Tag: oversight

authorities in Azerbaijan are considering law on social media – critics say

Posted on by aiw_admin

A recent conference organized by the Prosecutor General’s office in Baku on the recent violations of media legislation has raised eyebrows among civil society. On August 10, an event, titled, “Freedom of the Media and Information Security of Society under the Increasing Influence of Social Networks,” was held at the General Prosecutor’s Office.  Among the guests were representatives of pro-government and government media, as well as GONGOs. According to reporting by Turan News Agency, representatives of independent media or independent media experts were not invited and those who did attempt to attend the event were kicked out, violating Articles 25 and 5o of the Constitution. 

During the event, Prosecutor General Kamran Aliyev said the Prosecutor’s Office was determined to continue taking measures against published content in the media as well as on social networks deemed harmful to national security, not corresponding to reality, and/or identified as violating the rights of citizens.

A number of citizens have received warnings over their social media posts in recent weeks. In a statement published on July 30, the General Prosecutor’s Office said it has warned seven other users over their public posts shared on social media. The Prosecutor’s Office in a statement said the users were warned after the Prosecutor’s Office identified a violation of the Law on Media. Specifically, the statement said, 

During monitoring, it was identified that during the publication of news in media, provisions of Article 14.1.11 of the Law on Media were not observed [Facts and events must be presented impartially and objectively, and one-sidedness must not be allowed]. 

In order to prevent cases of violation of socio-political stability, human and citizen rights and freedoms, a number of relevant persons were invited to the Prosecutor General’s Office and the prosecutor took measures. 

As such, Sakhavat Mammadov, Rovshan Mammadov, Zulfugar Alasgarov, Elgun Rahimov, Fuzuli Kahramani, Zeynal Bakhshiyev and Ruslan Izzetli received a warning based on Article 22 of the Law on Prosecutor – to avoid cimilar negative incidents from taking place again.

The General Prosecutor’s Office repeats, in its appeal to media and social network users, that dissemination of unverified information that lacks clarificaition from the state institutions is unacceptable and holds one accountable according to existing legislation. 

Among those in attendance, was the head of the Press Council, Aflatun Amashov, who proposed to set up a commission in partnership with the Prosecutor’s Office that would regulate the media. For what purpose remains unclear, especially when there is no legislation in Azerbaijan that gives the prosecutor’s office authority to engage on issues of media ethics, media professionalism, or content regulation. 

In May 2022, AIW published a legal analysis about content regulation in Azerbaijan. At the time, an uptick in cases in which social media users faced punitive measures by the Prosecutor’s General Office for their online activism indicated that the Office has taken on a temporary role of taking measures against activists, journalists, and media within the scope of laws on information and media. But continuing involvement of the Office in handing out fines and warnings may indicate that in addition to punitive measures, there is a plan to introduce legal measures on social media platforms. 

Khalid Aghaliyev, a media law expert, told Meydan TV in an interview that the most recent discussions are a sign that the state is mulling over creating a law to regulate social media platforms. Aghaliyev also criticized the proposal of the Press Council to set up a commission. Nowhere in the world, there are institutions set up to regulate media. “These issues are regulated by independent journalists’ unions and their recommendations. But in Azerbaijan, independent journalism and media are problematic. They must be free, in the first place to get used to regulating themselves,” explained Aghaliyev.

Similarly, the head of Azerbaijan Internet Forum, Osman Gunduz, in a Facebook post said, the event organized by the Prosecutor’s Office sets a dangerous precedent. “Such steps create risks for the freedom of the Internet, the development of social media, and freedom of expression in general,” wrote Gunduz. 

Another media law expert, Alasgar Mammadli, writing in a Facebook post, criticized both the Press Council and the newly created MEDIA agency for failing to speak up at the event. After all, each of these institutions is responsible for reforms in the media, wrote Mammadli, and yet they could not say, “Dear Prosecutor’s Office, the functions in this area have been entrusted to me by presidential decree, do not interfere,” wrote Mammadli. 

Azerbaijan renames main Internet regulator [update May 24]

Posted on by aiw_admin

On October 11, the main internet regulator in Azerbaijan – the Ministry for Transport, Communication and High Technologies – was renamed the Ministry of Digital Development and Transport. The move comes following the signing of a Presidential Order that includes “improving management in the field of digitalization, innovation, high technology and communication in Azerbaijan,” according to ABC.az reporting. 

The decree also orders the setting up of the following departments within the rebranded ministry: 

  • The Agency for Information Communication Technologies; 
  • Innovation and Digital Development Agency (which will now combine, National Nuclear Research Center, Innovation Agency, and High Technologies Research Center);

Under its responsibilities, the Agency for Information Communication Technologies will:

  • carry out certification, accounting, control, and regulation of information communication technologies (including quality control) – this means that the new agency will act as the main internet regulator from now on; 

Experts say, the newly set up internet regulator, is unlikely to act independently. Human rights lawyer, Emin Abbasov said, “For many years, regulation in this sector [ICT] belonged to the Ministry [of Transport, Communication, and High Technologies]. And it has been a long-awaited move to set up an independent internet regulatory body. However, the new agency is unlikely to act independently as its head will be appointed by the Minister of Digital Development and Transport.”

Similarly, commenting on the decision, the President of Azerbaijan Internet Forum, Osman Gunduz said while it is a good sign that there is a new agency, its autonomy from its predecessor is yet to be seen. “For many years, the Ministry was the regulator. Basically, the ministry was regulating the ICT market, in which it also had stakes. There was a department within the ministry responsible for regulations and for decades this department favored government operators by creating favorable conditions for them. So it is a positive step that there is now a separate agency. What is interesting however is that according to the order, the head of the Agency will be appointed by the Minister [of Digital Development and Transport]. It would have been better if it was the President. Because it is unlikely that the Agency is going to have it easy regulating a deeply embedded tradition and creating equal conditions for both state and private companies. The question we should be asking is whether the leadership of the agency will have the authority and say in regulating the state operator in accordance with the new rules and procedures? And whether yet again, state companies will hold an upper hand in the market?  

In Azerbaijan, the ICT market is fairly concentrated in the hands of the government – in terms of control, and regulation as well as services – namely the Ministry of Transport, Communication, and High Technologies. In 2016, the President approved a Strategic Roadmap for Telecommunication and Information Technology Development. According to item seven, titled “strategic goals,” the document called for setting up an independent regulatory body by 2020.

On May 24, according to changes to a presidential decree dated January 12, 2018, the Ministry’s name was changed once again to the Ministry of Digital Development and Transport.

Azerbaijan takes stock of Turkey’s social media law

Posted on by aiw_admin

In recent years, as social media platforms gained popularity among Azerbaijani users to express concern and criticize the ruling authorities, the government officials were quick to react. At several meetings of the national parliament, members voiced opinions about the need to control social media platforms.

In May the discussions were back on the table.

According to Azadliq Radio, Azerbaijan Service for Radio Liberty, several members of the parliament and experts expressed discomfort over insult and slander often used on social media platforms.

Some of them were quick to offer amendments to existing national legislation, introducing punishments for such cases.

Fazil Mustafa, a member of the Human Rights Committee at the National Parliament said, while it is impossible to control social media platforms, using the Turkey example it is important that popular platforms and companies have legal representatives in Azerbaijan. This won’t be government control over social media platforms but rather a constructive partnership between the government and the companies’ representatives in the country.

This is not uncommon in countries with low democracy scores said media law expert Alasgar Mammadli. In these countries, the leadership is trying to introduce strict control measures under the pretext of protecting user rights and interests. “It is possible that like in Turkey where companies were forced to open offices, Azerbaijan would do the same. They may be asked to remove some personal information. Otherwise, they would be limited in their activities in the country or face fines,” said Mammadli in an interview with Azadliq Radio.

Alternatively, the authorities may consider introducing bans on some of the platforms but this won’t be effective according to Mammadli. “Experience shows that when Turkey blocked access to platforms like YouTube and Twitter, their user base only grew. Which means this may not be an effective method.”

Although, self-censorship is pervasive among ordinary social media users, who often face offline criminal charges for their online activism criticism of government policies and decisions on social media platforms is common and in some cases proven effective in changing the course of government decision-making.

Freedom House, Freedom on the Net, Azerbaijan country report 2019

In October 2018, a lawmaker proposed requiring internet users to register their social media accounts by linking them to their government-issued identity documents.

In February 2019, members of the parliament began discussing plans for new legislation. Musa Guliyev proposed creating a national social network and restricting access to all other platforms in order to “prevent people from slandering Azerbaijan.” Another member, Ziyafat Asgarov, suggested amending the Law on Mass Media to prevent social media users from insulting “the lawful actions, the personality, the honor or the dignity” of others. That same month, Aliyev signed a decree aimed at establishing a Social Research Center, which will monitor public opinion online, primarily through polling.

These statements came in the aftermath of a series of heated public discussions online. Among them was a campaign to drop newly leveled charges against imprisoned blogger Mehman Huseynov that would have extended his two-year sentence by an additional seven years. Huseynov went on hunger strike shortly after the new charges were announced, prompting an outpouring of support on social media under the hashtag #FreeMehman. In January 2019, thousands of people rallied in Baku to protest the government’s persecution of Huseynov. The rally, organized online, was among the country’s largest protests in recent years. The new charges were eventually dropped, and Huseynov was released in March 2019, after serving his two-year sentence.

Freedom House, Freedom on the Net, Azerbaijan country report, 2020

Following campaigns and rallies organized online in October 2019 and February 2020, the government indicated that it is interested in regulating platforms, with one lawmaker describing social media as an instrument for “moral terrorism.”In March 2020, one member of parliament proposed the creation of a dedicated body to monitor social media platforms and hold users who spread rumors accountable.

Azerbaijan already has laws in place criminalizing online speech. In 2013, general provisions on defamation and insult were expanded to include criminal liability for online content. Article 147.1 of the criminal code criminalizes the “dissemination, in … a publicly displayed internet information resource, of knowingly false information discrediting the honor and dignity of a person or damaging his or her reputation.” Article 148 of the criminal code similarly criminalizes “deliberate humiliation of the honor and dignity of a person, expressed in an obscene manner … through a publicly displayed internet information resource.” Also in 2016, changes to Article 323 of the criminal code introduced a maximum prison sentence of two years for defaming the president in mass media, which include social media. Defaming the president through fake “usernames, profiles, or accounts” may result in a three-year prison sentence. Falsely accusing the president of “having committed a serious or especially serious crime” online may result in a five-year prison sentence. In 2017, the fines associated with these offenses were increased.

Taking into account Azerbaijan’s human rights track record, the likelihood of new bills (especially those similar to Turkey) is not far-fetched.

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

Posted on by aiw_admin

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.