement that each broadcaster has a news program is better than a requirement that tells the broadcaster what to say. A requirement that provides the government with a half hour every other night or some other limited provision is better than a broad and general requirement.
Article 28. The first paragraph is problematic. Take
satire for example, in which an independent broadcaster made fun of government
speeches. That might be illegal. This first paragraph requires a channel
to pick and choose among advocates in ways that limit public discourse.
A key element in this provision is the reference to Article 25, which unfortunately
is not legible in the Russian version of the draft statute. Also, what
body will monitor compliance and resolve disputes? If it is Gosteleradio,
this creates problems since it is a government agency with presumed ties
to the incumbent political party.
The second paragraph, while a start in terms of elections and
the media, could prove difficult. If there is fair access to field a candidate,
then this provision is helpful. One must also determine whether the incumbent
uses incumbency unfairly through the control of news and other programming.
Finally, there is the question of paid advertising. Should any candidate
be able to buy additional time over the free time? It appears that Russia
allowed paid advertising in the 1993 elections, but may now abandon that
right.
Article 29. In the first paragraph, what is advertising of an “objective nature”?
Article 30 (4th paragraph): This appears to be modeled on Article 31, paragraph 4, of the Ukrainian broadcasting statute. Who is to be the decision-maker on these matters?
Article 32 and Article 33. These sections, having
to do with accreditation and branch offices, are generally all right. The
proof is in the administration of the statute, in terms of whether accreditation
is used as a tool to punish disagreeable journalists.
Chapter IV. Rights and Duties of Creators of TV and Radio Programs.
The provisions of Chapter IV, especially Articles 35 to Article
39, suffer from the detailed particularism mentioned above. The idea of
rights set forth, as well as obligations, of journalists and stations is
taken more from the older Soviet model than from Western, particularly
American models. Articles 35-37 are similar to Chapter IV of the Ukrainian
broadcasting law. U.S. law, with a few exceptions, has few rights of journalists,
as journalists, and imposes few obligations on them as journalists. Journalists,
more or less, have the same rights and duties as other citizens. The danger
is that by giving them special rights, they also incur special responsibilities
and then are dependent on government. The draft law of Tajikistan has similarities
in format to European laws.
Regarding Article 35, given the great number of attacks
on journalists, should there be a more specific provision setting explicit
penalties for such attacks? Article 36.2 could create problems for freedom
of speech and press because it prohibits all information undermining honor
and dignity, whether true or false. Also, by separating the words “honor
and dignity” from the terms for protecting the rights and legal interests
of citizens, it makes it sound like the former (honor and dignity) are
something beyond and above the latter --in other words, a category lending
itself to arbitrary interpretation. Also, it is not clear what the sanctions
are for violations of Article 36. These sanctions are not mentioned in
the list set forth in Article 50.
Article 40.15 and the last paragraph of Article 40: are there
privacy provisions located elsewhere in the legislation of Tajikistan?
If so, is 40.15 consistent with them? Also, in which statute[s] may be
found rules regarding moral damages? How are they to be determined under
that legislation?
Chapter V. Protection of Consumers’ Rights
Article 43 contains material that is duplicative of article 45. The right to refute or respond should be consolidated in Article 45.
The section of Article 43 which guarantees the quality of television reception is unusual, There is some danger here that this provision could be used as a weapon against independent television entities and cable television which seek to bring more channels to the public and, in so doing, may lessen the quality of reception of some of the existing channels.
The right to receive “reliable and objective information on the activity of state bodies,” etc. has a ring of public interest to it, but there are substantial problems in enforcing such a right. The drafters might look at the experience of the President’s Judicial Chamber on Information Disputes in Russia which has had a special kind of jurisdiction to analyze and mediate complaints about the media.
With respect to article 44, we have a slightly future-oriented question: When there is an increasing number of citizens who can receive signals from abroad (directly or through cable), will this section--particularly the first portion on damage to physical, psychological or moral development of minors--be enforced or enforceable? Also, there is the danger, here again, that the ground of “moral damage” to minors can be used to harm unpopular programming and political opposition.
The ambiguity in this provision may be problematical. Who decides what is “a time” when children and minors may not be watching? For the sake of legal certainty, perhaps it is better to establish specific times, as is done in Article 37 of the Russian Mass Media Law (limiting showing of “erotic programs” to the period of 2300 to 0400 hours).
The provisions of Article 45 are very similar to those in Article 43 of the Ukrainian broadcasting statute. Is information perhaps available about how such requirements have worked in Ukraine? The first paragraph of the Tajikistan statute lacks the requirement, found in the Ukrainian statute, that the broadcaster’s statements must have been damaging to the interests of a citizen or organization. In paragraph two, the word “or” [just before “inconsistent”] means that a right to retraction is triggered even if the information is true, or even if it is false but is not defamatory. Thus, many statements would fall under this provision, even if they are not false or are not defamatory.
As to Article 45, the act that triggers a citizen’s (or group’s) right to respond seems too minimal. First, ordinary criticism of a group should not be sufficient to incur the cost of a right to respond. Second, there’s a question whether the agency will be a sufficient place to consider the claim and whether court action may be too severe. Here again, the Russian President’s Judicial Chamber may be a useful model, both for its benefits and its shortcomings.
Chapter VI. Funding and Technical Support
Article 46 seems a straightforward analysis of sources
of income. This is an example, however, of what might be extra statutory
baggage. The law seems to say that the funding for state television will
come exclusively from the budget and a license fee, but of course it does
not say how much is to be provided. It does not indicate how much of a
role advertising will play.
The same might be said of Articles 47 and Article 48: they appear
merely to clarify, but might be unnecessary. In Article 47, the law could
assure that state-owned distribution facilities must provide access to
non-state broadcasters, and at what cost. If guarantees and certainty regarding
these question is lacking, the state would have an important lever by which
to manipulate non-state broadcasters.
Chapter VII. Responsibility for Violation of Legislation
This is an extremely important and delicate set of
provisions. There must be an enforceable set of sanctions for appropriate
rules set by the Parliament. But if the sanctions are too severe, or too
easily imposed, or enforced unfairly, then speech will thereby be stifled.
The risk is always there that the possibility of damage threats will limit
the willingness of stations to comment and criticize in an otherwise legal
manner. Specifically, there should be no punishment for programs which
are false, unless that falseness damages an individual. A requirement of
broadcasting a competing view or a retraction should diminish the amount
of damages that are to be paid. Article 50 provides little guidance for
the courts as to the grounds for deciding such cases. It is unclear what
standards should be used or how many violations amount to a “systematic
violation.”