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  • ANALYSIS of Amendments to Media Law

    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.


    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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