Below, are the excerpts from various reports that underline, legislative and regulatory framework concerning Freedom of Expression (FoE) in Azerbaijan in particular to internet freedom.
ANALYSIS OF AZERBAIJANI LEGISLATION ON FREEDOM OF EXPRESSION [Partnership for good governance]
- […] there is an increasing criminal liability for defamation, in particular, following the introduction of heavy penalties for anonymous defamation;
- broad categories of information are removed from the media and public discussions as confidential or classified;
- broadly formulated prohibitions on calls to violent, and vaguely defined extremist activities, and general prohibition of religious literature;
- the application of these provisions, as evidenced in the exemplary decisions of ECtHR, is nothing but arbitrary.
Internet is considered a “mass media” according to Azerbaijani law and general regulations and rules therefore also applies to information available on the Internet.
According to the Council of Europe standards with regard to freedom of expression on the internet, “any measure taken by State authorities or private-sector actors to block, filter or remove Internet content or any request by State authorities to carry out such actions must comply with the requirements set by Article 10 of the Convention. They must, in particular, be prescribed by a law that is accessible, clear, unambiguous and sufficiently precise to enable individuals to regulate their conduct. They must at the same time be necessary in a democratic society and proportionate to the legitimate aim pursued.”
In Azerbaijan, from March 2017 amendments to laws “on telecommunication” and “on information, informatization, and protection of information” were adopted that provides for extensive powers of executive authorities and far-reaching regulation of the internet in Azerbaijan.
Most significant amendments are the new provisions in the law ‘on information’ that target the internet directly. This law provides for the regulation of “internet information resources” that are defined as “an information resource created on the internet, which is used in order to disseminate information, and which can be addressed by a domain name or other signification determined by its owner”.
Telecommunication operators are defined as:
“a legal entity or an individual engaged in entrepreneurial activity that provides telecommunications services on a legal basis through a telecommunications network owned by it”, and provider as “a legal entity or an individual engaged in entrepreneurial activity that provides telecommunications services using the network of a telecommunications operator”.
Telecommunication is defined as:
“remote transmission and reception of any signals, sounds and images using electrical or electromagnetic means of communication (cable, optical, radio communication, etc.)”, and
telecommunication network as “a set of various kinds of facilities and devices, united in a single technical and technological system for providing telecommunications”.
The state regulates following areas of telecommunications activities:
- organization of the use of the numbering resource;
- licensing of telecommunications;
- certification in the field of telecommunications;
- application of tariffs for telecommunications services and the use of radio frequencies;
- securing a healthy competitive environment and antitrust measures in the telecommunications sector;
- organization of the use of radio frequencies;
- reciprocal interconnection between operators;
- registration of telecommunication operators and providers;
New Article 13-1 of the law “on telecommunication” requires registration of internet operators and providers in Azerbaijan with the Ministry of Transportation, Communication and High Technologies (MTCHT). Providers and operators must register within 15 days since the start of the provision of services and must inform MTCHT about any changes to the registered information within 10 days after the change takes place.
Rules for registration are to be established by the MTCHT, and operators and providers will have 2 months to apply for registration.
Providers and operators are not responsible for the content of messages transmitted over telecommunications networks unless otherwise provided for by law.
Law on information establishes personal responsibility for “owners” (defined as “persons that have ownership or usage rights to an internet information resource, freely determining usage of and rules for placement of information on such resource”) of internet information resources (hereinafter ‘IIR’) with regard to the content of such resources. If the owner of an IIR or a domain name is a legal entity, the website should provide “in a readable format and place its name, organizational-legal form, email address” and if the owner is an individual, then “first name, last name, father’s name, and email address”.
Owners of IIR or domain names must not allow distribution on the IIR of the following information:
- propaganda and financing of terrorism, as well as methods and means of terrorism, information about training for the purpose of terrorism, as well as open calls for terrorism;
- information on the propaganda of violence and religious extremism, open calls directed to the evocation of national, racial or religious enmity, violent change of the constitutional order, territorial disintegration, violent seizure or maintenance of power, organization of mass riots;
- state secrets;
- instructions or methods for producing firearms, their component parts, ammunition, and explosive substances;
- information on preparation and usage of narcotic drugs, psychotropic substances, and their precursors, about locations of their unlawful acquisition, as well as information on the location of and methods of cultivation of plants containing narcotic substances;
- pornography, including information related to child pornography;
- information on the organization of and incitement to gambling and other unlawful betting games;
- information disseminated with a purpose to promote suicide as a method of solving problems justifies suicide, provides the basis for or incites to suicide, describes the methods of committing suicide, and organizes commission of suicide by several individuals or organized group;
- defamatory and insulting information, as well as information breaching inviolability of private life;
- information breaching intellectual property rights;
- other information prohibited by the laws of the Republic of Azerbaijan.
If the owner of IIR or of its domain name discovers such information or receives an appeal that such information is provided on the IIR, she or he must ensure that such information is removed from the resource. Furthermore, if a hosting provider is in such a situation, it must take measures to ensure the removal of such information by the owner.
MTCHT can issue a written warning to the owner of IIR, owner of its domain name, and to the hosting provider. If the information is not removed within 8 hours after such a written warning, MTCHT can appeal to a court to restrict access to the IIR. If there is an “urgent situation of danger to the interests of the state and society protected by law or real threat to life and health of individuals”, access to the IIR can be restricted by a decision of MTCHT.
If MTCHT takes such a decision, it at the same time must apply to a court, and the access restriction remains in force until a court decision is made. A court must consider MTCHT appeal and make a decision within 5 days, while an appeal of such a decision does not postpone its execution.
The law provides for the establishment of a “List of Information Resources that contain information prohibited for distribution”. Information resources are placed on that list by MTCHT if there is a decision by MTCHT or a court about restricting access to an IIR. Rules concerning the contents of this list, its composition, supervision of its enforcement, and arranging for reciprocal contacts between host and internet providers are to be determined by the MTCHT.
MTCHT can add an IIR to this list based on an individual request if the IIR owner does not ensure the removal of prohibited information, and there is a court decision prohibiting the distribution of such information. Once an IIR is listed, the internet and host providers must immediately restrict access to it, and notify the owner of the IIR in this regard. The law provides that IIR owners, domain name owners, host providers, and internet providers may be held responsible for violations of these provisions.
Besides the Constitution, various laws, presidential decrees, decisions of the Cabinet of Ministers, as well as regulations of various central executive bodies regulate the issues relevant to various aspects of the freedom of expression.
Incitements to violence
Azerbaijani criminal code provides punishments for various types of ‘calls’ (çağırış) to violent actions. It is characteristic that the criminal code does not take into account the probability or imminence of the harmful outcome to which the “call” is made. Neither does it account for the context in which the ‘call’ is made in evaluating whether an utterance deserves criminal punishment. Usually, the punishment is higher when a ‘call’ is disseminated publicly through media. Thus article 101 of the Criminal Code establishes criminal responsibility for “public calls to unleash an aggressive war”, which when made through the mass media or by an official, is punishable by imprisonment for a term of 2 to 5 years, with or without deprivation of the right to engage in certain activities for a period of up to 3 years.
There are three more provisions in the Criminal Code that deal with incitements to violence of various kinds. Most prominently, Article 214-2 provides for imprisonment of up to 5 years for “public calls or dissemination of materials with contents that make a public call” for a substantial category of actions, including (attacks on internationally protected persons and organizations; terrorism; terrorist training; hostage-taking; hijacking air or water transportation ships or railway trains; sea piracy; illegal handling of radioactive materials; plundering of extorting radioactive materials; attempts on the life of a statesman or a public figure; creation of armed groups or associations not provided for in law; sabotage).
Under Article 220.2 of the Criminal Code, calls for “active disobedience to legitimate demands of government officials and to riots, as well as calls for violence against citizens” are punishable by imprisonment for up to 3 years. Another important provision on sedition is contained in Article 281 of the Criminal Code that criminalizes “open calls for the forcible seizure of power, violent holding of power or violent change of the constitutional order or violation of the territorial integrity of the Republic of Azerbaijan, as well as distribution of materials of this content” with imprisonment of up to 5 years, and imprisonment from 5 to 8 years if committed repeatedly or by a group of persons. If these actions are “committed on the instructions of foreign organizations or their representatives”, then imprisonment ranges from 7 to 12 years.
The legislation of Azerbaijan provides for both civil action and criminal prosecution of defamation. Venice Commission in its 2012 opinion on defamation legislation in Azerbaijan noted that the criminalization of defamation on the internet in Azerbaijan “goes against the most recent trends in the field of defamation” and is “extremely worrying and disappointing”. Moreover, it noted that “the mere threat of punishment for defamation with the possibility of a criminal penalty such as imprisonment is sufficient to cause a “chill effect” suitable for restraining freedom of speech”.
According to Article 23 of the Civil Code (“Protection of honor, dignity and business reputation”), individuals can pursue legal action in courts for information “discrediting one’s honor, dignity or business reputation, violating the secret of one’s personal and family life, or personal and family inviolability”. Furthermore, the protection of honor and dignity of individuals is allowed even after the death of the individual. Legal entities can pursue action for information discrediting their business reputation.
If it is impossible to identify the person that disseminated the discrediting information, such information shall be deemed untrue. The law does not differentiate factual information from opinions.
As of March 2017, there are four articles in the Criminal Code that provide criminal liability for defamation.
Article 147 penalizes “slander” which is defined as “dissemination of deliberately false information discrediting the honor and dignity of another person or undermining his reputation which is done in a public speech, publicly displayed work, in mass media, or publicly disseminated in an internet information resource” and is punishable with a fine from 100 to 500 AZN, or by public works from 240 to 480 hours, or correctional labor for up to one year, or imprisonment for up to 6 months.
The second part of this article holds that when slander is “combined with the accusation of a person in committing a grave or especially grave crime” then it is punishable by correctional labor for up to 2 years, or by imprisonment for up to 3 years.
Article 148 establishes criminal liability for “insult“, which is defined as “a humiliation of the honor and dignity of another person, expressed in an indecent manner in a public speech, a publicly displayed work in mass media, or publicly disseminated in an internet information resource“. Insult is punishable by a fine from 300 to 1000 AZN, or by public works from 240 to 480 hours, or by correctional labor for up to 1 year, or by imprisonment for up to 6 months.
On 29 November 2016, new Article 148-1 was added to the Criminal Code that establishes criminal liability for defamation or insults on the internet done anonymously or by using “fake name”. The exact formulation of the crime is “slander or insult committed with using a fake user name, profile or account at an internet information resource” and it is punishable with a fine from 1000 to 5000 AZN, by 360 to 480 hours of public works, or correctional labor of up to 2 years, or imprisonment of up to 1 year.
The article clarifies in a note that “fake user name, profile or account” actually covers “names, profiles or accounts at internet information resources, that do not allow identification of user’s person, including user names, profiles or accounts hiding or providing false information relating to name, surname, patronymic, or providing information about another person obtained without her/his consent at social networks”. Thus, anonymous or satirical, and perhaps even genuine artistic pseudonyms and pen-names may fall under the scope of this provision.
Article 323 that criminalizes defamation of the President of the Republic of Azerbaijan was extended to include defamation on the internet and especially done through “fake names” and anonymously. The current state of Article 323 holds that “smearing or humiliation of honor and dignity of the President of the Republic of Azerbaijan in a public speech, publicly displayed work, in mass media, or publicly disseminated on an internet information resource” is punishable by a fine from 500 to 1000 AZN, or correctional labor of up to 2 years, or imprisonment of up to 2 years.
Moreover, when such smearing or humiliation is “committed publicly on an internet information resource by using a fake user name, profile or account” then they are punishable by a fine from 1000 AZN to 1500 AZN or imprisonment up to 3 years30. The punishment increases if such “smearing or humiliation” is “combined with the accusation of committing a grave or especially grave crime”, and becomes imprisonment ranging from 3 to 5 years. Note to Article 323 makes a disclaimer that it does not apply to “public statements containing criticism of the activities of the head of the Azerbaijani state – the President of the Republic of Azerbaijan, as well as the policies carried out under his or her leadership”. Nevertheless, there is a significant scope for utterances that do not constitute “criticism”, but may include, for example, discussions of legality of President’s actions, corruption allegations, or simply opinionated statements that may be perceived as hostile and partial, that could lead to 5-year imprisonment.
According to the law “on state secret”, list of information classified as state secrets is determined by the President of the Republic of Azerbaijan.
While there are some broad categories of information that cannot be classified as state secrets, there are equally extensive and broad categories of information subject to classification. The main issue is of course that the decisions to classify and declassify information are not amenable to judicial scrutiny, and therefore the relevance of classified information is ostensibly opaque.
At the same time, criminal code provides for serious penalties for the dissemination of state secrets and spying, that unfortunately have been applied to journalists in Azerbaijan. These include separate provisions for state treason (Article 274), disclosure of state secrets that do not amount to treason (Article 284) and unlawfully obtaining state secrets (284-1), and espionage committed by foreign citizens or individuals without citizenship (Article 276). Heaviest sentences are possible for treason, which can only be committed by a citizen of Azerbaijan and includes “crossing over to the enemy side, espionage, transfer of state secret to a foreign state, assistance to a foreign state, foreign organization or their representatives in conducting hostile activities against the Republic of Azerbaijan to the detriment of the sovereignty, territorial integrity, state security or defense capability of the Republic of Azerbaijan” and is punishable with imprisonment from 10 to 15 years or life imprisonment.
Private, confidential and secret information
Restrictions on information deemed as private are constantly increasing, and 2016 amendments to the Constitution reflect this trend and provide a basis for further extension of privacy at the expense of the freedom of expression. Article 32 of the Constitution (Right to Personal Inviolability) provides in section 3 that as a rule “no one can be subjected to surveillance, video, photographic and voice recording, and other similar actions without one’s knowledge and notwithstanding one’s objections”.
The prohibition of recording and taking photos of individuals without their consent is reflected in the law “on obtaining information”, which provides that “surveillance, video, photographic, and sound recording, and other similar actions by representatives of the mass media and other persons, performed against a person without his knowledge or contrary to his consent” outside of law enforcement activities are subject to liability in law.
Criminal Code provides in Article 156 (“Infringement of inviolability of private life”) that “illegal collection, dissemination of information about the private life of a person that constitutes his personal or family secret, as well as the sale or transfer to another person of documents, video and photo materials, sound recordings with such information” is a criminal offense, punishable by a fine (100-500 AZN), public works (240-480 hours), or correctional labor (up to 1 year); and if committed by an official using his official position, then by imprisonment for up to 2 years (with or without deprivation of the right to hold certain positions or engage in certain activities for up to 3 years).
Moreover, “unlawful dissemination” in the mass media of recordings (video, voice or photographic) taken “in the course of proceedings concerning administrative offenses” without the consent of both the person subjected to administrative responsibility and the victim, is punishable with a fine from 1000 to 1500 AZN on officials.
New provisions in Article 32 of the Constitution, introduced by the 2016 amendments (paragraphs 6, 7, and 8) provide that “it is prohibited to access electronic or paper information resources to gain information about third persons, except in cases provided in law”. Moreover “information technology cannot be used to disclose information on private life, including the belief, religion, and ethnicity of individuals without their express consent” with the exception of anonymous and non-discriminatory statistical publications.
The very breadth of protected information, as well as heavy criminal sentences, may be problematic for journalistic freedom, considering that in the current circumstances mere discussion of ownership of any companies is effectively banned. This would seriously inhibit, and at times make it impossible, to discuss allegations of conflict of interest or corruption involving ownership or shareholding of any commercial legal entity.