The Parliament of Georgia rapidly discussed and through accelerated legislative procedures, passed the changes to the “Law of Georgia on Broadcasting" in the third reading on October 19, 2023. [1]

The initiators of the bill have stated that the aim of the legislative changes is the improve the Law On Broadcasting, claiming that the establishment of an effective response mechanism to the spread of hate speech and calls to terrorism in media is directly related to the fulfilment of the 12 priorities defined by the European Commission and thus the decision to grant Georgia candidate status.[2]

The changes authorize appeal to the decisions made by the broadcaster's self-regulatory body on the coverage of programs containing hate speech, calls to terrorism, and obscenity to the National Communications Commission of Georgia, which significantly increases the scope of discretionary powers transferred to the regulatory commission.

According to the assessment of the Center for Social Justice, the transfer of additional power to the regulatory commission carries an increased risk of disproportionately restricting freedom of expression and interfering with the freedom of critical media organizations and punishing them.

• Legal review of the amendments to the Law on Broadcasting

According to Article 552 of the current version of the Law on Broadcasting, it is prohibited to broadcast programs and advertisements containing hate speech and calls to terrorism.[3] Article 591 of the Law, on its part, establishes that the violation of the ban on the distribution of programs and advertisements containing hate speech and calls to terrorism can only be responded to within the framework of the broadcaster's self-regulatory mechanism. [4] Additionally, it is prohibited to appeal the decisions made by self-regulatory bodies in court, in the Commission or in any other administrative body.[5]

As a result of the changes in the legislation, the interested person will be able to appeal the decision made by the self-regulatory body of the broadcaster regarding the violation of the requirements of Article 552 of this law (prohibition of the distribution of programs and advertisements containing hate speech and calls to terrorism) to the commission. [6]

In the same context, the new form of regulating obscenity is also noteworthy. According to paragraph 4 of Article 56 of the current law, "broadcasting of pornography and programs or advertisements abusing a citizen’s and a person’s dignity and his/her fundamental rights and that contain obscenity, are prohibited. [7] The mandate to respond to violations of the standards reinforced by Article 56 was exclusively given to the self-regulatory mechanism. [8]

According to the new version of the law, the concept of obscenity was included in Article 56¹  of the Law on Broadcasters as well. [9]  And according to the Law on Broadcasting law, responding to violations of the requirements established by Article 56¹  falls directly within the authority of the commission.[10]

In case the commission establishes a violation, the broadcaster is obliged to broadcast a declaration about the violation of the requirements of the Georgian legislation on its own airwaves during prime time. Based on the severity of the violation, the commission is authorized to consider applying appropriate sanctions to the broadcaster.

Thus, according to the amended legislation, the evaluation of the accuracy of the decisions taken by the broadcaster's self-regulatory body, regarding the coverage of programs containing hate speech, calls to terrorism and obscenity, has been transferred to the commission. Therefore, with the amendments to the law, the self-regulatory bodies have been deprived of the exclusive mandate to discuss and evaluate these issues, thereby substantially increasing the commission's discretion. Consequently, in light of the amendments to the law, the regulatory commission will be able to control the media more easily and use the sanctions mechanism in specific cases. [11]

• The question of compliance with human rights standards

The Directorate General of Human Rights and Rule of Law of the Council of Europe has presented a critical analysis of the existing law before the amendments were adopted. The analysis suggests that several definitions in the Law on Broadcasting are not in compliance with the standards of the European Union and those of the Council of Europe. Furthermore, some provisions allegedly violate the freedom of expression provided for in Article 10 of the European Convention on Human Rights. [12]

• The question of the independence of the National Communications Commission

The amendments to the law effectively disregard the evaluations presented by the above-mentioned document penned by the Council of Europe. The critical assessment of the Council of Europe regarding the Commission's independence is particularly noteworthy, considering the increased discretion of the National Communications Commission. According to the assessment, the regulatory mechanisms embedded in the law do not comply with the criteria provided for by the European Union Directive 2010/13/EU and European Council standards on audio-visual and media services. [13] According to these criteria, the law should ensure the independence of the national regulatory body in a way that political processes do not influence its decisions. The reference in the law on the manner of selection of the members of the commission is not transparent. The government presents the list of candidates for membership of the commission to the parliament, and they are approved by the parliamentary majority at a parliament session. While most of the parliamentary mandates fall in the hands of the ruling party, and as the selection and nomination of the members of the commission are executed by them, the commission’s independence is called into question. [14]

• The problem of defining hate speech

The Council of Europe has also made critical evaluations regarding the definitions of hate speech in the Broadcasting Law. According to EU laws, hate speech is a category of freedom of expression that is not protected, and member states are obliged by law to prohibit it. [15] Although Directive 2010/13/EU considers it appropriate to fight against hate speech through co-regulation or legislative regulation, it is important to have a clear definition of the content of hate speech to avoid the risks of political pressure.

The Council of Europe, based on interviews conducted for the preparation of expert opinions, states that the term "hate speech" is widely used to refer to critical or offensive comments in Georgia. The conclusion also mentions the opinions of representatives of civil organizations and media outlets about the 'creeping definitions' of the Communications Commission, which are used by the Commission to expand the scope of broadcasting content regulation.[16]

According to the Council of Europe recommendation on combating hate speech,[17]   freedom of expression extends to ideas and information that are offensive, shocking, and disturbing to the state or any group of society. [18] . Statements containing hate speech are typically based on characteristics associated with vulnerable groups or are based on personal features.[19] Otherwise, the statement may be violating another section of the law or code of conduct but should not be considered as hate speech.

It should be noted that the European Court of Human Rights determines that critical comments and statements expressing controversial views are not hate speech. [20] In addition, the International Committee against Racial Discrimination (OHCHR), the UN Human Rights Committee and ECRI note that the predictability of a law is essential to prevent it from being used as a repressive tool to stifle legitimate political criticism. [21]

• Problematic nature of the term “obscenity”

Article 9 of the Directive clarifies that audiovisual commercial communications (advertisements) presented by the media must not be offensive to human dignity, - among other requirements. [22] The obligation does not apply to the broadcasters’ programs, contrary to how Georgia's law on Broadcasting does. The Council of Europe concludes that the qualitative separation of commercial communications (advertisements) and programs is necessary from this point of view. However, obscene programs should not be banned, but only allowed to be broadcasted when children will probably not see them.” Only pornography should be broadcast in codified form. [23] Therefore, new amendments, which allow the regulatory commission to arbitrarily regulate the coverage of obscene programs and advertisements (per Article 56¹ ), prove to be problematic.

The European Court of Human Rights, while discussing the proportionality of the restrictions of freedom of expression, considers the possibility of provoking a public debate on a subject of public interest as important legal goods. [24] The ECHR, in one of its cases, found obscene expression for commercial purposes inadmissible, although it is less strict about such expression for the purpose of provoking public debate. [25] Freedom of expression specifically protects coverage of political statements and public interests rather than private and commercial interests. [26] Therefore, the above-mentioned standard that starting public debates and coverage of issues of public interest by the media should be more protected by freedom of expression than it is in the case of commercial communications, should also be taken into account when the Law on Broadcasting is being practiced.

• Conclusion

The amendments to the Law on Broadcasting, adopted on 19 October, which specifically expand the scope of the Communications Commission’s authority to intervene in the content of broadcasters’ programs, increase the threat of control and censorship on media organizations in Georgia. Regretfully, the Parliament of Georgia adopted these troublesome amendments so hastily that it had not even concluded consultations with the civil society.

Clause 7 of the 12 recommendations of the European Commission calls on the Georgian authorities to ensure a free, professional, pluralistic, and independent media environment. The amendments to the Law on Broadcasting, together with the hastily implemented amendments to the Law on "Assemblies and Manifestations", [27] which increases the powers of the police during demonstrations, will severely limit the democratic and pluralistic environment in the country. These changes are inconsistent with the legal standards recognized by the Constitution of Georgia and international laws regarding freedom of expression, as well as with the national interests and the spirit of fulfilling the 12 recommendations of the European Commission. The Adoption of legislative changes that severely harm the freedom of expression and assembly a few weeks before the decision of the European Union on the granting of the candidate status, cannot withstand the criticism of (geo)political expediency - beyond legal and social criticism, - and is extremely alarming.

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