The latest amendment to the Law “On Information, Informatization and Information Protection” approved by President Ilham Aliyev has expanded the list of information prohibited from dissemination on Internet information resources. According to APA, the amendment envisages establishment of personal responsibility for actions that insult public morality and openly express disrespect for society, if publicly displayed.
“Tribunat” has analyzed the latest amendments to the Law from the perspective of freedom of expression.
The current version of the Law uses vague expressions such as “open calls for mass riots” (13-2.3.2) in the list of information prohibited from being disseminated, and the clause “other information prohibited from dissemination by the laws of the Republic of Azerbaijan” (13-2.3.11) overly expands this list, making unclear what cases are covered by the concept and establishing grounds for abuse.
This vagueness creates the possibility that even neutral, critical, or publicly important information could face repercussions. The arrest of activists who write critical opinions based on this norm has recently begun to be widely applied to other social media users. Even prior the amendment to the Law, these individuals were accused of promoting immorality and “behavior contrary to moral values”. The number of such arrests has increased significantly recently.
The article added to the Law - 13-2.3.6-1 includes information that is prohibited from being disseminated if publicly displayed and insulting public morality, clearly expresses disrespect for society, that is, uttering immoral expressions or making gestures creating the impression of such content, or displaying parts of the human body in a manner contrary to ethical norms and national and moral values. The main concepts used in this article – “insulting public morality”, “clearly expressing disrespect for society” and “contrary to moral norms and national and moral values” - are not explained with specific and precise definitions in the current legislation. Accordingly, the normative content of the article is unclear and increases legal uncertainty.
The Constitution of the Republic of Azerbaijan (Article 47), the European Convention on Human Rights (Article 8), and the International Covenant on Civil and Political Rights (Article 19), to which the State is a party, protect and consider legitimate any form of freedom of expression. However, freedom of expression is not an absolute right and may be subject to restrictions. Nevertheless, for these restrictions to apply, it must comply with the “three-part test” developed by the case law of the European Court of Human Rights (ECtHR). A restriction that does not meet any of the requirements of that test is considered a violation of freedom of expression:
I. In accordance with law - for a restriction to be considered “in accordance with law”, that law must be sufficiently clear, accessible and foreseeable. Hence, the individual must be able to reasonably foresee what consequences the application of the relevant norm might lead to (ECtHR judgment, Perinçek v. Switzerland, §131);
II. Legitimate aim - the interference with this right must be applied in the interests of national security (1), territorial integrity or public order (2), for the prevention of disorder or crime (3), for the protection of health or morals (4), for the protection of the reputation or rights of others (5), for preventing the disclosure of information obtained in confidence (6) or to maintain the integrity and impartiality of the judiciary (7) as listed in Article 10.2 of the Convention;
III. Necessity in a democratic society and proportionality - restrictions on freedom of expression must be necessary and unavoidable for the legitimate aims listed above and the least restrictive measure must be applied (ECtHR judgment, Tagiyev and Huseynov v. Azerbaijan, §37).
The ECtHR notes that, since there is no uniform European definition of morality, States have a wider margin of appreciation in this area (Aydın Tatlav v. Turkey, §26). Nonetheless, the Court specifically assesses in each specific case whether the interference is motivated by a pressing social need, whether it is proportionate to the aim pursued, and whether the sanctions imposed are necessary and justified. By case-law, peaceful and non-violent forms of expression (propagating immorality, expressions contrary to moral values, etc.) should not be subject to harsh measures such as deprivation of liberty (Murat Vural v. Turkey, 2014, §66).
In accordance with Article 388-1 of the Code of Administrative Offenses, individuals may be fined up to one thousand AZN, officials up to one thousand five hundred AZN, and legal entities up to two thousand AZN, as well as administrative arrest for a period of up to one month, for the dissemination of prohibited information. The vagueness of the concepts provided for in the norm gives law enforcement agencies wide discretion, which increases the risk of arbitrary or selective application of the norm, making it infeasible to predict in advance when the behavior of individuals will be considered a violation of the law. It also leads to a “chilling effect” on freedom of expression and indicates that the new amendment does not comply with the principle of legal certainty.
Even though this amendment is formally presented under the name of “protection of public morality”, in essence it is the legalization of an ambiguous administrative practice that has been applied to freedom of expression for many years.
Upon joint assessment, the abovementioned points can be considered to have legitimate aims, but the lack of a clear definition of concepts, the severity of sanctions, and the risk of selective application raise serious questions about the necessity and proportionality of this intervention in a democratic society.
Freedom of expression is one of the main pillars of a democratic society, and any measure restricting it must be applied within a clear legal framework, narrow and precise definitions, and effective judicial control. Otherwise, the goal of “protecting morality” can become a broad and dangerous tool for restricting freedom of expression.
Thus, “Tribunat” concludes that the new amendment further increases the legal uncertainty existing in the previous version and serves to bring into a normative framework the mechanisms of administrative repression that have long been applied without legal basis.
