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The Azerbaijani “Law on Mass Media” requires newspaper publishers to register with the Ministry of Justice. No law currently regulates radio or television, although the spirit of the “Law on Mass Media” prevails in broadcasting. New regulations, approved by Resolution N:84 of the Cabinet of Ministers, have been proposed to require licensing of broadcasters and publishers. Some sections of these regulations violate the Constitution of the Azerbaijan Republic and international law, but the invalid provisions can be amended in order to accomplish the legitimate goals of licensing. I. The Standards with Which Azerbaijani Media Laws Must Comply This comment does not analyze
the licensing regulations under the standards of U.S. law. Rather,
it reviews the regulations mainly for their consistency with Azerbaijani
law and international laws that are binding upon Azerbaijan. Also
included, however, is an analysis of those provisions of the regulations
that would raise greatest suspicion among the Western democracies.
Nobody shall be forced to identify or refuse his/her ideas and principles. Propaganda inciting racial, ethnic or religious animosity or hostility shall be banned.
Freedom of mass media shall be ensured. State censorship in mass media, including print media, shall be forbidden.
Laws that govern the media also must be consistent with international treaties to which the Azerbaijan Republic is a party. Article 151 of the Constitution, on “Legal Force of International Acts,” provides:
There are two major treaties under which the licensing regulations must be assessed. The first is the International Covenant on Civil and Political Rights (“ICCPR”), and the second is the Conference on Security and Cooperation in Europe (CSCE). Article 19 of the ICCPR provides as follows:
2. Everyone shall have the right to freedom of expression; this right shall include 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 his choice. 3. The exercise of rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputation of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
Every person can complain in the court of actions (or inactions) of State bodies, political parties, trade unions, other public unions and officials. II. Areas of the Licensing Regulations That Should Be Changed and Suggestions for Amendments A. General Provisions Section 1.2 of the regulations requires persons and entities to obtain a license before engaging in the “printing business.” As defined in the regulations, this includes “composition, development of printing forms, [and] the process of printing copies of all kinds of publications.” The licensing requirement for print media directly contradicts the above-cited section of the CSCE, which prohibits any limitation on access to the means of reproducing documents. Such a requirement on publishing is generally prohibited in most countries because it does not serve the same purpose as a broadcast license, and it is a potential means of censorship. The registration system with the Ministry of Justice that is already in place should provide the government with essential information, such as the identity of the person who is legally responsible for a publication. Section 1.2 also establishes a system for licensing television and radio broadcasting. This is a welcome development, as licensing will facilitate expansion of broadcasting in Azerbaijan by coordinating its technical aspects, such as the frequencies on which radio and television signals will travel. The licensing requirement, of course, should not be used to regulate the content of the broadcasts. Recommendation: The licensing requirement for the printing business should be eliminated from Section 1.2. B. Procedures for Granting Licenses Section 2.1 of the regulations provides a list of documents that an applicant must submit to the Ministry of Press and Information in order to obtain a license. Some of these requirements have the potential to threaten the protections of Article 50 of the Constitution because their relationship to unobtrusive regulation of the media is unclear. Article 50, along with Articles 47 and 57, provide important safeguards for free speech, which the requirements of Section 2.1 could be used to circumvent. Included in the required contents of a license application is the name of the bank and account number of the applicant. Providing this information could be intimidating to a broadcaster who is unsure of the government’s approval of the contents of his broadcasts. As a result, the individual may decide not to apply for a license, or he may exercise self-censorship in order to ensure that his assets are not endangered. The applicant’s banking information also is not relevant to the effective regulation of the media. This information therefore should not be required on the license application. Section 2.1.5 requires a payment receipt for the state licensing fee. This fee should only cover the administrative costs of the licensing program, and it should not be set prohibitively high. The requirements of Section 2.1.7 include certificates from the local police department, sanitary-epidemiological station, and fire protection service. The local agencies responsible for issuing these certificates could unduly delay the license application process, either intentionally or unintentionally. Broadcasters and publishers are already subject to the regulations of these agencies. The licensing regulations should not impose on applicants the burden of obtaining compliance certificates. The biggest threat to broadcasters in this section is the requirement of “giving permission for entry and exit of the broadcasting location” to the police. A broadcasting location should enjoy the same protections from police invasion enjoyed by any business location. Once again, the threat of police invasion could limit the ability of the broadcaster to freely disperse information. If, contrary to the recommendation of this comment, printers are to be subjected to these regulations, then the requirement of disclosing the number and trademark of “assembled typographic equipment and devices” should be eliminated. It is unclear why the government would need this information. Section 2.2, which forbids the Ministry of Press and Information from demanding any additional documents from an applicant, is an effective limit on agency discretion and a protection of the free speech rights of the applicant. The time limits and disclosure requirements contained in Section 2.3 also will help ensure that license applications are reviewed promptly and on their merits. Section 2.4 contains a list of reasons for which a license application will be refused. Some of these reasons present the opportunity to indirectly limit applicants’ free speech rights. Section 2.4.2 provides that an application will be refused if it contains “incorrect or distorted” data. This sets a vague standard, as it is unclear what may be considered “distorted,” any minor mistake found in an application document could be used to refuse the entire application. The language of this section should be made more precise. Section 2.4.4 calls for refusal if “the applicant and employed personnel lack necessary qualifications.” Because this is a subjective standard, it could be used to exclude applicants on the basis of their ideas. The provision therefore should be eliminated. Section 2.4.5 provides that an application will be refused if the applicant had held a license that was liquidated in the previous two years. This effectively serves as a two-year ban on printing and broadcasting for a class of citizens. As long as an individual currently files a valid application, he should not be denied his Constitutional right to participate in mass media. Section 2.4.7 provides that an application will be refused “[i]n other cases as provided by legislation.” If the Milli Medjlis can block a license application at any time and for any reason, then these regulations are essentially meaningless. The regulations should provide a consistent statement of the law that lends certainty to the application process. Section 2.4.7 should therefore be eliminated. Consistent with Article 60 of the Constitution, Section 2.5 of the regulations provides a right of appeal to individuals whose applications are refused. Because of the fundamental right of expression that could be denied if a license is wrongly refused, this section should provide an expedited court review of the decision of the Minister of Press and Information. Recommendations: “[N]ame of bank and account number” should be eliminated from Section 2.1.1 as a requirement on the license application. The portions of Sections 2.1.7 requiring production of certificates from local agencies and disclosures about typographic equipment should be eliminated. Section 2.4.2 should be changed to read: “If materially incorrect data are discovered in the submitted documents.” Sections 2.4.4, 2.4.5, and 2.4.7 should be eliminated from the regulations. Section 2.5 should be amended to provide an expedited court review for refused applicants. C. The Term of Licenses The license term of three years provided by Section 4.1 is appropriate, as free broadcasting is a fairly new medium in Azerbaijan. As noted earlier, there should be no requirement of licenses for print media and, therefore, no time limit. D. Copies of Licenses Section 5.1 requires that the licensee obtain copies of the license for each location at which the licensed activity will be conducted. This should not be required. Such a provision suggests that the government will be closely scrutinizing the activities of broadcasters and journalists. Instead, the Minister of Press and Information should keep a central file containing information on the various locations in which a licensee operates. If the requirement of on-site copies is only a formality, then it is good that fees are not charged for them under Section 5.7. Recommendation: Eliminate Section 5 of the regulations. E. Control of the Use of the License The first part of Section 6.1 requires that licensees follow the location, fire, and safety rules and that they obey the laws “On Mass Media,” “On State Secrets,” and “On Copyright and Related Rights.” Even without these regulations, licensees must obey all the laws of Azerbaijan. This provision suggests that a license may be liquidated after a one-time violation of the laws. This should not be allowed, as the laws themselves contain appropriate punishments for their violation. The Constitutional freedom of speech should not be so tenuous. Section 6.1 further requires a licensee to “implement the policies of the state,” exclude “programs, materials and descriptions which contradict the traditions and customs, historical heritage and harm the morals of citizens,” and “obey the existing rules and norms in printing.” This is the section of the regulations that most clearly violates the Constitution. Article 50 of the Constitution provides that “[s]tate censorship in mass media, including print media, shall be forbidden.” The above language of Section 6.1 is pure censorship. The threat of having their licenses liquidated will breed self-censorship by broadcasters and publishers, which is already a problem in Azerbaijan. To Western eyes also, these are the most glaringly restrictive provisions of the regulations. If such controls are in place, then the Constitutional protections of free speech will be regarded as a sham. Section 6.4 requires licensees to allow inspection by representatives of the Ministry of Press and Information and to produce documents for examination. This, too, would be a serious threat to the freedom of mass media, as it would allow unfettered searches of newsrooms. One aspect of a free press is the ability of journalists to keep their sources confidential. Section 6.4 would create fear that broadcasters and publishers could, at any time, be forced to reveal their sources to government agents. As it stands, the provision offers no protection to journalists, as the privacy of their offices is subject to the whim of the Ministry of Press and Information. Recommendation: Eliminate Sections 6.1 and 6.4 of the regulations. F. Suspension and Liquidation of Licenses Section 7.1 lists several reasons for which the Ministry of Press and Information may suspend a license. Under Section 7.1.6, a license will be suspended if the printing enterprise has been warned of labor, environmental, fire protection, or sanitary condition standards “for at least two years.” This is an important provision, as it ensures that a license will not be suspended because of a minor, one-time violation of the law. The same type of warning system should be applied to Section 7.1.4, which allows suspension if the licensee violates the “terms and conditions” required by the regulations. The regulations should not be so rigid as to disqualify a licensee from participation in mass media if a deviation from the regulations is promptly corrected. Section 7.1.7 allows suspension “in other cases provided by legislation.” As noted above, these regulations should provide some certainty in the law of mass media, and the Milli Medjlis should not be encouraged to suspend licenses on an ad hoc basis. The provisions of Section 7.2 are valuable in that they require notification of a licensee of suspension and they allow the licensee to appeal the suspension if conditions change. This section should also include the right of a licensee to appeal a suspension ruling with which he does not agree. Such a provision would put the regulations in compliance with Article 60 of the Constitution, which provides that the “[r]ights and freedoms of every person shall be guaranteed in a court.” Section 7.3 lists the terms under which the Ministry of Press and Information will liquidate a license. Section 7.3.2 calls for liquidation if “incorrect data” are discovered in the licensee’s application materials. Once again, this provision creates the possibility that a license will be liquidated because of a typographical error. Incorrect data should lead to liquidation only if it is material. Section 7.3.3 provides for liquidation “[i]f the terms and conditions of the license are violated.” Similarly to the guidelines for suspension, this section should contain a warning system, so that one violation does not deprive the licensee of his right to participate in mass media. Section 7.3.6 provides for liquidation “[i]n other cases provided for by legislation.” As noted above, such a provision is too broad and lends uncertainty to the regulations. Finally, Section 7.4 provides that the licensee is notified of liquidation within five days. This notification is important, but the licensee should also have the right to appeal the liquidation decision pursuant to Article 60 of the Constitution. Recommendations: Sections 7.1.4 and 7.3.3 should include a warning provision similar to the one contained in Section 7.1.6. Sections 7.1.7 and 7.3.6 should be eliminated. Sections 7.2 and 7.4 should provide a right of court appeal to licensees who do not agree with the reasons for their suspension or liquidation. Amend Section 7.3.2 to cover only “materially incorrect data.” This list of suggestions is not meant to be comprehensive. Other useful amendments to the regulations may be suggested by broadcasters and publishers. The Milli Medjlis should solicit such amendments by holding open hearings on the regulations and by entertaining the suggestions of a wide variety of witnesses. Greater openness will result in superior licensing regulations, which will lay the foundation for the emergence of a mature, free, and independent media in Azerbaijan. Kurt A. Wimmer
(By courtesy of Internews, available at http://www.internews.ru/law/azerbaijan/analysis) |