The virtualization of public life is an inevitable consequence of technological development. Each form of physical communication is gradually emerging as a digital alternative. The public's dependence on technology and the Internet is increasing, which leads to a growth in the importance of the digital sphere. Specifically, technological development affects all the fundamental values of the states - the quality of democracy and the Rule of Law and the protection of basic human rights.
Naturally, law, as a tool for establishing the operating rules between the State, society, and the individual, cannot leave such an important area without regulation. At the same time, there are no universal legal solutions to the challenges and opportunities that arise as a result of technological development.
Human rights are recognized by the Constitution and many international treaties of Georgia, which are directly applicable as laws in Georgia. Due to technological development, many fundamental rights already exist in the digital sphere—for example, freedom of expression, privacy and property rights, etc. Nevertheless, the potential of the fundamental rights to be realized digitally does not automatically make them into digital rights, nor does it preclude them from being labeled so. In particular, the various requirements related to Internet freedom and digital rights often fall under a preexisting area protected by a specific fundamental right. For example, monitoring peoples' activity on the Internet is an issue covered by human privacy. However, it is also an essential component of Internet security and freedom.
The report reviews the key digital rights challenges related to Internet access and Internet security, privacy, and freedom of expression. The constitution and the legislation regulating digital rights, the bodies/persons responsible for fulfilling these requirements, and the main challenges that may threaten the realization of digital rights in Georgia will be analyzed below.
- Internet access and free use of the Internet are rights guaranteed by the Constitution of Georgia. Various articles of the Constitution of Georgia cover singular components of digital rights.
- A significant part of the restrictions on freedom of expression enshrined in the Resolution on customers protection has been declared unconstitutional by the Constitutional Court.
- Restriction of Internet content in Georgia is permissible if it constitutes pornography, infringes a copyright and/or other requirements under Georgian law.
- The current legal model of restricting Internet content risks unjustified and disproportionate restrictions on receiving and disseminating information via the Internet.
- The rights and obligations of the ISPs and domain registrators in terms of restricting Internet content are not clearly defined.
- The current model for restricting Internet content is not transparent. Quantitative and qualitative data on blocked websites/information and requesting institutions are unavailable in Georgia.
- Georgian law allows the Communications Commission to appoint a special manager for an ISP. The institution of the special manager has not been modified in accordance with the conclusions of the Venice Commission.
- The state copies from the electronic communications companies and for at least 12 months store the identifying data accumulated in the electronic communications throughout Georgia.
- In Georgia, the Internet is generally free, although the chilling effects of using the Internet freely are strong.
- The early termination of the State Inspector's Service leadership has damaged the degree of institutional independence of the oversight body of the State Security Service.
- The legal modelfor blocking and filtering Internet content must be defined with sufficient clarity.
- Clearly define the rights and obligations of internet service providers;
- Define the authorized entities/persons and standards in charge of the appeals to block internet “content” from users
- Establish the role of the entities authorized to make and address inadmissible products, as well as the quality standard of information provided to the service provider; the standards for admissible evidence and the procedural guarantees accompanying the process.
- Transparency of content blocking and filtering on the Internet should be increased. Periodic reports on the use of this mechanism should be compiled and published. The minimal requriements for these reports need to be defined.
- The existing model for the appointment of a special manager at an electronic communications company should be abolished or established per the recommendations of the Venice Commission.
- The Constitutional Court of Georgia must decide timely so-called surveillance cases (N3/4/N885-924, 928-929, 931-1207, 1213, 1220-1224, 1231) timely.
- The Prosecutor's Office of Georgia should timely, efficiently, and transparently investigate possible systemic covert electronic surveillance cases in Georgia.
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