Author: Giorgi Beraia
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.3 With these cases, the lack of accountability mechanisms of lawenforcement 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) adopted the Regulation on the Rules of Provision of Services and Protection of Consumer Rights in the area of Electronic Communications (regulation), which 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 this study is 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.
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 proposes 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.
Draft Amendments to the March 17, 2006 Regulation N3 of the Georgian National Communications Commission on the Provision of Services and Protection of Consumer Rights in the Sphere of Electronic Communications
Wording of Article 3, Paragraph 1, Subparagraph 33)2 of the March 17, 2006 Regulation N3 of the Georgian National Communications Commission on the Provision of Services and Protection of Consumer Rights in the Sphere of Electronic Communications should be changed to:
33)2 Inadmissible Content - content transmitted by means of electronic communication that depicts especially grave forms of violence, child pornography and other obscenity, and that violates intellectual property rights; as well as content that is slanderous, invading on a person’s privacy, violating the presumption of innocence, and transmitted in violation of Georgian Legislation that has been declared as such by the court in accordance with the law.
Wording of Article 102, Paragraph c) should be changed to:
c) If it becomes known to the Website Owner that a link posted on their Internet website contains inadmissible content, it shall take appropriate measures to eliminate it.
Article 103, Paragraph 2 should be removed.
Paragraphs 3 and 4 should be added to Article 29 with the following wording:
3. The Service Provider is obligated to inform interested persons about the decision made on the complaint and explain the procedure and rules of appealing the decision.
4. In case of blocking or deleting information on the grounds of it constituting inadmissible content, the Service Provider is obligated to publish the decision on its official website within three days.
This Regulation shall come into force upon promulgation.
The existing wording of all the norms of the Regulation that are being amended
Article 3, Paragraph 1, Subparagraph 33)2
Inadmissible content - content transmitted by means of electronic communications, such as pornography, items featuring especially grave forms of hatred and violence, invading on a person's privacy, as well as slanderous, defaming, violating the principle of presumption of innocence, inaccurate, and other content transmitted in violation of intellectual property rights and the Georgian Legislation.
Article 102, Paragraph c)
The Website Owner examines a link on their Internet website in order to ensure that the linked page does not contain defaming or other inadmissible content. Upon finding such content, the Website Owner takes appropriate measures to eliminate it.
Article 103, Paragraph 2
2. The Issuer of an Internet Domain periodically checks the contents of websites registered by it in order to prevent the publication of inadmissible content on a website. Upon discovering such content, the Issuer of an Internet Domain must immediately take appropriate measures to eliminate it:
a) Warn the domain owner and give them a deadline for removing inadmissible content;
b) Block the website if the warning is ignored.
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