In Moldova, as in many other countries, the search for a balanced form of online regulation continues. Currently, there are a number of conflicting trends in the regulation of the country’s online environment and the absence of a unified state policy in this area. Driven by fear of security risks, Moldovan authorities are increasingly attempting to expand state oversight of online spaces and increase their influence over the internet, putting the freedom of expression and the right to privacy at risk. Implementation of laws designed to protect citizen’s rights and privacy and activities of the media is largely ineffective, and there are few checks and balances in place to prevent authorities from taking a more rigid stance in policing internet content.
Moving forward, it is crucial that Moldova – a country where the field of internet regulation remains undefined – forms a favourable legal environment for the online space and develops legislation that considers international recommendations, experience, and best practices, while maintaining a balance between security issues and civil liberties. National experts on digital policies and internet regulation are calling for the development and application of common principles, norms, and decision-making procedures governing the online environment that are based on a broad multistakeholder approach and consider economic, political, and socio-cultural dimensions.
In Moldova, freedom of expression is at a critical juncture, especially in the digital space. According to the Office of the Ombudsman, amid the 2020-2021 pandemic, Moldova witnessed an “ongoing deterioration” in terms of freedom of expression and registered a “lack of progress” related to the right of access to information[1],[2]. This trend was evident in the last two years, when Parliament declared a state of emergency twice in response to the coronavirus pandemic. The Information and Security Service unilaterally blocked dozens of news sites that it claimed were disseminating online content containing misinformation about the COVID-19 pandemic. In doing so, the Moldovan authorities violated the international right to freedom of expression and the right to “search, receive, and transmit information and ideas”.
Expert and statistical analysis of legislative activity in recent years indicates that Moldova has taken a strict approach to the formation of the legal framework governing the online space, without always considering international experience and recommendations in this area. Draft laws have included overly general wording and lacked clear criteria for interference in rights and freedom, thereby increasing the risk of misinterpretation and abuse of the laws. Moreover, the development of the legal framework on these topics has not always been transparent to the public. For example, the public has been waiting for a long period for the release of a draft of the Digital Code,[3] which promised to systematize and unify regulations in the field of information technology and address some issues related to information security, but this has not happened.
A bill announced by the Ministry of Justice in July 2020 that aims to counteract the phenomenon of spreading false information that affects national security[4], was never presented for public discussion. In 2022, amid the crisis situation in the region and the growth of illegal or questionable content on the internet, the authorities returned to the idea of developing a similar draft law aimed at combating disinformation and fake news, including on the internet, but national and international experts have many questions about its content and development procedure. To some extent, this initiative goes the way of legislative initiative known as the “Big Brother” package. Several years ago, lawmakers promoted this legislative agenda to change national legislation on information security and combating cybercrime. While the legal drafters claimed a desire to bring laws in line with European law, in reality the proposed changes provided for excessively strict control of the internet by the state and ignored the practices of other countries that have experience in this area.
Local civil society organizations have repeatedly expressed their concern about the potential negative consequences of this legislative initiative, which offers a very broad range of rights for law enforcement institutions without guaranteeing due respect for the principle of privacy and freedom of expression. In addition, drafters of the “Big Brother” package passed the entire burden of implementing the legislation on to service providers without a preliminary analysis of the costs and effectiveness of such measures. Such an approach could lead to a substantial increase in cost for access to internet services. Civil society organizations acknowledge the importance of combating cybercrime and unlawful content in the online space and do not dispute the need to improve the legal framework in these areas, however, stress that legislative initiatives should not exceed the pursued objectives and leave room for abuse.
The adoption of such initiatives should be preceded by a detailed examination of the provisions that extends the limitation of fundamental rights, including when it comes to the obligation to block users’ access to web pages. The blocking of the web pages by internet service providers constitutes interference with users and websites, which violates fundamental rights and freedoms by creating a layer of censorship. Special rules may apply during a country’s state of emergency, but they may not conflict with general principles in this area and must be of limited application over time.
Experts urge Moldovan lawmakers to avoid haste in this complex reform process. In order to comply with European standards, Moldovan national authorities should ensure full compliance with international conventions, review and refine the framework governing the restriction of access to internet content in accordance with the guarantees of fundamental rights enshrined in the ECHR and the relevant case law and standards in this field, and clarify legal terminology to reduce confusion in the interpretation and application of the law.
This article is prepared by the Association “Comunitatea Internet” with the support of the American Bar Association Rule of Law Initiative (ABA ROLI).
[1] http://ombudsman.md/wp-content/uploads/2021/04/Raport-2020-FINAL-RED.pdf
[2] http://ombudsman.md/wp-content/uploads/2022/03/RAPORT2021-RED-FINAL.pdf
[3] https://www.egov.md/en/communication/news/information-technology-regulatory-framework-constantly-updated