Good Law — Bad Implementation. Interview with Andrei Richter
(published in
“Media
Expert”, Russian-Byelorussian quarterly published by the Centre for Journalism
in Extreme Situations at the Russian Union of Journalists, #4, 2004)
BELARUS: THE GAP BETWEEN LEGISLATION AND PRACTICE
The Institute of Informational Law is engaged in comparative study of mass media legislation in the CIS countries. What is your opinion about the legal field where the mass media are currently functioning in Belarus?
- The situation in Belarus can be understood only in comparison. Every year we prepare the index of mass media legislation development in the post-Soviet countries. Today the last position in this index is occupied by Turkmenia. It is preceded by Kazakhstan, Kirghizia, and only then comes a group of countries, which includes Belarus. This is explained by the fact that Belarusian legislation is not as draconian as that in Turkmenia and not as "narrow-oriented" and limited as in Kazakhstan and Kirghizia. In case with Belarus the problems mainly deal with the law enforcement practice. Frankly speaking, in Turkmenia law enforcement practice is merely unavailable, and in Kazakhstan and Kirghizia the situation perhaps is even worse than in Belarus.
As for legal norms prospects, I shall note the following: for all the European countries of the former Soviet Union these prospects are equal. This deals with the fact that some states have already become members of the Council of Europe, and some countries, for example, Belarus, will do it in the future. Therefore, sooner or later Belarus will inevitably come to the necessity for extending the rules of law that exist in the Council of Europe and developing its own national legislation on their basis. There is no other way, since there is no island named Belarus.
How similar are Russian, Belarusian and Ukrainian mass media legislations?
- If to compare legislations of these three countries, the Belarusian legislation has in many respects been "copied" from the Russian legislation: changes and differences are in significant here. Perhaps, so far Belarusian legislation is not so full as Russian. The Ukrainian legislation has been partly "copied" from Russian legislation, partly – from legislations of Western countries, and partly it is original. Moreover, the Ukrainian mass media legislation is the most progressive of the legislations of all the former Soviet Union republics.
What Belarusian legislation provisions that regulate journalists' activities are, in your opinion, most problematic?
- As far as I can judge, the basic disadvantage of Belarusian mass media legislation is retention and frequent use of criminal punishment for slander and insult of the president of the country, not retention of criminal penalty for slander and insult in general. It is quite an essential problem, and this problem is ambiguous. Indeed, legislations of many Western countries contain similar norms, but in Western Europe they have not been applied for at least several decades. Moreover, on 25 June 2002, the European Court of Human Rights adopted a decision, according to which such norms contradict the European Convention on Human Rights and fundamental freedoms. Certainly, Belarus should do its best to get rid of these norms that are harmful to mass media development in the country.
The second legal problem, which concerns Belarus and which is more or less successfully solved in all the neighboring states, is unavailability of independent public television and radio broadcasting that could be trusted by the population and could maintain people's interest in independent mass media, which is very important. Belarus should seriously reflect on its creation. These are two basic problems.
And what, in your opinion, are non-basic problems?
- These problems, for example, include mass media registration right, warnings issued by the Belarus Information Ministry for insignificant violations of mass media legislation. In particular, the Ministry tends to punish mass media for changing the legal address too severely and too frequently. For a modern civilized state it is indecent practice.
In all other respects, Belarusian legislation is civilized enough. Many norms relating to copyright, advertising, basic mass media law, are, undoubtedly, just the ones that a civilized state should be proud of.
What structure in Belarus is, in your opinion, functionally close to your Institute?
- Such a structure does not exist. There is a structure that deals with protection of journalists' rights, but this is something different. Belarus lawyers working in this structure protect journalists in cases involving actual or imaginary law violation or law abuse. As for us, we are trying to prevent this sort of violations and abuses.
RUSSIA: JUDGES ARE RESORTING TO WORLD-WIDE EXPERIENCE
It would be desirable to learn more about the subject you teach to journalism faculty students of Moscow State University.
- The course called "Legal principles of journalism" appeared in 1996 and six years ago it turned from optional into a compulsory one. The Ministry of Education has included it in the standard of compulsory disciplines for "journalism" specialty students, and it has recommended the textbook written by me as basic. The introduction of journalism legal principles course was taken with great enthusiasm in the journalism faculty; moreover, many people insist that the course should be expanded and supplemented. As far as I can judge from attendance (free attendance of all lessons has been introduced at the faculty), this subject is one of the most popular. Everyone understands that it will be very difficult without the knowledge of legal principles of journalism.
As far as I understand, you also introduce students to international legal standards, don't you?
- Naturally, I teach them that as I think that our legislation will be unified with both European and international law.
What sources do your students use?
- Students use most different sources, including the Internet. At our Institute's website (www.medialaw.ru) we've placed about 50 books which we published. The Institute has an open library, and there is also "Konsultant-Plus" free computer base of all the Russian legislation.
Can the educational process keep up with the constantly changing legislation?
- The thing is that we do not train lawyers. First of all, we train people who are familiar with the principles of law in the field of journalism. These principles, as a matter of fact, have not changed for as many as 10 years. Therefore, we are not aspiring to keep pace with each change in the legislation. Our task is to accustom students to the fact that the law does exist, to explain what it means and how to use it, to make students obey the law and trust in the supremacy of law.
What difficulties do you encounter during work?
- The biggest problem is time shortage. There are no other problems.
What is the efficiency criterion in your activities?
- The feeling that the society needs our effort. We do feel that our work is very essential. We have been convinced more than once that the legislation changes according to our Institute's recommendations. We also see that journalists become more competent. Judges keep changing as well: when making their decisions, they tend to apply the rulings adopted by the European Court of Human Rights. These and other facts prove the necessity of our work.
By what principles are you guided when developing methodic materials on legal training?
- All depends on what specific problem we are trying to solve by making this or that publication. In some cases, when there are gaps in the Russian legislation, we highlight either the legislation of the Council of Europe countries (since Russia is a member of the Council of Europe) or that of the United States, Canada and other states.
Speaking about the current legislation of the Russian Federation, in many cases we tend to compare it with legislations of other countries, since it is easier to understand advantages and disadvantages in comparison. By the way, there is no need in comparing it with the U.S. legislation: you can compare it with Ukrainian, Georgian, French, Kirghiz laws - everything depends on the purpose, on the things we ultimately want to find out.
We have created the biggest Russian language base of texts of the European Court of Human Rights decisions concerning the problems of freedom of speech and freedom of press; we have published these decisions with our comments. Together with the Moscow City Court, we have held plenty of seminars where we distributed this literature. We have been working this way for almost three years.
In December 2004, the RF Supreme Court Plenum Decree "On some problems arisen when considering the cases on protection of honor and dignity of citizens and business reputation of individuals and legal persons" was amended on the basis of our recommendations. For example, the new decree will specify that in the issues dealing with honor and dignity protection, Russian courts should take into account the balance that has been established by the European Court of Human Rights. In other words, attention should be paid not only to whether honor and dignity of a person have been restrained, but also to whether freedom of mass information will be limited as a result of such court judgment. Courts should also take into account that they may not demand apologies from mass media in connection with the facts of distribution of some denigrating pieces of evidence; it is required that facts should be separated from opinions. These three decree provisions have appeared in the text thanks to our activities. The judges, irrespective of their presence at our seminars, say that our books are very popular since judges now tend to refer to decisions adopted by the European Court of Human Rights. And the review of Russian courts' practice for the last two years conducted by the same Supreme Court last year, shows that decisions of the European Court of Human Rights have been increasingly quoted. In other words, now there are courts (mainly in the regions covered by our activities!) that quote and consider decisions of the European Court of Human Rights as arguments.
The practice of submitting cases on protection of honor and dignity is also changing. And hopefully, it will go on changing in the future. It is no secret that these cases make more than 90 percent of all the cases, one of the sides to which are journalists.
The issue dealing with protection of honor and dignity is very urgent. How, in your opinion, could the conflict between Joint-Stock Company "Kommersant" (Publishing House) and "Alpha-Bank" be solved?
- My attitude to this precedent is very negative. Actually, there is a situation when 300 million rubles, i.e. more than 10 million dollars, should be paid for indemnification of reputation, which is rather unique not only for Russia, but also for the whole world. This is a situation when punishment exceeds the degree of fault of a mass media edition. Surely, the court has failed to take this fact into consideration, and I don't have any doubts that should this case reach the European Court of Human Rights, the decision of the Moscow Arbitration Court would be cancelled.
Interviewed by Leila Naroushvili
The Institute of Informational Law
exists for almost ten years. It was created when informational law appeared in
Russia and it is quite natural that there were some problems related to its
application. The Institute was established as a public organization. It handles
issues dealing with mass media law research and teaches legal principles of
journalism. The Institute employees publish a monthly journal called Legislation
and Mass Media Practice; they conduct training seminars for journalists,
lawyers, judges, students of journalism and law faculties of high schools. The
Institute's basic course for students - "School of Mass Media Law" - has been
taught for as many as 9 successive years during the second term of the academic
year. Doctor of Law Jury Baturin is the head of the course. The Institute
assists in drafting curricula and manuals, carries out expert examinations of
different bills, makes comments on such bills as requested by mass media
editions and government agencies, including the State Duma and regional
legislative assemblies of the Russian Federation entities.
Priorities:
- comparative study of mass media legislation in the countries of the former
Soviet Union;
- possibilities to apply in Russia the decisions adopted by the European Court
of Human Rights in compliance with Article 10 of the Convention on Human Rights;
- self-regulation of journalists in the Russian Federation;
- Russia and Western Europe cooperation in joint development of mass media
legislation.
Andrei Richter is Director of Institute of Informational Law, Assistant Professor of Moscow State University, lecturer in the course "Legal Principles of Journalism" at journalism faculty of Moscow State University.