The dynamic development of the media and entertainment industry, and the development of new instruments and technologies, has resulted in active legislative activities aimed at navigating the evolving landscape of the sector.
Recent trends include continuous improvement of legislation. Special attention is devoted to the introduction of new regulation in the intellectual property sphere, and legislative developments focus on the issues of personal data protection.
The Strategy of the Republic of Belarus in the sphere of intellectual property for 2012–20202 sets forth key points for future activities emphasising the development of institutional and legislative frameworks for the efficient functioning of a national intellectual property system.
The Information Security Concept of the Republic of Belarus 2019 (the Concept), adopted by Resolution No. 1 of the Security Council of the Republic of Belarus of 18 March 2019, addresses the issue of harmful content dissemination in the informational sphere. The Concept is a system of official views on the nature of, and content relating to, ensuring national security in the informational sphere. It also defines strategic tasks and priorities in the field of information security. In particular, the Concept establishes that relations in the field of mass media are based on the principles of legality, reliability, respect for human rights and freedoms, diversity of opinions and protection of morality, among others. Along with the constitutional provision of freedom of speech in Belarus, to comply with these principles, legislative requirements are established for the dissemination of mass media that is consistent with international practice and generally accepted social standards. There is a public control over the dissemination of illegal and inaccurate information in the information space. At the state level, measures are being taken to prevent the dissemination of information that could harm national interests and inaccurate information, as well as to reduce anonymity in the information space. When broadcasting content, it is not permitted to use hidden technological methods that affect the subconscious of people or have a harmful effect on their health. State bodies and other organisations must follow the Concept in their practices.
Current legislation provides for additional authorisation needed to carry out activities in the media sector. According to the Mass Media Law,3 the mass media are subject to a state registration procedure. TV and radio broadcasting are additionally subject to obtaining a licence, which may be obtained by the mass media editor or by a foreign organisation. However, a licence is not needed if the broadcasting is carried out by a telecommunications operator without changing the form or content of the broadcast product:
- under a permit to distribute the products of a foreign mass media;
- under a contract with a legal entity entrusted with the functions of the editor of the mass media; or
- if the foreign organisation has a licence in the field of broadcasting.
The Mass Media Law defines ‘internet resource’ as a website, web page, forum, blog, application for a mobile device or other information resource (its component), located in the internet, through which mass media is distributed. As a general rule, the Mass Media Law applies to internet resources. An internet resource may be registered as an online edition and, consequently, be treated as mass media under the Mass Media Law.
Certain regulations apply specifically to internet resources. The Mass Media Law provides for a number of duties for internet resource owners, including social network owners, which involve the introduction of additional measures for analysing and monitoring information on such internet resources. In particular, further to the Mass Media Law requirement, the Regulation on the procedure for preliminary identification of internet resource or online edition users approved by the Resolution of the Council of Ministers of the Republic of Belarus of 23 November 2018 No. 850 (the Regulation on Pre-Identification) elaborates the requirements of user identification. The owner of an internet resource or online edition must identify users that leave a message in a comments section or forum; in particular, via the short message service verification mechanism.
II LEGAL AND REGULATORY FRAMEWORK
The main legislative acts regulating the media and entertainment sector in Belarus are:
- the Civil Code of the Republic of Belarus of 7 December 1998 No. 218-Z;
- the Mass Media Law;
- the Law of the Republic of Belarus of 10 November 2008 No. 455-Z ‘On information, informatisation and information (data) protection’;
- the Law of the Republic of Belarus of 17 May 2011 No. 263-Z ‘On copyright and related rights’ (the Copyright Law);
- the Law of the Republic of Belarus of 5 February 1993 No. 2181-XII ‘On trademarks and service marks’;
- the Law of the Republic of Belarus of 29 December 2012 No. 8-Z ‘On publishing in the Republic of Belarus’;
- the Law of the Republic of Belarus of 10 May 2007 No. 225-Z ‘On advertising’ (the Advertising Law); and
- the Law of the Republic of Belarus of 12 December 2013 No. 94-Z ‘On counteraction of monopolistic activity and development of competition’.
The President of the Republic of Belarus has also adopted a number of acts regulating the media and entertainment sector. In practice, they all have greater legal force than laws owing to the fact that, in accordance with Law of the Republic of Belarus of 17 July 2018 No. 130-Z ‘On normative legal acts of the Republic of Belarus’, in the event of divergence of presidential edict or decree with the law, the law has primacy only when the authority to issue an edict or decree has been granted by law.
The main regulatory presidential acts in the media and entertainment sector are:
- Edict of the President of the Republic of Belarus of 1 September 2010 No. 450 ‘On licensing of certain types of activities’;
- Edict of the President of the Republic of Belarus of 1 February 2010 No. 60 ‘On measures to improve the use of the national segment of the internet’; and
- Edict of the President of the Republic of Belarus of 6 February 2009 No. 65 ‘On the improvement of the work of public authorities, other state organisations with the mass media’.
The Council of Ministers of the Republic of Belarus has formed the legal framework for:
- the opening of correspondent offices (of both national and foreign mass media);
- accreditation procedures for journalists of foreign mass media; and
- authorisation for distribution of foreign media products.
On 21 August 2014, Resolution No. 810 was adopted, which established an expert committee for the evaluation of information products for signs of extremism.
The central management body responsible for state regulation, coordination of work and development of the mass media sector is the Ministry of Information of the Republic of Belarus (MinInform). MinInform has certain subordinate organisations, including two TV channels and an internet service provider (ISP).
MinInform, inter alia, carries out:
- state registration of mass media and print media publishers, manufacturers and distributors;
- licensing of polygraphic (i.e., printing and print-related) and broadcasting activities;
- maintenance of state registers of:
- the mass media;
- print media product distributors;
- distributors of TV and radio broadcasting media products; and
- print media publishers, manufacturers and distributors of the Republic of Belarus;
- media monitoring;
- oversight of foreign mass media products to ensure compliance with Belarusian legislation;
- issuance of permits for purchases of printing equipment;
- distribution of foreign mass media products in the Republic of Belarus without changing its form or content;
- issuance of measures for the prevention of unlawful restrictions on media freedom, censorship and distribution of information prohibited for distribution;
- events for the development of mass media, organisations and individual entrepreneurs carrying out publishing, polygraphic and distribution of printed media and media products;
- development and adoption of regulatory legal acts and technical regulatory legal acts;
- development of state programmes;
- international cooperation in the field of media, including interaction with international organisations and corresponding bodies of other states, ensuring the fulfilment of obligations under international treaties with the Republic of Belarus;
- assistance in the organisation of correspondent offices, bureaus and other offices of state mass media outside the country;
- accreditation of journalists; and
- monitoring compliance with publishing and mass media legislation and licensing requirements in the sphere of publishing and broadcasting.
The National Centre of Intellectual Property is a state organisation ensuring the protection of intellectual property rights and exercising the functions of the patent body of the Republic of Belarus.
III FREE SPEECH AND MEDIA FREEDOM
i Protected forms of expression
While the Mass Media Law guarantees the freedom of opinion, belief and expression to everyone in Belarus, it establishes certain restrictions on information that may be disseminated through mass media.
Taking into consideration provisions of the Code of Administrative Offences of the Republic of Belarus of 21 April 2003 No. 194-Z, the Criminal Code of the Republic of Belarus of 9 July 1999 No. 275-Z and other legislation, the following information is subject to a special regime of protection:
- state secrets;
- official secrets;
- secret of adoption;
- medical secrets;
- personal data;
- commercial secrets;
- attorney–client privilege; and
- banking and tax secrets.
Among other things, the Mass Media Law also limits the dissemination of information about the system of organisation, sources, methods, plans and results of investigative activities, as well as materials of inquiry, preliminary investigation and court proceedings until the end of criminal proceedings.
Under the Mass Media Law, journalists have certain rights, privileges and duties regarding newsgathering. Thus, they are entitled to gather, request and receive information from public authorities, political parties, other public associations and legal entities (in accordance with certain specific rules established by such organisations).
Information and materials gathered by audio and video recording, filming and photography of a person without his or her consent cannot be disseminated until the application of measures against the possible identification of that person. This dissemination is possible provided that it does not violate personal rights and freedoms and is needed for protection of the public interest or in cases of dissemination upon request of the criminal prosecution body or the court for the preliminary investigation or trial.
The Draft Law on Personal Data specifies cases that do not require the consent of the data subject. In particular, the collecting, processing, dissemination or sharing of personal data for the purpose of a journalist’s professional activities or mass media activities, provided they are aimed at the protection of public interest, do not require the consent of the data subject. Such public interests shall constitute society’s need for detection and disclosure of information about threats to national security, public order, public health and the environment or information affecting the performance of public officials or public figures.
The Code of Administrative Offences states that unauthorised access to computer information and violation of the mass media legislation are punishable.
The Criminal Code outlaws the following methods of gathering information:
- illegal collection or dissemination of information about private life, including the use of special technical means or by an official using his or her official powers;
- invasion of privacy and other legal possessions of citizens;
- violation of confidentiality correspondence, telephone conversations, telegraphic or other communications;
- misappropriation of computer information; and
- illegal production, acquisition or sale of means of obtaining secret information.
iii Freedom of access to government information
The access to government information may be limited at the government’s discretion via the use of the accreditation mechanism. The Mass Media Law defines accreditation as a confirmation of the mass media journalist’s right to cover events organised by state bodies, political parties, other public associations or legal entities, as well as other events within and outside the country’s boundaries.
Belarus journalists obtain accreditation for specific events. To pursue their professional activities, foreign journalists are subject to mandatory accreditation by the Ministry of Foreign Affairs under the procedure established by the Regulation on the procedure of accreditation of journalists of the foreign mass media in the Republic of Belarus, adopted by the Resolution of the Council of Ministers of 25 December 2008 No. 2015. A foreign journalist can achieve permanent (one year or more) or temporary (up to two months) accreditation, depending on his or her functions.
The Mass Media Law does not allow unjustified refusal of accreditation. However, since there are no unified criteria in the legislation, government agencies can make their own decisions in the absence of specific procedures for the appeal of refusals.
A journalist operating without accreditation may face a fine for illegally producing media content.
The general right and procedure for obtaining information or clarifications is established by the Law of the Republic of Belarus of 18 July 2011 No. 300-Z ‘On applications from citizens and legal entities’. Therefore, journalists and the mass media may also use this general procedure for access to government information.
iv Protection of sources
Provisions of the Mass Media Law imply the rights to retain and disseminate information needed for professional activities. The dissemination may be carried out under the journalist’s signature, under a pseudonym or without a signature. Journalists may specifically indicate the confidentiality of authorship.
The Mass Media Law establishes the following duties for journalists:
- to respect rights, freedoms and legitimate interests of others;
- to check the accuracy of obtained information, as well as provide reliable information for dissemination;
- to indicate the authorship at the will of persons providing information;
- to maintain confidentiality of the information and its sources (with exceptions);
- to obtain consent of persons for the dissemination of information on their private life;
- to obtain consent of persons for audio and video recording, filming and photography, excluding in public places and during events and cases when measures against possible identification of the person are taken;
- to refuse the task given by the founder or (chief) editor if this task or its performance violates Belarus law; and
- to show press credentials on demand.
Journalists and legal entities entrusted with the functions of the editor of the mass media are not obliged to name the source of information and shall not disclose information about the source without its consent. However, this information shall be disclosed at the request of a criminal prosecution body or a court in connection with a preliminary investigation or trial.
v Private action against publication
Belarusian legislation provides for certain types of infringements entailing different consequences.
Therefore, the Mass Media Law entitles individuals and legal entities (including foreign entities) that have been the subject of unjustified media reports damaging their honour, dignity or business reputation to demand the editors to correct this information.
The Civil Code establishes that civil claims under these infringements imply the publisher’s obligation to provide evidence that the disseminated information reflects factual information. Otherwise, the publisher is obliged to distribute a correction statement (amendment or clarification). The correction statement shall be published in the same place and font as the original article, or broadcast at the same time of the day and during the same (or similar) programme as the original programme. Moreover, the concerned parties have the right to disseminate their answer in the same media or internet resources.
Along with the correction of information, legal entities have a right to claim compensation for losses, and individuals have a right to claim compensation for losses and moral harm.
Belarusian law contains provisions on liability for libel, insult and discreditation, as well as disclosure of the information considered to be secret. The legislation provides for offences against private individuals, legal entities, representatives of the state sector or even the state itself (the list of possible affected parties is different for each offence).
vi Government action against publication
Article 33 of the Constitution of the Republic of Belarus prohibits censorship, as well as monopolisation of the mass media by the state, public associations or individuals.
However, some critics claim that there is an uneven playing field for state and private mass media representatives. The critics mark a favourable status of the state mass media due to state support in form of financial, administrative, regulatory and bureaucratic mechanisms. In particular, these critics draw attention to accreditation mechanisms, the ability to obtain information from public administration bodies and access to the process of discussion and adoption of legislation.
MinInform, being the central management body responsible for the mass media sector, may issue written warnings, suspend issuance of media products and file lawsuits for termination of issuance of media products in cases provided by law. MinInform also possesses the authority to restrict access to internet resources and online editions, as well as to grant access again in cases provided by law. According to MinInform’s recent press releases, it has blocked websites containing information on the sale of drugs and inappropriate advertising. Certain online resources providing extremist materials are also subject to takedown based on court judgments listed on MinInform’s official website. The procedure of access limitation is not fully transparent (e.g., the list of blocked internet resources is available to certain state bodies and ISPs only) and does not allow individuals to follow the practice of the regulator’s decision-making to the full extent.
IV INTELLECTUAL PROPERTY
i Copyright and related rights
Belarusian legislation on copyright and related rights is created taking into account provisions of the main international treaties in the sphere, including the Berne Convention. The Copyright Law recognises the supremacy of international treaties. Consequently, the Berne Convention prevails, and the Copyright Law defines protection of works of foreign nationals who are neither citizens nor permanent residents of members states of the Convention.
The new Law of the Republic of Belarus of 15 July 2019 No. 216-Z introduced a number of amendments to the Copyright Law (the Copyright Amendments) aimed at the resolution of certain existing issues. The majority of amendments will enter into force on 27 May 2020. They deal with the following issues:
- introduction of an open licence as a non-exclusive licence concluded via a simplified procedure triggered by the commencement of use of the copyright or performance of other actions specified in the licence. The licence must be publicly available so that anyone can read it before using it. By default, an open licence will be free of charge. Its term will be equal to the term of the exclusive right for software, and to five years for other types of copyright and related rights. If the open licence does not stipulate a certain territory, it is considered to be worldwide. If the fee is established as a fixed amount, the agreement must also set a maximum number of reproducible copies of the work;
- consolidation of the licence agreement and authors’ agreement;
- introduction of an author’s right to conclude an oral licence agreement on the use of the work in periodicals, including the licensee’s right to conclude a free sublicence agreement and subsequent use of this work;
- Belarus plans to join the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled. This has entailed amendments to the Copyright Law regarding the transformation of works into a special format;
- allowance of the use of small works and parts of legally published works to the extent justified for educational purposes;
- reduction of the minimum compensation for copyright infringement from 10 basic units to one basic unit;4 and
- a new exception to personality rights (see Section IV.ii).
Another innovation in the legislation is relevant for cybersquatting. The information about a domain name owner may be hidden by the owner. Previously, the registrar would refuse to disclose information because of personal data protection. The Edict of the President of the Republic of Belarus of 18 September 2019 No. 350 ‘On features of use of national network segment internet’ allows for disclosure of information about domain name owners provided the request concerns ‘the registered means of individualisation’ of the requesting party.
ii Personality rights
The Copyright Amendments establish additional regulation in respect of personality rights. In particular, according to the Copyright Amendments, the reference to an author’s name when the work is used in a radio programme may be made either during the respective radio programme or by other means, provided that the radio programme contains information about such means.
Currently, effective laws provide one exception to the rights of publication and recall: the author of a work-for-hire has no right to prevent its publication by the employer, or to exercise his or her right to recall. The Copyright Amendments stipulate the other case of such limitation: the obligation of the author of an audiovisual work not to prevent the publication of the audiovisual work by the producer, or to exercise the right of recall, unless otherwise provided by the contract.
In a recent case regarding authors’ personality rights, an author found out that part of his poem was published in a newspaper and its online edition without his consent, appropriate award or indication of his name as the author. The claimant sued for the infringement of the exclusive right to reproduce and distribute the work and the infringement of exclusive right to communication to the public. The respondent referred to the Copyright Law and claimed that the part of the poem was used to the extent justified by informational purposes. The court held that a free use of work in mass media to the extent justified by informational purposes is allowed only as part of a report of current events, if the work is seen or heard; moreover, authors’ personality rights must be respected when using the work. Thus, all claims were fully met by the court.5
iii Unfair business practices
The Belarus media and entertainment industry market faces the following most widespread unfair business practices in the sphere of intellectual property rights:
- using social networks’ content without the author’s consent;
- using mass media as a means for unfair competition;
- posting or placing photos in articles without due attribution; and
- misattribution of articles themselves (i.e., signatures referring to groups of people), which contradicts the notion of author.
V COMPETITION AND CONSUMER RIGHTS
The mass media may be considered an instrument for unfair competition.
The Antimonopoly Law places a ban on the following unfair competition practices:
- flawed comparison;
- unauthorised acquisition or use of intellectual property;
- blurring; and
- illegal obtainment, use or disclosure of information constituting commercial, official or other secrets protected by law.
Considering recent case law, owners of internet resources are obliged to post correction statements in the same place and font of the original article, if articles posted on internet resources are recognised as damaging business reputation.6
There is a possibility of adopting new amendments to the Advertising Law,7 which may limit the amount of permissible information about awards, contests and rankings, as well as allow the use of images of individuals or property of individuals or legal entities without their consent if photographs were taken in public places, and are not the main object of advertising.
VI DIGITAL CONTENT
Because the Mass Media Law generally applies to internet resources, general requirements on unlawful content also apply to internet resources. The following types of content are unlawful:
- inauthentic information that could harm state or public interests;
- false information that discredits honour, dignity or business reputation; or
- information prohibited for distribution, in particular:
- information shared on behalf of an unregistered entity, if registration is obligatory (e.g., registration as mass media) or an entity about which there is an effective decision of the authorised state body on its liquidation;
- propaganda on the consumption of narcotic drugs and different analogues, as well as information on methods of their development, manufacture and use and purchase locations;
- information regarding minors who have suffered a wrongful act, without the consent of their representatives;
- information regarding methods of manufacturing explosive devices and explosives, as well as objects whose damaging effect is based on the use of combustible substances;
- inappropriate advertising (e.g., for tobacco products, alcoholic spirits);
- information aimed at promoting war or extremist activity or containing calls for such activity, pornography, violence and cruelty, including propaganda or inducing suicide; and
- hidden materials affecting the subconscious or having a harmful influence on health.
Users may restrict access to certain sites voluntarily under a contract concluded with an ISP.8 Edict No. 60 clarifies that responsibility for the content placed in the national segment of the internet is borne by the persons who posted this information or the internet resource owners.
MinInform may block internet resources or online editions. To avoid this scenario, internet resource and online edition owners must:
- prevent dissemination of restricted information, information that may harm the state or public interests, or unfounded information that is damaging to the honour, dignity or business reputation of individuals and legal entities;
- delete unlawful information; and
- not allow posting of information by other users without their preliminary identification. For that purpose the procedure for a user’s pre-identification during account registration and activation by text message has been established. This requires that terms and conditions shall include a warning about the inadmissibility of posts and materials containing information that is prohibited from being disseminated.9
If internet resource or online edition owners fail to perform their obligations, MinInform may issue an order to eliminate these violations.
VII CONTRACTUAL DISPUTES
Typically, disputes concern payment of the licence fee or penalties and interest incurred for late payment. The legislation does not provide for out-of-court procedures of resolution of such disputes.
One recent case is the scandal of 2017–2018 in the music sphere. A national artist sued one of the main TV channels for not mentioning his name as music author either at a concert or in the credits. The internet version of the TV channel did not mention his name either. The court found that his copyright was not violated on TV, as the titles contained information about the author. However, his name was not mentioned in the internet version. As a result, the author received compensation for moral damages. The same person filed a suit against another Belarusian national artist this summer for infringement of copyright, and intends to sue other Belarusian artists, due to the absence of agreements between the parties regarding the use of his works.
VIII YEAR IN REVIEW
The development of the media and entertainment sector in Belarus precedes the development of respective legislation. The government tries to maintain a balance of national interests and prevailing trends, and ensure national security by imposing pre-identification and other measures.
The latest amendments to the Mass Media Law define the position of internet resources and provide the option for sites to register as online editions. This registration enables the mass media status of internet resources and provides their employees with the status of journalists.
As social networks are becoming more influential, accurate development of their legal status is an important task for the future. The government might need to change its perception of certain groups, communities, bloggers or social network as a whole with regard to their powers in the spheres of both information and monetisation.
1 Kirill Laptev is a senior associate and Pavel Lashuk is an associate at Sorainen.
2 Adopted by Resolution No. 205 of the Council of Ministers of 2 March 2012.
3 Law of the Republic of Belarus of 17 July 2008 No. 427-Z ‘On mass media’.
4 The exact amount of basic unit is established by resolutions of Council of Ministers of the Republic of Belarus. As of 1 November 2019, one basic unit equals 25.5 Belarusian roubles.
6 Decision of the Appellate Instance of Minsk Economic Court of 17 January 2018, No. 313-3/2017/1869A.
8 Regulation on the procedure for restricting (resuming) access to the internet resource approved by the joint Resolution of the Operational and Analytical Centre under the President of the Republic of Belarus, the Ministry of Communications and Informatisation of the Republic of Belarus and the Ministry of Information of the Republic of Belarus of 3 October 2018, No. 8/10/6.
9 The Regulation on Pre-Identification (see Section I).