The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 2 August 2019, the Constitutional Court of Georgia adopted the judgment in the case of “Alexandre Mdzinarashvili v. The Georgian National Communications Commission” (constitutional complaint №1275). The subject of dispute in this case were the norms of the regulation adopted by the Ordinance №3 of March 17 of 2006 of the Georgian National Communications Commission “On Providing Services and Protection of Users’ Rights in the Field of Electronic Communications”. On one hand, the disputed provisions established the obligation of the internet domain issuer to block the website in order to prevent dissemination of inadmissible products and, on the other hand, it gave the service provider the opportunity to adopt appropriate measures in order to prevent dissemination of the message containing inadmissible products via network¹ (according to the disputed Resolution, inadmissible products encompassed products depicting particularly severe forms of hatred and violence, degrading the personal life, also products that were defamatory, abusive, violating the presumption of innocence and inaccurate).

According to the complainant’s position, the contested Resolution of the National Communications Commission itself defined the notion of inadmissible products and regulated the issues related to the prohibition of the dissemination of such products. As explained by the complainant, interference within the freedom of expression by disputed norms was carried out without delegation of powers. Instead of the law, the restriction was based on the Resolution of the Georgian National Communications Commission. The complainant considered that it was formally in contradiction with the constitutional requirements.

The respondent, the Georgian National Communications Commission, emphasized that disputed provisions did not violate the formal requirement of the Constitution to restrict freedom of expression. In particular, the respondent indicated that the authority had been delegated to the National Communications Commission by the relevant provisions of the law on Electronic Communications and the law on National Regulatory Bodies and based on this delegation, the Georgian National Communications Commission was given the authority to draft legal acts on any matter that would be aimed at protecting of users’ rights in the field of electronic communications.

According to the Constitutional Court of Georgia, the freedom of expression protects the right to freely receive and disseminate opinion/information, which includes the exchange of information in a desirable manner and means, without any content filtering. Based on the disputed norms, the Georgian National Communications Commission prohibited the transmission of messages depicting particularly severe forms of hatred and violence, degrading the personal life, defamatory, abusive, violating the presumption of innocence or inaccurate. In the Court's view, regulating the issue in such a manner meant the content regulation of expression and the restriction of the dissemination of opinion/information because of its content, which constituted one of the most severe forms of interference in this right.

According to the Constitutional Court, the freedom of expression is not an absolute right and the Constitution of Georgia allows its restriction. The Court indicated that the constitutional norm establishing freedom of expression requires that the restriction of this right may be allowed only in accordance with law. The failure to comply with the aforementioned formal requirement, despite the content of the regulation, leads to the unconstitutional restricting of the fundamental right.

The Constitutional Court elucidated that the constitutional guarantees for the restriction of the fundamental right by law serve the realization of the principle of separation of powers, thereby avoiding the risk of concentration and abuse of state power. At the same time, such an order additionally ensures that the right is restricted only by the decision of state authority which is the highest representative body with the proper legitimacy granted by the people. The Parliament of Georgia is the constitutional body that resolves the issues based on a transparent legislative process, as a result of political debates and in this way, creates an additional filter to reduce the risks of unjustified interference in the right.

However, the Court considered that the formal requirement of the Constitution does not imply that the right can be restricted only by the Parliament of Georgia. In some cases, the Parliament of Georgia is authorized to delegate the competence of the regulation of some issue to another state body, as the imposing the obligation to regulate on all issues related to the restriction of the rights on the Parliament of Georgia may paralyze the legislative authority and delay the legislative process. The mechanism of the delegation of powers greatly simplifies the law-making process and gives the legislature the ability to make decisions on principal political-legal issues, while passing the details necessary for their implementation to other state bodies.

According to the Constitutional Court, the delegation of powers by the Parliament may violate the Constitution in cases where the Constitution of Georgia expressly prohibits delegation and/or when it is determined that by delegation of certain powers the Parliament of Georgia refuses to exercise its constitutional authority. The court considered that this occurs, for example, when the Parliament of Georgia delegates a fundamentally important part of its power.

According to the Constitutional Court, by the disputed regulation, the Georgian National Communications Commission determined what type of opinion and information is inadmissible. Accordingly, the content regulation of expression was established, which implies a restriction of the dissemination of opinion/information due to its content. The Constitutional Court noted that freedom of expression is a fundamental and functional element of a democratic society. It forms the necessary foundation for the development of society and for the protection of human rights. The equal and full enjoyment of this right determines the degree of openness and democracy of society. Thus, the content-based regulation of freedom of expression and determination of its aspects is the issue of high political and public interest. Therefore, according to the Court, the determination of this issue was a fundamentally important power of the Parliament of Georgia and delegation of this power to the Georgian National Communications Commission was inadmissible. Consequently, even if there were a legislative provision delegating the power of content regulation of freedom of expression, such a will of the Parliament would be unconstitutional.

At the same time, the Court indicated that the impugned provisions beyond the content regulation of expression also regulated the procedure for technical enforcement of the restraint establishing the content regulation. The Constitutional Court noted that the Constitution of Georgia does not exclude the power of Parliament of Georgia to delegate to another state body authority to adopt the regulation of technical, content-related issues related to the restriction of freedom of expression. However, based on an analysis of the relevant legislative norms, the Court found that the Parliament of Georgia had not delegated the power to the Georgian National Communications Commission to regulate freedom of expression regarding the disputed matter.

In view of the foregoing, the Constitutional Court of Georgia held that the formal requirements for the restriction of freedom of expression had not been complied with. Therefore, the disputed provisions were found unconstitutional with respect to the first sentence of Article 17 (1) and Article 17 (2) of the Constitution of Georgia.

1. The subject of the dispute fully: Constitutionality with regard to Article 24(1) of the Constitution of Georgia (version in force until December 16, 2018) of Article 10³ (2) (b), Article 25(4) (g) and Article 25(5)(b) of the regulation adopted by the Ordinance №3 of March 17 of 2006 of the Georgian National Communications Commission on Providing Services and Protection of Users’ Rights in the Field of Electronic Communications.