Tag: Law on Information

administrative detention handed over social media posts

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Former political prisoner, Giyas Ibrahimov was sentenced to 30 days in administrative detention on bogus charges of resisting police on June 22. On June 24, new charges were leveled against the activist, accusing Ibrahimov of spreading prohibited information on the Internet (Article 388.1 of the Code of Administrative Offenses). The former was handed down to the activist after Ibrahimov voiced criticism against the state over its mishandling of popular unrest in one of the villages in western Azerbaijan. The latter is related to the former accusation, punishing Ibrahimov over his social media post.  

Ibrahimov is not the first activist to be questioned or held accountable over activity on social media platforms. AIW has documented how over the years activists, rights defenders, and journalists have been called into questioning, detained or sentenced, and asked to remove or apologize over their social media commentary. 

The controversial law on Information, Informatisation, and Protection of Information was first adopted in 1998. In March 2017, a series of restrictive amendments were added to the law, converting the law from a technical regulation into a content regulation. In March of 2020, the law was updated yet again. In a previous analysis of the law, AIW together with a legal expert identified some of the key challenges and loopholes in the law, such as: 

  • In the list of prohibited information envisaged in the Law on Information, Informatisation, and Protection of Information, the definition of what entails prohibited content is described with vague expressions that are open to excessive interpretations. With these terms, the state authorities “enjoy” a broad discretion power to categorize any information as prohibited (Law № 460-IQ); 
  • Amendments to an existing bill on Information provisions, Informatization, and Protection of Information extended the subjects – to users – of responsibilities for placement of prohibited information, including the “false information” on information-telecommunication networks.This means that amendments establish the liability over the information-telecommunication network users to place prohibited content on the information-telecommunication networks; The amendments also added an item to the list of prohibited content, forbidding the  placement of false information: thus, prohibited information was considered “false information [yalan məlumatlar] in case it posed a threat to harm human life and health, cause significant property damage, mass violation of public safety, disrupt life support facilities, financial, transport, communications, industrial, energy and social infrastructure facilities or other socially dangerous consequences.”In other words, if users placed content on the internet that might be considered false information capable to disrupt the functioning of state bodies or their activities it can be considered on the grounds of violating the existing law.

Article 388 of the administrative offenses 

During the same plenary meeting in March 2020, an amendment to article 388-1 of the Code of Administrative Offenses (CAO) of Law No. 27-VIQD was also approved.

Article 388-1 of the CAO was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal person owners of internet information resources and associated domain names as well as on users of information-telecommunication networks for the placement, or the violation of provisions of the Information Law aiming at preventing the placement, of prohibited information on such internet information resources.

With the amendments introduced to laws, users of the information-telecommunication network, owners of internet information resources, and domain names might be punished under Article 388-1 of the CAO. The penalty for the offense is a fine between 500 and 1000 manats (about US$294–$588) for real persons and 1000 to 1500 manats for officials, with an option of up to one month of administrative detention for both classes of persons depending on the circumstances and the identity of the offender.

During the first year of the pandemic, the same administrative offense was used to target scores of political activists. 

Recent arrests and detentions

On June 23, journalist Ulvi Hasanli was also invited for questioning over a Facebook post. After being kept for several hours and questioned about the post, Hasanli was asked to remove the post which he declined to do on the grounds there was nothing illegal about the content of the post. He was later released. Earlier the same month, Amrah Tahmazov, a civic activist was sentenced to 30 days in administrative detention. While police claim the activist was arrested over hooliganism and disobeying police, Tahmazov and his friends, believe the arrest was over his social media post in which he criticized President Ilham Aliyev. In March, civic activist, Elvin Mustafayev (known online as Atilla Khan) was sentenced to 25 days in administrative detention on charges of petty hooliganism and disobeying police in Saatli province of Azerbaijan. According to Mustafayev’s friends, the activist was reprimanded for his critical-of-the-authorities comments and posts on Facebook. Since mid-March, residents of Saatli have been protesting water shortage. In February, a member of the opposition Popular Front party was sentenced to 25 days in administrative detention. Police accused the activist of resisting police, while party members claimed the arrest was over the activist’s social media posts in which he often criticized the authorities. This is by no means an exhaustive list as it only includes cases from recent months. 

Previous reports:

journalists were fined over the published article;

two website editors and three social media users were questioned over “disseminating forbidden information on the internet”;

questioning over social media posts critical of government measures raises concern;

police briefly detains a member of an opposition party over social media posts;

police arrests opposition activist over critical social media posts;

Who regulates content online in Azerbaijan? Legal analysis

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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.

Journalist fined in a midnight trial

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On December 18, journalist Sakhavat Mammad, with an online Yenicag.az website, was fined in a midnight trial, on charges of publishing prohibited information on an information resource or information/communication network under the law on Information, Informatisation and Protection of Information. The journalist was charged under Article 388.1.1 of the Code of Administrative Offenses.

Mammad, who often reports on the army, was invited to the Prosecutor General office on December 18 over his recent reporting published on Yenicag.az website. 

“I explained [at the Prosecutor General office] that the recently published work is the result of investigations I have been conducting for a while now. I was then taken to the court. They had a hearing late at night and fined me in the total amount of 500AZN. It was so late that when the judge asked if I wanted a lawyer, I decided to defend myself because I did not want to bother anyone so late in the evening,” Mammad told in an interview with an online news platform Toplum.tv. 

The controversial law on Information, Informatisation, and Protection of Information was first adopted in 1998. In March 2017, a series of restrictive amendments were added to the law, converting the law from a technical regulation into content regulation. In March of 2020, the law was updated yet again. In a previous analysis of the law, AIW together with a legal expert identified some of the key challenges and loopholes in the law, such as: 

  • In the list of prohibited information envisaged in the Law on Information, Informatisation, and Protection of Information, the definition of what entails prohibited content is described with vague expressions that are open to excessive interpretations. With these terms, the state authorities “enjoy” a broad discretion power to categorize any information as prohibited (Law № 460-IQ); 
  • Amendments to an existing bill on Information provisions, Informatization, and Protection of Information extended the subjects – to users – of responsibilities for placement of prohibited information, including the “false information” on information-telecommunication networks.

    This means that amendments establish the liability over the information-telecommunication network users to place prohibited content on the information-telecommunication networks; 

    The amendments also added an item to the list of prohibited content, forbidding the  placement of false information: thus, prohibited information was considered “false information [yalan məlumatlar] in case it posed a threat to harm human life and health, cause significant property damage, mass violation of public safety, disrupt life support facilities, financial, transport, communications, industrial, energy and social infrastructure facilities or other socially dangerous consequences.”

    In other words, if users placed content on the internet that might be considered false information capable to disrupt the functioning of state bodies or their activities it can be considered on the grounds of violating the existing law.

Article 388 of the administrative offenses 

During the same plenary meeting in March 2020, an amendment to article 388-1 of the Code of Administrative Offenses (CAO) of Law No. 27-VIQD was also approved.

Article 388-1 of the CAO was aggravated with the penalty of up to one-month administrative detention with other sanctions against real or legal person owners of internet information resources and associated domain names as well as on users of information-telecommunication networks for the placement, or the violation of provisions of the Information Law aiming at preventing the placement, of prohibited information on such internet information resources.

With the amendments introduced to laws, users of the information-telecommunication network, owners of internet information resources, and domain names might be punished under Article 388-1 of the CAO. The penalty for the offense is a fine between 500 and 1000 manats (about US$294–$588) for real persons and 1000 to 1500 manats for officials, with an option of up to one month of administrative detention for both classes of persons depending on the circumstances and the identity of the offender.

During the first year of the pandemic, the same administrative offense was used to target scores of political activists. 

 

Restrictive new bills sweep freedoms under the carpet [part 1]

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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 1.0.1.1 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 1.0.1.6 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.]

Procedural safeguards:

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.

Conclusion

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.