There is no freedom of speech in Azerbaijan

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THERE IS NO FREEDOM OF SPEECH IN AZERBAIJAN

Logo of the Internet Channel Kanal-13

Analysis of violation of law during Internet Channel Kanal-13’s judicial proceedings

Baku City Sabayil District Court

Case № 2(009)-2521/2023

11 December 2023

Presiding judge: Ilkin Rustamli

Applicant: Ministry of Internal Affairs of the Azerbaijan Republic

The Lawsuit against the Internet Channel Kanal-13

In December 2023, the Ministry of Internal Affairs of the Azerbaijan Republic (hereinafter referred to as MIA) filed a lawsuit to restrict the broadcasting of Kanal-13, the executive director is Aziz Orujev, who was arrested on 27 November 2023, on the charge of unauthorized construction or installation works on the land plot not having the legal right of ownership under the Criminal Code of the Azerbaijan Republic (hereinafter referred to as CC AR).

On 19 December, 2023, Aziz Orujev was brought another charge of smuggling carried out by a group of individuals upon prior conspiracy.

It should be reminded that in November-December 2023 a number of journalists was arrested on the abovementioned charges (smuggling): the employees of the Internet portal “Abzac Media” – Ulvi Hasanli, Sevinj Vaqifqizi, Nargiz Absalamova, and Hafiz Babaly. Also, it was arrested Teymur Karimov, an employee of the Kanal-11 Internet channel.

The claim for the broadcasting restriction was justified by the fact that a warning that the information spread on the channel should be withdrawn as it violated the Article 13-3.1 of the Azerbaijani Law “On Information, Computerization and Protection of Information”. That claim had been sent to the domain owner and provider. However, that information was not deleted, so the complainant appealed with a similar request to the Court.

On 11 December 2023, the Baku City Sabayil District Court issued a ruling: to satisfy the application and restrict the broadcasting of Kanal-13.

 

Commentary by expert lawyer:

The court verdict is unlawful and unjustified.

The Court refers in its ruling to the Article 13-3.1 “On Information, Computerization and Protection of Information” of the Azerbaijan Republic Law. According to this Article, when “relevant executive authorities discover information prohibited by the Law, spread throughout any information resource, or on the basis of substantiated reports received from individuals, legal entities or state structures, a written warning shall be sent to such an information resource and domain owner, as well as to the host provider…”. According to the Complainant, a similar warning was sent to the channel owner, but the requirement to remove that information was not complied with.

Despite the Court’s reference to the aforementioned Article, there is no indication in the ruling what information caused the warning, whether that information was actually prohibited, when it was published, what was the audience and, consequently, the number of views, whose rights were violated; and whether there was any complaint at all about that information. In such a case, the Court’s judgment cannot be considered justified.

According to the Article 47 of the Constitution of the Republic of Azerbaijan,

  1. Everyone may enjoy freedom of thought and speech.
  2. Nobody should be forced to promulgate his/her thoughts and convictions or to renounce his/her thoughts and convictions.

III. Propaganda provoking racial, national, religious and social discord and animosity is prohibited.

There is another Article in the Constitution that regulates freedom of information. The Article 50 of the Constitution of the Republic of Azerbaijan states,

  1. Everyone is free to look for, acquire, transfer, prepare and distribute information.
  2. Freedom of mass media is guaranteed. State censorship in mass media, including press is prohibited.

III. Everyone’s right to refute or react to the information published in the media and violating his or her rights or damaging his or her reputation shall be guaranteed.

 

Apart from the national legal norms, there are also provisions of the International Conventions ratified by a member country of the Council of Europe. According to the Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms,

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

As in all Articles of the Convention (except the Article on the prohibition of torture), there is also a list of restrictions that apply in certain cases (Article 10(2)). These restrictions are as follows:

  • if are prescribed by law,
  • and are necessary in a democratic society,
  • in the interests of national security, territorial integrity or public safety,
  • for the prevention of disorder or crime,
  • for the protection of health or morals,
  • for the protection of the reputation or rights of others,
  • for preventing the disclosure of information received in confidence,
  • for maintaining the authority and impartiality of the judiciary.

So, the list is exhaustive and limited. It means that any other ground not listed shall be considered illegitimate and, therefore, as having a purpose other than a legitimate one.

Any interference in the right to freedom of expression must be determined in a compelling manner. The Convention (Article 10) is intended to guarantee freedom of expression of opinion and ideas, as well as information, freely, through a variety of technical support, traditional or modern. Freedom of the press is fundamental in a democratic society.

The ruling of the European Court of Human Rights (ECHR) in the case of Handyside v. the United Kingdom of 7 December 1976, is said,

“Freedom of expression, as defined in Article 10(1), is one of the supporting pillars of a democratic society, a fundamental condition for its progress and the self-realization of each of its members. Subject to the requirements of para. 2, freedom of speech encompasses not only “information” or “ideas” that come across favorably or are regarded as harmless or neutral, but also those that offend, shock or disturb. These are the requirements of pluralism, tolerance and liberalism, without which there is no ‘democratic society’. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57499%22]}

The ruling of the European Court of Justice in case of Radio ABC v. Austria of 20 October 1997, on the necessity of interference with the right to freedom of expression states:

“In order to judge whether intervention is necessary, the Contracting States enjoy a margin of appreciation, but the latter is inextricably linked to European control. If it is a question of (…) interference with the exercise of the rights and freedoms guaranteed by para. 1 of Article 10, that control must be strict due to their importance, as repeatedly emphasized by the Court. The need to restrict them must be established in a convincing manner”. – https://hudoc.echr.coe.int/#{%22fulltext%22:[%22Radio%20ABC%20v.%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58104%22]}

The right to freedom of expression is closely linked to the right to obtain information that society enjoys. Thus, in the case of Leander v. Sweden of 26 March 1987, it is said:

“The right to freely obtain information fundamentally prohibits the State from restricting a citizen from acquiring information that others wish or may wish to convey to him”. – https://hudoc.echr.coe.int/#{%22itemid%22:[%22001-57519%22]}

It is known that Kanal-13 is the first Internet TV channel in Azerbaijan, the programs related to the political and public problems of Azerbaijan. In light of state and pro-government TV channels, the public has an urgent need to see an alternative information flow. Restriction of the channel’s broadcasting leads to limitation of the public’s right to be informed, especially since there are 1.59 million subscribers to the channel.

“Article 10 ‘ covers freedom of artistic expression, in particular, the freedom to transmit information and ideas, which allows participation in the public exchange of information and cultural, political, social and other ideas'” (Muller et al, 27).

“While it (freedom of the press – note of ed.) should not transgress the boundaries set out, inter alia, “in the interests of national security” or “for the securing of justice”, it nevertheless has a duty to impart information and ideas on matters of public interest. Not only does the press have the duty to communicate such information or ideas: the public also has a right to obtain it. If it were otherwise, the press would not be able to fulfill its primary role of ‘public watchdog’ (Observer & Guardian, 59).

As we can see, the press has a very important role to play in a democratic society. Restrictions imposed on the press must be concrete, clear and fall within the list set out in Convention, Article 10, paragraph 2. Furthermore, the restriction should inquire:

  • whether there was state intervention,
  • whether the intervention was legitimate.

“Subject to the requirements of Article 10, the freedom of speech embraces not only ‘information’ or ‘ideas’ that come across favorably or are regarded as innocuous or neutral, but also those that offend, shock or alarm the State or a particular group of people. Furthermore, while the media should not exceed some limits, particularly when it comes to the reputation of individuals, it is necessary to distribute the information and ideas about any matter of public interest” (Bladet Tromso et Stensaas, 62).

Thus, the authority of the media is much broader than it may appear to be under the Article 10(2) of the Convention. It means that the restrictions imposed on the media must be clear and lawful.

The Court ruling to restrict an internet channel broadcasting from Sweden is at least illogical, as the Azerbaijani authorities do not have the technical means to do that. In the current case, there is an interference by the State, which does not pursue a legitimate objective.