Organization for Security and Co-operation in Europe Office of the Representative on Freedom of the Media COMMENTS ON THE AMENDMENTS TO THE LAW OF THE REPUBLIC OF ARMENIA ON BROADCASTING The review has been prepared by Dr. Andrei Richter, Director of the Media Law & Policy Centre at the faculty of journalism of the Lomonosov Moscow State University, professor and head of the media law department there, member of the International Commission of Jurists (ICJ) and the co- chair of the Law Section of the International Association for Media and Communication Research (IAMCR). 2010 1 Having analysed the bill of the Republic of Armenia on amendments to the broadcasting law in the context of the Constitution and existing legislation of the Republic of Armenia, as well as international norms on freedom of information and media, the expert commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE) has come to the following conclusion. BRIEF SUMMARY OF COMMENTS AND RECOMMENDATIONS The right to freedom of expression is connected with the right to freedom of the media, guaranteed by a variety of documents of the Organization for Security and Co-operation in Europe (OSCE), with which Armenia has expressed its agreement. The primary goal of regulating the activities of the media is to promote the development of independent and pluralistic media, thereby ensuring the population’s right to receive information from diverse sources. There is a positive obligation of the UN member states to promote freedom of the media, which consists in the need to develop pluralism within the media and ensure equal access for all to them. While the right to freedom of the media is not absolute, and in a few specific circumstances it may be restricted, by virtue of the fundamental nature of this right, however, the restrictions must be precise and specifically determined in accordance with the principles of a rule-of-law state. This also refers to the quality of the law under the review. Any state authorities empowered to regulate the media must be completely independent of the government and protected against interference on the part of political and business circles. Public service broadcasting is one of the basic tools of democracies indispensable in ensuring the freedom and transparency of elections, in fighting against hate speech, and in protecting the minority cultures of a country by offering objective news reporting and by broadcasting high quality programmes. The draft broadcasting law under this analysis is titled “Law of the Republic of Armenia “On making amendments and supplements to the Law of the Republic of Armenia “On television and radio”” (hereinafter - draft law) released in May 2010 to be read by the National Assembly of the Republic of Armenia in June 2010. The aim of the bill as stated in the Justification to the bill is to ensure “conformity with the… implementation of the Republic of Armenia-European Union Action Plan within the European Neighbourhood Policy”. It envisages the need to use this legal instrument “to further expand television and radio broadcasting services and raise their quality”, “to ensure wide access to and availability of diverse television-radio broadcasting, efficient use of frequency domains”, as well as “the development of the information market and free competition” in Armenia. The draft law presents a new edition of the Law of the Republic of Armenia “On television and radio” (LA-97, of 9 October 2000). Most recently this law was extensively amended in 2009. In fact it is not a new law but a set of amendments and additions to the existing statute, some related to the changes due to digital switchover, but many others making corrections and clarifications that are not necessarily connected to the declared aims of the bill. Quite a number of amendments bear declaratory character. There are repetitions that create confusion. There are several vague 2 norms that will probably lead to conflicts among enforcing authorities, as well as norms that are hard to implement. The draft law does not introduce new approaches to regulation of broadcasting. Overall majority of the articles are the same as in the acting law, although their order sometimes changes. The bill contains a few positive changes into the current broadcasting law of Armenia. They limit possibility of a person to found several companies of his own that will eventually obtain a license each; forbid deputies and state servants become members of the National Television and Radio Commission (hereinafter – National Commission or NTRC); and extend the licence term for over- the-air broadcasters from 7 to 10 years. The draft law defines and operates a number of terms and concepts anew and ignores that they have already been developed in the sphere of broadcasting and audiovisual media services in Europe. This relates to the definitions and legal regime for works of domestic and non-domestic origin, re-broadcasting of foreign programmes, sponsorship, and broadcasting in minority languages. This leads to contradictions of the draft law with the European legal standards of broadcasting and other audiovisual media services. The draft law does not provide clear rules if any for satellite broadcasting, mobile and Internet- provided broadcasting while in practice such regulation is enforced. It makes a deliberate attempt to put all forms and types of audiovisual media services under strict regime of licensing (or permissions) of the NTRC and subject them to bureaucratic scrutiny and discretion. The draft law removes from the current obligations of the National Commission to make public at least once a year the frequency plan. This makes the procedures of licensing and tenders, the exact capacity and number of multiplexes blurred and subject to different interpretations and bureaucratic discretion. The draft law indefinitely delays the possibility to establish private multiplexers for digital television and radio while it orders analogue broadcasting to be terminated in the entire territory of Armenia on 20 July 2013. Thus it makes deliberate barriers on the establishment of private operators of digital broadcasting, local or national, violates competition rules and guarantees of the equality of the forms of property. Article 22 of the draft law provides a long list of programmes and their elements that if broadcast lead to a termination of the term of the license by outright discretionary powers of the NTRC (Art. 61). For example, complete termination of broadcasting of a station occurs by order of the NTRC in repeated incidents of dissemination of state or other secrets protected by law, defaming persons, violating presumption of innocence, worship of cruelty, disparaging the family, pornography, etc. No expertise or court decision is necessary for such an abridgement of freedom of expression. This provision obviously leads to self-censorship of journalists and limitations of freedom of the media. The draft law no longer provides that the National Commission is obliged to properly explain its decision to reject an application for a broadcast license; neither the draft puts responsibility on the 3 NCTR to promote diversity of opinion on the airwaves. The fact that the bill establishes thematic directions of the digital TV channels should not remove these obligations of the national regulator. There are substantial flaws in the draft law that regard selection and appointment of the members of the Council for Public Television and Radio (hereinafter – Council). By definition they do not represent political and ideological groups, although are supposed to ensure pluralism (according to their oath). They do not represent pluralistic views by the method of appointment (by the President). The proposed scheme of financing public broadcasting and regulatory bodies in the sector provides for the majority in the parliament to sanction or support them at ease, thus rendering them dependent on such majority. In this way, instead of following public duty, the “independent public broadcaster” and “independent regulator” will exercise self-censorship. The bill in a number of articles puts public broadcasting under control of the National Commission. It makes the broadcaster dependent on two overseeing bodies – the Council and the NTRC, appointed (elected) differently and as a result possibly issuing different or even conflicting orders. There is not enough clear division of their competence in regards to public broadcasting thus leading to further conflicts over boundaries of such a division. The Office of the OSCE Representative on Freedom of the Media has consistently supported the preparation of a more liberal law on broadcasting in Armenia, which would envisage participation by non-governmental organizations in its drafting and would facilitate promotion of freedom of expression and freedom of the media in Armenia. The proposed version of the Draft Law, however, raises doubts that the numerous appeals of the OSCE Representative on Freedom of the Media concerning broadcasting legislation, have been adequately reflected in the draft law proposed for discussion. Having analysed the draft law on broadcasting the expert comes to the following main recommendations: • Apply definitions and rules developed in the sphere of broadcasting and audiovisual media services in pan-European international conventions and treaties.  Provide clear distinctions of regulating satellite, mobile, Internet-provided broadcasting and non-linear audiovisual media services.  Keep the current obligations of the National Commission to make public the frequency plan.  Reinstall provision that the National Commission is obliged to properly explain its decision to reject an application for a broadcast license.  Reinstall responsibility on the NCTR to promote diversity of opinion on the airwaves.  Be specific in relation to the number or thematic direction of radio programmes on national and capital multiplexes.  Lay legal grounds for the establishment of non-state operators of digital broadcasting.  Eliminate possibility of arbitrary abolishment of the freedom of expression and freedom of the mass media in case of violations by broadcasters of Article 22. 4  Change the system of financing Public Television and Radio and that of the National Commission on Television and Radio for an automatic guarantee of their financial independence from the state.  Reform the system of selecting and appointing members of the Council for Public Television and Radio to provide for a possibility of a pluralistic public broadcasting.  Remove Public Television and Radio from the competence of the National Commission on Television and Radio, and place it under the sole authority of the Council for Public Television and Radio. The Office of the OSCE Representative on Freedom of the Media urges the National Assembly to convene a working group that includes representatives of journalistic non-governmental organizations, opposition parliamentarians and other stakeholders, and work on a fundamental revision of the draft law, fully taking into account the remarks and suggestions of the working group members, as well as the recommendations of international organizations and their experts. 5 TABLE OF CONTENTS I. INTERNATIONAL AND CONSTITUTIONAL STANDARDS IN THE SPHERE OF FREEDOM OF EXPRESSION, AND FREEDOM OF THE BROADCAST MEDIA 1.1 The significance of freedom of expression and the media 1.2 Restrictions on freedom of expression and freedom of broadcasting media 1.3 Regulatory authorities for the broadcasting sector 1.4 Public Service Broadcasting in the Digital Era 1.5 Monitoring of obligations of Armenia II. ANALYSIS OF THE DRAFT AMENDMENTS TO THE BROADCASTING LAW 2.1 Methodology and general comments 2.2 Positive changes introduced by the amendments 2.3 Disregard of European standards 2.4 Regulation of licensing in the digital era 2.5 “Abuse of law” by broadcasters 2.6 Independence of broadcast regulators 2.7 Selection of members of the Council on Public Television and Radio 2.8 Potential conflict of the two regulators over activities of the public broadcaster CONCLUSION 6 I. INTERNATIONAL AND CONSTITUTIONAL STANDARDS IN THE SPHERE OF FREEDOM OF EXPRESSION AND FREEDOM OF THE BROADCAST MEDIA I.1 The significance of freedom of expression and the media Freedom of expression has long been recognized as one of the most essential human rights. It is of fundamental significance for the functioning of a democracy, it is a necessary condition for exercising other rights and itself constitutes an integral component of human dignity. The Republic of Armenia is a member of the United Nations. The Universal Declaration of Human Rights (UDHR), the basic document on human rights, adopted by the General Assembly of the United Nations Organization in 1948, protects freedom of expression in the following wording of Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.1 The Republic of Armenia is a member of the Organization for Security and Co-operation in Europe (OSCE). The Helsinki Final Act declares that “participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion. They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development.” The Final Act also states that “participating States will act in conformity with the purposes and principles … of the Universal Declaration of Human Rights”.2 The International Covenant on Civil and Political Rights (ICCPR)3 – a United Nations treaty legally binding on and ratified by the Republic of Armenia – guarantees and clarifies the right to freedom of expression in the text of its Article 19: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of 1 Resolution 217A (III) of the General Assembly of the United Nations, adopted on 10 December 1948. A/64, page 39-42. See the full official text in English at: http://www.un.org/Overview/rights.html. 2 Clause VII of the Helsinki Final Act. 3 The International Covenant on Civil and Political Rights. Adopted by resolution 2200 А (XXI) of the General Assembly dated 16 December 1966. Came into effect on 23 March 1976. See the full official text in English on the website of the UN Office of the High Commissioner for Human Rights at: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. 7 frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The Human Rights Committee, meeting in New York and Geneva, exercises control over due observance of the International Covenant on Civil and Political Rights. It consists of experts and is empowered to consider applications from individuals claiming to have suffered violations of the rights set forth in the Covenant, including the rights envisaged by Article 19. This Committee has determined that: The right to freedom of expression is of paramount importance in any democratic society.4 Declarations of this type abound in precedent-setting court rulings on human rights throughout the world. The European Court of Human Rights, for instance, has stressed that “freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man”.5 As noted in this provision, freedom of expression is of fundamental significance both in itself and as the basis for all other human rights. True democracy is possible only in societies where a free flow of information and ideas is permitted and guaranteed. In addition, freedom of expression is crucial for identifying and disclosing human rights violations and for combating them. The right to freedom of expression is connected with the right to freedom of the media. Freedom of the media is guaranteed by a variety of documents of the Organization for Security and Co- operation in Europe (OSCE), with which Armenia has expressed its agreement, such as the Helsinki Final Act of the Conference on Security and Co-operation in Europe6, the Final Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe7, the Charter of Paris agreed in 19908, the closing document “Towards a Genuine Partnership in a New Era” of the CSCE Summit in Budapest in 1994,9 and the Declaration of the OSCE Summit in Istanbul.10 4 Case of Tae-Hoon Park v. Republic of Korea, 20 October 1998, Communication No. 628/1995, para. 10.3. 5 Case of Handyside v. the United Kingdom, 7 December 1976, Application No. 5493/72, para. 49. The text of the judgment in English can be found on the website of the European Court of Human Rights at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=&sessionid=4647705&ski n=hudoc-en. 6 The Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1 August, 1975. See in English parts concerning freedom of expression, free flow of information, freedom of the media on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 7 Copenhagen session of the CSCE Conference on the Human Dimension, June 1990. See, in particular, clauses 9.1 and 10.1 in English on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 8 Charter of Paris for a New Europe, CSCE Summit, November 1990. See in English on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 9 Towards a Genuine Partnership in a New Era. OSCE Summit, Budapest, 1994, clauses 36–38. See in English on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 8 The Istanbul Charter for European Security of the OSCE states, in particular: We reaffirm the importance of independent media and free flow of information as well as the public’s access to information. We commit ourselves to take all necessary steps to ensure the basic conditions for free and independent media and unimpeded transborder and intra-State flow of information, which we consider to be an essential component of any democratic, free and open society.11 The Moscow meeting of the CSCE Conference on the Human Dimension unambiguously agreed that “independent media are essential to a free and open society and accountable systems of government and are of particular importance in safeguarding human rights and fundamental freedoms” and that any restrictions on the right to freedom of expression should be established “in accordance with international standards”.12 A guarantee of freedom of expression is particularly important with respect to the media. This postulate has also been expressed in rulings of human rights courts. In this connection, it should be noted that the three regional human rights protection systems – the American Convention on Human Rights,13 the European Convention on Human Rights (ECHR)14 and the African Charter on Human and People’s Rights15 – have reflected global recognition of the significance of freedom of the media and of freedom of expression as the vital human rights. They do contain generally recognized principles of international law. By virtue of this, they serve as important comparable examples of the content and application of the right to freedom of the media and of expression and can be used in interpreting, in particular, Article 19 of the ICCPR, which is binding on the Republic of Armenia. The European Court of Human Rights always stresses the “pre-eminent role of the press in a State governed by the rule of law”.16 In particular, it has noted: Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus 10 Declaration of the Istanbul OSCE Summit, 1999, clause 27. See in English on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 11 Clause 26 of the Istanbul Summit Declaration. 12 The Moscow Meeting of the CSCE Conference on the Human Dimension (October 1991), clause 26. See in English on the website of the OSCE Representative on Freedom of the Media at: http://www.osce.org/publications/rfm/2003/10/12253_108_en.pdf. 13 Adopted on 22 November 1969, came into effect on 18 July 1978. 14 Adopted on 4 November 1950, came into effect on 3 September 1953. 15 Adopted on 26 June 1981, came into effect on 21 October 1986. 16 Case of Thorgeirson v. Iceland, 25 June 1992, Application No. 13778/88, para. 63. The text of the judgment in English can be found on the website of the European Court of Human Rights at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=thorgeirson&sessionid=46 91853&skin=hudoc-en. 9 enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.17 Moreover, free media, as the United Nations Human Rights Committee has stressed, play a substantial role in the political process: Free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.18 In its turn, the Inter-American Court of Human Rights has stated: "It is the mass media that make the exercise of freedom of expression a reality.”19 The European Court of Human Rights has also stated that it is incumbent on the media to disseminate information and ideas concerning all spheres of public interest: Although the press should not cross the boundaries set for [protection of the interests defined in Article 10(2) of the European Convention on Human Rights20]… it is, nevertheless, assigned the mission of disseminating information and ideas of public interest; if the press is set the task of disseminating such information and ideas, the public, for its part, has the right to receive them. Otherwise, the press would be unable to fulfil its function as society’s watchdog”.21 These provisions are reflected in Article 27 and other parts of the Constitution of the Republic of Armenia (of 05.07.1995, with amendments).22 17 Case of Castells v. Spain, 24 April 1992, Application No. 11798/85, para. 43. The text of the judgment in English can be found on the website of the European Court of Human Rights at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=castells&sessionid=46487 59&skin=hudoc-en. 18 General comment No. 25 of the United Nations Organization Human Rights Committee, 12 July 1996. 19 Recommendation “Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism”, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 34. 20 See its text below. 21 See the case of Castells v. Spain, note 25, para. 43; The Observer and Guardian v. UK, 26 November 1991, Application No. 13585/88, para. 59; and The Sunday Times v. UK (II), 26 November 1991, Application No. 13166/87, para. 65. The texts of these judgments can be found on the website of the European Court of Human Rights at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=castells&sessionid=46487 59&skin=hudoc-en, http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=observer&sessionid=4648 759&skin=hudoc-en and http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=sunday%20%7C%20time s&sessionid=4648759&skin=hudoc-en, respectively. 22 See http://www.parliament.am/parliament.php?id=constitution&lang=eng#1. 10