Practice of Restricting the Internet Content, Including Events of January 2022
Ylzhan Kabyshev
Head of the Landscape project, "Internet Freedom" human rights defender. Member of the Digital Rights Expert Group, Data Privacy Professional (GDPR DPP)
Introduction
Events of January 2022 produced an immediate impact on the Internet: both through direct shut-down of the Internet locally and across the entire country and by restricting and blocking certain content as a result of the monitoring conducted by the authorized governmental bodies.

As indicated in the Special Report ‘Qazaqstan Shutdown 2022: restrictions of digital rights during and after January events’, along with cutting off the Internet, influenced almost each and every user, including businesses, mass media, and even the government itself. 

Various data are reported in terms of the damage inflicted to the national economy. According to Top10VPN, the damage caused by the shutdown equals about $429 million, while according to NetBlock, this value slightly exceeds $460 million. 
International Standards
Cutting off the Internet in a country may be considered as a violation of human rights. On its 47thsession as of July 7, 2021, the UN Council on Human Rights adopted Resolution No. A/HRC/47/L.22 that “condemns unequivocally measures in violation of international human rights law that prevent or disrupt an individual’s ability to seek, receive or impart information online, including the Internet shutdowns and online censorship, calls upon all States to refrain from and to cease such measures, and also calls upon States to ensure that all domestic laws, policies and practices are consistent with their international human rights obligations with regard to freedom of opinion and expression, and of association and peaceful assembly, online”.

The “right to the Internet” or the “right to access to the Internet” is a debating point. Exemplarily, the authors of the research paper named ‘The Internet Shutdown and Limits of Law’, Giovanni De Gregorio and Nicole Stremlau, specify that the matter of the increasing the Internet shutdowns around the world, including Great Britain and USA, becomes more and more relevant due to the fact that social networks and messengers cannot handle ever growing adverse and harmful content. 

The researchers point out that from the perspective of the compliance with the principles of the realization of human rights the Internet should be considered as a “tool” or a “mechanism” of exercising the freedom of opinion and expression, and the access to the Internet, in its turn, is not a “right”, which suggests that the Internet shutdown cannot be considered a violation of human rights.
Indeed, nowadays the “right to the Internet” or the “right to access to the Internet” do not pertain in the traditional sense to human rights enshrined in the International Bill on Human Rights. Yet, we need to answer the question, whether the Internet shutdown can produce an adverse impact on human rights with regard to the “tool of the realization of human rights”. We should be guided by the following principles enlisted in the Siracusa Principles of Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights: 
a)    Justified limits;
b)   Pressing need;
c)    Legitimate aim;
d)   Proportionate to that aim.

The principle of the “justified limits” means that the grounds for limiting human rights must be envisaged in the Siracusa Principles. According to the Principles, the shutdown of January 2022 was a justified measure and may be considered a “derogation” as such restriction was imposed in the course of the state of emergency (SoE) introduced by the President of the Republic of Kazakhstan, at first in Mangistau Region and in the city of Almaty, and then throughout the entire country. According to clause 39 of the Principles, a state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights (ICPPR) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. 

The term ‘threat to the life of the nation’ is applied when the threat:
(a) affects the whole of the population and either the whole or part of the territory of the state; and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the state or the existence of basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant.

At the same time, a state party using its right to derogation shall introduce the state of emergency, which was basically done, and shall immediately notify the other states parties to the ICPPR, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and the reasons by which it was actuated. Unfortunately, it is still not clear if Kazakhstan has fulfilled this requirement. 

The notification shall contain the following information:
1.    The provisions of the Covenant from which the state party has derogated; 
2.    A copy of the proclamation of emergency, together with the constitutional provisions, laws or decrees governing the state of emergency in order to assist the states parties to appreciate the scope of the derogation;
3.    The effective date of the imposition of the state of emergency and the period for which it has been proclaimed; 
4.    An explanation of the reasons which actuated the government’s decision to derogate, including a brief description of the factual circumstances leading up to the proclamation of the state of emergency; and 
5.    A brief description of the anticipated effect of the derogation measures on the rights recognized by the Covenant, including copies of decrees derogating from these rights issued prior to the notification

A state party which fails to make an immediate notification in due form of its derogation is in breach of its obligations to other states parties and may be deprived of the defenses otherwise available to it in procedures under the Covenant.

Giovanni De Gregorio and Nicole Stremlau write:
“When the Internet shutdowns occur, they are usually met with condemnation by free speech advocates and the Internet freedom groups such as Access Now. Responses have, however, recently become more nuanced out of an increasing frustration with the slowness of social media companies to respond to online hate speech, and there is a growing debate around the responsibilities of these actors”. The scientific workers also say that “when states decide to block access to the Internet, they are interfering with important communications networks, no matter what justifications are in place. Many advocacy groups tie this to the interference of freedom of expression. This is an important argument [...] Nevertheless, we have to preface that the Internet access per se is not recognized by the UN as a human right”. 
The principle of the “pressing need” means that such limitation must be necessary for the state or for the society. When imposing any restrictive measure, they need to start out from answering the question “Is the Internet shutdown required by the security of the state and the society?”. This question was answered by Bagdat Mussin, the Minister of Digital Development, Innovations and Aerospace Industry. According to him, restricted Internet access was related to the fact that terroristic bands used communications means for coordinating and planning their activities. 

The principle of the legitimate aim means that any limitation must meet the following criteria: 
1.    Must be provided for by the national legislation and must not contradict international standards;
2.    Applicable laws must not be arbitrary or unreasonable; 
3.    Legal norms must be clear and specific, without any vague definitions;
4.    Adequate safeguards and effective remedies must be provided by law against illegal or abusive imposition or application of limitations on human rights 

Limitations imposed during January events and specifically the Internet shutdown, are stipulated by the Law "On State of Emergency” and the Law “On Communications”. The limitation of the communications constitutes a major measure to be applied during the state of emergency, having been established in subclause 10 of clause 1 of article 15 of the Law "On State of Emergency”. 

The state has a right to manager communications networks not for imposing limitations only, but also for the purposes of prioritization as specified in article 14 of the above-mentioned Law "On State of Emergency”. According to Palo Alto Networks, a company that provides cybersecurity services, ‘traffic prioritization’ (QoS — Quality of Service) is a set of technologies that work on a network to guarantee its ability to dependably run high-priority applications and traffic under limited network capacity. 

Article 41-1 of the Law “On Communications” describes the procedure for suspending activities of networks and means of communications. The General Prosecutor’s Office submits a plea to the National Security Committee (NSC) on taking measures for the temporary suspension of activities of networks and (or) means of communications or delivery of communication services, or submits a plea on eliminating offenses against law with the demand to take measures for the temporary suspension of the access to the Internet resources and (or) information published thereat to the Ministry of Information and Social Development (MISD).

In cases when time is of essence and delays can lead to the commitment of grievous and extremely grievous crimes, the NSC may, for the benefit of all parties involved in criminal intelligence operations, suspend activities of networks and (or) means of communications, stop delivery of communications services, and limit access to the Internet resources and (or) information published thereat with further twenty-four hour notification of all competent authorities in the field of communications and information as well as General Prosecutor’s Office. 
International Experience in Imposing the Internet Content Limitations in the Countries with the High Level of the Internet Freedom 
Iceland
According to the Report by Freedom On The Net 2021, Iceland had 96 index points of 100 possible and pertains to the group of the countries with the Internet freedom, having been ranked as the leader of the rating. Kazakhstan received 33 index points and was classified as a country with restricted Internet freedom. 

Censuring is prohibited by the Constitution of Iceland, and the country has a solid tradition of protecting the freedom of speech that holds true for the use of the Internet. Article 73 of the Constitution protects the liberty of speech and prohibits censorship. It states “Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression”. 

The Report by Freedom On The Net says that residents of Iceland enjoy high rates of access, few restrictions on content, and robust protections for human rights online. Iceland mostly restricts resources and links with children pornography. Organizations and population inform about suspicious links and send them to the relevant authorities for checking.
On June 10, 2009, two major Internet providers in Iceland, Vodafone Iceland and Iceland Telecom, proceeded with the restriction of access to the website ringulreid.org, making it inaccessible to most commercial the Internet users. Blocking of ringulreid.org was imposed at the behest of the National Icelandic Police, Icelandic Government Agency for Children Protection (under the Ministry of Social Affairs of Iceland), SAFT (Save the Children Iceland) and other private and governmental groups that made public announcements calling all national Internet provides to block the access to that website. 

Thus, censorship in Iceland is not under the direct control of the government, but is implemented voluntarily by private corporations in response to the pressure from the public and private sectors. At first, Vodafone conducted a legal audit to clarify if the company was entitled to restrict access to the website, and only then blocked it. Hrann­ar Pét­urs­son, an IT specialist of Vodafone, informed that the company adhered to the principle of non-intervention into the Internet content regulation, so the fact that website ringulreid.org had been blocked was a unique case.

Nonetheless, Iceland, as many other countries of the world, maintains active discussions of the best ways of protecting children, fighting against terrorism, preventing aspersion, and protecting proprietary rights. 

Estonia 
Estonia had 94 index points of 100 possible in the Freedom on the Net rating as stated in the Report by Freedom House, being ranked second after Iceland. Authors of the country-specific section dedicated to Estonia note that, in principle, the state does not have any control over the Net:

“The Government does not exercise technical or legal control over the domestic Internet resources, though the Cybersecurity Act, which put the Directive “On measures for a high common level of security of network and communications systems across the European Union” into force, provides for restricted authorities on the limitation of use and access to information systems in case of a cybersecurity-related incident”.

As in Kazakhstan, the state has a right to restrict access to the Internet in case an emergency situation occurs or a state of emergency is introduced in the country: “The government may restrict the Internet connections, as an exceptional and temporary measure, in case of ‘emergency situations’ or under a ‘state of emergency’, though it does not necessarily lead to the total Internet shutdown. The said period of coverage did not witness any restrictions imposed by the government or other connection failures”. 

In contrast to Kazakhstan, Estonian market of telecommunications services is very diverse. There are about 200 companies, including 6 mobile providers and a large number of the Internet providers (ISP). Researchers report that only a very few websites are blocked in Estonia, and political, social, and cultural content is at the free access to users. The major restriction of the Internet content remains in banning websites with illegal gambling games. According to the Tax and Customs Board (MTA), a January 2021, the list of illegal websites with online gambling games had over 1600 URL-links, which Estonian Internet providers must block. 

According to the Estonian laws, if any person is imposed with an effective prohibition against gambling games, gambling operators that are authorized to carry out activities in Estonia will not allow such person to gamble. Unlicensed gambling websites may be blocked by MTA. In terms of transparency and proportionality of the Internet content limitations, researchers state that all such limitations are transparent and legally justified. 

However, in 2015 the European Court of Human Rights (ECtHR) upheld a disputable decision of the Supreme Court of Estonia dated 2009 on the case of Delfi v. Estonia, which imposed liability of intermediaries for defamatory comments of third persons on news websites. ECtHR confirmed that holding intermediaries liable for third-party content published at their website or forum did not breach article 10 of the European Convention on Human Rights (ECHR) that guarantees the freedom of opinion and expression.

January 2022 Statistics of the Internet Limitations in Kazakhstan 

In January 2022, the access to approximately 821 web materials was limited in the Net, one of which was blocked under a court ruling, and 820 materials were banned on the extrajudicial procedure pursuant to 43 behests of the Ministry of Information and Social Development (MISD). More details on the grounds of those offences of law are given in the table below.

Banned by courts:
Banned by the MISD behests:
It should be noted that most of the materials acused in the dissemination of knowingly false information, namely 92 of them, were banned during January events. This information was providedby Kemelbek Oishybayev, the Vice Minister of Information and Social Development, on the 17th day of January. 

The punishment for disseminating knowingly false information is specified in article 274 of the Criminal Code (CC). If the crime is committed with the use of the Internet, clause 2 of the said article envisages the following punishment: 
-       Penalty for up to 3000 monthly calculation indices (MCI), or up to KZT 9 189 000 (1 MCI in 2022 = KZT 3063), or
-       Corrective labor in the same scope, 
-       Community service up to 800 hours, or 
-       Limitation of freedom for up to three years,
-       Deprivation of freedom for the same period. 

Imposition of the state of emergency in the country stiffens liability for the commitment of such offences of law and provides for tougher sanctions – limitation of freedom for the period from three to seven years, or deprivation of freedom for the same period. In this regard, Yerlan Turgumbayev, the Minister of Internal Affairs said
“People have to trust only official sources maintained by governmental bodies and law enforcement agencies. Clause 4 of article 274 of the Criminal Code imposes punishment of the deprivation of freedom for the period from three to seven years for the said crimes committed during the state of emergency”.
In the middle of February, the Ministry of Internal Affairs reported that 13 criminal cases for disseminating fake information about January events were being thoroughly investigated. Two suspects were arrested, and two more were placed under home arrest.

Pursuant to article 274 of the Criminal Code, 611 materials were blocked in the year 2021 in Kazakhstan, and 31 - in the year 2020. The court has much simpler statistics in respect of those legal grounds: 14 materials were banned in the year 2019; 1 material in the year 2020; 7 materials in the year 2021, and no materials were blocked in January 2022.

General Internet Content Limitation Statistics for the Period from 2014 to January 31, 2022

The below table gives general statistics covering the period from 2014 to January 31, 2022.
Ministry of Information and Social Development
Court statistics looks as follows:
As the Ministry of Information and Social Development reports, the General Prosecutor’s Office, in its turn, does not limit, in principle, the Internet content, or applies to courts if limitations are needed. It is known that such limitations were imposed in 2014 when 33 materials were banned for propagating ideas of terrorism and religious extremism, and 35 materials were blocked on the same grounds in 2015.
In general, according to the official data, about 93 860 Internet materials have been banned from January 2014 through January 2022, of which the share of extrajudicial limitations equals 99.08%.

Conclusion
Interestingly enough, that in January 2022 no materials have been blocked for providing adverse information that brings harm to health, morale, or intellectual development of children. The respective legislative norm on prohibiting such sort of information is reflected in the Law “On Protection of Children from Information Harmful to Their Health and Development”.

Yet, in 2021 that legal reason was among TOP-3 most popular grounds for blocking the Internet content. Since the article ‘What Content is Banned in Kazakhstan in the year 2021’ published by Digital Rights and Freedoms Landscape did not include data for October, November, and December 2021, this paper gives complete statistics for the previous year. The most common grounds remain the same:
1. Propaganda of ideas of terrorism and religious extremism — 3886.
2. ​​Propaganda of the cult of cruelty and violence, suicide and pornography — 3464.
3. Dissemination of information that brings harm to health and development of children — 2691.
Those reasons pertain to 76.52% of all limitations.

Following January events, on 9th day of March, the Mazhilis of the Parliament adopted controversial norms to regulate social networks and messengers within the draft law “On Making Amendments and Supplements to Certain Legislative Acts of the Republic of Kazakhstan on the Matters of Children Rights Protection, Education, Information, and Informatization”. Speaking of the Internet content regulation, that draft law envisages introducing new concepts in the Law “On Informatization” to define ‘social network’ and ‘messenger’ as ‘online platform’ and ‘instant messaging service’, respectively.

The Internet platform means the Internet resource and (or) instant messaging service intended to disseminate information for the communication of the user through the personal account created by such user where he/she publishes information, receives and (or) transmits symbols and (or) signals and (or) voice data and (or) written text, as well as images, sounds, and messages, to the specifically indicated person or to an indefinite range of persons, except for online platforms intended for the delivery of financial services and e-commerce.

The instant messaging service means a software product intended and (or) employed by users to exchange instant messages, or to transmit such messages to the specifically indicated person (or persons), in real time by using telecommunications networks, except for the use of information and communications technologies for the purposes of financial services and e-commerce.

In addition, it is planned to introduce an institute of ‘legitimate representatives’ for social networks and messengers whose average daily traffic exceeds 100 thousand users from Kazakhstan to interact with national governmental bodies and to execute behests of governmental authorities and courts orders on cancelling or banning access of Kazakhstani users to certain Internet materials within 24 hours.

Use of web counters will be mandatory for social networks and messengers, which are subject to Kazakhstani laws. However, the amendments so far envisage no liability for the absence of such web counter. If a web-resource refuses to fulfill this requirement, the Ministry of Information and Social Development will define the number of users on its own.

Government members justify those legislative norms to be introduced by the fact that cyberbullying is possible through the use of information and communications technologies.

Deputies Zakiyeva D.B., Sarym A.A., Kuchinskaya Yu.V., Absemetova A.M. and Nurumova G.A. motivate that “cyberbullying is an unlawful deed committed with the use of various means of information and communications technologies, so the draft law should be included with the relevant mechanism for the implementation of the legislative norm aimed to improve statutory regulation of governmental measures to counteract illegal content in the Internet, and, specifically, it is necessary to introduce definitions for ‘social networks’ and ‘messengers’ (‘online platform’) as well as establish clear-cut rules of their operation within the territory of the Republic of Kazakhstan”.

Human rights advocates, journalists, and members of the Digital Rights Expert Group expressed their position towards new regulatory norms and made a respective statement.

Reverting to the above-mentioned question, whether the case of the Internet shutdown in Kazakhstan complied with the national legislation and international standards, one may say that those measures on the limitation of the Internet access of natural persons and legal entities under the state of emergency are lawful. Yet, as I see it, the state did not follow formal procedures of notifying other ICPPR state parties on the use of the right to derogation, if it was actuated, as set forth by the Siracusa Principles.

Another point of debate is the proportionality of the purpose to be achieved: Is it reasonable to shut down the Internet for the whole of the 19-million population of the country to block communications between ‘20 thousands’ of bandits?

Taking into account, that the state has already practiced cutting off the Internet or blocking access to certain websites during rallies with no ‘terrorists’ or ‘bandits’, as it occurred on May 9, 2019, when Kazakhstan blocked access to the major social networks and online platforms, such as Facebook, Instagram and YouTube, and also to Telegram instant messaging application and online news, it will basically be of little difficulty to come up with a formal ground for the Internet shutdown.
Recommendations
1. The parties that directly or indirectly decided on the limitation of the Internet and web content or were charged with the technical implementation of such limitations, in particular, the state, telecoms operators, and State Technical Service JSC, should analyze the effect of the shutdown. The state should review the reasonability and proportionality of the measure taken; whether such measure complied with the security-related needs of the state and the society. In their turn, telecoms operators should analyze the impact of the shutdown to the telecommunications industry.
2. When introducing a state of emergency or imposing limitations of human rights and freedoms, the state should honor all procedures fixed in the international documents, specifically on the notification of the ICPPR state parties on using the right of derogation in the field of human rights.
3. In the light of recent events related to the introduction of the amendments on the regulation of social networks and messengers, the state should consider civil society’s concerns on the new legislative norms to be adopted.