Analysis of the Draft Law of the Republic of Kazakhstan

“On the Introduction of Changes and Supplements to Several Legislative Acts

of the Republic of Kazakhstan on Issues Related to Informational-Communications Networks” and Kazakhstan’s OSCE Obligations in the Field of Media Legislation

The Threat

Kazakhstani legislation regulating the activities of the media and journalists remains one of the harshest in the post-Soviet space.  As promised by Kazakhstani Foreign Minister Marat Tazhin at the Madrid OSCE Ministerial Council meeting, In December 2008, parliament passed “joint draft amendments to the Law on the Media that reflected the OSCE’s recommendations.”  In fact, this draft failed to resolve most of the real problems facing the Kazakhstani media, as it actually includes only a small number of positive changes.  Then, on January 5, 2009 the government sent to the lower house of parliament another draft law entitled “On the Introduction of Changes and Supplements to Several Legislative Acts of the Republic of Kazakhstan on Issues Related to Informational-Communications Networks.”  If passed, this bill would provide the government with the legal means to seriously restrict the distribution of information through traditional media and through the Internet, including both domestic and foreign sites.

The draft would:

·         Expand the range of Internet sites treated as mass media and therefore liable to the types of harsh legal punishments to which traditional media are subject.

·         Allow prosecutors to temporarily close down websites without a prior court ruling.

·         Create a special court proceeding that would allow the suspension or ban of the distribution of information in Kazakhstan of information on foreign web sites without the participation of the foreign party.

·         Significantly broaden the grounds on which the distribution of information through the media can be suspended or stopped.

Passage of this law would mark a significant step backwards for freedom of speech in Kazakhstan at a time when the Kazakhstani government is claiming that it is taking steps to fulfill its Madrid commitments, including in the area of media freedom.

In order for Kazakhstani legislation to avoid crossing the line between legal regulation of Internet activity into simple censorship covered by a pretty facade of slogans, this draft bill requires a basic makeover with the participation of broad groups of society so that it can be brought into accordance with international standards for freedom of expression and the receipt and distribution of information regardless of state borders.

Problematic Provisions

1.      The draft proposes to change the term “web site” in all Kazakhstani legislation to “Internet resource.”  The definition of the new term is formulated in the Law “On Information”:

“An Internet resource is an electronic information resource, the technology for its management and/or use and the informational-communications network functioning on the basis of open technology, and the organizational structure guaranteeing their informational coordination.”

Because Kazakhstani law considers web sites to be mass media, this language change will have the effect of subjecting all material on the Internet to the same range of criminal, civil and administrative punishments as currently apply to traditional media under the Law “On Mass Media,” one of the harshest media laws in the entire post-Soviet space. 

There is no basis for considering all Internet resources without exception to be mass media, including blogs and pages intended family and friends that are rarely revised and that are visited by only a limited number of people.  Even from a strictly practical point of view, it would be impossible to enforce observation of the legislation on media in all bogs, chat sites, WAP-portals, Internet-TV and P2P sites.       It is imperative that the bill be amended to set out clear criteria for determining which Internet resources are mass media and which are not.

2.      The draft bill also proposes to make changes in Points 1 and 2 of Article 13 of the Law “On Mass Media” to broaden the circle of those with the right to suspend or terminate the distribution of any mass media, either domestic or foreign.  Existing law gives this authority to the ownership of the media and the courts.  The draft law proposes to extent this right to the Prosecutor General, stating that: “In cases where the violation of the law is clear and if it is not stopped quickly could cause substantial harm to the legally protected interests of society and the state, the Prosecutor General will have the right to suspend its distribution on the territory of the Republic of Kazakhstan while appealing to the courts within three-days of this decision for a ruling declaring the distribution of this information a violation of legislative acts.”

This provision is unconstitutional, introduces opportunities for the subjective application of the law, contradicts a number of existing laws and would greatly reduce the rights of those who distribute and consume information.  In particular the term “clear” is highly subjective and the authors of the project provide no criteria for determining what a “clear violation” is.  Instead, they simply list the block of prohibitions of a political character contained in existing legislation.  If the bill is passed, any report on a strike, an inter-ethnic conflict or of something said during a campaign discussion could be treated as a violation and serve as the basis for the closing of an Internet site.  This provision violates the constitutional principle of assuming political and ideological pluralism and the constitutional guarantee of freedom of speech.

3.      The draft proposes to create a special judicial proceeding to limit information presented on foreign Internet resources, without even bothering to indicate how they define the territory of Kazakhstan on the Internet or how they will determine what is a foreign and what is a domestic Internet resource.  They do not, for example, indicate if they will base the decision on the use of the domain name “.kz” or if the physical location of the server or of an Internet resource’s office on Kazakhstani territory will be the determining factors.

This process would begin with a petition by the prosecutor or the authorized agency to the court in Astana and would take place in the absence of the foreign party.  It would appear that no one would even need to inform the foreign Internet resource of the charges, let alone listen to their explanation or provide information about the court proceedings or the rights of appeal.  In order to ensure the constitutional principle of the equality of the sides in court, means need to be put into place to guarantee the participation of the foreign party in court and only implement the special procedure if these efforts are unsuccessful.

The procedures for enforcing this provision remain completely unclear, particularly given that there is no requirement that the source of the information or the responsible party be identified.  Whose distribution of the information will be suspended or banned?  Is it not possible that this provision could lead to the banning of entire networks such as LiveJournal.com?  It is also unclear what technology would be used to suspend the distribution of media products on the Internet.  Will entire web portals, social networking sites or IP addresses be blocked?

This provision violates Kazakhstan’s obligations under the International Covenant on Civil and Political Rights (ICCPR) as Point 2 of Article 19 of the Covenant states that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Moreover, the bill states that should a court decide to stop the distribution of the product or an edition of an Internet resource this decision carries with it a ban on the use of the site’s domain name for a period of up to three months.  It is unclear how this could be accomplished with respect to a foreign-based site, and in fact it would not be possible.

4.      The law would significantly expand the grounds on which the distribution of media can be suspended or stopped. In addition to the existing rather long list of grounds, the new draft adds the following:  “the use of media to violate the conditions for carrying out electoral agitation, the activities by foreigners, persons without citizenship, foreign legal entities or international organizations that would either complicate and (or) support efforts to publicize or elect candidates, political parties, party lists, or to create a particular electoral result, the conduct of agitation during the period when it is forbidden, effort to force people to participate in or not participate in peaceful assemblies, protests, pickets and demonstrations.” The draft would also provide for a ban on the distribution of media products “designed to incite inter-ethnic and inter-confessional hatred.”

The exceedingly general nature of these grounds, combined with the severe maximum penalties for media violating them – suspension or even closure – would in practice allow for baseless repression of Internet media.  Any report on a strike or an inter-ethnic conflict, and statement made during a discussion about the course of an election campaign could serve as the grounds for the suspension or closing of site or for other less harsh punishment.  This provision violates the constitutional principle of political and ideological pluralism and the equality of all before the law, and violates Kazakhstan’s international obligations to protect freedom of speech and creative freedoms.

Conclusions and Recommendations

It is generally agreed that there is a need to make clear the relationship between the state and representatives of Internet society, to clarify the participants in the process of regulating the Internet and their functions, to protect society from amoral and destructive information.  In general, the intention of the government to legitimize and clarify the legal framework and to set out the judicial process of blocking an Internet resource should be seen as positive.  In this draft bill, however, they have failed to achieve this aim.

The idea of giving prosecutors all encompassing control of all Internet resources on the planet, both domestic and foreign, is unacceptable.  Selective repression of particular Internet resources will only diminish the authority of the Kazakhstani government, both within the country and in the eyes of the global Internet society.

The broadening of the lists of grounds for closing media and the introduction of an extra-judicial procedure to close media contradict Kazakhstan’s obligation to liberalize its media legislation.

In order for Kazakhstani legislation to avoid crossing the line between legal regulation of Internet activity into simple censorship covered by a pretty facade of slogans, it is necessary to carefully define basic concepts, particular the issues of what is the Internet, what is the policy of the Government of Kazakhstan towards the Internet, where are the practical boundaries of legal regulation, what is the legal definition of territory on the Internet, and whether it is possible to define it in terms of national jurisdictions.

The draft requires a basic makeover with the participation of broad groups of society in order to be brought into accordance with international standards for freedom of expression and the receipt and distribution of information regardless of state borders.