The Institute for Development of Freedom of Information (IDFI), a Tbilisi based non-governmental organization working on the issues of the Internet, e-governance and public administration reforms, published a policy paper about internet regulations and proposed some legislative changes in order to prevent excessive restriction of the freedom of expression in future in Georgia.
Context
Parallel to the unprecedented growth of the Internet’s importance in contemporary democratic societies, it is all the more pressing to determine the rules of engagement in this medium. The goal of such regulations is, on the one hand, not to restrict or hamper the use of the Internet and, on the other hand, to protect the interests that in certain cases contradicts freedom of expression.
According to Freedom House’s Internet Freedom Index, Georgia is considered a free country since 2012, where online censorship is rare and online content is not subject to systemic manipulations. Despite this, temporary blocking of Youtube and WordPress demonstrates how fragile such achievements can be. With these cases, the lack of accountability mechanisms of law enforcement agencies in such circumstances was revealed. The media and the society have not received answers about the means and grounds for restricting access to international platforms to this day.
At the same time, the Georgian National Communications Commission’s (GNCC) Regulation on the Rules of Provision of Services and Protection of Consumer Rights in the area of Electronic Communications (regulation), adopted in 2006, defines the concept of “inadmissible content”. Importantly, the Regulation covers protection of consumer rights specifically and cannot be invoked in cases of crimes falling under the Criminal Code of Georgia. GNCC’s Regulation foresees several grounds for restriction of freedom of expression; therefore, in case of abuse and ungrounded use of such rules, the standard of protecting freedom of expression may face severe threats.
The Purpose of the Study
The purpose of this study was to elaborate on the concept of “inadmissible content” and ascertain, to what extent the grounds for such principle meet the standards set forth in the Constitution and those acknowledged internationally.
Key Facts
According to the Regulation of the GNCC, inadmissible content implies any content transmitted by means of electronic communication, such as pornography, items featuring especially grave forms of hatred, violence, slander and insults, invade on a person’s privacy, violate the principle of presumption of innocence, are inaccurate and other content transmitted in violation of intellectual property rights and the Georgian legislation.
The same Regulation also defines individual obligations vis-à-vis inadmissible content. Specifically, the service provider is obligated to create mechanisms allowing it to disconnect or terminate service provision to a consumer/client when the client produces and disseminates inadmissible content. The Regulation also foresees obligations for the domain issuer to periodically examine the contents of the websites registered by it in order to prevent the placement of inadmissible content on such websites.
In case such content is placed, the domain issuer must immediately take appropriate measures to eliminate it. Similar obligations apply to the owner of the website.
Key Challenges Identified
Such general obligations represent an unfair burden for private companies. It is in most cases impossible to check and objectively assess content placed on Internet domains, due to the sheer size of the information. Of course, it is clear that this does not rule out the possibility of private companies to respond to specific complaints on placement of inadmissible content.
Similar approach is applied in the European justice system. Member countries are not allowed to obligate service providers to monitor Internet content. However, they can respond to notices of inadmissible content and take it down.
Apart from the obligations of private companies, the GNCC Regulation states that in cases of inadmissible content, consumers have the right to file a complaint to a relevant service provider, Consumer Rights Public Defender under the GNCC or the court.
This Regulation only covers cases that affect consumer rights, therefore, it does not explicitly regulate matters related to state security, when taking Internet content down is requested not by a person, but state institutions.
Importantly, certain grounds for deeming content inadmissible are vague and leave room for interpretation. This is even more significant as the GNCC does not have a well-established practice on certain criteria.
Therefore, there is a risk of restricting freedom of expression more than what is necessary in democratic societies. Considering this, every ground or basis for restriction should be considered case-by-case, in order to determine whether they are compatible with the standards of restricting freedom of expression.
Conclusions and Recommendations
The study showed that the components of the concept of inadmissible content defined by the Regulation of the Georgian National Communications Commission do not meet the local and international standards of restricting freedom of expression. Therefore, this problem must be solved through legislative amendments, in order to prevent excessive restriction of the freedom of expression.
For this purpose, IDFI proposed a draft amendment to the GNCC Resolution aimed at correcting the shortcomings described in this document and increasing the standard for protecting freedom of expression. For more details and particular legislative proposals, please check the full policy paper.