ANALYSIS of Amendments to Media Law

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