How legitimate is the suspension of the Internet in some regions and the closure of the TikTok social network?

The question is: How legal is it to continue restrictions imposed in some residential areas near the operation zone, as well as throughout the country, during the 23-hour anti-terrorist operation on September 19, despite the fact that two weeks have passed since the end of the operation?

It is known that the territorial integrity of Azerbaijan and the protection of state sovereignty are the most sensitive areas of the absolute majority of the country's population. The separatism, enmity, mass killings, invasion, and forced migration that started against our country and people 35 years ago ended with a 44-day war in 2020. Despite this, the full restoration of state sovereignty was not fully realized in the remaining 3 years, the so-called organizations of armed Armenian gangs continued their activities and systematically took up arms and resorted to terrorism. Finally, on September 19, the 23-hour anti-terrorist operation blotted it out.

Just as the beginning of the 23-hour anti-terrorist operation was officially announced, the end of the operation was officially announced on September 20 at 1:00 p.m. with the acceptance of surrender by separatist Armenian gangs.

During the 23-hour operation, certain restrictive measures were taken and are still being implemented on telecommunications services, which have been "officially" announced and applied across the country (restriction of access to the TikTok social network across the country), and which have been applied in the regions without official announcement (complete suspension of network-provided internet in the region or difficulty accessing mobile internet).

1. The nationwide restriction announced by the Electronic Security Service (ESS) under the Ministry of Digital Development and Transport, published^[1] in the official media:

"Since September 19, a temporary restriction has been applied to the activity of the social network TikTok in the territory of Azerbaijan. The Electronic Security Service under the Ministry of Digital Development and Transport urges citizens to comply with the requirements of the legislation of the Republic of Azerbaijan and the rules and conditions set by social network administrators when sharing posts on social networks.”^[2]

However, for some reason, the official state body did not post this warning on its Internet information resource. However, if such an official decision has been made, the obligation to place this warning on its Internet information resource is a definite requirement of Articles 9, 29, 32, and 33 of the Law^[3] of the Republic of Azerbaijan on Access to Information. It is interesting that the last warning to citizens on the official internet resource of this body was posted on June 21, 2023. The motive for this is different.

From this announcement, which the official body does not own (by not posting it on its official website), it is understood that access to the TikTok social network from all providers and operators across the country has been temporarily restricted by the administrative body without any court order.

However, there is no official information about why the restriction was imposed, on what legal grounds it was imposed, and by which law it was imposed.

According to Article 2.0.1 of the Law^[4] of the Republic of Azerbaijan on Administrative Proceedings, the Electronic Security Service under the Ministry of Digital Development and Transport is an administrative body, and the Decision on applying temporary restrictions to the activities of the Tik-Tok social network adopted by it is a normative act (administrative act).

According to Article 4.3 of the Constitutional Law on Normative Legal Acts^[5], "normative acts must be adopted on the basis of the relevant normative legal act and must refer to its relevant norm". In other words, the decision to temporarily limit the TikTok social network without a court decision should have been presented to the society with a clear justification of which article of which law or which paragraph of which decree it was limited by.

From a legal point of view, in what cases and with what formality can this restriction be applied?

If such a restriction was intended to be applied simply on the basis of conducting an anti-terrorist operation, then logically it should have been in the Law^[6] of the Republic of Azerbaijan on Operation-Search Activities adopted in 1999 or in the Law^[7] of the Republic of Azerbaijan on Combating Terrorism. None of these laws provides for the application of any restrictions to telecommunication services in general throughout the country, as well as the control of Internet information resources, blocking of social networks, or suspension of mass Internet access when an anti-terrorist operation or an operation-search activity is conducted in a part of the country.

In the Law^[8] of the Republic of Azerbaijan on Telecommunications adopted in 2005, there is no such authority of any "relevant executive authority" or ground.

Article 1.0.3 of the Law^[9] of the Republic of Azerbaijan on Martial Law provides for military censorship and control of Internet information resources during the implementation of a special military regime only when martial law is declared. The implementation of the martial law regime is carried out with a special formality in the Constitution. Martial law was not declared or applied during the September 19 anti-terrorist operations. Therefore, it is legally impossible to apply such a restriction on this ground.

The second possibility is the imposition of this restriction within the framework of the measures to prevent the placement of information that is prohibited from spreading in Internet information resources, which was added to the Law^[10] of the Republic of Azerbaijan on Information, Informatization, and Protection of Information in 2017 by creating string reaction.

In Article 13-3.1 of this Law, when the relevant executive authority directly discovers the cases of placement of prohibited information in the Internet information resource or determines it based on substantiated information received from individuals, legal entities, or state bodies, it issues a written warning to the owner of the Internet information resource and its domain name and the host provider regarding this.

The content of the warning must contain information about information prohibited by law, a request to remove the relevant information from the Internet information resource or to restrict access to the Internet information resource or its relevant part, the grounds provided by law for such a request, as well as information on the measures to be taken if the relevant request is not complied with in a timely manner.

The point is that when such a situation is discovered and a warning is issued, if the information, the dissemination of which is prohibited by law, is not removed from the Internet information resource within 8 hours from the time of the warning, or if the access to the Internet information resource or its relevant part is not restricted, the relevant executive authority applies to the district (city) court with a petition to remove information from the Internet information resource or restrict access to the Internet information resource or its relevant part.

As an exception, Article 13-3.3 of the Law states that: "In urgent cases where there is a threat to the interests of the state and society protected by law, or there is a real threat to people's lives and health, access to the Internet information resource or its relevant part is temporarily restricted based on the decision of the relevant executive authority." One of the requirements of the Law is that in this case, it shall also apply to the court to restrict access to the Internet information resource or its relevant part.

If the reason for the temporary suspension of the TikTok social network was based on "a threat to the interests of the state and society protected by law and taking urgent measures", in this case, information regarding who revealed the prohibited information, what exactly it was, and whether it was received from other state bodies or individuals should be submitted to the court in parallel with its justified presentation. Moreover, the party applying this information should not be the Electronic Security Service, but the Ministry itself. According to Paragraph 2.3 of the Decree^[11] of the President of the Republic of Azerbaijan on the implementation of the Law of the Republic of Azerbaijan on Information, Informatization, and Protection of Information, Article 13-3.3 of the Law is implemented by the Ministry of Digital Development and Transport of the Republic of Azerbaijan.

Furthermore, when looking at the Regulations^[12] on the Electronic Security Service under the Ministry of Digital Development and Transport of the Republic of Azerbaijan approved by Decree No. 833 of the President of the Republic of Azerbaijan dated March 5, 2013, among the powers and duties of this institution, there is no authority or duty to block any Internet information resource or to apply to the court.

All this shows that the provision of the measure on the temporary restriction of the TikTok social network was not in accordance with the laws from the point of view of legal validity and procedural point of view, and there is still no legitimate reason for its continuation.

2. As for the restriction applied without official announcement in the regions, according to unofficial information, this mainly occurs in the form of suspension of the provision of internet to fixed internet subscribers in Aghdam and Fuzuli districts and application of restriction to the internet of mobile internet users in the area.

In this regard, neither the official institutions nor the press openly presented a restriction measure. However, in practice, citizens in this area cannot use the internet for which they paid in advance, despite the fact that two weeks have passed since the end of operations. The internet was massively cut off in the area. Some operators and providers attribute this outage to "technical reasons" with a message in the following content; however, in phone conversations, they admit that it is due to a "special order".

As a result, citizens' access to information is massively restricted without a legitimate legal basis, and the right to freedom of information established in the Constitution is arbitrarily restricted. State bodies responsible for the official policy of the state in this field, including especially the Ministry of Digital Development and Transport, continue to remain inactive, and Aztelekom, Azercell, Bakcell, Narmobile, and other operators and providers under its control or licensed by it continue to violate the rights of citizens by openly abusing their commitment to the integrity and sovereignty of the country. Depriving citizens of the Internet in a part of the region in this form is also an application of regional discrimination and is unacceptable.

^[1] https://azertag.az/xeber/azerbaycan_erazisinde_tiktok_sosial_sebekesinin_fealiyyetine_muveqqeti_mehdudiyyet_tetbiq_edilib-2753728

^[2] https://apa.az/infrastruktur/azerbaycanda-tiktokun-fealiyyeti-mehdudlasdirilib-resmi-786484

^[3] “İnformasiya əldə etmək haqqında “Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/11142

^[4] “İnzibati İcraat haqqında” Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/11254

^[5] “Normativ Hüquqi aktlar haqqında” Konstitusiya Qanunu, https://e-qanun.az/framework/21300

^[6] “Əməliyyat-axtarış fəaliyyəti” haqqında Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/2938

^[7] “Terrorçuluğa qarşı mübarizə” haqqında Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/3855

^[8] “Telekommunikasiya haqqında” Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/10663

^[9] “Hərbi vəziyyət haqqında” Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/35170

^[10] “İnformasiya, informasiyalaşdırma və informasiyanın mühafizəsi haqında “Azərbaycan Respublikası Qanunu, https://e-qanun.az/framework/3525

^[11] “İnformasiya, informasiyalaşdırma və informasiyanın mühafizəsi haqqında” Azərbaycan Respublikası Qanununun tətbiq edilməsi barədə Azərbaycan Respublikası Prezidentinin Fərmanı,https://e-qanun.az/framework/3605

^[12] Respublikası Prezidentinin 2013-cü il 5 mart tarixli 833 nömrəli Fərmanı ilə təsdiq edilmiş Azərbaycan Respublikasının Rəqəmsal İnkişaf və Nəqliyyat Nazirliyi yanında Elektron Təhlükəsizlik Xidməti haqqında Əsasnamə, https://e-qanun.az/framework/25375