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.

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

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.