13 Feb 14 | India, News and features, Politics and Society
The Indian judiciary, with its prickly ego and halo of righteousness, has always wielded the sword of “contempt” in a swashbuckling manner.
In 1995, the movie Gentleman had some scenes in which judges were shown as being subservient to politicians, and susceptible to bribery. The filmmaker had two options- delete those “offending” scenes, or face prison for contempt of court. Needless to say, he settled for the former. Then in 2001, a fortnightly magazine carried out a performance evaluation of some judges of the Delhi High Court, and published a Report Card, grading them on integrity and competence. The court saw red at this “scandalising”, and slammed a sentence for conviction. Of course, the court praised itself: the judiciary was the “messiah” which protected the press and media from state interference. Meanwhile, when it comes to allegations of personal misdemeanour and malfeasance by judges, nobody needs to even petition the court. It swoops down on its own and muzzles the press.
However, this imperiousness pales in comparison to the Delhi High Court’s award of a gag order in the case of Justice Swatanter Kumar, a retired judge of the Supreme Court, accused of sexually harassing one of his female interns. The 16 January order is nothing less than a generous reward to a SLAPP suit, and worse, it also reveals a manifest bias in favour of the plaintiff, almost as if there was a concerted effort to stifle accountability.
On 30 November 2013, a former intern filed a complaint of sexual harassment against the judge, and when the Supreme Court declined to intervene, on 10 January, she took recourse to a PIL (Public Interest Litigation) before the same court. Coming right on the heels of another similar case, it made to all the front pages and television channels. Though there were some headlines which could have been phrased better, not a single paper or channel even remotely speculated on the veracity of the allegations. All they did was quote from the complainant’s petition and disclose the name of the judge. On 14 January, a phalanx of legal eagles threw their lot in with the accused judge and made a beeline for the Delhi High Court. Their vociferous assertion was tha newspapers, television channels, and the intern had colluded to tarnish the reputation of an upright judge by leveling malicious and scurrilous charges.
Two questions hit us at this juncture. One: when the petition was pending before the Supreme Court, why would the plaintiffs rush to the Delhi High Court, unless of course, forum shopping was their objective ? Two: if their beef was with the allegedly defamatory reportage, why would they also sue the intern?
Parsing the order granting an interim injunction might hint at some answers. The issue before the court was a simple one – whether the defendant newspaper and television channels’ actions amounted to trial by media and resulted in adverse publicity against the accused judge. (Un)surpringly, Justice Manmohan Singh starts by praising the judge’s sterling record on the Bench, and arrogates to itself the right to decide whether there was a smidgen of truth in the allegations. He also holds forth on the need for a statute of limitations in cases of sexual harassment. Then he cites a Supreme Court judgement which had justified prior restraint on reportage and in one fell swoop imposes a blanket ban on reporting of the case. This ban’s scope is scary- besides media houses, “any other person, entity, in print or electronic media or via internet or otherwise” were also drawn in.
Effectively, it means that no one, not even a person or a blogger not connected with the case, could write, or even tweet anything about it. When in most jurisdictions bloggers are being granted the same protection as journalists, could there be a more regressive step?
Legally India, a web portal had used a heavily pixelated image of the judge, so as to eliminate any identifying marks and carried a report totally in accordance with the court’s injunction. Despite that, the fire-and-brimstone emails it received from the plaintiff’s solicitors leave no room for doubt- that intimidating into silence is the only objective. The plaintive plea about irreparable damage to reputation is only a chimera.
A free press is indispensable for speaking truth to power, even the vast powers of the judiciary. Moreover, the Constitution of India makes it incumbent upon the judiciary to protect the press so that accountability and rule of law do not remain mere shibboleths. And when this same august institution clearly appears to champions SLAPP suits, it is indeed a mockery of the rule of law, as a livid Editors Guild said without pulling any punches.
This article was published on 13 February 2014 at indexoncensorship.org
13 Feb 14 | Iraq, News and features, Politics and Society
Al-sabah al jadeed’s caricature of Ayatollah Khamenei (Image RFE/RL)
Independent Iraqi daily newspaper Al-Sabah Al-Jadeed has survived numerous attempts to destroy it over its 10 year existence. But on 10 February, the newspaper’s Baghdad office was bombed and now its future is in doubt. The daily may need to find a new office, employees are fleeing, and its website is facing one DoS attack after another.
Windows, furniture and equipment were damaged when a bomb went in front of the building at 4.30 am. Later that morning another bomb exploded not far from the newspaper, while an unexploded heavy C4 plastic explosive device was found inside the premises and dismantled by police. No one was injured or killed, as the office was empty – but some neighbours are suggesting that the newspaper should move.
A few hours later that same day a militia-like group entered the building. “They came threatening us in broad daylight, so to speak,” says Ismael Zayer, editor in chief. The group escaped after employees managed to warn the police.
The bomb attacks followed a social media campaign to demand the closure of the newspaper after it published its weekly supplement Zad on 6 February. The supplement was devoted to the 35th anniversary of the Islamic Revolution in Iran and on the cover featured a caricature of Iran’s supreme leader, Ayatollah Ali Khamenei. The cover caricature is a tradition for Zad, a supplement that came into existence in the first months of the Arab Spring. Ahmed al-Rubaie, the newspaper’s cartoonist, has drawn hundreds of caricatures of political and religious figures, from Iraqi president Jalal Talabani, Najaf’s grand ayatollah Al-Sistani and prime minister Nouri al-Maliki to Nelson Mandela and other internationally known figures. These cartoons are never intended to be offensive or convey a negative message, they are just an alternative to uninteresting photos of VIPs.
Zayer believes the caricature of Khamenei is just a pretext to attack the newspaper and have it closed before the parliamentary elections planned for this spring. But there may be yet more reasons for the attacks and threats against the newspaper. Al-Sabah Al-Jadeed recently covered a damning report by Human Rights Watch on the abuse of female detainees in Iraqi prisons. HRW accused the government of illegally detaining wives and daughters of (Sunni) suspects who are on the run, claiming detainees were sexually abused. Zayer wrote an open letter to the government, demanding that the Minister of Justice, Hassan al-Shimmari, be sacked. “I am ashamed of my country,” he commented, “What are we? A whorehouse?”
After some efforts to convince the Ministry of Interior to protect the newspaper and its staff, the office of the newspaper is now under permanent surveillance by the police, but it is unclear for how long. Zayer has left the country temporarily after receiving death threats. This is not the first time the editor has been forced to flee Baghdad.
In the beginning of 2006 when Iraq’s sectarian conflict led to thousands of assassinations a month, Zayer managed the newspaper from a small office in Amman, Jordan. He planned to create an international edition for the millions of Iraqi refugees outside their home country – a project that was almost ready to be launched when on 30 December, Saddam Hussein was hanged in a way that scandalised his Jordanian supporters and made the company that was going to produce the international edition wary of printing a newspaper critical of Ba’athists.
Zayer decided to open a second bureau in Erbil, the relatively safe capital of the autonomous Kurdish Region, and to bring back around a dozen journalists that had escaped to neighbouring Jordan, Lebanon and Syria. The bureau was maintained until the very end of 2009, when Zayer and most of his staff went back to Baghdad.
The newspaper has faced many other challenges. In May 2004, Zayer’s driver and bodyguard were killed during an attempt by fake police to kidnap the editor in chief. Later, one of Zayer’s brothers was kidnapped for a hefty ransom. More than once ministers ordered an advertising boycott – a large part of the advertising in the newspaper concerns government tenders, next to a steady stream of ads by mobile phone companies and real estate firms. Nowadays, a strange rule is in force that says tender ads can only be paid once the tender has been decided – as a result, the newspaper is sitting on hundreds of unpaid bills.
From 2006 until 2008, when Nouri al-Maliki, after having been under siege in Basra himself, finally decided to defeat the Shi’ite militias in the south and the capital, distribution of the newspaper was often prohibited in many cities and Baghdadi neighbourhoods. Distribution north of the capital was completely disrupted during the American siege of Fallujah at the end of 2004 – and for a long time thereafter. The Borsa in Baghdad, a building from where for years, several independent and party newspapers were sold to traders every morning, was occupied for months by Ba’athists. Sometimes printing houses ran out of paper after trucks were stolen on the road from Amman to Baghdad and their drivers killed.
By attempting to create a modern, democratic trade union for journalists, Zayer, who was elected its first president, ran into serious trouble with the old union, one of the many Ba’athist institutions the US occupation’s administration had left intact.
The newspaper has survived several libel cases brought on by various politicians demanding potentially ruinous compensation sums, owing its victories to courageous independent judges. It has survived vicious campaigns on the internet claiming it is in “American-Zionist” hands. Recently it survived the flooding of large parts of Baghdad, as a result of bad maintenance of the sewage system and torrential rain.
Iraqi readers have shown their support for the newspaper after the bomb attack. This February is not the first time there is no Al-Sabah Al-Jadeed in the streets – but this time, as those responsible for the bomb attack didn’t leave a business card, with whom should the newspaper negotiate? Removing the supplement from the website hasn’t helped to assuage the anger about the innocent caricature of Khamenei. In the past the newspaper could hang on thanks to financial help from donors, as well as political support from Iraqi ministers and top officials who think independent media are at least a necessary evil. It certainly needs solidarity now.
This article was published on 13 February 2014 at indexoncensorship.org
13 Feb 14 | Religion and Culture, Turkey
A companion report: Developments in cultural policy and its effects on freedom of the arts, Ankara
As we have shown in previous publications, artists engaged in the Kurdish rights struggle are differentially affected by limitations to freedom of expression in general and in the arts in particular. This is even more the case in the (predominantly) Kurdish regions of Turkey where freedom of expression and assembly are monitored and affected by Turkey’s anti-terror legislation. In practice this has meant that all cultural (e.g. language) and artistic expression within the Kurdish rights struggle can be construed as illegitimate ‘separatist propaganda’ and hence outside of the protection of freedom of expression and the arts.
This year we wanted to conduct follow-up interviews in order to examine if and what kind of changes artists have experienced with the beginning of the “peace process” and the armistice between the Turkish Armed Forces and the PKK (Partiya Karkerên Kurdistan, Kurdistan Workers Party). Officially announced in early spring 2013 by the government, this process has been all but transparent or linear, yet has raised hopes to bring an end to 30 years of armed conflict. Interviews were conducted with the Department of Culture and Tourism of the Diyarbakir Municipality, the Diyarbakir Municipal Theater, the Dicle Fırat Culture and Arts Center (Dicle Fırat Kültür Sanat Merkezi), independent filmmaker Zeynel Doğan who is also a lecturer at the Aram Tigran City Conservatory, the Kurdish publishing house Lis Yayınevi, members of the Bahar Cultural Center (Bahar Kültür Merkezi) and their lawyers as well as BART – the Batman Culture and Arts Association (Batman Kültür ve Sanat Derneği).
It may come to no surprise that while the reforms announced within the framework of the “democracy package,” especially the legalization of the Kurdish letters Q, W, X and teaching Kurdish in private schools, were highlighted by officials of the Ministry of Culture and Tourism in Ankara as achievements in the area of freedom of expression, the perception in the region is considerably different. As interviewees frequently noted these changes have merely legalized what Kurdish artists, activists and politicians have practiced – often under threats of incarceration and harassment, or worse – over the past decades. While all stated that the “peace process” has engendered hopes in the region and that the end of armed violence has a brought considerable relief, it seems that other practices, such as the constant surveillance of arts and cultural centers by Turkish security forces is still in place. Given that Ankara emphasizes arts and culture as important vehicles of societal peace that ought to be promoted, the question remains why artistic production in the Kurdish region remains under generalized suspicion of being or aiding terrorist activities.
As the director of the Department of Culture and Tourism of the Diyarbakir Municipality, Muharrem Cebe, notes the Ministry of Culture and Tourism still shows little engagement with the city of Diyarbakir. Their activities center mostly on bringing one or two popular artists to town every year. In the area of restoration the Ministry continues to focus on historical sites that fit easily into nationalized (i.e. Turkified) narratives, such as the Ulu Mosque and the İçkale, rather than those that evidence Kurdish presence and history in the region. Since the Peace and Democracy Party (Barış ve Demokrasi Partisi, BDP) has come into office in Diyabakir, the municipality has explicitly pursued multicultural arts and languages policies, printing all its official communications in Kurdish, Armenian, Assyrian, Arabic and Turkish. The municipality has supported the renovation of the Armenian Surp Giragos Church and is in close collaboration with Surp Giragos Foundation. The Diyabakir Municipality is currently overseeing the restoration of the Cemil Pasha Mansion (Qonaxa Cemil Paşa), which will host the future city museum. This museum is intended to decidedly represent not only the city’s Kurdish past but aims to acknowledge other minority communities and their histories as well. The municipality has also granted the local Alevi Cemevi official status as a place of worship and hence logistical support entailing electricity, water and the like. Cebe emphasized that provisions for Kurdish as an elective or as offered in private schools without comprehensive structural support for Kurdish language education does not offer any real-life changes, not least by noting: “What good are these kinds of reforms as long as the Governor’s Office is not answering my letters.” Beyond the issue of language, Cebe’s statement points to the continued tension between centrally appointed governors and locally elected Kurdish representatives. For instance, in Turkey governors have some leeway to suppress arts and culture events at their own discretion, if they believe that the event may disturb the public order, be it in regard to morals, health, customs, or traditions, apart from the already mentioned perceived threats to national security and territorial integrity (similar discretionary powers also rest with the police that can intervene in art events without necessarily having to draw on the legal apparatus.) It is in the field of tension between the two levels of governance that restrictions on the freedom of expression in arts are frequently constituted in the Kurdish region.
One of the few municipal theaters in the Kurdish region, the Diyarbakir Municipal Theater (Diyarbakır Büyükşehir Belediyesi Şehir Tiyatrosu) has started to build up a Kurdish language repertoire from 2003 onwards and now is entirely performing in different Kurdish languages. Artistic director Rüknettin Gün recounts that before 2003 Turkish Security forces would function almost as unofficial “dramaturges” in that they wanted to see all scripts in advance and even attend rehearsals. Since the 2004 municipal elections, but even more so after those in 2009 that went to the BDP, the municipal theater has been free of such supervision and surveillance, at least officially. Unfortunately this is not the case for independent arts organizations. However, whenever the Diyarbakir Municipal Theater tours outside of Diyarbakir for guest performances in Dersim or Iğdır a mere four to five months ago, they remain subject to security checks and surveillance, unless the stage they are using is connected to a BDP municipality. This means that they still have to provide a synopsis of the play and relay ID information of all actors and support personnel in advance to the local authorities to receive a performance permit. Gün noted that by recording of the plays security forces “always make their presence felt.” While Diyarbakir Municipal Theater has not encountered any last minute cancellations during this year’s guest performances, our research showed that refusing previously promised spaces and venues remains a frequent tool in suppressing Kurdish artistic production throughout Turkey. [1]
Gün also clarified that their performance of Hamlet in Kurdish was a co-production with the Amsterdam-based Theater RAST and did not receive any support from the Ministry of Culture and Tourism. The play was performed in Ankara on the invitation of Ankara Arm of TAKSAV (Toplumsal Araştırmalar, Kültür ve Sanat İçin Vakıf, the Foundation for Social Research, Culture and Art) and that then Minister Ertuğrul Günay attended the performance along with other officials out of his own initiative.
The disjuncture between state institutions and local arts organizations was long mirrored by the Diyarbakir State Theater as well. Gün noted that the state theater did not pursue an organic connection with the city. However, its new director Uğur Çınar, who has previously worked in the Municipal Theater, is promising in terms of changing this policy. The Director General of the State Theater, Mustafa Kurt, has announcement that the state theater is thinking about establishing bilingual theater repertoires and that they are considering Diyarbakir for a pilot program. Although the legal reform packages of 2002 and 2004 had already lifted restrictions in language use there has been to date not state theater production in Kurdish. Even the often-cited performance of “Mem û Zîn” by the state theater in Van was actually staged in Turkish. While Gün too stated that hopes were tied to the current political process, he also noted that the latest reforms but legalize what has long been practiced in Diyarbakir and the region overall. This was also confirmed by Lal Laleş of Lis Publishing.
Filmmaker Zeynel Doğan highlighted how beyond direct state interventions, 30 years of armed conflict have produced a psychological toll on the Kurdish population that has also impacted artistic production. Resources to produce films reflecting daily experiences of Kurds remain limited. For instance, it is nearly impossible to visually portray or reenact scenes of military interventions, the destruction of entire villages, or even the customary ID controls in their actual scope as this would involve showing military and police vehicles. This is not an issue for mainstream Turkish productions, both in terms of budget but also with regard to permits and the cooperation of, for instance, the Turkish Armed Forces to provide tanks and similar machinery. The same is true for trying to reenact mass protests. Even filmic representation of these experiences on a small scale tend to draw attention by local security forces and end up in potential interventions.[2]
During the shooting of his 2012 film “Babamin Sesi (My Father’s Voice)” in Elbistan, rumors began to circulate that they were shooting a guerilla film. These rumors led to the Elbistan municipality withdrawing all support it had previously promised, and this although the project was funded by the Ministry of Culture and Tourism. Doğan recounts that they were under constant surveillance by plain cloth officers. While they did not explicit intervene in the shoot, their presence produced constant tension and discomfort on the set.
Members of the Dicle Fırat Culture and Arts Center likewise note that while physical violence has retreated into the background over the past decade, regular surveillance of their center and recording of their performance (i.e. procedures that are nothing short of harassment) continues to be part of their everyday lives. The kind of psychological stress inflicted by these experiences stays, as do some of their still unresolved court cases, mostly for performing songs like “Herne Pêş”[3] and taking part in rallies and Kurdish arts festivals, which have consistently been interpreted as illegal political expressions by the Turkish authorities. The see the recent steps of the government while in part positive as running the danger of merely instrumentalizing Kurdish artistic and cultural production.
Outside of Diyarbakir and other BDP municipalities however, we are confronted with an even more daunting picture. One of the most striking cases of censorship in the region has been that of 13 artists affiliated with Bahar Kültür Merkezi (NavenDa Canda Baharé) in Batman. Prosecuted by the 4. Diyarbakır High Criminal Court the artists’ “offenses” range from participating in the 2006 Batman Kültür Sanat Festivali, local Newroz celebrations, attendance of press conferences and supporting slogans by playing percussions at political rallies and demonstrations. Apart from being charged with ‘separatist propaganda’ or, alternatively, ‘being a member of a terrorist group,’ a number of artists were also convicted of several counts of transgression against law 2911, i.e. the regulations pertaining to freedom of assembly (Toplantı ve Gösteri Yürüyüşü Kanunu) opened against them in the past four years – a part of which is now in from of the appeals court.[4] The cases illustrate that all utterances by Kurdish artists can still be construed as unconstitutional political expressions rather than recognize the expressions as art and hence protected by Articles 27 and 64 of the Turkish Constitution.
Lawyer Mesut Beştaş explained that in accordance with the 3rd and 4th legal reform package a part of these verdicts has been deferred under the condition that the accused artists do not repeat the ‘offences’ with which they have been charged in the coming five years. This means that the 13 artists are de-facto on probation (denetimli serbestlik). According Beştaş the legal parameters of such a probationary decision are rather vague and their enforcement is left to the discretion of the individual judge rather than being based on clearly defined regulations. The decision of the court hence presents a measure of trying to discourage artists active in the Kurdish rights struggle from taking part in events that could be deemed political by the courts, and foreclose any kinds of expression produced on their part.
Beştaş explained that in these cases freedom of the arts was not accepted as a valid argument of the defense, as the courts interpret artistic expression not in its own right but rather as a vehicle “to become one with the masses that are taking part in an illegal demonstration,” or alternatively as a vehicle that motivates protestors in activities deemed unlawful by the courts. The generalized suspicion that artists engaged in the Kurdish rights struggle are faced with also becomes apparent in the raids conducted on the Bahar Cultural Center as parts of the recent KCK operations. If and what kind of changes will emerge from the “peace process” and the recent “democracy package” remains to be seen. Beştaş noted that the court of appeals rarely reviews cases unless there are substantial legal changes. According to his observations in over 90% of the cases the appeals court confirms the original verdict. It is also disconcerting that while the government has presented the steps taken in 2013 as path-breaking, practices of surveillance and prosecution not only remain in place. Abdullah Tarhan, who is a member of the board of directors of the Bahar Cultural Center and a theater artist by training, for instance, has incurred two new court cases this year: One because he took part in the 2013 Newroz celebrations in Van as a presenter and the other because he recited a poem by Cigerxwîn during an event in Batman. As the Bahar Cultural Center is incorporated as a private business the police is not authorized to conduct surveillance on the premises, yet all of their public performances continue to be recorded.
Despite the government’s proclaimed reform efforts, which were supposed to be illustrated by Erdoğan’s visit to Diyarbakir in November 2013 and to which Şivan Perwer and İbrahim Tatlıses were invited to perform not only in Turkish but also in Kurdish, the question remains what will happen to the convictions and pending cases of the many Kurdish artists who have been indicted over the past decade. This unevenness remains as the recent reforms thus far formalize, if only partially, what has been a hard-fought for practice in the Kurdish regions. Yet, some also expressed hope that Kurdish language proficiency was becoming a more sought after and financially rewarded skill, especially as state and private media (such as the Gülen-supported Dünya TV) are producing more and more Kurdish programming and TV serials. Some project that these developments will raise interest in learning Kurdish and extend its institutionalization. This institutionalization is needed, so the respondents, not least to ensure the viability of Kurdish heritage. Yet they are also very aware that relying on commercial value alone presents is a doubled-edged sword and emphasize that what is needed are constitutional provisions for education in mother-tongue and the protection of Kurdish cultural production in the framework of freedom of expression.
[1] See Siyahbant (Istanbul, 2012) and Siyahbant, Sanatta İfade Özgürlüğü, Sansür ve Hukuk >(Istanbul, 2013).
[2] This was the instance the case for directors Kazım Öz and Mizgin Müjde Arslan who along with members of their crew were taken into custody while working on their feature films (see “Batman’da Kürt Sinemacılara Gözaltı”, and “Kayıp Mezar’ı Önce Savcı Gördü”).
[3] A revolutionary Kurdish march based on the poem by Cigerxwîn.
[4] A compilation of available online news items.
This report on the effects of cultural policy and its effects on freedom of the arts was conducted by Siyah Bant with the support of the Friedrich Ebert Foundation. It is reproduced here with permission.
http://www.indexoncensorship.org/2014/02/developments-cultural-policy-effects-freedom-arts-ankara” title=”This article was published on 13 February 2014 at indexoncensorship.org”>This article was posted on February 13, 2014 at indexoncensorship.org
12 Feb 14 | Belarus, News and features
Join Index at a presentation of a new policy paper on media freedom in Belarus on 19 February, 2014, 15.00 at the Office for Democratic Belarus in Brussels.
This article is the third of a series based on the Index on Censorship report Belarus: Time for media reform.
Despite the constitutional guarantees and international obligations, Belarusian laws, by-laws and practices of their implementation seriously restrict the media freedom. The Law “On Mass Media” and practices of its implementation have negative effects on media diversity, including complicated procedure of compulsory registration of media outlets. The law can be used to push independent newspapers to the verge of being closed down. The procedure of accreditation and laws on state secrets are also used to restrict access to information.
Law “On mass media”
The Law “On Mass Media” was adopted in 2008 and came into force on 8 February 2009, despite concerns voiced by the Belarusian Association of Journalists and the office of the OSCE Representative on Freedom of the Media. Five years after the law came into force, the fears of civil society and international organisations have proved to be well-founded. In particular, the following provisions of the law have been assessed to be restrictive:
• new media outlets have to apply for permission to be registered, which is an impediment to the right of freedom of expression;
• the process of licensing of broadcast media is non-transparent;
• the process of accreditation restricts journalists’ access to information;
• activities of a media outlet can be suspended or cancelled on the basis of a court appeal by the Ministry of Information, with no regard to proportionality or freedom of expression; the process to cancel a broadcasting license is even simpler;
• the government of the country receives the right to regulate activities of “media that are distributed via internet”, although there is no definition of online media in the law.
Registration of media outlets
The compulsorily registration of the print media, which has a chilling effect of media freedom, is still used in Belarus.
Article 13 of the media law provides for obligatory registration of any printed publication with a circulation of more than 299 copies. The registration process in Belarus has two stages; it is necessary to register an editorial board as a legal entity, and then to apply for registration of a media outlet. The law is arbitrary and presents a barrier to new entrants to the media market.
Editors of new media outlets must have higher education and at least five years of experience as editor-in-chief of a registered media. This is an arbitrary provision that makes it difficult for new media outlets to establish themselves. There are also additional restrictions that the Ministry of Information imposed in its decrees No. 17 and 18 of 7 October 2009, although they are not provided for in the law. There is a general rule that a company that is a unitary enterprise can be registered at its founder’s home address. Editorial boards of mass media that are unitary enterprises don’t have such right as the Ministry of Information demands them to have separate offices in non-residential premises.38
In 2010-2012 the ministry of information issued 105 refusals to register new media outlets. “These are not draconian measures. We have the media law; we have always acted and will continue to act within the framework of this law,” commented Aleh Praliaskouski, the Minister of Information.
Newspapers with a circulation of less than 300 copies are not obliged to register, but their activities are also regulated and controlled by the state. Each publication with a circulation of more than ten copies has to send at least five copies to state regulatory bodies according to “an obligatory mailing list.” Moreover, state bodies, first of all public prosecutors’ offices, demand such small-circulation publication to register as legal entities, thus obliging them to rent offices, pay taxes and employ editors according to the rules of the ministry of information. On several occasions the local prosecutors’ offices has issued warnings to publishers of such small-circulation media. These restrictions contradict the approach set out by the United Nations Human Rights Committee that stated that the requirements for the obligatory registration for small-circulation publications that are not issued on a regular basis is excessive; it has chilling effect of freedom of expression and it cannot be justified in a democratic society.
Suspension and closing down of media outlets
Possibility of suspension and closure of media outlets is still a major problem despite changes in the law. The previous media law provided for a possibility to close down a media outlet by a court decision if the media violated Article 5 of the law at least twice within a year. Article 5 of the media law contained a list of ten particular violations that could lead to a court appeal against a media outlet.
In the new Law “On Mass Media” this article is omitted, but this is not necessarily an improvement. On the contrary, Article 51 of the present media law allows for the closing down of any media outlet after any two (or, in some cases, even after one) warning, issued by the ministry of information or a prosecutor’s office, for any infringement, even a minor one.
In 2010-2012 the ministry of information issued 180 official warnings to mass media; two of them, Narodnaya Volia and Nasha Niva, were on the verge of being closed down. The ministry withdrew its claims, but the legal framework that allows closing media outlets down is still in place.
Case study: Appeals against Narodnaya Volia and Nasha Niva
In 2011 the ministry of information appealed to the supreme economic court with a legal claim to close down two leading independent newspapers Narodnaya Volia and Nasha Niva.
Prior to the appeal the ministry issued three warnings to Nasha Niva. Two of them were issued for articles over the reaction of the Belarusian authorities to a Russian documentary called “God Batska” (a reference to the title of Francis Ford Coppola’s Godfather movie and a Belarusian word “batska” meaning “father”), in which president Lukashenko was criticised. The film was broadcast by the Russian NTV television channel in 2010-2011 to considerable public interest. One more warning was issued for an article about a bomb blast in the Minsk underground on 11 April 2011; according to the minister Aleh Praliaskouski, the reason for the warning was “improper coverage of the bombing.”
Narodnaya Volia received four official warnings before the appeal. The last one was issued for an article called “Goebbels-TV is on air” and was a critique of a highly sensationalist documentary broadcast by state television about events after the presidential election of 19 December 2010 in Minsk that accused the opposition of organising mass riots.
The newspapers appealed against the warnings and a court examination of their cases was postponed. While it was on hold, on 6 July 2011 the ministry of information issued one more warning to each of the two newspapers stating that Nasha Niva did not publish its subscription index in a single issue and that Narodnaya Volia had printed the wrong number of issues.
In July 2011 the Ministry of Information withdrew its court appeals to close the newspapers down. The decision to withdraw the appeal was arguably due to the significant public response to the case, including reactions from the international community. It is worth mentioning, that Narodnaya Volia and Nasha Niva were the two independent newspapers that were returned to the state press distribution systems in 2008; at that time it had been presented as a step forward by the authorities of Belarus in order to normalise their relations with the EU.
Despite the court appeals against the newspapers being withdrawn, each of the publication was fined 14 m roubles (about £1,800) for violation of Article 22.9 of the administrative code (“violation of the media legislation by a mass media outlet iteratively within a year after a previous written warning”).
Regulation of online media
While online media in Belarus are able to operate relatively freely, the authorities of the country reiterate their commitment to introduce tougher regulation for information websites to duplicate restrictions media face offline. It already resulted in restricting the access to several independent news websites that are included in an official black list.
Articles 11 and 17 of the media law provide for the registration of “mass media that are distributed via the internet global computer network” while giving space for the council of ministers to develop particular regulations. At the same time, the law provides no definition of online media. No governmental decree on the regulation of online media has ever been actually published, despite the law being in force for five years.
The current definition in the law allows the government to in theory consider many different types of websites as “mass media that are distributed via the internet global computer network”; including corporate websites that publish updates and personal blogs. Presidential decree No. 60 (On the Measures to Improve the Use of the National Segment of the Internet Network), signed on 1 February 2010, marked a new set of challenges to online free speech.
About 20 different by-laws and governmental decrees have been adopted since to regulate the implementation of different provisions of the decree No. 60. None of them specifically addresses online media outlets, but they influence activities of Belarusian websites. In particular, the present legislation provides for the following regulations:
• all Belarusian websites that provide services to citizens of Belarus must be moved to the national .by domain zone and be physically hosted on servers, located in the country;
• customers of internet cafes are obliged to register and present their passports before they can go online;
• internet service providers must identify all internet connections and store data about their customers and websites they visit; ISPs are also obliged to install technical system for search and surveillance in the internet, System for Operative Investigative Activities (SORM), that the police and security services officers have access to;
• “lists of limited access” of websites are introduced; the sites on the list are banned from access from computers at state bodies, educational institutions, public libraries, etc.
Governmental regulation of online media may be introduced in the near future. According to Belarus’s deputy information minister Dzmitry Shedko, “the most influential Belarusian websites may be given the mass media status.” The Deputy Minister stated in November 2013 a working group had been set up to address this issue. The ministry is taking a restrictive approach to regulation of online media. Only representatives of government agencies have been included in the working group. The deputy minister has argued the regulations are a necessity to make “the most popular and influential websites accountable for distributing any kind of information”, including a possibility of revocation of registration for breaking the regulations.
As Sedko reiterated in his letter to Index in November 2013, “at the moment the ministry of information is considering the issue in detail in order to elaborate an optimal decision to be suggested to the council of ministers.”
Independent media experts have noted that the proposals will not create additional opportunities for the journalists of online publications. In line with the practice of the current law, the regulation seems to be intended to introduce additional responsibilities for online media outlets to restrict their coverage in a similar manner to that of the printed press.
Possible media law reforms
The authorities of the country have been quite reluctant to discuss or implement recommendations on reforms of media-related legislation. Nor have there been changes to the implementation of the law to bring the practices of public bodies in line with international standards. In particular, the country’s officials have stated they do not recognise the mandate of the UN Special Rapporteur on the Situation of Human Rights in Belarus, Miklós Haraszti, and will not cooperate with him.
Dunja Mijatović, the OSCE Representative on Freedom of the Media, was able to make an official visit to Minsk in June 2013 and welcomed “the readiness of the authorities to intensify dialogue and co-operation with her office on much needed improvement of the media freedom situation.”
Still, the analysis presented in this policy paper shows the overall developments in the media field are no more positive than a few years ago. The authorities of Belarus show little sign of wishing to discuss reforms of the media field with civil society. Attempts by the Belarusian Association of Journalists to apply to the standing commission on human rights, national relations and mass media of the house of representatives of the national assembly to hold an open and public discussion on media-related laws and their implementation in Belarus were rejected. As was BAJ’s proposal to the national parliament to discuss reform of the media law with international experts, in particular the OSCE.
Andrei Naumovich, the chair of the standing commission, replied to BAJ on 15 February 2013, that all the suggestions were “considered in detail with the ministry of information.” According to the ministry, “at present the Law ‘On Mass Media’ functions stably, it allows solving current practical problems in activities of mass media, and fosters the advancing development of information field of the country.” Naumovich informed BAJ the parliamentary commission “considers initiating of amendments to the media laws to be unreasonable.”
Index on Censorship approached the ministry of information of Belarus in October and November 2013 to discuss media reform. The ministry did not reply to a request for a meeting in Minsk. The ministry responded in a letter with Shedko, deputy minister, stating that the ministry “conducts systematic analysis and monitoring” of implementation of media-related legislation in the country; it also “considers suggestions of citizens and legal entities on these issues” and “initiates amendments in the media law, when necessary” though gave no specific examples of this. In January 2014 Usevalad Yancheuski, the head of the principle ideological department of the presidential administration, informed BAJ that the ministry of information “is requested to invite representatives of journalistic organisations” to be involved in the work on possible amendements to the media law, but it has led to no particular steps so far.
Accreditation and state secrets laws as means of restriction of access to information
There are various ways in which access to information for journalists is restricted in Belarus. The main two of them are the accreditation of journalists and the use of secrecy laws.
The procedure of accreditation is understood by state bodies as a permission they are entitled to grant – or to reject – to a journalist for receiving official information from them.
Additional barriers to access to information are created by the laws on state secrets and state service. These laws contain vague and broad definitions of data that can be declared a state secret. More than 60 different state bodies and institutions have the right to attribute certain information to be a state secret; the list of organisations includes the ministry of information, the ministry of culture, the ministry of education, the National State Television and Radio Company and regional authorities. Loosely-defined provisions in these laws allow for the restriction of access to information of public interest by labelling certain data as a “state secret”.
Criminal defamation
Criminal defamation is chilling to freedom of expression. A prison sentence may lose a journalist their job, while a criminal record may make them unemployable in the future. Belarus continues to criminalise defamation, even though the UN special rapporteur on freedom of expression has called for its decriminalisation.
Six articles of the Criminal Code provide for criminal liability for libel and defamation, while offering additional protection to state officials, including the president of the country. These articles have been used against journalists. In July 2011 the journalist Andrzej Poczobut received a three-year suspended jail sentence for libelling the president. A year later he faced similar charges again. The journalist spent ten days in detention in June 2012. In 2013 the new criminal case against him was cancelled and all charges were dismissed.
A criminal case against the journalist Mikalay Petrushenka was initiated in 2012. He was charged with insult of a state official; his article for Nash-dom.info website allegedly contained “public insult” of a deputy head of Orsha local authority. Linguistic experts who analysed the text found no insulting words or expressions there; the case was dropped in October 2012.
Belarusian law provides not only for criminal, but also administrative and civil liability for defamation. It can be noted as a positive development that in recent years there have been no administrative or civil libel cases against media or journalists were initiated by Belarusian officials.
Anti-extremism laws used to put pressure on media and journalists
Anti-extremist legislation has been used in Belarus to curtail media freedom. The current law “On Counteraction to Extremism” came into force in 2007. It contains vague and ambiguous definitions of terms “extremism” and “extremist materials” that allow for its arbitrary implementation.
On 10 January 2011 the ministry of information cancelled the broadcasting license of Avtoradio for distribution of information that the ministry considered “public appeals for extremist activity” after the authorities broadcast an election appeal by opposition candidate Andrei Sannikov during the 2010 presidential elections. The appeal contained the phrase “the fate of the country is determined not in a kitchen, but on the square” a phrase the authorities deemed as an appeal to extremism. All attempts of Avtoradio to appeal against the decision were unsuccessful.
In October 2012 the authorities started a full-scale tax inspection of ARCHE magazine. The department of financial investigations blocked bank accounts of the magazine, thus making its further issuing impossible. In two pieces shown by state television Valery Bulhakau, the editor of ARCHE, was in fact accused of “dissemination of extremist literature”. That slander campaign forced Bulhakau to temporarily leave the country. Later the case was dropped.
Forty-one copies of Belarus Press Photo album were confiscated on 12 November 2012 by Belarusian customs officers on the border between Belarus and Lithuania. The KGB, state security committee, appealed to court with a request to consider the album to be “extremist material”. According to the KGB, the photos “reflect only negative aspects of life of the Belarusian people with authors’ personal insinuations” and thus they “humiliate citizens of Belarus” and “belittle the authority of the state power.” The publication that contained the best press photos by Belarusian photo reporters was considered extremist by Ashmiany District court on 18 April 2013; all the confiscated copies of the album were destroyed. In September 2013 the ministry of information cancelled the publishing license of Lohvinau Publishing House which was the publisher of Belarus Press Photo album. The publisher appealed against the decision, but in November 2013 the supreme economic court of Belarus upheld the decision by the mnistry of information to cancel the licence of the Lohvinau Publishing House.
Other laws are also used to persecute journalists for their legitimate professional activities. In August 2012 Anton Suriapin, a journalism student, was charged with assisting an illegal crossing of the Belarusian border. He had posted photos on his blog of teddy bears dropped by parachute over Belarus by a Swedish PR firm to protest over the lack of media freedom in the country. He was arrested and detained by the KGB for more than a month, but later released. On 29 June 2013 the KGB announced that a criminal case against Anton Suriapin was dropped, and he was cleared of all charges.
Recent years have seen no improvements of the media-related legislation in Belarus, despite continuous calls for reforms from civil society of the country and international community. The media law remains restrictive; it fails to foster the development of pluralistic and independent news media through a complicated procedure of compulsory registration of new media outlets and possibilities for the state to close down existing media even for minor infringements. The authorities clearly look into expanding the restrictive regulation to online news media, while access to some independent websites is already restricted in Belarus. The procedures of journalists’ accreditation and laws on state secrets are used to restrict access to information. Criminal defamation and anti-extremist laws are used to curtail free speech. Despite the recent talks between Belarus’s Foreign Ministry and the Office of the OSCE Representative on Freedom of the Media, the authorities of the country remain reluctant even to discuss any possible legal reforms of the media field with civil society.
Media-related legal framework: Recommendations
The Law “On Mass Media” must be reformed, in particular:
• to secure independent self-regulation of journalism, allowing reporters of both online and offline news media, including freelance journalists, to operate freely;
• registration procedures for new media outlets should be simplified to lift all the artificial restrictions for entering the media market;
• a possibility of extrajudicial closing down of media should be eliminated; the Ministry of Information should not have the authority to impose sanctions on media, including initiating of cases of closure of media outlets.
Six articles of the Criminal Code providing for criminal liability for defamation should be abolished:
• Article 188 “Libel”
• Article 189 “Insult”
• Article 367 “Libel in relation to the President of the Republic of Belarus”
• Article 368 “Insulting the President of the Republic of Belarus”
• Article 369 “Insulting the representative of the authorities”
• Article 369–1 “Discrediting the Republic of Belarus”
Equal and full access to information should be ensured for all journalists of both online and offline media. The institute of accreditation should not be used to restrict the right to access information. In particular, the existing ban for cooperation with foreign media without an accreditation should be lifted as it contradicts the Constitution of Belarus and its international commitments in the field of freedom of expression.
Several provisions of the presidential Decree No 60 of 1 February 2010 on regulating the internet should be dropped in line with the recommendations in “Belarus: Pulling the Plug“, along with various other edicts related to the implementation of the decree. In particular, owners of websites should be free to register them at any domain and host them in any country. News websites should not be black-listed and blocked.
Part 1 Belarus: Europe’s most hostile media environment | Part 2 Belarus: A distorted media market strangles independent voices | Part 3 Belarus: Legal frameworks and regulations stifle new competitors | Part 4 Belarus: Violence and intimidation of journalists unchecked | Part 5 Belarus must reform its approach to media freedom
A full report in PDF is available here
This article was published on 13 February 2014 at indexoncensorship.org
