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MONITORING
January 21, 2011
Laws on Media 2010: Legislative Amendments Regarding Freedom of Expression and the Media
By Mesrop Harutyunyan
For JNews.am
National Assembly of the Republic of Armenia

For several times in 2010, the National Assembly of the Republic of Armenia referred to legislation regarding freedom of expression, the media and information, making amendments to some codes and laws.

Some of those amendments have been positively assessed, others criticized by the media field experts.

The beginning of 2010 was marked by a number of improvements in the RA Criminal and Civil codes. The first among them was the ‘Law on Addition to the Criminal Procedure Code of the Republic of Armenia’ on March 17, 2010.

This addition aimed at eliminating the contradictions between the RA ‘Law on the Dissemination of Mass Information’ and the RA Criminal Procedure Code. According to Article 5 of the ‘Law on the Dissemination of Mass Information’ adopted in 2003, ‘if the implementer of media activity or a journalist is obliged to disclose the source of information by the court decision, then at the petition of the journalist, the court proceedings can be held in camera.’ However, no similar article was involved in the RA Criminal Procedure Code.

Thus, supplementing the 2nd part of Article 16 of the RA Criminal Procedure Code, the Law adopted on March 17, stated: “if the implementer of media activity or a journalist is obliged to disclose the source of information by the court decision, then at the petition of the implementer of media activity or the journalist, the court proceedings can be held in camera.” This, in fact, eliminated the contradiction between the two legal acts.

The same day, March 17, 2010, the National Assembly adopted another positive, in our estimation, ‘Law on Amendments and Additions to the RA Criminal Code’.

According to the adopted law, amendments and additions have been made to Article 164 of RA Criminal Code ‘Hindrance to the Legal Professional Activities of a Journalist’. Particularly, the fine amounts intended for hindrance to professional activities of a journalist have been increased. So, the 1st part of the article previously stated: “Hindrance to the legal professional activities of a journalist, or forcing the journalist to disseminate information or not to disseminate information, is punished with a fine in the amount of 50-150 minimal salaries.” Now this amount has been changed to 200-400 minimal salaries.

And in the 2nd part according to which the same actions committed by an official abusing one’s official position, the punishment with a fine in the amount of 100-250 minimal salaries has been changed to 400-700 minimal salaries.

Except these, a 3rd part has been added, according to which “The action envisaged in parts 1 and 2 of this Article, committed by using violence dangerous for life or health or threat of using violence of the journalist or close relative of the latter, is punished with imprisonment for the term of 3 to 7 years.”

On May 18 the National Assembly adopted a package of bills, which included the draft laws ‘on Amendments and Additions to the Civil Code of the Republic of Armenia’, ‘on Amendments to the Criminal Code of the Republic of Armenia’, ‘on Amendments to Criminal Procedure Code of the Republic of Armenia’. The adopted laws decriminalized libel and insult moving from the settlement sphere of the Criminal Code to the settlement sphere of the Civil Code. The main law in the package was the ‘Law on Amendments and Additions to the Civil Code of the Republic of Armenia’. The other two were derivative: Articles 135 (‘Libel’) and 136 (‘Insult’) of the Criminal Code were invalidated according to the ‘Law on Amendments to the Criminal Code of the Republic of Armenia’, and according to the ‘Law on Amendments to Criminal Procedure Code of the Republic of Armenia’ references in the Criminal Procedure Code to Articles 135 and 136 of the Criminal Code were removed.

The main provisions of the ‘Law on Amendments and Additions to the Civil Code of the Republic of Armenia’ were the following:

a)    Article 19 of the Civil Code has been totally edited. Now it is worded as follows:

“The honor, dignity and business reputation of a citizen is subject to protection from the
insult and defamation manifested by other person (persons) in the cases and order set
forth under this code and other laws.

On demand of interested persons, the protection of honor and dignity of a citizen is allowed also after his death.

If it is impossible to identify the person who disseminated communications impugning the honor, dignity, or business reputation of a citizen, the person with respect to whom such communications were disseminated has the right to apply to court with a request for the recognition of the communications that were disseminated as not corresponding to reality.”

55 Բարդ գաղտնաբառի օրինակ

Chapter 60 of the present Code has been supplemented with a new 2.1 paragraph entitled “The Order and Terms of Compensation for Harm Caused to the Honor, Dignity and Business Reputation”, where the notions ‘libel’ and ‘insult’, the terms of compensation, the cases of exemption from responsibility, etc. are specified.

Insult is defined as follows:

“In the context of the present code, insult is deemed to be public statement disseminated by any means (speech, image, voice, sign, etc.) addressed to a definite person, aimed to insult that person.”

Thereafter:

“In the context of the present code, public statement is not deemed to be insult in some situation and by its content, if it is based on reliable facts or conditioned by prevailing public interest.

This provides certain protection in case of a fact-based opinion and an assessing argument.

Libel is defined as follows:

“In the context of this code libel is deemed to be the dissemination of information in regard to the person, which is not in accord with reality and impugn his/her honor, dignity or business reputation.”

According to the media experts, a provision on the exemption from responsibility for insult and defamation was involved in the Law before it was given for the second-reading, or rather it was conformed to the ‘Law on Mass Media’. Here is the wording:

“The person impugning the honor, dignity, or business reputation of a citizen publically is exempted from responsibility, if the information is a literal or conscientious reproduction of the information contained in a public statement, official documents of state bodies, other media product or work of authorship and contains a reference to the original source.”

The Article has one more interesting provision:

“If the original source is not referred to when publishing information qualified as an insult or defamation in the court, or the author is unknown, or the media uses its right of not revealing the source, does not tell the author’s name, then the compensation liability bears the person publically telling about the information, but if the factual information has been published through the mass media, then the compensation liability bears the implementer of media activity.”

In case of insult the person has the right to demand an apology from the person having insulted him/her. If the information insulting and defaming the person have been disseminated via mass media, the person has the right to demand the whole or partial publication of the court verdict and a compensation fee in the amount of 1000 times the minimum monthly salary.

In case of defamation by means of mass media the person has the right to demand in court the protection of his/her honor, dignity and business reputation via the following means: a) demand the retraction of information deemed as defamation by means of mass media, or publication of his answer in the same medium. The procedure for retraction shall be established by the court, according to the terms prescribed by the RA ‘Law on Mass Media’; b) as an indemnity for the moral harm demand from the person, who has disseminated information deemed as defamation in the amount of 2000 times the minimum monthly salary. Here, too, the compensation amount is established by the court taking into consideration the case peculiarities.

There is another important provision, according to which the person is deprived of the protection means envisaged for defamation and insult, if before applying to the court s/he has demanded retraction and has published his/her answer by means of mass media and the mass medium has satisfied his/her demand, prescribed by Article 8 of the ‘Law on Mass Media’.

Though the edited and adopted Law has dispersed many of the concerns after the first-reading, however, according to some experts, as long as there is Article 333 (‘False Betrayal’) in the Criminal Code, wordings of which do not much differ from those of libel, the media is always under the risk of criminal liability, because the law enforcement bodies can bring a case according to the mentioned Article 333. There are also concerns related to imperfection of the RA judicial system, that is, to practical application of the Law.

In general, the above-mentioned amendments have been positively assessed by the field experts. The same cannot be said about the amendments to the ‘Law on TV and Radio’ (adopted on June 10, 2010, during the specially called session by the National Assembly).

The law draft has been developed by the interdepartmental committee of digital broadcasting system in the Republic of Armenia.

Anyway, the circulated draft was heatedly criticized both by the Armenian experts and by the representatives of international organizations. On May 26, after adopting the draft in the first-reading, the Standing Committee on Science, Education, Culture, Youth and Sport of the National Assembly organized parliamentary hearings of the draft.  Speeches were made by the draft authors – members of the interdepartmental committee – as well as by parliamentarians, heads and experts of media NGOs, representatives of international organizations.

After the hearings, the interdepartmental committee began to discuss the proposals, but no principle proposal was taken into consideration. For example, despite the experts’ persistent claims, provisions conditioning the satellite broadcasting by the possession of an air broadcasting license in Armenia were preserved. By the wording: “The license is the only legal basis allowing to implement the broadcasting of television and radio programs in Armenia” (article 46), the authors, actually, have created a ground for prohibition of satellite and on-line broadcasting.

Тhe audit results of the broadcasting frequencies were not published. As for digitalization and organization of licensing competition (which allegedly was the reason for this legislative initiative), the articles regulating them had not been significantly changed, thus again, multiple subjective elements will be contained in determination of competition winners. Only, under the international organizations’ pressure, the authors involved a provision according to which the selection of a person licensed should be reasoned and grounded.

By adoption of this bill, the number of TV channels broadcasted in the capital will be decreased to 18 from the functioning 22 on January 21, 2011, this harming the diversity on TV. The adopted law stipulates the status quo of the manageable TVs already existing in the market and suitable for the authorities.

Despite the assurances of the authors, that only provisions closely related to digitalization process will remain in the draft before the second-reading, they also made amendments to articles with no any relation to the process. Particularly, the ads restriction (the condition not to interfere the programs with ads) on Public TV and Radio was removed from the adopted law. And the whole volume of ads in programs has been increased from 5 to 7 percent. Moreover, an anti-constitutional provision was involved before the second-reading: the 1st part of Article 35 was edited, as a result of which activities of the Public TV and Radio remain out of regulation and control.The negative effect of this law was noticed in December 2010, when the results of the licensing competitions on the implementation of broadcasting through digital network were summed up, and “A1+” TV Company was recognized to lose the competition for the 13th time.


Mesrop Harutyunyan is an expert of the Committee to Protect Freedom of Expression 

Source: JNews.am

 

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