SOFT HAND OF CENSORSHIP
On January 30 in Tbilisi “Media Networking Event” regional conference was held. It was organized by South Caucasus Cooperation Program of the Eurasia Foundation with the support of USAID. One of the presentations made at the conference (speaker- Chairman of the Committee to Protect Freedom of Expression Ashot Melikian) was based on the monitorings of Armenian, Azerbaijani and Georgian press, conducted in January-September 2005 by Yerevan Press Club, “Yeni Nesil” Journalists Union of Azerbaijan and BS Press Association of Georgia. (See the results of “What Can a Word Do?” research on YPC website: www.ypc.am in “Studies” section.)
Another presentation devoted to “Freedom of Speech in Armenia: Guarantees and New Challenges” was made by President of Yerevan Press Club Boris Navasardian. Below is the version of this presentation developed especially for YPC Weekly Newsletter.
ONE of the objectives of South Caucasus Cooperation Program is exchange of “know-how” in various socially important spheres, synchronization of reforms in Armenia, Azerbaijan and Georgia. In this respect, it is hard to overestimate the significance of the projects on joint information production, activation of media role in conflict settlement, harmonization of media legislation in the three countries of the region. I am confident, my colleagues in their presentations will speak about many useful regional initiatives supported by Cooperation Program.
However, one should not overlook the fact that our countries have influential forces resisting reforms. On the one hand, they please the Western partners, showing their adherence to democracy and free market; on the other – they do their utmost to stick to old ways, distorting the introduced institutions of civil society to meet their personal interests. Even special technologies of imitation, mimicry and effective mechanisms of exchanging such technologies were formed. In other words, the reactionary forces have their own “cooperation program”.
In my presentation, I will try to analyze the processes in media field, which may pose common threats, challenges to freedom of expression for all the three countries. I hope our joint efforts will help us withstand the regressive tendencies, and, on the contrary, consolidate the current achievements.
Legislative guarantees of freedom of expression in Armenia are primarily endorsed in the RA Constitution. Following the referendum of November 2005, numerous amendments were introduced in the Constitution. They presuppose serious reform of the legislation in a number of spheres, including the laws regulating media activity. Analysis and evaluations of these provisions are presented in a number of YPC materials (see YPC Weekly Newsletter, September 30 – October 6, 2005; September 23-29, 2005; September 9-15, 2005; August 25 – September 1, 2005; July 8-14, 2005). As of today, I would like to refer to one of the issues raised by us previously.
Yerevan Press Club and its partners held that the Constitution should have fixed a provision banning any form of censorship. This proposal, similarly to the one referring to the bodies regulating the sphere of broadcasting, was also supported by RA Human Rights Defender and the expert of “Article 19” international organization but was dismissed by the authors of the amendments.
The idea of fixing a ban on any type of censorship at the constitutional level was conditioned by the fact that the countries, having taken the path of democracy and experiencing state censorship bodies in recent past, still face the danger of applying its covert forms. A relevant clause in the Constitution might to a certain extent serve as a guarantee of excluding these indirect forms both in various laws and the practice.
By the way, the ban on censorship is included in the Supreme Laws of the countries like Austria, Belgium, Germany, Denmark, Italy, Columbia, Latvia, Netherlands, Poland, Portugal, Russia, Thailand, Switzerland, Japan. The same role is actually assigned to the First Amendment of US Constitution. However, the Armenian lawmakers did not wish to join this rank.
Meanwhile, one of the most urgent problems activists of freedom of expression world over face is a unique “mutation” of the institution of censorship against which, similarly to the bird flu virus, no adequate vaccine was found yet. A well-timed report “The Growing Threat of Soft Censorship” was developed in late 2005 by Open Society Justice Initiative. The threat mentioned in the report refers practically to all countries.
However, a most vivid situation of restriction to freedom of expression and application of “soft” or “sophisticated” censorship is formed in the countries like ours. Especially prior to elections or referenda, when the governing forces need to achieve a concrete political result by all means. As mentioned in the report, in Kazakhstan the government cancelled publishing contracts with the opposition newspapers before the December 4 last year presidential elections. In Belarus, state monopolist press distribution agency stated about ceasing to distribute opposition newspapers in the coming presidential election year.
Russia, where direct measures are not a custom, uses more sophisticated methods. The Presidential administration, through legal mechanisms, state companies and loyal political forces, is striving to domination on the market of controlled media over the critical ones. It may be stated that Armenia and other South Caucasus countries use the Russian version of “soft” censorship towards media. To emphasize the above stated, I would say that today it is probably the most serious challenge to freedom of expression and press in our countries.
At the same time, the used techniques may be conventionally divided into 4 groups:
1. Abuse of public funds and monopolies. For instance, financing of state and public media, primarily TV and radio companies, is used in narrow political interests, just like allocation of advertising for state or monopolist public service companies exclusively in loyal media. Thus, the taxpayer money and public wealth are abused to promote partisan or personal interests.
2. Abuse of regulatory and inspection powers. Here, we have actions directed against freedom of expression but disguised by legal or market mechanisms. An example of it is manipulation with broadcast licensing competitions or tenders to support political allies and deprive independent voices of air; conducting fiscal, labor and other inspections in selective manner, when only those to be put to political pressure are punished. In these cases the victims of the sanctions may be not only media companies directly but other spheres of business, in which the owners of critical media are involved.
3. Abuse of defamation laws. Its basis is considerable dependence of the courts on the executive, and their corruptive nature. As a result, it is not very hard to get indictments for undesirable journalists or editors. Depending on the legislation of a concrete country, most effective may be criminal penalties or fines, compensation of damage.
4. Extra-legal pressures. Among them are the actions of influential officials and politicians using clearly illegal methods: pressure on the private business to shift advertising in the necessary direction; direct interference in the editorial policy or content of a publication/program via so-called “phone censorship” or bribing of journalists, editors; using physical violence or threats against media representatives.
At various stages of “fighting abuse of freedom of expression” – under this sophisticated wording modern proponents of authoritarian methods of governance disguise their rejection of democracy, pluralism and transparency – Armenia applied practically all of the mentioned techniques of “soft” censorship. Today, those pertaining to the first two groups are so improved and efficient that the other two are no longer needed. Moreover, to prove the fact of political pressure in case of the first two categories is much more complex than in the case of others.
Despite the complaints of the law-and-order bodies that “they cannot find” the culprits of physical violence against a journalist, and the reference of the authorities to the “independence” of the judge indicting the journalist, in both cases there is an obvious fact of violating modern principles of freedom of expression. It is much harder to place in this category the fact of selling a TV company by one businessman to the other, more convenient to the authorities, or the open voting of the members of frequency distribution commission for the state controlled bidder instead of the independent one.
A classical example is the activity of National Commission on Television and Radio, having rejected licensing of “A1+” TV company bids in 10 (!) competitions. The lesson was so convincing for the rest that today no TV channel free from government control is left in the country. At the same time, the term “self-censorship” is more actively used – allegedly, there is no political control or economic pressure on the press, simply media heads and journalists are “not objective enough” proceeding from personal interests, preferences, principles, etc.
It should be noted that the owners and heads of a number of Armenian media, under the control of the authorities and the pro-government elite, also willingly support this “legend”, “sincerely” confessing to the “sin” of self-censorship. They say well, we do violate the principles of objectivity and balanced coverage, since we keep to certain views and personal political preferences. May be it is not very good but we cannot act otherwise under the circumstances (it may concern both the results of elections and the recent referendum on the Constitution)… Thus, on the one hand they please the neo-censors of the authorities, acting as a screen, and feed their pride and ambitions on the other: it is much easier to admit personal mistakes and omissions than full dependence.
What is most interesting, many international organizations, ringing out the dominance of self-censorship in Armenian journalism in their reports, are also caught on this “crap”. In fact, self-censorship as a phenomenon certainly exists in our press, however it is used in very narrow fields, generally related to traditional national setup and approaches. At the same time the spectrum of issues, to which self-censorship is applied and internal taboos are practised, is constantly and rapidly diminishing. While, it is not fair to view as “self-censorship” increased cases of a definite behavior of a journalist, owner or head of medium, facing the threat of unemployment, serious business problems, losing license or other unpleasant experiences. It is real censorship – simply in its “soft”, “covert” form.
A fresh attempt for forming a mechanism likely to increase efficiency of indirect censorship was practice of RA Law “On Postal Communication” (see YPC Weekly Newsletter, December 2-8, 2005). In late 2005, the press distribution companies started to be visited by tax inspectors who, referring to related provisions of the Law “On Postal Communication” and RA Law “On Licensing”, demanded a license for distribution of newspapers and magazines by subscription. Meanwhile, these provisions were a surprise for both the distribution companies themselves and the media or journalistic organizations, having no idea that the previously unlicensed activity is now liable to licensing.
A duty of 5 million AMD (over 11 thousand USD) was set to get a license for distribution of print media by subscription, which would be far too much for small private companies. Moreover, the distribution companies might be fined for the lack of license up to 50% of their annual turnover. Compliance with the mentioned financial obligations would plunge almost all distributors in bankruptcy, and the dominant position at the market would be taken by 1-2 large companies. In other words, a serous threat might emerge for monopolization of the market for distribution of press by subscription. It would untie the hands of the authorities for applying the Belarus scenario mentioned above, if there is such a necessity.
According to professional organizations and lawyers, such practice of the Law “On Postal Communication” contradicted Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulates that everyone has a right for dissemination of information and ideas without interference by public authority, and that licensing on receiving and distributing information may be applied only with relation to radio, television and cinema institutions. It also contradicted Article 19 of Universal Declaration of Human Rights and Article 17 of RA Amended Constitution.
The statement of “Partnership for Open Society” initiative noted (see YPC Weekly Newsletter, December 16-22, 2005) that the activity of the organizations engaged in subscription and distribution of print periodicals is not covered by the definition of the postal services given in the Law “On Postal Communication”. This activity must not be included in the list of these services and thus is not be a subject of this law.
Moreover, licensing of the organizations engaged in distribution of press by subscription does not follow from the principles and goals set in the Law “On Licensing”. One of the provisions of this Law stipulates that licensing the activity of economic entities should primarily contribute to development of the market.
Armenian journalistic community and NGOs raised the issue of redressing the current situation both by introducing amendments in the legislation and reviewing the basis for its practice. Besides, the enforcement of the Law in the originally proposed version would render useless all efforts of Eurasia Foundation, implementing a project for support and diversification of newspaper distribution market jointly with Open Society Institute.
Is it not strange that international donor organizations are spending money to help us consolidate democratic institutions and a civilized market while our local lawmakers are putting a spoke in their wheel? One wants to believe that all this is an outcome of oversight and lack of efficient professional expertise of the drafts of legislative and normative acts. Probably, there is a point in forming a relevant public expert structure serving as a unique sieve obstructing the passage of low-quality documents.
In the concrete case of the Law “On Postal Communication”, the story got an optimistic turn. Following the mentioned statement, all the involved state structures got clarifications from the relevant Ministry (which, as the author of the Law, has a competence to interpret it) that the press subscription is not a postal service and, consequently, is not viewed as an activity subject to licensing (see YPC Weekly Newsletter, February 3-9, 2006). However, a happy end is possible only after introduction of specifying amendments to the Law itself, and it is the next objective of the interested institutions of the civil society.
Anyway, their impact on legislation may soon become impossible in Armenia. I mean the Draft Law “On Lobbying Activities” (see “Promoting Democracy From Abroad?” article in YPC Weekly Newsletter, November 18-24, 2005). It was developed by RA Ministry of Justice, is already ratified by the Government and is in circulation at RA National Assembly. The idea of the Law is quite civilized – regulation of various influences on adoption of legislative acts and development of state policy, bringing the levers of these influences out to light. However, let us see what will be the effect of enforcing this Draft if it becomes a law in the short term.
Given the power of the informal institutions mentioned above, the main mechanisms of protecting narrow partisan interests on governmental and legislative level will remain invisible, and the Draft Law “On Lobbying Activities”, if adopted, will not regulate them. What the Law will really impact is the civil society institutions. First, its definitions do not distinguish between lobbying and advocacy. It turns out that any activity of non-commercial non-governmental organizations, directed at amending the legislation (for instance, developing draft laws or participation in state policy making in various spheres), is viewed as lobbying and will require special registration. Second, there is a ban stipulated for lobbying activity if it is financed from abroad. Meanwhile, financing the activity of NGO sector in Armenia by 90% (and foreign expert assistance by 100%) is implemented by international donors, and the qualified efforts for public advocacy by the civil society may turn to be actually paralyzed.
Thus, this Draft Law is developed by the funds of a foreign grant. That is, the structure allotting it excludes the possibility of its participation and that of other donors in using a considerable part of democracy promoting instruments. In particular, the efficiency of USAID project, costing about 6.5 million USD, is put to threat. The project is aimed at (to refer to a spoke in the wheel) strengthening the potential of NGOs in the sphere of public advocacy…
Possibly, the recent example is not directly related to media problems, however it is hard to consider promoting freedom of expression separate from the process of establishing other democratic institutions. Thus, the challenges they recently face are common.
In conclusion, I would like to express my gratitude to the organizers of the conference for the fruitful activity over many years and the opportunity to raise issues of concern to us. I also hope that the coordinated efforts of the journalists, representatives of the civil society and international, donor organizations will help us build peace and democracy in the South Caucasus, notwithstanding all the difficulties.
