Case Summary and Outcome

The Constitutional Court of Georgia struck down three provisions of the Regulation of the Georgian National Communications Commission that obliged internet domain issuers and internet service providers to restrict certain types of online speech. The claim was brought by Aleksandre Mdzinarashvili, a website owner who argued that the disputed provisions hindered his right to freely receive and impart information online. The Constitutional Court of Georgia ruled that the decision to impose content-based restrictions on online speech was a matter of high public interest and thus only the highest representative governmental body, which the Communications Commission was not, had the competency to impose them.

Facts

Aleksandre Mdzinarashvili was a website owner in Georgia. On November 8, 2017, he lodged a complaint in the Constitutional Court of Georgia requesting the Court to declare unconstitutional several provisions (art.10 (2) (b), art. 25 (4) (g) and art. 25 (5) (b)) of the Regulation adopted by the №3 Resolution of the Georgian National Communications Commission (Concerning the Approval of the Regulations in respect to the Provision of Services and Protection of Consumer Rights in the Sphere of Electronic Communications (2006)). Among other things, the Regulation stipulated that:

1. Internet domain issuers (IDI) must periodically examine and block websites to prevent the dissemination of inadmissible content;
2. Upon notification by an internet user, internet service providers (ISP) were required to take all precautions necessary to prevent the dissemination of inadmissible content.

Speech containing “grave forms of hatred and violence,” slander, profanity, inaccurate information or breached the presumption of innocence was defined as inadmissible content in the Regulation. In other words, the Georgian National Communications Commission obliged IDIs and ISPs to determine whether the content was inadmissible and if so to take it down.

The Commission argued that its power to regulate online speech was implied from the law and that it was authorized to enact provisions to protect the rights of internet users.

Decision Overview

On August 2, 2019, the First Collegium of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court.

The underlying issue before the Constitutional Court of Georgia was whether the authority of the Georgian National Communications Commission to impose content-based restrictions on online speech complied with article 17 of the Constitution of Georgia. Article 17(1) and (2) states that “freedom of opinion and the expression of opinion shall be protected…” and that “every person has the right to receive and impart information freely.” Article 17(5) permits restrictions on freedom of expression “only in accordance with law, insofar as is necessary in a democratic society for ensuring national security, public safety or territorial integrity, for the protection of the rights of others, for the prevention of the disclosure of information recognised as confidential, or for ensuring the independence and impartiality of the judiciary.”

At the outset of the judgment, the Constitutional Court emphasized that the disputed provisions stipulated the duty of IDIs and ISPs to restrict access to specific types of speech. Accordingly, the disputed provisions imposed content-based restrictions on speech.

The Constitutional Court reiterated that Article 17(5) of the Constitution permits restriction of freedom of expression only in accordance with the law. The Court interpreted this to mean that freedom of expression can be restricted only by the highest representative body, in this case the Parliament which receives legitimacy from the people. The Parliament can delegate certain powers to the executive, unless the Constitution expressly forbids such delegation or when the Parliament attempts to delegate one of its fundamental functions. The Court noted that the Constitution does not explicitly prohibit the Parliament from delegating of the power to regulate freedom of expression to the Commission. Thus, the Constitutional Court considered it necessary to determine whether the power to regulate expression was one of the fundamental functions of the Parliament.

The Constitutional Court emphasized that the provisions imposed content-based restrictions on freedom of expression and were a severe form of interference with the right to freedom of expression. It noted that prohibiting the dissemination of certain content is akin to installing an informational filter on a person’s mind.

The Court further stated that freedom of expression has an immense role in the development of free society. The democratic state indeed requires a free society and a free informational environment, where the free exchange and competition of ideas are guaranteed for everyone. Although the Communication Commission is an important governmental body, imposing content-based restriction on freedom of expression is an important public interest matter, and thus is a function that only the Parliament can undertake. Therefore, only the Parliament has the exclusive right, following wide and transparent political debate, regulate content of speech and the delegation of this function is forbidden.

At the same time, the Constitutional Court noted that in addition to imposing content-based restrictions, the disputed provisions stipulated technical means to enforce them (e.g. ordering IDIs to take down websites that carried inadmissible content). The Court stated that the Parliament could delegate technical means to restrict freedom of expression to an executive body, however, the Parliament did not prescribe such authority to the Communications Commission.

Thusly, the Constitutional Court held that the disputed provisions violated Article 17 of Georgia’s Constitution.