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Azerbaijani government on the verge of introducing censorship on the Internet

Azerbaijani government on the verge of introducing censorship on the Internet
Want to Say 

2017 April 25 ( Tuesday )  23:32:22
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Русский Azərbaycan
Rashid Hajili, Institute for Media Rights

The President of Azerbaijan by signing changes to the Milli Majlis, introduced into the Law "On Information, Informatization and Information Protection", will give "green light" to the broad and strict supervision of the government over the Internet in Azerbaijan. At the same time, having signed the law, the president promulgated the name of the government structure, which should be obliged to perform the functions of cutting the content (Internet Censor), distributed on the Internet. Internet Censor in the person of the Ministry of Communications will now monitor the content of the sites, identify and take measures to remove from the site or block the content that the distribution deems illegal.

The changes determined the powers of the Internet Censor, which, outlining a wide range of illegal content, would censor Web sites or Web 2.0. Also, the duties and responsibilities of individuals and entities responsible for preventing the distribution of content declared illegal by the government and for enforcing the instructions of the Censor were also recorded.

What kind of work will the Internet Censor do?

Along with the owners of the Website, Web 2.0 platforms, the changes have been attributed to the number of persons responsible for implementing measures aimed at preventing the dissemination of content on the Internet that is considered illegal, the Host Provider (HP, the provider of information hosting services in its systems (hosting) Use of information resources of the Internet) and even Internet service providers.

Internet Censor will control the content located both on the domain "az", and on other domains created or distributed both inside Azerbaijan and outside it, in a word, all the content, access to which is possible in Azerbaijan.

The owner of the Web page and the owner of the domain name must control, check the content that is distributed on the site, if they disclose the prohibited information or receive appropriate appeals from any persons, this information should be removed from the site. In Article 13-2.5. A similar duty is imposed on Host Providers.

To detect banned content on the Internet, the Internet Censor will conduct continuous monitoring. In identifying such content, it will be assisted by state structures, individuals and organizations. Internet Censor will receive and verify the treatment of plaintiffs related to illegal content, as well as neutral persons who believe that the read content should be considered illegal.

Changes give the Censor more power to prevent the distribution of prohibited content. When directly detecting the distribution of prohibited information or receiving a message from other persons and structures, the Censor sends a written warning to the owner of the Web page, its domain name and the Host Provider. The said officials must remove this information from the site within 8 hours of the warning announcement.

If this information is not deleted from the site, then the Censor can apply to the court or immediately make a decision to close access to the site that distributes the prohibited information. If the Censor finds that the information disseminated "Creates threats to the interests of the state and society protected by law" or "Creates unavoidable situations that present a real danger to human life and health", it decides on "temporary restriction" of access to the Website. Having adopted this decision, Censor at the same time applies to the court about the restriction of access to the Website. The decision of the Internet Censor to restrict access to the site remains in effect until its cancellation by a court decision.

The court, according to the rules on the expedited procedure, considers the appeal of the Censor for stopping access to the Website within 5 days and makes a decision. This decision takes effect immediately after its adoption and the filing of an appeal does not suspend its execution.

By a decision of the court or Censor's own decision, the sites for which access is terminated are entered by the Censor in the "List of information resources on which information is prohibited".

According to the law, immediately after Censor's inclusion of the name of the Web site in the "List of information resources where information is prohibited for distribution", the Host Provider and Internet providers should restrict access to the Web site and inform the site owner about it.

Shortcomings in the law visible to the naked eye

The law does not disclose what is meant by "restricting access" to the Web site. Also, there is no mention of what should be blocked: only information that is considered illegal, or the entire Web page, or some part of it. The lack of such clarity in practice opens the way for the adoption of erroneous measures, the admission of abuses by the Internet Censor, Host and Internet providers who will have to "restrict the treatment" to the Web site.

What information will the Censor include in the "List of information resources where the information is prohibited", whether the information in this list will be open, will the decisions and motivation documents of the Censor be published? The law does not answer these questions. It also does not address the following important issues: in what order will the Censor supervise the implementation of this decision, to whom will the orders be given, what are the rules and responsibilities for the fulfillment of these orders, etc. The law imposes regulation of these significant issues to the government structure, which will be determined by the President.

The Law also does not define any provisions related to the organization, the composition of the structure that will perform the function of the Censor, the requirements for decision-makers, the decision-making procedure, the promulgation of decisions, and the transparency and accountability of the structure.

The changes, along with the Censor, also recognize the right of other persons to go to court with a lawsuit against sites prohibiting the dissemination of information, in their opinion, violating their rights. If the dissemination of such information is revealed, the person (individuals and legal entities, as well as structures competent to bring legal action) applies to the site owner with the requirement to delete this information. If this requirement is not fulfilled, a person may apply to the court with a demand to prohibit the dissemination of information. After receiving the enforceable court order, the person hands it to the Censor for execution. The censor includes this site in the "List of information resources on which information is prohibited for dissemination".

Although the changes state that the owner of the Web site, the owner of the domain name, Host and Internet providers are liable in accordance with the procedure established by law in connection with the posting of prohibited information on the Internet, the provisions providing for specific responsibility are not defined.

Censorship and freedom of expression

Powers granted by this law to a structure that should oversee the content of Internet sites, turn it into a structure that subject websites to state censorship.

Censorship means the prohibition of any part of a film, a book, a newspaper, a magazine and any other broadcasting product or putting pressure on its author and distributors on the assumption that it is corrupt, unworthy, politically unacceptable, posing threat to  security threat and order.

The Constitution of the Republic of Azerbaijan prohibits state censorship.

According to Part II of the 50th article of the Constitution, it is prohibited to subject the mass media to state censorship. This means that the law can not establish any censorship over the mass media, any state or non-state structure can not censor on the basis of such a law.

Freedom of expression is not an absolute right, it can be subject to statutory restrictions. These restrictions can be applied to protect and ensure the territorial integrity and security of the state, prevent crime and protect public order, protect public morality and public health, the rights and legitimate interests of others, protect confidential information, ensure impartiality and the normal administration of justice, and in a democratic Society, this freedom may be subject to restrictions to the necessary extent and in proportion to the objectives pursued.

This provision was reflected in Article 3.4 of the Law on the Constitution on the Regulation of Human Rights and Freedoms in Azerbaijan. These provisions are also enshrined in Article 10 of the European Convention on Human Rights and in Article 19 of the International Covenant on the Protection of Human Rights and Fundamental Freedoms, signed by Azerbaijan.

What is the purpose of the government, creating the Internet Censor?

Having made these changes, does the government pursue the objective of promptly removing information from sites whose dissemination poses a serious public danger, can cause great damage and declaring it illegal to deny access to these pages? Is the restriction of the right to freedom of expression, the spread of people's thoughts and ideas, the legal way to obtain any information, the conduct of discussions, the expression of critical opinions, including the expression of criticism about government policy, the behavior of individual members Government and other issues?

If the answer to the first question is "yes", and the second one - "no", then:

First, the list of such information must be precise, clear and specific.

Secondly, this list should be very narrowly outlined, it should cover exclusively and only information that poses a serious public danger. The vague provisions set forth in the amendments to the law open the way not to the stated goals, but to other goals, limitations.

Thirdly, the structure that must fulfill this function must be free from any political, economic or other influence, be professional and accountable, its decisions must be fully justified, and the activities transparent.

Fourthly, the powers of this structure should not be an incomplete series (list), but narrow and specific, excluding the possibility of abuse.

The structure that will perform the functions of the Censor will have to perform several important duties and powers:

Firstly, constantly monitor the Internet sites in order to check whether they have any content that can be considered illegal. To this end, this structure will also receive and consider information coming from different individuals and structures.

Secondly, to study materials, the distribution of which is prohibited by law, to make decisions on recognizing their prohibited dissemination of information.

Thirdly, require the site owner to remove this information from the page. If the site owner does not comply with this requirement, ask the court to make a decision on recognizing this material as prohibited for distribution.

Fourthly, as soon as the court decides to recognize this material as prohibited for distribution, to include this information in the "List of information resources where the information is prohibited" and immediately demand that Host Providers and Internet providers (IPs) take measures to Restrict access to the site.

Fifthly, in urgent cases, in his opinion, after making a decision to recognize information, it is illegal to restrict access to the site, and then apply to the court.

Sixthly, the Censor will enforce the decisions of the courts to recognize the information as illegal, also adopted on the basis of the appeal of other persons.

 In all cases, the court will decide to recognize the dissemination of information illegally. The court of first instance must consider this matter in the shortest possible time, no more than 5 days. Even before the entry into force of its decision will immediately be executed by the Censor himself.

Host provider (HP) or Censor N 2?

 Amendments to the law impose on HP and IP duties and responsibilities. According to Article 13-2.5, the Host Provider, if on the site to which it provides hosting services, it "revealed the information prohibited for dissemination or received a message about it, immediately takes measures to remove the owner of its information resource."

The fact that this requirement of the law will create great material and legal obligations for the Host Provider is obvious. HP should be vigilant to prevent the content of the site, which provides hosting services, from being "forbidden to disseminate information" in the content. This obliges it to  hold monitoring.

Secondly, the Host Provider should be open to requests for the presence in the content it keeps of "prohibited to disseminate information", to study, verify and evaluate them. And thirdly, HP must have competent specialists in order to be able to make a decision about the existence of a "forbidden information dissemination".

The fourth task assigned to the Host Provider is more complicated and confusing. The law says that HP "takes measures" to immediately remove the owner of the site "banned to disseminate information." However, the law does not say what measures HP should take. This is not just a warning to the owner of the site. Since in this case the law instead of "taking measures" would be said "warns". This provision will force the Host Provider or through the terms of the contract to force the site owner to delete such content, or to restrict access to the site itself. Otherwise, the risk of being responsible for the distributed content is inevitable. This circumstance will also turn HP into Censor and, naturally, all its measures taken in this status, which restrict freedom of expression, will in all cases be illegal.

Prohibited content: fuzzy, incomplete and erroneous regulation

In the 13-2.3-th article of the law there is a wide list of "forbidden to disseminate information." It is given below:

13-2.3.1. Information on the propaganda and financing of terrorism, on methods and means for carrying out terrorist acts, on organizing or conducting training for the purpose of terror, and open calls for terror;

13-2.3.2. Information on the propaganda of violence and religious extremism, open appeals aimed at inciting national, racial or religious hatred and enmity, violently changing the constitutional order of the state, violating territorial integrity, forcibly seizing or retaining power, organizing riots;

13-2.3.3. Information constituting a state secret;

13-2.3.4. Information on the order or methods of manufacturing firearms, their components, ammunition, explosives and structures;

 13-2.3.5. Information on the procedure and methods of manufacturing and use of narcotic drugs, psychotropic substances and their precursors, places of their illegal acquisition, as well as places and methods of growing plants containing narcotic substances;

13-2.3.6. Information pertaining to pornography, including child pornography;

13-2.3.7. Information, inciting to the organization and participation in gambling and other various illegal sweepstakes;

13-2.3.8. Information advocating suicide as a way of solving problems, justifying the commission of suicide, substantiating or encouraging it, explaining the methods of suicide or distributed with the purpose of organizing the commission of group suicide of several persons;

13-2.3.9. Information offensive or defamatory, and also violate the right to privacy;

13-2.3.10. Information that violates the right to intellectual property;

13-2.3.11. Other information, the dissemination of which is prohibited by the laws of the Republic of Azerbaijan.

The "forbidden information" in this list is not new. Some articles of the Criminal Code of the Republic of Azerbaijan provide for criminal punishment for the disclosure of information listed on this list (with some exceptions). In this law it is noted that this list is not complete and not comprehensive, and also one more vague paragraph "etc." is added to it, (13-2.3.11): "Other information, distribution of which is prohibited by the laws of the Republic of Azerbaijan".

It is necessary to consider several important issues related to this list.

First, although the provisions in paragraphs (13-2.3.1) to 13-2.3.8 that were added to the law seem acceptable, in practice it will not be easy in some cases to make a decision related to such information. Moreover, there are no clear notions about the many terms used in these points, neither in legislation, nor in judicial practice. For example, they lack clear provisions on what "religious extremism" is, what is its propaganda.

Secondly, the transfer in the cases specified in the law to the Censor or even the Host Provider for the decision to recognize the "prohibited for dissemination of information" provided in paragraphs 13-2.3.9 and 13-2.3.10 "Information offensive or libelous, and Violating the right to privacy "and" Information violating the right to intellectual property "is erroneous in terms of legal logic and contrary to other legislation, especially with regard to information from the first category.

Everyone can have their own opinion (assumption) about whether the information carries a slanderous or offensive character or not. These opinions have no legal significance. Only a claim or private accusation of the victim from slander and insult of the person is the basis for the trial. Only with the participation and at the request of these individuals can the court find information insulting or libelous. For the decision on what to consider as an insult or slander, can only be taken by the person to whom the information is addressed.

This also applies to information that violates the right to privacy. The decision that some information is related to private life, somebody either violates this immunity or not, the Censor cannot accept from itself. To do this, there must be a claim and justification for the claims of the person whose rights are alleged to be violated. People who have such claims can themselves go to court with a statement of claim or a statement of a private prosecution in accordance with the Code of Criminal Procedure and the Code of Civil Procedure.

In cases of alleged copyright infringement, the right to file claims or file a complaint belongs to copyright holders who carry out activities on the basis of a law or treaty. The Censor cannot and should not know what private legal relations exist between the owner of copyright and the site that disseminates information or has provided its site with another person. In the event of such a violation in court, the Censor, not the Censor, may act as the plaintiff and complainant, namely the person who has the right to file a claim for copyright infringement.

The third very important issue is the norm quoted in the last paragraph of the list "in other cases specified in the legislation". It is very likely that in practice this vague item can cause significant difficulties, many surprises, and sometimes abuse.

Restricting access to the site: is it blocking the entrance to the site as a whole or to the part where illegal content is located?

The law does not clarify this issue. Logically, one might think that if it is a question of depriving others of the opportunity to access recognized illegal content, you should block access only to this information. In this case, denial of access to other parts of the site that disseminates completely legitimate content will violate the right to freedom of expression and will be illegal. The censor must take all necessary measures to exclude such cases of blocking that make it difficult or impossible to access other content on the site.