Regulating Inadmissible Content – What does the Constitutional Court decision of 2 August 2019 Change

News | Rule of Law | Media Internet Telecommunications | Publications | Analysis 9 August 2019

Freedom of expression is a mandatory precondition for the establishment of a democratic State.  Self-actualization of individuals and the development of society becomes impossible without the freedom of expression. Given the role and importance of the freedom of expression in the rule of law, there is a need of creating a legislative framework that allows free exchange of opinions and information.

 

In line with the increasing role of internet worldwide, it becomes more and more important to define rules that should apply to internet communication. In this respect, regulation of inadmissible content was the major gap of Georgian legislative framework, creating a serious threat of violating the freedom of expression.

 

Deficiencies in the Regulation of Inadmissible Content

 

In August 2017, the Institute for Development of Freedom of Information (IDFI) , prepared the Policy Paper,  that was intended to discuss the concept of ‘inadmissible content’ and to determine whether each of its grounds complied with constitutional and international legal standards for restricting the freedom of expression. 

 

According to the Policy Paper, certain grounds for deeming the content inadmissible, as defined by the Regulation On the Rules of Provision of Services and Protection of Consumer Rights in the area of Electronic Communications (thereafter referred as ‘regulation’), adopted by the Georgian National Communications Commission (thereafter referred as ‘commission’) were vague and left space for interpretation. Therefore, there was a risk of restricting the freedom of expression beyond what is necessary in the democratic society. 

 

In addition, according to the Policy Paper, several records of the regulation were problematic. This referred to the record stating that the service provider is obligated to create mechanisms allowing it to disconnect or terminate service provision to a consumer/client, when it is revealed that the client produces and disseminates inadmissible content.  Another problematic legal obligation was 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 was placed, the domain issuer had to immediately take appropriate measures to eliminate it. Similar obligations applied to the owner of the website. 

 

As per the assessment of IDFI, imposing such obligations represents an unfair burden for private companies, as it is, in most cases, impossible to check and objectively assess content placed on Internet domains, due to the sheer size of the information. However, clearly, this does not rule out the possibility of private companies to respond to specific complaints on placement of inadmissible content.

 

Finally, according to IDFI’s conclusion, Commission’s regulation failed to comply with local and international standards for restriction of the freedom of expression. The Policy Paper also included specific recommendations aimed at rectifying gaps and raising standards of the freedom of expression.

 

Decision of the Constitutional Court

 

On November 8, 2017, citizen Aleksandre Mdzinarashvili filed a constitutional claim in the Constitutional Court of Georgia. The plaintiff claimed that norms defined by the disputable regulation, such as allowing blockage of the Internet site by the Internet domain provider due to the placement of inadmissible content, and entitling the service provider to take all precautions necessary to prevent the dissemination of inadmissible content on the bases of the notification from the consumer, violate the right of the freedom of expression protected by the constitution.

 

According to plaintiff’s argument, by the disputable regulation, the Commission defined the concept of indismissible content and regulated matters related to the restriction of dissemination of such content independently. According to the plaintiff, disputable regulation allowed the interference in the freedom of expression without delegating the authority, not on the bases of law, but by the resolution of the commission; and this formally contradicted the requirements of the Constitution.  

 

In the plaintiff’s view, even in case the legislator delegated the authority, the Commission itself was not entitled to grant the right of substantive restriction of the freedom of expression to individuals and, more specifically, to the issuer of internet domain and to the service provider.

 

On 2 August, 2019 the first Collegium of the Constitutional Court upheld the constitutional claim .  The Court held that formal requirements for the restriction of the freedom of expression had not been complied with, and the disputable norms were declared unconstitutional with respect to the first sentence of article 17 (1) and article 17 (2).

 

According to the Court, the disputable norms, on the one hand, substantively regulate the freedom of expression and, on the other hand, define rules for the implementation and technical enforcement of requirements adopted by the Commission. 

 

Substantive Regulation

 

On the bases of disputable norms, the commission prohibits the transmission of messages that are defamatory, insulting and/or inaccurate, reflect especially severe forms of hatred and violence and/or violate the presumption of innocence. This represents the substantive regulation of the right of the freedom of expression and is one of the most severe forms of interference with this right.   

 

The constitution declares it permissible to restrict the freedom of expression only in accordance with the law. Therefore, only the Parliament of Georgia can determine what kind of information is inadmissible for dissemination. Determining substantive restriction of the freedom of expression shall not depend on the scope of reference of any body, other than the Commission and/or the Parliament of Georgia. Thus, substantive regulation of the freedom of expression by the Commission is unacceptable, as it contradicts with the requirements of the Constitution. 

 

Rule for the Technical Enforcement

 

Along with substantive regulation of expression, disputable norms also regulate rules for the elimination of disseminating inadmissible content (blocking internet site, restricting the transmission of messages with inadmissible content). According to the Court, if, in line with constitutional requirements, the Parliament determines what kind of information and opinions are not permitted for dissemination, the Commission may regulate the procedure of enforcing this requirement. The Parliament is entitled to delegate the regulation of technical matters to another body, since implementation rules do not fall within the scope of substantive regulation of the freedom of expression.

 

In such case, there shall be a clear record in the law, delegating the authority to the appropriate body. The Court held that the legislation does not contain the provision authorizing the Commission to restrict the freedom of expression. Therefore, the Commission was not authorized to regulate the restriction of disseminating inadmissible content.

 

According to the Constitutional Court, the Parliament did not delegate the authority to regulate the freedom of expression to the Commission. At the same time, even if there was the legislative provision delegating the authority of substantive regulation of the freedom of expression, such a will of the Parliament would still be unconstitutional.

 

Conclusion

 

The Constitutional Court’s decision of 2 August 2019 is an important step forward in improving standards of the freedom of expression. Substantive dimension of the freedom of expression, that is the determination of what type of information is permissible to disseminate, is a matter that requires stable legislative guarantees. Therefore, it is not acceptable to regulate this matter by by-law norms of the Commission.

 

At this same time, when the Parliament regulates inadmissible content at the legislative level, it is essential to maintain the compliance of legislative norms with constitutional and international standards and to ensure that the freedom of expression is not restricted beyond what is necessary in the democratic society. 

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