Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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The United Nations Human Rights Committee found that the process for awarding broadcasting frequencies in Azerbaijan violated the right to freedom of expression of two Azerbaijani nationals under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Two individuals who were critical of the Government of Azerbaijan, Mr. Agazade and Mr. Jafarov, had been unable to obtain a licence for radio broadcasting and took a case to the United Nations Human Rights Committee (Committee). They submitted that no list of free frequencies had been published in Azerbaijan (as required under national law) and that only two tenders had been held in the last thirteen years to award frequencies. The Committee found that Azerbaijan’s failure to publish the list of available broadcasting frequencies and to organize, on a regular basis, multiple open tenders was an unjustified and arbitrary restriction on the right to freedom of expression. The Committee was also critical of the alleged practice of awarding frequencies without a tender to entities aligned with the Government of Azerbaijan.
The case was brought on behalf of Yashar Agazade and Rasul Jafarov, two Azerbaijani nationals. Mr. Agazade was a journalist and editor-in-chief of the weekly Azerbaijani newspaper Muhakima, which was often critical of government policies and decisions. Mr. Jafarov was co-founder and chair of the Azerbaijani “Television and Alternative Media Development” public union and a reputed human rights activist in Azerbaijan.
On March 11, 2010, Mr. Agazade and Mr. Jafarov wrote to the National Television and Radio Council (NTRC), the State institution charged with regulating television and radio broadcasting in the country, requesting information on radio frequencies available for use and asking why no list of free frequencies had been published and no tender had been held for such frequencies. According to the Azerbaijan Law on Television and Radio Broadcasting, there was an obligation on the NTRC to publish lists of free frequencies at least once a year, and to hold tenders for free frequencies. On March 12, 2010, the NTRC replied confirming that there were empty radio frequencies and no list of free frequencies had been published.
On May 19, 2010, the two men applied to the NTRC for a licence for radio broadcasting in Baku and the Absheron Peninsula. Six days later, the NTRC replied that television and radio broadcasting required a special licence and that the two individuals could obtain such a licence by participating in a competitive tender announced by the NTRC in areas “considered to be necessary for broadcasting activity”. The NTRC did not indicate whether any list of free frequencies would be published or whether any tenders for broadcasting licences would be held in the future.
In June 2010, Mr. Agazade and Mr. Jafarov filed a complaint with the Sabail District Court arguing that the NTRC’s failure to publish a list of free radio frequencies and hold tenders despite the existence of available frequencies violated their right to freedom of expression. They noted that the last tender was announced in September 2008 and that, since then, licences had been granted without competition. They also requested that the court require the NTRC to issue a licence to them. On August 26, 2010, the Sabail District Court declared the complaint unfounded because the NTRC had provided prompt, well-founded and informative answers.
The authors appealed to the Baku Court of Appeal in October 2010, which was subsequently dismissed on the basis that the NTRC had acted according to law by informing the authors of the legal requirements for obtaining a radio broadcasting licence and that the rejection of the application was lawful since no competition had been announced. The Court of Appeal did not address the need to publish information on available empty radio frequencies, the NTRC’s failure to hold tenders resulting in a lack of pluralism in the broadcasting media, and the NTRC’s award of radio broadcasting licenses without competition. A cassation complaint was filed with the Supreme Court of Azerbaijan, but this was also dismissed on the basis that the acts of the NTRC were lawful and no right had been violated.
Another tender was held for the allocation of one licence in November 2010, and the licence was awarded to a newly established company called “Golden Prince,” which was reportedly owned by an individual who was known to have ties to the Azerbaijani Government. The NTRC had, in previous years, awarded frequencies without holding tenders to radio stations that broadcast pro-government content. The NTRC had never published the list of all free frequencies.
Mr. Agazade and Mr. Jafarov brought their case to the United Nations Human Rights Committee (UN HRC), claiming that, by refusing to grant them a radio broadcasting licence following their application to the NTRC and by failing to hold regular and fair tenders to award such licenses, Azerbaijan had violated their right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). They argued, among other things, that the broadcasting law lacked clarity and lacked the requisite quality for it to be lawful under Article 19(3) ICCPR. Moreover, the Azerbaijani Government had failed to fulfill its positive obligation under Article 19 ICCPR to “ensure that the public have access to impartial and accurate information and a range of opinion and comment though television and radio”. [para. 3.2] In support of this, they provided documentary evidence that the Azerbaijani media landscape lacked independence and plurality. The Government of Azerbaijan argued that the complaint was ill-founded, and that the interference with Mr. Agazade and Mr. Jafarov’s right to freedom of expression was lawful and fell within their margin of appreciation. It went on to state that the interference pursued two aims “namely, the prevention of disorder in telecommunications and the protection of the rights of others, as it was designed to ensure pluralism of information by allowing a fair allocation of frequencies.” [para. 4.1]
The United National Human Rights Committee (Committee) took note of Mr. Agazade and Mr. Jafarov’s claim that, by failing to hold regular, open and fair tenders to award radio broadcasting licenses, the Azerbaijani Government had violated their right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Moreover, it also took account of various statements made by Mr. Agazade and Mr. Jafarov in their complaint, including that, since the establishment of the National Television and Radio Council (NTRC) in 2003, this institution had never published a list of available radio frequencies despite this being a requirement under the law and only three tenders for radio broadcasting licenses had been held despite the existence of at least eleven free frequencies. It also noted the allegation that radio broadcasting licenses had been directly awarded by the NTRC without competition on several occasions to entities affiliated to the Government of Azerbaijan. It further observed that the Government of Azerbaijan had neither contested nor tried to justify these allegations.
The Committee found that the State party’s failure to publish pursuant to its domestic law the list of available broadcasting frequencies and to organize, on a regular basis, multiple open tenders had prevented Mr. Agazade and Mr. Jafarov from obtaining radio broadcasting licenses. Therefore, it held that the Government of Azerbaijan fell short of their duty to ensure the right to freedom of expression under Article 19(2) ICCPR, “including the right to seek, receive and impart information and ideas of all kinds”. [para. 7.3] The Committee then quoted from General Comment No. 34 in stating that “a free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constituted one of the cornerstones of a democratic society” and that “as a means to protect the rights of media users (…) to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.” [para. 7.3]
The Committee then went on to establish whether the limitation of the right to freedom of expression could be justified under Article 19 ICCPR, which stated that a limitation can be justified where it is provided by law, is in pursuit of a legitimate aim, and conforms to the strict test of necessity and proportionality.
The Committee acknowledged the Government of Azerbaijan’s arguments for the need to regulate licensing conditions, but it noted that Azerbaijan had not adequately explained why it had not published a list of available radio frequencies despite being required to do so under domestic law. It also noted that the Government of Azerbaijan had failed to explain how media pluralism and diversity could be achieved through the allocation of broadcasting frequencies with tenders that appeared to benefit media outlets that had ties to the government.
The Committee found that Azerbaijan had failed to justify the limitation to the right to freedom of expression that had resulted from the lack of organization of periodic tenders and the lack of transparency in the allocation of licenses without public tenders. The Committee concluded that the limitations were arbitrary in nature and amounted to a violation of Mr. Agazade and Mr. Jafarov’s right to freedom of expression.
The Committee recommended that the Government of Azerbaijan provide both individuals with an effective remedy, to make full reparation, to prevent similar violations in the future, and to review its laws on television and radio broadcasting “with a view to ensuring that radiobroadcasting licenses appertaining to available broadcasting frequencies were actually allocated on the basis of clear and transparent procedures guaranteeing regular and open competitions by which candidates are assessed on the basis of non-discriminatory criteria, and with the aim of promoting media pluralism in the State party”. [para. 9]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the United Nations Human Rights Committee held that Azerbaijan’s failure to announce periodic tenders for allocating broadcasting frequencies and the lack of transparency in the allocation of such frequencies violated the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights. Of particular note is the Committee’s reference to General Comment 34 when stating that State parties have an obligation to ensure media pluralism and to encourage independent media as a means to protect the rights of media users to “receive a wide range of information and ideas”. The decision sets out the international standards relevant to broadcasting licensing regimes, including the need for a clear, transparent, regular and open process for allocation, and is an important step towards ensuring media plurality in Azerbaijan. In recent years, international organizations, such as Reporters Without Borders, Freedom House, and the Committee to Protect Journalists, have consistently ranked Azerbaijan as one of the most censored countries in the world.
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