On December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a midnight trial, on charges of publishing prohibited information on an information resource or information/communication network under the law on Information, Informatisation and Protection of Information. The journalist was charged under Article 388.1.1 of the Code of Administrative Offenses.
Mammad, who often reports on the army, was invited to the Prosecutor General office on December 18 over his recent reporting published on Yenicag.az website.
“I explained [at the Prosecutor General office] that the recently published work is the result of investigations I have been conducting for a while now. I was then taken to the court. They had a hearing late at night and fined me in the total amount of 500AZN. It was so late that when the judge asked if I wanted a lawyer, I decided to defend myself because I did not want to bother anyone so late in the evening,” Mammad told in an interview with an online news platform Toplum.tv.
The controversial law on Information, Informatisation, and Protection of Information was first adopted in 1998. In March 2017, a series of restrictive amendments were added to the law, converting the law from a technical regulation into content regulation. In March of 2020, the law was updated yet again. In a previous analysis of the law, AIW together with a legal expert identified some of the key challenges and loopholes in the law, such as:
- In the list of prohibited information envisaged in the Law on Information, Informatisation, and Protection of Information, the definition of what entails prohibited content is described with vague expressions that are open to excessive interpretations. With these terms, the state authorities “enjoy” a broad discretion power to categorize any information as prohibited (Law № 460-IQ);
- Amendments to an existing bill on Information provisions, Informatization, and Protection of Information extended the subjects – to users – of responsibilities for placement of prohibited information, including the “false information” on information-telecommunication networks.
This means that amendments establish the liability over the information-telecommunication network users to place prohibited content on the information-telecommunication networks;
The amendments also added an item to the list of prohibited content, forbidding the placement of false information: thus, prohibited information was considered “false information [yalan məlumatlar] in case it posed a threat to harm human life and health, cause significant property damage, mass violation of public safety, disrupt life support facilities, financial, transport, communications, industrial, energy and social infrastructure facilities or other socially dangerous consequences.”
In other words, if users placed content on the internet that might be considered false information capable to disrupt the functioning of state bodies or their activities it can be considered on the grounds of violating the existing law.
Article 388 of the administrative offenses
During the same plenary meeting in March 2020, an amendment to article 388-1 of the Code of Administrative Offenses (CAO) of Law No. 27-VIQD was also approved.
Article 388-1 of the CAO was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal person owners of internet information resources and associated domain names as well as on users of information-telecommunication networks for the placement, or the violation of provisions of the Information Law aiming at preventing the placement, of prohibited information on such internet information resources.
With the amendments introduced to laws, users of the information-telecommunication network, owners of internet information resources, and domain names might be punished under Article 388-1 of the CAO. The penalty for the offense is a fine between 500 and 1000 manats (about US$294–$588) for real persons and 1000 to 1500 manats for officials, with an option of up to one month of administrative detention for both classes of persons depending on the circumstances and the identity of the offender.
During the first year of the pandemic, the same administrative offense was used to target scores of political activists.