Basic remarks and proposal by BAJ on the draft amendments to the legislation of Belarus on regulation of the media and online resources

1. On the pro­posed amend­ments to the Code of Admin­is­tra­tive Offens­es

The draft law pro­vides for intro­duc­tion of addi­tion­al admin­is­tra­tive lia­bil­i­ty of mass media or online resources not reg­is­tered as media for dis­sem­i­na­tion of infor­ma­tion, which is pro­hib­it­ed for dessim­i­na­tion under Belarus leg­is­la­tion (parts 3 ¹ and 3 ²  of Arti­cle 22.9 of the Code of Admin­is­tra­tive Offens­es). The amounts of fines are unrea­son­ably large: for indi­vid­ual per­sons, the max­i­mal amount of the fine for part 3² of Art. 22.9 (up to 50 basic units) is more than 6 times high­er than the min­i­mum sub­sis­tence lev­el. The max­i­mal amount of fines for legal enti­ties is 500 basic units (about 5000 euros).

Thus, instead of exclud­ing Art. 22.9 part 2 from the Code of Admin­is­tra­tive Offens­es, under which free­lance jour­nal­ists are being per­se­cut­ed for coop­er­a­tion with for­eign media with­out accred­i­ta­tion and which is active­ly dis­cussed with­in the frame­work of the EU-Belarus Human Rights Dia­logue, the pro­posed amend­ments intro­duce new grounds for lia­bil­i­ty, with very vague def­i­n­i­tions allow­ing for their arbi­trary inter­pre­ta­tion. Police will be in charge of mak­ing reports under these charges.

We pro­pose:

• To remove the pro­posed amend­ments from the draft law.
• To trans­fer the right to com­plete reports for vio­la­tion of the media leg­is­la­tion (includ­ing part 2 of arti­cle 22.9 of the Code of Admin­is­tra­tive Offens­es) from police offi­cers of the Min­istry of Infor­ma­tion.
• To pro­vide an offi­cial inter­pre­ta­tion of part 2 of Art. 22.9 of the Code of Admin­is­tra­tive Offens­es as to par­ties liable for he ille­gal pro­duc­tion and (or) dis­tri­b­u­tion of mass media prod­ucts.

2. On the pro­posed amend­ments to the Law on Mass Media

2.1. The draft law pro­vides for vol­un­tary reg­is­tra­tion of online resources as media «online pub­li­ca­tions»).  How­ev­er, they are sub­ject to a licens­ing reg­is­tra­tion pro­ce­dure that exists for the print media and is unrea­son­ably demand­ing.

The over­whelm­ing major­i­ty of exist­ing online resources will not be able to meet the require­ments for reg­is­tra­tion as online pub­li­ca­tions. As a result, reporters work­ing for online resources will lose the sta­tus of a jour­nal­ist and will not be able to apply for accred­i­ta­tion to gov­ern­ment bod­ies, to pro­tect their infor­ma­tion sources, to exer­cise their pro­fes­sion at mass actions, etc. 

At the same time, all the duties and sanc­tions envis­aged by the Law on Media and the Law on Admin­is­tra­tive Offens­es are ful­ly applic­a­ble to online resources not reg­is­tered as media (online pub­li­ca­tions).

2.2 The draft law pro­vides for the pos­si­bil­i­ty to stop the activ­i­ties of online pub­li­ca­tions on an out-of-court basis through the pro­ce­dure of annulling their reg­is­tra­tion cer­tifi­cate after restric­tion of access to them.

At the same time, access to online pub­li­ca­tions is restrict­ed under a sim­pli­fied pro­ce­dure and by non-judi­cial means, too.  The draft law does not envis­age the pos­si­bil­i­ty to chal­lenge the restric­tion of access to an online resource in court.

2.3. The draft law actu­al­ly oblig­es own­ers of online resources to intro­duce pre-mod­er­a­tion of all online dis­cus­sion plat­forms, and also requires manda­to­ry iden­ti­fi­ca­tion of per­sons post­ing mate­ri­als or com­ments on dis­cus­sion boards or at online resources (not only in online pub­li­ca­tions). In addi­tion, the draft law enti­tles the Min­istry of infor­ma­tion to request data nec­es­sary for the analy­sis of infor­ma­tion post­ed at an online resource from its own­er, and oblig­es the lat­ter to pro­vide the request­ed infor­ma­tion with­in five work­ing days from the date when such a request is received. At the same time, nei­ther the pur­pose, nor the scope, nor the nature of infor­ma­tion that can be request­ed are defined; That does not only impose addi­tion­al respon­si­bil­i­ties on resource own­ers, but can lead to impos­si­bil­i­ty to ful­fill the require­ment on time, vio­la­tion of the pri­va­cy of cit­i­zens, dis­clo­sure of their per­son­al data, vio­la­tion of con­fi­den­tial­i­ty of sources, and even lim­it­ed access to social media.

We pro­pose:

• to fun­da­men­tal­ly revise the reg­u­la­tion of online resources:
• The lev­el of legal pro­tec­tion of Inter­net pub­li­ca­tions reg­is­tered as media (online pub­li­ca­tions) should be iden­ti­cal to the reg­u­lar media; Sim­pli­fied pro­ce­dures for sus­pend­ing or ter­mi­nat­ing the activ­i­ties of online pub­li­ca­tions, and online resources in gen­er­al, should not be intro­duced.
• The reg­u­la­tions pro­posed for com­ments post­ed on mes­sage boards and oth­er dis­cus­sion plat­forms should be reviewed.
• In the light of the prin­ci­ple of free­dom of expres­sion, if online pub­li­ca­tions do not pre-mod­er­ate user dis­cus­sions, they can be held liable for the con­tent of such dis­cus­sions only if they do not react to a noti­fi­ca­tion of a detect­ed vio­la­tion of the law. Oth­er­wise will mean intro­duc­tion of ele­ments of cen­sor­ship in the reg­u­la­tion.
• It is nec­es­sary to con­duct a gen­er­al exam­i­na­tion and pub­lic dis­cus­sion of the pro­posed and exist­ing grounds for hold­ing mass media liable con­cern­ing the pro­por­tion­al­i­ty of the pro­posed and cur­rent restric­tions on the free­dom of the mass media to the Con­sti­tu­tion and inter­na­tion­al oblig­a­tions of the Repub­lic of Belarus.