GDI responds to the legislative amendment process aimed at granting the National Communications Commission of Georgia the power to regulate programmes containing hate speech and obscenity. According to GDI's standpoint, these proposed changes are a cause for concern, especially considering the already alarming state of media freedom. They further validate the concerns of civil society regarding the government's true intentions, which appear to involve restricting the dissemination of dissent in the country as much as possible.
Regulation of Hate Speech
The Parliament of Georgia is swiftly reviewing amendments to the Law of Georgia "On Broadcasting," which will allow concerned parties to appeal to the National Communications Commission (COMCOM) regarding decisions made by the self-regulatory body of broadcasters pertaining to programs containing hate speech or calls for terrorism.
The alterations are being made with the apparent intention of aligning national legislation with European Union standards, including the fulfilment of the 12 priorities established by the European Commission for Georgia.
Indeed, in line with the EU's Audiovisual Media Services Directive (AVMSD), EU Member States are required to ensure that audiovisual media services do not promote hatred or violence. Nonetheless, it is evident from the directive that it does not explicitly mandate the regulatory body to oversee the use of hate speech. The regulation of this matter can be accomplished through either the regulatory body or the co-regulation mechanism.
It should be noted that considering the current context in Georgia, the potential for political pressure on COMCOM, and the substantial risks associated with limiting freedom of expression, the experts from the Council of Europe have strongly recommended the implementation of a co-regulation mechanism in Georgia. However, the Georgian Parliament overlooked the aforementioned recommendation. Furthermore, it did not consider the appeals from media companies and local human rights organizations, which had urged for a collaborative discussion and the adoption of the changes.
Regarding the reasons behind the increased regulation of hate speech and the expanded powers of the Communications Commission in this context, several critical concerns have emerged. Civil society organizations have been addressing this matter for years, with a particular focus on several key issues:
1) The politicization of the Communications Commission and the issues concerning its independence, subjects that have been raised not only by local organizations but also by the US State Department. This is evident in the Commission's decisions, which often deviate from constitutional standards, and in its consistent inclination to extend its authority, sometimes without proper legal grounds. As a result, if the Commission's mandate is expanded, there's a valid concern that it may not function as an independent and impartial body but could instead take on the role of a repressive mechanism.
2) The matter of judicial independence, which, in the context of Georgia, cannot effectively address or rectify the existing issues with the Commission.
3) The consistent trend of the ruling authority to diminish civic spaces within the country and subject all aspects, including publicly disseminated information, to its control. Consequently, there's an expectation that the government and its supporters will potentially exploit the new legal framework to further their actions against the media, which is already facing active hostilities, including physical and verbal attacks on journalists, SLAPP lawsuits against TV companies, discrediting campaigns, and more.
4) Divergent perspectives regarding the definition of hate speech, which, despite legislative clarity, extend the range of cases that authorities could potentially penalize.
5) The persistent disregard by the government for matters of equality and the concerns of minority groups (e.g., the omission of the LGBTQI community from the national human rights strategy and the lack of legal responsibility for the organizers of the July 5th events, among other issues). Furthermore, there are instances where discriminatory policies appear to be intentionally imposed (e.g., granting privileges to the dominant religious group). The regulation of hate speech should, first of all, be dictated by the protection of minorities, however, in light of the general policy of the Georgian government, it seems unconvincing to implement changes in their favour.
6) The overall significance and value of freedom of expression in nations like Georgia, which find themselves on the brink of authoritarianism.
Given the context outlined earlier, the regulation of hate speech in Georgia is anticipated to result in grave outcomes.
Regulation of obscenity
It's worth mentioning that an additional amendment was introduced to the draft law prior to its adoption in the first reading. Specifically, the existing legislation forbids "the dissemination of pornography, as well as programs or advertisements that infringe upon human and citizen dignity and fundamental rights, and contain obscenity." If this requirement is breached, it can solely be contested with the broadcaster's self-regulatory body or, following the Constitutional Court's decision on November 10, 2009, in court. Up to this point, the Communications Commission lacked the legal jurisdiction to determine if a broadcaster's program violated human rights and contained obscenity.
The proposed legislative amendments aim to grant the Communications Commission the authority to more proactively oversee the content of broadcasted programs, allowing them to penalize broadcasters for unpleasant content, without regard to its political, literary, or other value.
It's worth noting that, in practice, there is a specific case where the Communications Commission, in violation of the law, had previously examined a coverage aired on the Mtavari Arkhi in 2021, pertaining to the mentioned regulations. This coverage featured political satire and revolved around parliamentary dysfunction. Nonetheless, while the commission's examination of this matter was unlawful to start with, it also turned a blind eye to the political significance of the contentious content and statements. Consequently, the Mtavari Arkhi was found to have violated the law.
In light of these historical instances, it is virtually inevitable that comparable cases will resurface, culminating in broadcasters being penalized for disseminating content deemed undesirable. Furthermore, it is pertinent to observe that these modifications are being implemented a year in advance of the upcoming elections, consistent with the established practice wherein the Communications Commission tends to heighten its activities close to the election periods.
It is imperative to consider the background and the overarching context in which these changes are being enacted. Following the events of March 2023, the Georgian Dream party, in fact, explicitly declared its intention to persist in its battle with civil society but with an altered strategic approach. Consequently, over the past few months, the Georgian government has introduced a series of legal regulations that curtail our constitutional rights and freedoms. These measures encompass prohibitions such as the use of temporary structures, including tents, at rallies, and the prohibition of posters in the parliament building, among others.
The alterations outlined above serve as a continuation of the aforementioned trend, one that is anticipated to escalate dramatically in the upcoming election year.
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(1) The EU's Audiovisual Media Services Directive (AVMSD), Article 6, paragraph 1, sub-paragraph A.
(2) Opinion on the Law of Georgia on Broadcasting, prepared on the basis of the expertise by Council of Europe experts: Eve Salomon and Sally Broughton Micova, February 2023, pp. 27, see: https://tinyurl.com/y7eu68jh [last visit 16.10.2023].
(3) U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Georgia 2021 HumanRights Report, page 35, see: https://www.state.gov/wp-content/uploads/2022/03/313615_GEORGIA-2021-HUMAN- RIGHTS-REPORT.pdf
