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Iris+ Anglais 2006-06 LEGAL OBSERVATIONS OF THE EUROPEAN AUDIOVISUAL OBSERVATORY Protection of Minors from Harmful Information in the Law of Post-Soviet States by Anna Belitskaya EDITORIAL What is pornography? Are not there limits to showing violence on television screens? What mass media content endangers morality? If it is already difficult to answer these questions for oneself, how much more of a challenge is it to answer them for and on behalf of our children? Obviously, finding the right yardstick for what to prohibit is crucial. Yet when it comes to measuring morals and values the phrase “different folks, different strokes” holds very true. That global mass media meet with a huge variety of cultural, religious, historical and political backgrounds makes what already varies within a homogenous environment even more diverse. Once the yardstick is found, the procedures for monitoring and enforcing the standards must be determined. It is necessary to decide who is responsible for the control envisaged, what media outlets are to be monitored and what control system is suitable for the different technologies in use. And this is still not the end of the story. The need to limit media content in order to protect minors arises only because information flow exists in the first place. And that it exists reflects the welcomed implementation, in principle, of the Human Right to receive and impart information. This very right, however, has to be balanced with conflicting interests such as the physical and moral well being of children. At the same time, the right to information has to be protected against unjustified curtailment, or – to put it more bluntly – against states exercising censorship under the pretext of the protection of youth. In short, writing on the protection of minors from harmful information in the law can cover many angles. The angle chosen in this IRIS plus is to inform about the difficulties of establishing standards, procedures and justified limits to the right to information in countries with a more recent tradition of free mass media and the challenges they pose for protecting the youth. Strasbourg, June 2006 Susanne Nikoltchev IRIS Coordinator Head of the Department for Legal Information European Audiovisual Observatory IRIS plus is a supplement to IRIS, Legal Observations of the European Audiovisual Observatory, Issue 2006-06 76 ALLEE DE LA ROBERTSAU • F-67000 STRASBOURG TEL. +33 (0)3 88 14 44 00 • FAX +33 (0)3 88 14 44 19 http://www.obs.coe.int e-mail: [email protected] LEGAL OBSERVATIONS OF THE EUROPEAN AUDIOVISUAL OBSERVATORY Protection of Minors from Harmful Information in the Law of Post-Soviet States by Anna Belitskaya, Moscow Media Law and Policy Centre Protecting minors from the influence of harmful information has addition, in some cases, “propaganda of the cult of violence and been high on the agenda of lawmakers in many post-Soviet countries cruelty”, lawmakers seek to protect public morality. Such a possibility for more than a decade. They believe that violence, cruelty and porno- is provided for in a number of constitutions. For instance, Article 19 graphy, regularly depicted on television screens and on the pages of of the Constitution of Turkmenistan says that realization of rights magazines and newspapers, are not conducive to the healthy develop- shall not violate moral standards,5 and the Constitution of Armenia ment of children and are detrimental to their mental and moral (Art. 43) says that constitutional rights of people can be restricted upbringing. Indecent or cruel pictures form skewed stereotypes of in the interests of public morality.6 The constitutions of the former reasoning in the consciousness of minors thereby increasing the risk of Soviet republics also overwhelmingly provide as follows: the exercise future antisocial behaviour. This also concerns these nations in general of the rights of a person may not violate the rights of other persons. because their destiny directly depends on the behaviour of the future Part 3, Article 17 of the Constitution of the Russian Federation generations of their citizens. stipulates that the “exercise of rights and liberties of a human being and citizen may not violate the rights and liberties of other persons”. How a state regulates problem areas depends on each state’s It is this provision that makes it necessary to discuss the possibility traditions and its social, economic and political situation; however, in of imposing restrictions on the free flow of information in order to certain matters lawmakers from different countries display an enviable protect the morality and health of minors, provided that the applic- unanimity of opinion. This seems to be the case with protecting minors able laws explicitly allow such restrictions. Part 3, Article 55 of the from harmful information, the topic of this piece. The lawmakers of the Russian Constitution explicitly provides that the rights and liberties Commonwealth of Independent States (CIS) and the Baltic countries of persons and citizens may be restricted by the federal law to the believe that this problem can be solved by governmental actions. In extent required for (among other things) the protection of ... treating this problem they have been using different methods, trying morality, health, rights and lawful interests of other persons”. Such to find the most effective one. The analysis of these methods will restrictions might, however, be considered quite often as violating follow. the freedom of the mass media and even as an attempt to impose censorship. But in view of the above, imposing restrictions on the mass media for the protection of the moral health of minors appears The Freedom of Mass Media and the to be justified. The question is what legal means are to be used to Inadmissibility of Misuse of the Freedom impose such restrictions and how adequate and proportionate are of Mass Communication such means in light of the constitutional values of the freedom of expression and the constitutional rights of others. Only restrictions The constitutions of most countries of the Commonwealth of or limitations that would not violate respective constitutional Independent States (CIS) and the Baltic states guarantee freedom of principles may be imposed. mass communication and/or freedom of the press. For instance, Arti- cle 29 of the Constitution of the Russian Federation, parts 4 and 5, state: “Each person has the right freely to seek, receive, pass on, pro- “Illegal” and “Harmful” Information: duce, and disseminate information by any legal method. The list of General Restriction on Pornography information constituting a State secret is determined by federal law. The freedom of mass information is guaranteed. Censorship is pro- Government control over mass communication is typically hibited”.1 grounded on the idea of “illegal” and “harmful” information. To pro- tect minors from these types of information the government bans or On the other hand, in the mass media legislation of some of the restricts its distribution. Dissemination of “illegal” information can countries of the CIS and the Baltic States there is an article about the give rise to sanctions according to the national criminal codes. The inadmissibility of misuse of the freedom of mass communication. For word “harmful” is somewhat vague: it signifies materials that are not example, Article 5 of the Law of Republic of Belarus “On the Mass banned by national criminal codes, but can harm the interests and Media” includes distribution of pornography among cases of misuse values of other people, especially minors.7 of the freedom of mass communication.2 So does Article 5 of the Mass Media Law of Turkmenistan.3 The Law of the Russian Federation “On Pornography is probably the most typical case of illegal informa- Mass Media” (1991) states in Article 4: “No provision shall be made tion in the region. Participation in the making or distribution of for the use of mass media for purposes of committing indictable pornographic material and items was illegal in the USSR, although criminal actions, divulging information constituting a state secret or possession and use of such material and items was allowed. What any other secret protected by law, the carrying out of extremist exactly constituted pornography and its harm was determined in activities, and also for the spreading of broadcasts propagandising each particular case by special commissions of experts that consisted pornography or the cult of violence and cruelty”.4 In the latter case of representatives of local authorities, local public health institu- the existing legal restrictions aimed in particular at protecting tions, local departments of culture, professional sexologists and psy- minors from materials of pornographic nature are formulated too chologists, law enforcement officials and representatives of the local generally (no explanation is given as to what “propaganda” is) and prosecutor’s office.8 refer only to broadcasts. Misuse of the freedom of mass communica- tion potentially leads to the closure of a mass media outlet. Today dissemination of pornography is still restricted by the criminal law of most of the countries of the former Soviet Union. For In other parts, the mass media laws refer to temporal restrictions example, Article 343 of the Criminal Code of the Republic of Belarus and restrictions on “erotic mass media”, described, for example, in establishes criminal responsibility for the distribution of porno- the Kazakhstan Law “On the Mass Media” (1999) as “a periodical graphic materials or items. Acts constituting this offence include the edition or a program, which in general and systematically exploits making or keeping with a view to distribute or advertise porno- public interest in sex” (Art. 1). graphic material, meaning “printed material, images or other items of pornographic nature”, as well as public showing of cinemato- By imposing a ban on the dissemination of pornography or in graphic and video films having pornographic content.9 2 © 2006, European Audiovisual Observatory, Strasbourg (France) LEGAL OBSERVATIONS OF THE EUROPEAN AUDIOVISUAL OBSERVATORY Definitions of “Pornography” erotic nature”.
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