Anda di halaman 1dari 12

Policy Paper

Regulation of Internet
Content in Georgia
Growing Challenges?!

Giorgi Noniashvili
June, 2017
Introduction Internet Control in Georgia

In the 21st century, forms and opportunities for In 2016 in Georgia, the government blocked ac-
expressing ones own personal opinions, re- cess to Wordpress and YouTube websites on
ceiving and imparting information are growing several occasions, disabling access to the entire
increasingly. Internet provides unique opportu- platform not just a specific content. These prob-
nities for virtually everyone to be able to enjoy lems were highlighted by the Freedom House in
freedom of expression, exchange information, connection to Internet freedom.2
impart opinion and find like-minded people. On
the other hand, Internet also creates new chal- By virtue of Article 24 of the Constitution, every-
lenges, including access to personal information, one has the right to freely receive and impart
promoting hate/violence, organization of terroris- information, to express and impart his/her opin-
tic networks, etc. ion orally, in writing or by any other means; me-
dia is free and censorship is prohibited. These
Over the recent years Georgia had to face some standards also extend to the area of Internet as
increasing threats that are related to Internet. For contemporary means for receiving and imparting
instance, in 2016 state institutions disabled glob- information. Internet as a space for expressing
al Internet platforms for blocking terroristic mate- ones opinion can also be safeguarded by Article
rial containing personal information. It turned out 19 of the Constitution.3
that the state institutions lack adequate regula-
tions and practical experience for solving such The Law on Freedom of Speech and Expression4
problem. reflects the constitutional principles and views In-
ternet, inter alia, as a medium. According to the
In addition, political and public circles have in- law, standards that apply to other means of mass
creasingly called for limiting expression and communication also extend to Internet.5 The
insults online (for instance, calls for regulating law allows content-based regulation of speech
religious feelings), while the 2017 constitutional and expression involving defamation, obscenity,
amendments recognize the right to Internet ac- fighting words, incitement to commit an offence,
cess for everyone. threat, disclosing of personal information, etc.6

Standards that democratic countries practice for Most of these enumerated actions can also take
freedom of expression extend to Internet as well place online, which means that Internet can also
as to classic means of communication and dis- be subjected to the limitation but the law does
semination of information. On the other hand, not provide any concrete stipulations to that end.7
67% of Internet users live in countries where crit-
icism of the government, military or ruling family In addition, European countries for instance limit
are subject to censorship.1 access of child pornography for Internet users.
While the Law of Georgia on the Protection of
The purpose of this document is to create an Minors from Harmful Influence does not address
outline of what the states approaches to Internet this issue at all,8 Article 255 of the Criminal Code
control should look like. To this end, we have of Georgia prohibits distribution of a ny type of
analyzed current international practice and stan- pornography.9
dards about freedom of expression online, Geor-
gian practice and legislative framework.

1 Freedom on the Net 2016; Freedom House; 2016; https://freedomhouse.org/report/freedom-net/freedom-net-2016


2 Freedom House; Freedom on the Net 2016 - Georgia; 2016; https://freedomhouse.org/report/freedom-net/2016/georgia
3 The Parliament of Georgia; Constitution of Georgia; 24 August 1995. https://matsne.gov.ge/ka/document/view/30346
4 The Parliament of Georgia; the Law on Freedom of Speech and Expression; 24 June 2004; https://matsne.gov.ge/ka/document/view/33208
5 Ibid, Article 1 para. v
6 Ibid, Article 9
7 The Law of Georgia on Freedom of Expression pays particular attention to regulation of slandering, which may also extend to the Internet.
8 The Parliament of Georgia; the Law on Protecting Minors from Harmful Influence; 28 September 2001. https://matsne.gov.ge/ka/document/view/15652
9 The Parliament of Georgia; the Criminal Code of Georgia, Article 255, 22 July 1999. https://matsne.gov.ge/ka/document/view/16426

1
Article 157 of the Criminal Code concerns regu- In 2016, after videos of private lives were
lation of Internet and prescribes punishment for released online, the state temporarily disabled
illegal use or dissemination through Internet (in- access to global Internet portals.14
cluding social media) of personal data or infor-
mation about ones private life.10 In addition, Ar- The System of Monitoring
ticle 1761 of the Code of Administrative Offences
prohibits admitting a person under the age of 18 Georgia has a system of monitoring Internet con-
in gambling games organized in a systemic-elec- tent but the system only defines who is in charge
tronic form.11 of the monitoring without elaborating how the
monitoring should be exercised.
In practice examples of content-based regulation
of Internet are few and far between, while public With regards to control of information dissemi-
discussions about regulation of Internet content nated online, we must note a resolution of the
take place from time to time in political and pub- Georgian National Communications Commission
lic circles. There have been several incidents in defining the notion of impermissible product:
Georgia involving limits on Internet content, in- pornography transmitted by means of electronic
cluding: communications, other products depicting espe-
cially serious forms of hate and violence, insult-
During the Russian-Georgian War of 2008, ing private life, defaming, insulting, violating pre-
access to Russian news websites was limited; sumption of innocence, inaccurate, transmitted
in violation of copyrights and the Georgian leg-
In 2015, the draft legislation on insulting islation. 15
religious feelings was initiated in parliament for
criminalizing public insults to religions sanctities, The Georgian National Communications Com-
religions organizations, priests and believers, mission (GNCC) obligated Internet service pro-
and subjecting them to an administrative liability. viders to design mechanisms for dropping or
The explanatory note that accompanied the draft disconnecting a subscriber that disseminates
legislation focused on the increasing insults to impermissible products.16 Service providers are
the Orthodox Church online as a major problem. also obligated to act on reports filed by others17
Authors of the draft legislation believed that the but the resolution does not specify types of ac-
state should have limited freedom of expression tions that they must take in response to these re-
about religious issues on the Internet. Intense ports, it only states that service providers must
debates and criticism of human rights organiza- take all possible measures available to them.
tions ensued, which eventually led to withdraw-
ing of the draft legislation by its initiators;12 These obligations also extend to domain name
registrars: they must periodically inspect websites
In 2015, the Prime Minister announced that they have registered and eliminate publish-
that he wanted to limit operation of Internet casi- ing of any impermissible products in particular,
nos;13 they must issue a warning against the domain

10 Ibid. Article 157


11 Presidium of the Supreme Council of the Georgian SSR; the Code of Administrative Offences of Georgia, Article 176, 15 December 1984. https://matsne.gov.ge/ka/
document/view/28216
12 The Law of Georgia on Amendments to the Code of Administrative Offences of Georgia; prepared by Tomaradze, initiated by Georgian MP Jachvliani, 07-3/521/8;
02.12.2015;
13 As of now, the Government of Georgia plans to study the issue in a comprehensive manner;
14 The portal of Wordpress was blocked after pro-Islamic videos were released on one of its websites. Later only authorities blocked only the website where the content
in question was published.
YouTube was blocked two times, possibly after videos of private lives of Georgian politicians were released. Later authorities blocked only the content in question.
15 Resolution of the Georgian National Communications Commission on adoption of the Regulations about Provision of Service and Protection of Customer Rights in the
field of Electronic Communications, 17 March 2006. https://matsne.gov.ge/ka/document/view/63556
16 Ibid, Article 101, para.4.
17 Ibid, Article 25

2
owner concerned and instruct it to eliminate the Here we must also note that the regulations es-
impermissible product within a certain period of tablished by the GNCC do not define the role
time. If the domain owner fails to comply with the and the effect that state institutions and/or the
demand, the domain name registrar must block Commission itself have in the process of limiting
the website itself.18 Internet content when, for instance, they want to
limit content that violates the right to privacy.
In addition, website owners are obligated to ex-
amine links placed on their websites and take all Ambiguity of impermissible product
relevant measures for eliminating any impermis-
sible product.19 If the state can play a role in limiting the imper-
missible product21 , it means that the state has
Clearly, the GNCC has imposed Internet service unlimited powers to control Internet because:
providers, domain name registrars and website
owners with the responsibility to control Internet Definition of impermissible product is rather broad
content, while it is ambiguous how Internet ser- and falls short of the constitutional and interna-
vice providers, domain name registrars or web- tional standards of freedom of expression; it is
site owners define violation of presumption of in- also ambiguous. For instance, what does inaccu-
nocence, dissemination of insulting content, etc. rate information mean and what is the difference
between inaccurate and slanderous information?
According to these regulations, further actions Does information that violates the right to priva-
that must be taken for elimination of impermissi- cy mean personal information? What does other
ble product are relatively straightforward only in products mean?
one case when court orders an Internet service
provider to block the impermissible product. In The risk is further intensified by the states rela-
such cases court decides whether or not pre- tionship with Internet service providers, domain
sumption of innocence was violated, whether or name registrars and website owners. In prac-
not alleged defamation occurred, etc. In other tice, the obligation to limit Internet content, as
cases, fulfillment of applicable obligations by or- imposed by the state institutions, mostly falls out-
ganizations that the GNCC imposed with an obli- side of the legal framework.
gation to control Internet content is challenging.20
Blacklist
What happens when the responsible orga-
nizations fail to conduct the monitoring The state has not prepared any blacklist on the
basis of a set of criteria/filters for defining why
What happens if Internet service providers, do- a specific content is considered impermissible
main name registrars and website owners fail to and for transferring it to the GNCC and to Inter-
monitor Internet content is unclear. As of today, net service providers for blocking certain content.
they dont have any obligations that the GNCC In addition there are no filters/criteria that would
and/or other state institutions would have used have allowed the state institutions to decide if a
to pressure these organizations into monitoring. content published online can be limited immedi-
ately or not.
The GNCC itself has not undertaken any obli-
gations to control Internet content or control It is safe to say that Georgia lacks any legisla-
and define responsibility of organizations that, tive framework for controlling Internet content in
according to the GNCC, should control Internet particular, defining relationships between institu-
content. tions, introducing online censorship, prohibiting
18 Ibid, Article 103
19 Ibid, Article 102
20 The Office of the Public Defender of Consumer Interests functions separately from the office of the GNCC. It is tasked with protecting interests of consumers. Its powers
are defined in general terms and include: submitting initiatives for improving regulations in the field of electronic communications and protecting consumer interests and
rights; the GNCC resolution about Adoption of the Regulations of the GNCC, Article 20; https://matsne.gov.ge/ka/document/view/3210105
21 See p. 5, paragraph 2

3
pornography (e.g. child pornography) or violent lization;
materials. According to the Freedom House,
Though legal regulations, particularly those in- c) violation of user rights: surveillance, interfer-
volving copyright or criminal law, are considered ence with private and family life, different reper-
to apply to Internet activities, they have not been cussions for online speech and activities, etc.24
exploited to impose significant content restric-
tions. 22 In 2016, the Freedom House found that Internet
freedom has slightly worsened in Georgia.25 Re-
Of note are blocking incidents involving Word- gardless, Georgia was among top ten free and
Press and YouTube. It remains ambiguous as open countries in the Freedom Houses report
to why access to these platforms were disabled about Freedom on the Net.26 Estonia, Iceland
and how the state institutions made Internet ser- and Canada had highest scores in the ranking.
vice providers disable the access. The providers
themselves have cited different reasons as to Below is a summary of legislative frameworks in
why these platforms were blocked.23 Estonia, Iceland and Canada about restriction of
content and censorship online:
It is safe to conclude that there is no comprehen-
sive vision and well-defined approach in Geor- Estonia: Estonia has one of the easiest Internet
gia for regulating Internet content, and over the control regulations it limits publishing of ma-
recent years the state has arbitrarily restricted terials that violate copyrights; collection of per-
access to certain content, and the restriction was sonal information and its distribution online; on-
not based on any particular approach defined by line gambling business. In 2010 Estonia started
the law. blocking gambling websites based on the Gam-
bling Act of 2008. By 2013 it had blocked nearly
International Approaches 800 illegal online gambling sites.

Legislation and Judicial Practice in Europe Of note is the fact that in 2008, the Estonian
and the U.S. court found a web service provider liable for the
third-party comments posted on its Internet news
Over the last 6 years influential human rights or- portal, which the European Court did not find to
ganization Freedom House has been studying be a violation. 27

Internet freedom in countries across the world,


including in Georgia, using the following mea- Iceland: Internet service providers use filters
sures: for blocking websites that distribute child por-
nography and practice a system of monitoring
a) infrastructural and economic barriers to In- Internet content. Together with the organization
ternet access: legal and ownership control over Barnaheill (Save The Children Iceland), Internet
internet service providers, and independence of service providers participate in an international
regulatory bodies; project INHOPE28 and report information about
suspicions electronic sources to relevant state
b) analyzing legal regulations on Internet con- authorities for checking.
tent, technical filtering and blocking of websites,
self-censorships, the diversity of online news In 2012 and 2013, the Ministry of Internal Affairs
media and the use of digital tools for civil mobi- of Iceland submitted to parliament a proposal for

22 Freedom House; Freedom on the Net 2016 Georgia, Blocking & Filtering; 2016; https://freedomhouse.org/report/freedom-net/2016/georgia
23 Caucasus Online stated that no such restriction had taken place e-publications Netgazeti, 14 March 2016. http://netgazeti.ge/news/101254/
Silknet explained that access to youtube.com from Georgia was restricted because of a technical issues, 14 March 2016. http://netgazeti.ge/technology/101290/
24 Freedom House; About Freedom on the Net, WHAT DO WE MEASURE?; https://freedomhouse.org/report-types/freedom-net
25 Freedom House says that blocking of Wordpress and YouTube websites was a step backwards; Nana Sajaia, Voice of America; Freedom of Internet Worsens; 15
November 2016. http://www.amerikiskhma.com/a/freedom-of-the-net/3596815.html
26 Freedom House; Freedom on the Net 2016 - Table of Country Scores; 2016; https://freedomhouse.org/report/table-country-scores-fotn-2016
27 For detailed information, refer to pages 6-7, Delfi AS vs. Estonia
28 International Association Of Internet Hotlines (INHOPE); http://www.inhope.org

4
restriction of gambling and pornography online Discriminatory expression that promotes
but the proposal did not succeed. violence based on nationality and race online is
unacceptable and is subject to similar approach-
Canada: from 2006 Canada has been operating es as dissemination of information by traditional
a project Cleanfeed Canada (cybertip.ca) for fil- media.33
tering content published online29, with the aim of
restricting access to child pornography. The court offers a broad interpretation of
freedom of information online and affirms that
In 2011, the Supreme Court of Canada decided any limitations regarding Internet censorship are
that an Internet publication may not be held lia- unacceptable.34
ble for publishing information that is not slander-
ous but contains a link to a slanderous content. It is important that the court does not rec-
ognize a blanket approach for different informa-
In 2015, Quebec presented a draft law about tion and communication sources. Publishing of
blocking illegal gambling on the Internet. It would certain content can be unacceptable for televi-
have been the first Internet censorship law in sion broadcasting but completely acceptable for
Canada. Although the draft law was broadly criti- Internet.
cized, it was adopted in May 2016. The law was
then appealed in the Supreme Court, which is The Constitutional Court of Germany also al-
why the limitations envisaged by the law have lows that in some cases freedom of speech can
not come into effect yet. be limited online, when protecting someone is
a priority, but unlike the U.S. Supreme Court,
Communications Decency Act has been regu- the Constitutional Court of Germany does not of-
lating media in the U.S. since 1996.30 Websites ten side with the freedom of speech; instead, it
and Internet service providers are protected from favors the right to privacy, freedom of personal
liability for content of third parties. The U.S. Su- correspondence, property right, etc. In Germany
preme Court has established the following sever- there are content-based regulations for Internet
al standards in this regard: for instance, regulations that apply to neo-Nazi
resources, child pornography, etc. Providers are
Limitations introduced for prohibiting ob- obligated to filter websites that have negative ef-
scene, insulting content are unconstitutional for fect on citizens.
violating the First Amendment. In some cases,
such content may be harmful for a certain group In Great Britain an independent regulatory or-
like minors for instance, but this does not provide ganization Internet Watch Foundation monitors
grounds for prohibiting such content in general.31 potentially threatening resources (e.g. child por-
nography, information about how to make ex-
To serve the best interests of children, plosives, etc.). Anyone can report a suspicious
Congress has the right to obligate public schools content to the Internet Watch Foundation. If need
and libraries to regulate access of minors to In- be, the organization can force providers to elim-
ternet content and create filters to that end. The inate illegal content before involving the law en-
content-based criteria have been used in making forcement.
federal funding decisions.32 In addition, in 1996
the United State adopted the Childrens Internet
Protection Act.

29 Cleanfeed Canada has been created by Canadian Internet providers. List of blocked websites is created after reports submitted by Internet users are analyzed.
30 Communications Decency Act (CDA); 1996; https://www.eff.org/issues/cda230
31 Reno v. American Civil Liberties Union 521 U.S. 844 (1997)
32 United States v. American Library Association 539 U.S 194 (2003)
33 United States v. Machado (1998), United States v. Kingman Quon (1999), Commonwealth of Pennsylvania v. ALPHAHQ (1999)
34 Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)

5
Approaches of International Organizations tation or rights of others, including their right to
privacy.
In its annual report for 2015, an influential inter-
national organization Amnesty International criti- Internet provides means for discussions con-
cized restriction of freedom of speech online by cerning political issues and issues of general in-
countries.35 According to the organization, such terest and therefore it enjoys higher standards
actions are the new method of governments re- of protection. In addition, the Council of Europe
pression of dissent, which poses a substantial recognizes that in some cases Internet service
threat to the freedom of expression.36 providers can define and follow their own policy
about expression for instance, they can limit
Amnesty International believes that governments certain content or action.39
blocking of websites is violation of freedom of
expression. In 2015, the organization was es- In 2016, the CoE Committee of Ministers ad-
pecially critical of Russia, where thousands of opted a recommendation for member countries
websites were blocked on orders from Roskom- to periodically prepare reports about human
nadzor, especially websites that published polit- rights situation on the Internet.40 The document
ical satire, religious texts, information shared by provides relevant criteria for evaluation, includ-
LGBT activists, information about public protests, ing freedom of speech, access to information,
etc. In addition, there is a growing trend of impo- freedom of mass media, right to private life and
sition of criminal or administrative sanctions for the right to protect personal data, etc. Based on
expression online.37 this document, any limitations imposed on the
Internet and resources available on it must be
The European Convention on Human Rights, Ar- in compliance with Article 10 of the European
ticle 10 (freedom of expression) protects elec- Convention.
tronic information communication systems.38 In-
ternet is regarded as means of communication The European Court of Human Rights Juris-
notwithstanding the type of communication, in- prudence
cluding commercial. In addition, according to the
Council of Europe, Internet can be subjected to In 2009, a news portal Delfi filed an application
restriction if expression promotes discrimination, with the European Court against Estonia.41 Delfi
hate and violence. Such restrictions must be le- contended that it had been held liable for offen-
gal, narrowly interpreted and implemented under sive comments posted by its readers on its portal
the courts supervision. in breach of Article 10 of the Convention. It ar-
gued that punishing the portal was not justified
The Council of Europes standardized approach- by the legitimate public aim. Prior to that, the
es to freedom of expression and information also news agency was forced to monitor each and
extend to Internet. Everyone should enjoy free- every user-generated comment based on the de-
dom of expression on the Internet, access to in- cision of an Estonian court, while users left thou-
formation published online and opinions of third sands of comments a day on its website.
parties. This also entails political statements, re-
ligious views, opinions and expression that may The European Court found that restriction of the
offend or shock others. In addition, freedom of right protected by Article 10 of the Convention
expression should give due respect to the repu- had the legitimate aim of protecting the reputa-
35 Amnesty International; AMNESTY INTERNATIONAL REPORT 2015/16: THE STATE OF THE WORLDS HUMAN RIGHTS; https://www.amnesty.org/en/documents/
pol10/2552/2016/en/
36 After lobbying by Amnesty International and other human rights organizations, the UN set up a new mechanism: Special Rapporteur on the right to privacy in the digital
era. The purpose of the Special Rapporteur is to ensure development of basic principles about the issue.
37 Amnesty International; 2015/16 - https://amnesty.org.ru/pdf/Annualreportbook15_16_Russian.pdf
38 The Council of Europe; Freedom of Expression: Guide to the Implementation of Article 10 of the European Convention on Human Rights; https://rm.coe.int/CoERMPub-
licCommonSearchServices/DisplayDCTMContent?documentId=090000168008ebf1
39 Council Of Europe; Guide To Human Rights For Internet Users; Recommendation CM/Rec(2014)6
and explanatory memorandum; 2014; https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804d5b31
40 Council Of Europe; Recommendation CM/Rec(2016)5[1] of the Committee of Ministers to member States on Internet freedom; 13 April 2016; https://search.coe.int/cm/
pages/result_details.aspx?objectid=09000016806415fa
41 European Court of Human Rights; Delfi AS v. Estonia; Application N 64669/09; 2015;

6
tion of others. In Courts view, holding the agen- found them only to be offensive and vulgar. The
cy liable did not remove the legitimate aim of court eventually found that the notice-and-take-
holding the actual authors of the comments lia- down43 system could function as an appropriate
ble. The Court viewed the agency as a publisher tool for balancing exercise between the compet-
of content comments, and found that the limita- ing parties involved.
tion was proportionate interference with the right
to freedom of expression. According to the European Court of Human
Rights, although not publishers of comments
Delfis representatives contended that it was im- in the traditional sense, Internet portals have to
possible to filter user-generated comments (be- assume certain duties and responsibilities. How-
fore publishing). Delfi lawyer Karmen Turk point- ever, the Courts approach to the case brought
ed out: Every minute, more than 130 hours of against Hungary was more liberal than to Delfi
video is uploaded to Youtube; more than 40 000 AS v. Estonia. It stated that it is necessary to
posts on Facebook; more than 2000 posts and strike a balance between freedom of expression
comments in just one blogging platform Word- and respecting reputation. In the case of MTE
Press. & Index.hu the ECHR established that news
portals that remove offensive comments and/or
The case was largely criticized by human rights comments harming ones reputation immediately
organizations. It was often highlighted that the after noticing and Safe Harbor44 criteria, are free
decision would have a chilling effect on freedom from any liability for offensive comments gener-
of expression because it holds a news agency ated by users.
liable for third-party generated comments.
According to the ECHR, limitations placed on the
Another similar case was Magyar Tartalomszol- Internet for sexual content are legitimate and do
gltatk Egyeslete and Index.hu Zrt v. Hunga- not violate freedom of speech and expression.45
ry42, where the court considered liability of the The Court further broadened this standard in
Internet service provider for offensive and slan- K.U. v. Finland. The case involved placing of an
derous comments published on websites. Hun- advertisement of a sexual nature on a website
gary ordered the provider to control user-gener- in the name of a minor. The service provider re-
ated comments, which the Court found to be a fused to divulge to the police the identity of the
violation of Article 10 of the European Conven- publisher of the advertisement, citing confiden-
tion (freedom of expression). tiality. Local court did not obligate the service
provider to divulge the said information because
The Court compared the case at hand to Del- applicable norms didnt exist in the legislation.
fi AS v. Estonia and stated that the two cases The European Court found that publishing of the
were different because the case against Hungary advertisement made the minor a target for ap-
was notably devoid of the pivotal elements in proaches by pedophiles, and that both the public
the Delfi AS case of hate speech and incitement interest and interest of the child must take pre-
to violence. In Delfis case the Court found that cedence over the principles of confidentiality for
the liability imposed by the national court was Internet service providers. The court underlined
proportionate and the comments published on the states positive obligation to protect the right
the website were illegal for inciting hatred and to private life. As a result, the Court found that
violence. In addition, in the case of MTE & Index. Article 8 of the Convention had been violated.
hu the Court differentiated content of comments
published online from the previous case and The Court also handled a case involving receipt

42 European Court of Human Rights; EuMagyar Tartalomszolgltatk Egyeslete and Index.huZrt v. Hungary; Application no. 22947/13; 2016;
43 The notice-and-take-down system means that content is taken down after it is reported to the website.
44 Directive 95/46/EC OF THE EUROPEAN PARLIAMENT; Safe Harbor Privacy Principles; http://ec.europa.eu/justice/policies/privacy/docs/95-46-ce/dir1995-46_part1_
en.pdf
45 European Court of Human Rights; Perrin v. United Kingdom; Application no. 5446/03; 2005;

7
of unsolicited messages by email. The Court states enjoy a broad discretion for interference.
confirmed that the action amounted to an inter- In addition, Article 10 does not in any way pro-
ference with a persons right to respect for his tect incitement of hate.
private life, which is unacceptable. However,
controlling spam represents an objective diffi- The court has established the following limits of
culty in the 21st century and Internet users are freedom on the Internet for states:
naturally under a threat of receiving unsolicit-
ed information. Under these circumstances, an The Court recognizes limitations placed
e-mail user cannot invoke effective protection of with the aim of protecting minors as legitimate and
the right to respect for his private life and there- assigns more importance to such limitations than
fore, the Court did not find any violation of Article to freedom of press on the Internet, for instance.
8 of the Convention.46 This is also true for limitations with regards to
child pornography. According to the Court, the
According to the European Court, there are sev- state must improve the normative base to protect
eral ways in which Article 10 of the Convention such interests. The Court has also found that
extends to the Internet sphere: access to a website can be limited if it publishes
obscene photo materials available for all Internet
General principles of Article 10 extend to users to see, including minors.50
Internet materials. The state has a positive ob-
ligation to protect freedom of expression on the The Court has found that journalists must
Internet and create a normative base for effec- abide by the journalistic standards of ethics on
tive protection of the freedom; the Internet about what can and cannot be pub-
lished. In Courts view, freedom of press ends
With regards to political and social discus- where an individuals right to respect for personal
sions, the Court finds that people tend to express and family life begins. The fact that particular in-
their position in a stiff or incorrect manner but this formation was published online in the past does
does not necessarily provide grounds for placing not give the press the right to publish it again.
limitations on freedom of expression.47 Shocking The press should not be discussing family life of
ideas and information are protected under Article public individuals, even if information about it is
10, including when they are disseminated online. available online. Further, the press must protect
identity of a child victim;
Strong reasons must be provided for any
measure that limits access to information which Higher standards of freedom of expres-
the public has the right to receive.48 States may sion apply to discussions about political, mili-
limit expression on the Internet for protecting tary and social issues on the Internet. In such
reputation and preventing slander; cases, Internet is treated on equal basis with oth-
er outlets of information. In Courts view, under
Freedom of expression on the Internet these conditions Internet users and political op-
must yield on occasion to other legitimate im- position have an opportunity to criticize political
peratives, such as the prevention of disorder or leaders about social and political issues, includ-
crime or the protection of the rights and free- ing when the criticism is unfair and accusations
doms of others;49 are not true.51

When calls are made for violence against In Srek v. Turkey the Court found with regards
an individual, a public official or a social group, to political speech that the limits of permissible

46 European Court of Human Rights; Muscio v. Italy; Application no. 31358/03.; 2007
47 European Court of Human Rights; Willem v. France; Application no.10883/05; 2009;
48 European Court of Human Rights; Timpul Info-Magazin and Anghel v. Moldova; Application no. 42864/05; 2007
49 European Court of Human Rights; K.U. v. Finland; Application no. 2872/02; 2008
50 European Court of Human Rights; Perrin v. United Kingdom; Application no. 5446/03; 2005;
51 European Court of Human Rights; Renaud v. France; Application no.13290/07; 2010
8
criticism are wider with regard to the government made by third parties online. The Constitution-
than in relation to a private citizen or a politician. al Court of Russia upheld the same standard in
In a democratic system the actions or omissions Evgeny Krilovs case. This culminated into the
of the government must be subject to the close adoption of the law in 2014 that allows imposi-
scrutiny not only of the legislative and judicial tion of a liability on websites and social networks
authorities but also of public opinion. in Russia for contents, comments published by
third parties (e.g. using band language or con-
In addition, the Court recognizes that Article 10 veying inaccurate information).54
does not provide guarantees for protecting racial
discrimination, incitement of hatred or propagan- More often that not, Russian authorities arrest
da on the Internet. For these actions, liability can Internet users for publishing a certain content or
be imposed, inter alia, on members of political expressing a certain opinion and subject them
parties for instance, for xenophobic slogans to administrative and criminal prosecution. There
that they use during an election campaign.52 are numerous cases involving harassment and
threats against Internet users, both within and
Overall, the European Court of Human Rights outside the limits of Internet, for expressing their
allows content-based limitations on the Internet; political opinion in social networks. They are also
however, it also points out the need of striking a targeted by cyber attacks.55
balance and legitimate goals. According to the
Court, there are certain interests that justify lim- Political content is often blocked to advance in-
itation of freedom of expression on the Internet, terests of official Moscow. For instance, content
including the interest to protect ones business critical to Russias annexation of Crimea and its
reputation and the right to respect for ones pri- involvement in the conflict in the Donbass region
vate life. Generally the Court allows placing lim- was blocked. In addition, Russia uses the so-
itation on the type of content that is harming to called anti-extremism laws for blocking political
a democratic society or an individual. Standards consent. There were instances when information
established by Article 10 of the Convention allow and opinion posted online that contradicted the
limitation of the freedom of expression, includ- official Moscow position was announced as ex-
ing for protecting state safety. Clearly, states can tremist and a liability was imposed on individuals
extend the similar logic to the Internet resourc- concerned. Internet censorship in Russia also
es, however any limitation must be in abidance manifested by blocking websites of LGBT peo-
by the strict standard established by Article 10 ple.
for interfering with a protected area. The test for
placing limitations with regards to political andAn example of a country that practices stiff re-
social discussions is especially strict. strictions in our region is Turkey where opportu-
nities for expression on the Internet have been
Examples of Stiff Restrictions significantly restricted over the recent years. In
parallel with political and social changes in the
The Freedom House has criticized the state of region, Turkey periodically limits access to the
Internet freedom in Russia, Belarus, the UAE, entire Internet. It has blocked access to global
Iran, etc. in its report. networks like Twitter, Facebook, YouTube nu-
merous times. Of note is the fact that the way
For instance, according to the report 2016 , In- Turkey blocked access to these networks was
53

ternet freedom significantly worsened in Russia quite similar to Georgias: to avoid terroristic pro-
in 2015-2016. The Supreme Court of Russia paganda, Turkey blocked access to the entire
imposed liability on media outlets for comments websites, until it was able to remove the threat-

52 European Court of Human Rights; Feret v. Belgium; Application no.15615/07; 2009


53 Freedom House; Freedom on the Net 2016 - Russia; 2016; https://freedomhouse.org/report/freedom-net/2016/russia
54 The new law introduced in 2014 is sometimes referred to as the law on bloggers.
55 Freedom House; Freedom on the Net 2016 - Russia; 2016, p.2, https://freedomhouse.org/sites/default/files/FOTN%202016%20Russia.pdf

9
ening information. The Turkish government has
made numerous arrests of journalists for alleged Clearly, there may be an immediate
terroristic propaganda and offending government need to limit access to online content when
representatives. These journalists criticized the failure to act immediately can lead to an irrep-
Turkish government online and had an opposi- arable harm. An example of such case was the
tion stance. need of immediate actions in response to the re-
lease of private videos. However, in such cases
In its annual report about Freedom on the Net, responsibilities must be clearly defined: it must
the Freedom House provides a detailed account be specified when state institutions should limit
of and criticizes these matters.56 The above illus- access to online content and when they should
trations show that motivation for states to control obligate others (Internet service providers or do-
the Internet may vary while the declared reason main name registrars) to place the restriction.
is the same e.g. avoiding terrorism threats and/
or expression of hate. In some states limitations Such restrictions can be equipped with addition-
may serve the declared purpose while in others al safeguards pre-defined criteria; state institu-
they may serve authoritarian passions and the tions should be able to place a restriction (e.g.
above reasons can be cited to justify freedom apply to a regulatory body to immediately limit
of expression and opinion of any individual that access to a content), subject to court warrant.
does not conform with interests of the govern-
ment. There may be an online content that re-
quires examination and a higher standard of
Conclusion protection. In such cases judicial control must
be established and limitations should only be
International practice in the area of controlling placed on the basis of courts decision. A regu-
the Internet clearly illustrates that Georgia lacks latory agency should refer the case to court for
common vision about modern and virtual com- consideration if, for instance, it believes that the
munications and dissemination of informa- case contains elements of a crime.
tion. It also lacks a legislative approach that
would differentiate between Internet and re- There must be certain leverage to control state
maining communication outlets. Therefore, it institutions to make sure that the government
is ambiguous whether the state views interfer- does not limit more online content than neces-
ence with freedom of expression on the Inter- sary for protecting public order, safety of the
net as identical to interference with freedom
country and rights of individuals.
of expression in traditional media.
The analysis of international practice has
Limitations of the Internet in Georgia are con- shown that states either monitor the Internet
nected to state security issues (blocking of Rus- themselves or obligate Internet service providers
sian websites in 2008, blocking of pro-Islamist to filter Internet materials within a certain frame.57
websites in 2015), right to respect for private life Such frames mostly focus on controlling obscene
(leaking of videos of private lives of politicians materials published online, as opposed to limit-
in 2016), and all these cases involved stiff lim- ing expression related to political and social is-
itations in addition to the relevant content, ac- sues (in any way or form).
cess was also disabled to other materials pub-
lished on the Internet portals. These actions can Content-based limitations on the Inter-
be viewed as an arbitrary decision made in that net can largely be based on user reporting. To
particular moment, without relying on legislative this end, there must be an effective electronic
approaches or strategy. database where users submit their reports and

56 Ibid, page 9
57 Often regulatory agencies are created and Internet service providers participate in these agencies.

10
these reports are then handled by an indepen-
dent agency based on pre-determined criteria.
Decisions of the agency can be challenged in
court.

It is important for the state to develop a com-


prehensive vision about controlling the Internet.
The vision must be in abidance by constitutional
and international standards on freedom of ex-
pression, and it must outline how different state
agencies should react to different types of online
contents.

11