Right to Freedom of Opinion, Expression and Access to Online Information through the Prism of January Events

Gulmira Birzhanova

Lawyer, expert in the field of local national and international media law, co-founder of the Public Foundation "Legal Media Center", member of the new generation of human rights defenders Coalition
Diana Okremova
Journalist, expert in the field of free access to the information, Head of Public Foundation "Legal Media Center"
January events in Kazakhstan made it clear that the right to freedom of expression, receipt and dissemination of information had been unfoundedly restricted on those days. When trying to cover the situation, journalists, bloggers and active citizens were exposed to increased risks, including the pressure from law enforcement agencies, during the ‘gas price’ protests and later on.

The major captured violations were as follows: detentions, mass-scale summons to questioning by law enforcement authorities, arrests of journalists and bloggers, imposition of administrative penalties for publishing posts, physical attacks, and bans of information websites as well as total Internet shutdown. More details on the specific cases are given at the website of the Legal Media Center Public Foundation.

Restrictions and Violations of Rights during January Events
The access to information was hindered during the tragic events of January. None of the TV channels covered the situation during the first days of protests. Yet, the government realized that keeping people in the information vacuum wasn’t wise since it would cause other problems. That is the reason why in the midst of events (January 5-6), when the Internet had been cut off throughout the entire country, citizens of Kazakhstan started to receive information on what was going on from TV (Khabar24, Kazakhstan, and Atameken channels were broadcasting).

Mainly, those were news items on the current situation in Almaty and other regions, President’s addresses, and warnings on the possible administrative and criminal liability for calling to extremism and terrorism, disseminating knowingly false information, and going outside during the night-time curfew.

People could read news on inform.kz, qazaqstan.kz, tengrinews.kz, 24.kz, baq.kz, baigenews.kz, and stopfake.kz without the Internet connection. At that time, it became possible to use services of Kaspi bank and Halyk bank during the Internet shutdown. The emergency rescue service regularly sent text message reminders on the introduction of the night-time curfew.

In general, we can suggest that access to information during the state of emergency (SoE) was restricted to different degrees in various fields. It mostly concerned the reasons and the causers of those bleak events as well as the number of people who had suffered or got injured.

Taking into consideration that governmental TV-channels were the only source of official information and they dosed it out in a very cautious manner, the society faced a pressing need in additional data. Those challenging days led to a harsh spike of the popularity of Telegram channels, especially of those authors, whose websites were blocked. For instance, orda.kz and kaztag.kz were banned, but the vigorous efforts of their newsrooms continued on Telegram. ORDA’s Editor-in-Chief, Gulnar Bazhkenova, wrote on her Facebook page: “Our website Orda.kz has been blocked. Glitches began two hours ago, and now the website does not load at all. We’ve checked the VPN access, and it works. Our contacts in Russia checked it – and it loaded. So, it’s been banned”. Media circles made an immediate statement with regard to that and other cases, where they condemned such bans and harassment of journalists.

Banning of websites continued after January events. As a consequence, they carried on informing their readers through Telegram, which, in turn, gave way to the significant increase in the number of subscribers. Thus, by that time this paper was prepared, the number of ORDA’s followers had arrived at about 130 thousand, while before the outbreak of January events, the audience of their Telegram channel had not exceeded 3 thousand.

Besides, it resulted in a new sound of such authorial and anonymous Telegram channels as БЕСсимптомно (roughly translated as ‘NO symptoms’ with a sort of play of words with a hit to ‘Demon’s signs’) and Qumash (a slang word meaning ‘Do tell’). In addition, an official Telegram channel of the Government of the Republic of Kazakhstan was initiated, which covers major news and events related to the activities of the Cabinet of Ministers.

In March, esquire.kz made a rating of the most sought-after and widely-read national Telegram channels. Notably that channels of those media organizations that had been blocked in January came out on top among others.

One of the issues, which journalists and bloggers had to address, resided in the dissemination of fake information. To handle bogus stories and to prevent spreading out of the misrepresenting news, caused by the irregular Internet connection and information vacuum, a number of media outlets appealed to the national government as follows:
“Dear managers of the competent authorities! In order to prevent publications of unreliable information, we ask you to provide us with official opinions and press-releases. We do not receive any official comments or press announcements from the government, and we encounter difficulties when trying to find credible facts. We should help each other in these challenging times. We support you and we understand the toughness of the environment you have to operate in. Let us fight against misleading information together”.
This statement was signed by the editorial staff of ORDA, The Village Kazakhstan, KazTAG and Vласть (translated as ‘Power’).

During January events, some pieces of information (photo- and video materials) were brought to the portals by initiative citizens, who had witnessed certain incidents and confronted with injustice. To make its informants safe, ORDA launched @Ordakazakhstan_bot. Thus and so, media representatives made every attempt to fulfill their professional duty in an effective and well-timed manner, despite all risks and threats, even during the Internet shutdown.

Immediately after January events, in his interview to Khabar 24 TV channel, the Head of the state, Kassym-Jomart Tokayev, acknowledged that from the information perspective the government had lost in January events due to the disinformation campaign: “There was no access to the Internet, it was like a vacuum. Speaking of the information environment, we lost. Nobody explained either my order, or my actions. Later I started giving step by step instructions to speak here, to clarify there, and so on. We lost informationally, but there were more important things to think about. Could we afford to worry of what someone would say?”.

Representatives of law enforcement agencies also stated that protests had been followed by an information war splurged to gain control over the social conscience in Kazakhstan. Sanzhar Adilov, speaking on behalf of the Ministry of Internal Affairs, informed on revealing 43 social network accounts registered abroad. In the middle of February, the Ministry of Internal Affairs reported to about initiating 13 criminal cases into the facts of the dissemination of fakes about January events.

Meanwhile, the Ministry of Information and Social Development conducted an online session with representatives of non-government organizations to discuss matters of protection and exercise of the rights of journalists detained during the mass riots. In parallel, representatives of independent media sources, human rights defenders, and activists of Kazakhstan published an open appeal addressed to the national government, where they demanded to stop discreditation and prosecution of the personnel of independent media organizations: “Law enforcement agencies and security services must fight against real criminals, terrorists and plotters, and not hunt out among those who protect democratic values and basic human rights and freedoms”.

National Legislation
Article 20 of the Constitution of the Republic of Kazakhstan states “Freedom of speech and creative activities shall be guaranteed. Censorship shall be prohibited”. According to the article, everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan shall be determined by law.

The similar norms are reflected in the Law “On Mass Media”. According to clause 1 of article 2 thereof “Freedom of speech, creative work and expression of own views and convictions in printed and other form, as well as receipt and distribution of information by any means not prohibited by Law, is guaranteed by the Constitution of the Republic of Kazakhstan. Censorship shall be prohibited”. As clause 2 of article 2 runs: “State bodies, public associations, officials, and mass media shall ensure that every citizen has an opportunity to familiarize with documents, decisions, and sources of information that affect his (her) rights and interests”.

However, both freedom of speech and access to the Internet may be restricted during a state of emergency. This very provision of the Law “On Communications” was applied during January events, having impacted the access to information and enjoyment of the right to freedom of opinion and expression.
International Standards
According to the international standards on human rights protection, the right to freedom of speech may be restricted during a state of emergency, and yet certain provisions of the Siracusa Principlesmust be observed. Thus, a limitation may be considered allowable, when it:
1. responds to a pressing public or social need;
2. pursues a legitimate aim; and
3. is proportionate to that aim.

In doing so, any assessment as to the necessity of the limitation must be made on objective considerations. In applying a limitation, it is of the utmost importance that the state uses no more means to restrict such rights than are required for the achievement of the purpose of the limitation.

UNESCO principles establish that “Without a minimum level of public order, citizens and journalists cannot fully enjoy their right to free expression. Security forces must therefore protect journalists against attacks by others who seek to prevent them from doing their work”.

With regard to the events in Kazakhstan, these principles were breached in the above-mentioned cases, because the journalists were intent on informing citizens of the most important events, and their actions were aimed to preserve democratic values, but not to destabilize the situation during the protests.

In early January, UN High Commissioner on Human Rights Michelle Bachelet expressed her concernson the situation evolving in Kazakhstan and urged all, including security forces and protesters, to refrain from violence. She strongly recommended to release all those arrested and detained solely for exercising their rights to peaceful protest and freedom of expression.

During that period, other international organizations also made their statements on the violations of the right to freedom of opinion and expression that took place in Kazakhstan during the state of emergency.

The Committee to Protect Journalists called on the government of Kazakhstan to allow journalists to cover ongoing protests freely and to ensure their safety against officials and protesters.

Amnesty International, a global human rights advocacy organizations, urged the government to release journalists and activities who had been detained for covering mass protests and to guarantee the protection of their rights.

United Nations Secretary-General Antonio Guterres reminded of the important role of journalists who make it possible for people to obtain reliable information from the territories of confrontation. As he said, such information is vital for the achievement of lasting peace, sustainable development and protection of human rights. Guterres stressed that according to the international humanitarian law, all civilians, including journalists who work in the areas of armed conflict, must be respected and protected. He urged all conflicting parties and international community, as a whole, to ensure protection of mass media representatives and create safe conditions for their professional activities.

OSCE Representative on Freedom of the Media Teresa Ribeiro made a following statement: "Unrestricted access to information, offline and online, represents important elements of public security and should always be respected. I call on the authorities of Kazakhstan to preserve, protect and advance media freedom in the country for the benefit and comprehensive security of the country and the OSCE region at large”.

Although the state of emergency dictated immediate measures to be taken to settle the situation, and, in the opinion of the government, necessitated limitations of the access to the Internet and information, those actions against journalists and bloggers were excessive. Detentions, penalties, summons to law enforcement authorities, and other forms of the violations of the professional rights have demonstrated that the government neither considers the right to the freedom of opinion and expression, as well as the access to the Internet, to be a fundamental right, nor strives to make its utmost to protect such right and its realization.

In addition, the situation revealed violations of the international law and Siracusa Principles as evidenced by the statements of the concerned international organizations. Due to the unreasonably restricted access to information, citizens could not always obtain news from reliable sources, which, in turn, contributed to the dissemination of fakes and whipped up panic and distress of the population.
● The state must be responsible for ensuring safety of journalists and must allow them to cover protests with no fear for their freedom.
● The state may apply legal limitations during a state of emergency, but must not allow any misuse of its authorities: any limitations shall be allowable to the extent it is necessitated by the urgency of the situation only.
● The state must fight against the dissemination of fake, unreliable or calling to violence information, and yet it must honor the rights to freedom of opinion and expression and to freedom of speech as set forth in the Siracusa Principles.
● It is necessary to bring the laws and practices of Kazakhstan on the freedom of opinion and expression and on the digital rights in the full compliance with its international commitments.
● The government must strictly follow provisions of the international and national laws concerning the access to information; conduct detailed case-by-case assessments of the degree of necessity to impose limitations of the access to information during a state of emergency in a transparent and objective manner; contribute to the maximum publishment of information, especially if it is of the strong social interest; and provide information to all journalists and media organizations, regardless of their form of ownership and thematic orientation.