Why Freedom of Expression Must Not Be Restricted
Recent statements by government representatives about the necessity to initiate legislative amendments to combat fake news and hate speech may lead to restriction of critical opinion and overall high standard of freedom of expression.
The following is an analysis of the risks associated with this controversial initiative and the discussion surrounding it. We also reviewed the legal cases of defamation under the existing legislative framework and found signs of selective justice in cases involving opponents of the government.
Fake news is a serious challenge for the modern world, including Georgia. This challenge is especially relevant for social and new media platforms.
Georgia has seen a significant increase in the number of government “information attacks” on opponents, including media and civil society, reaching its peak during the pre-election period in 2018. More than 150 Facebook pages and news agencies were identified during the presidential elections that disseminated fake information to discredit various actors. While some of these pages worked to discredit the government, most supported the government-backed candidate Salome Zurabishvili and disseminated false, slanderous information against the opposition, critical media and civil society. This malicious practice of discrediting government opponents continues to this day. In addition to spreading false information, creators of these fake pages and the so-called trolls engage in various discussions on social media in a coordinated manner in order to advance the pro-government narrative.
Despite the declared position of the Georgian government that freedom of expression will not be restricted, we have reason to believe that the main purpose of the ongoing discussion is not to combat fake news but to amend the law on defamation in order to limit criticism directed at the government. This assessment is further evidenced by several recent attempts by representatives of the Georgian Dream and various other influential groups to restrict freedom of expression.
Attempts to restrict freedom of expression
In 2017, Eva Gotsiridze, then a member of the High Council of Justice supported by the Georgian Dream, proposed introducing a “limit on permissible criticism” towards a judge in order to properly protect the reputation of the court and judges. The proposal gave rise to a tense discussion but ultimately did not take the form of an initiative.
In 2018, a legislative initiative was registered by then Georgian Dream MPs Eka Beselia and Levan Gogichaishvili. The document would allow the courts to prohibit the dissemination of creative works that infringe on the rights and legal interests of other individuals, incite hatred, etc. The draft law was harshly criticized by civil society, since it contradicted both the fundamental principles of basic human rights and the Constitution, and posed a threat to freedom of expression. In the end, the authors withdrew the initiative.
In 2018, MP Emzar Kvitsiani representing the faction Alliance of Patriots submitted a legislative initiative on criminalization of the so-called “insult to religious feelings”. The initiative is currently being reviewed by parliamentary committees. While MPs have submitted similar initiatives before, the Parliament has not made any changes so far due to civil society’s strong opposition to the idea.
In 2019, the Patriarchate (Orthodox Christian Church) also responded to statements on the possible restriction of freedom of expression and set up a working group to study hate speech in media. The working group intends to study international practice to find out how “they regulate television there so that such aggression, violence, and obscenity does not emanate from it”.
Freedom of expression is a crucial constitutional and conventional right that is protected by Georgian law. Defamation was decriminalized in Georgia in 2004, which was a significant achievement in terms of freedom of speech and expression.
Article 17 of the Constitution of Georgia protects the right to freedom of opinion, information, mass media and the internet. The same article states that: “Freedom of opinion and the expression of opinion shall be protected. No one shall be persecuted because of his/her opinion or for expressing his/her opinion”. In accordance with the Law on Freedom of Speech and Expression, anyone has the right to appeal to court with a civil dispute on defamation and violation of one's honor, dignity and business reputation. In cases when the subject of the dispute is defamation published by a journalist, the owner of the media organization where the information was published acts as the defendant. The same law provides for the most important legal guarantee for freedom of expression, i.e. placing the burden of proof on the initiator of the restriction. Any doubt that cannot be proven shall be resolved against the restriction to the freedom of speech.
Legal guarantees in the Georgian legislation on freedom of expression and defamation are largely based on the experience of the US legislation and court practice. Even though the experience of European countries sets out standards of very different nature, the American model best suits the Georgian reality and context, which was repeatedly proven to be the case in practice. The freedom to express criticism is also strengthened by a number of progressive precedential decisions of the Constitutional Court.
Unfortunately, recent decisions made by Common Courts raise serious questions about selective justice, especially in cases of defamation involving opponents of the government.
Analysis of court practice shows that until recently the Common Courts offered uniform explanations on cases of defamation, even when considering important circumstances such as statements that a certain person committed a possible crime.
- Mamuka Khazaradze v. Media Organization
The published articles accused Khazaradze of dispersing a public protest on February 18, 1989, incitement to suicide and other crimes. While reviewing the case, the court indicated that statements containing specific allegations must be confirmed by a court verdict. If such a verdict does not exist, then it is considered that the offense has not been committed (indicating the presumption of innocence), the statement contains incorrect facts and is defamatory.
This explanation, as a practice established by the Common Courts, is used in almost every case involving statements containing criminal allegations.
- Member of Akhaltsikhe Municipal Council J. G. v. Mayor of Akhaltsikhe G. K. 
On December 10, 2015, while speaking at a television program, the Mayor of Akhaltsikhe stated that one of the members of the Municipal Council was fired from the police for making prisoners “sit on bottles” and throwing them out of windows. According to the court, this statement described actions that constitute offenses under Georgian criminal law. Without offering relevant evidence, such statements constitute a violation of a person’s honor, dignity and business reputation. According to the court decision, such a person may be perceived as a criminal in the eyes of the public, discrediting them in this way. The Cassation Court fully accepted this reasoning and explained that by making a statement containing criminal allegation without offering relevant evidence damaged the honor, dignity and business reputation of the member of the Municipal Council.
- O.K. v. Ltd. A. H.
According to the court decision, the plaintiff O.K. was accused of pedophilia and other inappropriate actions towards two minors in a newspaper article without any evidence. The same newspaper addressed O.K. with words like scoundrel, pedophile, etc. According to the court, the facts published about the plaintiff were false. Therefore, defamation had taken place, which had damaged their honor and dignity.
While the factual circumstances of each case should be considered separately, analysis of published court decisions suggests that the Common Courts have established a uniform practice, whereby all statements are considered to be defamatory if the allegation they claim cannot be proven.
Of all the currently ongoing court cases, three are of particular importance. In two cases, the first instance court made its decisions in accordance with the established practice, while the third was an exception:
- Beselia v. Elisashvili
Tbilisi City Court made the decision on March 20, 2017. Eka Beselia, who, at the time of court proceedings, was an MP representing the ruling party as well as a parliamentary committee chair, disputed a statement made by Aleko Elisashvili, former chair of the Pardon Commission. Elisashvili accused Beselia of being corrupt and spoke about her involvement in a corruption plan involving the release of prisoners.
The court concluded that the statement was defamatory and had damaged Eka Beselia's dignity and business reputation. The court offered an explanation that investigative activities had not identified a corruption deal between persons convicted for the Cocaine Case and politicians named by Aleksandre Elisashvili.
- Cheishvili v. Vasadze
Batumi City Court made the decision on November 20, 2018. The subject of dispute was a statement made by the former member of Adjara Supreme Council Medea Vasadze accusing the Chairperson of Batumi City Council Irakli Cheishcili of helping his friends in transporting drugs from Turkey to Georgia.
The court ruled in favor of defamation and explained that: “The plaintiff (Irakli Cheishvili) was able to provide enough evidence to unequivocally prove the falseness of the facts stated by the defendant”.
Ten days following this decision, Tbilisi City Court did not grant the defamation case submitted by Eka Gigauri, Executive Director of Transparency International Georgia, and offered an explanation that diverged from the previous practice.
- Eka Gigauri v. Khaindrava and Adamashvili
Tbilisi City Court made the decision on November 30, 2018. Eka Gigauri sued Khaindrava / Adamashvili for stating that she took part in the dispersal of the November 7 protest rally while working for the Border Police, that she received a title for it and gave bonuses to dispersal participants.
The case was unreasonably delayed in the first instance court; submitted in March 2015, Tbilisi City Court announced its decision on November 30, 2018. This delay allowed Khaindrava and Adamashvili, as well as some government officials, including Minister of Justice Tea Tsulukiani and ruling party leader Bidzina Ivanishvili, to carry out a defamatory campaign with the purpose of discrediting Gigauri.
Even though at the trial the defense presented evidence from the Prosecutor's Office that Eka Gigauri had no connection to any offense, the court nevertheless refused to qualify the disputed statement as defamation.
Even more surprising is the fact both cases of Beselia and Gigauri were reviewed by the same judge, who, with a one-year interval, made two different decisions for two cases with identical circumstances: defamation in case of Beselia, and lack thereof in case of Gigauri.
If higher instance courts decide to uphold these decisions, this will worsen the previously established practice and raise doubts about a possible interference with the judiciary. In addition, delaying the hearings on defamation cases may cause additional damage to defamation victims.
- The Georgian government must clearly distinguish defamation and false information as separate problems, stop misleading the public about defamation and refuse to amend the law that would restrict the right to express critical opinions.
- The judiciary must be freed from external and internal influences. The Common Courts practice on cases of defamation must not worsen.
- Political groups, and especially the government, must not act as sources of false information, must not interfere with the work of media organizations and must ensure the independence of the media environment.
- The government must launch large scale discussions on how to combat false information and ensure the involvement of all stakeholders in the process.