Why Should the Constitutional Court Have Suspended Russian Law? - Two Judges Present Dissenting Opinions

"We believe that our colleagues, within the scope of this case, have incorrectly assessed the consequences that may arise from granting media organizations the status of entities carrying the interests of a foreign power and registering them as such. Under the current validity of the disputed norms, the designation of media organizations by the state with a name that carries negative connotations, coupled with the obligation to register under this designation, calls into question their independence by a priori categorizing them as entities serving foreign interests. This fundamentally damages the business reputation and credibility of media organizations and fosters a hostile, stigmatizing attitude toward them in society. We believe that the obligation to register in the state register under a damaging label, operating under the stigma created by or on behalf of the state, poses a significant risk of irreversibly violating the rights of media organizations. Such violations cannot be restored even if the Constitutional Court later recognizes the disputed norms as unconstitutional.

Additionally, we contend that the Constitutional Court should also suspend the operation of the disputed norms that provide for access to protected information in media organizations and the obligation to publish information containing personal data. In this context, the plenum of the Constitutional Court cited amendments made to the by-law and other legislative acts as an argument for not suspending the validity of the disputed norms. They concluded that the plaintiff is no longer required to submit or disclose problematic personal data. However, we cannot agree with our colleagues' position that the content and scope of the disputed law can be mitigated by changes in the by-law issued for its implementation. Furthermore, the scope of access to protected information in media organizations cannot be diminished by regulations in other legislative acts, given that the disputed norms independently regulate the right and extent of obtaining information. Thus, the Constitutional Court's interpretation regarding the content of the restrictions arising from the disputed norms and the scope of information that can be obtained or published by the state is fundamentally flawed. We assert that, in light of the content of the disputed norms, the state is granted the right to obtain confidential information and publish it publicly, which may pose an immediate and irreversible threat to the right to inviolability of personal and family life protected by Article 15 of the Constitution of Georgia." The authors of the dissenting opinion separately evaluate the necessity of implementing the disputed norms, particularly regarding the obligation to label entities as organizations acting in the interests of a foreign power and to register under that designation, as well as concerning access to protected information in public organizations and the obligation to publish personal data.

Obligation to Be Named as an Organization Carrying Out the Interests of a Foreign Power and to Register with the Same Name in the Register

Referring to an organization as serving someone else's interests inherently implies that it does not act independently to achieve its self-defined goals but instead operates under the directives or orders of another party.

Marina Beridze, Doctor of Philology and Director of the Linguistic Data Processing Department at the Arnold Chikobava Institute of Linguistics at Tbilisi State University named after Ivane Javakhishvili, highlighted the sharply negative connotations of the terms used in the disputed norms. As per the expert’s analysis, as well as the study presented by the plaintiffs - Linguistic Analysis of the Georgian Law on the Transparency of Foreign Influence - the research conducted using terminological and corpus linguistic methods reveals that the key terms in the contested law, "foreign power" and "carrier of interests," carry a strongly negative meaning in the Georgian language and socio-cultural context.

These problematic terms indiscriminately label all organizations as biased entities, emphasizing their dependence on others and negating their autonomy and that of their founders. Such normative positioning by the state could significantly damage the business reputation of media organizations, undermine their credibility, and foster a hostile, stigmatizing attitude toward them in society.

It is also noteworthy that the designation mandated by the disputed norms not only undermines the independence of media organizations but also portrays them as serving the interests of a foreign power. By conferring this status, organizations governed by the disputed law are presented as dependent entities that follow the directives of a foreign power, potentially acting contrary to the interests of Georgia.

The common values, ideas, and interests around which individuals unite to create a voluntary platform are degraded by this controversial terminology, which fails to represent national interests. The activities of organizations are reduced to merely providing services for their funders.

Under this controversial terminology, non-entrepreneurial (non-commercial) legal entities and media operating within the law are not viewed as defenders of national values or as essential elements for society and democracy. Instead, they are characterized as serving foreign interests and those who wield that power.

Moreover, the disputed norms not only label (media) organizations negatively but also require them to apply to state authorities to obtain the status of a carrier of the interests of a foreign power. As mentioned, this designation is damaging to the reputation of independent organizations, has the potential to undermine their objectivity and credibility, and hinders their effective functioning. This perception is further aggravated when media organizations are compelled to seek approval from the relevant authority to obtain the disputed status and register in a special register, thereby self-identifying as such.

It is important to consider that Georgia still faces numerous challenges in establishing effective democratic governance, the rule of law, and the proper realization of constitutional rights. In such countries, media organizations can play a crucial role in shaping and developing state institutions, facilitating public decision-making, and informing citizens about the governance process. However, active involvement in these processes - particularly ensuring the participation of ordinary members of society - will be difficult, if not impossible, without public trust in media organizations and the belief that they act independently and impartially. Gaining societal trust and overcoming the existing nihilistic attitudes is a complex and lengthy process. In contrast, in an already fragmented society, it is relatively easy to undermine trust and create a hostile environment by questioning the independence and credibility of (media) organizations.

At the same time, the controversial law allows for the imposition of this status on media organizations that do not voluntarily register under a reputation-damaging label, along with the possibility of imposing severe financial sanctions for violations of the law's requirements. As a result, under the current validity of the disputed norms, entities subject to the law are forced to adopt a stigmatizing name against their will and must operate under this designation. Additionally, they may face substantial financial penalties, further hindering their activities. Thus, it is clear that the negatively connoted terms used in the disputed law, the requirement to register under such a designation, and the long-term association of this damaging status with media organizations can significantly undermine their credibility. This may interfere with their operations and, in some cases, even lead to their paralysis, ultimately indicating a real danger of causing irreparable harm.

Regarding the issue of suspending the norms that establish the obligation to register as an organization carrying out the interests of a foreign power, the position of the Plenum of the Constitutional Court is unclear. The motivational section of the minutes does not present independent legal reasoning from the Constitutional Court; rather, it reflects the claimant's perspective on what constitutes a limitation of their rights. Beyond summarizing the arguments made during the constitutional lawsuits and the regulatory session, the Constitutional Court has not clearly defined how the terms used in the disputed norms limit the plaintiffs' rights. According to the Court's interpretation, if the disputed norms are recognized as unconstitutional, the court's decision would purportedly mitigate all negative consequences perceived by the plaintiffs - namely, operating under a status with a negative connotation that threatens their independence, undermines their confidence, and damages their business reputation - thereby restoring the original situation (see paragraph 57 of the motivational part of the minutes). In this context, the Constitutional Court has not adequately substantiated how the plaintiffs' damaged reputation resulting from registration with a stigmatizing status for months or years, along with the harm caused by interruptions to their activities, can be rectified.

The decision not to suspend the disputed norms by the Constitutional Court is particularly problematic, especially given that even the defendant party could not identify what legitimate purpose would be served by labeling or registering media organizations under this specific term during the regulatory session. In contrast, the plaintiffs clearly articulated the limitations on their rights and the risk of irreparable harm they face.

Furthermore, the plaintiffs emphasized the role of media organizations in observing and covering the elections scheduled to take place soon as evidence of the irreparable damage they could incur. Specifically, they argued that the disputed norms aim to stigmatize them so that their observation and coverage of the electoral process, as well as their expression of opinion, are not perceived by the public as stemming from an independent and impartial organization.

It is during the election period that the need for and importance of media organizations effectively performing the role of "public watchman" through the exercise of their constitutionally granted powers becomes even more critical.

Self-identification by organizations within the scope of the law as pursuing foreign interests can significantly damage their objectivity and undermine their credibility. This, in turn, may call into question the public's trust in the information, observation results, and positions they disseminate.

The threat of irreparable and immediate damage is particularly evident regarding the potential disruption of the observation and coverage of the electoral process, as well as the effective performance of the "public watchdog" role. Registration under the name stipulated by the disputed law may lead to the stigmatization of media organizations. Conversely, failure to comply with this obligation could result in specific sanctions that further hinder their activities.

In this context, there is no legitimate interest served by being designated as a carrier of the interests of a foreign power and registered under that name. At the regulatory hearing, the representative of the respondent also confirmed that using this label does not fulfill any purpose, and the objectives of the disputed law could equally be achieved with a name of neutral connotation.

Thus, it is clear that the designation provided by the disputed law is self-serving in nature and does not advance any legitimate interest. Furthermore, being referred to by a name with a distinctly negative connotation, rather than employing neutral terminology, naturally indicates an intent to stigmatize and foster negative public attitudes. Under the current validity of the disputed norms, the obligation to register in the state register under a name that undermines trust and reputation will undoubtedly result in the irreversible violation of the rights of media organizations. Moreover, even if the Constitutional Court ultimately recognizes the disputed norms as unconstitutional, this will not restore the rights that have been irreversibly violated.

Access to Protected Information in (Media) Organizations and Publication of Information Containing Personal Data

The plenum of the Constitutional Court cited as an argument for not suspending the validity of the disputed norms the changes made to the by-law, indicating that, as a result, the plaintiff is no longer required to submit or disclose the personal data it considered problematic. However, we cannot agree with the position of our colleagues that the content and scope of the disputed law can be diminished by changes made in the by-laws issued for its implementation. The question of access to protected information in media organizations is regulated independently by the disputed norms. Among these, it is established that an authorized person can request the necessary information for specific purposes. This includes the data outlined in Article 3, subsection b of the Law of Georgia on Personal Data Protection, along with other personal data and information containing secrets (excluding state secrets as stipulated by Georgian legislation). Given that the content and scope of the information that can be obtained by the authorized person are clearly defined by the disputed norms, it is unclear what effect the changes made in the by-law may have on this.

Furthermore, we cannot agree with the Constitutional Court's interpretation regarding the relationship between the disputed norms and other legal acts, as it is fundamentally flawed.

According to the disputed norms, seeking information by an authorized person entails, among other things, requesting information from any individual, body, organization, or institution, which are obliged to submit the information they possess. Thus, an analysis of the Law of Georgia On the Transparency of Foreign Influence indicates that for those entities designated as carrying out the interests of a foreign power, the state has both the authority to seek information for the purposes of their registration and the obligation to publish a portion of the information obtained (including the data specified in paragraph 3 of Article 4 of the aforementioned law) on its website. Beyond this, the state can request information from any individual to review and examine the application or financial declaration submitted during the registration process as an organization carrying out the interests of a foreign power, as well as to identify such organizations or monitor compliance with any legal requirements. Thus, the circle of subjects from which the state can request information is effectively unlimited.

Thus, for the examination of the application or financial declaration submitted during the registration process as an organization carrying out the interests of a foreign power, the authorized person can search for any information as part of their monitoring duties. This includes information that contains commercial interests and sensitive data related to a natural person's racial or ethnic affiliation, political views, religious or philosophical beliefs, membership in a professional union, health, and sexual life. The only information that an authorized person cannot seek, or request is state secrets as defined by Georgian legislation.

Based on the above, it is clear that we cannot agree with our colleagues' position that the changes made in the by-law issued to enforce the disputed law and/or the arrangements in other legislative acts somehow reduce the volume or category of information accessible to the state.

Regarding the reference to other legislative acts that protect the rights of journalistic sources, individuals receiving legal assistance, or patients, the contested articles of the Law of Georgia On Transparency of Foreign Influence explicitly state that an authorized person can request any information, including a special category of data (such as information related to a person's health, sexual life, religion, etc.) as provided in Article 3, subsection b of the Law of Georgia On Personal Data Protection, except for state secrets specified in Georgian legislation. Since information about a journalistic source, an individual receiving legal assistance, or a patient does not constitute a state secret under Georgian law, it is evident that the contested law grants the authorized person the right to request such information.

Moreover, according to Article 7, Clause 8 of the Organic Law of Georgia On Normative Acts, in cases of contradiction between normative acts of equal legal force, priority is given to the later adopted (issued) normative act. The plenum of the Constitutional Court did not demonstrate that there are different types of information considered problematic by the claimant, including any legal act with later or superior legal force than the contested law that would prohibit access to data regarding a journalistic source, an individual receiving legal aid, or a patient.

Based on the disputed norms, the state can mandatorily demand the submission of information not only from entities that meet the criteria of organizations carrying out the interests of a foreign power but also from any individual, body, organization, or institution. The requested information is not limited to any specific category and may include sensitive aspects of a person's personal and family life, commercial and professional secrets, journalistic sources, and data specially protected by the Constitution of Georgia. Additionally, several types of data specified in the law are subject to public disclosure in the register, which may relate to contractual, financial, or professional activities and information containing commercial interests.

Thus, it is clear that the aforementioned disputed norms grant the state access to a rather sensitive and highly personal range of data related to individuals. This includes information belonging to the intimate sphere, protected by Article 15 of the Constitution of Georgia, and data containing commercial interests guaranteed by Article 19, among others. The transfer of such information to the state, let alone making it public, significantly diminishes individuals' sense of autonomy and security.

The state's sense of control and the threat of public disclosure of deeply private information can lead to increased self-censorship among individuals. For example, this may result in people refusing to become journalistic sources or refraining from seeking essential services (including social and healthcare services) from public organizations.

The contested legislation lacks any restrictive or filtering mechanisms for searching for protected information within organizations, except for the prohibition on disclosing state secrets. None of the norms in the Law of Georgia On Transparency of Foreign Influence provide guarantees against the transfer or disclosure of excessively personal information to the state.

To illustrate the absence of risks arising from the disputed norms, our colleagues pointed to specific examples published on the website of the National Agency of Public Registry of Public Registers. According to their explanation, certain organizations, ostensibly based on the legitimate goal of protecting individuals' rights, have obscured personal data to the extent that individuals cannot be identified. For instance, the name of a natural person receiving compensation is indicated only by the initials T.A in the source of expenses of AAP Society for the Next Generation. Additionally, there are instances where a non-identifying label is used instead of the name of a specific individual in the appropriate column; for example, in the source of AAP Peaceful and Business Caucasus, we find an entry labeled Consultant of the Abkhazian side (see paragraph 70 of the motivational part of the minutes entry).

Of course, we agree with the spirit of our colleagues that when publishing data, individuals' rights should be protected, and sensitive information that could harm people's rights or interests should not be made public. However, we cannot share the position that the publication of information on the website in any way alters the normative order established by the disputed norms or neutralizes the threats arising from them. Even in the current context, the state, based on the disputed norms, can request any information from any person (excluding state secrets) for the purposes stipulated by the law and then publicly disclose the data specified in the law without any concealment. Moreover, the contested law does not impose an obligation to obscure the information subject to disclosure in any form, and failing to do so could be considered unlawful. Without appropriate legal guarantees at the normative level, mere reference to the practices of subjects governed by the law cannot demonstrate the absence of threats to individuals' rights. In general, the fact that a specific organization did not disclose the name of the entity receiving the funds does not imply that the law granted it that opportunity. To illustrate, none of the 122 entities named as plaintiffs in constitutional lawsuit No. 1829 submitted any information to the public registry and have refused to register at all. Consequently, our colleagues could just as easily use this fact as an argument that the law does not establish an obligation to register in the public registry.

Once information about a person's income and expenses is published, or the identity of a journalistic source or beneficiaries is disclosed to state bodies and the general public, even if the Constitutional Court later finds the disputed norms unconstitutional, the disclosed information will remain public. Moreover, based on the disputed norms, from the moment of the obligation to transfer information to the authorized body until the Constitutional Court makes its decision, the volume of information transferred to the state - and subsequently subject to disclosure - will increase over time. Therefore, we believe that the publication of these applications, as well as the potential access to confidential and sensitive information from the public registry, represents an infringement of constitutional rights that creates irreparable damage. The Constitutional Court's decision cannot ensure the removal of disclosed information from the public domain or public consciousness.

According to constitutional principles, information considered confidential cannot be made public merely by asserting that "transparency is good." Regarding information protected by the constitutional right to personal life, the presumption of confidentiality does not apply; the state must justify not why this information should be protected, but what significant interests are served by making it public. The constitutional right to private life is fully undermined by an approach that allows the publication of information related to sensitive aspects of personal and family life, commercial and professional secrets, and financial matters solely to satisfy the personal interests of individuals. The mere fact that some people are interested in others' finances does not grant the state constitutional legitimacy to obtain and publicly disclose personal information for those interests.

Accordingly, when deciding on the suspension of the disputed norm, the Constitutional Court had to determine the extent to which the transparency of an organization's finances serves to protect important interests. It should also assess whether this interest is significant enough that its immediate pursuit, before the Constitutional Court's final decision, outweighs the risks of potential irreparable damage to the right to personal life resulting from the operation of the contested norm.

Our colleagues have overlooked the fact that, aside from the inherent benefits of transparency, the Defendant has failed to identify any interest that the challenged rules protect or any dangers that they prevent. Furthermore, the mentioned information has been confidential in Georgia for many years, and during the case review, no evidence was presented regarding the dangers associated with maintaining this confidentiality or the urgent need to make this information public before the Constitutional Court reaches its final decision. By not suspending the disputed norms, personal information is made public without a clearly defined purpose. Thus, it is evident that in this case, the rights of third parties and/or the public interest — which may be at risk of damage — do not justify the suspension of the validity of the disputed norms.