IP|Expertennotizen: Aleksey Ponomarev, Internet Regulation in Belarus

Die Expertennotizen von IP|Notiz sollen ein Forum für Experten im so genannten „Grünen Bereich” und daran angeschlossenen Rechtsgebieten bilden. Unser Ziel ist es, damit den öffentlichen Austausch in unserem Rechtsgebiet auch im Internet zu fördern. Die mit einer Veröffentlichung im Internet einhergehende Transparenz des wissenschaftlichen Diskurses für die Öffentlichkeit ist uns dabei ein wichtiges Anliegen.

During the last few days a new Belarusian Internet regulation has come into the center of attention of various online media resources. It seems that the rules of the recently enacted President Edict N 60 have been interpreted in a wrong way and caused serious confusion in the worldwide media. The sensation from Belarus named as “Belarus Bans Browsing of All Foreign Websites” is being widely discussed and has been republished by various online media resources (La Stampa, ZDnet, TorrentFreak, The Next Web etc.). The initial source of incorrect assumptions surprisingly seems to be the US Library of Congress, which published the article referring to Belarusian “yellow pages” Interfax news agency.

The occurred confusion can be explained by the lack of objective and qualified information on Belarusian Internet regulation on the one hand and the ambiguity of the provisions of law regulating to the Internet on the other hand. In this article I will provide a short overview of the effective Internet regulation in the Republic of Belarus.

Legal Framework

It is important to understand that the Presidential Edict N 60 on Measures to Improve the Use of the National Segment of the Internet Network (hereinafter mentioned as the Edict) has fully entered into force on 1 July, 2010, and its provisions are in force for already 1.5 years. Since entering into force, the Edict, being supported by subordinate legislation, has not brought about any radical changes to the Belarusian online market or heavy limitations of human rights and freedoms. Neither visiting foreign websites is considered a violation of the law nor has any foreign website been blocked since both these measures are not prescribed by the Edict.

The enforcement of sanctions for violation of provisions of the Edict has become the subject of hot discussions these days (I have analysed this on my blog before) . The Law Amending the Administrative Offences Code (hereinafter mentioned as the Law) enters into force on 6 January, 2012, enacting the sanctions for violation of the provisions of the Edict in form of a fine (approx EUR 32 to EUR 96) as the only possible legal sanctions applicable for violation of rules prescribed by the Edict. Any kind of other sanctions in the form of limitation of access to websites or other measures are prescribed neither by the Edict nor by the Law.

Online Business Regulation

The Edict in fact contains certain limitations of the operation of websites in Belarus – however, they are not as harsh as recently discussed in the media.

First of all it should be mentioned that there are no legal obstacles for any Belarusian resident to operate a website under international top-level domains (.com, .net, etc.) or national domain names of other states (.ru, .ch, it. etc.), furthermore, non-residents are free to operate the website registered in the national domain zone “.by”.

The main reason for confusion is Clause 2 of the Edict, obliging websites to host its content on servers in Belarus, as the wording of the Clause 2 is very ambiguous:
“Activity on selling goods, performing works or rendering services on the territory of the Republic of Belarus with use of information networks, systems and resources connected to Internet shall be conducted by legal entities, their branches and representative offices, established in accordance with the legislation of the Republic of Belarus, located in the Republic of Belarus … with use of information networks, systems and resources located (hosted) in the Republic of Belarus and duly registered”.

In other words it enacts the requirement for legal entities and entrepreneurs to host websites, such as sale of goods, rendering of services, performing works, within the territory of the Republic of Belarus.

In the situation of absence of any official clarification or court precedent, different variants of interpretation of Clause 2 have appeared. However, basing on the comments of the regulator and opinion of Belarusian leading law firms, the common interpretation has been worked out as follows: the hosting requirement is applicable only to Belarusian legal entities and individual entrepreneurs. This interpretation is indirectly proved by the wording of the Article 22.16 of the recently enacted Law Amending the Administrative Offences Code.

It should be noted that sanctions for violation of the Edict will apply only to legal entities and entrepreneurs, but not to Internet users trying to access websites violating the Edict.

Enactment of these restrictions may be explained by protectionist measures of the government and the general intention to establish control over the activity of Belarusian legal entities and entrepreneurs conducting business online.

Obviously, the obligation for Belarusian residents to host websites in Belarus is regressive, limits the freedom of online business, and, even more important, it gravely damages investment and business climate. However, it obviously does not in any way limit the activity of international internet service providers like Google and Amazon and others.

Internet users’ identification and personal data retention

According to Clause 6 of the Edict ISPs are required to identify users and technical devices providing connection and retain personal information and logs for one year. It should be noted that this requirement does not differ from usual worldwide practice of data retention, for example, the EU Directive 2006/24/EC on Data Retention prescribes the EU member states the storage of Internet traffic and transaction data for certain amount of time from 6 months to 2 years.

More unusual and disputable is the requirement to identify and to register users in the places of public access to the global network (Internet cafes, hot spots) prescribed by the Edict, which caused negative reactions in Belarusian society. According to Clause 6, all visitors of Internet cafes and other public places of Internet access have been obliged to provide passports or other documents identifying the user in order to use the Internet. Organizations providing public Internet access are responsible for retaining personal data of users and logs. Failure to do so may be fined according to the new Law. However, users can not be fined for accessing the net without identification

As additional human and financial resources and time are needed to exercise compulsory registration of users and retention of data, the number of hotspots and facilities with public Internet access has decreased.

The Edict provides a closed list of subjects which have access to personal information of users, in particular, organs pursuing criminal investigation, courts, taxation and control organs, however, it does not require a court order or warrant to access personal information, which is needed, for example, in Germany, according to national laws implementing the EU Directive. That gives these organs unlimited access to personal data which causes reasonable concerns.

Unreliable procedures of data retention and lack of guarantees of privacy are subjects of current concern in Belarus. On the one hand, there is a real threat regarding the monitoring of opposition and opponents to the political regime for the purpose of subsequent repression; on the other hand, there is no adequate Personal Data Protection Law in Belarus, except for the Law on Information, Informatization and Protection of Information which provides only general framework for personal data protection. Privacy guarantees are not well developed and further elaboration of data protection legislation is urgently needed in order to safeguard privacy of the Internet

Internet Censorship

One of the most disputable fields of regulation of the Edict is limitation of access to harmful information. Obviously any type of Internet censorship is a very ambiguous and sensitive issue.

Clause 8 of the Edict provides the list of harmful information, which includes information aimed at:

  • carrying out extremist activity;
  • illicit circulation of weapons, ammunition, detonators, explosives, radioactive;
  • contaminating, aggressive, poisonous, and toxic substances, drugs, psychotropic substances, and their precursors;
  • assisting illegal migration and human trafficking;
  • spreading p0rnography;
  • promulgating violence, brutality and other acts prohibited by law.

Regulation N 4/11 of the OAC and the Ministry of Information of 29 June, 2010 sets forth the scheme of the limitation of access to harmful information in the Internet.

The filtration is carried out by ISPs on the ground of public open blacklists which are managed by a specialized body – the State inspection on electronic communications (BelGie).

Organs of criminal investigation, prosecution, courts and the OAC are entitled with the right to supplement blacklists with new web resources containing harmful information in the meaning of Clause 8. Chief executives of these organs should submit to BelGie request with information indicating web resources (IP address, URL, domain name) and reasons for censorship specifying the law which qualifies its information as illegal. Internet users, companies and organizations can initiate inclusion in the blacklist of the websites which they consider harmful. If BelGie finds that request does not corresponds the requirements or reasons for filtration are not clear enough, it has the right to deny the request. Moreover, the blockage of web resource can be appealed in court.

The Edict enacts two schemes of the Internet filtration:

  • compulsory limitation of access to government authorities and organs, educational and cultural establishments;
  • voluntary limitation of access on user’s personal request.

Thus, in the first case (scheme 1) ISPs are obliged to carry out filtration for mentioned above subjects, in other cases (scheme 2) the voluntary limitation of access can be applied only on the ground of request of Internet user.

Therefore, filtration is not obligatory in Belarus, except in the case of the mentioned establishments in scheme 2, and, – this is important – the list is open to the public. Most of the users are free to choose if they want the Internet filtration to be applicable to them or not.

Nevertheless, any kind of filtration affects the reputation of the state in a negative way. The Reporters Without Borders included Belarus into the “watch list”, which means that the freedom of speech might be under threat. The OpenNet Initiative classified Internet filtering in Belarus as selective in the political, social, conflict/security, and Internet tools areas in November 2010. Taking into account the facts of pressure on independent media, which took place in the past, the attention to the Belarusian new filtration scheme is reasonable.

In the political sense the government does not need legalized filtration. On the one hand, most users who post online media practice a degree of self-censorship, being identified and monitored, prompted by fears of regulatory prosecution. On the other hand, new instruments of censorship are in active use. In particular, “Distributed Denial of Service” (DDoS) attacks have been practiced on a number of pro-democratic news sites on the dates of anti-government protests and elections days.

Conclusion

Undoubtedly, the Internet in Belarus which has always been an independent medium is now more than ever at risk of becoming the most controlled source of communication. This is especially dangerous in a situation when most of the traditional media, except several newspapers, are under control of government, and the Internet is the last chance to express opinion independently.

However, the situation of a full cut-off of the Internet is not likely to happen in Belarus, as well as blockage of foreign websites selling goods, rendering services to Belarusian territory. Even a repressive government, which opens its doors partially to the Internet, couldn’t stop the flood of information, which then has a very strong democratic effect on the country. The Internet is like snowball, which is rolling and getting bigger and bigger and cannot be stopped.

Aleksey Ponomarev is a lawyer in Belarus and specialist in Information Technology and Telecommunications law, focusing also on Internet content regulation, Intellectual Property issues, freedom of expression & privacy online. He publishes regularly on these topics at http://www.itlaw.by.

 
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