Freedom of Expression on the Internet: The Case of Uzbekistan

DOI: 10.1163/092598808X262542© Koninklijke Brill NV, Leiden, 2008

Review of Central and East European Law 33 (2008) 95-134

Freedom of Expression on the Internet: A Case Study of Uzbekistan

Zhanna Kozhamberdiyeva*

AbstractAgainst the framework of international human rights law, this article studies the regulatory approach towards the exercise of the human right to freedom of expression on the Internet in the legal system of the Central Asian state of Uzbekistan. The mechanisms of state censorship of Internet communication for Uzbek citizens and the restrictions that narrow the scope of freedom of expression in the context of the Internet are the issues in focus. The article argues that the Uzbek government, although publicly committed to democ-racy and respect for the rule of law under the Constitution, favors regulation that undermines the human right to freedom of expression on both legal and ideological grounds—namely, by enforcing the legal rules on informa-tion security and the ideological ‘idea of national independence’. The article demonstrates that the absence of legal guarantees of the effective exercise of freedom of expression on the Internet reflects upon the general weakness of Uzbekistan’s domestic system of human rights protection. This system gives absolute priority to state interests in legitimizing restrictions upon human rights. The article concludes that the impairment of the right to freedom of expression is inevitable in Uzbekistan unless the government makes an effort to pay full respect to human rights and implement in practice its obligations under international human rights law.

Keywordsfreedom of expression, information security, internet media,

internet content regulation, Uzbekistan

* The author wishes to thank Prof. Dr. iur. Anne Peters, Dr. iur. Stephan Hördegen, lic. iur. Isabella Pagotto, Dr. iur. Egle Svilpaite, and Cynthia Baer for their helpful comments on earlier drafts. The author expresses her gratitude for generous support of the research for this article from the Van Calker Foundation of the Swiss Institute of Comparative Law and Swiss Federal Commission for Scholarships for Foreign Students.

1 See Reporters sans Frontieres (RSF), “The 15 Enemies of the Internet and other Countries to Watch”, report presented to the World Summit on Information Society, 17 November 2005, as restated in the European Parliament Resolution “On Freedom of Expression on the Internet”, P6_TA(2006)0324, 6 July 2006, para. H.

2 Internet content encompasses “all kinds of ‘information goods’ that are distributed through the Internet and particularly through the World Wide Web”. Thomas Vesting, “The Autonomy of Law and the Formation of Network Standards”, 5(6) German Law Journal (2004), 639-668,

96 Review of Central and East European Law 33 (2008)

1. IntroductionA few states have been called “enemies of the Internet”.1 They “crack down hardest” on this means of communication by censoring Internet ‘content’2 that is legitimate in a democratic society.3 Uzbekistan, a populous Cen-tral Asian country and one of the successor states of the Soviet Union, is listed among those states. This fact is hardly surprising with respect to a country whose government has a dire record in terms of its systematic violation of civil and political rights, including the rights to freedom of opinion, expression and information.4 Notwithstanding the fact that the Internet remains an under-used means of expression due to the lack of ready Internet access for the majority of the Uzbek population, it has been acknowledged as “the last resort of pluralism”.5

Up until 2005, state control of access to Internet content was enabled by means of a monopolization of the Internet access services by the state.6 Subsequent liberalization has not eliminated the problem; blocking and filtering of Internet content has persisted and has recently been intensi-fied.7 The scale of censorship ranges from the websites of international

3 Ibid. 4 See Human Rights Committee (HRC), “Concluding Observations: Uzbekistan”, UN Doc.

CCPR/CO/83/UZB, 26 April 2005; Summary of Cases Transmitted to Governments and Replies Received, Addendum to the Report of the Special Rapporteur, Ambeyi Ligabo, UN Doc. E/CN.4/2005/64/Add.1, 29 March 2005, paras. 972-990. Many reports by NGOs confirm the continued worsening of the human rights situation in Uzbekistan. See, for example, RSF, “World Press Freedom Index 2005: North Korea, Eritrea and Turkmenistan are the World’s ‘Black Holes’ for News”, available at <http://www.rsf.org>. This report ranked Uzbekistan in 155th place in the World Press Freedom Index 2005 out of a total of 167 countries. See, also, Freedom House, “Written Statement to ECOSOC”, UN Doc. E/CN.4/2006/NGO/204, 7 March 2006, 2 and 4.

5 See “Almaty Declaration on Pluralism in the Media and the Internet”, signed 14 October 2005, OSCE FOM.GAL/15/05, 28 October 2005 (hereinafter “Almaty Delcaration”). For more, see Colin Guard, “The Internet Access and Training Program in Central Asia”, in Christian Möller and Arnaud Amouroux (eds.), The Media Freedom Internet Cookbook (OSCE Representative on Freedom of the Media, Vienna, 2004), 203-209, 203, which discusses the barriers to Internet access, such as low levels of computerization and Internet literacy, poverty and the insignificant amount of local online content in the Uzbek language.

6 See Postanovlenie Kabineta Ministrov RU “O sozdanii natsional’noi seti peredachi dannykh i uporiadochenii dostupa k mirovym informatsionnym setiam”, No.52, signed 5 February 1999 (unpublished), available at <http://www.lex.uz> (hereinafter “Resolution on the Establishment of the National Data Communication Network”). See, also, Postanovlenie Kabineta Ministrov RU “O detsentralizatsii dostupa k mezhdunarodnym komputernym setiam”, No.352, signed 10 October 2002, Sobranie zakonodatel’stva RU (2002) No.19, 149 (hereinafter “Resolution on the Decentralization of Access to International Computer Networks”).

7 See Alo Khodjayev, “The Internet Media in Uzbekistan”, in OSCE Representative on Freedom of the Media (ed.), Pluralism in the Media and the Internet (OSCE Representative on Freedom of

Freedom of Expression on the Internet in Uzbekistan 97

and domestic human rights groups to the websites of opposition in exile political parties, which the Uzbek government accuses of promoting ideas of religious extremism, separatism and fundamentalism.8 Independent observers speak of the pressure exercised by the state security service upon national Internet Service Providers (ISPs) and on owners of countless Internet cafes to censor online access.9 However, the Uzbek government strenuously denies involvement in Internet censorship on the grounds of its “limited resources” to do so.10

At the international level, the problem of control of access to the Internet and dissemination of Internet content by the Central Asian states, including Uzbekistan, was acknowledged, with the effect that it was recommended to bring national laws into conformity with international human rights standards.11 Particularly, critical objections were made con-cerning the regulatory framework, which requires, on the one hand, the registration with state authorities of any website with the legal status of a mass media outlet and, on the other hand, the registration of the ‘.uz’ top-level domain names, dependent upon the content distributed by the website in question.12 Still, international experts and legal scholars have hardly paid closer attention to the Uzbek legal concept of information security, which serves to protect the interests of individuals, the public and the state in the information sphere. Also, a particularly sensitive issue of the official state ideology, known as the ‘idea of national independence’, and its impact on the statutory regulation of online expression and access to the Internet falls outside of human rights discourse.

the Media, Vienna, 2006), 143-148, at 144, which states that state control of Internet content has intensified in the aftermath of the violent suppression of the peaceful demonstration in Andijan city on 13 May 2005.

8 Ibid., 145-147. See, also, Omar Sharifov, “Obzor 30 saitov, posveshchennykh Uzbekistanu”, 14 December 2004, available at <http://www.freeuz.org>. See, also, the website at <http://www.shamelist.ru>, which documents incidents on blocking and filtering of Internet content in Central Asian countries. Note, however, that no comprehensive country survey of blocked websites has been undertaken in Uzbekistan yet.

9 See RSF, op.cit. note 1. See, also, Tattu Mambetalieva, “Role of the Internet in the Kyrgyz Re- See, also, Tattu Mambetalieva, “Role of the Internet in the Kyrgyz Re-See, also, Tattu Mambetalieva, “Role of the Internet in the Kyrgyz Re-ee, also, Tattu Mambetalieva, “Role of the Internet in the Kyrgyz Re-Tattu Mambetalieva, “Role of the Internet in the Kyrgyz Re-public”, paper presented at the Third Internet Conference of the OSCE Representative on Freedom of the Media, 17-18 June 2005, Amsterdam, 15.

10 Andrei Kudryashov, “Foreign Minister of Uzbekistan Eljer Ganiyev: We Lack the Capacities to Restrict Access to Internet”, Fergana.ru News Agency, 3 June 2005, available at <http://enews.ferghana.ru>. See, also, Colin Guard, “Observations on Internet Freedom and Development in Eleven Countries of Eurasia”, in OSCE Representative on Freedom of the Media, op.cit. note 7, 133-135, at 134, which states that “[a]ll of the governments that block websites do so unofficially and opaquely”.

11 See the Almaty Declaration. See, also, Joint Declaration of the OSCE Representative on Freedom of the Media and RSF, “On Guaranteeing Media Freedom on the Internet”, 18 June 2005, available at <http://www.osce.org/documents/rfm/2005/06/15239_en.pdf>.

12 See the Almaty Declaration.


The aim of this article is to discuss and critically evaluate the legal obstacles faced in the exercise of the right to freedom of expression in the Uzbek legal order. First, I will discuss recent developments in international human rights law with respect to state obligations to be undertaken in order to guarantee the effective exercise of freedom of expression on the Internet. Secondly, I examine the guarantees and limitations of freedom of expression under the Uzbek legal framework. Third, I highlight the tension between freedom of expression and the legal concept of information secu-rity. I also introduce the reader to the official state ideology and underline what particular bearing it has on the exercise of freedom of expression on the Internet. Finally, I underline the mechanisms of state censorship of Internet content and the role of national Internet service providers in implementing national legislation affecting freedom of expression and information on computer networks.

2. International and Domestic Legal Frameworks for Protection of Freedom of Expression on the Internet

2.1. International Human Rights Framework

2.1.1. Negative State ObligationsProvisions regarding the protection of the right to freedom of expression can be found in several international instruments that create legal and political obligations for the Uzbek government, including the International Covenant on Civil and Political Rights (ICCPR)13 and the OSCE human dimension commitments.14 Article 19 of the ICCPR provides no grounds as to why the right to freedom of expression on the Internet should be less respected than in any other media of one’s choice.15 Article 19(1) of the ICCPR guarantees the right to hold opinions with no exceptions or

13 ICCPR , adopted by UN General Assembly Resolution 2200A (XXI) of 16 December 1966, Treaty Series, Vol. 999, 171. The ICCPR and First Optional Protocol thereto entered into force for Uzbekistan on 28 December 1995 with no reservations.

14 See Arie Bloed, “A New CSCE Human Rights ‘Catalogue’”, in Arie Bloed and Pieter Van Dijk (eds.), The Human Dimension of the Helsinki Process: The Vienna Follow-up Meeting and its Aftermath (Martinus Nijhoff, Leiden, 1991), 54-73, at 63-64, which states that human dimension commit-ments are “aimed at enhancing mutual trust in the implementation of the [OSCE] obligations by the [OSCE] states rather than as a measure which itself aims at guaranteeing human rights”.

15 A state party to the ICCPR has to strictly apply the guarantees of the rights under Art.19, ICCPR to the Internet. See the “Joint Declaration by the UN Special Rapporteur on Free-dom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression”, 21 December 2005. See, also, the annual reports of the UN Special Rapporteur on Freedom of Opinion and Expression, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 45; UN Doc. E/CN.4/2000/63, 18 January 2000, paras. 54-55; and UN Doc. E/CN.4/2002/75, 30 January 2002, para. 88.


restrictions.16 Article 19(2) of the ICCPR guarantees the right to free-dom of expression, which includes freedom to seek, receive and impart information or ideas.17 The scope of protection ascribed to the right to freedom of expression and a “contiguous”18 right to freedom of information under Article 19(2) of the ICCPR is broad. On the one hand, it extends to information and ideas of “all kinds” that are expressed “either orally, in writing or in print, in the form of art, or through any other media of his choice”. On the other hand, it guarantees freedom to receive and impart information across national borders, i.e., “regardless of frontiers”.

The extent of the latter protection is of particular significance with respect to the Internet, given its quality of enabling instantaneous avail-ability of information regardless of frontiers. As the UN Special Rapporteur on Freedom of Opinion and Expression put it, the Internet is a “vehicle for facilitating in practice the free flow of information and ideas that lies at the heart of the right to freedom of expression”.19 The mention of the free flow of information as a core element of the right to freedom of ex-pression is important. The notion of “free flow of information” has been advocated in the UN since 1946 as a key principle of the legal relationship among states in providing for the free entry and movements of foreign correspondence, equal access to international information sources and ensuring a human right to communicate.20 The underlying rationale for the free-flow principle was the reinforcement of democracy through informed public opinion and debate.21 Therefore, to the same extent as this principle 16 HRC, “Freedom of Expression”, General Comment 10 [19], 27 July 1983, in United Nations,

Compilation of General Comments and General Recommendations adopted by UN Treaty Bodies, UN Doc. HRI/GEN/1/Rev.2, 29 March 1996, 11, para 1.

17 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel, Kehl, 2nd ed. 2005), 443 and 445.

18 See UN Special Rapporteur on Freedom of Opinion and Expression, “1998 Annual Report”, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 14.

19 See OSCE Representative on Freedom of the Media, “Recommendations of the OSCE Repre-sentative on Freedom of the Media at the 2004 Amsterdam Internet Conference”, in Möller and Amouroux, op.cit. note 5, 15-31. See, also, UN Special Rapporteur, OSCE Representative and OAS Special Rapporteur, op.cit. note 15.

20 See Achal Mehra, Free Flow of Information: A New Paradigm (Greenwood Press, New York, 1986), 16-23. The right to communicate has never been acknowledged as a new human right under international law, though discussions were renewed during the World Summit on the Information Society. See, for example, Article 19, “Note on the Draft Declaration on the Right to Communicate”, January 2003, available at<http://www.article19.org/pdfs/analysis/hamelink-declaration-the-right-to-communicate.pdf>.

21 Also, the free-flow principle has long been considered to have a peacebuilding character, as well as to be crucial for the maintenance and development of free societies and flourishing cultures. See the 1975 OSCE Conference on Security and Co-Operation in Europe Final Act, “Declaration on Principles Guiding Relations between Participating States”, Principle VII, para. 2, available at <http://www.osce.org/documents/mcs/1975/08/4044_en.pdf>; and the 1990


was important in the context of a ‘new international information order’ and direct satellite broadcasting, it remains an essential requirement in the context of what politicians view as a ‘global information society’—with its ultimate aims of ‘inclusiveness’ for development and elimination of the ‘digital divide’—and the Internet.22

The rights guaranteed in Article 19 of the ICCPR are negative rights in the sense that their core substance is the freedom to not be interfered with by the state, other than in accordance with permissible limitations.23 Article 19(3) of the ICCPR contains the tripartite and cumulative condi-tions for the justified interference with the exercise of the right to freedom of expression. Thus, any restriction requires a proper legal basis; it must be justified on the grounds of respect for the rights or reputation of oth-ers, of national security, of public order or of public health and morals; finally, it must meet the criterion of necessity, which implies the criterion of proportionality, rather than that of ‘necessity in democratic society’, to protect the above-mentioned legitimate interests.24 Ultimately, restric-tions have to be narrowly construed and may not be applied or invoked in a manner that would impair a human right.25

Any restrictions placed either on content disseminated through the Internet or on Internet users as such have to meet the above-mentioned requirements. One example is the extensively discussed issue of the regulation of hate speech, pornography and other ‘harmful’ content.26 As the Human Rights Committee and the former Commission on Human Rights have reaffirmed, the state practice of imposing barriers that delib-erately intend to impede access to, and the use of, the Internet is not in

OSCE Charter of Paris for a New Europe, “Guidelines for the Future, Human Dimension”, available at <http://www.osce.org/documents/mcs/1990/11/4045_en.pdf>. For further details, see Dimitrijevic Vojin, “Freedom of Expression in the Framework of the CSCE”, in Bloed and Van Dijk, op.cit. note 14, 143-161, at 156-157.

22 See the “Geneva Declaration of Principles”, adopted at the World Summit on the Information Society, 12 December 2003, WSIS-03/GENEVA/DOC/4-E, para. 17, available at <http://www.itu.int/wsis/docs/geneva/official/dop.html>; and the “Tunis Commitment”, adopted at the World Summit on the Information Society, 18 November 2005, WSIS-05/TUNIS/DOC/7, para. 4, available at <http://www.itu.int/wsis/docs2/tunis/off/7.html>. See, generally, Seán Ó Siochrú, “Will the Real WSIS Please Stand Up? The Historic Encounter of the ‘Information Society’ and the ‘Communication Society’”, 66 Gazette (2004), 203-224, at 203 and 219-220.

23 See Nowak, op.cit. note 17, 439.24 See ibid., 458-461.25 HRC, “The Nature of the General Legal Obligation Imposed on States Parties to the Cov-

enant”, General Comment No.31 [80], 29 March 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 6.

26 See, for example, Eric Barendt, Freedom of Speech (Oxford University Press, Oxford, 2nd ed. 2005), 458-463.


conformity with Article 19(3) of the ICCPR.27 Similarly, the OSCE Repre-sentative on Freedom of the Media called upon the OSCE participating states not to filter and rate Internet content pursuant to the Amsterdam Recommendations, i.e., the non-binding but legally relevant policy recom-mendations for national regulation with respect to the exercise of free expression in the context of the Internet.28 Accordingly, a final decision about what Internet content to filter has to be made by end users. Also, as might become relevant in the context of human rights clauses in the Uzbekistan-EU Partnership and Cooperation Agreement (PCA),29 the European Parliament has called upon the Council and the Commission to take into account the need for unrestricted Internet access for citizens of the countries that are eligible for its assistance programs.30

2.1.2. Positive State ObligationsIt is also important to mention that the advent of the Internet as a medium of communication may allow individuals to claim a more wide-ranging set of positive obligations vis-à-vis the state than is currently associated with the right to freedom of expression. Pursuant to Article 2 of the ICCPR, individuals may rely on ICCPR rights to infer a subjective entitlement to positive governmental action that would ensure human rights to the greatest extent possible and protect against interference by private ac-tors.31 Accordingly, first of all, there is a state duty to undertake effective measures to prevent and prosecute intimidation of media personnel and political opponents,32 which could eventually include cyber-dissidents. 27 HRC, “Concluding Observations: Syrian Arab Republic”, UN Doc. CCPR/CO/84/SYR, 9

August 2005, para. 13; UN Commission on Human Rights Resolution 2004/42 of 19 April 2004, “The Right to Freedom of Opinion and Expression”, 55th Meeting, UN Doc. E/2004/23-E/CN.4/2004/127, 145-149, para. 4(n)(iii).

28 See OSCE Representative on Freedom of the Media, op.cit. note 19, 19. 29 The agreement provides a framework for wide-ranging cooperation in the areas of political

dialogue, trade, investment, and economic, legislative, and cultural cooperation. The EU has already reacted by partially suspending the PCA (including adopting economic measures, such as an arms embargo and a year-long diplomatic sanction) in reaction to human rights violations and the fact that the very basis of the democratic system in Uzbekistan was being called into question. See European Council, Common Position 2005/792/CFSP of 14 November Concern-ing Restrictive Measures against Uzbekistan, 16 November 2005, OJ L 299/72-74, para. 5. The EU renewed sanctions against Uzbekistan on 13 November 2006.

30 European Parliament, op.cit. note 1.31 See HRC, op.cit. note 25, paras. 7 and 14. See, generally, Nowak, op.cit. note 17, 37-41.32 See HRC, “Concluding Observations, Hong Kong Special Administrative Region”, UN Doc.

CCPR/C/HKG/CO/2, 21 April 2006, para. 13. See, also, “International Mechanisms for Pro-moting Freedom of Expression”, Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS, Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Free-dom of Expression, 19 December 2006, available at <http://www.article19.org/pdfs/standards/four-mandates-dec-2006.pdf>.


Secondly, it is a state duty to develop a national legal framework that safeguards media pluralism. It seems doubtful that the state should stop bearing the same duty in respect of the Internet due to the claim that it renders concerns with access to a wide variety of views and information unnecessary.33 Thirdly, it is still debatable whether the effective exercise of the right to seek information implies a positive obligation upon the state to ensure access to information that goes above and beyond information that is generally accessible.

Yet, the development of the Internet has led the UN to recommend adoption of national e-government strategies that would facilitate trans-parency, accountability and efficiency in public administration.34 This step demonstrates the legal significance of the recognition of the public’s ‘right to know’ for democratic governance.35 At the same time, a more involved question in the context of the Internet remains as to whether freedom to seek information requires private actors, such as Internet information service providers, to secure provision of diverse sources of information. Lastly, the UN has emphasized the importance for the state to devote, proportional to the level of its social and economic development, adequate resources to the improvement of “universal, ubiquitous, equitable and affordable” access to information and communication technology (ICT) infrastructure and services, including via public, community-based access points, as well as broadband technologies.36

The above-mentioned positive state obligations are one example that demonstrates that the tasks of the state in the contemporary information society—the right to freedom of expression being a prerequisite—show a tendency for substantive amplification rather than decrease. Another 33 Barendt, op.cit. note 26, 453-454. See, also, “Geneva Plan of Action”, adopted at the World Sum-

mit on the Information Society, 12 December 2003, WSIS-03/Geneva/DOC/5-E, para. 24(b), available at <http://www.itu.int/wsis/docs/geneva/official/poa.html>; UN General Assembly Resolution 60/109 of 8 December 2005, “Information in the Service of Humanity”, UN Doc. A/Res/60/109/A, 18 January 2006. See, also, Vesting, op.cit. note 2, 663-664, which states that the obligations of openness (diversity) and interoperability (pluralism) common to broadcasting law should be adopted as the principle public interest for the regulation of Internet technical network standards.

34 Geneva Plan of Action, paras. 13(g) and 15.35 Article 19, “The Public’s Right to Know: Principles on Freedom of Information Legislation”,

Global Campaign for Free Expression, International Standards Series, June 1999. See, gener-ally, Toby Mendels, Freedom of Information: A Comparative Legal Survey (UNESCO, New Delhi, 2003), 1-4.

36 See UN Special Rapporteur, OSCE Representative and OAS Special Rapporteur, op.cit. note 15. See, also, the ‘soft law’ generated by the WSIS in the Geneva Declaration of Principles, paras. 21-28. See, further, Geneva Plan of Action, paras. 9-10, as reaffirmed in the Tunis Commitment, paras. 9, 10, 15, 17 and 19, and elaborated in the “Tunis Agenda for the Information Society”, adopted at the World Summit of the Information Society, 18 November 2005, WSIS-05/TUNIS/DOC/6(Rev. 1)-E, paras. 23, 26, 27, 50 and 90.


example was demonstrated during the World Summit on the Informa-tion Society (WSIS) and its follow-ups, i.e., the ‘multi-stakeholder policy dialogues’37 under the framework of the Working Group on Internet Governance (WGIG) and the first meeting of the Internet Governance Forum (IGF).38 Thus, it seems that the information society requires a state to “ensure the stability, security and continuity of the Internet”.39 Particularly, some national governments, as is being facilitated by the UN, are willing to view Internet infrastructure as the object of international legal regulation. Though they still need to be analyzed above and beyond a working definition,40 Internet governance arrangements seem likely to gradually replace the current unilateral approach to the oversight of the Internet in the future.41 The legitimacy of governing the Internet by, or on behalf of, the plurality of national governments is yet to be addressed. Importantly, one should not forget that the content of every debate about Internet governance includes a debate about speech governance.42 Therefore, the substantive legitimacy of Internet governance is depen-dent on how it safeguards human rights, primarily the right to freedom of expression.43 37 See Wolfgang Kleinwächter, “Beyond ICANN VC ITU? How WSIS Tries to Enter the New

Territory of Internet Governance”, 66(3-4) Gazette (2004), 233-251, at 248-249, which refers to the multi-stakeholder approach to Internet governance as a “new diplomacy of the 21st century”.

38 The first meeting of the IGF took place from 30 October to 2 November 2006, Athens, Greece. For the terms of reference of the IGF, see Tunis Agenda for the Information Society, para. 72. Currently, the IGF is “definitely not an executive process, it is not even a negotiating process”. Nitin Desai, quoted in UN, “Inclusive Preparation Process Backed for UN-created Internet Governance Forum”, UN News Centre, 13 February 2007.

39 See Tunis Agenda for the Information Society, para. 68. See, also, WGIG, “Final Report”, June 2006, paras. 69-70, available at <http://www.wgig.org/docs/WGIGREPORT.pdf>.

40 See the Internet governance definition in ibid., para. 10. See, also, for example, the transcript of the ICANN Forum on the Working Group on Internet Governance Report, 13 July 2005, available at <http://icann.org/meetings/luxembourg/captioning-wsis-13jul05.htm>, which underlines the general uncertainty surrounding the development of the Internet governance model.

41 See US National Telecommunications and Information Administration (NTIA), “US Principles on the Internet’s Domain Name and Addressing System”, available at <http://www.ntia.doc.gov/ntiahome/domainname/USDNSprinciples_06302005.htm>, which restates that the US government retains its control over the root server.

42 Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World (Oxford University Press, Oxford, 2006), 150.

43 The WSIS-elaborated ‘overarching prerequisites’ of legitimacy of Internet governance, however, do not tie legitimacy to human rights. See WGIG, op.cit. note 39, para. 74. These prerequisites rather reaffirm that Internet governance is, as Professor Zittrain puts it, “a facet of interna-tional development policy”. Professor Zittrain argues for the “maintenance of generativity” as the most important issue in the context of Internet governance. Jonathan Zittrain, “The Generative Internet”, 119 Harvard Law Review (2006), 1974-2040, at 2033.


2.1.3. Exercise of State Authority to Regulate the Dissemination of Internet Content

I now turn to emphasizing that the greater obstacles to the exercise of the right to freedom of expression on the Internet are brought to bear on individuals by national states. The challenges from the perspective of the state’s monopoly of authority to regulate the dissemination of infor-mation on its national territory by coercive enforcement of national laws remain chief with respect to the Internet, which has the capacity to give practical effect to the ideal of the free flow of information.44 Conflict between the principle of free flow of information and the principle of state sovereignty remains inevitable. The effective government’s control of access to Internet content in ‘the Chinas of the world’—countries that are striving to firewall their e-borders and to create closed national intranets—is the most forceful practical demonstration.45 It proves that the reinforcement of the notion of territorial sovereignty in the context of the Internet vitiates the earlier, utopian normative claim that the Internet provides for ‘cyberspace’ sui generis, immune from the state’s exercise of regulatory power.46

Two issues that are particularly indicative of the effective exercise of state authority to regulate the dissemination of Internet content deserve further discussion. First, the issue of so-called ‘corporate complicity in Internet censorship’ demonstrates the effectiveness of state control of Internet content not only through local intermediaries47 but those of foreign origin.48 Secondly, there is the issue of information security. 44 Goldsmith and Wu, op.cit. note 42, 104, 184. Compare, however, H. Brian Holland, “The Failure

of the Rule of Law in Cyberspace? Reorienting the Normative Debate on Borders and Ter-ritorial Sovereignty”, 24 John Marshall Journal of Computer and Information Law (2005), 1-33, at 12; and Milton L. Mueller, “The New Cyber-Conservatism: Goldsmith/Wu and the Premature Triumphalism of the Territorial Nation-States”, available at <http://www.internetgovernance.org/pdf/MM-goldsmithWu.pdf>.

45 Goldsmith and Wu, op.cit. note 42, 103-104, 149 and 184. See, also, for example, Human Rights Watch, “False Freedom: Online Censorship in the Middle East and North Africa”, Human Rights Watch Report 17(10)(E), November 2005, available at <http://hrw.org/reports/2005/mena1105/>.

46 See John Berry Barlow, “Declaration of Cyberspace Independence”, 1999, available at <http://www.ibiblio.org/nnetchange/hotstuff/barlow.html>; David R. Johnson and David Post, “Law and Borders—The Rise of Law in Cyberspace”, 48(5) Stanford Law Review (1996), 1367-1402, at 1375; compare, however, Jack L. Goldsmith, “Against Cyberanarchy”, 65(4) University of Chicago Law Review (1998), 1199-1250.

47 See, generally, Jonathan L. Zittrain, “Internet Point of Control”, 44 Boston College Law Review (2003), 653-687, at 672 et seq.

48 See Human Rights Watch, “‘Race to the Bottom’: Corporate Complicity in Chinese Internet Censorship”, Human Rights Watch Report 18(8)(C), August 2006, available at <http://www.hrw.org/reports/2006/china0806/>. Compare, however, Philip Alston, “The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-state Actors?”, in id. (ed.),


The first issue involves the problem of the acquiescence to censorship regulations in non-democratic states by non-state actors, i.e., multinational corporations that provide Internet information services and produce commercial filtering software. While these private entities are required to abide by territorial law in order to provide their services abroad, they are urged to go beyond the national legal requirements that are inconsistent with international human rights standards. In light of the complexity of applying international human rights standards to private entities,49 the latter are called upon to develop unilateral codes of conduct that would provide a basis for ethical responsibility in this sphere.50 Thereby, they are encouraged to “make an effort to ensure that they respect the rights of their clients to use the Internet without interference” by national governments.51 In particular, multinational corporations are called upon: (1) not to self-censor access to information they provide and, thereby, not to indirectly interfere with freedom of expression; (2) not to disclose the identity of individuals who use the Internet services they provide; (3) to provide opportunity for secure, including encoded, electronic communica-tions for their users; and (4) not to supply commercial filtering software to those national governments that would use it to reinforce state censorship and surveillance of the Internet.52

Likewise, there is an alternative initiative that is aimed at the promo-tion of ‘socially responsible’ investment choices with respect to Internet sector companies willing to conform to international freedom of expression standards.53 Furthermore, in the calls on corporations to respect freedom

Non-state Actors and Human Rights (Oxford University Press, Oxford, 2005), 1-36, at 14, which inquires about the limits of the concepts of complicity employed by Human Rights Watch.

49 The ICCPR does not generate the responsibility to respect human rights for non-state actors. See HRC, op.cit. note 25, para. 8. International human rights law is ambiguous as to whether non-state actors have binding human rights obligations: See Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford University Press, Oxford, 2006), 328-329. US corpora-tions cannot be made legally liable for breaching the right to freedom of expression in third countries. In the context of transnational human rights litigation against companies, freedom of speech has been found by US courts not to activate §1350 of the Alien Tort Claims Act, signed 24 September 1789, 28 USC (1982) because violation of this right does not breach the law of nations. See, further, Sarah Joseph, Corporations and Transnational Human Rights Litigation (Hart Publishing, Oxford, 2004), 27.

50 Ethical responsibility requires companies to act with fairness, equity and impartiality, as is expected by society. See Archie B. Carroll, “The Pyramid of Corporate Social Responsibility: Toward the Moral Management of Organizational Stakeholders”, 34(4) Business Horizons (1991), 39-48, at 40.

51 See UN Special Rapporteur, OSCE Representative and OAS Special Rapporteur, op.cit. note 15.

52 See Human Rights Watch, op.cit. note 48, 85; and European Parliament, op.cit. note 1. See, also, OpenNet Initiative, “Internet Filtering in Burma in 2005: a Country Study”, OpenNet Initiative Report, October 2005, 3, 5-6, available at <http://www.opennetinitiative.net/burma>.

53 See RSF, “Joint Investor Statement on Freedom of Expression and the Internet”, 22 December 2005, available at <http://www.rsf.org/fonds-investissement-en.php3>. See, generally, Joseph,


of expression, there are controversial recommendations for them to work together to “resist” demands to control Internet content and use on behalf of national governments.54 The underlying assumption is that these giant foreign search engines and software providers increasingly determine the accessibility of all the available information and, thereby, may wield im-mense influence that national states should not ignore.55 Yet, while these well-recognized strategies aimed at lessening the instances of human rights abuses by transnational corporations lack legal enforcement, the breadth of the social responsibilities are to be determined by multinational corpora-tions themselves in light of their legitimate private economic interests.56 In the end, the problem of obligatory filtering of Internet content by foreign information service providers may be approached from the perspective of the binding legal framework of WTO/GATS law.57

The second issue that indicates, though not at first glance, the effec-tive exercise of state authority to regulate the dissemination of Internet content is one of information security. As was pronounced at the WSIS, it is important to build confidence and security in the use of ICTs by ad-dressing “information security” and “network security” issues.58 No special weight was given in the WSIS final documents to defining the two latter notions, however. These notions have a tendency to be used more or less interchangeably, provided: on the one hand, that the threats associated

op.cit. note 49, 7 and 107; and Ralph G. Steinhardt, “Corporate Responsibility and the Inter-national Law of Human Rights: The New Lex Mercatoria”, in Alston, op.cit. note 48, 184-185, which states that the profitability and the effectiveness of socially-responsible investment are inevitably difficult to measure.

54 See UN Special Rapporteur, OSCE Representative and OAS Special Rapporteur, op.cit. note 15. See, also, Human Rights Watch, op.cit. note 48, 85. The different privacy interests at stake notwithstanding, an instance of ‘resistance’ to governmental intervention with provision of information services is demonstrated by United States District Court for the Northern District of California, San Jose Division, Gonzales v. Google, Inc., “Order Granting in Part and Denying in Part Motion to Compel Compliance with Subpoena Duces Tecum”, CV 06-8006MISC JW, available at <http://docs.justia.com/cases/federal/district-courts/california/candce/5:2006mc80006/175448/31/>.

55 During the IGF, a related debate revolved around voluntarily taking on corporate ‘massive bargaining power’ or ‘joint persuasive power’ as the leverage necessary to secure unrestricted provision of Internet services. See the “Openness” Session Transcripts from the UN, 31 October 2006, available at <http://www.intgovforum.org/IGF-Panel2-311006am.txt>.

56 The general corporate position demonstrated that non-state actors not only enjoy their con-tractual freedom but also that competition law is highly relevant in constraining their efforts to realize the non-commercial aims of protecting the rights of free expression of citizens. See ibid. Note that Google Inc., Yahoo! Inc., the Microsoft Corporation and Cisco Systems have joined the UN Global Compact; see <http://www.unglobalcompact.org>.

57 See Tim Wu, “The World Trade Law of Censorship and Internet Filtering”, Social Science Research Electronic Paper Collection, 23-29, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=882459>.

58 Geneva Declaration of Principles, para. 35; Geneva Plan of Action, para. 12.


with the use of ICTs are considered to be equally detrimental to both types of security59 and, on the other hand, that they are considered to be equivalent both mutually with the more general term ‘cyber-security’. However, depending on the notion in use, there might be two separate issues involved in understanding the important legal consequences that the task of providing for security governance entails, primarily for the state alongside other stakeholders.60

Firstly, information security objectives may be seen as a part of the Internet governance issue.61 It may require the state to exercise its regulatory authority upon ISPs and technology providers to guarantee Internet end users the provision of technological security measures against such “disruption cyber-crimes” as viruses, spam, denial of service attacks, etc.62 It may also require the state to provide for legal liability in instances of “access cyber-crimes”, such as misuse of information technol-ogy for criminal and terrorist purposes, and other potential threats.63 In both instances, it would be legitimate for the state to protect its “critical information infrastructures”64 against those threats. Importantly, the processes of setting cyber-security standards and implementation of the protection measures against cyber attacks have to provide for account-ability and transparency as well as to ensure against violation of freedom of expression, confidentiality of personal data and privacy of electronic communications.65

Secondly, information security objectives might go beyond those of network security if considered in the context of international security. A 59 The same holds true for discussions on the same subject matter within the IFG framework;

see the “Security” Session Transcripts from the UN, 31 October 2006, available at <http://www.intgovforum.org/IGF-Panel3-311006.txt>.

60 All stakeholders “are responsible for the security of information systems and networks in a manner appropriate to their individual roles”. See ibid., Annex, para. b.

61 WGIG, op.cit. note 39, paras. 12 and 13(b).62 See Goldsmith and Wu, op.cit. note 42, 165; and Zittrain, op.cit. note 47, 2037-2039.63 See Goldsmith and Wu, op.cit. note 42, 165. Geneva Declaration of Principles, paras. 36-37; and

Geneva Plan of Action, para. 12. See, generally, Zittrain, op.cit. note 47, 2037-2039.64 This can be seen as a component of both the national security and critical infrastructure. For

definition and further discussion, see Dan Assaf, “Conceptualizing the Use of Public–Private Partnerships as a Governing Mechanism in Critical Information Infrastructure Protection”, paper presented at the Conference on Non-State Actors as Standard Setters: The Erosion of the Public-Private Divide, 8-9 February 2007, Basel, Switzerland, 1-4 (on file with the author).

65 See, generally, ibid., 7-9. See, also, UN General Assembly Resolution 57/239 of 20 December 2002, “Creation of a Global Culture of Cybersecurity”, UN Doc. A/Res/57/239, 31 January 2003, Annex, para. e; and WGIG, op.cit. note 39, para. 81. However, only the right to privacy as a focal human right for security governance was considered during the discussion on information/network security at the IGF. See the “Security” Session Transcripts from the UN, op.cit. note 59.


reference, in a WSIS final document, to the activities of the UN to “pre-vent the potential use of ICTs for purposes that are inconsistent with the objectives of maintaining international stability and security, and [which] may adversely affect the integrity of the infrastructure within States, to the detriment of their security” is indicative in this regard.66 The reference was made with respect to an ongoing study by the First Committee of the UN General Assembly that aims at elaborating a definition of “basic notions related to information security, including unauthorized interfer-ence with or misuse of information and telecommunications systems and information resources”.67 As of yet, no consensus either on the content of the notion of information security or what is considered to be a threat to information security has been achieved among UN member states.68 As a consequence, it is premature to define the scope of the state obliga-tion to protect information security under international law. At the same time, however, a detailed analysis of the Uzbek regulatory framework on information security and its effect on the exercise of the right to freedom of expression will demonstrate that the notion of information security can serve as a very effective tool, which contributes to the increasingly “bordered” nature of the Internet.

2.2. The Uzbek Constitutional Framework for Protection of Freedom of Expression

The Constitution of the Republic of Uzbekistan of 1992 declares the country to be a democratic republic.69 According to Article 29 of the Constitution, everyone is guaranteed freedom of thought, speech and convictions. Moreover, everyone is guaranteed the right to seek, receive and disseminate any information, except that which is directed against the existing constitutional order and in some other instances specified by law.

There is only a very little legal doctrine available in Uzbekistan con-cerning the rights to freedom of expression and information. The official 66 Geneva Declaration of Principles, para. 36.67 UN General Assembly Resolution 53/70 of 4 December 1998, “Developments in the Field of

Information and Telecommunications in the Context of International Security”, UN Doc. A/Res/53/70, 4 January 1999, para. 2(b).

68 See Andrei Krutskikh, Chairman of the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, Speech, Official Records of the UN General Assembly First Committee, 13th meeting, 17 October 2005, UN Doc. A/C.1/60/PV.13. The UN Secretary-General is requested to re-assess the subject matter in 2009. See Russian Federation, “Revised Draft Resolution”, UN Doc. A/C.1/53/L.17/Rev.1, 2 November 1998.

69 Art.1, “Konstitutsiia Respubliki Uzbekistan”, proclaimed 8 December 1992, Vedomosti Verkhovnogo Soveta RU (1994) No.1, 1 (hereinafter “Consitution of the Republic of Uzbekistan”).


commentary to the Constitution construes freedom of expression as the liberty to speak openly on socio-political and public issues and to engage in political debate individually or through political association.70 Thus, freedom of expression is viewed as a facilitating tool for the political process and public debate. Furthermore, the right to seek, receive and disseminate information protects the interests of recipients in regard to access to information from generally-accessible sources. In addition, Ar-ticle 30 of the Constitution confers the right to access government-held information. Accordingly, however, the state authorities are obliged to provide information affecting the rights and legal interests of individuals only if a request has been made to the responsible state authority.71

Article 67 of the Constitution guarantees the freedom of the mass media. It provides that “the mass media shall be free and act in accordance with the law”. It also provides that the mass media shall bear responsibility in a prescribed manner for the trustworthiness of the information they dis-seminate. Uzbek scholars have interpreted this constitutional norm as one that “underlines the deeply democratic character of the Constitution”.72 Indeed, a free press, as the objective purpose of the Constitution, is a fun-damental manifestation of democratic freedom. Such a view is especially valuable given the fact that the 1977 Constitution of the Soviet Union, which had been applied in the Uzbek Soviet Socialist Republic until its independence, subjected freedom of the press to the socialist or Soviet tradition of human rights.73

Contrary to the implicit language of the constitutional provision on the freedom of the press discerned by the Uzbek scholars, in my opinion, the explicit language of the text does not actualize the fundamental value of an independent, pluralistic press. First of all, the wording of the first sentence of the constitutional norm in Article 67 of the Constitution does not necessarily impose an obligation upon the state to ensure the freedom of the press. It provides minimum legal guarantees to the press by merely stating that the freedom of expression of the mass media is protected to the extent to which it is not restricted by law. A particularly striking confirmation of the above statement is the fact that, due to its latest amendments, the Law on Mass Media no longer reaffirms the con-

70 A. Iakubov, “Commentary on Article 29 of the Constitution”, in Shavkat Zakarievich Urazaev (ed.), Kommentarii k Konstitutsii Respubliki Uzbekistan (Uzbekiston, Tashkent, 2001), 191.

71 Z.S. Zaripov, “Commentary on Article 30 of the Constitution”, in ibid., 203.72 M.J. Kerzhner, “Commentary on Article 67 of the Constitution”, in ibid., 333-334.73 For discussion on freedom of speech and of the press under the 1977 USSR Constitution, see

Michiel Elst, Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, in William B. Simons (ed.), Law in Eastern Europe, No.53 (Martinus Nijhoff, Leiden, Boston, 2005), 45-47.


stitutional protection of the mass media.74 Article 5 of the Law on Mass Media merely states that the mass media has to act in accordance with the current Law and “other legislative acts”.

Secondly, making the mass media responsible for the trustworthiness of the information it circulates is a worrisome constitutional manifesta-tion because it introduces a potential legal tool to stifle a broad range of legitimate speech.75 However, Uzbek scholars understand the constitutional requirement of trustworthiness as an important legal factor that “prevents and precludes” the dissemination of information that is “known to be false or not otherwise objective”.76 Still, there is no interpretation provided on the objective behind the enactment of the ‘false news’ provision in the Constitution.

Finally, Article 67 of the Constitution states that censorship is im-permissible.77 The legislation defines censorship as consisting of restraints imposed during the pre-publication phase.78 Such a definition fails to cover any other possible form of prior restraint, such as, for example, the arbitrary search for and seizure of publications that the state authorities would consider ‘objectionable’ or the blocking or filtering of Internet content by state authorities and private actors.

It is difficult to comment on the authoritative interpretation of the scope of the constitutional protection of the rights to freedom of speech, information and the mass media by the Constitutional Court and the Supreme Court. On the one hand, the Constitutional Court, to which—pursuant to Article 109 of the Constitution—laws and executive 74 Art.5, Zakon RU “O sredstvakh massovoi informatsii”, signed 26 December 1997, as amended

by Law No.ЗРУ-78, signed 15 January 2007, Narodnoe slovo (16 January 2007) No.11-12, 4134-4135 (hereinafter “Law on Mass Media”).

75 See HRC, “Annual General Assembly Report”, UN Doc. A/50/40, 3 October 1995, para. 89; HRC, “Concluding Observations: Armenia”, UN Doc. CCPR/C/79/Add.100, 19 November 1998, para. 20.

76 Kerzhner, op.cit. note 72, 338.77 Prior restraints on press articles were widely imposed by the Chief Inspection Office for the

Protection of State Secrets in the Press up until its official liquidation in May 2002. See OSCE Representative on Freedom of the Media, “Report on the Media Situation in Uzbekistan”, in id. (ed.), The Media Situation in Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan: Five Country Reports (OSCE Representative on Freedom of the Media, Vienna, 2002), 105-130, at 120. See, also, Nadezhda Stepanova, “Libel Laws in Uzbekistan: Legal Norms and their Practical Implementation”, in OSCE Representative on Freedom of the Media (ed.), 21st Cen-tury Challenges for the Media in Central Asia: Dealing with Libel and Freedom of Information (OSCE Representative on Freedom of the Media, Vienna, 2005), 101-108, at 106-107, which details the facts of ‘telephone’ censorship and self-censorship among journalists.

78 See Art.7, Zakon RU “O zaschite professional’noi deiatel’nosti zhurnalista”, No.402-I, signed 24 April 1997, Vedomosti Oliy Majlisa RU (1997) No.4-5, 110 (hereinafter “Law on Protection of the Professional Activities of Journalists”), for the definition of censorship as “the right to demand a journalist to seek prior approval of the communications and materials, as well as to demand alterations introduced to text or to withdraw materials in full and communication indented for print (broadcast)”.


legal acts may be referred before enactment for a judgment on their con-stitutionality and which provides the interpretation of the norms of the Constitution and national laws, has not had an opportunity to approach the issues concerning the right to freedom of expression. On the other hand, not least due to the broader problem of a lack of transparency in the administration of justice in Uzbekistan, no data is available on cases in which individuals have claimed a violation of their right to freedom of expression in order to analyze the practice of adjudication of freedom of expression issues by the Supreme Court that is the highest organ of judicial authority.79

2.3. Effect of International Human Rights Law in the Uzbek Legal SystemIn order to appreciate the extent to which the international human rights standards on freedom of expression apply in Uzbekistan, it will be use-ful to sketch the relationship between the international and Uzbek legal systems.

Currently, the Constitution only recognizes the status of customary international law in domestic law. The Preamble to the Constitution de-clares “the priority of the generally recognized norms of international law”. Article 17 of the Constitution, in turn, construes the generally recognized norms of international law into constitutional principles of state foreign policy. It is, however, controversial whether “the generally recognized norms of international law”, i.e., the general principles of international law and norms of customary international law, may be of value for the effec-tive constitutional protection of human rights. It can become impossible for individuals to claim violation of constitutional rights on the basis of these sources of international law due to the lack of a precise definition of their substance and mode of implementation, if not with exception to the rules of ius cogens.80 For this reason, the role of the national courts is essential for ascertaining the content of customary international law.

At the same time, no constitutional clause recognizes the legal status of international treaty law in the Uzbek legal order. The confusion and practical difficulties it creates around resolving conflicts between a treaty norm and a national legislative norm urged some Uzbek scholars to pro-pose constitutional amendments favoring a higher status of the former.81

79 In Uzbekistan, no law mandates the publication of the Supreme Court judgements for public access. See Stepanova, op.cit. 77, 103.

80 See, generally, George Ginsburgs, From Soviet to Russian International Law: Studies in Continuity and Change, in William B. Simons (ed.), Law in Eastern Europe, No.48 (Kluwer Law International, Leiden, 1998), 69-73.

81 Bakhodir I. Ismailov, Mezhdunarodnye standarty v oblasti lichnykh prav i svobod cheloveka i natsional’noe zakonodatel’stvo Respubliki Uzbekistan: problemy vzaimodeistviia i implementatsii (Center


Currently, Article 15 of the Constitution establishes the rule of “absolute supremacy of the Constitution and laws of the Republic of Uzbekistan”

and seems to ascertain the national legal system in its autonomous capac-ity from international law.82 However, treaty norms have internal effect as a matter of international legal obligation. As an Uzbek legal scholar has noted, ratified international treaties have “factual supremacy” as a result of the functional interpretation of the legislative body’s intent “not to create a situation for violation of the treaty obligations by the state”.83 Under Uzbek legislation, treaty norms may supersede domestic regulation basi-cally in two instances. Firstly, higher status for treaty norms is explicitly recognized by a standard “conflict of laws” clause that is included, although with no observable consistency, in domestic laws.84 Secondly, the specific category of treaties is explicitly recognized in legislation as self-executing and, therefore, directly applicable by the national courts; the self-executing status of human rights treaties is not recognized.85

The issue of direct application and invocability of ratified treaty norms in the legal system of Uzbekistan challenges further research by Uzbek legal scholars. Some maintain that the ratified treaty norms au-tomatically form a part of the domestic legal system and that national judicial officials have to accept their direct applicability.86 However, this view in favor of the incorporation doctrine is open to question. Presently, the Oliy Majlis (parliament) does not give ratified treaties the status of ordinary legislation by adoption of implementing legislative acts. The Oliy

on Legal Awareness of the Tashkent State Law Institute, Tashkent, 2000), ‘Conclusions’, Sec-tion II, para. 1.1.

82 The legal language on the simultaneous “supremacy of the Constitution and laws” should be understood as denoting the principle of the rule of law/legality. As Art.15 of the Constitution further states: “The government, its organs, officials, social associations, and citizens act in accordance with the Constitution and laws.”

83 See Ismailov, op.cit. note 81, 45.84 Norms of a renvoi nature provide for the standard reading that: “[i]f other rules have been

established by an international treaty of the Republic of Uzbekistan than those which are con-tained under this law, the rules of [the] international treaty shall be applied.” It is difficult to affirmatively say that renvoi norms constitute a general maxim on the priority of international treaty law due to no observable consistency in their inclusion in Uzbek legislation. See Ilias Bantekas, “International and Uzbek Law: The Doctrines of Transformation, Incorporation and Self-Executing Treaties”, in id. (ed.), The Law and Legal System of Uzbekistan (Juris Publishing, New York, 2005), 1-20, at 9-11. Compare the discussion on renvoi norms under Soviet law in Ginsburgs, op.cit. note 80, 2-3.

85 See Bantekas, ibid., at 14. 86 See Dildora Uldasheva, “K voprosu ob implementatsii mezhdunarodnykh norm po pravam

cheloveka v zakonodatel’stvo Respubliki Uzbekistan” 25(1) Obshestvennoe Mnenie. Prava Cheloveka (2004), 33-36, at 33 and 35.


Majlis approves the ratified treaties by adoption of a resolution instead.87 Uzbek scholars generally argue that this practice has to be abolished in favor of a legislative act setting forth the timeframe and the means of transformation of treaty norms into the domestic legal order.88 Further constraints to the direct application of treaty norms may arise from the fact that there is no system of judicial review of legislative acts and other legal norms as to their conformity with treaty obligations either by the Supreme Court or by the Constitutional Court.89 Currently, according to Article 109(1) of the Constitution, the Constitutional Court has the authority to decide only in cases of a conflict between the Constitution and “inter-state treaties and other documents”. In the end, the practice of considering treaty norms as a source of law in a particular case before the judicial and administrative bodies has yet to emerge.90

3. Limitations on Freedom of Expression and Access to Internet Content in Uzbekistan

3.1. Legitimate Objectives of Human Rights Limitations under the ConstitutionThe rights to freedom of expression and mass media freedom are not absolute but, rather, subject to explicit limitations as provided for in Ar-ticles 29 and 67 of the Constitution. First, the right to seek, receive and disseminate any information can be restricted in cases where information is directed against the existing constitutional order and in some other in-stances specified by law. Secondly, the law may restrict freedom of opinion

87 See Art.16, Zakon RU “O mezhdunarodnykh dogovorakh Respubliki Uzbekistan”, No.172-I, signed 22 December 1995, Vedomosti Oliy Majlisa RU (1995) No.12, 262. (hereinafter “Law on International Treaties of the Republic of Uzbekistan”).

88 See Erkin Kh. Khalilov, Vysshii zakonodatel ’nyi organ Respubliki Uzbekistan: ot formal’nogo predstavitel’stva do real’nogo parlamentarizma (Uzbekiston, Tashkent, 2001), 240; and Ismailov, op.cit. note 81. See, however, Bantekas, op.cit. note 84, 6-7 and 19, who argues that: “[i]t is not clear whether Article 78(21) [of the Constitution] also creates an inherent right to subsequently adopt implementing legislation.” By taking into account Art.78(21) of the Constitution, which grants the parliament the authority to ratify international treaties, he does not interpret the powers of the parliament in light of Art.78 of the Constitution as a whole. Thus, according to Art.78(1) and (2) of the Constitution, the Oliy Majlis has the exclusive authority to adopt and amend the Constitution and legislation.

89 See Bantekas, op.cit. note 84, 9. 90 See “Follow-up Response by State Party to the HRC’s Concluding Observations: Uzbekistan”,

UN Doc. CCPR/CO/71/UZB/Add.1, 17 October 2002, answer to question 2. See, also, Inter-national Service for Human Rights, “Report to the Human Rights Committee”, 83rd Session, New York, 14 March-1 April 2005, 13, quoting comments by Akmal Kh. Saidov (an Uzbek state official), available at <http://www.ishr.ch>.


and its expression if any state or other secret is involved. 91 Finally, the mass media shall act in accordance with the law.

A general constitutionally legitimate objective that laws affecting individual constitutional rights must strive toward derives from Article 20 of the Constitution. This provision makes it clear that the restrictions on the exercise of individual rights and freedoms have to be justified by the lawful interests, rights and freedoms of other individuals, society and the state.92 At the same time—as the Uzbek government has clarified in one instance—any restriction upon constitutional rights serves the legiti-mate objectives of “observance of moral standards, public order and the general well-being of a democratic society”, as declared in Article 29(2) of the Universal Declaration of Human Rights.93 Such a statement has to be taken with caution though. In practice, Uzbek courts are reluctant to justify the application of the restrictive provisions of the laws affecting, for example, the rights to freedom of expression and association, in light of the government’s statement of legitimate objectives.94

Under the Uzbek Constitution, the notions of the lawful interests of society, i.e., public interests, and the lawful interests of the state are not ranked equally and are not defined. It might, however, be difficult to provide a single legal definition of public interests and state interests. In a democratic society, public interests embody everything for which the state has a duty to provide in the interests of public welfare and in accor-dance with state duties. The normative content of public interests can be discerned from the constitutional norms defining state duties in Articles 2, 7, 13, 14 and 55 of the Constitution. Under Article 2, it is a state duty to express the will of the people and serve the people’s interests.95 Similarly, Article 7 states that governmental power is exercised in the interests of 91 The Uzbek national legislation on state secrets is too broad to be consistent with the right to

freedom of expression. See HRC, “Concluding Observations: Uzbekistan”, UN Doc. CCPR/CO/71/UZB, 26 April 2001, para. 18. It should be noted that, as of yet, the Uzbek government has not amended the legislation on state secrets following the views of the HRC.

92 Compare to Art.39, 1977 USSR Constitution: “Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens.”

93 See HRC, “Uzbekistan: Second Periodic Report as to the Implementation of the ICCPR”, UN Doc. CCPR/C/UZB/2004/2, 3 August 2004, para. 64.

94 See, for example, Criminal Case of the Procurator of the Iakkasaraiskii region of Tashkent city against K.S. Anarbayeva and O.K. Narmuradova, Judgment of the Court on Criminal Matters of the Iakkasaraiskii region of Tashkent city, 4 August 2005; Civil Case of the Prosecutor of Tashkent city against the Representation of ‘Internews Network’ US in the Republic of Uz-bekistan, Decision of the Tashkent Court on Civil Matters, 9 September 2005 (unpublished documents on file with the author).

95 Art.8, Constitution defines “the people of Uzbekistan” as “the citizens of the Republic of Uzbekistan, regardless of their nationality”.


the people. According to Article 13, democracy in Uzbekistan is “based on general humanistic principles which place supreme value in the person, human life, freedom, honor, dignity, and other inalienable rights”. Further, according to Article 14, the state functions on the basis of the fundamen-tal principles of social justice, the rule of law, and in the interests of the welfare of individuals and society. Lastly, Article 55 recognizes protection of the environment as a state duty. These constitutional norms can pro-vide for the ultimate limits to governmental discretion in discerning and determining public interests as well as state interests. Also, clarification on the scope of public and state interests by the Constitutional Court of Uzbekistan is desirable.

Public and state interests can justify the restriction of individual constitutional rights. When a constitutional right comes into conflict with a task that the state has a duty to accomplish, a balance has to be found through a weighing of interests. The principle of proportionality of restrictions in light of the importance of the restriction and the ex-tent of the right that is restricted is not constitutionally recognized in Uzbekistan, however. At the same time, Article 16 of the Constitution affects the procedure of proper balancing of constitutional rights against state interests and, therefore, the constitutionality of restrictions upon human rights in a crucial manner. This provision requires that no single constitutional norm be interpreted to prejudice the rights and interests of the state. As rights, in principle, are only conferred upon individuals or legal persons, the legal content of the concept of ‘state rights’, when applied within the national legal order—in contrast to the international one—is not clear and not explicitly recognized in the constitutional text. Nonetheless, in light of a joint reading of Articles 16 and 20 of the Consti-tution, striking a balance between constitutional rights and state-interest can prove to be an incommensurable task; the interests of a human being inherent to human rights and fundamental freedoms may be tendentiously outweighed by countervailing state interests in executive and legislation action, as well as judicial interpretation of the law. The application of the state-interest balancing requirement as a condition for a constitutional rights restriction has the potential to narrow the scope of rights at the discretion of the public authorities and to preclude attempts to control governmental actions affecting these rights.96

96 See, also, HRC, op.cit. note 93, para. 17. Also, Art.19 of the Constitution sets forth that citizens and the state are bound by mutual rights and mutual responsibility. See Akmal Kh. Saidov, U.T. Tadtzhikhanov and Khodzhimurod Odilkoriev, Osnovy Gosudarstva i Prava: Uchebnik (Sharq, Tashkent, 2002), 374, which states that mutuality of rights and responsibility implies that “[b]y defining the scope of freedoms of individuals by the law, the government limits itself to the same scope in its decisions”.


In light thereof, it is a fair question whether a circumvention of the constitutional tension between human rights and state interests is pos-sible under the Uzbek Constitution. As will be shown in the following section, the goal of protecting public and state interests—especially in the context of Internet expression—may lead to the undermining of the very substance of the right to freedom of expression.

3.2. Information Security as a Limitation of Freedom of Expression

3.2.1. The Notion of Information SecurityArticle 29 of the Constitution authorizes the imposition of restrictions on the right to seek, receive and disseminate information in some instances specified by law. The Law on Principles and Guarantees for Freedom of Information of 200297 sets forth the broadly tailored restrictions on this constitutional right. The Law has been criticized by international experts for establishing a legal regime that restricts the dissemination of information irrespective of the media used, including the Internet, rather than providing for effective legal guarantees of the exercise of freedom of information, as the title of the Law might imply.98 Pursuant to Article 11, the 2002 Freedom of Information Law establishes a protective regime that covers all information “the unlawful use of which may cause dam-age to its nominal owner, beneficial owner, user and other persons”. In particular, freedom of information would be restricted when necessary to: (1) prevent threats to information security; (2) maintain confidentiality of information and prevent leakage, theft or loss of information; and (3) prevent distortion and falsification of information. The Criminal Code of Uzbekistan establishes an offense, when committed intentionally, to prohibit conduct that breaches either of the two latter provisions.99

Information security is a legal notion introduced by the 2002 Free-dom of Information Law. As defined in Article 3, information security is a “state of security of the interests of an individual, society and state in the

97 Zakon RU “O printsipakh i garantiiakh svobody informatsii”, No.439-II, signed 12 December 2002, Vedomosti Oliy Majlisa RU (2003) No.1, 2 (hereinafter “2002 Freedom of Information Law”).

98 For a general analysis, see Article 19, “Memorandum on the Law of the Republic of Uzbekistan ‘On Principles and Guarantees for Freedom of Information’”, Global Campaign for Free Expres-sion, December 2002, available at <http://www.article19.org/pdfs/analysis/uzbekistan-law-on-freedom-of-information-june-.pdf>. See, also, David Banisar, “Freedom of Information: Global Practices and Implementation in Central Asia”, in OSCE Representative on Freedom of the Media, op.cit. note 77, 127-146, at 135 and 144.

99 Breach of the latter two paragraphs of Art.11, Freedom of Information Law is a criminal offense under Art.174, “Narushenie pravil informatizatsii”, Law No.2012-XII, signed 22 September 1994, Vedomosti Verkhovnogo Soveta RU (1995) No.1 (hereinafter “Criminal Code of the Republic of Uzbekistan”). The sanction under Art.174 was amended by Law No.254-II, signed 29 August 2001, Vedomosti Oliy Majlisa RU (2001) No.9-10, 165.


information sphere”.100 Respectively, Articles 13 through 15 establish and define the content of three categories of information security depending on the interests that are supposed to be protected in the information sphere: information security of the individual, society and the state.

The first two categories embody notions that are formulated in in-herently imprecise legal language that makes it difficult for individuals to predict their conduct. Thus, according to Articles 13 and 14, restrictions on freedom of information in the name of both the information security of the individual and of society may be imposed in order to protect an individual and the public against “unlawful psychological influence” and “manipulation of the public consciousness through information”. In par-ticular, information that undermines the information security of society would have to be seen as “deforming national self-consciousness”, “discon-necting society from its historical and national traditions and customs”, “destabilizing the social and political situation, and infringing upon the interethnic consent and consent among different religious confessions”. In addition, the information security of society is maintained when the spiri-tual, cultural and historical values of the society—as well as the scientific and technical potential of the country—are “preserved and developed”. Ultimately, the interests of maintaining the information security of so-ciety create a state obligation to “establish a system of counter-measures to prevent expansion of information”.

At the same time, pursuant to Articles 13 and 14, the scope of the information security of the individual and society includes interests that are legitimate to protect; however, rather on grounds other than informa-tion security. Firstly, the information security of the individual protects the interest in free access to information and protection of one’s private life, which are realized in the legal guarantees of the right to privacy, con-fidentiality of personal data and privacy of communication under Uzbek legislation. Secondly, the information security of the individual protects the interest of an author desiring to publish under a pseudonym or a source who, passing information to the press, wishes to remain anonymous. Fi-nally, the information security of society protects the public interest in the development of a democratic civil society and free press.

According to Article 15 of the 2002 Freedom of Information Law, freedom of information may be restricted on the grounds of the infor-mation security of the state in order to serve the following aims. First, restrictions may be imposed in order to protect state information resources 100 The term ‘information sphere’ refers to a “sphere of activity of the subjects, connected to

the creation, processing and consumption of information”. In turn, the term ‘information’ is defined as the “data on people, objects, facts, events, occurrences and processes irrespective of the sources and form of its presentation”. Art.3, 2002 Freedom of Information Law.


from unsanctioned access. Secondly, information security restrictions may be imposed to achieve legitimate national security interests, such as the protection of territorial integrity and state secrets.101 Finally, the Law treats the acts of dissemination of ideas and information that are already punish-able under national criminal law as a threat to the information security of the state too. It should be briefly mentioned here that the criminal law is extensively used to criminalize political expression in Uzbekistan.102

Article 12 of the 2002 Freedom of Information Law vests the primary responsibility for maintaining information security with state bodies. At the same time, the same provision requires private actors, such as the organs of self-governance of citizens, i.e., mahallas, public associations, other nongovernmental, noncommercial organizations and citizens to have their “place and role” to play in maintaining information security. Yet, it is questionable whether this provision creates an obligation upon private actors to restrict access to information on the grounds of infor-mation security. Lastly, the 2002 Freedom of Information Law does not spell out the conditions that govern exceptions in which public authori-ties and private actors may not refuse to communicate information—for instance, in cases of overriding public interest and once information has been made publicly available.103

3.2.3. Effect of the Information Security Limitations on the Regulation of Access to Internet Content

Is the notion of information security under the 2002 Freedom of Informa-tion Law a genuine Uzbek legal category? An Uzbek legal scholar maintains that the notion of information security is “a brainchild of the post-Soviet bureaucracy” that was introduced to deter the flow of information into the

101 See Zakon RU “Ob utverzhdenii Kontseptsii natsional’noi bezopasnosti Respubliki Uzbekistan”, Vedomosti Oliy Majlisa RU (1995) No.12, 175-187 (hereinafter “Law on Adoption of the Concept of National Security of the Republic of Uzbekistan”). On state secrets as a component of legitimate national security interests, see Sandra Coliver, “Commentary on the Johannesburg Principles”, in Sandra Coliver et al. (eds.), Secrecy and Liberty: National Security, Freedom of Expres-sion and Access to Information (Martinus Nijhoff, Leiden, 1995), 11-82, at 21.

102 Criminal legislation renders the exercise of freedom of expression and the press meaningless or impossible in Uzbekistan. See OSCE Representative on Freedom of the Media, op.cit. note 77, 116-117. The use of criminal legislation to circumvent political expression has become a conventional state practice over recent years. For accounts of criminal prosecutions of private individuals and journalists in Uzbekistan, see, for example, Ambeyi Ligabo, “Summary of Cases Transmitted to Governments and Replies Received”, Addendum to the Report of the Special Rapporteur, E/CN.4/2005/64/Add.1, 29 March 2005, paras. 972-990.

103 See the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, 1 October 1995, Principles 15-17, available at <http://www.article19.org/pdfs/standards/joburgprinciples.pdf>; and Arts.22-23, Model Freedom of Information Law, designed by the NGO Article 19, Global Campaign for Free Expression, 10 August 2001.


country.104 Although this claim is not supported by further arguments, the scholar is correct in attributing the emergence of the notion of informa-tion security to a “post-Soviet” era.

This legal notion was first introduced, although not defined, in a 1996 Concept on Establishment of the Information Space of the Common-wealth of Independent States (CIS), adopted by the Council of Heads of Governments of the CIS Member States.105 According to Article 2 of the 1996 Concept, the maintenance of information security is a state duty. Article 7, in turn, prescribes a CIS member state a duty to protect its in-formation security and “information sovereignty” through such measures as the due monitoring of threats posed thereto. Furthermore, according to Article 7, the CIS member state has to adopt legislative measures that, first of all, regulate the implementation of practical measures aimed at the protection of information security and, secondly, establish legal liability for posing threats and violating information security.

Thus, while the general framework linking the information security and information sovereignty of the state proclaimed by the 1996 Concept, it was a 1999 Concept on Information Security of the CIS in the Military Sphere that first defined the notion of information security.106 According to Section V of this Concept, information security is a “state of security of the information sphere (environment) of a society that provides for the creation, use and development of that environment in the interests of citizens, organizations and state”. At the same time, the term ‘information security’ is not to be equated with the term ‘protection of information’. The latter is specific enough. According to Section V, it embodies activities aimed at prevention of disclosure, access, and unauthorized and inadvertent influences inflicted upon information that is otherwise protected by the rules established by the owner of the information. Hence, according to the letter of the 1999 Concept, the scope of information security is much broader than that of the protection of information.

The same definition of information security as provided for in the 1999 Concept was transplanted into a 2002 Model Law on International Exchange of Information.107 This Law was adopted by the Inter-parlia-mentary Assembly of the CIS Member States, a CIS legislative institution 104 Karim Bakhriyev, Speech on Freedom of Speech (R. Elinin, Moscow, 2003).105 Decision of the Council of Heads of Governments of the CIS on the Concept on Establishment

of the Information Space of the CIS, 18 October 1996, Moscow.106 See Decision of the Council of Heads of Governments of the CIS on the Concept of Information

Security of the CIS Member States in the Military Sphere, 4 June 1999, Minsk. 107 Model’nyi zakon “O mezhdunarodnom informatsionnom obmene”, No.19-726, signed 26 March

2002, Information Bulletin (2002) No.29 (hereinafter “Model Law on International Exchange of Information”).


with the defining purpose of unifying and harmonizing the CIS member states’ national legal systems in certain fields of common interest.108 Pre-sumably, the definition of information security—as provided for in the 2002 Model Law—was incorporated and further elaborated in the 2002 Freedom of Information Law in Uzbekistan.

In general, the 2002 Model Law sets down a legal framework for the regulation of access to and use of global networks of information exchange109 by state and private actors. Although the 2002 Model Law provides a definition of information security, peculiarly enough it does not mention information security in any of its legal norms. At the same time, the Law creates state obligations, which in the end contribute to reach-ing the objective of information security, this being a “state of security of the information sphere (environment) of a society”. Thus, in accordance with Article 4, the state has a duty to protect individuals against “bad quality and false” information of foreign origin and unfair competition in the information sphere by legal and private persons of foreign states. Further, Article 11 of the 2002 Model Law prohibits the dissemination of false and otherwise untrustworthy information of foreign origin that was received as a result of international information exchange. The subjects of international information exchange, which have received and/or dis-seminated that information within a state territory in question, bear the responsibility.

The information security issue remains dominant in the rule-creating process at the regional and international levels. Legal norms on informa-tion security are also envisaged, although still to be elaborated, in a draft Model Information Code of the CIS Member States, a codified legislative act that would govern the issues of the dissemination of information, i.e., informatization, on the territory of each CIS member state.110 It is 108 The CIS model legislation needs further incorporation into the national legal systems. See

Postanovlenie Mezhparlamentskoi Assamblei Gosudarstv-uchastnikov SNG “Ob ispol'zovanii model'nikh zakonodatel'nykh aktov Mezhparlamentskoi Assamblei Gosudarstv-uchastnikov SNG”, No.11-13, signed 15 June 1998, Information Bulletin (1998) No.18 (hereinafter “Resolution of the IPA CIS on Use of Model Legislative Acts of the IPA CIS”).

109 Although the 2002 Model Law does not mention the Internet explicitly, such a means of information exchange would not be excluded by the interpretation of the terms “global infor-mation networks” and “international exchange of information”. The former is understood as an information network providing interconnection of information networks located in dif-ferent countries. The latter stands for the dissemination and receipt of information products, as well as provision of information services across national borders, including through global information networks. See Art.2, Model Law on International Exchange of Information.

110 The draft Model Information Code was first reported to the IPA CIS in the year 2003. The latest reading of the draft Information Code of the CIS Member States, Part I, was held on 5-6 March, 2007. See Announcement on the Meeting of the IPA CIS Permanent Commission on Culture, Information, Tourism and Sport, 5 March 2007, available at <http://www.iacis.ru/html/?id=17&nid=491>.


expected to enter into force by 2010.111 Further, the Uzbek government made a political commitment to pursue the goals of information security in accordance with the Statement on International Information Security, adopted under the framework of the Shanghai Cooperation Organization in 2006.112 According to this regionally-applicable document, the main concern is the genuine threat that ICTs may be used in ways that could seriously harm the security of individuals, societies and states, as well as undermine the basic principle of non-interference in the internal affairs of sovereign states.113 Lastly, the Uzbek government facilitates the consid-eration of information security issues by the UN General Assembly.114

Against the background of CIS model legislation governing the issue of information security, Uzbek information security restrictions are to be understood as well-designed attempts to control speech and free flow of information within its geographical borders. Thereby, the legitimate interests that the Uzbek—as well as CIS notions—of informa-tion security seek to protect are considerably different from those that similar notions serve to protect in foreign legal orders. That is to say, the legitimate interests of information security are to prevent breaches of security of information systems and resources in the form of illegal ac-cess and interference, as well as to protect against misuse of critical state information infrastructures, in particular for criminal purposes.115 These 111 See “Plan deistvii po realizatsii strategii sotrudnichestva Gosudarstv-uchastnikov SNG v

sfere informatizatsii na period do 2010 goda”, adopted by Decision of the Council of Heads of Governments of the CIS on the Strategy of Cooperation among the CIS Member States in the Field of Informatization, 24 November 2006, available at the website of the CIS Execu-tive Committee at <http://www.cis.minsk.by/main.aspx?uid=8330> (hereinafter “Action Plan for Realization of the Strategy on Cooperation among the CIS Member States in the Field of Informatization to 2010”).

112 See Statement of the Heads of the Member States of the Shanghai Cooperation Organiza-tion on International Information Security, as provided for in the letter dated 4 August 2006 from the Permanent Representative of Kyrgyzstan to the United Nations, addressed to the Secretary-General, UN Doc. A/60/973, 10 August 2006, Annex II.

113 Ibid., 7. Similar notions can be found in the Russian Federation and Kazakhastan. See, respec-tively, “Doktrina informatsionnoi bezopasnosti Rossiiskoi Federatsii”, approved 9 September 2000 by the President of the Russian Federation, No. Пр-1895, Rossiiskaia Gazeta (28 September 2000) (hereinafter “Doctrine of Information Security of the Russian Federation”). (hereinafter “Doctrine of Information Security of the Russian Federation”); and “Kontseptsiia informatsion-noi bezopasnosti Respubliki Kazakhstan”, as promulgated by Edict No.199 of the President of the Republic of Kazakhstan, signed 10 October 2006, Sobranie Aktov Presidenta i Pravitel’stva RK (2006) No.38, 422 (hereinafter “Concept of Information Security of the Republic of Ka-zakhstan”).

114 See Draft Resolution, “Developments in the Field of Information and Telecommunications in the Context of International Security”, UN Doc. A/C.1/61/L.35, 11 October 2006. See, also, UN Doc. A/C.1/62/L.45, 24 October 2007, in “Report of the First Committee”, UN Doc. A/62/386, 8 November 2007, 2-5.

115 For example, in the US, the notion of information security is commonly referred to as the set of measures directed at the protection of availability, integrity, authentication, confidentiality


interests are legitimate in light of the rights and the responsibility of every state to protect the security of its own critical infrastructure systems that rely on information technology under international law. In light thereof, the information security interest of the state that is aimed at protecting state information resources from “unsanctioned access” seems to be the only legitimate aim provided for in Article 15 of the 2002 Freedom of In-formation Law in Uzbekistan.116 For the sake of legal certainty, however, protection of such legitimate interests should fall within the scope of the norms on “protection of information” as, for instance, defined in the 1999 Concept and also provided for in Article 11 of the 2002 Freedom of Information Law. Likewise, a separate legal notion of “computer security” would serve as a better option in distinguishing the technological security measures directed at protection of information and the measures directed at control of the access and dissemination of information.117

Claims of violation of the right to seek, receive and disseminate in-formation on the grounds of information security require serious judicial scrutiny in order to find a proper balance between these open-ended limi-tations and constitutional rights. The development of a proportionality inquiry by Uzbek courts could become an important tool for overcoming open-ended and discretionary approaches to abridge the scope of consti-tutional rights on the basis of information security. It remains, however, to be seen whether judicial review will, in fact, overcome the deficiencies of the information security provisions of the 2002 Freedom of Information Law by declaring them unconstitutional in parts that do not protect the legitimate interests of protecting crucial state information infrastructure from unauthorized access, interference or criminal misuse.

and non-repudiation of information. This definition refers to five technical issues of informa-tion assurance adopted by the US National Security Agency, available at <http://www.nsa.gov/about/about00019.cfm>. See, also, European Commission “Network and Information Security: Proposal for a European Policy Approach”, June 2001, available at <http://www.icrt.org/pos_papers/011209_EC.pdf>.

116 See Art.174, Criminal Code, which establishes an offense for unsanctioned access to informa-tion networks, op.cit. note 99.

117 In order to deal specifically with the issue of “computer security of national information and communication systems”, an Uzbek executive authority has established a Computer Emergency Readiness Team (CERT) agency. See Postanovlenie Presidenta RU “O dopolnitel’nikh merakh po obespecheniiu komp”iutornoi bezopasnosti nazional’nikh informatsionno-kommunikatsionnikh sistem”, No.167, signed 5 May 2005 (unpublished), available at <http://www.cert.uz/about.php?21#> (hereinafter “Resolution on the Provision of Computer Security for the National Information and Communication Systems”). Note that CERTs are not a unique Uzbek inno-vation to address network security incidents. The function of the US-CERT, for example, is “to monitor the overall health of the Internet and dispatch news of security threats”. Zittrain, op.cit. note 47, 2006 and 2010.


3.2.2. National Ideology: Negating the Notion of Legitimate Public Interests

Having focused until now on the legal framework for regulating the right to freedom of expression on the grounds of information security, I must address the point that the existence of information security norms in Uzbekistan can also be explained by reference to Uzbek official ideol-ogy. An overview of the main ideas propagated by the Uzbek national ideology118—known as the ‘idea of national independence’—will help in a more precise understanding of the sources of the unduly vague terms of the Uzbek concept of ‘information security interests’. This overview will also provide an explanation for the current state policy that imbues governmental goals in regulating speech on the Internet.

The Uzbek national ideology may be described as a “constantly evolv-ing” system of moral values and beliefs to which “the entire population, all the political parties, groups and movements” have an interest in adhering.119 The Uzbek government has developed an extensive mechanism of overt propagation in order to maintain its effectiveness in Uzbek society.120 The mainly state-controlled mass media—as well as educational and other public institutions—perform this propaganda role.121

118 The definition of ideology is used here to reflect “the system of ideas, theories, values and norm, ideals and directives for action of a certain social class […] that help to strengthen the destruction of […] actual social relations”. Vladimir Shlapentokh, Soviet Public Opinion and Ideology: Mythology and Pragmatism in Interaction (Praeger, New York, 1986), 1.

119 See N. Shetinina (ed.), Ideia natsional’noi nezavisimosti: osnovnye poniatiia i printsipi (Uzbekiston, Tashkent, 2003), 42, 44, 46-47, 69 and 71. See, also, Islam Karimov, “Natsinonal’naia ideologiia—osnova budushchego”, President of Uzbekistan, Official Speech, 6 April 2000, available at <http://www.press-service.uz>.

120 With respect to its function and complexity, the ideology has a certain degree of resemblance to the Soviet official ideology; however, without its role and magnitude. See Evgeniy Abdullaev, “Uzbekistan: Between Traditionalism and Westernization”, in Boris Rumer (ed.), Central Asia at the End of the Transition (M.E. Sharpe, Armonk, 2005), 267-296, at 277.

121 On the role of the educational system, see Rasporiazhenie Presidenta RU “O sozdanii e vne-drenii v sistemu obrazovaniia Respubliki uchebnikh programm po predmety “Ideia natsionalnoi nezavisimosti: osnovnye poniatiia i printsipi”, signed 18 January 2001 (unpublished), available at <http://www.press-service.uz> (hereinafter “Order on the Creation and Introduction of the Subject ‘Idea of National Independence: Basic Concepts and Principles’ in the Curriculum of the Educational System of the Republic”). On the role of state authorities, see Ukaz Presidenta RU “O podderzhke Respublikanskogo Soveta Dukhovnosti i Prosveshcheniia”, No.УП-2385, signed 3 September 1999, Vedomosti Oliy Majlisa RU (1999) No.9, 242 (hereinafter “Edict on the Support of the Republican Council for Spirituality and Enlightenment”) (for example, Art.4 establishes that a deputy prime minister of the Republic of Uzbekistan is to be appointed to a management position of the Council on Spirituality and Enlightenment). Senators of the parliament are also expected to work on the “spirituality and spiritual immunity of the youth”. See Press Service of the Senate of the Oliy Majlis of the Republic of Uzbekistan, “Press Release on the 7th Plenary Session of the Senate”, 26 August 2006, available at <http://www.gov.uz/ru/content.scm?contentId=22318>. On the propaganda role of cultural elites, see Laura Adams, “Cultural Elites in Uzbekistan: Ideological Production and the State”, in Pauline Jones Luong


To serve its principle function of providing legitimacy to the exist-ing social and political order, the ideological propaganda campaign uses both positive and negative legitimation.122 The positive legitimation is basically based on the residual political promises of economic progress.123 The negative legitimation concentrates on the threats of “open or hidden ideological influence”, “pressure”, “aggression” and even a “dictate” on Uzbek society.124 These threats emerge as a result of information exchange and concurrent “information explosion” in terms of quantity of informa-tion received by individuals in the modern information society.125 In light thereof, the Internet is seen to have a particularly deleterious effect as a means for the influx of “alien ideologies and destructive ideas” and “the struggle for minds and moods of the people of Uzbekistan”, especially of the youth.126 The idea of national independence is also meant to counter-balance the ideas of terrorism and Islamic extremism, including the idea of creating the Islamic caliphate, in particular.127 Taking these negative threats to Uzbek society into account, ideologists claim that only a “truly humanistic” ideology serves the Uzbek citizenry as a basis for perception of the world and has formative influences in the development of “ideologi-cal immunity” or “sustainable public consciousness”.128

The state ideology is also often referred to as the ideology of the “revival of spirituality”, as it actively encourages the adherence of in-

(ed.), The Transformation of Central Asia: States and Societies from Soviet Rule to Independence (Cornell University Press, Ithaca, NY, 2004), 93-119, at 116-117. The National Center on Human Rights, National Society of Philosophers are called upon to propagate the ideas of the ideology. See Shetinina, op.cit. note 119, 69-70.

122 The dichotomy between positive and negative legitimation is introduced and elaborated in Shlapentokh, op.cit. note 118, 10 and 14-16.

123 Goals such as “political stability”, “prosperity of the motherland”, “peace and state of calmness in the country” and “well-being of the people” are to be reached in an uncertain time period in the future. Literally, the state ideology is expected to serve the population as a “torch brighten-ing the way to the progress” and be centered on the postulate that “Uzbekistan is a country with a great future” in justifying its hegemony. See Shetinina, op.cit. note 119, 50-54. For critical evaluation of some of these ideological values, see Abdullaev, op.cit. note 120, 269.

124 See Shetinina, op.cit. note 119, 23-24 and 27.125 See Islam Karimov, “Introduction”, in ibid., 7; and ibid., 22-23, which mentions the notion of

information society only once with no specific details clarifying the statement.126 Ibid. See, also, Islam Karimov, President of the Republic of Uzbekistan, Address to the Parlia-

ment, “Nasha osnovnaia tsel’—demokratizasiia i obnovlenie obschestva, provedenie reform i modernizatsiia strani”, 28 January 2005, available at <http://www.press-service.uz/rus/rechi/r01282005.htm>.

127 Shetinina, op.cit. note 119, 41; Sanobar Shermatova, “Islamskii factor v rukakh politicheskoi eliti”, in Aleksei Malashenko and Martha Olcott Brill (eds.), Islam na postsovetskom prostranstve: vzgliad iznutri (Carnegie Moscow Center, Moscow, 2001), 205-231, at 219.

128 Shetinina, op.cit. note 119, 4; and Karimov, op.cit. note 125, 7-8.


dividuals to certain moral values for the benefit of society.129 The latter are essentially rooted in the centuries-long “spiritual heritage” of the Uzbek people, which is expressed in symbolic Uzbek cultural images,130 the philosophical musings of a fourteenth-century national hero, Amir Timur,131 and official misrepresentations of Uzbek history.132 By paying “extremely little attention […] to the values of modernity”,133 the ideol-ogy seeks to engender almost complete fidelity to national traditions in Uzbek citizens by means of a “monolithic discourse of nationalism”.134 Also, the ideology particularly serves to persuade people to subordinate, i.e., “harmoniously combine”, their individual interests to the interests of the state and society.135 In particular, the ideology requires individuals to advance their interests to the satisfaction of the collective good: social stability, solidarity and economic progress.136 In light thereof, there is a deliberate approach by the Uzbek leadership to interpret human rights by virtue of ideological and cultural predispositions in favor of specific collective ends. Thereby, the ideology particularly violates the principle of individual autonomy upon which human rights are based.

The de facto hegemony of the state ideology is objectionable from the perspective of the constitutional law of Uzbekistan for two reasons. First, it is per se objectionable to have such a state ideology in the democratic state that Uzbekistan has proclaimed itself to be under Article 1 of the

129 See Narzulla Shodiev, “Natsional’naia ideia: kak eto videtsia v Uzbekistane”, Trud, 23 June 2000, available at <http://choe.tfi.uz/p10.html>. “In a unity of cultural wealth and national idea, spirituality is primal. Spirituality is a moral and ethical being that leads the nation to progress. The national idea in the destiny of the nation is, first of all, the spiritual phenomenon.” See, also, Shetinina, op.cit. note 119, 54-55; and Islam Karimov, Spravedlivost’, interesy rodiny i naroda—previshe vsego (Uzbekiston, Tashkent, 1998), 9, 19 and 49.

130 See Adams, op.cit. note 121, 97. See, also, Pauline Jones Luong, Institutional Change and Political Continuity in Post-Soviet Central Asia: Power, Perceptions and Pacts (Cambridge University Press, Cambridge, 2002), 135.

131 On the self-identification of President Islam Karimov with the fourteenth century emperor, Amir Timur, also known as Tamerlan the Great, as contrasted to the development of a true cult of personality, see, critically, Adams, op.cit. note 121, 97; Morgan Y. Liu, “Detours from Utopia on the Silk Road: Ethical Dilemmas of Neoliberal Triumphalism”, 2(2) Central Eurasian Studies Review (2003), 2-11; and Umida Niazova, “Amir Timur—velikii democrat?” 17(17) Oasis (2005), available at <http://www.ca-oasis.info>.

132 Shetinina, op.cit. note 119, 41. See, critically, Aleksander Djumaev, “Nation-Building, Culture, and Problems of Ethno-cultural Identity in Central Asia: The Case of Uzbekistan”, in Will Kymlicka and Magda Opalski (eds.), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe (Oxford University Press, Oxford, 2001), 320-345, at 330-331.

133 Abdullaev, op.cit. note 120, 267-268.134 See Adams, op.cit. note 121, 95 and 97; and ibid., 267.135 See Shetinina, op.cit. note 119, 29 and 49. 136 See ibid., 57; and Shlapentokh, op.cit. note 118, 19.


Constitution. However, it is generally viewed that adherence to both a single state ideology and universal human rights may coexist in a demo-cratic state. Also, the fundamental constitutional principles of democracy and the rule of law are made subject to respect for national customs, traditions and moral values in society.137 The preference given to national traditions and morals—rather than human rights—is noticeable in the eventually declared, although underspecified, dichotomy between spiritual and democratic freedoms.138 This worrisome approach in the legal doctrine is in unison with the ideologists who attempt to distort understandings of the uniquely legal virtue of justice and reduce law to an instrument of politics that justifies the state ideology. Namely, for ideologists, the ideol-ogy actualizes in practice the idea of justice, the principles of democracy and self-governance.139 Also, it is in democracy that the ideology functions as the “catalyst of social interests, and contributes to the realization of individual and public interests”.140 Hence, the official state ideology takes on critical dimensions in its blurring of the difference between the legal and ideological-moral orders in Uzbekistan.

Secondly, the de facto hegemony of the ideology contradicts Article 12 of the Constitution, which explicitly prohibits the imposition of the official state ideology. This constitutional provision states further that public life develops itself on the basis of a variety of political institutions, ideologies and opinions. However, the Uzbek legal doctrine has once again undermined the constitutional purpose of the promotion of pluralism of opinions that this provision envisages. Thus, it is argued that Article 12 of the Constitution advances the goal of creating the ideology of national independence.141 In my view, taking into account the fact that the official state ideology was conceptualized many years after the Uzbek Constitution entered into force, this interpretative approach to the constitutional pur-pose and objective should be understood as a contemporary, overwhelming trend in Uzbek legal doctrine towards keeping constitutional law doctrine congruent with current political postulates, rather than with fundamental constitutional principles of the rule of law and democracy.142 137 U.T. Tadzhikhanov, “Commentary on Article 15 of the Constitution”, in Urazaev, op.cit. note

70, 73-74, at 74.138 Ibid., 71.139 Shetinina, op.cit. note 119, 44.140 Ibid., 39.141 Tadzhikhanov, op.cit. note 137, 70. See, also, Saidov, Tadzhikhanov and Odilkoriev, op.cit. note

96, 428.142 It has become the practice to quote the public speeches and publications of President Karimov

in academic articles on constitutional law and human rights. The commentary on the Constitu-tion of Uzbekistan is no exception. Being a mechanical engineer and economist by education, the president is called “the greatest” academic of law. See Urazaev, op.cit. note 70, 25.


Against the overview of the Uzbek official ideology as set out above, it is plausible to claim that the ideology has been a strong influencing factor in the drafting process of the legal norms defining the content of speech and information that compromises the information security of the individual and society under Articles 13 and 14 of the 2002 Freedom of Information Law. Namely, the overview helped us to distill a more precise understanding of the “unlawful psychological influence”, the “manipula-tion of the public consciousness through information” or the “national self-consciousness”, the “spiritual, cultural and historical values of the society”. Thus, the ideology—unconstitutional per se—can have a power-ful effect on law and can translate itself instrumentally into legal norms restricting the exercise of human rights in Uzbekistan.

For this reason, information security restrictions on freedoms of expression and information are best understood as policies that control the dissemination of information having the capacity to undermine the legitimacy of state authority in Uzbekistan. It is in no way a distinctive Uzbek domestic phenomenon, however. In countries with authoritarian political regimes, in particular, the governmental regulation of Internet access and content dissemination is directly influenced by the “constructed legitimacy” of the political authority.143 The crucial components of main-taining this category of legitimacy are “unifying myths”.144 In Uzbekistan, the official state ideology functions on the basis of consolidating myths or state-identified moral standards. Therewith, the ideology fosters public interest in adhering to national traditions and negates the very idea of pluralism of opinions in this country. Attempts to reappraise tradition as the sole source of national identity often prove unfruitful, however.145 In the end, these ideology-based information security restrictions, in their present legal form, may ultimately contribute to the creation of an iso-lated, country-bound “sphere of ideas”, to which the free access to diverse Internet content is a threat.146

143 See Zack Kertcher and Ainat N. Margalit, “Challenges to Authority, Burden of Legitimisation: The Printing Press and the Internet”, 10 International Journal of Communications Law and Policy (2005), 1-30, at 28-30.

144 Ibid., 12. For example, unifying myths were an organic part of the political structure in the USSR as well. See Shlapentokh, op.cit. note 118, 163.

145 See, critically, Sharon K. Hom, “Re-positioning Human Rights Discourse”, in Linda S. Bell, Andrew J. Nathan and Ilan Peleg (eds.), Negotiating Culture and Human Rights (Columbia Uni-versity Press, New York, 2001), 197-216, at 209.

146 See Pravda Vostoka, 2 September 2005, as cited in Daniel Kimmage, “Uzbekistan: Andijon and the ‘Information War’”, a EurasiaNet Partner Post from RFE/RL, 9 September 2005, available at <http://www.eurasianet.org>: “In order to understand and properly acknowledge the significance of the idea of national independence, one must take into account particular patterns in the sphere of ideas. Otherwise, various extremes are possible. We find evidence of this in the real experience of certain post-Soviet countries.”


4. Internet Content Regulation

4.1. Access to Internet Content: National Intranets, the Filtering System and the Search Engine

I will now deal briefly with the mechanisms of access to the Internet in Uzbekistan and the statutory regulation of the provision of Internet access services in order to evaluate how the Uzbek government uses its coercive power to establish control over the flow of Internet content within its geographical borders.

One mechanism of access to the Internet in Uzbekistan is the ex-istence of two state regulated national intranets for use by institutional Internet users. These intranets represent “a singular platform to gather data and information resources” for a vast number, if not all, institutions supported by public subsidies.147 By providing access to the intranets, the Uzbek government, on the one hand, subsidizes nationwide access to the Internet in public institutions.148 On the other hand, the governmental regulation of publishing and distribution of the content on a single intranet for those institutions enables an elaborate mechanism for monitoring the sources of information received over the Internet.149 Thus, in light of the role played by the educational system in fomenting the propaganda of the official state ideology, the main aim of the intranet is to provide access to information on the idea of national independence and on various issues of public concern to the extent that they are in line with state interests.150 For this purpose, the Ministry of Higher and Secondary Education and the Ministry of Public Education create and constantly update a single database. Should the participating institutions wish to place their own content on the intranet, it first has to be submitted for expert assessment by these ministries with respect to its conformity with both Uzbek legisla-147 A public educational and informational network, ZiyoNet, exists for use by primary and higher

educational institutions, research institutions, youth organizations, libraries and museums. A scientific and educational network, UzSciNet, exists for use by scientific, cultural, medical and other institutions. See further details on the website of the intranet provider UzInfoCom, at <http://www.uzinfocom.uz>. The public institutions are obliged to connect their computer networks with a state-owned provider of the intranet network and secure their identification passwords in order to get access to the Internet at favorable access tariffs.

148 See UNDP, “2015: Mobilizing Global Partnerships, the 2004 Annual Report”, 19, available at <http://www.undp.org/annualreports>.

149 Art.8, Postanovlenie Kabineta Ministrov RU “O dal’neishem razvitii seti ‘ZiyoNET’”, No.282, signed 28 December 2005, Annex III, Sobranie zakonodatel’stva RU (2005) No.52, 389. (hereinafter “Resolution on the Further Development of the ‘ZiyoNET’ Network”).

150 Art.2, Postanovlenie Presidenta RU “O sozdanii obschestvennoi obrazovatel’noi seti Respubliki Uzbekistan”, No.ПП-191, signed 28 September 2005, Sobranie zakonodatel’stva RU (2005) No.40, 305 (hereinafter “Resolution on the Establishment of the Public-Educational Network of the Republic of Uzbekistan”).


tion and state interests. The distribution of news, the content of public forums, as well as interactive websites within the intranet, are subject to separate monitoring on a regular and systematic basis by the state Center for Monitoring of Mass Media Communication.151 Additionally, the latter institution has the authority to introduce a rating system for Internet content available to end users in public institutions as a solution to dealing with content that is illegal and undermines state interests.152

Concerns related to Internet content have also resulted in the in-troduction of a filtering system for Internet content that has a “negative influence” or is “harmful” to individuals.153 The provider of the content fil-tering software, developed and patented in Uzbekistan, is not independent of the Uzbek government.154 Primarily, the provider appeals to parental control over children’s access to the Internet by allowing parents to add and delete websites according to their individual preferences. However, the software provider supplies an initially “optimized” version of the software by integrating an irremovable database of websites that it has unilaterally rated as harmful.155 It is, however, unclear to what extent harmful content, which is based on ratings performed by the software provider, includes legal content. Moreover, taking into account the watchful eye of the Uz-bek government over what information both the youth and adults receive over the Internet, it is not groundless to foresee that the government may mandate the use of content filtering software in educational institutions and public points of access such as Internet cafes and libraries.

Another development that may potentially hinder the exercise of the right to freedom of expression on the Internet is an Internet search engine at the national level.156 Envisaged to become fully operational by 2008, this state regulated search engine is meant to become the “main mechanism of quick access to information to all users of national segment of the Internet”, i.e., Internet content allocated on the websites registered under the ‘.uz’ country-code top level domain names and having a direct

151 Art.8, op.cit. note 149. 152 Art.17, op.cit. note 149. 153 See Mukhsinzhon Mukhitdinov and Atkham Mirazizov, “The Software for Filtering the

Undesired Content of Internet Web Sites”, InfoCOM.UZ, 3 August 2006, available at <http://ru.infocom.uz/more.php?id=A1568_0_1_0_M>.

154 The Training and Support Center of Intern Programmers was established by the state body, the Uzbek Agency for Communications and Information.

155 Mukhitdinov and Mirazizov, op.cit. note 153.156 See Postanovlenie Presidenta RU “O dopolnitel’nikh merakh po dal’neishemu razvitiu infor-

matsionnykh tekhnologii”, No.ПП-117, signed 8 July 2005, Annex 3, “Programma formirovaniia i razvitiia natsional’noi informatsionno-poiskovoi sistemy”, Sobranie zakonodatel’stva RU (2005) No.27, 189 (hereinafter “Program on the Establishment and Development of a National Infor-mation Search System”). The search engine is located at <http://www.uz>.


content link to Uzbekistan.157 The promotion of local content on the In-ternet has certainly played a role in the decision to establish the search engine. However, the current regulation providing for exclusion of web-sites that do not meet the requirement of the direct content link to the country, as well as those that provide content that violates the legislation of Uzbekistan, will increase the state’s power of censorship. It remains, furthermore, to be seen to what extent users of the national intranets as well as private Internet users will be limited in their freedom to seek information through search engines of their own choice, including those of foreign origin, other than the state regulated one.

4.2. Application of National Laws by Internet Service ProvidersNational ISPs are delegated by the state with the power to apply national legislation governing the exercise of freedom of expression, information and the press, and criminal law, in particular, on computer networks. Under Article 18 of the Law on Telecommunications,158 there are two grounds for a suspension in the operation of the ISPs’ networks or facilities. First of all, the ISP should prevent the use of networks “for criminal purposes, inflicting damage to the interests of individuals, society and state”. The lex specialis norms of Governmental Regulations No.52159 and No.137160 require the ISPs to take organizational and technical measures in order to prevent the use of computer networks for the exchange of information prohibited under national laws. In doing so, the ISPs are authorized by the government to elaborate upon the particular rules of access to their networks in conformity with national laws.161 Hence, in practice, every potential Internet user within the Uzbek jurisdiction has to accept in full and unconditionally a standard ‘terms of services’ contract in order to access the Internet via a particular national ISP. In accordance with its terms of services, a state-owned ISP, just as any private ISP, has the right to completely terminate or partly deny Internet connection to an Internet user once it is satisfied on its own that the user has violated national laws.162 In such a case, the ISP encourages dispute settlement in an amicable way 157 As provided at <http://www.uzinfocom.uz> (emphasis added).158 Zakon RU “O telekommunikatsiiakh”, No.822-I, signed 20 August 1999, Vedomosti Oliy Majlisa

RU (1999) No.9, 219 (hereinafter “Law on Telecommunications”).159 Art.3(2), Resolution on the Establishment of the National Data Communication Network. 160 Postanovlenie Kabineta Ministrov RU “Ob utverzhdenii polozheniia o poriadke podgotovki i

rasprostraneniia informatsionnykh resursov Respubliki Uzbekistan na seti peredachi dannykh, vkliuchaia Internet”, No.137, signed 26 March 1999, as amended by Resolution of the Cabinet of Ministers RU No.215, signed 7 May 2004, Sobrabie zakonodatel’stva RU (2004) No.19, 220.

161 Art.13, ibid.

162 The contract does not provide for the removal of the objectionable content in the first place. See “UzNet publichnaia oferta o predostavlenii uslug dostupa v set’ Internet po vydelennym soedineniiam”, available at <http://www.uznet.net>.


before individuals may challenge the provision of contractual services by the ISP in court.163

Secondly, the national ISPs face a thirty-day suspension and possible revocation of their business licenses on the grounds of failure to protect information and the confidentiality of communications.164 This require-ment, however, does not apply in cases where the ISPs breach the confi-dentiality of a communication on the Internet in accordance with Article 18 of the Law on Telecommunications. This provision renders lawful the interception of the online flow of information for law enforcement purposes. Thus, ISPs have a duty to install surveillance equipment and operate it at their own expense. However, the requirement to maintain an interception capability does not uphold a minimal standard for transpar-ency, as it denies the ISPs a corresponding right to disclose organizational and tactical strategies employed in the course of such interceptions. The issue of adequate guarantees for individuals against the abuse of the communication surveillance process is a separate issue requiring further research.165

Similarly, strict regulation of Internet content distribution applies to the provision of Internet hosting services. The local web hosts, i.e., the legal entities and private individuals that provide space on their servers for storing information accessible via the worldwide web, are obliged to deny access to stored information, dissemination of which is a criminal offense in Uzbekistan. Also, the web hosts must provide the personal data of the owner of the hosted website to the state authorities upon their request.166

The above-mentioned regulatory framework for access to and dis-tribution of information on the Internet is controversial. Firstly, being 163 Art.23, Law on Telecommunications.164 Art.15(4), Vremennoe Polozhenie Uzbekskogo Agenstva Sviazi e Kommunikatsii “O litsenziro-

vanii deiatel’nosti po proektirovaniiu, stroitel’stvu i ekspluatatsii osnovnoi i mezhdunarodnoi linii sviazi”, No.88, signed 11 November 1997 (unpublished), available at <http://www.uzinfocom.uz/spravochnik/> (hereinafter “Temporary Regulations on Licensing of Activity on Communi-cation Lines”).

165 The parliament approved a draft Law on Amendments of Certain Legal Acts of the Republic of Uzbekistan with the Aim of Increasing the Effectiveness of Organization of Investigatory Measures on the Telecommunication Networks of the Republic of Uzbekistan (Zakon RU “O vnesenii dopolnenii v nekotorye zakonodatel’nye akty Respubliki Uzbekistan v tseliakh povysheniia effectivnosti organizatsii operativno-rozysknykh meropriatii na setiakh telekom-munikatsii Respubliki Uzbekistan”) on 22 March 2007. No further information, however, is provided about the adoption and official promulgation of the law. See <http://www.parliament.gov.uz/news/2007/r4_12203.html>.

166 Art.4(2), Polozhenie “O Hosting-Tsentrakh”, No.138/2003, promulgated by Order of the Uzbek Agency for Communications and Information No.26, signed 28 January 2004 (unpublished; available upon request from Center on Development and Implementation of Computer and In-formation Technologies (UZINFOCOM)) (hereinafter “Regulations on Hosting Centers”).


empowered to threaten ISPs with a revocation of their business license, the Uzbek regulatory system forces the ISPs to censor Internet content in violation of the constitutional prohibition of censorship. At the same time, however, the question of whether the Constitution also guarantees protection against censorship by private actors cannot be answered affirma-tively. While the Constitution primarily recognizes the rights to freedom of expression, information and the mass media as negative rights against governmental intrusion, the debatable point is whether these rights can be construed in a positive sense in order to provide for the entitlement to governmental protection against infringement by private actors. Article 43 of the Constitution requires the state to guarantee human rights, i.e., to provide for measures for the practical exercise of constitutional rights and to refrain from creating obstacles thereto.167 As of yet, however, the doctrine of positive obligations with respect to civil and political rights has neither been developed in Uzbek constitutional theory nor formulated by the Constitutional Court.168

The second objection to the current Uzbek regulation of access to and distribution of Internet content is the ISPs’ responsibility to precondi-tion access to the Internet on the observance of national legislation by Internet users. Conferring the power upon ISPs to decide questions of application of the law with respect to the legality of Internet content has implications for the direct infringement of the right to freedom of expression without any procedural safeguards. Such powers contradict Article 19 of the Constitution, which states that only a court has the authority to deny or restrict constitutional rights. Finally, since Uzbek legislation does not require particular minimal standards of transparency and accountability for ISPs to remove unlawful content, the potential for massive over-blocking of legal content and denial of Internet access services remains high.169

5. ConclusionIt is generally argued that no government in Central Asia has asserted its control over the Internet to the same degree as control over the traditional press.170 This view no longer holds true with respect to the Uzbek govern-167 See L.F. Kashinskaia, “Commentary on Art.43 of the Constitution”, in Urazaev, op.cit. note 70,

254-258, at 255. 168 Notwithstanding the fact that the Uzbek Constitution does not contain a general constitu-

tional duty for the state authority to protect human rights against impairment, Uzbek legal doctrine does acknowledge such a duty as an aim of a state governed by the rule of law. See Saidov, Tadzhikhanov and Odilkoriev, op.cit. note 96, 379.

169 See OSCE Representative on Freedom of the Media, op.cit. note 19, 18.170 See Guard, op.cit. note 10, 135.


ment. The national regulatory framework for the exercise of the right to freedom of expression on the Internet brought about the institutionaliza-tion of multifold control mechanisms over the Internet as a medium of communication, both on behalf of the state and private actors.

In principle, Uzbek citizens are unable to exercise their constitutional rights to freedom of expression, information and mass media in a meaning-ful manner as a result of the national ‘legislation of restrictions’ generated with respect to these rights. Characteristically for Uzbekistan, the scope of the constitutional protection granted to these rights has become nar-rower; it is put in relation to the mentality of national traditions, passive obedience to which the government is striving to inculcate into society through ideological means. The role that law plays in the furtherance of the state’s ideological aims was exemplified by the information security restrictions on freedom of information. The extremely broad scope of the private and public interest that information security seeks to protect may jeopardize the constitutional rights in question and, therefore, have to be repealed. In the end, the efficacious restrictions of information security ably demonstrate the genuine differences in an understanding of the ideas of freedoms of expression and information, the low level of value and protection given to free expression relevant to political discourse as exist in Uzbekistan and compared with those under international human rights law and jurisprudence.171

The regulation of the exercise of freedom of expression on the In-ternet reflects upon the weakness of the Uzbek constitutional system of human rights protection. Namely, the constitutional text has been unable to provide security against arbitrary governmental interference with human rights by asserting the absolute value of state interests. Therefore, taking into account the absence of effective legal guarantees and the ideological-political nature of restrictions on freedom of expression, it seems a highly plausible prediction that the Uzbek legal regime of human rights protec-tion may end up in restating its roots in a Soviet-like system of human rights protection. As the precedent shows, the danger of trivializing the principle of freedom of expression as proclaimed in the Constitution is immense in such a case.

Against the background of the regulatory framework on freedom of expression on the Internet, the resolute statement on behalf of the Uzbek government that its information policy aims to ensure “proper and full observance” of the constitutional principles of freedom of expression

171 See, however, the letter dated 26 June 2006 from the Permanent Representative of Uzbekistan to the United Nations, addressed to the Secretary-General, UN Doc. A/60/914, 30 June 2006, para. d, which denies as unfounded allegations of an intolerance of any kind of dissent expressed in the independent media.


and information does not have particular persuasive force.172 Rather, it is the statement that the respect for human rights of opinion, expression and information is the “most urgent, painful and unresolved problem” in Uzbekistan that has a serious ground.173 It remains, therefore, important for the Uzbek government to bring national legislation affecting freedom of expression into conformity with international human rights commit-ments. Short of that, it would be tempting for the Uzbek government to abridge the scope of constitutional rights and to continue to arbitrarily restrict access by the public to the diversity of opinions that ultimately enable democratic debate and commitment in the future.

172 Ibid., paras. d and m.173 OMCT-Europe and the Legal Aid Society, “Denial of Justice in Uzbekistan: an Assessment

of the Human Rights Situation and National System of Protection of Fundamental Rights”, Tashkent, Brussels, April 2005, 16, available at <http://www.omct.org/pdf/omct_europe/2005/omct-las_uzb_report_04_05.pdf>.

Freedom of Expression on the Internet: The Case of Uzbekistan

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