(January-October 2013)

Ara Ghazaryan, Ashot Vareljyan

1. Legislative initiatives and changes

On September 10, 2013, the National Assembly unanimously approved a bill making changes to the RA Law on Copyrights and Related Rights. The aim of the bill was to regulate the widespread violations of copyright law occurring in Internet news outlets and by reporters. It had become common practice for one news outlet to republish information from another either without the prior consent of the author or without any credit to the source; even if the news material in question was fully copyrighted.

In other words, many internet news outlets, including blogs, widely violate the copyright privileges of others. However, due to an absence of effective legal defense mechanisms such violations remain unpunished, and the original authors left defenseless. Changes to the law have resulted in more specific and encompassing foundations regarding substantive and procedural matters of legal defense, tasked with ensuring the defense of copyrights in the rapidly developing realm of the internet. Specifically, even though it is widely known that coverage of daily news and breaking stories is not, per say, covered by copyright laws, however, even news reported in such a manner can be covered by copyright law if the manner in which it is presented (“the manner of expression”, according to the law) contains an element(s) of “creative” endeavor. This is a general approach to the issue of copyrights, according to which only the result of creative endeavor is defended by copyright law. On the other hand, had this clause  not been included in the law, during court cases the courts ascertain whether or not news information contains elements of creative work.

Changes to the law have also defined a two-layered system when it comes to defending against possible violations regarding the reproduction of material. The first notes that quoting material from other online news outlets can only be sanctioned to a degree necessary to “substantiate a given objective.” The law does not define what this concept means, but rather leaves it to the courts to interpret and apply in individual cases. Such an approach, we believe, is equitable and derives from international and domestic governmental judicial practice. First, it is impossible to provide an exhaustive definition as to what is meant by “substantiate a given objective.” Second, it is sometimes more effective to define wide concepts in executive decisions, in order to apply them long-term in an ever changing social and technological environment, especially when we are talking about such a constantly changing environment as the internet. The second defense system stipulates that reproduction of material “must not reveal the essential portion of press reportage”, regardless of the reproduced amount. This second requirement operates independently of the first. That’s to say, even if the extracted material’s amount is small (one or two sentences), if it reveals the essence of the reportage it is enough to hold the one who lifted the material accountable. The latter has no recourse to claim, in their defense, that the amount of lifted material was small.

In addition to the noted substantive grounds, the law also specifies a number of procedural guarantees. For example, when extracting news material covered by copyright law, a link to the original source is required, and the name of the print news outlet must be mentioned in the title. When reproducing news material from internet sites, a hyperlink to the source and the domain name must be placed in the title.

Changes to the law also specify possible material compensation ranging from 100,000 to 200,000 AMD for copyright violation. After Article 1087.1 (insult and slander), was incorporated into the Civil Code, it can be said that this is the second sector in the domain of civil law where the legislature defines the possibility of financial compensation for damage. Here, however, confusion reigns. When referring to the concept of “damage”, what does the legislature have in mind - both material and non-material (moral) damage?

On the one hand, as a rule, substantiating material damage in court is difficult; on the other, the section of any claim dealing with non-material damage is threatened with rejection by the courts based on the argument that RA law does not define the possibility of financial compensation for moral damage. Here, perhaps, there is a need for intervention by the Constitutional Court, so that  by revealing the legal constitutionality content of the norm, the Court can explain whether this clause, by which the possibility of financial compensation is defined, in reality serves as a method for the financial compensation of moral damage. The Court displayed such an effort regarding Article 1087.1 when it stipulated that financial compensation defined by this article, in reality, is not grounds for compensation of moral damages, but rather, merely a legal defense method.[1] When writing this study, the Constitutional Court issued an important decision on November 5, 2013, stating that the absence[2] of legislative grounds in order to receive financial compensation for moral damages violates the rights of citizens based on Articles 3, 18 and 19 of the Constitution. The Court’s decision gave the National Assembly one year (until October 1, 2014) in which to draft all necessary legal mechanisms in the Civil Code and other relevant legislative acts to come up with legal mechanisms for financial compensation regarding moral damages.

2. Obstructing the work of reporters

Obstructing reporters in carrying out their professional activities has been criminalized and is punished based on Article 164 of the Criminal Code; in the amount of 200 to 400 times the minimum salary (200,000 to 400,000 AMD). If a government official obstructs, by using his/her official position, the punishment is either a fine from 400 to 700 times the minimum salary, or imprisonment up to three years. The official may also be deprived of the right of holding office or engaging in certain activities for up to three years. If the obstruction is accompanied by violence, either causing or threatening damage to the life and/or health of the reporter or their relatives, the punishment is three to seven years imprisonment.

During the period covered by this study, instances of reporters being obstructed in their professional work were registered in all the above-mentioned scenarios – through violence, threats of physical retribution, discriminatory behavior, application of inappropriate restrictions (e.g. restriction of free movement), the seizure of video camera and other equipment, destruction of recorded videos and editing of same, or  interfering with the right to respect for ones private and family life and home. Such instances of interference have been displayed by both acting officials (e.g. police employees) and private citizens. Acts committed by authority figures have mostly resulted in official (in house) reviews, and not criminal investigations, exposing the guilty, criminal charges, or appropriate punishment.

Physical violence

On presidential Election Day February 18, 2013, physical violence was again committed   against Artak Hambardzumyan and Narine Ismail, a young woman volunteering at the Transparency International-Armenia NGO as an election monitor for European Rights Coalition NGO, who raised the alarm about ballot stuffing in Ararat Polling Station 17/05.

Some 25-30 young men had entered the polling station and several of them pushed the monitor and reporter up against the wall, grasping their hands, so that they couldn’t take photos or videotape the ballot stuffing.

A criminal case was launched, headed by the Special Investigative Service (SIS) based on Criminal Code Article 149 (Hindrance to implementation of the right to elect, to the work of election commissions or to the implementation of the authority of the person participating in elections) and Article 153 (Voting more than once or instead of another person).  The “corpus delicti” (body of crime - the fact of a crime having been actually committed) defined by the two articles, in objective terms, has no connection at all with the fact of hindering, with violence, the work of reporters and provide the opportunity of circumventing proof that violence was committed against a reporter. Consequently, the launch of a criminal case based on these articles was the inappropriate and disproportionate response of the official body in charge. It’s not accidental that the criminal case was later dropped, since charges against the two individuals implicated were dropped given the lack of evidence that they participated in the violation that occurred.

 The Police also failed to find evidence of a “corpus delicti” in the case of reporters Gayane Saribekyan and Marine Kharatyan with the newspapers Hraparak and Zhamanak. On Election Day, near the campaign headquarters of the Republican Party in Yerevan’s Metaks neighborhood, the two reporters approached a group of some 10-15 individuals in order to ask them what was going on. The group cursed the reporters and tried to snatch their photo equipment.

During an interrogation at the SIS, it was revealed that Hakob Beglaryan, younger brother of Transportation and Communications Minister Gagik Beglaryan, was one of those actively hindering the reporters. On March 15, the SIS dropped the case.

On May 19, Maxinfo.am founder Babken Haroutyunyan issued a statement alleging that he was assaulted two days earlier when he visited the village of Kanachout in Ararat Province. Haroutyunyan says he went there to photograph the palatial home of presidential advisor and former Police Chief Alik Sargsyan. After photographing the house, he says he was assaulted by Alik Sargsyan’s brother Andranik.

A forensic exam was scheduled and the case material was forwarded to the Ararat Investigative Unit. But the case was rejected on the grounds that there was no evidence that a crime had been committed.

On May 18, the relatives of a soldier who had died in a military unit, tried to take the corpse to Yerevan in a sign of protest. At a road checkpoint placed on the Sevan-Yerevan Highway, the police stopped all cars ferrying reporters to the spot where the dead soldier’s relatives had blocked traffic. The cops later assaulted the reporters and seized their recording equipment, arguing that they had received an order from above to prohibit any photographing.

According to the statements made by the news outlets, individuals in uniforms and plainclothes used force to seize and break the camera equipment belonging to a crew from Kentron TV. The damaged equipment was later returned and the video erased. Members of the Military Police also used force to seize the video camera of Lragir.am correspondent Siranoush Papyan. They erased whatever she had recorded up till then. A camera crew from Yerkir Media had their memory card confiscated. It was later returned after the police chief intervened.

The Sevan branch of the Gegharkunik Police assembled case material that was handed over to the Gegharkunik Provincial Prosecutor’s Office. From there, the case file was to go to the Defense Ministry’s Investigative Branch. But the case was dropped at this point since law enforcement claimed they couldn’t identify anyone to charge. The Ministry’s Investigative Branch also rejected launching an investigation on the same basis.

Threats

Numerous cases exist when reporters have been threatened, to the point of obstructing their work, without the guilty parties being prosecuted. Even if an investigation of the incident took place, it was usually an internal agency examination, which, in principle and practice, is not regarded as an effective legal defense method.

There is the case of Hetq reporter Ani Hovhannisyan being manhandled and treated disrespectfully by a police employee on Yerevan’s Northern Avenue. There’s even a video tape of the incident. The employee was subject to disciplinary punishment and transferred to a reserve position. A disciplinary hearing and its consequences cannot be regarded as a legal defense substitute for the injured party (the reporter), since discharging the police officer does not restore the violated rights of the reporter. What was needed was a criminal investigation based on Article 164.

Law enforcement did take certain measures when Hetq reporter Ani Hovhannisyan received a threatening call on May 8, 2013, from a cell phone registered in Russia. The caller told   her that if she continued to poke her nose in places where she shouldn’t, it would turn out bad for her and her family members. For a while, the police took steps to safeguard Hovhannisyan’s security. A criminal case was launched. Based on transcripts provided by a telephone provider in Armenia of the calls made and received by the cell phone number in question, five citizens and four witnesses were questioned. After all this, the case hasn’t passed the preliminary examination stage.

No investigation was launched in the case of www.news.am reporter Gayaneh Aprounts who was threatened by bodyguards of MP Samvel Aleksanyan, or even when Aleksanyan forcefully pulled her arm.

In certain cases, the authorities did launch examinations involving threats but were later dropped. For example, on February 18, 2013, the websites www.asparez.am and www.aravot.am stated that reporters Marine Petrosyan and Nune Arevshatyan were threatened at Gyumri polling station 35/22. While the reporters were seated in the car, a woman approached and angrily yelled: “Who are you to come here and take pictures of us? I’ll gouge your eyes out.” During the examination, the reporters stated that they didn’t regard the woman’s outburst as a threat and that it didn’t prevent them from doing their work since there was no physical intervention. The reporters also said that they hadn’t been wearing their press badges when photographing. The woman who made the threat then stated that, at the time, she didn’t know the two were reporters. In the end, the police decided not to press charges based on Article 164. We believe this was a just approach.

 In certain cases, reporters have chosen to go the civil defense route, and not the criminal.

On February 18, presidential Election Day, New York Institute of Photography correspondent Tzovinar Nazaryan was hindered from her work at polling station 17/4 by Tigran Virabyan, president of the local election committee and head of the Ararat Provincial Government’s Department of Agriculture and Environmental Protection. Virabyan yelled at the reporter “like a hysterical person”, threatening her by saying, “I’ll kill you”. The video clip of the incident made it to Youtube. Nazaryan preferred to sue in civil court on the basis of Civil Code Article 1087.1.

In certain cases, seeking a legal defense based on the Criminal Code has turned out to be the most effective. On September 13, 2013, the Kentron and Nork-Marash Administrative Court sentenced Rafik Sahakyan to one year in prison and fined him 800,000 for cursing and threatening photo-journalist Gagik Shamshyan. 

On January 30 of this year, Sahakyan and an unidentified friend hindered Shamshyan from reporting from the Traffic Police’s auto impound center. Sahakyan’s car had been taken to the impound center for a traffic violation. When Shamshyan attempted to film the car and its owner, the two assaulted the reporter and verbally abused him. Sahakyan was found guilty of Article 164, Part 1 of the Criminal Code (hindering the professional work of a reporter without the use of violence or threats) and Article 258, Part 3, Point 1 (hooliganism, accompanied by the use of violence or the threat of violence).

In essence, the court tied the threats directed against Shamshyan not to the execution of his professional work, but rather to hooligan acts committed by Sahakyan. Otherwise, Sahakyan would have been charged according to Article 164, Part 3. The precedents set in RA Cassation Court cases No. ARD/0176/01/11 and No. EED/0091/01/11 (dealing with the interpretation of the concept of “threat”) were widely used in the above case. This interpretation can be used as a guideline on cases of threats used against reporters.

Other intervention-type actions 

Hindering the professional work of reporters has not only been accompanied by violence and threats, but also by restricting freedom of movement, by seizing equipment or the attempt to do so, destroying video tape, and displaying a  discriminatory attitude towards reporters. Such acts of interference are also the foundations of a “body of crime” as defined by Criminal Code Article 164.

We have already touched on the incidents that occurred on the Yerevan-Sevan highway. No criminal charges were ever filed. (See above)

No charges were ever filed in the case involving reporter Babken Haroutyunyan, whose freedom of movement was restricted when his car was cut off by another, and whose property rights were interfered with when his car keys were seized, thus depriving him of the use of his property; the car.

There’s the case of ilur.am reporter Hakob Karapetyan who was assaulted during the Yerevan Municipal Council elections

On April 23, while covering a campaign stop of Taron Margaryan (the candidate topping the Republican Party ballot), Karapetyan was not only roughed, but his professional work was hindered when they snatched his camera. The culprit was Ashot Papyan, a member of the Yerevan Municipal Council and a member of the Republican Party seeking re-election. Police on the scene did not intervene in the assault against the reporter. Soon afterwards, the video camera was returned, but the film had been destroyed. The investigation was dropped when Papyan publicly apologized and the reporter agreed to drop his complaint. The police argued that, given the situation, the case was dropped on the basis of Article 37 of the Criminal Procedural Code (Circumstances Giving Discretion to Refuse from Criminal Prosecution and from Criminal Case), according to which, a criminal case can be dropped when Articles 72, 73 and 74 of the same Code are relevant. In this case, Article 73 comes into play, according to which “The person who committed a non-grave crime can be exempted from criminal liability, if he reconciles with the aggrieved, mitigates or compensates the inflicted damage in some other way”

In the end, the police didn’t regard the actions of Ashot Papyan (hitting the reporter in the face, causing him bodily injury, seizing his video camera), as violations of Criminal Code Article 164, Part 3, Point 1  (hindering the professional work of a reporter without the use of violence or threats). Otherwise, that’s to say had the actions been regarded as a violation of Part 3 (hindering the work of a reporter with violence or accompanied by threats), the case couldn’t have been dropped on the grounds that the parties reconciled, given that the crime, as defined by Part 3, was a grave criminal act. It is clear that the decision to drop the criminal case contradicts the evidence. Nevertheless, we must also note that the reporter did not protest this decision; moreover, he publicly declared that he agreed with it.

A convenient method of legal defense was employed in the case of Haykakan Zhamanak reporter Hermineh Manukyan. The Gegharkunik Provincial Court of First Instance found Hakob Ghazaryan guilty on the basis of Article 164, Oart 1, of the RA Criminal Code and fined him 200,000 AMD for hindering the reporter who wished to interview Samvel Ghazaryan, Principal of the Khachaghbyur village high school. Hakob Ghazaryan attempted to the reporter’s video camera and the reporter was forced to leave without getting her interview.

Reporters have also been hindered in carrying out their work as a result of discriminatory conduct directed against them. Take the case of Yerkir.am reporter Agnesa Khamoyan. The reporter wasn’t allowed to participate in an election campaign press gathering with presidential candidate Serzh Sargsyan scheduled to take place at the Government Sessions Hall, or at the Avan administrative cultural center. The reporter was barred from both even though she had the proper press credentials to cover both.

Continuation