On August 23, 2022, the National Communications Commission of Georgia satisfied the request of the governing party, "Georgian Dream", to declare three critical broadcasters - "Formula", "Mtavari" and "TV Pirveli"–as violators of the law for airing a video clip "Back to home - Europe" on June 23-24, 2022. The Commission issued a "warning" sanction against TV Pirveli and Formula, and imposed TV Mtavari GEL 118,700 penalty.
The three broadcasters aired the controversial clip as an announcement of the June 24 pro-Western and anti-Russian rally. According to the assessment of the "Georgian Dream", now shared by the Commission, the material distributed on June 23-25, 2022 is of the pre-election/political nature, serves to incite negative attitudes towards "Georgian Dream" in the society, and aims to hinder its electoral chances for future elections. Thus, "Georgian Dream" does not hide that its goal is to limit the spread of negative messages about the party through the litigation procedures via the Commission. This contradicts the basic principles of democracy.
Unfortunately, the Communications Commission, continuing its previous practice, did not consider the legally justified position of the broadcasters and disregarded the dangers inherent in the illegal, unjustified restriction of media freedom. August 16, 2022 the statement of the Commission, contrary to the existing standards, does not hesitate to confess that the legality of advertising is not in any form in conflict/in touch with freedom of expression.
The unlawfulness of the decision made by the Communications Commission is demonstrated by the following arguments:
● The commission considered the issue and decided, but there is no law in Georgia that regulates this issue. The commission does not have the mandate to assess political advertising beyond the pre-election period, since political advertising itself is limited only to the pre-election period. As a result, the commission went beyond its authority and adopted the function of the Parliament of Georgia, acting as the norm-maker;
● Even if we assume that the Commission has the authority to evaluate and decide airing political advertisements (during a non-election period), the Commission’s reasoning is not guided by the existing definitions in the legislation, which are given to define political and social advertisements. As a result, considering the disputed video clip as a political advertisement is unjustified, while the video does not meet the relevant prerequisites for political advertisement in the law;
● Although the disputed video ads were aimed at raising public awareness around an issue relevant to public discussion (in particular the integration into the European Union and the announced demonstration related to it), the Commission still did not qualify the disputed videos as "social advertising";
● The Commission's decision is actually based on the qualification of "Georgian Dream" as a "future electoral entity", which is beyond reasonable thought, since the legislation does not recognize the concept of "future electoral entity". Beyond the pre-election period, there is no "electoral entity" and it is impossible to say today how much "Georgian Dream" will be represented as an electoral entity two years from now, or how much the people depicted in the video will be representatives of "Georgian Dream" in that frame.
● The Commission, like "Georgian Dream", does not distinguish the state-political officials from their party affiliation. As a result, it is unsubstantiated why we should consider "Georgian Dream" as a relevant party, while in the video and shown are not just regular members of the party, but political/state officials who made statements on behalf of the state.
● The Commission also did not consider the general standard of the European Court, according to which, when limiting freedom of expression, it is important to consider the extent to which the disputed speech contributes to the public discussion and what is the more important good: the personal aspirations of a particular party - to eliminate all opportunities for critical expression to maintain its grip on power, or to allow the freedom of distributing videos with social content, the main goal of which is to promote the European integration of the country.
We believe that this arbitrary and legally unsubstantiated decision of the Commission is aimed at disciplining those media outlets that are critical of the government. Based on an unpredictable, undetermined legal procedure, the Commission unjustifiably violates the legal field protected by the principle of the freedom of expression and undermines media pluralism, now an important obstacle to Georgia's European integration.
The interests of the broadcaster Formula are represented by the “Georgian Democracy Initiative” with the support from the USAID’s Rule of Law Program.