Blowers? Is the Legislation Prohibiting Authorities and Companies
from Identifying Whistle-blowers?
The freedom of expression, which can be defined as the freedom to hold opinions, freedom to impart information, freedom to receive information and ideas. (Case Case of TASZ v. Hungary;74 Nilgün Halloran Case, 2012/118475) allows people to express their opinion, creates
the respect for fundamental human rights, improves national security by making the political system more democratic and the government more efficient, which leads to a better decision- making.
The State has both positive and negative obligations in the scope of freedom of expression and freedom of media. Public authorities should not ban individuals from expressing and disseminating their thoughts unless they have to in the scope of negative obligations; they should take necessary measures for real and effective protection of freedom of expression in the scope of positive obligations.
For providing the necessary answer, all the terms given for discussion must be defined. As to the Cambridge Dictionary,76 a whistle-blower is a person who tells someone in authority about
something illegal that is happening, especially in a government department or a company.
Merriam-Webster77 provides that a whistle-blower is one who reveals something covert or who
informs against another.
Surely, however, the most clear definitions regarding the term were given in the Recommendation CM/Rec(2014)7 of the Committee of Ministers to member States on the protection of whistle-blowers78, where:
a. “whistle-blower” means any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector;
b. “public interest report or disclosure” means the reporting or disclosing of information on acts and omissions that represent a threat or harm to the public interest;
c. “report” means reporting, either internally within an organisation or enterprise, or to an outside authority;
d. “disclosure” means making information public.
74 Társaság a Szabadságjogokért v. Hungary. 75 Nilgün Halloran Case, 2012/1184. 76 Cambridge Dictionary.
77 Merriam-Webster Dictionary.
78 Recommendation CM/Rec(2014)7 of the Committee of Ministers to member States on the protection of whistle-
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As far as we can seen, similar terms are regulated by the Article 50 of the Constitution of the Republic of Azerbaijan,79 titled as the Freedom of Information:
I. Everyone is free to legally look for, acquire, transfer, prepare and distribute any information in a legal way.
II. Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited.
III. Everyone’s right to refute or react to the information published in the media and violating his or her rights or damaging his or her reputation is guaranteed.
Article 2 on the Law of the Republic of Azerbaijan on Getting Information declares that the acquisition of information in the Republic of Azerbaijan is free. 80
Article 8 on the Law of the Republic of Azerbaijan on Mass Media81 determines that the media
has the right to get operative and honest information about the action of state organisations, municipals, institution, enterprise and organisations, public unions, political parties, officials, and that this right cannot be restricted in any case other than prescribed by the legislation of the Republic of Azerbaijan.
Article 5 of The Law of the Republic of Azerbaijan on Trade Secret82 determines several rights
for the trade secret owner, which include the right to determine, change and cancel the regime of trade secret; the right to use, give to other persons if it is based on contract and apply the other methods of involving to civil circulation of trade secret; the right to have a defend from the action offended or may offend the regime of trade secret; the right to demand a compensation of the harm from the persons, who used the trade secret for their interests, under judiciary.
However, in Azerbaijani legislation, there is no concrete provision about whistle-blowers, and the most appropriate definition determined in our law is the “source of information”. As a temporary alternate regarding to whistle-blowers, we refer to the provisions of our law protecting the “source of information”. We can safely assume that, in Azerbaijani legislation this issue is regulated by these norms. As it was determined by the discussions to the previous questions, legislation prohibits authorities and companies from identifying the source of information. Furthermore, it determines liability for perpetrator motions against the source of information. However, surely, there exists a limit. If a whistle-blower’s action includes criminal motive, then the punished side will be the whistle-blower. This means that in certain cases, the source of information is liable for spreading the confidential information and may be considered as a perpetrator. Authorities and companies can identify them if they commit a misdemeanor or a felony, as in the Criminal Code of the Republic of Azerbaijan83 there are some provisions
which demand so. As an example, we may refer to defamation and humiliation, which are determined as the criminal offences under the Criminal Code of the Republic of Azerbaijan in the articles 147 and 148 respectively.
79 The Constitution of the Republic of Azerbaijan, article 50.
80 The Law of the Republic of Azerbaijan on Getting Information, article 2. 81 The Law of the Republic of Azerbaijan on Mass Media, article 8. 82 The Law of the Republic of Azerbaijan on Trade Secret, article 5. 83 The Criminal Code of the Republic of Azerbaijan, articles 147, 148.
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Under the Country Report of Azerbaijan under European Neighbourhood Policy we can partly get answers to the main questions of the issue.84 To what extent are there legal provisions in
place to protect whistle-blowers in the public sector? Protection of whistle-blowers is envisioned in the draft law on Conflict of Interest, the adoption of which has been delayed, while existing legislation is rather inconsistent on the issue. Although a public official shall be subject to criminal liability for failure to report serious or especially grave crimes, and few corruption related offences fall under this category, there is no legal protection for those who do. In other words, if officials do not report grave incidents they may be punished, and in case of lighter offences they will get away with it, except for police officers who are required to report all kinds of law violations. But if they do, the law will not protect them unless a criminal case is opened, and then the Law on State Protection of Participants of the Criminal Process steps in. Hence, as of now there is really no motivation for officials to do so. Ordinary citizens do not have any reporting obligations and receive some protection under the Criminal Code – i.e. they are freed from criminal responsibility for paying a bribe if they reported it before the information became known to law enforcement bodies, or if they have been exposed to a threat on the part of an official. To what extent are whistle-blowers in the public sector protected in practice? Protection of whistle-blowers in practice is non-existent, which is supported by other external evaluations.85
Statistics are not available on the reporting of corruption-related offences. There are no specific systems to receive signals of suspicions of corruption with most public agencies (exceptions being the Ministries of Tax and Education). However, many government bodies have online facilities and hotlines through which people, including officials, can report anything, including corruption suspicions. At any rate, the efficiency of these tools is minimal, as the law prohibits reviewing anonymous reports and few people, least of all civil servants, would dare to reveal their identity when reporting corruption suspicions. The gap in the official whistle-blower mechanisms has partly been filled by civil society organizations such as TI Azerbaijan’s Corruption Hotline. However, it should be noted that even civil society does not receive many reports other than complaints from victims of corruption themselves, as the reporting of somebody else’s misdoings is contrary to national culture.
Monitoring Report of Azerbaijan on Third Round Monitoring under the Organisation for Economic Co-Operation and Development also shows that,86 no steps were taken to introduce a
legal obligation to report corruption or regulation on protection of whistle-blowers. A number of significant anti-corruption laws have not been adopted for a long time, for example, legislation on conflict of interest prevention or whistle-blowers protection.
Summing these all up, we come to a certain conclusion, which is that despite the fact, that many foreign countries regulate the definition of whistle-blowers under their legislation, in domestic legislation this issue remains open because of lack of concrete provisions in national law. Our
84European Neighborhood Policy, Country Report Azerbaijan, March 2005
85 Source: Public Anti-corruption Initiatives available at http://www.business-anti-corruption.com/country-
profiles/europe-central-asia/azerbaijan/initiatives/public-anti-corruption-initiatives/
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legislation system still uses analogy with regards to the situations concerning by their nature whistle-blowers and we need some theoretical improvement on this exact part of information and media law.
11. Conclusion
According to the article 11 of the Law of the Republic of Azerbaijan on Mass Media a journalist cannot be forced to disclose the source of information published or broadcasted via mass media in connection with the case under investigation or at the court proceedings, except in cases specified by law. In this case, the responsibility for the author’s non-disclosed description, article, picture or caricature lies on the shoulders of a contributing editor responsible for release or a journalist. To disclose the source of information in our law does not only comprises in itself the disclosure of the name of a person who provided a journalist with information, but also any other information allowing to identify the person, including any personal information about the person who gave information (age, work place, place of residence, etc.), his appearance, voice, information about getting the information by a journalist (where, when, how it was recieved, etc.), the non spread part of the provided information, personal information in connection with the journalist's professional activities (his previous work, previous investigations, etc.).According to article 189 of Code of Administrative Offences of the Republic of Azerbaijan , abuse of freedom of mass media and journalist rights on behalf of editorial staff (responsible editor) of mass media and journalists (authors) i.e.: promulgation of information, prohibited to disclosure by legislation; non-fulfilment of control on preparation of materials, published in printing edition in accordance with requirements of legislation; promulgation of information without indication of its source, except occasions envisaged by legislation; production or distribution of production of mass media without reference data or deliberate distortion of reference data entails imposition of penalty on natural persons in amount of 20-25, official persons - 60-80, legal persons - 200- 250 manats. This is an obvious proof of the fact, that keeping the source of information in confidentiality plays an important role for other persons to give information freely and confidently and for determining the problems and events taking place in society and in the political arena. In our legislation, there does not exist a single systemized normative act which would regulate the right of media actors to keep their information sources confidential. Thus, for the formation of free media our state is in the need of development of legislation in this exact field. Information not being state secret but needed to be kept in secrecy in order to protect legal interests of citizens, institutions, enterprises and organisations shall be confidential one. Gathering, processing, use and dissemination of the confidential information shall only be allowed in cases established by legislation of Azerbaijan Republic. As Azerbaijan is a post-soviet country, the law was concrete on state censorship in Soviet period. In August 6 1998, the state censorship over mass media was prohibited by the Order of the President Heydar Aliyev. From this period the free environment is observed in the media sphere. As the Constitution of Azerbaijan Republic is the supreme document in hierarchy, the national laws also indicated the principle then. The legislation considers only vital public or individual interests at stake when the necessity is allowed for disclosure. Law of Azerbaijan on the freedom of information defines main conceptions about the information, its source and restricted information. In accordance with this law, documents and other carriers reflecting information in order provided for in the legislation, mass media information and public speeches shall be considered as information sources.
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Information with limited access includes state, professional (lawyer, notary, and doctor), service, bank, commercial, investigation and court secrets, information on personal and family life of persons and terrorist acts. Information with limited access includes information on environment in cases determined with the relevant legislation. Relations arisen concerning state, professional (lawyer, notary, doctor), service, bank, commercial, investigation and court secrets, information on personal and family life of persons, terrorist acts are regulated by the relevant legislation.Azerbaijan Republic has enacted plenty of laws in anti-terrorism laws, mass media and operational-search activities which are enough accessible to the public. All of the aspects including principles, objectives, grounds, basis have been clearly enshrined in these laws to prevent any particular problems including legal uncertainty in this respect. In our legislation there do not exist concrete provisions regarding journalists’ anonymity and encryption. However, an article from the Law of the Republic of Azerbaijan on Telecommunication would be useful to refer to in our case. Article 38 named Provision of the Telecommunication Anonymity states that, the limitation of the information transmitted by the telecommunication means can be allowed only in the circumstances determined by law. These circumstances mainly are connected to criminal offences, territorial integrity, state secret etc.
Thus, journalists in Azerbaijan can rely on anonymity and encryption, but in a certain frame. They can use their positive rights and freedoms without harming others’ rights. This regulation in general can be found in different laws of the Republic of Azerbaijan, however, the universal regulation still to be developed by the Milli Majlis of the Republic of Azerbaijan – legislative branch of government. For sure in the first place, the development has to concern the respective reforms in mass media law. Foreign countries regulate the definition of whistle-blowers under their legislation, in domestic legislation this issue remains open because of lack of concrete provisions in national law. Our legislation system still uses analogy with regards to the situations concerning by their nature whistle-blowers and we need some theoretical improvement on this exact part of information and media law.
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12. CASE LAW, LEGISLATION, BIBLIOGRAPHY AND ONLINE
RESOURCES
12.1. Legislation
The Constitution of the Republic of Azerbaijan
The Law of the Republic of Azerbaijan on Mass Media
The Law of the Republic of Azerbaijan on Freedom of Information European Convention on Human Rights
The Law of the Republic of Azerbaijan on Information, Informatization and Protection of Information
The Code of Professional Ethics of a journalist of the Republic of Azerbaijan Criminal Code of the Republic of Azerbaijan
Code of Administrative Offences of the Republic of Azerbaijan Civil Code of the Republic of Azerbaijan
Professional Code of Conduct of Azerbaijani Journalists
The Law of the Republic of Azerbaijan on Operational Search Activities The Law of the Republic of Azerbaijan on the Struggle against Terrorism The Universal Declaration of Human Rights (UDHR)
Parliamentary Assembly Recommendation 1950 (2011)
The Law of the Republic of Azerbaijan on Copyright and Related Rights The Law of the Re.public of Azerbaijan on Telecommunication
The Law of the Republic of Azerbaijan on Trade Secret
12.2. Books and articles
APC Internet Rights Charter Merriam Webster Dictionary
A Dictionary of Law (7 ed.). Jonathan Law and Elizabeth A. Martin. Oxford University Press
Társaság a Szabadságjogokért v. Hungary. Nilgün Halloran Case, 2012/1184.
Cambridge Dictionary.
Recommendation CM/Rec(2014)7 of the Committee of Ministers to member States on the protection of whistle-blowers.
Castells v. Spain case, European Court of Human Rights.
Explanatory memorandum to the Recommendation No R(2000) 7
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12.3. Internet sources
http://www.echr.coe.int/Documents/FS_Journalistic_sources_ENG.pdf http://www.judicialcouncil.gov.az/Meqaleler/5.pdf http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML https://leap.se/en/about-us/vision http://www.ohchr.org/Documents/Issues/Opinion/Communications/Associati onForProgressiveCommunication.pdf http://www.genderit.org/sites/default/upload/case_studies_mex3_0.pdf www.oecd.org/corruption/acn/AZERBAIJANThirdRoundMonitoringReportE NG.pdfPublic Anti-corruption Initiatives available at http://www.business-anti- corruption.com/country-profiles/europe-central-
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13. Table of Provisions
Provisions in native language Corresponding translation
1) Məlumat azadlığı haqqında Azərbaycan