Content Moderation, Digital Rights, Indecency / Obscenity
Parler v. Amazon Web Services
Closed Contracts Expression
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The Appellate Court of Kutaisi, Georgia found a person guilty of posting derogatory and insulting content on his private Facebook profile in posts criticizing police officers in Batumi City division. The author of the post had written the posts after his child had been mistreated by the police officers and was then charged with administrative offences of petty hooliganism and abusive acts against law-enforcement. The lower court had found the person guilty and imposed a fine. The Appellate Court found that the “public space” included virtual spaces, such as Facebook and that the administrative offences justifiably limited the person’s freedom of expression because they sought to protect public order.
On July 6, 2022, a Georgian citizen named Kh. Sh. published multiple posts on his private Facebook profile, about his minor child having been beaten by police officers from the Batumi City division and his fine. The posts included insulting and swear words, and he criticized the Ministry of Internal Affairs (MIA) for its lack of effectiveness in investigating the crimes committed against him and his child and called on the Chairman of the Government of the Autonomous Republic of Adjara to dismiss those police officers.
Subsequently, on July 14, 2022, Sh. was detained by the police for committing administrative offenses. His detention lasted for 48 hours – the maximum period for administrative detention. After his detention, in accordance with national law, the police submitted an offense report and requested the court to declare him as an offender in the offenses brought against him.
The police department that detained Sh. and issued an administrative report against him argued that he infringed articles 166 (petty hooliganism/disorderly conduct) and 173 (Disobedience of the lawful order of law enforcement or abusive act against him) of the Code of Administrative Offences (the Code).
Uner Article 166 of the Code, petty hooliganism/disorderly conduct is defined as “swearing in public places, harassment of citizens, or similar actions that disrupt public order and peace of citizens.” Article 173 stipulates that “Non-compliance with a lawful order or demand of a law-enforcement officer… or verbal abuse of and/or any other abusive act against him while he/she is in the line of duty” shall carry a fine or administrative detention.
On September 22, the Batumi City Court found Sh. guilty of committing an offense under Article 173. He was fined 2500 GEL. The Court held that as Article 166 was lex specialis and there was no need to consider it in this case.
Both parties appealed the decision to the Appellate Court of Kutaisi.
The Appellate Court of Kutaisi delivered a judgment. The main issue before the Court was whether posting insulting words on a social network should be treated the same as real-world actions, provided all the legal requirements are met.
Sh. argued that his posts were a justified reaction to the unlawful actions of the police officers, who had physically abused him and his child. He submitted that his posts were protected by freedom of expression and could not qualify as administrative offenses. He emphasized that a Facebook post cannot disrupt public order or peace of citizens as users can choose whether to read such posts or not; his lawyers argued that the law criminalizes petty hooliganism because insulting words in a physical space create an imminent danger of violence but the same threat cannot exist in a digital world. Sh. submitted that the legitimate aim of Article 173 of the Code is to ensure the effective implementation of public duties by the police officers and not primarily the protection of their honor and dignity. Posting insulting words on Facebook does not pose any risk of disrupting the execution of public duties. Sh. submitted that there was no justification for his detention eight days after publishing his posts. [p. 4-5]
The Police Department argued that Sh. deliberately insulted police and it was obvious that his actions were directed specifically at identifiable officers. It submitted that he knowingly chose to make these posts accessible to the general public. Citing relevant legal precedents from national courts, the Department argued that Facebook should be viewed as a public platform where prevailing moral and ethical standards of the public sphere ought to be upheld. [p. 6-8]
The Court examined the conditions of petty hooliganism under Article 166, primarily focusing on whether Facebook could be considered a “public place” and whether “public order” could be disrupted in such a space. The Court considered the conflicting interests of freedom of expression versus public order or the rights of others, and the potential harm that the disputed statements could cause to society.
The Court clarified that a “public place,” as mentioned in Article 166, encompasses locations where members of society gather and are obligated to adhere to ethical norms. It emphasized that laws should be interpreted with an evolving perspective, taking into account modern times and the impact of technological progress on public awareness. Considering the significant role of social networks in everyday life, especially during the COVID-19 era when physical gatherings were limited, the Court found that “public place” includes digital spaces like Facebook. It held that the act of sharing a post or making a comment on Facebook should be considered as the public dissemination of information. [p. 15-16] In analyzing the concept of “public order,” the Court defined it as the sum of relationships among members of society that ensures peace through ethical conduct in public places. [p. 16]
In considering conflicting interests and potential harm caused, the Court noted that actions that become offenses are initially committed against cultural norms. Since Facebook operates as a community with similar rules of social relationships as the real world (e.g. regulates its content, including usage of hate speech and insult), users are knowingly participating in events occurring in the digital space, which is closely connected to reality. Thus, while freedom of expression should be respected, it can be restricted when it harms other prevailing interests, such as public order. The Court noted that Sh.’s posts were accessible to the general public on Facebook, with the number of users seeing his posts increasing exponentially, thereby making his unlawful actions accessible to an indefinite circle of people. [p. 19-21] The Court accepted that social networks differ from other public spaces primarily due to the technical tools integrated into them, allowing users to watch uploaded or live videos, read posts, and more. It said that, for the physical space, all these actions are happening through direct visual contact and hearing and so the disruption of societal peace can occur in both virtual and physical spaces. As a result, social network users should have to take steps to avoid reading, watching, or analyzing unlawful actions (like petty hooliganism) on Facebook. [p. 21]
Consequently, the Court held that Sh. exceeded the boundaries of freedom of expression, and his actions should be categorized as a breach of Article 166. [p. 21]
The Court also upheld the lower court’s finding in respect of Article 173 (“Non-compliance with a lawful order or demand of a law-enforcement officer… or verbal abuse of and/or any other abusive act against him while he/she is in the line of duty”). It emphasized that the purpose of this article is not only to protect the proper execution of a law-enforcement officer’s duty but also to safeguard their honor and dignity. Thus, the concept of “being in the line of duty” extends beyond a literal interpretation and includes not only the time and place of the offense but also the period for following procedures and any other action related to the case. The Court referred to the case law of the European Court of Human Rights and noted that the scope of criticism towards public servants is relatively limited. [p. 25-26]
The Court held that Sh. deliberately targeted specific police officers, easily identifiable from the insulting statements he disseminated, due to their alleged unlawful actions against him and his child in their professional capacity. Therefore, Sh.’s actions qualified as a breach of Article 173 of the Code. [p. 25-26]
Accordingly, the Court found Sh, guilty of both charges and imposed a sanction of 2500 GEL.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In failing to acknowledge that using derogatory language towards another individual on a social network does not pose an immediate threat of physical harm and contradicting the concept of the “captive audience,” asserting that users of social networks should not be compelled to encounter offensive or indecent expressions online, the Court failed to conduct a thorough assessment of the legitimacy of the competing interests (i.e. freedom of speech) involved.
It is essential to highlight that the Code of Administrative Offences was enacted in 1984 during the Soviet era and, despite its obvious inconsistency with contemporary human rights standards, it remains in effect. Despite persistent appeals from civil society organizations and the international community to repeal this outdated legislation, the Government of Georgia has failed to take proper measures towards its amendment. Given this context, the court’s “evolutionary” interpretation of the Soviet-era law and its application to social networks presents a concerning threat to online speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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