Amendments enacted to the Law, the relationship vis-à-vis the EU directive and the impact on the freedom of broadcasters.
On 19 October 2023, the Parliament of Georgia adopted draft law on amendments to the Law of Georgia on Broadcasting at the third hearing. The draft was proposed by the following MPs of the Parliamentary Majority - Davit Songhulashvili, Eka Sepashvili, Bezhan Tsakadze, Isco Dasen, Irakli Kirtskhalia, Anton Obolashvili and Irma Zavradashvili.
In accordance with the amendments, the decisions adopted by a broadcaster’s self-regulation body in regard to the violation of the ban on the dissemination of hate speech, obscenity in the broadcaster’s programmes and advertisements as well as any incitement of terrorism can be appealed to the Georgian National Communications Commission or another administrative body.
The explanatory note of the draft law reads that the goal of these amendments is to establish an effective response mechanism to the dissemination of hate speech or the incitement of terrorism in the programmes and advertisements of media service providers. This in turn was touted as a precondition for Georgia’s full participation in implementation of the Creative Europe’s EUR 2.44 billion budget programme (2021-2027) as well as for the fulfilment of one of the priorities set forth by the European Commission.
Of note is that the ruling party claims that the harmonisation of Georgia’s legislation with the 2010/13/EU European Directive on Audiovisual Media Services is another reason for proposing these amendments.
Directive 2010/13/EU of the European Parliament and of the European Councilof 10 March 2010 “on the coordination of certain provisions laid down by the law, regulation or administrative action in Member States concerning the provision of audiovisual media services” regulates the prohibition of any incitement of hatred and terrorism on TV.
According to the leader of the parliamentary majority, Irakli Kobakhidze: "The regulations are based on the EU directive from the beginning to the end..." Shalva Papuashvili also shares the same opinion, saying that: "The opposition already confirms that all this comes from the directive, despite the fact that we had a week of a disinformation campaign from the opposition and several ‘NGOs,’ claiming that it did not comply with the directive. In order to end these speculations, it is important to sign the law on time.” The initiator of the draft law, Davit Songhulashvili, said that the amendments are in line with the European Union’s directive and pledged to initiate further changes in case of additional communication from the European Union on disputed issues.
Of the European Union’s 12 priorities for Georgia to obtain candidate status, one of them pertains to media freedom. In particular, the EU’s position is that Georgia should “undertake stronger efforts to guarantee a free, professional, pluralistic and independent media environment, notably by ensuring that criminal procedures brought against media owners fulfil the highest legal standards and by launching impartial, effective and timely investigations in cases of threats against safety of journalists and other media professionals.” In the interim report on addressing these priorities, the EU called on Georgia to amend the Law of Georgia on Broadcasting in line with the recommendations of the European Council.
In line with the aforementioned European Union Directive, together with approximation with the EU and legislative harmonisation, strong appeals were also made on addressing the EU’s 12 priorities, prompting numerous amendments to the Law of Georgia on Broadcasting.
As a result of the amendments enacted on 22 December 2022, a special article was added to the Law (55(2) - prohibition of programmes and advertisements containing hate speech and the incitement of terrorism). Prior to the changes, violations related to hate speech were considered by the Broadcaster's Self-Regulatory Council and it was not allowed to appeal its decision to the Communications Commission or the court. After the approval of the amendments on 22 December 2022, this practice was changed and responding to the violations was assigned to the regulatory body – the GNCC or the court. According to the explanatory note, by signing the Association Agreement Georgia committed itself to gradually harmonise its legislation with the EU’s legislation whilst the obligation to harmonise legislation specifically with the European Union’s Directive 2010/13/EU directive is stipulated by Annex XXXIII of the Association Agreement.
Prior to the approval of the amendments, the Parliament of Georgia addressed the Council of Europe on 3 November 2022 with the request to prepare an independent expert assessment on the draft amendments to the Law of Georgia on Broadcasting. Nevertheless, the Georgian Dream adopted the law without waiting for the expert evaluations of the Council of Europe, nor taking into account the alternative proposal developed by the majority of TV broadcasters and NGOs. The alternative proposal was submitted to the parliament on 28 November 2022 by the opposition as a result of cooperation with civil society and it envisioned the creation of an effective co-regulation mechanism. In particular, it would be possible to appeal the decision made as part of the self-regulation mechanism, not to the GNCC or to the court but to the Common Appeals Council consisting of civil society members whilst the GNCC would have the function of supervising the implementation of the Council's decisions. According to the statement of the Media Advocacy Coalition, the spirit of the alternative model was also endorsed by independent experts of the Council of Europe who were in favour of introducing effective co-regulation given the existing context in the country.
On 21 February 2023, the Council of Europe published its opinion. It was recommended that “the hate speech regulation is a matter for co-regulation under an improved co-regulatory mechanism.” The same opinion also says that selection of the GNCC members by a simple parliamentary majority does not comply with either the Council of Europe’s standards on the independence of regulatory authorities or with the requirements for independence under Article 30 of the European Union’s directive.
Furthermore, as part of an interim report on the implementation of the 12 recommendations, European Commissioner, Oliver Varhelyi, directly called on the Government of Georgia on 22 June 2023 to reform the Law of Georgia on Broadcasting in line with the aforementioned Opinion.
The ruling party partially took into account the expert opinion of the Council of Europe and the interim report of the European Union and adopted amendments to the Law on Broadcasting in an accelerated manner on 30 June 2023 which brought the regulation of hate speech within the framework of the self-regulation mechanism, although the alternative co-regulation mechanism proposed by the civil sector was still not elaborated.
As a result of the amendments enacted on 19 October 2023, the Parliament of Georgia returned to the model introduced on 22 December 2022 which envisions the possibility of appealing the decisions made as part of the self-regulation mechanism to the GNCC or to the court. The difference is that under the current redaction, if the fine exceeds 1% of the broadcaster's annual income and at the same time exceeds GEL 5,000 and if there is a decision to suspend/cancel the authorisation, the appeal cannot be enforced immediately and the sanction will be suspended during the litigation process. The dangers created by the changes adopted in December 2022 have been partially eliminated with the new edition but challenges still remain. In particular: "For a company with an annual income of GEL 10 million, 1% will be GEL 100,000. Theoretically, the GNCC may impose a GEL 99,999 fine on such a broadcaster. Although it is more than GEL 5,000, enforcement will not be suspended as this amount of the fine does not exceed 1% of the company's annual income. Therefore, the second mandatory condition is not fulfilled. In addition, we can cite the second case as an example: the annual income of the broadcaster is GEL 400,000 GEL and 1% of it is GEL 4,000. If the GNCC established a fine of 4,500 GEL, although the first condition is fulfilled and it exceeds 1%, the second condition will not be fulfilled because the fine does not exceed GEL 5,000. Therefore, enforcement will not be automatically suspended." 
As mentioned earlier, Directive 2010/13/EU of the European Parliament and of the European Councilof 10 March 2010 regulates the prohibition of the dissemination of hate and any incitement of terrorism on TV. In line with the EU-Georgia Association Agreement, Georgia should indeed enact a number of amendments in the legislation, including vis-à-vis audiovisual media services.
In accordance with the European Directives Article 6(a), Member States shall ensure that audiovisual media services provided by media service providers “do not contain any incitement to hatred based on race, sex, religion or nationality.” In addition, Article 4 says that: “Member States shall encourage co-regulation and/or self-regulatory regimes at national level to the extent permitted by their legal systems.”In addition, section 44 of the declaratory underlines that: “This should neither oblige Member States to set up co-regulation and/or self-regulatory regimes nor disrupt or jeopardise current co-regulation or self-regulatory initiatives which are already in place within Member States and which are working effectively.”
The EU Delegation to Georgia released a statement in response to the approval of the draft law: “Usually, the EU directives do not dictate the exact manner in which they must be followed; instead, the EU Member states have a level of freedom in deciding how to transpose directives into national laws. In case of Georgia – especially now that it is on the enlargement path – it needs to align with certain provisions and principles… Following consultations with the European Commission, the amendments adopted by the Georgian Parliament address this issue, namely by introducing the possibility to appeal decisions on the protection of minors and hate speech…When it comes to the concept of ‘obscenity,’ it is not part of the Directive and there is no need to regulate this under the Directive. On this issue, it is definitely important to ensure that dialogue is held with the stakeholders on its application.”
The EU Delegation to Georgia assesses that the legislative amendments approved by the Parliament to harmonise legislation with the European Union’s directive are line with the latter, although with two conditions - 1. Obscenity was not part of the European Union’s Directive and 2. It is needed to ensure the independence of the regulator. The threats which are often highlighted by civil society representatives and which may lead to the transformation of this law into an instrument of punishment for those media outlets which are critical of the government stem from the poor independence level of the regulator. The Ambassador of the European Union, Pawel Herczynski, stated: “What is absolutely necessary is the independence of the national regulator. This is the Georgian National Communications Commission. This institution should be strengthened. It should be fully independent. As the European Union, we will continue to work closely to achieve this.” Therefore, the positions of the EU representatives with respect to the aforementioned laws can be assessed as follows: the EU emphasises that the European Union’s directive gives a country the discretion to come up with the necessary steps that are congruent with the context and does not oblige taking this or that step. Obscenity is not part of the Directive and consultation with stakeholders is needed. The adopted draft law is in line with the Directive, although steps should be taken to ensure the independence of the regulatory commission.
The European Union’s directive does not oblige countries to give advantage to one specific mechanism and allows the possibility that countries opt for the best form of regulation in view of the political context – co-regulation or self-regulation. What is more, according to Article 6(a) of the European Union’s Directive, member states may encourage co-regulation and/or self-regulatory mechanisms given the objectives set forth in this article (regulation of hate speech).
According to the section of Article 4(a) of the European Union’s Directive, such decisions should be acceptable to all stakeholders, something which was not the case in our situation. Moreover, the ruling party has not held consultations with civil society whilst broadcasters and NGOs categorically oppose regulation of the issue under such a model.  According to the information that is available to us, relevant Directorates of the EU regularly communicated the importance of the involvement of all actors to the GNCC.
It is also important how the term ‘self-regulation’ is defined by the EU’s legislation. According to Section 14 of the declaratory statement of the European Union’s Directive 2018/1808 (this Directive brought certain amendments to the 2010 Directive), co-regulation provides, in its minimal form, a legal link between self-regulation and the national legislator in accordance with the legal traditions of the Member States. In co-regulation, the regulatory role is shared between stakeholders and the government or the national regulatory authorities or bodies. In addition, according to the research study prepared by the Hans Bredow Institute which is dedicated to the co-regulation practice in the EU, the state leaves the discretionary power to a non-state-regulatory system in the case of self-regulation.
Of note is that the European Union’s Directive indeed indicates the need for the possibility of intervention by the regulator but the specific reservations that precede the possibility of this intervention are important. In particular, the Directive calls on states to encourage self-regulation and co-regulation mechanisms, and allows the regulator to intervene if necessary, only when self-regulation and co-regulation mechanisms fail to achieve the goals. For this, the Directive calls on member states to create specific, quantifiable and measurable criteria, objectives and targets for co-regulatory and self-regulatory mechanisms and to allow the regulator to intervene on behalf of the state to resolve the situation when these targets are not achieved.
Therefore, before the government ensures the independence of the regulator and the creation of effective self-regulation/co-regulation mechanisms as well as before a broadcasters’ code of conduct is improved and stakeholders, most importantly broadcasters, are involved in the process, granting such broad power to the regulator is at the very least not aligned with the spirit of the European Union’s Directive.
 Kutidze, Davit and Malkhaz Rekhviashvili. 2023 “Financially and Content-Damaging Regulations for Broadcasting Media and Their Alternatives.” Tbilisi: Gnomon Wise, 27. https://gnomonwise.org/public/storage/publications/October2023/CK4JxR8CPSYqQWA2Jj2b.pdf
Statement by the Social Justice Centre:https://socialjustice.org.ge/ka/products/sotsialuri-samartlianobis-tsentri-mautsqeblobis-shesakheb-kanonshi-gatarebuli-dachkarebuli-tsvlilebebi-mediis-kontrolis-mometebul-riskebs-kmnis
Statement by the Media Advocacy Coalition:https://mediacoalition.ge/ge/a/405a9c65