On March 31, the Armenian National Assembly held hearings on the amendments to the RA Civil Code, providing for responsibility for dissemination of defamatory articles and comments taken from fake accounts. The draft law, criticized by the Armenian media community, was discussed at the hearings both by MPs and by representatives of journalists’ associations.
The amendments to Article 1087.1 of the RA Civil Code, “Procedure and Conditions of Compensation of Damage to Honor, Dignity or Business Reputation”, were put in circulation of the parliament on March 4, 2013 (see YPC Weekly Newsletter, March 4-10, 2014).
As representatives of media NGOs noted at the parliamentary hearings, the draft law should either be significantly revised or completely withdrawn.
As Nouneh Sarkissian, the Managing Director of the Media Initiatives Center, believes, this draft law is an attempt to introduce into the legal field an issue that should be solved through self-regulatory mechanisms. Meanwhile, there are more important problems in the media field requiring immediate response on the part of legislators: the parliament has been failing for almost two years to consider proposals of journalistic organizations on the amendments to the Broadcast Law, with regard to the onset of the digitalization process at the country. Nouneh Sarkissian addressed the authors of the draft law with the request to mention the journalists who favored the bill: “You say that these were the media leadership and journalists who demanded the adoption of the amendments – then tell us their names, just for me to understand their position”. The request is still unanswered.
Levon Barseghian, the Board Chairman of the “Asparez” Journalists’ Club of Gyumri, thinks the authors of the draft want to regulate the spreading of gossip, forgetting that the Internet is just a tool. “Such bill is like destroying the corners of buildings and turning them into round or oval ones – buildings become more beautiful from the outside, and people would not gather in corners. Or it is like pulling down alcoves where people can meet and communicate. Such measures will not solve the problem: the responsible media outlets will not distribute information without checking accuracy and source, as they do now, and the irresponsible ones do not care”, Levon Barseghian emphasized at the hearings, presenting graphic illustrations of the above said.
In the March 14 joint statement, nine journalistic associations urged to withdraw the draft law, which “will cause new problems, rather than solve existing ones” and “is fraught with serious risks for freedom of speech, the right of citizens to receive and disseminate information, and the protection of personal data”.
The authors of the draft assured that the disputes on the bill would continue.
On March 30, Reporters Without Borders (RSF) expressed serious concern about the amendments to the Civil Code of Armenia, implying responsibility for dissemination of defamatory publications and comments taken from fake accounts. RSF called on the deputies of the RA National Assembly to withdraw the draft law and support the decision of the problem through self-regulatory mechanisms.
A statement, released by Reporters Without Borders, reads that the bill’s authors explain their initiative with a desire to reject the spread of fake defamatory or offensive comments. “Although the goal given by the parliamentarians is praiseworthy, this bill poses serious dangers to online freedom of information in Armenia,” said Johann Bihr, the head of the Reporters Without Borders Eastern Europe and Central Asia desk. – “The bill’s vague and broad wording gives too much leeway to the judges who interpret it. But the problem is more than just the wording. The media cannot be held responsible for content they did not create and online anonymity is one of the founding principles of the Internet as a space for debate and freely reported information.”
Among the shortcomings of the draft law, RSF also highlighted ambiguous definition of the notion “media” that could be applied to all production of online content, including blogs and social networks. Furthermore, the proposed amendments provide no definition of the “anonymous user” whose comments would become the responsibility of the media that cite them: “The use of pseudonyms and avatars is so widespread on the Internet that its scope seems unlimited.” “If they do not want to be held responsible for the comments posted on their websites, the media are required to try to ‘identify their authors’, a demand that is both unrealistic and illegitimate”, RSF stressed.
RSF quoted a statement, made by nine journalistic organizations of Armenia on March 14, urging to withdraw the draft law and emphasizing that “most of the conflicts (…) may be solved within the framework of the current legislation, judicial precedents and relevant comments of the RA Court of Cassation, as well as through mechanisms of appealing, which exist in social networks”.
RSF also provided with the opinion of Frank La Rue, UN Special Rapporteur on freedom of expression, who mentioned in the May 2011 report on the Internet that “censorship measures should never be delegated to private entities, and that no one should be held liable for content on the Internet of which they are not the author”. He also said that technical intermediaries “are not best placed to make the determination of whether a particular content is illegal” and that holding them responsible entails the danger of their censoring arbitrarily in order to protect themselves.
Reporters Without Borders stressed that Armenia is ranked 78th out of 180 countries in the 2014 Reporters Without Borders Press Freedom Index (see YPC Weekly Newsletter, February 11-17, 2014). “Adoption of this bill would probably have an impact on its ranking in next year’s Index”, RSF concluded.
The Office of the OSCE Representative on Freedom of the Media released an expert opinion on the amendments to the Civil Code of the Republic of Armenia, providing for responsibility for dissemination of defamatory publications and comments taken from fake accounts.
The legal analysis of the draft law was commissioned by the Office of the OSCE Representative on Freedom of the Media and carried out by Oreste Pollicino, Associate Professor of Media Law, Bocconi University, Milan.
The expert has suggested a number of critical comments regarding the proposed amendments. In particular, he noted that the mechanisms stipulated in the bill threaten the protection of personal data and the free expression on the Internet in general.
For instance, the draft law establishes a liability exemption in favour of media outlets in case they provide data identifying the author of the publication. Such a provision may pose a threat to protection of personal data and is likely to be determined to be a violation of Article 8 of the European Convention on Human Rights (“Right to Respect for Private And Family Life”), the expert stresses.
Furthermore, the amendments shift the liability for defamatory or insulting comments on media outlets where the owner of the website does not comply with a request of removal of such comments within the term of 12 hours as of receiving the same. This is very problematic since, depending on the structure and the organization of the media under scrutiny, such requirement would prove inappropriate, requiring efforts that cannot be fulfilled by the owners of certain websites in such a very short term, the expert believes.
From a general point of view, the amendments seem to be affected by lack of clarity and a certain degree of vagueness, the expert notes. The implementation of the supplements is likely to discourage Internet operators from carrying out business in Armenia, since the risk of being charged with liability for defamation is apparently doomed to increase.