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.

Azerbaijan’s desire to regulate online hate speech: What problems should Azerbaijan fix first?

This is part two in a series of detailed reports and analyses 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.  

Background

On September 17, 2020, Zahid Oruc, member of the parliament and the head of the Human Rights Committee at the National Parliament, suggested parliament adopts a new law on hate speech. At the time, Oruc said the main goal was to prevent hate speech in the information space, possibly with the inclusion of social media platforms [several members of the parliament and government representatives have stressed that social networks should be regulated by law in Azerbaijan in recent years]. While stressing the urgency in adopting such a law, Oruc failed to address the exact nature of this urgency. In addition, likely in response to a possible backlash from the independent lawyers and civil society in Azerbaijan the MP said, the new bill, cannot be viewed “as a document against freedom of speech and expression”. Nevertheless, much of the responses that came following this announcement, were critical of the proposal especially in light of the legal context where plenty of other existing laws and procedures already address hate speech in one form or another.

In January 2020, the discussion on adopting the bill on hate speech was back on the agenda. Speaking at the first meeting of the spring session of the Parliamentary Committee on Human Rights the chairman of the committee Zahid Oruj noted that the spring session will focus on the analysis of world experience in the field of defamation and “hate speech” legislation.

But what about the analysis of Azerbaijan’s experience in the field of defamation? 

In Azerbaijan, a number of conceptual elements of hate speech are envisaged in the different normative legal acts, including in the Code of Administrative Offences, Criminal Code, the law on Information, informatization and protection of information and Law on Mass-Media.  In other words, several Azerbaijani laws include measures that are designed to address unacceptable online content (including hate speech), ranging from removing content, and making content temporarily inaccessible on the information-telecommunication network.

According to Article 47 of the Constitution of the Republic of Azerbaijan, everyone has the right to freedom of thought and speech. Agitation and propaganda, inciting racial, national, religious, social discord and animosity, or relying on any other criteria is inadmissible. Azerbaijan has also ratified the European Convention on Human Rights (hereinafter “ECHR”) where Article 10 provides that everyone has the right to freedom of expression.

Azerbaijan’s history is rich with examples where existing laws, were abused to restrict freedom of expression, and the national legislation so far failed to comply with international human rights standards with respect to the safety of the media workers or citizens who exercise their right to freedom of expression. That and the lack of independent judicial oversight over the restrictions to freedom of expression and thought post additional challenges in a current environment.

In 2017, when changes were made to the law on combating religious extremism, two prominent members of the Popular Front Party were arrested relying on the existing legislation, even though it was clear, it was a setup, as neither of the activists had any religious affiliation. In January 2017, a Baku court convicted senior opposition Popular Front member Fuad Gahramanli to 10 years in jail for inciting religious and ethnic hatred. Gahramanli was known for his criticisms of the government on Facebook. In July 2017 a court convicted Faig Amirli, another Popular Front member and financial director of the now-closed pro-opposition Azadlig newspaper, on bogus charges of inciting religious hatred and tax evasion. Amirli was handed a suspended sentence.

Four out of seven alerts in 2019 related to detention. Despite the March 2019 release of some wrongfully imprisoned journalists, including anti-corruption blogger Mehman Huseynov, the detention and harassment of journalists continue to this day.

During the height of the pandemic in Azerbaijan, the parliament introduced a series of amendments to existing laws that were then used to prosecute activists. Scores of activists were rounded up, including members of the opposition Popular Front [some of these arrests were captured here]. 

The government of Azerbaijan has consistently ignored the international calls, including the judgments of the European Court of Human Rights (ECtHR) requiring Azerbaijan to reform its domestic legislation with respect to freedom of expression and media rights in order to ensure that it is in line with the international standards. Instead of reforms, the government of Azerbaijan has aggravated the criminal liability for defamation and expanded the scope of the criminal liability to the online spaces (2016 amendments to the Criminal Code), adopted a criminal liability for extremist views on vague grounds, and established administrative liability for spreading false information.

These developments were contrary to the ECtHR’s findings in the Fatullayev, Mahmudov, and Agazade v. Azerbaijan cases (2008) where the Court found that application of provisions of the criminal law on defamation had been contrary to Article 10 of the Convention and the Council of Europe calls to the Member States that prison sentences for defamation should be abolished without further delay [Resolution 1577 (2007) of the Parliamentary Assembly, Towards decriminalization of defamation, to which the Strasbourg Court has referred on a number of occasions].

The country’s poor ranking on most of the rights and freedoms indexes attest to the grave reality in the country. It was also reflected in a statement issued following the Council of Europe Commissioner for Human Rights Dunja Mijatović’s visit to Azerbaijan in July 2019 where the Commissioner said, “Freedom of expression in Azerbaijan continued to be under threat”.

The key state obligations while regulating the online hate speech and general concerns for the Azerbaijani context

Despite the term “hate speech” widely used in legal, policy-making, and academic circles, there is often disagreement about its scope and about how it can best be countered [Dr. Tarlach McGonagle. The Council of Europe against online hate speech: Conundrums and challenges, p. 3.]

There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed. However, in 1997 the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (97) 20) on hate speech which stated the term (non-binding) “shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. 

In its case law the European Court of Human Rights, without adopting a precise definition, has regularly applied this term to forms of expression that spread, incite, promote or justify hatred founded on intolerance, including religious intolerance.

Key concerns for the abusive application of the hate-speech regulations

There have been growing concerns in many countries that hate speech regulations (both online and offline) are often misused or result in a violation of freedom of thought and expression. To this end, many international human rights organizations have often emphasized raising concerns on this matter and issued general recommendations, and developed standards for the regulation of hate speech to ensure that such regulations are in line with international human rights standards.

As noted, hate speech has threatened freedom of expression in many countries. Despite the importance “to prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …,” [Erbakan v. Turkey judgment of 6 July 2006, § 56] the presence of hate speech constitutes a serious threat for the freedom of expression in the process of potentially limiting the expression as such.

On May 13, 2020, Freedom of expression organization ARTICLE 19 has warned that France’s new “Avia” Law, will threaten freedom of speech in France. When a draft bill on hate speech was discussed in France, the French government has ignored the concerns raised by digital rights and free speech groups, and the result will be a chilling effect on online freedom of expression in France”. Consequently, on June 18, 2020, the French Constitutional Council (Conseil constitutionnel) the highest constitutional authority in France, declared that the majority of the Law on Countering Online Hatred, more commonly known as the Avia Law, was unconstitutional. This declaration rendered the key provisions in the law invalid. In its decision, the Constitutional Council held that certain provisions infringe “on freedom of speech and communication, and are not necessary, appropriate and proportionate to the aim pursued”.

The international human rights law provides that states may restrict freedom of expression (only) where provided by law with the condition to meet the principles of legality or necessity and proportionality.

Alongside these principles, an effective judicial review is needed to prevent any abuses of laws capable to restrict freedom of expression. The judicial review of such a measure, based on a weighing-up of the competing interests at stake and designed to strike a balance between them, is inconceivable without a framework establishing precise and specific rules regarding the application of preventive restrictions on freedom of expression [Ahmet Yıldırım v. Turkey, § 64; Cengiz and Others v. Turkey, § 62, which concerns the freedom to receive and impart information and ideas; see also OOO Flavus and Others v. Russia, §§ 40-43]. Furthermore, in some cases, for determining the proportionality, the ECtHR assesses the quality of the parliamentary and judicial review of the necessity of the measure [Animal Defenders International v. the United Kingdom [GC], §§ 108-109].

The First and foremost among these safeguards is the guarantee of review by an impartial decision-making body that separate from the executive and other interested parties.

The UN Special Rapporteur notes that “any restriction imposed must be applied by a body that is independent of political, commercial or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse” (A/67/357, para. 42).

This is not the case in Azerbaijan. For instance, the Ministry of Communications and Information Technologies is the main body regulating the internet in Azerbaijan, something that experts have called to change and share this role with an organization that is not under state control. The ICT market is also fairly concentrated in the hands of the government.

In its report (A/74/486, 9 October 2019), the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression evaluates the human rights law that applies to the regulation of online “hate speech” and notes that any restriction – and any action taken against speech should meet the conditions of legality, necessity, and proportionality, and legitimacy [Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/74/486, 9 October 2019), para. 20] and to establish or strengthen independent judicial mechanisms to ensure that individuals may have access to justice and remedies in case of restrictions. The Special Rapporteur further notes that “as a first principle, States should not use Internet companies as tools to limit expression that they themselves would be precluded from limiting under international human rights law. [para, 29]. In the meantime, the same Recommendation envisages a principle [third principle] that requires from the governments that interference with freedom of expression, in the context of combating hate speech, are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria and must be subject to independent judicial control.

In addition to discussions on adopting the law on Hate Speech, there are also plans to adopt a new law on Media at the moment. The consistent view of the government to regulate social networks with the “hate speech” law poses an additional risk to the systematically undermined freedom of expression in Azerbaijan. There is no guarantee that Azerbaijan’s government will not use lex ferenda regulations as a tool of oppression against its political opponents and civil society.

Without genuine consultations with civil society organizations, independent journalists, disregarding the constant calls of the human rights organizations and ECtHR judgments to reform the domestic laws to remove irrelevant and restrictive frameworks over freedom of expression, new hate speech, and media laws should be taken into account as a serious concern [Dr. Tarlach McGonagle. The Council of Europe against online hate speech: Conundrums and challenges, p. 29].

Instead of addressing the systematic shortcomings, in particular, rendering the restrictive legal frameworks in the sphere of freedom of conscience, freedom of expression and thought, and internet freedom, the government of Azerbaijan continues to add more restrictive regulations into its legislation that is likely to undermine last remnants of the freedom of expression – the online spaces.

In addition, while in a hurry to pass restrictive legislation against freedom of expression, the government of Azerbaijan remains inactive when it comes to the effective investigation of the smear campaigns and hateful attacks against minority groups, such as LGBTQ- communities, and feminists

Finally, having reviewed the current environment of repression and crackdown, and specifically, in the absence of effective judicial oversight and a fully independent regulatory body accountable to the public, it can be concluded that there is no urgency for any new regulations at the moment in Azerbaijan.

fresh media reforms raise concern [updated]

On January 12, President Ilham Aliyev signed a decree “on deepening media reforms in the Republic of Azerbaijan.” As a result, the newly established Azerbaijani Agency for Media Development will replace the State Support Fund for Mass Media Development and will have all the rights of the former institution. In tandem, new media law is also being drafted by the Administration of the President for the President’s review in two months.

The decree was welcomed by many mouthpiece media, including the SES [Voice] media group. Its director, Bahruz Guliyev said, there was a need for fundamental reforms, transparency, and public demand. “Since the Azerbaijani law on mass media fails to meet the demands of the time, it requires to be revised, should be improved, and one of the main tasks of the new body is to develop a draft law ‘On media’ replacing the outdated law,” he added.

Guliyev has been a long advocate of the government of Azerbaijan. SES was established in 1991. In 2015, Guliyev in an interview with YAP [Yeni Azerbaijan Partiyasi – the ruling New Azerbaijan Party] said, the platform had a tough path having survived the “pressure and censorship from the government.” The reason for the pressure faced in the hands of the government claimed Guliyev was that “the newspaper was writing about Azerbaijani realities.”

Two years prior, Guliyev was shouting at ODIHR representative in the aftermath of the rigged presidential election in Azerbaijan accusing ODIHR of having prepared the entire preliminary statement long before coming to Azerbaijan. Just two months earlier, Guliyev was among the recipients of a free apartment by President Aliyev in the new government-built residential complex for journalists. 

The charter

The Media Development Agency is a public legal entity carrying out activities to support the development of media, organise the training of media specialists and their additional education, stimulate the activities of audiovisual, print, online media and information agencies (media subjects), journalists and other media workers, as well as the introduction of new information and communication technologies and innovations in the field of media.

The agency’s tasks include organising the implementation of projects that are important for the state and society, aimed at developing, strengthening economic independence and improving the activities of these media entities, as well as in accordance with the “Concept of state support for the development of the media in the Republic of Azerbaijan.” The organisation also takes measures to strengthen the economic independence of media entities, creates financial support for the development of media, acts as a state customer for the production and distribution of audiovisual products, and holds competitions for this purpose.

Punitive measures

According to its charter, the agency can take measures to protect state and commercial secrets. In case of non-compliance with the information published in the online media within the requirements provided by law, the agency can contact the relevant authorities in order to take measures in this regard.

It also has the authority to take measures in accordance with the Code of Administrative Offenses in case of detecting signs of an administrative violation in the field of print and online media, and in case of detection of signs of a crime – to provide information to the appropriate authority [the powers are similar to the National Council on Television and Radio which can and has in the past deprive radio and television companies of air hours]. 

It will also be accountable to the head of state.

The agency’s governing bodies – a Supervisory Board of six members – and the executive director, are appointed by the head of state. Ahmed Ismayilov, is the executive director of the new fund. In April 2020, he was appointed the executive director of the now defunct Media Development Support Fund. Ismayilov, 40, is a lawyer by education. Previously he has worked in various government institutions, including the Heydar Aliyev Foundation, managed by the first lady and the first vice president Mehriban Aliyeva. He is a member of the ruling Yeni Azerbaijan Party. 

Previously, the central executive body supervising the media in Azerbaijan was abolished when the country joined the Council of Europe in 2001.

Reactions

In his Op-ed, the director of Turan News Agency, Mehman Aliyev wrote

Until now, the press supported by the state legally and illegally, has served the interests of the authorities, but not society; it has led to a deplorable situation in various areas, including the media themselves.

In the meantime, notes Aliyev, while the new fund’s focus is on technological aspects of media development there is no mentioning of protection of free press whatsoever. Lack of avenues for independent media in the country and impunity is the challenge, not the lack of technological equipment notes Aliyev.

Alasgar Mammadli, the media law expert, criticized the new agency’s broad, it’s vaguely defined legal powers and the absence of any wider preliminary discussions in the society ahead of its approval.

In an interview with ASTNA, lawyer Khalid Aghaliyev said while it is too early to say anything about the new agency, the role its predecessor played in Azerbaijan, should not be underestimated: 

State Support Fund for the Development of Mass Media, established 11 years ago, was one of the institutions that played a key role in controlling the media in Azerbaijan. This organization gradually began to penetrate the media in 2009 and was able to make the print media almost completely dependent on it in a short time. 

[…]

The image of this Fund, especially in the last 2-3 years, was seriously damaged, and its main mission was fully exposed. In this regard, it was entirely expected that the government would liquidate the Fund or present it in a new image. Therefore, I do not see a serious difference in principle between the abolished and the newly created institution. The new body will likely carry out the same mission as the Fund in reality. 

[…]

Powers such as punishment with regard to the content and directing the content are very dangerous. Empowering an institution created by the state with such powers is incompatible with the right to freedom of expression. Legislation already delineates the boundaries of freedom of expression, and any other interference is unacceptable.

Two days after the decree was signed, Vugar Safarli, the former fund’s executive director [Ahmed Ismayilov’s predecessor] who was dismissed from his post in April 2020, was arrested on charges of embezzlement. During the investigation, the prosecutor’s office seized some 6million AZN [3.5million USD] from Safarli’s personal bank accounts. Safarli was expelled from the ruling party on February 15. 

Now, the critics, and media practitioners must wait until the new media law is drafted. Given the country’s recent history of media crackdown, the chances of having transparent legislation are slim, while its implications worrying.