This is part one in a series of detailed reports and analysis on existing legal amendments and new legislation affecting freedom of expression, media, and online rights in Azerbaijan and their compliance with international standards for freedom of expression.
In March of last year, AIW shared an update about amendments to an existing bill on Information provisions, Informatization, and Protection of Information and Code of Administrative Offences of the Republic of Azerbaijan. Now, let’s take a closer look at these amendments and what they entail.
Amendments to the Information Law
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.
Amendments to the Code of Administrative Offences
During the same plenary meeting on March 17, 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.
Implementation of the Amendments (abuse of application)
Shortly after the amendments, police applied these provisions frequently against individuals, including political activists and journalists despite the call from the United Nations, Council of Europe, and OSCE expert bodies urging the authorities to address the disinformation in the first instance by relevant government institutions, providing reliable information and resorting to other restrictive measures, only where they met the standards of necessity and proportionality. This did not prevent authorities from targeting a number of activists and journalists in the following days.
On April 16, 2020, Human Rights Watch documented how Azerbaijani authorities abused quarantine restrictions allegedly to fight with disinformation while arresting opposition activists and silencing the government critics. HRW documented at least six activists and opposition journalists’ sentenced to detentions ranging from 10 to 30 days.
March 21, 2020, Ilgar Atayev was called in for questioning and charged with article 388.1 of the code of administrative offenses – sharing prohibited information on the Internet or Internet – telecommunication networks. According to Meydan TV, an independent online news platform, although Atayev informed that the charges against him were sent to court, he was not aware of the exact accusation. Authorities claimed at the time, Atayev, shared information on COVID without quoting official sources and that the shared information was false.
March 23, 2020, according to the Ministry of Internal Affairs’ press service, three people were administratively arrested for allegedly spreading misinformation about the coronavirus infection.
March 27, 2020, according to the Ministry of Internal Affairs’ press service, between March 26 and 27, 15 people were identified and summoned to the local police on the grounds of allegedly spreading misinformation about the coronavirus infection on social networks and WhatsApp instant messaging application. After the relevant investigations, police warned seven people, fined five, and sentenced three to administrative detention.
April 4, 2020, according to the Ministry of Internal Affairs’ press service, during the control measures carried out between April 1-2, one person was administratively arrested, and five people were fined for allegedly spreading false information about the coronavirus infection on social networks, including WhatsApp instant messaging application.
April 6, 2020, according to the Ministry of Internal Affairs’ press service, one person received a warning for allegedly spreading false information about the coronavirus infection on social networks, including WhatsApp instant messaging application.
Amid on-going arrests, detentions, and fines, on April 3, 2020, the Council of Europe Commissioner for Human Rights issued a statement noting that press freedom must not be undermined by measures to counter disinformation about COVID-19.
Analysis of the law
Content regulation rules and policies which presumably touch on the freedom of speech must meet the strict criteria under international and regional human rights law. According to the European Court of Human Rights jurisprudence, a strict three-part test is required for any content-based restriction.
The Court notes that the first and most crucial requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful.
The second paragraph of Article 10 stipulates that any restriction on expression must be “prescribed by law”. Furthermore, any restrictions need to be necessary for a democratic society [See Sunday Times v. UK (No. 2), Series A no. 217, 26.11.1991, para. 50; Okçuoğlu v. Turkey, No. 24246/94, 8.7.1999, para. 43.] and the state interference should correspond to a “pressing social need”.[See Sürek v. Turkey (No. 1) (Application No. 26682/95), the judgment of 8 July 1999, Reports 1999; Sürek (No. 3) judgment of 8 July 1999.] The state response and the limitations provided by law should be “proportionate to the legitimate aim pursued” [See Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999-III.] Therefore, the necessity of the content-based restrictions must be convincingly established by the state [The Observer and The Guardian v. the United Kingdom, the judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59.]
The Law on Information, Informatisation, and Protection of Information (Law № 460-IQ)
In 2017, the Law (1998) was updated with a series of restrictive amendments, converting the Law from a technical regulation into a content regulation.
Primary concerns of the Law concerning content regulation:
Owner of the Internet information resource, including owners of the domain name, host, and internet providers bear a strict administrative liability to remove the content manifestly prohibited under article 13-2.3 within 8 hours of notice;
In urgent cases, [when the legally protected interests of the state and society are threatened or there is a real threat to human life and health requires to do] the internet information resource may be temporarily restricted on the basis of a decision of the regulatory body – Ministry of Transport, Communications and High Technologies [restriction is applied without a court order. Although an application is made to the court, the decision to close down the online information source remains in force until the court handles the case or the decision is annulled.]
In refusing to remove the content upon the government’s notice within the 9 hours, owners of internet information resources, owners of domain names, host, and internet providers will face a court sue with possible administrative sanctions.
Safeguards against removal and blocking procedures:
Article 13-3.1 of the law provides that the relevant executive authority (regulatory body) shall issue a warning to the owner of the Internet information resource and its domain name and the hosting provider in writing if it directly discovers cases of placement of prohibited information in the Internet information resource or identifies it based on substantiated information received from individuals, legal entities or government agencies;
Existing legislation and practice concerning content removal and blocking do not provide adequate safeguards against arbitrariness;
for instance, there is no requirement to inform the information resource owners, Internet and host providers or owners of other sites and their users before issuing the content removal warning, and failure to implement the warning leads to a penalty because the Code of Administrative Offenses provides for liability for both the posting of prohibited information and the failure to remove prohibited information posted on the Internet.
The Law on Information, Informatisation, and Protection of Information provide that warning about content removal is considered a mandatory requirement and that failure to obey is sanctioned under Article 388-1.1 of the CAO and possible court sue for block order.
Content removal and blocking procedures also lack transparency and fairness:
The law does not oblige the regulatory body to provide the information resource owners, internet and host providers, or other sites’ substantiated opinion reasoning for the content prohibited. In other words, the regulatory body and other state authorities can request to remove the content or block access to websites without any obligation to substantiate their demands.
Vague Terms and Quality Law Standards:
Sufficient clarity is the requirement of the quality law standard established by the ECHR case-law which requires that the law be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual to foresee the consequences which a given action may entail, and indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise [see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000‑XI; and Ahmet Yıldırım, cited above, §§ 57 and 59].
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).
For instance, article 13-2.3.2 of the Law (№ 460-IQ) classifies the information on the promotion of violence and religious extremism and calls for the separation of territorial integrity as prohibited content. The religious extremism and calls for the separation of territorial integrity are vague terms and lack sufficient clarity.
The Law on Combat with Religious Extremism (LCRE) adopted in December 2015, in article 184.108.40.206 defines religious extremism with vague and problematic expressions. The Law refers to acts as “humiliating national dignity,” “compromising religion,” and “preparing, storing and disseminating religious extremist material” as amounting to religious extremism. Expressions such as “national dignity” or “humiliation of national dignity” are non-legal concepts that are not defined in the domestic laws and therefore subject to broad interpretation by the authorities applying them, opening the way to misinterpretation of the concept and its application in an arbitrary manner [Furthermore, article 220.127.116.11 of the LCRE refers to “forcing someone to practice any religion (religious belief), including performing religious ceremonies and rituals as well as to religious education” as another act of religious extremism, which is equally problematic and may collide with the idea of spreading ideas of religious beliefs and inviting others to join, as a part of exercising freedom of religion, subject to the interpretation of the two concepts by the authorities, in absence of any criteria or clear terms in place. As the ECtHR has ruled, freedom of religion and the freedom to change religion in particular cover activities aimed at persuading others to change religion.]
Another problematic provision is article 13-2.3.9 of the law, which classifies insult and slander as the prohibited content online. Generally, the legislation of Azerbaijan provides for both civil action and criminal prosecution of defamation. As to the criminal prosecution of defamation, as of March 2017, there are four articles in the Criminal Code that provide criminal liability for defamation. With the amendments to the Law on Information, Informatization, and Protection of Information and Code of Administrative Offences on 17 March 2020, defamation is now sanctioned under the code of administrative offenses.
In practice, police often apply this provision against people who allegedly insult police or other state officials.
On June 27, 2020, police arrested and fined several individuals who criticized the singers who devoted a song to the police claiming, they allegedly insulted the singers on social networks, insulted their honor and dignity. Meydan TV’s investigation revealed that most of those punished were representatives of opposition parties such as the Popular Front, Musavat and public activists. They were punished under Article 388-1 (posting of information prohibited from dissemination on the Internet).
However, the application of this provision contradicts with the domestic legislation. In Azerbaijan, it is not up to the police to classify the information on the grounds of slander or insult and instead is defined exclusively by the respective domestic courts upon the complaints of the individuals.
According to well-established court practice, courts always decide to conduct an expert examination to assess whether information/opinion is insulting or slanderous, and then the judge relies on the result of the expert examination. Furthermore, the law does not exclude the possibility that the same statement may be subject to both civil and criminal proceedings for defamation.
Furthermore, the law does not specify how the sanction might be imposed if alleged prohibited content is identified. It is not clear from the text whether the website user will bear the responsibility alone or together with the owner of the internet or host provider. It is seemingly left to the executive authority to decide. For instance, in the case of a media article that allegedly contains prohibited content, the government may block the website forever in parallel, imposing sanctions on the content owner (user of the information resource).
Proportionate and necessary:
As discussed above, if the restriction does not meet proportionality and necessity requirements, the content removal or blocking measures may lead to violation of freedom of expression guaranteed under article 10 of the European Convention on Human Rights. Law on Information, Informatisation, and Protection of Information fail to specify a definition of the categories of blocking orders, such as blocking of entire websites, Internet Protocol (IP) addresses, ports, network protocols or types of use, like social networking, including a limit on the duration of the blocking order which is crucial parameters of the interference to assess whether applied methods are proportionate and necessary in a democratic society to limit the freedom of expression.
This ambiguous law gives extensive flexibility for the state to consider different, particularly critical views as false and government views as correct. The new amendments stipulate that the information shared on the Internet, which disrupts activities of the state institutions, is prohibited and punishable under the Code of Administrative Offences. While false information is also prohibited and punishable if such information threatens other socially dangerous consequences, which the law does not define.
Such vague definitions and ambiguous expressions provide extensive discretion powers for the state authorities, allowing them to label critical views as false and prohibited. Given the abovementioned concerns, the Law on Information, Informatisation, and Protection of Information does not comply with international standards on freedom of expression. Its scope remains incredibly broad in terms of vague definitions, lack of safeguards, and procedural guarantees.