NO TO FREEDOM OF SPEECH
Analysis of violation of law at the trial concerning the blocking of independent websites
The Baku Court of Appeal, Civil Chamber
Case №2 (103)-5341/2020
09 September 2020
Presiding judge: Ziya Shirinov
Applicant: Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic
The interested parties: Adil Ismayilov, a representative of Azadliq (“Freedom”) Radio, Tazakhan Miralamli, a representative of “Azadliq.info” LLC and Zubeida Sadigova, a representative and lawyer of Meydan TV
In recent years, the pressure of the Azerbaijani authorities on freedom of speech has further worsened. The journalists, bloggers, writers and publicists who have been criticizing the government’s policies are arrested, and many of them, unable to withstand the existing pressure, are fleeing the country. Pressure is also exerted on the Internet resources, many sites are blocked even without a court order, for example such as www.abzas.net, www.islamazeri.az, www.islaminsesi.az, www.nur-az.com, www.criminal.az, www.gununsesi.info, www.realliq.info, www.realliq.az, www.politika.az, www.nia.az, www.neytral.az, www.vediinfo.az, www.obyektiv.org, www.sonolay.az, www.ulus.az, www.qanunxeber.az, www.infoaz.org, www.xalqinsesi.com, www.aztoday.az, www.bastainfo.com, whereas some others are blocked by means of appeals to the courts by the Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic.
Just in 2020, the applicant Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic appealed to the court with a request to impose restrictions on the domains of azadliq.info, azadliq.org, azerbaycansaati.com, TV programs Meydan TV, TV channel Turan (Turan TV) and Azərbaycan saatı. The complaint was justified by the fact that the channels broadcast programs that contradicted the state and public interests, and posted the materials that propagate suicide. The complainant pointed out that doing so was harmful to society, and justified the claim by the Article 13-2 (distribution of information on the Internet resource or telecommunication network) of the Law of the Azerbaijan Republic “On Information, computerization and the Protection of Information”.
Specific allegations made by the complainant concerned in the following publications on the sites:
- in March 2017, Meydan TV posted an article written by Dr. Jamil Hasanli, the Chairman of the National Council of Democratic Forces, which the complainant considered dangerous, as according to the complainant, the article compared religious radicalism with authoritarianism reigning in our country,
- on 28 March 2017, the websitel info posted an article “If the people can say: I am”, which underlined the increasing cases of suicide by desperate people who were unable to find any other way out of the difficult financial situation in the country. The article also stated that if the people were able to say no to corruption, arbitrariness, monopoly, and injustice, we would be able to enjoy normal life.
- in March and April 2017, there were posted the articles on the Internet portal org, in one of which Dr. Jamil Hasanli talked about necessity of protests, and in another one, allegedly questioning the country constitutional structure in general. He said that “we wrongfully created this state”, “falsely wrote the constitution”, “created falsely a democracy”. There were the following words, “The longest, most difficult winter is coming to an end, and spring is emerging in its place…it is in one of these springs that the cherry trees in the gardens will blossom. I do believe. There are all kinds of opportunities here to realize your ideas, your fantasies.”
On 12 May 2017, the Baku City Sabayil District Court ruled to satisfy the application of the Ministry of Transport, Communications and Hi-Tech of the Azerbaijan Republic.
The case defendants filed an appeal against the Baku City Sabayil District Court’s ruling.
On 09 September 2020, the Civil Chamber of the Baku Appeal Court issued a decision to deny the appeal and uphold the judgment of the Court of First Instance from 12 May 2017.
Commentary by an expert lawyer:
The court verdict is illegal and unjustified. According to the Article 50 of the Constitution of the Azerbaijan Republic:
- Everyone is free to look for, acquire, transfer, prepare and distribute information.
- Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited.
According to the Article 1 of the Law of the Azerbaijan Republic “On freedom of information” and to the Article 50 of the Constitution of the Azerbaijan Republic it is stipulated that everyone has a freedom to legally seek, get, transfer, produce and distribute any information. The law defines the information as the data, regardless of its form, concerning the events, processes in society in the states, as well as the facts and individuals occurring therein.
According to the Article 13-2.1 of the Law of the Azerbaijan Republic “On Information, computerization and Protection of Information”, the owner of the Internet site shall independently determine the content of the information placed on such resource as well as the procedure of its publication. The owner of the Internet site and its domain shall ensure legitimate activity of the resource, including compliance with the norms of the state language, and shall be personally responsible for these activities.
In accordance with the Article 13-2.3 of the above-mentioned Law, the owner of the information Internet resource and its domain or the user of the information and telecommunication network has no right whatsoever to provide the following prohibited information on it (“information and telecommunication network”):
13-2.3.1. the information on propaganda and financing of terrorism, the ways and means of implementing terrorism, organizing or conducting trainings for the purpose of terrorism, and open calls regarding terrorism;
13-2.3.2. the information on violence and religious extremism propaganda, open calls to incite national, racial or religious hatred and hostility, violent alteration of the state constitutional system, fragmentation of territorial integrity, violent seizure or retention of power, organization of mass riots;
13-2.3.3. the information that constitutes the state secrets;
13-2.3.4. any information on the manufacturing procedure or processes regarding the production of firearms, its components, ammunition, explosives and devices;
13-2.3.5. the information regarding the methods and processes of preparation or consumption of any narcotic drugs, psychotropic substances and their precursors, places of their illegal acquisition, as well as places or practices of cultivating plants containing narcotic substances;
13-2.3.6. the information concerning pornography, including child pornography;
13-2.3.7. the information encouraging to organize and participate in gambling and other illegal forms of gaming;
13-2.3.8. the information that promotes suicide to be an instrument of resolving problems, justifies or provokes suicide, explains methods of its commitment or distribution with the purpose of arranging suicide of several people in a group.
Based on the analyzed court ruling, it is not clear how the court identified the discrepancy between the information on the websites and the law. In the judgment the court only referred to the above-mentioned articles of the AR Law «On Information, Computerization and Information Protection” and pointed out that the content on the Internet sites did not meet the provisions of the Law.
In addition, if the applicant considered some articles in conflict with the law, he could ask the court to impose on the defendants the burden of removing just these articles, rather than the entire site.
The right to freedom of speech and the distribution of the information is also guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 10. According to this article:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
As it can be seen, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article 10, provides for certain restrictions. A clear list of restrictions is provided in the Article 10 Paragraph 2.
In order to determine a violation of the Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights (ECHR) provides answers to several case-by-case test questions:
- whether there was an authority’s interference in this right;
- whether the interference was provided by the law;
- whether the interference pursued a legitimate purpose in accordance with the provisions of the Article 10 par. 2;
- whether the interference was “necessary in a democratic society”.
If the first question can be answered positively, then all the other questions will be answered negatively.
Thus, according to the ECHR, the following two requirements are derived from the expression “provided by the law”. Firstly, the law must be adequately accessible: the citizens should have an appropriate framework to be able to navigate through the legal norms that apply to the case in question. Secondly, a norm cannot be regarded as a “law” unless it is defined precisely enough to enable the citizen to relate his conduct to it: the citizen should be able, with the aid of appropriate guidance, to foresee, with a degree sufficient to the circumstances, the consequences that might follow from the action in question.
As for the third question regarding the legitimacy of the intervention, it should be pointed out that the Ministry, in the commented case, tried to justify its complaint by stating that the articles contain pro-suicide propaganda and are also contrary to the state and public interests.
One final point. Whether the intervention was “necessary in a democratic society”. There is no doubt that all those articles that alarmed the Ministry staff were indeed of public interest. “As the Court has already indicated, the Article 10 not only guarantees the freedom of the press to inform the public, but also the right of the public to be duly informed” (the Judgment of the European Court in Sandy Times v. United Kingdom of April 26, 1979).
The Article 19 of the International Covenant on Civil and Political Rights states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals.
The Article 19 of the Universal Declaration of Human Rights states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The ban on the most popular Internet resources that publish critique and informational articles has resulted in a violation of the citizens’ rights to be informed. In this case, the authorities’ illegitimate interference has violated both the rights of the media to distribute the received information, as well as the citizens’ rights to obtain this information.