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ANALYSIS of Amendments to Media Law

22.01.2015 Source: Andrei Bastunets, chair, lawyer of BAJ Story: Mass Media Legislation

The amendments tighten state control over informational sphere in Belarus (over the Internet in the first place) and restrict citizens’ right to free expression and the right to gather and disseminate information, guaranteed by the Constitution.

 

ANALYSIS
of main amendments to the
Law on Mass Media of the Republic of Belarus

On December 20, 2014 the President of Belarus approved the law “On introducing amendments to the Law on Mass Media of the Republic of Belarus”. The law, without any public debates or discussion, was adopted by the Chamber of Representatives on December 17 in two hearings, and approved by the Council of the Republic on December 18.

The amendments tighten state control over informational sphere in Belarus (over the Internet in the first place) and restrict citizens’ right to free expression and the right to gather and disseminate information, guaranteed by the Constitution.

1. Tough rules have been introduced to regulate the procedure of distributing media products online; meanwhile, the law provisions are quite vague and leave possibilities for arbitrary use.

1.1. Contrary to popular belief, not all online resources are equated with mass media. In the new version, article 3 point 2 says that the scope of the Law on Mass Media, except for the requirement to get state registration as a mass medium, extends to those “informational resources (and their constituents) located in the global computer network Internet by means of which mass media products are disseminated.” The previous version had the provision in this article that the law covered the analogs of print, TV and radio mass media disseminated through the global computer network Internet, with the exception of the requirement for the state registration as a mass medium. The definition was unsuccessful as in most cases Internet versions of traditional mass media were not analogs of print or TV mass media. However, the new version of the legal norm turned to be even clumsier.

Suffice it to say that mass media products, among all, include informational reports and/or materials disseminated through the global computer network Internet (art. 1, point 15 of the Law on Mass Media).

Without the exact definition which “informational resources (and their constituents) in the global computer network Internet” disseminate products of mass media and lie within the scope of the Law, law enforcers might apply the norms of the Law to actually any Internet resources at their own discretion, regardless of the fact whether the resources are recognized as mass media in the state of their location (in Russia, for instance). 

For example, in a broad interpretation of the Law, the Ministry of Information might demand that owners of any foreign website obtain a permit to disseminate their mass media products in the territory of Belarus without changing the form and contents, and if they fail to obtain such permit, the Ministry might take a decision to block the website.  It is clear that such approach totally contradicts to the transboundary nature of the Internet, but selective application of the norm in Belarus seems quite probable.

1.2. The previous version of the Law on Mass Media had it that the procedure of state registration of mass media disseminated through the global network Internet, as well as the procedure of dissemination of their products were determined by the Council of Ministers of the Republic of Belarus (articles 11, 17).  The Council of Ministers did not adopt respective rulings. The amendments to the Law removed these provisions.

1.3. The amendment introduced a new definition “owner of an informational resource (its constituents) disseminating mass media product through the global computer network Internet”.

Meanwhile, the owner of an Internet resource is regarded not as an editorial office of a mass medium, but as a disseminator of mass media products.

Thus, contrary to expectations, owners of Internet resources, not registered as mass media (which is possible only in the form of a news agency) are not entitled to issuing service certificates of a journalist of a mass medium to their employees, as well as to other rights of an editorial office of mass media (point 4.9 of article 34 of the Law, which was left unchanged, says about an a service certificate of a journalist of a mass medium registered in the territory of the Republic of Belarus).

Of course, if the owner of an Internet resource is a legal person, it can issue service certificates to its journalists (as it was the practice before), but the legal status of journalists of other websites (whose owners are physical persons), as well as the status of these very websites remain indefinite.

1.4. The definition of “TV and radio broadcasting” has been changed for “broadcasting of TV and radio programs”; as a result, the requirements imposed on broadcasters might be extended to Internet TV and radio. Earlier, the Law spoke of dissemination of mass information with the use of technical means of broadcasting for individual or collective reception by general public with the help of television and radio receivers (point. 22 of art. 1 of the Law). In the current version, the point has been removed, instead point 1-1 appeared speaking of unassisted dissemination of TV or radio programs or dissemination with the use of telecommunications networks of a telecommunications operator, according to legally established procedures,” by means of which Internet broadcasting is carried out.

1.5. Owners of Internet-resources are obliged to publish refutation

Such refutations (responses) have to be published on the Internet resource the next day the latest after the demand was to publish refutation (response), in a special section or on the same page and in the same type as was the one of the informational report or material disproved.  Meantime, the informational report or material has to be deleted.

1.6. Owners of Internet resources are obliged to follow comments

According to new point 3 in art. 38 of the Law, the owner of an Internet resource has to disallow dissemination of information at the resource contradicting to requirements of the Law.

Thus, after the Law comes into legal force, it will be possible to hold owners of Internet resources liable, up to blocking of the resources. (Which contradict to point 12 of Edict № 60 of the President of the Republic of Belarus, stating that responsibility for contents of information published (transmitted) in the national segment of the Internet is laid upon the persons who published (transmitted) the information). It is unclear how the conflict of norms will be resolved in practice.

Meanwhile, the Law does not indicate clearly the time limits and actions to be taken by the owner of an Internet resource in order to avoid liability for a published comment. There is a one-day term for publishing refutation and deleting disproved materials (p. 5 of art. 43 of the Law), however, the requirement is not linked directly with the provisions of p. 3 of art. 38 of the Law, which provide the law enforcers with broad possibilities to exercise their authority.

1.7. The Ministry of Information has been entitled to issue warnings to owners of Internet resources and other distributors of products of mass media

Written warnings are issued to owners of Internet resources on the same grounds as to editorial offices of mass media (p. 1 of art. 49 the Law). Meanwhile, definition of one point of art. 38 of the Law has been toughened, violation of which might now become a basis for issuing a written warning and closure of a mass medium, or for blocking of an Internet resource (see point 2.1 of the Analysis).

The Ministry of Information was entitled to send written warnings to owners of Internet resources (as well as to distributors of products of mass media, editorial offices and founders of mass media) by e-mail.

1.8. The article on blocking Internet resources was introduced

The law has been amended by art. 51-1 “Restricting access to products of mass media disseminated by an informational resource (its components) located in the global computer network Internet”.

Against the assertions of official representatives that Internet resources can be blocked after two or more written warnings have been issued to an owner of a resource within a year, there are other grounds for restricting access to websites, namely:

-- dissemination through the Internet resource of informational reports and/or materials banned or restricted for dissemination according to legal acts of the Republic of Belarus as well as court decisions that came into legal force;

-- failure of the owner of an Internet resource (its constituents) in the global computer network Internet to fulfil legal demands of a state body to eliminate violations of mass media legislation of the Republic of Belarus.

It follows from the article:

1) Blocking can be applied against not only Internet resources of the Belarusian segment of the web, but to websites beyond it as well.

2) Blocking might be applied even for a one-time violation.

3) Decision on blocking is taken by the Ministry of Information extra judicially, moreover the Law says nothing of a possibility to dispute the decision in court.

4) Demands to eliminate violation of mass media legislation can be made not only by the Ministry of Information, but also by other state bodies.

5) The Ministry of Information can block an Internet resource for a material it published within three months’ period (point 2 of art. 51-1).

The procedure of restricting access to Internet resources shall be developed by the Operative Analytical Center under the auspices of the President of Belarus jointly with The Ministry of Communications and Informatization of the Republic of Belarus.

From the essence of the amendments to the Law on Mass Media, it follows that the Ministry of Information will approach providers with the demands to block an Internet resource which they will have to implement it.

 

2. Other main amendments to the Law on Mass Media

2.1. The list of information banned for distribution in mass media has been enlarged indefinitely

Amendments have been made to point 1.3 of art. 38. Earlier, it banned dissemination of information in the media which aimed to propagate war, violence, cruelty, extremist activities or containing calls for such activities, and also other information dissemination of which is banned by legislative acts of the Republic of Belarus. The amendments enlarge the list, already vague enough, with information dissemination of which can harm national interests of the Republic of Belarus (regardless of the fact how far dissemination of such information was banned). Meanwhile, such a broad definition of banned information is a basis for applying sanctions to mass media, right up to closure and blocking of Internet resources.

2.2. Foreign shares in the statute funds of mass media has been cut down from 30 to 20 per cent 

This provision does not concern those editorial offices of mass media which had been registered before these amendments were made.

2.3.The Law introduced State Registers of Distributors of print mass media and distributors of TV and radiobroadcasting products (art. 17)

According to the provisions, by July 1, 2015 all distributors of mass media products, who act as such on the day the amendments come into legal force (January 1, 2015), will have to send the data necessary for to enter then into the State Register to the Ministry of Information. The data shall be sent by a notification-based procedure to the e-mail of the Ministry of Information. Activities without being registered on the State Register will be deemed illegal.

These provisions do not cover those media editorial offices who distribute themselves the mass media they produce.

Despite the seeming easiness to fulfil the demands for registration as a distributor of mass media products, they bear certain threats:

-- hardly all private entrepreneurs and trade enterprises, through which non-state print mass media are distributed, will agree to get registered in the State Register of the Ministry of Information;

-- the practice of holding the State Register of book distributors has shown that the Ministry of Information can find many different reasons to deny registration (which resulted in a billion rubles’ fine to the book store Lohvinau who had applied for registration eight times, but received only refusals);

--The situation of distribution of mass media by individual distributors remains unregulated (perhaps, editorial offices of mass media will have to hire them as employees), and also with distribution of print mass media not registered with the Ministry of Information, that are published by individuals in low circulation at their own expense, without setting up a legal entity and distributed on non-commercial basis.

2.4. The time limit has increased for the Ministry of Information to apply sanctions to mass media or to suspend publishing of an outlet.

The time limit has grown from three to six months that the Ministry of Information can suspend publication of a mass medium (p. 1 art. 50 of the Law).

The terms for the Ministry of Information to file a suit to terminate publication of a mass medium has increased significantly. The previous version of the Law (p. 3 of art.51) stated that a court decision on termination of publication of a mass medium can be taken not later than within three months’ term from issuance of the second warning to an editorial office or founder of the mass medium within a year (or one-time violation of provisions of the Law by TV and radio broadcasting media etc.). Now a suit on termination of publication of a mass medium can be filed not later than within six months since grounds for it occurred.

The overall evaluation of the amendments to the Law on Mass Media was given by the OSCE Representative on Freedom of the Media Dunja Mijatović in her address to Belarusian authorities: «These amendments are based on vaguely formulated legal provisions and give the state the vast right to interfere with any information posted on the Internet. They also impose quasi-censorship functions on disseminators of information.”

Andrei BASTUNETS

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