Who regulates content online in Azerbaijan? Legal analysis

In this new legal analysis, we specifically look into content regulation on the internet carried out by the Prosecutor’s office and how the measures in place, silence free speech often relying on the use of a restrictive law on Information, Informatization, and Protection of Information.

As the use of the Internet grew in Azerbaijan, so did the measures adopted by the government to regulate the internet space, through legal changes that would tighten existing regulations. As such the ranking of Azerbaijan in Freedom House Freedom on the Net report as “not free” is indicative of the deteriorating internet freedom in several directions, including control of the ICT market, infrastructural challenges, restrictive legal measures, accounts of harassment of citizens for online criticism, and more. Numerous evidence-based reports point out the extent of coordinated, and deliberate efforts deployed by the government in Azerbaijan to restrict free speech on the users of social networks, journalists, and media at large in recent years.  

Currently, two laws regulate what constitutes prohibited information on the internet and the liability for violating these requirements. These are the Law on Information, Informatization, and Protection of Information, which defines the requirements and responsibilities for individuals; and the Law on Media, which defines the (almost) similar and additional requirements and responsibilities for journalists and media.

In addition, the presidential decree dated February 22, 2022, instructed the Ministry of Justice to prepare and submit a draft law on measures for violating information and media legislation on the internet to the government within a month. The law is yet to be adopted and concerns over its text and procedural implementation give ground to worry for a new restrictive law to be adopted not to mention its implications to further stifle free speech online.

Until then, an uptick in recent months, of cases in which social media users have faced punitive measures for their online activism indicates that the Prosecutor General Office has taken on a temporary role of taking measures against activists, journalists and media within the scope of laws on information and media. As such we decided to dedicate our next legal analysis report to the practices and activities of the general prosecutor’s office within the framework of national and international legislation. 

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In Azerbaijan, the Code of Administrative Offences and the Criminal Code regulate the legal sanctions against violations of the Law on Information, Informatization, and Protection of Information. However, as noted above, an uptick in administrative penalties and warnings issued to media, journalists, and social network users in recent months shows that the main government institution carrying out monitoring, and handing out penalties and warnings has been the Prosecutor General’s Office.

This frequent and at times, aggressive interference by the prosecutor’s office, which normally is in charge of investigating criminal cases and is the prosecuting authority, itself raises a number of concerns with regard to freedom of expression and the media.

The prosecutor’s office argues that the official warnings issued by the institution are a precautionary measure for violating existing. It is worth noting, that laws here are also broadly defined. Local human rights lawyers and experts, suspect, that the prosecutor’s office relies on existing bills on Information, Informatization, and Protection of Information as well as the Media, however, it could also refer to additional articles of the Criminal Code. Therefore, the legality of these acts is questionable.

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Recent amendments to the Information Law

On  December 27, 2021, the Azerbaijani parliament (Milli Məclis) adopted new amendments to the Law of the Republic of Azerbaijan On Information, Informatization, and Protection of Information (30-VIQD).

One of the amendments includes expanding the measures against the prohibited content*

*Neither the previous nor the iterated version of the law clearly defines what is prohibited content leaving extensive room for the relevant state actors to decide, and based on these overt decisions,  restrict freedom of expression online.  

Previously, the owner of the internet information resource and domain name, and the hosting provider were responsible for removing (deleting) the information (specific content such as articles) from the information resource (website). The iteration obligates the owner, and the hosting provider, to block access to that content (article) on its website (Article 13-2.4, and 13-2.5).

As the law on information determines a list of grounds that define which content is prohibited, it also sets obligations for domain and information resource owners and host providers to remove or block the content upon receiving the warning from the executive authorities. In cases when content removal or blocking is not implemented, relevant executive authority applies to the court. As such, it is the judicial powers making a final judgment on the (il)legality of reported content rather than the executive power. This also means that the warnings issued by the executive authorities to the information resource and domain owners and host providers must not introduce liability. Because, when a court draws its final decision, it applies the principle of proportionality ensuring that different interests are balanced against each other.

Prohibited content as defined in the Law on Information (Article 13.2) and the Law on Media (Article 14). 

Law on Media: 

14.1.1. open calls must not be made for a forcible change of the constitutional order of the Republic of Azerbaijan, the disintegration of its territorial integrity, forcible seizure or retention of power, mass riots;

14.1.2. there must be no disrespect for the state symbols of the Republic of Azerbaijan;

14.1.3. norms of the state language must be observed;

14.1.4. discrimination on grounds of race, religion, origin, gender, ethnicity, and other discrimination must not be promoted, and also no open calls must be made for inciting ethnic, racial, or religious hatred;

14.1.5. terrorism, religious extremism, violence, and cruelty must not be propagated, and also, information aimed at financing terrorism, organizing or conducting training for terrorist purposes must not be disseminated, and open calls for terrorism must not be made;

14.1.6. words and expressions, gestures with immoral lexical (swearing) content must not be used;

14.1.7. the humiliation of honor and dignity, tarnishing of business reputation is not allowed;

14.1.8. secret information about a person’s family and private life must not be disseminated;

14.1.9. there must be no libel, insults, or hate speech;

14.1.10. actions that are contrary to the protection of health and the environment must not be propagated;

14.1.11. facts and developments must be commented on impartially and objectively, one-sidedness is not allowed;

14.1.12. parapsychology (psychics, mediums, etc.), superstition, or other kinds of fanaticism must not be propagated;

14.1.13. pornographic materials must not be published (broadcast);

14.1.14. information about a person being guilty must not be published (broadcast) without a valid court decision;

14.1.15. the requirements provided for in the Law of the Republic of Azerbaijan “On protection of children from harmful information” must be complied with;

14.1.16. other information provided in Article 13-2.3 of the Law of the Republic of Azerbaijan “On information, informatization, and protection of information” must not be broadcast.

Law on information, informatization, and protection of information:

*false information threatening to harm human life and health, causing significant property damage, mass violation of public safety, disruption of life support facilities, financial, transport, communications, industrial, energy, and social infrastructure facilities, or leading to other socially dangerous consequences.

  • 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, and 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 the purpose to promote suicide as a method of solving problems justifies suicide, provides the basis for or incites suicide, describes the methods of committing suicide, and organizes the commission of suicide by several individuals or organized groups;
  • defamatory and insulting information, as well as information breaching the inviolability of private life;
  • information breaching intellectual property rights;
  • other information prohibited by the laws of the Republic of Azerbaijan.

The legal framework of the power of the prosecutor’s office to issue the official warnings  

According to Article 133 of the Constitution, the Prosecutor’s Office of Azerbaijan (hereinafter – the “Prosecutor’s Office”) shall exercise control over the execution and application of laws, institute criminal cases, and conduct investigations. According to Article 2 of the Law About the Prosecutor’s Office, the Prosecutor’s Office of Azerbaijan is a single centralized body that, is logged in judicial authority.

According to Article 21 of the Law About the Prosecutor’s Office, issuing an official warning is one of the prosecutor’s mandates vested in its powers in the manner and within the framework established by law About the Prosecutor’s Office. Article 22 of the Law identifies under which circumstances, the prosecutor or his deputy shall issue an official warning to the citizen or official.

Because these warnings, as procedural acts, are not established in the administrative code of offenses or in the criminal procedural codes of the Azerbaijan Republic, they serve as a deterrent for individuals from certain actions, such as stopping, not repeating, or not taking any other action in the future.

Powers of the Prosecutor’s Office in the cases of administrative offenses

Article 54 of the Code of Administrative Offenses determines the scope of the prosecutor’s supervision power in the cases of administrative offenses. Within its power, the prosecutor shall take timely measures to eliminate the violation of the law during the proceedings on administrative offenses and exercise the prosecutor’s control over the application and implementation of the Constitution and laws of Azerbaijan.

The first sentence of Article 54.2 of the Code outlines a list of administrative offenses where the prosecutor’s office is empowered to initiate the administrative offense cases. The second sentence of the same Article also gives unlimited power to the Prosecutor’s office to initiate administrative offense cases for any other cases envisaged in the Code of Administrative Penalties.

Once the decision to initiate proceedings on administrative offenses is made, the Prosecutor’s Office then shall send the case to a judge or an authorized body for judiciary proceedings on the merits of the case. Overall, the scope of the prosecutor’s supervision concerning administrative offenses includes the right of the prosecutor to decide on the initiation of proceedings on administrative offenses, to participate in consideration of cases on administrative offenses, to give an opinion or petition on issues arising during the proceedings, to protest against a decision or to rule on an administrative offense.

Thus, the prosecutor’s office has the authority to take measures of responsibility and deterrence against the dissemination of prohibited information on the Internet under the existing legislation on administrative offenses and the law of the prosecutor’s office.

Prosecutor General’s Office warnings to journalists and social media users – comments on recent cases

Detecting dissemination of prohibited information on the Internet and taking non-criminal measures against it is carried out (in the order of checking the information on the violation of the law) by the department for Non-Criminal Prosecution of the Prosecutor General’s Office of Azerbaijan.

In recent months, there have been numerous reports in the media about some social media users, journalists, and news websites receiving warnings or handing administrative offenses in case materials, submitted to the courts by the Prosecutor General’s Office.

Example 1:

On April 1, 2022, the Prosecutor General’s Office warned two online media platforms for spreading inaccurate information. According to the Press Service of the Prosecutor General’s Office, “gazet.az” and “manset.az” published inaccurate information on March 31, 2022, about an incident in which as a result of collapsed school building some 20 people died, and many more were injured in Nakhchivan, thus violating the requirements of the Laws of the Republic of Azerbaijan “On Information, Informatization and Protection of Information”, as well as “On Media”.

But neither of the laws prohibit the spread of inaccurate information, nor do these laws define what inaccurate information is. The vagueness of the terminology however does allow the law enforcement authority to define any kind of views, and comments as “inaccurate information” and take punitive or deterrent legal action against them.

Example 2:

According to the press service of the Prosecutor General’s Office dated January 24, 2022, the Prosecutor General’s Office of the Republic of Azerbaijan continued to take preventive measures against the placement of prohibited information by law on the Internet, for the purpose of ensuring information security.

The press service then referred to five social media users who received warnings and one person who was detained on the grounds of putting pressure on democratic institutions, disrupting the activities of government agencies, making calls that would result in the governance decline in the country, as well as posting insulting or defamatory information on Facebook thus violating Article 13-2.3.9 of the law on the information.

However, Article 13-2.3.9 of the Law on Information, Informatization, and Protection of Information cited by the Prosecutor General’s Office only prohibits the dissemination of “information that is insulting or slander, as well as infringing on the privacy of private life.” The law does not prohibit the information that could be characterized as putting “pressure on democratic institutions”, “disrupting government agencies”, or “calling to reduce the level of governance in the country” on the list of prohibited information.

Example 3:

On December 21, 2021, Prosecutor’s office issued a warning to the principal of a high school, who was interviewed about the suicides among students. The Prosecutor’s office said the information shared by the school principal qualified as prohibited content, and thus was unacceptable to spread.

The Prosecutor General’s Office did not reveal further details about the case and specifically what parts of the principal’s interview violated the rules about the information on suicide. Article 13-2.3.8 of the Law on Information only prohibits the information that “promotes suicide as a method of solving problems, justifies or incites suicide, explains the methods of committing suicide or information to organize the suicide of several people in a group.”

Example 4:

On December 28, 2021, Prosecutor’s office issued a warning to 5 social media users for violating Article 13-2 of the Information law by spreading the information without citing certain facts and sharing biased information aimed to stir sensation in the society. The prosecutor’s office further urged social media users and journalists “to refrain from disclosing inaccurate and distorted information,” warning “that the most serious measures would continue against the spread of biased and misleading information in society.”

Similar, non-criminal legal action (i.e., warning) by the Prosecutor’s Office was made on November 21, 2021, against some media and social network users. The Prosecutor General’s Office initiated a violation of an administrative offense under Article 388-1.1.1 of the Code of Administrative Offenses and sent the case to the relevant court for consideration. In addition, three other people were warned by the prosecutor. The Prosecutor General’s Office further urged more serious measures in accordance with the relevant legislation, including criminal liability against media and social network users who disseminate false and inaccurate information in order to create artificial agitation.

However, Article 13-2 of the information law does not prohibit information of a “sensational” nature or for not basing information “on concrete facts” or sharing “various biased information.”

Legal commentary on warning acts issued by the Prosecutor General’s Office

As noted above, although formal warnings are defined as a type of prosecutorial act, they do not explicitly determine the concrete legal consequences for the persons receiving these warnings. As such, it is possible to determine from existing cases that these warnings issued by the prosecutor’s office are announced after alleged perpetrators are called in for questioning.

It is also possible to determine that inviting the alleged perpetrator to the prosecutor’s office is done for the purpose of signing the warning act, as a way to consent and/or admit to violating the law and not repeating it again. This was reflected in the case of journalist Avaz Zeynalli* who after being called in for questioning refused to sign the issued warning. In such cases (when the warned entity does not sign the warning) it does not remove or cancel the warning. Also worth noting is that there are no specific points mentioned in the existing legislation about measures leveled against entities who refuse to sign the warnings.  

Finally, while these official warnings are carried out as preventive measures against violating existing legislation the procedural action itself is prescribed neither in the criminal law nor in the Code of Administrative Offenses. And according to the Supreme Court of the Republic of Azerbaijan, “warnings” must be examined within the framework of administrative proceedings by the administrative courts. As such, the court clearly states, that warnings are issued within the framework of administrative proceedings, the prosecutor’s office functions as a law enforcement authority and has the authority to summon the individual to introduce the warnings. Such instances of summoning and conversations are apparently mandatory and carried out by the Prosecutors like “procedural coercive measures” indicated in the Criminal Procedure Code. Nevertheless, once again, it is important to note that the warning(s) is not a sanction within the meaning of criminal law and administrative offenses law and therefore prosecutor’s office shall not apply procedural coercive measures in the absence of any offense. 

*The decision of Supreme Court of the Republic of Azerbaijan, № 2-1(102)-134/2019, 14.05.2019, Avaz Zeynallı v.Chief Prosecutor’s office.

Conclusion

What the cases above illustrate is that there is a problematic and overbroad application of legal measures against social media users, journalists, and media in Azerbaijan. The examples further indicate the application of restrictive information law (which includes vaguely defined grounds to restrict free speech) against free speech on the internet and its likelihood of violating freedom of speech and media freedom standards.

Social media users, journalists, and media may argue that government regulations and their overbroad application by the Prosecutor General’s Office impermissibly infringe their freedom of speech guaranteed under the Constitution and international conventions to which Azerbaijan is a party.

Furthermore, there are almost no reports of domestic courts rejecting petitions by the prosecutor’s office against people’s rights to exercise their right to freedom of speech online, creating additional concerns about the absence of effective judicial and other remedies against the arbitrary use of domestic legislation against speech freedom rights.

As mentioned in the analysis above, one of the main challenges is that in its current form, the law on Information as well as the Code of Administrative Offenses provides vaguely defined grounds which are then used by the Prosecutor General’s Office with wide and arbitrary discretion, and at times, in the absence of any clear citing of the permissible grounds in the law. Such interference with freedom of speech is not compatible with the international standards which require that the restrictions on freedom of speech are clearly defined and concisely envisaged in the law and pursue legitimate aims as prescribed in national laws.

An analysis of most of the above cases shows that the Prosecutor General’s Office and the domestic courts interfere in freedom of expression without the proper legal grounds required for such interferences. The content of the impugned remarks characterized by the Prosecutor General’s Office and domestic courts as false, inaccurate, aimed to create a sensation, or to put pressure on the government and democratic institutions is not explicitly mentioned in the Law on Information, Informatization, and Information protection. This is against international standards which require that the national authorities intervening in the freedom of expression must have a basis in national laws (as a rule, this would mean a written and public law adopted by parliament), as well as must demonstrate sufficient reasons for justifying the interference and carefully balancing the applicants’ right to freedom of expression with the other permissible (legitimate) grounds

Azerbaijan is obligated to protect the right to freedom of expression, including the right to seek, receive, and impart information both online and offline, including on public health. International human rights treaties, including the International Covenant on Civil and Political Rights (Article 19) and European Convention on Human Rights (Article 10) permit restrictions on freedom of speech only if they are provided for by law, are strictly necessary and proportionate to achieving a legitimate aim.

Considering the increased scope of the legal harassment, it would be fair to conclude that such a large-scale punitive and deterrent legal measures against freedom of expression by law enforcement authorities is aimed at silencing legitimate criticism, discouraging citizens from expressing their views, and further suffocating the freedom of expression on the Internet.

Several social media users warned, one sentenced to 30 days of administrative detention

A series of new warnings were issued by the Prosecutor General office to social media users in Azerbaijan. In a statement issued by the Prosecutor General’s office, it claims five Azerbaijani citizens received a warning over their social media posts that the prosecutor’s office described as “violating stability, rights, and freedoms and casting a shadow over state’s efforts to strengthen defense capabilities.”

In addition, a citizen named Namig Aliyev was found guilty of violating the state law on Information, Informatisation, and Protection of Information. According to the prosecutor’s office, Aliyev, editor of Yeniavaz.com news website failed to remove a Facebook post about the story published by Yeniavaz.com website that qualified as “information prohibited from sharing.”

But a series of developments including a statement by Yeniavaz.com website editor show that not only did the Prosecutor Office provide false information about Namig Aliyev’s affiliation with Yeniavaz.com website but that the story the prosecutor office wanted removed directly referred to the prosecutor office earlier involvement in committing violence against an opposition activist.

Timeline of events

On December 1, 2021, a group of activists staged a protest in the capital Baku in support of jailed opposition activist Saleh Rustamov. During the protest, scores of activists were detained, including opposition figure Tofig Yagublu, a former political prisoner himself. The violence he faced in the hands of the police was widely reported on social media platforms.

The head of the Media and Public Relations Department of the Interior Ministry’s press service, while having denied any allegations of torture, promised to investigate the case of Yagublu. 

On January 12, the Prosectur Office said it had finalized the invetigation. According to the results, Yagublu was not tortured and that the signs of violence documented and widely reported were inflicted by Yagublu himself. The investigation claimed Yagublu harmed himsefl and that no police officer was involved in violence against Yagublu. 

Yeniavaz.com published three separate articles on the results of the investigation, most recent one on January 18, 2022. 

On January 24, Yeniavaz.com website editor Baylar Majidov, published a Facebook post, with the following text: 

“The prosecutor arrested a man named Namig Aliyev, and [Azerbaijani] media presented him as the director of Yeniavaz.com. Offically, we would like to note that not only do we not have an employee named Namiq Aliyev but he is certainly not the direcotr of Yeniavaz.com.”

Majidov also wrote that their newsroom never received an official request from the General Prosecutor office to remove any information from the website or from the news website’s social media accounts.   

Also on January 24, in another statement issued by the Prosecutor General Office, it announced its decision to sentence social media user Namig Aliyev to 30 days of aministrative detention for sharing information prohibited by law. The statement also said, the office launched administrative proceedings against Azermedia LLC, a legal entity representing the operations of yeniavaz.com on the grounds that the website failed to remove the information prohibited by law. 

On January 25, yeniavaz.com published a story by one of its authors, Anar Garakhanchalli being questioned at the Prosecutor General Office on January 20, 2022. There Garakhanchalli described the conversation he had: 
I was invited to the General Prosecutor office on January 20. After talking to me first about the state, the importance of the prosecutor office for the state and etc I asked them calmly what was the purpose of my invitiation. They told me, it was an article titled “Prosecutor office: ‘Tofig Yagublu’s state was caused as a result of him beating himself up'” that yeniavaz.com published on its website and shared on its Facebook page. So I asked, if there was something wrong about the story, whether it was a lie. They said, the story was correct, but we are concerned about the comments that were written under the post. I said, if the story was ture, if you have no objections then why am I here? I also added that Facebook has billions of users, how can we be held accountable for something written by others? The officer sitting across from me then said, we suspected that these responses would follow, after giving the story a headline like that. I told this this was ludicrous. You confirm yourself that the story is true, you do not object to any of the wording, and yet you are questioning the reporter’s intent?! 
After two hour long visit, Garakhanchalli was let go. 
No further statements were made by yeniavaz.com while the articles in question all remain available online at the time of writing of this post.
AIW previously documented a number of cases where social media users and journalists received warnings, or fines over their onlline posts. 

Journalist fined over published article

The list of social media users warned or fined as a result of their public posts on social platforms continues to grow in Azerbaijan. The latest case involves journalist and editor-in-chief of an online news platform jamaz.info, Ibishbeyli Fikret (Fikret Faramazoglu).  On January 12, Faramazoglu was summoned to the Prosecutor General Office where he was accused of “disseminating forbidden information on the internet”, an administrative offense under Article 388-1.1.1. The journalist was fined a total amount of AZN 500 [USD 295] following the court decision. The Prosecutor General Office alleged that the article published on jamaz.info website [“Shusha is under fire from Khankendi”] on January 11, caused confusion, and fear wrote the journalist following his release in a post on Facebook. The journalist intends to appeal the decision. 

Previously, AzNet Watch reported on other similar cases. Below is the summary: 

December 21, the Prosecutor General’s Office of Azerbaijan issued a statement that four citizens – Abushov Zamig, Mahmudov Ilgar, Ibrahimov Mehdi, and Safarsoy Rza – were invited to the prosecutor’s office for allegedly disseminating biased information on social networks. All four were warned that in case they repeat the offense, they could face more stringent measures reported Turan News Agency.

December 21, secondary school principal Hikmet Aghajanov was warned by the Prosecutor Office, over alleged online dissemination of prohibited information on suicide according to reporting by Report.az.

December 21, a statement by the Prosecutor Office further urged media entities and users of social networks to refrain from publicizing inaccurate and distorted information, warning that further measures would be taken otherwise.  

December 18, websites olke.az, and manevr.az, were fined in a total amount of AZN 1500 [USD 882] each for violating Article 388-1.1.1 of the Code of Administrative Offenses. 

December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a late-night trial, on charges of publishing prohibited information on an information resource or information/communication network in violation of Article 388-1.1.1 of the Code of Administrative Offenses. 

In a comment to AzNet Watch, an independent lawyer Emin Abbasov said, “Although Article 54.2 of the Code of Administrative Offenses stipulates that the prosecutor shall initiate proceedings on certain categories of administrative offenses, the last sentence of that article authorizes the prosecutor to initiate proceedings on any other administrative offense. Apparently, the Code of the Administrative Offences (articles 54.2 and 99.3) empowers the Prosecutor General’s Office with wide powers including launching administrative offenses in any administrative offense cases. The wide discretion of criminal prosecution body beyond the criminal offenses, and in particular over the information distributed online puts huge pressure over freedom of expression and free flow of information.”

In Azerbaijan the parliament is discussing the controversial law on media – the bill already passed its second reading [Updated January 26]

[Update] On December 30, Azerbaijan’s parliament approved a new media law after its third and final reading. The law was passed despite mounting criticism from local journalists and is set to be signed by President Ilham Aliyev and become effective as of January 1, 2022. Hailed by its proponents as a reform bill, critics of the law warn that the new law’s will have an extensive impact on media freedom and independence in Azerbaijan [more here].

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The plans to roll out a new Media Law in Azerbaijan were announced in January 2021 following a Presidential Decree “on deepening media reforms in the Republic of Azerbaijan.” Now, almost a year later, despite local advocacy by journalists and news platforms to reconsider adopting the legal document, the law passed its second reading on December 20, 2021. Although the law has not been finally approved and signed by the president, the local media already reported several citizens fined or warned over the content they have shared online. 

The controversy of the new law

On December 16, two days after the draft law passed its first reading a group of civil society representatives issued a statement urging the lawmakers to reconsider the draft law in its current form. According to the statement, the law “opens up a wide range of opportunities for the state to determine who can engage in journalism and rejects the model of media self-regulation. It inflicts incurable wounds on freedom of media, which is an important component of the right to freedom of expression.” 

According to Eurasianet.net reporting

Among the many new regulations: The state will now create a registry of journalists, who have to fit specific criteria (including lack of a criminal record) to be included. Owners of media outlets will have to live in Azerbaijan, which would effectively ban many of the country’s independent media which are run by Azerbaijanis who fled the country. Online news outlets will be required to publish at least 20 news pieces on a daily basis.

There are also a wide variety of content restrictions in the new law. Journalists will be prohibited from “propagating superstitions.” “Tarnishing a business’s reputation” will also not be allowed. Section 14.1.11 stipulates that “facts and events must be interpreted impartially and objectively, and one-sidedness must not be allowed.”

The intent appears to be to give the government more freedom to block media it deems unfriendly.

Reactions

Media law expert Alasgar Mammadli told Kanal13 in an interview that the law now grants a right to block online content on a whim. Azerbaijan is already blocking a wide range of independent and opposition news websites since 2017. The most recent findings were released this summer by AzNet Watch in partnership with OONI. But media censorship is an ongoing issue according to Qurium Media Foundation that released another report, this summer, documenting a decade of media censorship in Azerbaijan based on the organization’s work assisting targeted, and blocked news platforms in the country. 

In an interview with Toplum TV, journalist Seymur Kazimov said, the new provisions are “backward.”

On December 22, a human rights organization “Defense Line”, said in a statement that the new law was also in violation of the Azerbaijan Constitution: 

Part I of Article 7 of the Constitution states that the Azerbaijani state is a democratic, legal republic, Article 50, Part II guarantees freedom of mass information, as well as prohibits state censorship of the press. However, in recent years, dozens of journalists have been subjected to politically motivated administrative and criminal prosecution, ill-treatment, and illegal interference in the activities of electronic and written publications by administrative bodies.

In its statement, the organization further made calls on the government of Azerbaijani and its legislature to comply with the requirements of Articles 10 (freedom of expression), 47 (freedom of thought and expression), and 50 (freedom of information) of the European Convention.

Gubad Ibadoglu, professor of economics, who manages an online YouTube platform Biz told Azerbaijan Service for Radio Liberty that the new law aims to restrict the media and increase the risk of blocking critical television programs broadcast from abroad. 

First signs of controlling online content

On December 21, the Prosecutor General’s Office of Azerbaijan issued a statement that four citizens – Abushov Zamig, Mahmudov Ilgar, Ibrahimov Mehdi, and Safarsoy Rza – were invited to the prosecutor’s office for allegedly disseminating biased information on social networks. All four were warned that in case they repeat the offense, they could face more stringent measures reported Turan News Agency.

In addition, several websites were issued a fine in violation of Article 388-1.1.1 of the Code of Administrative Offenses. According to reporting by Report.az, on December 18, olke.az, and manevr.az, were fined in a total amount of AZN 1500 [USD 882] each over alleged illegal dissemination of information that promotes suicide as a solution mechanism, “while substantiating, inciting, and explaining the methods of its commission.” 

Lawyer Khaled Aghaly said the decision was embarrassing. In an interview with Meydan TV, Aghaly said that both websites were fined over publishing exact same text. “Manevr.az” website copied the story published by “olke.az.” According to the law on Mass Media, in case, information was shared from another resource [rather than published as an original text], the news outlet republishing the content should be freed from any responsibility. It is unfortunate that even the courts ignored this [when issuing their final decision],” explained Aghaly.

In addition, on December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a late-night trial, on charges of publishing prohibited information on an information resource or information/communication network in violation of Article 388-1.1.1 of the Code of Administrative Offenses. 

In March 2020, Article 388-1 of the Code of Administrative Offenses was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal owners of internet information resources and associated domain names as well as against 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. 

Commenting on Sakhavat Mammad’s case, media law expert Alasgar Mammadli told Meydan TV that the new law is already being put to use even though it officially enters into force next year. “Calling the journalist to the prosecutor’s office, and then hastily fining him in court [in the absence of an investigation, explicit mentioning of which law was violated, and which secrets were spread], is nothing but a pressure on freedom of speech and is the violation of freedom of expression,” Mammadli added. 

But this is also not the first time that a journalist faced punishment over their work, reported Azerbaijan service for Radio Free Europe. In 2019, Mustafa Hajiyebli, editor of opposition bastainfo.com received an administrative sentence. He was accused of instilling chaos among the public. Around the same time, the editor of criminal.az website, Anar Mammadov faced similar charges. A number of other cases were documented in the most recent Freedom on the Net report published by Freedom House. 

Finally, one secondary school principal Hikmet Aghajanov was warned by the Prosecutor Office, over alleged online dissemination of prohibited information on suicide according to reporting by Report.az.

December 21 statement by the Prosecutor Office further urged media entities and users of social networks to refrain from publicizing inaccurate and distorted information, warning that further measures would be taken otherwise.  

[Update] Over the next month the Prosecutor Office continued issuing warnings. Most recently on January 24, a group of social media users was warned while one social media user was sentenced to a month in administrative detention. Also, on January 24, activist and member of the opposition Musavat party’s youth branch, Aziz Mamiyev was questioned at the police according to reporting by Meydan TV. Mamiyev said it was his social media posts that had him questioned. The activist said police showed him the printout of his TikTok video too telling him he mentioned President Ilham Aliyev there. “They told me, it is your problem if you are criticizing the government but be careful about your writing. Be careful in your struggle,” wrote Mamiyev in a Facebook post adding that regardless he considers the nature of this visit political and pressure by the government against freedom of speech.

In a comment to AzNet Watch, an independent lawyer Emin Abbasov said, “Although Article 54.2 of the Code of Administrative Offenses stipulates that the prosecutor shall initiate proceedings on certain categories of administrative offenses, the last sentence of that article authorizes the prosecutor to initiate proceedings on any other administrative offense. Apparently, the Code of the Administrative Offences (articles 54.2 and 99.3) empowers the Prosecutor General’s Office with wide powers including launching administrative offenses in any administrative offense cases. The wide discretion of criminal prosecution body beyond the criminal offenses, and in particular over the information distributed online puts huge pressure over freedom of expression and free flow of information.”

Gag order around “Terter” case

In another warning issued by the Prosecutor General’s Office, the Interior Ministry, and the State Security Service of Azerbaijan, the government institutions warned of spreading false information on the ongoing Terter Case. According to the wording of the warning, “representatives of mass media, users of social media platforms, as well as participants in criminal proceedings [shall be] informed that the dissemination of preliminary investigation information without proper permission creates liability under criminal law.” The government institutions also warned that measures will be taken against those who disseminate biased and distorted information in order to overshadow the activities of government agencies and the victorious Azerbaijani Army, influence the investigation, and deliberately mislead the public.

The Terter Case refers to 2017 events surrounding a group of Azerbaijani servicemen accused of collaborating with the intelligence and security services of Armenia. At the time, the Military Prosecutor’s Office of the Republic of Azerbaijan launched a criminal case, under Article 274 (treason) of the Criminal Code on treason and other criminal acts. The faith of these men remained largely unknown until the following year, when “persons who claimed to have been illegally detained, interrogated and tortured” began talking about what happened to them on social media platforms. Since then, the case has been widely referred to as the Terter case. 

According to a statement by the OMCT issued in April 2021, following the investigations, it was possible to identify that at least “78 Azerbaijani citizens [were] detained and sentenced to between 12 and 20 years in prison, with multiple cases of torture, including 11 deaths in custody of Azerbaijani military personnel and civilians.” 

In June 2021, 24 members of the Parliamentary Assembly of the Council of Europe (PACE) signed a motion, requesting to appoint a rapporteur to investigate the reported torture and ill-treatment in the Terter case.

On November 1, Lieutenant General of Justice Khanlar Valiyev, deputy prosecutor general and military prosecutor of Azerbaijan “admitted to local media that more than 100 servicemen were tortured during the investigation of Terter case.” 

On November 5, 2021, the case was discussed during a meeting of the Committee on Legal Affairs of PACE according to reporting by Turan News Agency. 

What’s next?

The new media law enters into force on January 1, 2022. Media law experts and journalists, say instead, the authorities should have focused on decriminalizing defamation and libel, adopting a law on defamation and relying on existing legal structures rather than draft a new law, which was largely kept away from public discussions and despite demands by independent and opposition journalists and other representatives of civil society, refused to open the draft bill for review and recommendation process as has been the case with the Law on Access to Information, passed by Parliament in 2005. In an interview with Turan News Agency, lawyer Khaled Aghaly explained that at the time, “[the bill] was developed with the participation of media law experts, the local and international community.” Unfortunately, this practice was dismissed this time around explained Aghaly. 

Local experts believe it is possible to change the course as long as there is an interest on behalf of the government. Meanwhile, on December 24, the parliament is scheduled to discuss the existing law on Information, Informatisation, and Protection of Information and the list of proposed amendments published on the parliament’s website on December 20. If approved the following changes will be made to the existing bill: 

  • in its present form, 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;

    • The proposed amendment calls for clear reasoning behind the content removal request;
  • Previously a whole website could be closed for access for publishing “prohibited information”;
    • The proposed amendment calls blocking specific content; 

The State of Internet Freedom in Azerbaijan, a legal overview

This is part five and the final installment, in a series of detailed legal reports and analyses on existing legal amendments, and new legislation affecting privacy, freedom of expression, media, and online rights in Azerbaijan and their compliance with international standards for freedom of expression.  

This final report, “The State of Internet Freedom in Azerbaijan, a legal overview” was prepared in partnership with human rights lawyer, Emin Abbasov. It is a comprehensive overview, of the existing legal framework in Azerbaijan on internet freedoms.

The following report identifies gaps within the legislation, policy, and practice that fail to comply with international legal standards in the field of internet freedoms.

As such, the aim of the report is to:

  • identify and report key developments concerning internet freedoms covering the period between 2020-2021;
  • analyze and review legislation, policies, and practices in line with international standards;
  • provide recommendations to strengthen and develop legislation, policies, and practices already in place;

Executive Summary

Azerbaijan’s track record on freedom of expression and freedom of the media has been on a steady decline according to a number of key reports by international media freedom watchdogs. This has been the case especially since 2014.

The most recent rankings by the Reporters Without Borders’ Press Freedom Index in 2020, place Azerbaijan at the bottom of the index, where the country ranks 169 out of 180 countries monitored. Freedom House’s annual Freedom on the Net report ranked Azerbaijan in 2020 as “Not Free.”  

From a legal perspective, despite routine calls on the government of Azerbaijan to ensure the domestic legislation and its application comply with international standards, particularly in line with the ECtHR case-law requirements on freedom of expression, media, and internet rights, the legislative authority, continues to adopt restrictive new bills that further deteriorate fundamental rights and freedoms.

During the reporting period, the parliament in Azerbaijan adopted several amendments to existing national legislation, imposing further restrictions and increasing state control over the internet.  In the meantime, relevant authorities failed to carry out effective and prompt investigations and prosecution into the cases of blackmailing and online sexual harassment against activists and politicians. Further, the government prepared a draft law on the media, with proposals to license Internet televisions and radios, and a new media registry with strict requirements for journalists, media owners, and media platforms. 

The report also identifies the government’s failure to present, sufficient mitigation policies to remove the infrastructural barriers related to internet access when switching to online education during country-wide restrictions imposed in March of last year as a result of COVID19. These barriers were more profound in remote areas of the country where access to the internet is poor due to inadequate infrastructure and among economically vulnerable populations.      

Finally, this report concludes that domestic legislation in Azerbaijan does not provide effective safeguards for the protection of the rights and freedoms of people online. On the contrary, it gives law enforcement a wide range of powers while failing to provide an independent review mechanism neither by the courts nor by other independent institutions over the exercise of those unlimited powers.

In response to these challenges, the report offers a number of recommendations for the government to improve its domestic legislation in line with international standards with the view of better protection of individuals’ rights and freedoms online. The full PDF report can be accessed here. Below are some of the key findings.

Key Developments between January 1, 2020June 31, 2021

  • The Cabinet of Ministers adopted a decision No.22 on January 29, 2020, approving the “Rules of the organization of operation of the information system on activity against foreign technical intelligence,” and “Level of access of information resources of state bodies within the information system on activity against foreign technical intelligence.” However, the specifics of these rules and what they entail were not disclosed;
  • Azerbaijan tightened control over online content, specifically the definition of “prohibited information”. On March 17, 2020, the parliament amended the Law of the Republic of Azerbaijan On Information, Informatization and Protection of Information (30-VIQD). According to the amendment, “prohibited information” includes false information endangering human life and health; causing significant property damage; mass violation of public safety; disruption of life support services; and of financial, transportation, communication, industrial, energy, and social infrastructure facilities; or leading to other socially dangerous consequences.”
  • During the reporting period, the number of attacks and direct targeting against activists, politicians, and their family members with intimate photos, videos, and personal messages that were leaked online, increased significantly;[1]
  • On June 29, 2020, the Parliament adopted amendments to the Law on Telecommunications and appointed the Ministry of Transport, Communications and High Technologies as an administrator of domain name registration in Azerbaijan;[2]
  • On September 27, 2020, authorities in Azerbaijan imposed restrictions on access to the internet by limiting the speed of the internet, blocking access to social media platforms and messenger services such as WhatsApp, Telegram, and others during the second Karabakh war;[3]
  • On January 13, 2021, the government established Azerbaijan State Agency for Media Development, according to the Presidential decree “On deepening media reforms in the Republic of Azerbaijan” [signed on January 12, 2020]. The agency was given broad powers to control the online media landscape;[4]
  • The Government announced a new draft law on media with provisions to license Internet TV channels;
  • Azerbaijan parliament members announced plans to draft a new law on Hate Speech.

Key findings

  • The regulation of the internet in Azerbaijan is controlled by the Ministry of Transport, Communications and High Technologies, (MTCHT). The MTCHT is a government agency, in charge of regulating communications and the development of information technologies. It also controls the internet telecommunications infrastructure.
  • Despite the Law on Telecommunication obligating the state, to ensure healthy competition and antimonopoly activity in the field of telecommunications[7], the import and distribution of the internet in the country is mainly distributed through state companies or private companies under strict government control.[8] According to the Law on Telecommunication (Article 6) regulation of telecommunication activity in Azerbaijan is carried out by the state through broad powers, notably, through the licensing and certification of telecommunication activity, the application of tariffs for the use of telecommunication services, and radiofrequency, and etc.
  • The activities of internet service providers (ISPs) and operators are required to register with the MTCHT. According to the “Rules of registration of operators and providers of Internet telecommunication services” approved by the Resolution of the Cabinet of Ministers of the Republic of Azerbaijan [No. 427] and dated October 12, 2017, operators and providers of internet telecommunication services must register for a license by applying through the MTCHT, within 15 (fifteen) days of the start of the service.[9]  The Rule further states that in accordance with the Presidential Decree No. 507 dated June 19, 2001 “On the division of powers of search operations’ entities while carrying out search operations,” ISPs are required to have a copy of the guarantee, on the installation of special equipment that provides access to information, for search operations.[10] The Rule also requires that the operators and providers submit, approved copy (copies) of the agreement (contracts) concluded with the first subscriber (subscribers), to the registration authority namely the MTCHT.[11]
  • The State Security Service and the Ministry of Internal Affairs are authorized for the organization of search operations within the communication networks in accordance with the Rule approved by the Presidential Decree № 638 dated October 2, 2015 “On approval of the Rules on information security during search operation activities on communication networks”.[12] This respective rule was never published. According to the Constitutional Law “On normative legal acts” laws and presidential decrees signed by the President must be officially published within 72 hours after the signing.[13] The Constitutional Law also allows that certain provisions of normative legal acts reflecting state secrets are not published.[14]
  • On June 17, 2021, the National Television and Radio Council (NTRC) announced the provisions in the draft law “On Media” concerning television and radio broadcasting.[18] According to the draft law a number of restrictions on freedom of expression and information, as well as regulation of media activities is envisioned. For the purpose of this report, only those restrictions that concern and impact freedom on the internet are considered here.
  • The Council of Europe’s Committee of Ministers recommendation CM/Rec(2007)16 to its member States to promote the public service value of the Internet[19] indicates the importance of diversification of competitive market structures in internet resources and ICTs. According to the Recommendations, member states should develop, in co-operation with the private sector and civil society, strategies that promote sustainable, economic growth via competitive market structures in order to stimulate investment, particularly from local capital, into critical Internet resources and ICTs, with particular reference to: developing strategies which promote affordable access to ICT infrastructure, including the Internet, promoting technical interoperability, open standards and cultural diversity in ICT policy covering telecommunications, broadcasting and the Internet. Azerbaijan has so far, failed to meet these recommendations.
  • In the context of its Recommendation CM/Rec(2018)1 to member States on media pluralism and transparency of media ownership, the Council of Europe’s Committee of Ministers refers to the term “online media” and stresses its importance for media pluralism.  It further notes that states have a positive obligation to foster a favorable environment for freedom of expression, offline and online, in which everyone can exercise their right to freedom of expression and participate in public debate effectively, irrespective of whether their views are received favorably by the State or others.[25] Moreover, in 2012, the UN Human Rights Council adopted a key resolution on the promotion, protection, and enjoyment of human rights on the Internet, “calling upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries.”[26]
    • So far, the relevant government institutions have failed to offer such assurances in Azerbaijan. The extent of government control and monopoly, as well as poor internet infrastructure, are reflected in numerous international reports. The 2021 Inclusive Internet Index, ranked Azerbaijan 84th globally in the “readiness category,”[27] and the country’s overall performance scores have deteriorated year on year.[28] According to June Speedtest Global Index, (results are updated mid-month for the previous month), Azerbaijan ranked 122nd out of 181 countries in the category of fixed internet speed. The country’s score improved in the category of mobile internet speed, scoring 66th place out of 137 countries ranked in this category.[29]
  • The Guiding Principles on Business and Human Rights also recognize the responsibility of business enterprises to respect human rights, independent of State obligations or the implementation of those obligations (see A/HRC/17/31, annex; and A/HRC/32/38, paragraphs 9- 10). They provide a minimum baseline for corporate human rights accountability, urging companies to adopt public statements of commitment to respect the human rights endorsed by senior or executive-level management; conduct due diligence processes that meaningfully “identify, prevent, mitigate and account for” actual and potential human rights impacts throughout the company’s operations; and provide for or cooperate in the remediation of adverse human rights impacts (see A/HRC/17/31, annex, principles 16-24).[35]
    • These internationally recognized standard-setting instruments are usually not legally binding but elaborated from different binding human rights treaties and standards. Such documents set out a number of recommendations, standards, and commitments on the regulation of Internet infrastructure, as well as the regulatory role of states in accessing the Internet. However, none are implemented in the context of Azerbaijan.
  • During the period of martial law, access to the Internet remained blocked to the public, in the absence of any administrative decisions or justifications, the guarantees associated with the decision, and clearly stated reasons for such restrictions in place.
  • Azerbaijan signed the Budapest Convention – the Council of Europe Convention against Cybercrime – in 2008 and has ratified it, in 2010.[58] The Budapest Convention is a treaty on crimes committed on the internet and on computer networks. In Azerbaijan, regulation of intelligence services and online policing online, including investigation and prosecution of offenses committed online, are regulated by the Criminal Code, Criminal Procedure Code, Law on Search and Operation, Law on Police, and Law on Prosecutors office, including other normative legal acts of the Republic of Azerbaijan. However, there is no dedicated strategy or other specific policy documents on cybercrime currently available or being developed in Azerbaijan.[59]
    • In the absence of such policies, the law enforcement agencies, especially the police, which do not have significant capacity to investigate and prosecute crimes committed online, often interferes with the freedom of expression of the social network users.
    • In recent years, the police increasingly play the role of an arbitrator in resolving public conflicts and disputes between internet users. By complaining to the police, individuals can force others (whom they are in conflict with) to delete their status and comments from social network accounts. In return, police promptly identify those who complained about/against or people who criticize the government, and especially the law enforcement agencies on social networks, forcing them to apologize to the public on camera. Police then share the apology videos with the media.[60]
  • Local civil society activists suggest that during the quarantine period, a large number of people who were held administratively or who were criminally liable for organizing and/or participating in wedding or funeral ceremonies were brought to the police stations, where their forced confessions of repentance were filmed and later broadcasted on national television channels. According to credible reports received by the Election Monitoring and Democracy Studies Center, an Azerbaijani NGO, most people did not give consent to such video recordings. As such, the broadcast of the videos took place against Article 51 of the Code of the Administrative Offenses, which prohibits the dissemination of materials (audio, video, photo) in the mass media without the consent of the person against whom the administrative proceedings are conducted.[62]
  • Such practice was also used against LGBTQI+ people at least on one occasion. In July 2020, police shared the testimonies of two persons, who were accused of allegedly promoting drug use via their TikTok accounts. The video of their forced confession was shown on state media (Azertag), to discredit LGBTQI+ people and to create a negative public image.[63]  
  • Council of Europe Committee of Ministers Declaration on Freedom of Communication on the Internet (Adopted by the Committee of Ministers on May 28, 2003 at the 840th meeting of the Ministers’ Deputies), contains ten principles. According to the seventh principle, “In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms, and other international agreements in the fields of justice and the police.”[68]
    • But in the case of Azerbaijan, and following the decree on amendments, no such measures were taken into account. Moreover, at the time of writing of this report, there is no information on whether this mechanism was finalized.

 Conclusions & Recommendations

The analysis of the domestic legal framework shared in this report demonstrates that the current legal framework provides law enforcement authorities with unlimited powers to operate in online spaces. The analysis also explains, how this framework empowers the state to exercise full and unchecked control over telecommunication infrastructure.

In such an environment, internet and mobile operators as well as the ISPs have no power or independence to challenge the unlimited powers of the state. Further, our analysis indicates that the legal national framework is designed in such a way, that it fully disregards or undervalues the rights of individuals online while granting authorities ambiguous powers to control everything online in the absence of an independent review of the regulatory authorities’ decisions and actions.

The most striking example of such unlimited powers is an obligation placed on the ISPs to allow law enforcement authorities to set up special technical devices on the ISP’s infrastructure, in order to monitor users online and collect information about them. This is done in the absence of explicit legal provisions which normally would require a court order to carry out such activity, as well as in the absence of independent oversight by a regulatory body, that Azerbaijan failed to establish since 2016. As a result, the lack of an independent regulatory body in the field of telecommunications, as well as the lack of an independent judiciary that is capable of providing effective protection and independent judicial review against the government’s interferences, leaves citizens without any remedies to pursue.

Finally, this report also illustrates the weakness of the legislation on emergency powers, which at the moment fails to indicate the exact limits of government bodies during a state of emergency or war. Such loopholes allow the state authorities to exercise their exclusive powers in a way that can exceed the needs created as a result of such circumstances.

Based on the overview presented above, the following set of recommendations can help improve the overall environment of internet freedom in Azerbaijan:

  • Amend the legislation, notably the law On Information, Informatization, and Protection of Information, including the Code of Administrative Offences and Criminal Code to remove restrictions on content, such as false information, insult, and slander. Consult with the independent civil society groups to amend the legislation on content regulation in order to strengthen the national legislation and make it in line with international standards. Provide self-regulation opportunities for providers and private companies to regulate inapplicable content in online spaces;
  • Consider wider consultation and public discussions when reviewing new legislation and policy to ensure the voices of all key stakeholders are heard;
  • Avoid adopting the draft law on media, that currently requires licensing of the Internet TVs and radios. Instead, ensure the provisions of journalistic activity online is not subject to specific authorization;
  • Establish an independent National Regulatory Authority in line with international standards including, civil society organizations and other relevant stakeholders;
  • Provide effective and prompt investigation and prosecution of online harassment, and blackmailing against activists, politicians, and/or their family members;
  • Amend the Law on Telecommunications, the law on Information, Informatization and Protection of Information and Law on Private Information, including other normative legal acts to indicate what specific measures and in what circumstances the government is undertaking to exclude the anonymity of the internet users, including installing special software and hardware systems for the provision of blanket surveillance in online spaces.
  • Amend the legislation to provide effective safeguards against abuse of power of law enforcement authorities, notably, amend article 10 of the Law of The Republic Of Azerbaijan On Operational-Search Activity to ensure that a respective court decree is required for conducting online tracking, interception, and seizure of private information from the telecommunication channels about individuals;
  • Ensure that the Martial Law and the Law on Emergency Situations contain explicit provisions, notably safeguards, against the abusive application of emergency powers online. In doing so, amend the respective laws to include clear procedures of imposing any limitation over the internet and provide that such decisions are subject to effective safeguards;

[1] Azerbaijan Internet Watch, Targeted harassment via telegram channels and hacked Facebook accounts, March 9, 2021, https://www.az-netwatch.org/news/targeted-harassment-via-telegram-channels/

[2] The law on amendments to the Law of the Republic of Azerbaijan “On Telecommunications”, 29 June 2020, available (in Azerbaijani) at: http://e-qanun.az/framework/45676

[3] Azerbaijan limits internet access to prevent Armenia’s large-scale acts of provocation – short notice from the Ministry of Transport, Communications and High Technologies, available (in English) at: https://mincom.gov.az/en/view/news/990/azerbaijan-limits-internet-access-to-prevent-armenias-large-scale-acts-of-provocation-

[4] Presidential decree on deepening media reforms in the Republic of Azerbaijan, 12 January 2021, available (in Azerbaijani) at: http://e-qanun.az/framework/46675

[7] Article 11.1 of the Telecommunication law. “Operators, providers, other legal and physical persons operating in the field of telecommunication, as well device producers and suppliers are equal subjects in the creation and development of telecommunication services.”

[8] Article 3.1.8, article 11.2, and article 11.2.1 of the Law on Telecommunication

[9] The Rules of registration of operators and providers of Internet telecommunication services Available (in Azerbaijani) at: http://e-qanun.az/framework/36773

[10] Presidential Decree On the division of powers of search operations entities in the implementation of search operations, June 19, 2001, available (in Azerbaijani) at: http://e-qanun.az/framework/3569

[11] Article 3.3.3 of the Rule of registration of operators and providers of Internet telecommunication services.

[12] Presidential Decree “On approval of the” Rules for ensuring information security in the implementation of search operations in communications networks ” 2 October 2005, available (in Azerbaijani) at: http://e-qanun.az/framework/30840

[13] Article 83.1 of the Constitutional Law (№ 21-IVKQ) “On normative legal acts” dated 21 December 2010. Available (in Azerbaijani) at: http://www.e-qanun.az/framework/21300

[14] Article 82.7 of the Constitutional Law (№ 21-IVKQ) “On normative legal acts”

[18] Azadliq Radio, Internet TV channels may require a license, June 17, 2021, https://www.azadliq.org/a/internet-tv-lisenziya/31313244.html

[19] Adopted by the Committee of Ministers on November 7, 2007, at the 1010th meeting of the Ministers’ Deputies, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d4a39

[25] The Council of Europe’s Committee of Ministers Recommendation CM/Rec(2018)1[1] to member States on media pluralism and transparency of media ownership,  (Adopted by the Committee of Ministers on 7 March 2018 at the 1309th meeting of the Ministers’ Deputies), https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680790e13

[26] The promotion, protection, and enjoyment of human rights on the Internet: resolution / adopted by the Human Rights Council, https://digitallibrary.un.org/record/731540?ln=en

[27] The Readiness category examines the capacity to access the Internet, including skills, cultural acceptance, and supporting policy.

[28] The Inclusive Internet Index, https://theinclusiveinternet.eiu.com/explore/countries/AZ/

[29] The Speed Test global Index,  https://www.speedtest.net/global-index/azerbaijan#fixed

[35] Report by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, para., 45.

https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2017/06/Kaye-Report-March-2017-AHRC3522.pdf

[58] The Law on Ratification of the Budapest Convention, available (in Azerbaijani) at: http://e-qanun.az/framework/18619

[59] Council of Europe, the status of the ratification of the Budapest Convention concerning to Azerbaijan, https://www.coe.int/en/web/octopus/country-wiki-ap/-/asset_publisher/CmDb7M4RGb4Z/content/azerbaijan?_101_INSTANCE_CmDb7M4RGb4Z_viewMode=view/

[60] On June 3, 2020, Baku residents Tatyana Ulankina, Ramin Bakhishov, Allahverdi Imanguliyev, Shirzad Shirzadov, and Taleh Bakhshiyev were detained in the Baku Metro for allegedly resisting police. Police asked that the detained individuals comply with the lawful demands relating to the rules of the special quarantine regime. A video was shot and broadcast on the website of the Ministry of Internal Affairs in which each of the detainees apologized and regretted their actions to the police department. Afterward, a criminal case was launched under Articles 139-1 (violation of anti-epidemic, sanitary-hygienic or quarantine regimes when there is a real threat of the spreading of the disease or the actual spreading of the disease) and 221 (hooliganism) of the Criminal Code, and the investigation was launched. The CCTV footage from the subway that appeared on social media showed there was a minor dispute between one person and two police officers over the wearing of a protective mask, which the person in the video claimed he had and others joined to support him, https://www.youtube.com/watch?v=EBC-l9EuiCQ&t=136s

[62] Election Monitoring and Democracy Studies Center (EMDS), Briefing Document, Measures against the COVID-19 pandemic in Azerbaijan: Deepening pressure on freedoms and Political Crisis, https://smdtaz.org/wp-content/uploads/2020/09/EMDS-briefing-22.09.20.pdf

[63] Azertag,az, People who registered on the social network “Tik-Tok” under the names “Maya” and “Banu” and posted videos promoting drug use were detained, July 23, 2020, https://video.azertag.az/video/98901

[68] Council of Europe Committee of Ministers Declaration on freedom of communication on the Internet, Adopted by the Committee of Ministers on  May 28, 2003, during the 840th meeting of the Ministers’ Deputies, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805dfbd5

Azerbaijan to license online TV channels

In January, 2021, Az-Net Watch covered the new legal development concerning media freedom environment in Azerbaijan. At the time, it was announced, that a newly established Azerbaijani Agency for Media Development will replace, marred by corruption allegations, the State Support Fund for Mass Media Development and that a new media law was drafted by the Administration of the President for the President’s review in two months. Six months down the line, the draft media law, is finally set for review, albeit much to the disappointment of freedom of the media advocates and media practitioners in Azerbaijan.

According to Azadliq Radio report, the new law, entails licensing the Internet television and radio broadcasting. The proposal spearheaded by the National Television and Radio Council (NTRC) was announced on June 17.

Specifically the draft law states that:

1) the online channel must have its own website and broadcast from this site;

2) the online channels must broadcast for not less than 6 hours as determined by the proposed new draft bill.

In addition, the Agency for the Development of Mass Media would register online news sties and news agencies.

When Turan News Agency reached out to the NTRC for a comment, the Council refuted the claims that the draft bill mentioned the Internet TV. Similarly, when the agency asked the newly created Agency for Media Development, the agency said, it had no information of such requirement mentioned in the bill. And yet, it was the NTRC that told state news agency APA about the draft bill according to Azadliq Radio report.

Several independent experts, said if true, the new bill and specifically the proposal about licensing, violate Article 10 of the European Convention on Human Rights and norms enshrined in Azerbaijan’s Constitution.

Addressing the controversial new bill, a media law expert, Alasgar Mammadli, said in addition to contradicting Article 10 of the Convention the license requirement can only be applied to broadcasters using frequency transmissions which is not the case for Internet television. In another interview, Mammadli said, “Only during the broadcast, there should be compliance with the general law, which is currently regulated by the Law on Mass Media, Criminal Law, and other laws. There are no gaps, and there are even unnecessary regulations (restrictions).” 

Another legal expert, Khaled Aghaliyev, evaluating the bill in a post on social media platform Facebook said, “It was clear that the government, which promised progressive reforms in the legal regulation of the media, worked harder than ever on reactionary regulatory mechanisms.” Aghaliyev said, in all likelihood, the lawyers working on “progressive regulations” took it upon themselves to interpret one specific sentence of Article 10 word for word. That sentence, notes Aghaliyev says, “This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” “But they [lawyers] thought wrong. The mentioning of that licensing applies only to traditional television, and radio. Therefore, the part of the new bill that we know of, is reactionary, binding freedom of expression. It does not comply with our constitutional norms or the European Convention.”

Stressing the importance of adopting a new media law, Aghaliyev instead offers a different approach. “The government should share the full text of the new draft law and let the civil society prepare an alternative. The two drafts should then go to the Council of Europe experts. Let the Council decide and adopt the one recommended instead.” [A similar initiative took place in 2017 when Azerbaijan’s civil society submitted an alternative analysis of the law on access to information as part of the Good Governance partnership]. 

Screen shot from the report “Compliance of the Republic of Azerbaijan with the International
Covenant on Civil and Political Rights”. The full report can be accessed here: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AZE/INT_CCPR_CSS_AZE_25228_E.pdf
An attempt to license online television was previously discussed in 2010, 2011, 2012, 2016. Over the past decade, the national lawmakers suggested regulating social media platforms on several occasions as well. In March 2017, Azerbaijani lawmakers approved legislation tightening rules for Internet use. Shortly after, scores of independent and opposition news websites were blocked inside Azerbaijan for access. 
*”National Television and Radio Council (NTRC) of Azerbaijan, was established by decree № 794 of the President of Azerbaijan Republic dated October 5, 2002 to ensure the implementation and regulation of state policy in broadcasting sector. The objective of the Council is to regulate the activity of television and radio companies, protect interests of the public during the broadcast, and control the observance of legislation on broadcasting.”

spotted: sandvine back at it, this time, in Azerbaijan

In August, when people in Belarus took the streets across the country in protest of election results where incumbent President Lukashenka secured yet another victory in a contested presidential election, authorities deliberately cut the internet. Quickly, experts concluded DPI technology may be in use. By the end of August, it was reported that this DPI technology was produced by the Canadian company Sandvine and supplied to Belarus as part of a $2.5million contract with the Russian technology supplies Jet Infosystems.

DPI (Deep Packet Inspection) is known as digital eavesdropping that allows information extraction. More broadly as explained here, DPI “is a method of monitoring and filtering internet traffic through inspecting the contents of each packet that is transmitted through an inspection point, allowing for filtering out malware and unwanted traffic, but also real-time monitoring of communications, as well as the implementation of targeted blockings and shutdowns.” 

Canadian company Sandvine is owned by American private equity firm Francisco Partners.

 

Sandvine technology has been detected in many countries across the world, including in Ethiopia, Iran, as well as Turkey, and Syria as previously reported. One other country where Sandvine technology was reportedly deployed is Azerbaijan

In Azerbaijan, the DPI deployments have been used since March 2017. This was reported in January 2019, when VirtualRoad, the secure hosting project of the Qurium – Media Foundation published a report documenting fresh attacks against Azerbaijan’s oldest opposition newspaper Azadliq’s website (azadliq.info). The report concluded: “After ten months trying to keep azadliq.info online inside Azerbaijan using our Bifrost service and bypassing multi-million dollar DPI deployments, this is one more sign of to what extent a government is committed to information control”.  

Another report released in April 2018 showed evidence of the government of Azerbaijan using Deep Packet Inspection (DPI) since March 2017. The report also found out that this specialized security equipment was purchased at a price tag of 3 million USD from an Israeli security company Allot Communications.

Now, according to this story reported by Bloomberg, Sandvine worked with Delta Telecom – Azerbaijan’s main internet provider and owned by the government to install a system to block live stream videos from YouTube, Facebook, and Instagram. “The social media blackout came last week after deadly clashes with Armenia. As a result, people in Azerbaijan couldn’t reach websites including Facebook, WhatsApp, YouTube, Instagram, TikTok, LinkedIn, Twitter, Zoom, and Skype, according to internet monitoring organization Netblocks,” wrote Bloomberg. 

Azerbaijan Internet Watch has been monitoring the situation on the ground since September 27, the day when clashes began. Together with OONI, Azerbaijan Internet Watch reported that access to several social media applications and websites was blocked. 

Access to the Internet remains throttled in Azerbaijan as of writing this post. Many of the social media applications remain accessible only through a VPN provider. As a result, authorities have resorted to other means in order to prevent users from using VPN services. From banks to ISPs encouraging users not to use VPN services, this account on Facebook made a list of VPNs alleging they were of Armenian origin in order to discourage users.

internet is reportedly down across Azerbaijan

On April 21, several cities and administrative districts across the country reported experiencing internet disruptions.

The disruptions were reported on DeltaTelecom one of the only two companies in Azerbaijan licensed to connect international internet traffic [the second one being AzerTelecom]. Delta Telecom is considered the backbone internet provider in Azerbaijan and handles most of the ISP traffic. It owns a data center and provides hosting services.

One earlier report claimed the disruptions were the result of problems in the internet traffic coming in from Russia. The nature of these problems was not identified. And became clear shortly after, that this was not indeed the cause for disruptions.

According to Osman Gunduz, the head of Azerbaijan Internet Forum, it was the damage to the fiber optic cables connecting Delta Telecom’s second main center and the backbone itself during street excavations. As a result, Delta Telecom’s second main center started experiencing connectivity issues. This resulted in several ISPs and large companies experiencing major internet connectivity disruptions.

The Ministry of Transportation, Communication, and High Technologies (MCHT) is yet to issue a statement. In an interview, with a local online news platform Gafgazinfo the spokesperson Gunel Gozalova said the problem was not the damage caused to existing underground cables but issues with the commercial provider bringing Internet traffic into the country. “As a result of the countrywide quarantine regime during COVID19, many companies shifted their work to an online regime. The same goes for the education system where classes are now conducted in an online format. As a result, the country’s broadband internet network is overloaded. And sometimes, the preferred device installed at people’s homes does not meet currently increased demands.”

The spokesperson assured the ministry is doing its best to meet the spike in demands, working with experts around the clock.

It seems the spokesperson missed the memo [and so did the main news agency APA] from Delta Telecom because according to this media platform, who spoke with the director of the main internet provider [Public Television Channel] Delta Telecom, the disruptions were caused by “cable outage” during maintenance excavation work around one of capital’s automatic telephone exchange [ATS] locations.

As of April 22, Internet users across the country including in the capital continued reporting of weak signal or on-going disruptions in connections.

This is not the first time, major disruptions have been reported across the country.

In November 2015, massive Internet outage caused by a fire at a landline of the major Internet provider “Delta Telecom” left the country disconnected for at least 6 hours. In August 2016, some users experienced problems establishing an internet connection for several hours as a result of problems with Delta-Telecom’s infrastructure or as a result of debts owed by smaller providers to Delta Telecom. In October 2017, the MTCHT announced slow internet traffic across 23 regions due to AzTelekom’s [second government-owned internet provider] maintenance work to improve connectivity. In early July 2018, the country experienced its worst blackout in decades after a fire broke out at the country’s largest power plant.

In addition to accidents, technical, and other maintenance-related disruptions, there are intentional restrictions reported during certain political occasions such as political rallies or international events. In 2016 during the country-wide referendum, Virtual Road documented how authorities generated artificial internet network congestion within Azerbaijan to prevent access to the websites of both RFE/RL’s Azerbaijan Service and the Voice of America’s Azerbaijani services. 

During the Islamic Solidarity Games, there were reports of users having difficulties accessing and using Skype, Viber, and WhatsApp. Only after the games were over, the Ministry of Transport, Communications, and High Technologies issued a statement confirming, “Temporary restrictions to telecom services (Skype, Viber, WhatsApp,etc.), [were] imposed in Azerbaijan as part of security measures during the 4th IslamicSolidarity Games.

Opposition activists say internet service sometimes slows down or stops working completely in the hours before rallies are set to begin. Similarly, residents in neighborhoods where rallies often take place, too have experienced connectivity issues for the duration of these events. In response to these disruptions, local ISPs argue that the connectivity issues are directly linked to the number and density of users gathered in one place during that specific time.

And last but not least, the quality of the internet in Azerbaijan lags behind even its closest neighbors. According to the annual Freedom on the Net report, in Azerbaijan, “the fixed broadband market lacks equality between operators. The absence of regulatory reform also inhibits the development of the sector. Osman Gunduz cites Azerbaijan’s underdeveloped infrastructure as a key obstacle toward attaining greater access and higher connection speeds. And in his most recent Facebook post, Gunduz wrote that the recent disruptions attest to existing problems despite the on-going effort invested in setting up stable information infrastructure in the country over the recent years.

Azerbaijan ranks poorly on broadband speed in a report released by cable.co.uk

In a report on Broadband speed released by cable.co.uk Azerbaijan was ranked 141 out of 207 countries. The average speed in Azerbaijan remains around 3-4 Mbps.

Experts say this is a result of multiple factors, such as monopoly over internet providers, high costs and poor quality of internet connectivity across the country.

Worldwide broadband speed league 2019

cable.co.uk

In an interview with Azadliq Radio, Azerbaijan Service for Radio Free Europe, the head of Azerbaijan Internet Forum Osman Gunduz said the issue is a monopoly. “65% of the internet market in Azerbaijan is in the hands of the government providers. The price is regulated not by the market but by the government providers. And when private companies offer lower rates they get pressured in return”, explained Gunduz in an interview.

Media law expert Alasgar Mammadli believes the issue is not just monopoly but the lack of infrastructure and supply. The majority of internet service providers are based in the capital Baku. This has a significant impact on regional supply chains. But even in the capital, there is a lack of good internet speed and connection.

Despite numerous government plans and investments to improve overall ICT infrastructure in Azerbaijan, the country’s internet connection quality is only ahead of its neighboring post-Soviet countries – Turkmenistan, Uzbekistan, Tajikistan, and Kyrgyzstan.