MEMORANDUM

on

the Draft Law for the Republic of Belarus “On Television and Radio Broadcasting”

(Draft by the Belarusian Association of Journalists)

by

ARTICLE 19 Global Campaign for Free Expression

London

November 2004

I. Introduction This Memorandum examines the draft law “On Television and Radio Broadcasting” for Belarus (“Draft Law”), produced by the Belarusian Association of Journalists. The authors of the Draft Law include lawyers and journalists and it has been prepared in an effort to introduce a more democratic broadcasting system in Belarus. Our analysis is based on a translation of the Draft Law.1 The Draft Law proposes to supplement the few existing provisions relating to television and radio contained in the law “On the Press and Other Mass Media” (“Law on Mass Media”). It guarantees in general terms the freedom to obtain and disseminate information, and affirms the goal of providing, by means of broadcasting, information responsive to the interests of users. It guarantees that provisions of international agreements which Belarus has ratified shall prevail over inconsistent provisions of national legislation. It prohibits censorship of television and radio broadcasting, and creates an Advisory Monitoring Council on Television and Radio Broadcasting, responsible, among other things, for issuing licences for broadcasters and “permissions” for cable broadcasting, for overseeing compliance with licence 1 ARTICLE 19 accepts no responsibilities for errors or inaccuracies in the analysis below attributable to mistranslation.

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conditions, and for fielding and investigating complaints. The Council is intended to be independent of government, to reflect the diversity of the Republic’s population and to have pertinent expertise. Additionally, the Draft Law envisages the transformation of the current National State Television and Radio Company into a public service broadcaster, responsible for providing impartial and fair information on the activities of public bodies, and for reflecting the different viewpoints represented by the various groups living in the Republic. ARTICLE 19 very much welcomes the spirit of these provisions and believes that the Draft Law generally sets the stage for substantial progress in broadcasting for the country. At the same time, the Draft Law has various shortcomings and problems which need to be addressed if it is to comply fully with international standards in this area, and if it is to be in line with best practice in the field. For example, while the independence of the Council is promised, the Draft Law lacks sufficiently detailed mechanisms – both as to the appointment of Council members and as to its day-to-day functioning – to ensure its independence in practice. Few details are provided as to how licence competitions are to be run or as to what criteria the Council is to use to award licences. Of particular concern is the Draft Law’s deference to other laws at critical points: to the Law on Mass Media for grounds for the revocation of licences and permissions, to the Republic’s anti-monopoly legislation relating to the need to ensure against monopolisation of broadcasting, and to the Republic’s election legislation for rules relating to how broadcasters are to cover elections. At least some of these laws fail to conform to international standards and, as a result, it would be preferable for the Draft Law to set out its own rules in the relevant areas. This Memorandum will analyse critical provisions of the Draft Law against international standards in broadcast regulation, and will make recommendations for improvements. Two documents will be relied on in particular in the analysis: Council of Europe Recommendation No. (2000)23 on the independence and functions of regulatory authorities for the broadcasting sector (“the Council of Europe Recommendation”),2 and ARTICLE 19’s Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation (“Access to the Airwaves”).3 The former represents standards developed under the Council of Europe system while the latter takes into account wider international practice, including under United Nations mechanisms, as well as comparative constitutional law and best practice in countries around the world. This Memorandum first outlines Belarus’ international and constitutional obligations, emphasising the importance of freedom of expression and its implications with regard to broadcast regulation, before providing a substantive assessment of the Draft Law against those obligations.

2 Adopted by the Committee of Ministers on 20 December 2000. 3 London, April 2002.

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II. International and Constitutional Guarantees Article 19 of the Universal Declaration on Human Rights (UDHR),4 a United Nations General Assembly Resolution, guarantees the right to freedom of expression in the following terms:

Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The UDHR is not directly binding on States but parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since its adoption in 1948.5 The International Covenant on Civil and Political Rights (ICCPR),6 a legally binding treaty which Belarus ratified in 1976, guarantees the right to freedom of opinion and expression in very similar terms to the UDHR, also at Article 19. Freedom of expression is also guaranteed by the European Convention on Human Rights (ECHR),7 as well as the other two regional systems for the protection of human rights, at Article 13 of the American Convention on Human Rights8 and Article 9 of the African Charter on Human and Peoples’ Rights.9 Article 33 of the Constitution of the Republic of Belarus guarantees “free expression”, and also specifically prohibits the “monopolisation of the mass media by the State, public associations or individual citizens”. In addition, Article 34 of the Constitution guarantees to all citizens the “right to receive, store, and disseminate … information on the activities of state bodies and public associations, on political, economic, and international life, and on the state of the environment”.

II.A Broadcasting Freedom The guarantee of freedom of expression applies with particular force to the media, including both private and public broadcasters. The participating States of the Organisation for Security and Co-operation in Europe (OSCE), including Belarus, have stated their commitment “to ensuring the freedom of the media as a basic condition for pluralistic and democratic society”.10 Again, these States have reaffirmed “the importance of independent media and free flow of information” and have committed themselves to “ensur[ing] the basic conditions for free and independent media and unimpeded transborder and intra-State flow of information, which we consider to be an essential component of any democratic, free and open society”.11 The European Court of Human Rights has consistently emphasised the “the pre-eminent role of the press in a State governed by the rule of law.” 12 It has further stated: 4 UN General Assembly Resolution 217A(III), adopted 10 December 1948. 5 See, for example, Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit). 6 UN General Assembly Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976. 7 ETS Series No. 5, adopted 4 November 1950, in force 3 September 1953. As of 7 July 2003. 8 Adopted 22 November 1969, in force 18 July 1978. 9 Adopted 26 June 1981, in force 21 October 1986. 10 Istanbul Summit Declaration, para. 27, adopted at OSCE Istanbul Summit (1999). 11 Charter for European Security, para. 26, adopted at the OSCE Istanbul Summit (1999). 12 Thorgeirson v. Iceland, 25 June 1992, Application No. 13778/88, para. 63.

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Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.13

This applies particularly to information which, although critical, is important to the public interest:

The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest [footnote deleted]. In addition, the court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.14

This does not imply that the broadcast media should be entirely free and unregulated; Article 10 of the ECHR, for example, states that the right to freedom of expression “shall not prevent States from requiring the licensing of broadcasting … enterprises”.

II.B Regulatory bodies Any bodies which exercise regulatory or other powers over broadcasters, such as broadcast authorities or boards of publicly-funded broadcasters, must be independent. This principle has been explicitly endorsed in a number of international instruments, including the Charter for European Security just quoted (reaffirming the importance of “independent media”), as well as the Council of Europe Recommendation. Central to this idea is that regulatory bodies should be established in a manner which minimises the risk of interference in their operations, for example through an open appointments process designed to promote pluralism, and which includes guarantees against dismissal and rules on conflict of interest.15 Chapter II of the Appendix to the Council of Europe Recommendation states:

3. The rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests. 4. For this purpose, specific rules should be defined as regards incompatibilities in order to avoid that:

- regulatory authorities are under the influence of political power; - members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors, which might lead to a conflict of interest in connection with membership of the regulatory authority.

5. Furthermore, rules should guarantee that the members of these authorities:

13 Castells v. Spain, 24 April 1992, Application No. 11798/85, para. 43. 14 Fressoz and Roire v. France, 21 January 1999, Application No. 29183/95 (European Court of Human Rights), para. 45. 15 Articles 3-8 of the Council of Europe Recommendation; Principle 13 of Access to the Airwaves.

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- are appointed in a democratic and transparent manner; - may not receive any mandate or take any instructions from any person or body; - do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them.

6. Finally, precise rules should be defined as regards the possibility to dismiss members of regulatory authorities so as to avoid that dismissal be used as a means of political pressure. 7. In particular, dismissal should only be possible in case of non-respect of the rules of incompatibility with which they must comply or incapacity to exercise their functions duly noted, without prejudice to the possibility for the person concerned to appeal to the courts against the dismissal. Furthermore, dismissal on the grounds of an offence connected or not with their functions should only be possible in serious instances clearly defined by law, subject to a final sentence by a court. 8. Given the broadcasting sector’s specific nature and the peculiarities of their missions, regulatory authorities should include experts in the areas which fall within their competence.

Principle 10 of Access to the Airwaves notes a number of ways in which the independence of regulatory bodies should be protected:

Their institutional autonomy and independence should be guaranteed and protected by law, including in the following ways:

• specifically and explicitly in the legislation which establishes the body and, if possible, also in the constitution;

• by a clear legislative statement of overall broadcast policy, as well as of the powers and responsibilities of the regulatory body;

• through the rules relating to membership; • by formal accountability to the public through a multi-party body; and • in funding arrangements.

These same principles are also reflected in a number of cases decided by national courts. For example, a case decided by the Supreme Court of Sri Lanka held that a draft broadcasting bill was incompatible with the constitutional guarantee of freedom of expression. Under the draft bill, the Minister had substantial power over appointments to the Board of Directors of the regulatory authority. The Court noted: “[T]he authority lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought.”16

II.C Pluralism An important aspect of States’ positive obligations to promote freedom of expression and of the media is the need to promote pluralism within, and to ensure equal access of all to, the media. As the European Court of Human Rights stated: “[Imparting] information and ideas of general interest … cannot be successfully accomplished unless it is grounded in the principle of pluralism.”17 The Inter-American Court of

16 Athukorale and Ors. v. Attorney-General, 5 May 1997, Supreme Court, S.D. No. 1/97-15/97, (1997) 2 BHRC 610. 17 Informationsverein Lentia and Others v. Austria, 24 November 1993, Application Nos. 13914/88, 15041/89, 15717/89, 15779/89, 17207/90, para. 38.

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Human Rights has held that freedom of expression requires that “the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media.”18 This implies that the airwaves should be open to a range of different broadcasters and that the State should take measures to prevent monopolisation of the airwaves by one or two players. However, these measures should be carefully designed so that they do not unnecessarily limit the overall growth and development of the sector. The obligation to promote media pluralism incorporates both freedom from unnecessary interference by the State, as well as the need for the State to take positive steps to promote pluralism.19 Thus, States may not impose restrictions which have the effect of unduly limiting or restricting the development of the broadcasting sector and, at the same time, States should put in place systems to ensure the healthy development of the broadcasting sector, and that this development takes place in a manner that promotes diversity and pluralism.

III. Analysis of the Draft Law

III.A Outline of Law Article 4 of the Draft Law recognises the general right of citizens to impart and receive information, and it prohibits censorship in the sphere of broadcasting. The resulting freedom of expression for broadcasters is limited only by restrictions which “are prescribed by law and are necessary in the democratic society for protection of rights and legal interests of other persons, in the interest of state security, public order and morals of the population”. Article 2 requires broadcasters (except cable broadcasters) to obtain licences (cable broadcasters are only required to obtain “permissions”); the licensing system is to be administered by an Advisory Monitoring Council on Television and Radio Broadcasting (“Council”) through a series of competitions. Article 18 sets out the rules pertaining to licence applications and Article 23 sets out the grounds for the “annulment” of licences. Article 25 sets out a system of obtaining “permissions” from the Council for cable broadcasting. Section 5 of the Draft Law concerns the creation, composition and activities of the Council. An effort is made to ensure the independence and expertise of individual members of the Council, and of the Council itself. Articles 28 and 29 set out the Council’s duties and responsibilities, including the granting of licences and permissions, monitoring compliance, and considering complaints. Finally, Article 32 provides for the transformation of the National State Television and Radio Company into a “non-commercial broadcasting organisation” – which is to say, a public service broadcaster.

III.B Types of Broadcasters Article 13 provides that public broadcasters are a subspecies of non-commercial broadcasters, themselves defined as broadcasters not having as their basic aim the “derivation of profit”. A public broadcaster is characterised, if not quite defined, as a non-commercial broadcaster whose “basic directions of activity” include the provision

18 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, November 13 29, 1985, Inter-American Court of Human Rights (Ser.A) No.5 (1985), para. 34. 19 See Principle 3 of Access to the Airwaves.

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of “fair and impartial information” relating to public bodies and also to the political, economic and social life of the country; the depiction of the various views held by persons and groups; the carrying out of public discussions; education; representation of minorities; and so on. Article 13(4) provides that the establishment and activity of public broadcasters “shall be determined by the Law “On Public Television and Radio Broadcasting”. Particularly importantly, Article 32 provides for the reorganisation of the National State Television and Radio Company into a non-commercial broadcaster which will “carry out … the functions of the public broadcasting organisation envisaged by this Law”. Analysis Explicit recognition by the Draft Law of public broadcasters, and their general characterisation as broadcasters serving vital informational services for all sectors of the population, including potentially marginalised minority groups, is very welcome. We are informed, in this case, that there does not exist at present a Law “On Public Television and Radio Broadcasting” and that the reference to such law in Article 13(4) is an effort to acknowledge that a general broadcasting law needs to be supplemented with a law specifically devoted to public broadcasters. We note a potential ambiguity in the Draft Law and a consequent policy choice that it may necessitate. Article 13(2) appears to require that public broadcasters ensure their coverage is impartial, reflects the diversity of viewpoints existing in the country and so on. Such obligations are perfectly appropriately imposed on public broadcasters created by statute and supported by public moneys. However, as the term ‘public broadcasting organisation’ is not fully defined by the Draft Law, the possibility exists that certain private, albeit non-profit, broadcasters, such as community broadcasters, might qualify as public broadcasters and as such may be subject to the content requirements imposed by Article 13(2). There is no firmly established position internationally on the propriety of imposing such content restrictions on certain private broadcasters. At the same time, there is always the possibility of abuse of such restrictions, a risk that is far from remote in the Belarussian context. We therefore urge the drafters to consider this matter and, in particular, to consider whether they do not wish to define public broadcasters more clearly and narrowly so that private, non-profit broadcasters are clearly excluded from its scope. Article 32, as far as it goes, is very welcome, providing as it does for the transformation of the national state broadcaster into a public broadcaster. We assume, moreover, that the envisaged law on “On Public Television and Radio Broadcasting” will be the legislative place in which the detail required for this transformation would be set out in detail. In view of the fact that this law does not yet exist, it is well to point out the sort of detail that will be needed. It is essential that public broadcasters, like regulatory bodies, be independent, in the sense of being protected against political or other interference with their editorial independence. As noted in a Recommendation of the Council of Europe:

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The legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy….20

Such a broadcaster must be adequately funded by a means that protects the broadcaster from arbitrary cuts with their budgets or interference with their programming policy. As the Council of Europe has stated:

The following principles should apply in cases where the funding of a public service broadcasting organisation is based either entirely or in part on a regular or exceptional contribution from the state budget or on a licence fee:

- the decision-making power of authorities external to the public service broadcasting organisation in question regarding its funding should not be used to exert, directly or indirectly, any influence over the editorial independence and institutional autonomy of the organisation;

- the level of the contribution or licence fee should be fixed after consultation with the public service broadcasting organisation concerned, taking account of trends in the costs of its activities, and in a way which allows the organisation to carry out fully its various missions;

- payment of the contribution or licence fee should be made in a way which guarantees the continuity of the activities of the public service broadcasting organisation and which allows it to engage in long-term planning;

- the use of the contribution or licence fee by the public service broadcasting organisation should respect the principle of independence and autonomy mentioned in guideline No. 1;

- where the contribution or licence fee revenue has to be shared among several public service broadcasting organisations, this should be done in a way which satisfies in an equitable manner the needs of each organisation. The rules governing the funding of public service broadcasting organisations should be based on the principle that member states undertake to maintain, and where necessary, establish an appropriate, secure and transparent funding framework which guarantees public service broadcasting organisations the means necessary to accomplish their missions.21

Additionally, and as is recognised to a considerable degree by the Draft Law, the remit of public broadcasters of the sort envisaged by the reorganisation of the current State broadcaster should be defined clearly. In the words of Access to the Airwaves, the remit should include, among other things, providing a service that:

• provides quality, independent programming which contributes to a plurality of opinions and an informed public;

• includes comprehensive news and current affairs programming, which is impartial, accurate and balanced;

• provides a wide range of broadcast material that strikes a balance between programming of wide appeal and specialised programmes that serve the needs of different audiences;

• is universally accessible and serves all the people and regions of the country, including minority groups;

• provides educational programmes and programmes directed towards children; and

20 Recommendation No. R (96)10 of the Committee of Ministers of the Council of Europe on the guarantee of the independence of public service broadcasting, adopted 11 September 1996, Appendix, Part I. 21 Ibid., Appendix, Part V.

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• promotes local programme production, including through minimum quotas for original productions and material produced by independent producers.22

Recommendations: • Consideration should be given to defining a public service broadcaster more clearly

in the Draft Law so as to make it clear that private, non-profit broadcasters are not included.

• Care should be taken to ensure that any new public service law protects the independence of the public broadcaster, ensures that is has adequate and protected funding and sets out clearly its public service mandate.

III.C Members of the Advisory Monitoring Council Article 26 of the Draft Law governs the creation and composition of the Council. It is to be comprised of 15 members, selected by Parliament “on the alternative basis”. Candidates, according to Article 26(2), are to be proposed by a range of individuals and institutions, including the President, the government, Parliament, the Constitutional Court, “non-political public associations” and “creative unions”. Members should include the most authoritative public figures who are experts in broadcasting and all members should have “unimpeachable reputations and high moral-ethical qualities”. Article 26(4) prohibits any “high ranking official”, any member of the armed forces or any person participating in the administration of a broadcaster from serving as a member of the Council. And Article 26(7) provides that the grounds for termination of the powers of the Chairperson and of any member (prior to the expiration of their term) are to be established by regulations approved by Parliament. Article 26(3) provides that the Council is to reflect plurality; it is to be committed to the protection of the rights of minorities and it is to represent the “collective … interests of the society”. Article 26(5) prohibits any person nominated for membership by any public body from having a “paid position” on the Council; by terms, this prohibition is compatible with such person having an unpaid position. Terms of office for the Council are 7 years; the Draft Law is silent as to whether terms are renewable. Analysis We welcome the effort to create a Council in an open and democratic way. Equally, we welcome the effort to ensure that the Council is comprised of a representative cross-section of Belarussian society, each member of which is highly qualified. Despite the worthiness of these goals, the provisions of Article 26 fail to conform fully to international standards in a number of different ways. First, while it is positive that the Draft Law seeks to have input for the putting forward of candidates from a variety of different sources (including creative unions and non-political public associations), there is also the potential for considerable input from individuals and bodies which are highly political in nature, including the President and

22 Access to the Airwaves, Principle 37.

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the government. Moreover, and related, Article 26(2) does not in any way indicate how many candidates may be put forward by which individuals or entities, and therefore does not guarantee, for example, that any candidate put forth by civil society will ever make it onto the Council. Under these circumstances, the article is at least compatible with the Council’s ending up having as members only persons favoured by the political elite in the country – with the inevitable result that it will be, rather than an independent body, a political body, with improper allegiance to the existing power structures. To remedy this situation, serious consideration should be given to specifying that a certain percentage of candidates, preferably at least 50%, should be put forward by civil society, and the Draft Law should ensure that some such candidates be elected as members. For example, it might be stipulated that different pools of candidates be forwarded to the Parliament – a pool of candidates put forward by creative unions, another pool put forward by public associations – and that Parliament is obligated to select a certain number of candidates from each pool. Only in some such way will the Draft Law’s commitment to having a Council that “provides plurality … and collective representation of interests of the society as a whole” be realised. A second point concerns something left out of the Draft Law altogether. While the Draft Law recognises that “high-ranking” public officials, military persons and persons affiliated with broadcasters should be disqualified from candidacy, there are other categories of persons who should be similarly disqualified. A complete set of rules of incompatibility is important, as the Council of Europe Recommendation makes plain, in part in order to “avoid that regulatory authorities are under the influence of political power”.23 In particular, anyone who “is employed in the civil service or other branches of government” or who, “holds an official office in, or is an employee of a political party, or holds an elected or appointed position in government” should excluded from consideration for membership on the Council.24 This applies, therefore, not only to “high-ranking” officials, but to any elected or appointed official. Additionally, we recommend that persons who have “been convicted, after due process … of a violent crime, and/or a crime of dishonesty unless five years have passed since the sentence was discharged” be disqualified as potential Council members.25 Third, it is very problematic that the grounds for termination are left for development in to-be-promulgated regulations. The independence of the Council depends fundamentally on members’ being secure in their tenure; otherwise, as the Council of Europe Recommendation explains, “dismissal [might] be used as a means of political pressure”.26 Unless such grounds are set out clearly in the law, those responsible for promulgating regulations may put forward criteria for termination which favour the status quo or which otherwise allow for members to be terminated on political grounds, which is clearly inappropriate. Accordingly, we strongly recommend that the Draft Law clearly set out an exhaustive set of termination conditions. They should include all, but only, the following, namely that the member (a) no longer meets the rules of incompatibility; (b) commits a serious violation of his or her responsibilities, 23 Council of Europe Recommendation, Explanatory Memorandum, para. 16. 24 See Access to the Airwaves, Principle 13.3. 25 Access to the Airwaves, Principle 13.3. 26 Council of Europe Recommendation, Appendix, para. 6.

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as set out in the law, including through a failure to discharge those responsibilities; or (c) is clearly unable to perform his or her duties effectively.27 Additionally, we recommend the addition of a provision allowing for the possibility of appeals to the courts against dismissal. Fourth, the restriction on the holding of paid Council positions only for those members who are nominated by public bodies strikes us as anomalous, not to say discriminatory. Provided that such persons meet all the qualifications for membership (including satisfying the rules of incompatibility, mentioned above), there is no reason for their being treated differently from other members of the Council, including with respect to any remuneration. Finally, the Draft Law should explicitly set out whether the Council members may be re-appointed for a second term. To avoid the possibility of inappropriate entrenchment, we would recommend that in no circumstance should a person be able to serve more than two terms as a Council member.28 Recommendations:

• An appointment mechanism for members of the Council should be put into place which guarantees that a certain percentage of those persons put forward by civil society are appointed to the Council.

• The set of rules of incompatibility should be enlarged in line with the detailed suggestions in the text.

• Clear termination conditions should also be set out in the Draft Law, along the lines indicated in the text.

• The restriction on payment for those Council members put forth for membership by public bodies should be removed.

• The Draft Law should specify if members may serve a second term and it should also specify that no member may serve more than two terms.

III.D Independence of the Council Article 26(7) provides in part that guarantees of the independence of the Council are to be determined by Regulations. Article 27(1) prohibits “interference in the activity” of the Council, while Article 27(2) prohibits the “giving of instructions” to the Council with respect to its activities, by “[p]ublic bodies, bodies of local self-government, political parties and other public associations as well as other legal entities and individuals”. Analysis These are very positive provisions of the Draft Law, setting out as they do a clear legislative commitment to the independence of the Council. Of concern here is not this clear commitment but rather certain gaps in the Draft Law’s coverage which may, de facto, threaten such independence.

27 Council of Europe Recommendation, Explanatory Memorandum, para. 22. 28 We are not informed as to the precise meaning of the phrase “on the alternative basis”, as it figures in the way in which Council members are selected by Parliament. We assume that this method comports with basic principles of democratic selection; to the extent that this assumption is mistaken, we would strongly recommend appropriate adjustments to the Draft Law.

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Perhaps most important, there appears to be nothing in the Draft Law relating specifically to how the Council is to be funded. It is quite clear both from the Council of Europe Recommendation and from Access to the Airwaves that funding, like appointments, must be protected against political interference. The former states:

9. Arrangements for the funding of regulatory authorities – another key element in their independence – should be specified in law in accordance with a clearly defined plan, with reference to the estimated cost of the regulatory authorities’ activities, so as to allow them to carry out their functions fully and independently.

10. Public authorities should not use their financial decision-making power to

interfere with the independence of regulatory authorities. Furthermore, recourse to the services or expertise of the national administration or third parties should not affect their independence.

11. Funding arrangements should take advantage, where appropriate, of

mechanisms which do not depend on ad-hoc decision-making of public or private bodies.29

We strongly recommend that the Draft Law include stipulations relating to funding along the above lines. Relatedly, the Draft Law also does not provide explicitly for reimbursements to and payments for Council members. As noted in Access to the Airways, clear rules should be developed here; rules which eliminate the possibility of discretion in relation to payments for individual members and which prohibit members from accepting funds relating to their Council work which are not funds provided by law for that purpose.30 It is not quite clear to us what is envisaged in the called-for regulations relating to guarantees of independence. Given the importance of such independence, however, it is not appropriate for this to be left up to regulations. As with grounds for termination, this may then by subject to political manipulation. It would, therefore, be preferable for any envisaged guarantees of independence to be included directly in the Draft Law. Another important point relating to independence concerns accountability. While the Draft Law appears to protect the Council from interference from outside, it does not guarantee against cases where members themselves abandon their own commitment to independence – for whatever reasons, including perhaps their own ambition to ingratiate themselves to the political elite. To guard against this kind of threat to the Council’s independence, we would welcome provisions requiring the Council regularly to publish information – reports and other materials – describing in detail its activities. Oversight of the Council’s work by a multi-party body, such as at parliament or a sub-committee thereof, would also be a welcome addition.31 Recommendations: • An adequate source of funding for the Council should be established by the Draft

Law, along with other pertinent funding provisions, as described above, to ensure against political interference through funding.

29 Council of Europe Recommendation, Appendix, paras. 9-11. 30 Access to the Airwaves, Principle 13.6. 31 Access to the Airwaves, Principle 10.

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• The Draft Law should set out clear rules on reimbursements and payments for Council members.

• Council members should be prohibited from receiving any funds in connection with their functions other than those provided for by law.

• The Draft Law should set out directly all measures to ensure independence, rather than leaving these to subsequent regulation.

• The Draft Law should adopt measures to ensure that the Council’s activities are open to public view and are reviewed by an oversight body.

III.E Powers of the Council

III.E.a Granting of Licences Article 17 of the Draft Law imposes a licensing requirement on most broadcasters, to be administered by the Council with the aim of “providing rational distribution and employment of the radio-frequency spectrum”. Licences are to be awarded based on competitions. Article 24 exempts from the licence requirement cable (or wire) broadcasters (which broadcasters are subject to a “permissions” regime),32 and also all broadcasting “through digital computer and other networks”. By the latter, we understand that communication by Internet is exempted from the licence requirement. Article 25 exempts from even a permission requirement broadcasters where the “number of receiving devices of the broadcasting network does not exceed ten”, and cases where the effective reception zone for the broadcast is limited to buildings where a single legal entity is located. Article 18 indicates which materials must be included in a licence application, including information on the name of the broadcaster, its founders, the programming conception, languages of broadcast, reception zone, time periodicity and scope of broadcasting, and the location of transmission devices. It is stipulated that submissions which do not meet these requirements “shall not be eligible for consideration”. Article 19 provides that the Council is to develop the “terms of the competition”, which it must publish. This article sets out various criteria, including “technical facilities for broadcasting, contribution of applicants into the diversity of broadcasting programmes, and the share of personal output in their programmes”, which are to “be taken into account in the course of the competition”. Denials of licence applications must be accompanied by reasons (Article 21(2)) and may be appealed to the courts (Article 21(3)). Article 20(2) provides that a licence fee “in the amount determined by the Government” will be applicable.

32 Article 25 imposes an obligation on “cable (wire) television and radio broadcasting” to obtain “permissions” from the Council, for which applicants need not enter competitions. Applicant materials include proof of registration, “constituent” organisational documents, resolutions of the “local executive-administrative body regarding the setting up of the cable (wire) network” as well as other documents prescribed by the Council.

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Licences may be denied, according to Article 21, inter alia, where a putative founder may not act as founder under the terms of the Draft Law.33 Finally, Article 22 provides that a licence is valid for seven years and that extensions of the validity period “shall be carried out in the order envisaged in provisions for its issuing”. Analysis The commitment in Article 17 to a “rational” distribution of frequencies is welcome. It is vital, however, that rather more specific guidance be provided as to how frequencies are to be allocated, specifically via the development of a frequency plan. The development of this plan should be open and participatory; in the event that it is not the Council itself that develops the plan, it should at least have some oversight role, in order to ensure against political and commercial interference.34 As part of that plan, the Draft Law should specify that appropriate frequencies shall be reserved for public service broadcasting.35 While the information required in Article 18 for licence applications is unproblematic as far as it goes, we strongly recommend that a business plan be a further requirement, including information, among other things, as to the organisation’s structure and capital.36 It is clear that, at least for certain broadcasting enterprises (but not necessarily for all), considerable capital is required for the development of infrastructure and other matters. Given that the broadcast spectrum is limited, it is important that frequencies be allocated only to those organisations which will in fact will be able to use them effectively in the public interest. Further, with respect to Article 18, we recommend that, where an organisation has submitted a licence application which suffers only minor technical defects which could be easily remedied, the Council provide the organisation with the opportunity to cure such defects and that if such defects are cured, the application not be summarily judged to be ineligible for consideration. Article 19 does establish that the terms of licence competitions are to be published in the mass media but very little detail as to what is to be contained in such announcements can be gleaned from the Draft Law. Yet, as the Council of Europe Recommendation makes clear, such announcements should contain considerable salient information relating to the proposed licence. Such information should include, in the words of the Recommendation:

criteria, such as the type of service being offered for exploitation, the content and minimum duration of the programmes to be provided, the geographical coverage

33 Other grounds for denial are if the application has been submitted less than one year after a court has revoked a previous licence for the same entity and if the “application did not find a support within the competitive commission on the terms of the competition”. The second condition is unobjectionable, as is the first, subject to our remarks below on the potential applicability of the Law on Mass Media. 34 Access to the Airwaves, Principle 9.2. 35 As noted, the Draft Law contemplates the development of a law specifically relating to public broadcasting. We note here that public broadcasters should not need to compete for a licence. 36 See Council of Europe Recommendation, Explanatory Memorandum, para. 37.

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of the service, the type of funding, any licensing fees and the technical parameters to be respected.37

Article 20(2), providing for a licence fee but not specifying a schedule for such fees, is open to abuse: nothing in the article prevents fees being assessed differentially and potentially in a discriminatory fashion. Accordingly, we recommend that the Draft Law clarify that a schedule of fees be prescribed, pursuant to which similar broadcasters will pay similar fees. It would be preferable for such a schedule to be drawn up by the Council, although it may also be legitimate for the government to undertake this task. The Draft Law should also specify that fees must be assessed in a non-discriminatory manner.38 Article 22 poses a particular problem, which may however simply be due to translation. While providing for the potential extension of licences, it is not clear what is meant by the phrase “carried out in the order envisaged in provisions for its issuing”. This might mean either that licensees would be obliged to enter a new competition to obtain an extension to their licence or that the original licence should set out the means for its own extension. Either rule is inappropriate. It is well-established – due in part to the massive commitment of both time and resources that is required to establish a broadcaster and a reputation as such – that existing broadcasters should benefit from a presumption of licence renewal. The licence application process can be cumbersome, expensive and time-consuming, and there is no reason why a broadcaster which serves the diversity and information needs of a region, in full compliance with its licence obligations, should have to go through a licence competition process every seven years. We would recommend that a presumption of this sort be established in the Draft Law, and that it may be overcome only by substantial reasons from the Council or other interested parties as to why the licence should not be renewed. It is not clear whether or not Internet broadcasters, like cable broadcasters, are required to obtain permission. On the one hand, they are not, unlike the limited scope broadcasters noted above, specifically exempted from obtaining permission. On the other hand, Article 25, dealing with permissions, refers specifically and exclusively to cable broadcasters. In our view, Internet broadcasters should not have to obtain permission. Finally, we reserve comment on Article 21, relating to disqualifications of certain founders; see section III.E.b below. Recommendations: • The notion of a “rational” frequency distribution should be spelt out in more detail in

the Draft Law, in particular by mandating the creation of a frequency plan through a process which is open and participatory.

• The frequency plan should explicitly reserve frequencies for public broadcasters. • Provision should be made to give licence applicants the opportunity to cure minor

defects in their application materials.

37 Council of Europe Recommendation, Explanatory Memorandum, para. 37. 38 Access to the Airwaves, Principle 21.2

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• Information relating to an applicant’s business plan, including information as to its capital holdings, should be required in the licence application.

• The Draft Law should spell out in more detail what information should be included in its competition announcements, as detailed above.

• The Draft Law should require the authorities, preferably the Council, to set out in advance a clear schedule of fees for different types of licensees, to be applied in a non-discriminatory manner.

• The Draft Law should clarify that there is a presumption in favour of the renewal of licences, which may be rebutted only by a proper showing by the Council or other interested party.

• The Draft Law should make it clear that Internet broadcasters do not have to obtain either a licence or a permission.

III.E.b Revoking Licences Article 23 provides that a court may “annul” a licence upon application by the Council if “the results of the competition for broadcasting are declared invalid”, if the broadcaster does not commence broadcasting within a year of its licence having been issued or if it has “severely violated” the terms of the licence or the legislation on mass media. Article 25 provides that permissions with respect to cable broadcasting may be revoked for the same reasons. And Article 30(2) provides: “Repeated infringements by the broadcasting organisation of the legislation on mass media and of terms of license … may serve the ground for denial for extension of the validity period”. Analysis The ground of annulment where the broadcasting competition has been declared invalid is problematic, perhaps seriously so, because the Draft Law gives no information as to when, and under what circumstances, a competition may be judged to be invalid. No doubt there are reasonable grounds for such a judgment – for instance, if there has been collusion or other inappropriate conduct in the adjudication of the competition – but it is critical that the Draft Law itself set out criteria for determining when competitions are indeed invalid. Of more fundamental difficulty, however, is the possibility of licence revocation for violations of the Law on Mass Media. While we have not had the occasion to review that Law in detail, it is quite evident that it contains content restrictions which are quite at odds with international law and standards; in this regard, we note that any restriction on the content of what may be broadcast, like all restrictions to freedom of expression, should be imposed only where they meet a strict three-part test, as foreseen in Article 19(3) of the ICCPR. The effect of the references to the Law on Mass Media, in the context of Articles 23, 25 and 30 of the Draft Law, is that licences and permissions may be revoked, and licence extensions refused, by the Council even when broadcasters are engaged in activities which are protected under the international law of freedom of expression. We cannot be exhaustive, as we have not fully analysed the Law on Mass Media but, to take just a couple of examples: it is a violation of Article 5 of the Law on Mass Media to disseminate any information on behalf of any social organisation which has been denied State registration. In the event that the State registration laws are employed to prevent activities of which the government disapproves, for instance

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relating to the protection of human rights, Articles 23 and 25 would put at risk the licences or permissions of broadcasters which conveyed information about the plight of such organisations. Again, that same article of the Law on Mass Media prohibits the “stirring up” of national “discord” and the “dissemination of pornographic products”. No definitions of “discord” or “pornographic” are provided and it is quite possible, therefore, that these terms could be interpreted broadly to prohibit the dissemination of information – articles critical of government policy or of high-ranking officials, or information in an artistic work with a sexual theme – which is protected under international law. The dissemination of such information by broadcasters would put them at risk of licence or permission revocation, or of a refusal to extend their licence period. Also problematic is the related reliance of the Draft Law, in Article 21(1), on the Law on Mass Media for mandating the denial of a licence application to any broadcast organisation whose founder is disqualified by law as acting as a founder. Article 8 of the Law on Mass Media disqualifies from being a founder for a period of two years from the disqualifying event, any “political party [or] social organisation whose activities have been banned by the law”, and any “individual or legal entity who acted as a founder of a mass media earlier, and the activities thereof have been banned”. The difficulty, once again, is that these bans may well have been imposed in violation of international law relating to freedom of expression or assembly. In such cases, the disqualification of such persons from being founders of broadcasting organisations would be entirely inappropriate. The problem here, of course, is that the Draft Law, which is in many ways progressive, is being “tethered” to a law – the Law on Mass Media – which is much more problematic from the point of view of freedom of expression. The solution is to decouple the laws altogether. The Draft Law, instead, should develop its own rules relating to content, fully consonant with the demands of the three-part test for permissible restrictions on expression, and should restrict any licence or permission revocation or extension denial for content reasons to such grounds. It is unclear whether it is necessary to impose by law a blanket ban on holding a broadcasting licence on any individual or founder but, if this is to be done, it should be done directly in the Draft Law rather than by reference to the Law on Mass Media. The Draft Law should further stipulate that licence revocation or the denial of an extension request cannot be based on any other ground, including any ground contained in the Law on Mass Media. Recommendations:

• The Draft Law should set out clear criteria, consistent with international law and standards, for when a licence competition is to be declared invalid.

• Cross-references to the Law on Mass Media for when licences or permissions may be revoked or when extensions may be denied, as well as for which individuals are disqualified from acting as founders, should be removed from the Draft Act. Any necessary provisions on these matters should be added to the Draft Law itself.

III.E.c Hearing Complaints Article 29 extends the right to bring complaints to any “legal entities and juridical persons who believe their rights and legal interests have been violated as a result of the

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activity of the broadcasting organisations”.39 Complaints are to be heard at “open sittings”, attended by representatives of both sides of the dispute. The article contains no detail about the complaints process, providing instead that all procedural and other details are to be developed in ensuing regulations. Analysis The complaints system of the Draft Law is inadequate. Open and effective procedures which guarantee that complaints are heard, investigated and resolved in an expeditious, cheap and effective way are essential to the success of the complaints system. As with other important matters, leaving the details of such a system to some possible future regulatory event is a way of putting at risk the integrity and effectiveness of the entire complaints system. The Draft Law should also provide for a right of appeal to the courts for any decisions it makes on complaints submitted to it. Recommendation:

• The Draft Law should provide an outline of the main elements of the complaints system. Alternatively, this matter could be left up to the Council to determine for itself.

III.E.d Available Remedies Article 30 provides that, in the case of infringement by a licensee of the Law on Mass Media or its licence or permission terms, the Council may (1) make recommendations that the infringements cease, or (2) issue warnings to the same effect. Where it is faced with repeated infringements, the Council is empowered to deny an application for extension of a licence or permission, or may bring a revocation action in court. Analysis We have already commented on the deeply problematic references to the Law on Mass Media, and do not repeat those points here. While recommendations and warnings are appropriate means for addressing genuine infringements of legitimate licence and content restrictions on broadcasters, it would be far preferable if the Draft Law were to introduce a power in the Council to impose other intermediate remedies falling short of licence revocation. Restrictions on freedom of expression generally, and on broadcasting in particular, must always be proportional to the harm being avoided. Here, once a warning has gone unheeded, for whatever reason, the Draft Law effectively directs the Council to attempt to shut a broadcaster down, the most drastic punishment which can be meted out to a broadcaster. Yet, in many cases in which warnings might not work, a modest fine, fit to the precise details of the case, could well suffice to bring the broadcaster into compliance with the terms of its licence or permission and applicable law; and as a yet more serious step, temporary suspensions of licences or permissions should be considered. As the Council of Europe Recommendation notes: “Given the gravity of licence withdrawal, it should be applied 39 It is probably simply a mistranslation that the article is restricted to legal entities and juridical persons, rather than extending to natural persons; this seems likely because the notions of legal entity and juridical person are effectively the same. In the unlikely event that the Draft Law intentionally excludes individual persons from the complaints system, it is seriously flawed, as individuals are the most likely victims of broadcasting shortcomings or excesses. In that event, we would recommend in the strongest terms that the right to bring a complaint be extended to individuals.

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only in extreme cases where broadcasters are guilty of very serious failures of compliance”.40 Recommendation: • The Draft Law should provide that penalties for licence infringements or

infringements of permissible content restrictions must be strictly proportional to the harm done. It should provide for a more graduated set of penalties, including modest fines and the possibility of temporary licence or permission suspension.

III.F Other Provisions

III.F.a Election coverage Article 9 provides: “Coverage of election campaign and referenda by broadcasting organisations of the Republic of Belarus shall be regulated by the election legislation” of the country. Article 13(3) stipulates that public broadcasters may not be used “for the purposes of political propaganda and agitation”, except in the case where what is involved is “political propaganda carried out in accordance with the legislation of the Republic of Belarus on election and referenda”. Analysis We are unfamiliar with the Republic’s election legislation and therefore cannot comment substantively on whether or not this provision of the Draft Law is reasonable in light of international law and standards relating to election coverage. It must suffice for present purposes to point out that election coverage must be fair, equitable and non-discriminatory, and that the oversight of legal obligations relating to election coverage should be by a genuinely independent regulatory body.41 Any skewing of coverage in favour of incumbents or their positions is entirely inconsistent with this obligation. To the extent that existing election legislation in the country does not impose such obligations and safeguards on election coverage, the Draft Law should be amended to provide such.

III.F.b Certain Contractual Relations Article 6(2) provides that the “relationship” between broadcast producers and broadcasters, as well as between broadcasters and ‘relayers’, “shall be regulated by civil legislation … and by international-legal treaties” to which Belarus is signatory. Analysis It would appear that the relations in question are basic contractual relations, of the same kind as one might find between any number of commercial or non-commercial entities in the country. There is no reason for specific regulation of such contractual relations, over and above the basic law of contracts. In any case, it is unclear whether this provision has any particular effect since, we assume, the legal rules specified therein are already of general application.

III.F.c Anti-monopoly Provision Article 7 prohibits the “monopolisation” of broadcasting and provides that this prohibition will be regulated through the existing national anti-monopoly legislation. 40 Council of Europe Recommendation, Explanatory Memorandum, para. 48. 41 See Access to the Airways, Principle 29.

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Analysis While we are unfamiliar with national anti-monopoly legislation, we point out that the issue of monopolisation in broadcasting is complex and quite specific to the broadcasting context, and we have some concern that the general anti-monopoly law will be inadequate to address such issues as audience share, adequacy of coverage for minority groups and so on, which are necessary elements of an anti-monopoly regime for broadcasters. Accordingly, we recommend the development of anti-monopoly rules specifically adapted to the broadcast context, to be included in the Draft Law.

III.F.d Obligatory Broadcasting Article 10 entitles public bodies and local government bodies to demand air time for broadcasting information solely when “it is necessary to declare the state of emergency or martial law, or in case of natural calamity, epidemics, epizootics, catastrophes”. Analysis While it is certainly important that broadcasters should carry news of importance as specified in Article 10, provisions such as these are both unnecessary and susceptible to abuse. They are unnecessary because any responsible media outlet will carry information of public importance without being required to do so by law. Experience in countries all over the world shows that both public and private media provide ample coverage of emergencies and the like even when they are not bound by a legal duty. The provisions are open to abuse because officials may use them in circumstances for which they were not intended. Even in relation to State and public service broadcasters, the Committee of Ministers of the Council of Europe has voiced concern over “must-carry” requirements, stating:

The cases in which public service broadcasting organisations may be compelled to broadcast official messages, declarations or communications, or to report on the acts or decisions of public authorities, or to grant airtime to such authorities, should be confined to exceptional circumstances expressly laid down in laws or regulations.42

The must-carry provisions in the Draft Law constitute a violation of freedom of expression because they limit editorial independence. The severity of the infringement is aggravated by the broad range of bodies which may attempt to require broadcasters to carry messages, which includes all public and local government bodies. Recommendation:

• The Draft Law should specify that election coverage must be fair, equitable and non-discriminatory, and that such coverage should be overseen by a genuinely independent regulatory body. To the extent that the national election law does not comply with these standards, specific provisions should be included in the Draft Law to rectify the other law’s shortcomings and the Draft Law should provide that the new provisions override inconsistent provisions of the election law.

• Article 6(2) should be removed from the Draft Law. 42 Recommendation No. R (96)10, note 20.

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• Specific anti-monopoly provisions, contextualised to the situation of broadcasters, should be developed for inclusion in the Draft Law.

• Article 10 should be removed from the Draft Law.